Dallas Bar Association
HEADNOTES January 2018 Volume 43 Number 1
Focus Construction/Real Property Law
Aubrey Connatser Honors Ken Fuller’s Legacy Michael Hurst to be Inaugurated as DBA’s 109th President with First Gift to New DVAP Endowment BY MICHELLE ALDEN
In 1997, the Dallas Bar Association and Legal Aid of NorthWest Texas joined their previously separate pro bono programs to create the Dallas Volunteer Attorney Program (DVAP). The now 20-year-old program combines the volunteer resources of the Dallas Bar Association with Legal Aid’s expertise in providing legal help to the poor. Today, DVAP is the largest and most comprehensive provider of pro bono legal services in Dallas. The program is recognized locally, regionally, and nationally as a leader in the pro bono community because of its unique partnership between a bar association and legal aid organization. Currently, legal aid programs around the nation face a crisis over how to pay for the legal aid services Aubrey Connatser they provide. Committed volunteers provide their legal services free of charge; however, funds are needed to coordinate clinics, recruit volunteers, train and mentor volunteers, and oversee the thousands of cases that DVAP handles every year. Federal and state funding are tied to legislative support for legal aid to the poor, which has, unfortunately, not been a high enough priority in recent budgets. Federal and state funding cuts threaten the future of DVAP and other legal aid programs across Texas and the United States. Rather than waiting for the next round of funding cuts, Dallas Bar Association President Michael K. Hurst decided to take a proactive approach by creating a DVAP Endowment (the Endowment). The Endowment strives to create and maintain long-term funding to secure legal aid to the poor in Dallas should traditional funding methods shrink or cease to exist. Accordingly, the Endowment functions to provide a dependable safeguard to the DBA’s efforts to help fund pro bono legal services. The Endowment shall be used solely for the support of DVAP. The first donor to step up to fund the Endowment, with a gift of $50,000, is Aubrey Connatser of Connatser Family Law. Aubrey is a longtime supporter of DVAP. She has given over $100,000 to the Equal Access to Justice Campaign since 2006, and that does not include her inaugural gift to the Endowment. Aubrey has made this extraordinary gift to honor the memory of her mentor Ken Fuller. “Ken Fuller was a trailblazer in our field. His hard work landed him at the top of his profession and his big heart dictated that he give back tirelessly through DVAP. The limitless potential of our profession would be realized if all lawyers followed in his path. Hard work and
giving back can change the world, one person at a time,” Ms. Connatser said. Many lawyers knew of Ken’s professional accomplishments, including being a named partner in KoonsFuller, being named a Texas Super Lawyer and one of the Best Lawyers in Dallas by D Magazine, and being inducted into the State Bar of Texas Family Law “Hall of Legends” in 2003. Many lawyers were also aware of his extensive pro bono work and experienced Mr. Fuller convincing them to accept a pro bono case. Mr. Fuller is very fondly remembered at DVAP. For many years, he spent his Mondays and Tuesdays at DVAP—mentoring volunteers, assisting in-house with staffing, handling cases, and doing prove-ups. Mr. Fuller is missed by so many who had the good fortune to learn from him over the years, both through his knowledge of family law and those who were inspired by his example to give back to the community. Ms. Connatser learned from the best, and her generous tribute to Mr. Fuller is fitting indeed. “Aubrey Connatser knows the importance of ensuring that legal aid to the poor is funded for generations. For all people, for all time. I was not surprised when she once again wanted to put her money where her heart is, and become the DVAP Endowment’s first major donor to honor the memory of Ken Fuller. Aubrey’s leadership will no doubt have a lasting impact on our Community,” said Mr. Hurst. Ms. Connatser and the attorneys of Connatser Family Law are committed to resultsoriented, focused, creative problem solving. They harness these elements in every divorce, child custody matter, premarital and postmarital agreement, modification, and collaborative law matter in their practice. Ms. Connatser’s empathetic nature is an asset in her family law practice, and she has a long history of giving back, from doing community service at the Episcopal School of Dallas to volunteering at the Children’s Advocacy Center during her college and law school days at The University of Texas. She then volunteered at the Domestic Violence Clinic at UT Law School, and has been involved with pro bono work ever since. “We are so blessed,” said Ms. Connatser of the legal profession. “We have the chance to make a huge impact on someone’s life by doing things that, to us, seem really simple, but help others with things that seem insurmountable for them.” Ken Fuller would wholeheartedly agree. HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org.
Inside 6 Jones Day Takes the Lead in the EAJ Campaign 8 Tino Ramirez to Receive 2018 MLK Justice Award 10 DBA Offers New Member Benefit—Online CLE 21 Who Breached First, and Was It Material?
BY SHONN BROWN AND JOSH SANDLER
On January 20, 2018, Michael K. Hurst will lead the Dallas Bar Association into its 145th year as its President. “I have a habit of writing down words to describe people when I first meet them,” said Mike Lynn, of Lynn Pinker Cox & Hurst, LLP. “For Michael, I wrote that he is ‘bright, deferential, trustworthy, supportive, and ambitious. I like him.’ Not a bad description of my partner who sincerely cares about lawyers, the practice of law, and our profession.” We always tell our children that actions speak louder than words. In Michael’s case, his actions speak volumes. Those who work with Michael know he is devoted to his family, the practice of law, the community, and his colleagues. His professional life serves as a living embodiment of the DBA’s mission statement, which is to “serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.” As the solo Chair of the Equal Access to Justice Campaign in 2013, Michael raised a record amount of legal aid for low-income families and individuals. As a co-chair of the Pro Bono Activities Committee, he helped provide free legal help to the low-income residents of Dallas County. Michael served as President of the Community Service Board and even received the Lois Bacon Special Services Award for his pro bono work. Michael leads by example. When he leads, he brings his friends and colleagues along with him. Ever since we have known Michael, he and has family have selflessly delivered Thanksgiving meals to families who receive pro bono legal services. Illustrative of his style of leading by example, this annual practice has expanded and now, leaders within the DBA, as well as those within his law firm, help needy families every Thanksgiving. Michael’s leadership and efforts to fund pro bono legal services will be a prominent part of his programming this year as he develops a Pro Bono Endowment, having already secured significant gifts from individuals and corporations in Dallas including Michael and his wife, Jane Rose Hurst. An accomplished trial lawyer, Michael is consistently ranked as amongst the best attorneys around.
Michael Hurst
Both of us have tried cases with Michael and are constantly impressed by how sharp, well-reasoned, and personable he is. Don Godwin, a former law partner of Michael’s, said of him: “Michael and I tried several jury trials together dating back to the 90s. He is a natural in the courtroom with a very accomplished and proven ability to communicate very well with juries and judges. He is a gifted trial lawyer with a disarming manner. He can be a fierce cross examiner and in a moment’s notice can be as mild mannered as needed for the circumstance.” U.S. News & World Report selected Michael as one of the “Best Lawyers in America” in Commercial Litigation, Labor & Employment Litigation, and Real Estate Litigation. Texas Monthly named Michael as one of the “Top 100 Lawyers in Texas.” Benchmark Litigation selected Michael as a “Litigation Star.” The Dallas Business Journal named Michael as one of the “Top 15 Business Defenders.” He also received outstanding young lawyer awards from both the Texas Young Lawyers Association (TYLA) and the Dallas Association of Young Lawyers (DAYL). He was also the first male to receive the Dallas Women Lawyers Association’s Louise B. Raggio Award. Even more impressive, those serving as opposing counsel to Michael note his ability to vigorously advocate for his clients while maintaining high professionalism standards. “He is very professional and a credit to the legal profession,” added Mr. Godwin. “He loves the practice of law, and more than anything profescontinued on page 10
DBA MEMBER REMINDER – RENEW TODAY! 2018 DBA DUES STATEMENTS have been mailed and must be paid by December 31, 2017! Mail in your payment or go to dallasbar.org and click on Renew Your Membership NOW! Thank you for your support of the Dallas Bar Association!
2 He a d n o t e s l D a l l a s B a r A s s o ciation
January 2018
Calendar January Events FRIDAY CLINICS
JANUARY 12-NORTH DALLAS** Noon
“Ethics in Protecting Clients from Cyber Intrusions,” Peter Vogel. (Ethics 1.00)* Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to yhinojos@dallasbar.org.
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
FRIDAY, JANUARY 12 Noon
JANUARY 19-BELO Noon
“Why Judgments Get Reversed,” Jason Steed. (MCLE 1.00)* RSVP to yhinojos@dallasbar.org.
MONDAY, JANUARY 1
DBA Offices Closed in Observance of New Year’s Holiday
TUESDAY, JANUARY 2 Noon
Morris Harrell Professionalism Committee
WEDNESDAY, JANUARY 3 Noon
Employee Benefits & Executive Compensation Law Section Topic Not Yet Available
Solo & Small Firm Section “Marketing 101: Growing Your Practice,” Krisi Kastl. (MCLE 1.00)*
Public Forum/Media Relations Committee
5:30 p.m.
Bankruptcy & Commercial Law Section “Case Law Update,” Hon. Harlin Hale, Rakhee Patel, and Gerrit Pronske. (MCLE 1.00)*
THURSDAY, JANUARY 4 Noon
Construction Law Section “Who’s Gonna Pay For That?” Blair Dancy. (MCLE 1.00)*
Immigration Law Section “Crimmigration,” Jordan Pollock. (MCLE 1.00)*
Home Project Committee
Legal Ethics Committee
Noon
Dallas Area Real Estate Lawyers Discussion Group Family Law Section “Using the Tax Return to Determine the REAL Income of the Estate,” Larry Settles. (Ethics 1.00)*
DAYL Lunch & Learn CLE
5:15 p.m.
LegalLine. Volunteers needed. RSVP to sbush@dallasbar.org.
Peer Assistance Committee
Noon
Martin Luther King, Jr. Justice Award Luncheon Recipient: Tino Ramirez. RSVP to bavina@ dallasbar.org.
TUESDAY, JANUARY 16
Tax Law Section “The Tax Cuts and Jobs Act,” Clint Davis. (MCLE 1.00)*
MONDAY, JANUARY 15
Tort & Insurance Practice Section “Direct Examination,” Pat Long. (MCLE 1.00)*
Juvenile Justice Committee
5:30 p.m.
Trial Skills Section “The Jury Trial and Our Obligation to Preserve it through Skilled Advocacy,” Tom Melsheimer and Hon. Craig Smith. (MCLE 1.00)*
WEDNESDAY, JANUARY 10 7:45 a.m.
Mergers & Acquisitions Section Topic Not Yet Available
Real Property Law Section “Case Law Update,” David Weatherbie. (MCLE 1.00)*
St. Thomas More Society
Alternative Dispute Resolution “Implicit Bias and The Culturally Competent Third Party Neutral,” Angela Downes and Kay Elkins Elliott. (MCLE 1.00, Ethics 0.50)*
Corporate Counsel Section “2018 Proxy Season Outlook,” Sweta Gabhawala and James O’Bannon. (MCLE 1.00)*
Admissions & Membership Committee
MONDAY, JANUARY 8
Noon
Government Law Section Planning Meeting
Noon
11:30 a.m. Courthouse/Library Committee
Judiciary Committee
FRIDAY, JANUARY 5 Noon
TUESDAY, JANUARY 9
North Dallas Friday Clinic “Ethics in Protecting Clients from Cyber Intrusions,” Peter Vogel. (Ethics 1.00)* Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to yhinojos@dallasbar.org.
DVAP/JLTLA CLE “I’ve Passed the Bar, Now What? Things You Didn’t Learn in Law School,” Judicial panel. RSVP vallejod@lanwt.org. (MCLE 2.00)*
THURSDAY, JANUARY 11 Noon
CLE Committee
Publications Committee
Christian Lawyers Fellowship
DAYL Pro Bono Partners Committee
3:30 p.m.
DBA Board of Director Meeting
6:00 p.m.
J.L. Turner Legal Association
COME TO THE INAUGURAL OF Michael K. Hurst Saturday, January 20, 2018 The Omni Dallas Hotel and bid on Packages from:
Noon
Blockchain Law Study Group “SEC Investigation and Enforcement Involving Digital Assets,” David Hirsch and Jessica Magee. (MCLE 1.00)* International Law Section “NAFTA 2.0: The Renegotiation Mexican perspective,” Christian Haro. (MCLE 1.00)*
6:30 p.m.
Entertainment Committee
Dallas Bar Foundation Board Meeting
DAYL Elder Law Committee
6:00 p.m. Dallas Hispanic Bar Association
WEDNESDAY, JANUARY 17 Noon
Business Litigation Section “Two Jeffs and a Joe,” Hon. Jeffrey Boyd, Hon. Jeff Brown, and Joe Cox, moderator. (MCLE 1.00)*
Energy Law Section “Special Warranties in Oil and Gas Transactions,” Jeff Gilmore, Garrett Martin, and Jim Strawn. (MCLE 1.00)* Health Law Section “Lawyers as HIPAA Business Associates: Ethical Obligations and Practical Tips for Compliance,” Jeff Drummond and Jamie Sorley. (Ethics 1.00)*
Law in the Schools & Community Committee
Pro Bono Activities Committee
DAYL/DWLA Women’s Mentoring Circles
Non-Profit Law Study Group
5:15 p.m. LegalLine. Volunteers needed. RSVP to sbush@dallasbar.org.
THURSDAY, JANUARY 18
Inaugural of DBA President Michael K. Hurst. Tickets available online at http://sbush26. wixsite.com/dbainaugural2018. Tickets: $175/Tables: $1,750/Judiciary: $125
MONDAY, JANUARY 22 Noon
Science & Technology Law Section Topic Not Yet Available
Securities Section “2018 Enforcement Priorities for the Fort Worth Regional Office of the U.S. Securities & Exchange Commission,” Marshall Gandy, Jessica Magee, and Shamoil Shipchandler. (MCLE 1.00)*
Senior Lawyer Committee
DAYL Membership Committee
TUESDAY, JANUARY 23 Noon
Probate, Trusts & Estates Law Section “Real Estate Practice Tips for Probate, Estate, and Trust Lawyers,” Roland Love. (MCLE 1.00)*
DAYL Lawyers Promoting Diversity
American Immigration Lawyers Association
WEDNESDAY, JANUARY 24 Noon
Collaborative Law Section “Addressing Addiction in Collaborative Cases,” Vicki James and Jody Johnson. (MCLE 1.00)*
Entertainment, Art & Sports Law Section “Sexual Harassment Developments Affecting the Sports and Entertainment Industries,” John Smart. (MCLE 1.00)*
DVAP New Lawyer Luncheon. For more information, contact reed-brownc@lanwt.org.
Community Involvement Committee
SATURDAY, JANUARY 20
THURSDAY, JANUARY 25 8:00 a.m.
Intellectual Property Law Section “Federal Circuit Bench Bar.”
Noon
Criminal Law Section “Expunction & Nondisclosures Legislative Update,” Stephanie Luce Ola. (MCLE 1.00)*
Environmental Law Section Topic Not Yet Available
DBA Community Service Fund Board Meeting
Christian Legal Society
DAYL CLE Committee
FRIDAY, JANUARY 26 Noon
Intellectual Property Law Section “Fashionably Legal: Intellectual Property Law in the Fashion Industry,” Kirby Drake and Tiffany Johnson. (MCLE 1.00)*
DAYL Solo & Small Firm Committee
DVAP Education Advocate Training
MONDAY, JANUARY 29
Noon
Appellate Law Section “Mandamus Update: Trends in the Texas Supreme Court,” Rachel Campbell and Justice Doug Lang. (MCLE 1.00)*
Criminal Justice Committee
No DBA Events Scheduled
Minority Participation Committee
WEDNESDAY, JANUARY 31
No DBA Events Scheduled
TUESDAY, JANUARY 30
Hotel Zaza
Times Ten Cellars
Christian Legal Society
Noon
DAYL Equal Access to Justice Committee
Local Restaurant
Uptown Yoga
DAYL Animal Welfare Committee
Municipal Justice Bar Association
Hattie’s
Hiatus Spa & Retreat
Dallas LGBT Bar Association
THURSDAY, FEBRUARY 1
The Capital Grille
Billy Bob’s Texas
Tickets $175; Tables $1,750 | Judiciary $125 To reserve your ticket, contact Shawna Bush at (214) 220-7453 or sbush@dallasbar.org. Visit www.dallasbar.org for more information!
5:30 p.m. Labor & Employment Law Section “Annual Labor & Employment Winter Judicial Conference,” Hon. Anne Ashby, Hon. David Horan, Hon. Amoz Mazzant III, Scott McElhaney, moderator. (MCLE 1.50, Ethics 0.50)*
Noon
Construction Law Section Topic Not Yet Available
Judiciary Committee
Lawyer Referral Service Committee
FRIDAY, JANUARY 19
St. Thomas More Society
Noon
Friday Clinic-Belo “Why Judgments Get Reversed,” Jason Steed. (MCLE 1.00)* RSVP to yhinojos@ dallasbar.org.
DAYL Lawyers Against Domestic Violence
FRIDAY, FEBRUARY 2 Noon
Friday Clinic-Belo “Lawyers In Cyberspace: A Survey of Ethics in Data Security,” Kathryne Morris. (Ethics 1.00)* RSVP to yhinojos@dallasbar.org
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez at (214) 220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Grecia Alfaro at the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.
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D al l as Bar A ssoci ati on l Headnotes 3
4 He a d n o t e s l D a l l a s B a r A s s o ciation
January 2018
President’s Column
Headnotes
“And Justice for All”–Now and Forever BY MICHAEL K. HURST
What keeps you awake at night? Like many of our colleagues, the stresses and anxieties attendant with our profession do not diminish for me when my head is fortunate enough to hit the pillow.
Leadership (Anticipation)
Being a leader and the anticipation of the awesome responsibility of serving you as the 109th President of the Dallas Bar Association has kept me awake many nights for more than a year. I am energized and driven by my fear of not living up to your expectations and the trails blazed by the pioneers and visionaries who have previously led this organization. How can I work with you over the next 12 months to anticipate and address many of the issues that are imminently confronting us, and contribute to the betterment of our profession and community? I also lay awake thinking about what it means to be a “leader.” There are no doubt countless attributes of leadership and much of the concept of leadership is contextual. To me, leadership generally begins with anticipation. Over the last year I have been thinking about the future of our low-income neighbors’ ability to engage legal representation. For our revered justice system to sustain, it has to work for everyone, not just those who can afford to pay the escalating fees for legal representation. For leaders in our profession, the anticipation begins with the future of funding for legal services for the poor. DVAP cases involve child support, custody, paternity, access to health care, visitation rights, often including domestic violence, to benefits programs. Women and children make up more than 75 percent of DVAP clients. Half of all client applicants are employed.
Why the Endowment
Rather than waiting for the next round of funding cuts, the Dallas Bar Association has created the DVAP Endowment to maintain long term funding to secure legal aid to the poor in Dallas. The Endowment safeguards the Dallas Bar Association’s commitment to pro bono legal services by providing (1) funding if federal and state funding is further reduced (both came perilously close to being cut in their entirety in 2017) and (2) a backstop so that DVAP is less dependent upon monies raised annually through the DBA’s Equal Access to Justice Campaign (which may very well be eroded in coming years due to demographics and law firm consolidation). The DVAP Endowment will be used solely to support the Dallas Volunteer Attorney Program. The DVAP Endowment will enable DVAP to maintain its then-current level of operations if a material funding reduction or elimination, or a year of extraordinary need, occurs.
The Creation
I may be accused of many things, but one thing I am generally not dubbed is “patient.” About halfway through last year I decided that for the DVAP Endowment to hopefully sprout wings during my presidency, we needed to do much of the heavy lifting immediately. With the help and leadership of Alicia Hernandez, Michelle Alden, Sam Prince and our outstanding 2017 EAJ Campaign Chairs, Jonathan
Childers, Sakina Rasheed Foster, and Cheryl Camin Murray, who graciously agreed to assist with the Endowment while simultaneously heading the Campaign, we hatched the Endowment plan. Philip Bush volunteered his time and skill to draft and revise the operative documents that were approved by Community Services Fund Board on September 11, 2017 and presented to the DBA and DBF Boards the same week.
Funding
The corpus of DVAP Endowment, of course, needs to be funded, invested prudently, and distributed over time in accordance with written guidelines. Our team devised a short-range goal to raise $300,000 by February 1, 2018, and to permit 5 percent of market value of the corpus to be utilized annually to supplement the legal aid budget. To help us raise funds, our team met with some of the Bar’s great leaders and pro bono advocates, including Jerry Alexander, Jim Burnham, Aubrey Connatser, Rob Crain, Laura Benitez Geisler, Dan Kelly, Justice Elizabeth LangMiers, Kate Morris, Mark Sales, Frank Stevenson, and Paul Stafford. We decided to first approach some of our marquis corporate citizens for this funding. Under Frank’s leadership, a second funding source is the recognition associated with people and firms who want to honor their “Legal Heroes.” Kate Morris is going to head outreach to foundations and other community endowments. And, for as long as the EAJ Campaign raises more than $1 million, the funds raised over $1 million may be allocated to the Endowment. NEVER underestimate the heart of the Dallas Legal and Business Communities! I am proud to say that by November 15, 2017, we already exceeded our February 2018 goal. Aubrey Connatser is honoring one of her legal heroes and a hero of pro bono, the late Ken Fuller, at $50,000. Lynn Pinker Cox Hurst/Jane and Michael Hurst are contributing $50,000. Jerry Alexander is contributing $50,000 as part of his planned giving. Hunt Consolidated, Inc., through the leadership of Ray Hunt, David Hernandez, Hunter Hunt, and Chris Kleinert, is contributing $50,000. David and his wife Michele Hernandez are contributing an additional $10,000. Highland Capital Management, through the leadership of Jim Dondero, is contributing $50,000. So is Vistra Energy, under the leadership of Stephanie Moore and Dan Kelly. AT&T, through David McAtee’s leadership, is contributing $50,000; and David and his wife, Cristy, are contributing an additional $10,000. You will see the generosity of these people and companies recognized and memorialized in several places, including on a new plaque that will be displayed in the Belo Pavilion. As members of the DBA, we have proven to be a forward-looking and dynamic group, having made the Belo Mansion, the Pavilion, and the leading pro bono program, DVAP, realities. The DVAP Endowment is the next step to ensure the future of access to justice in Dallas, and perhaps as a model for Bar Associations across this great Country. Please join us in leading this important and impactful effort to ensure that “and justice for all” is indeed for all and forever. Michael Hurst
Dallas Bar Association & Dallas Association of Young Lawyers
Second Chair Program
The Dallas Bar Association and the Dallas Association of Young Lawyers are teaming up to provide young civil lawyers with an opportunity to gain more jury trial experience. Young civil lawyers will be given the opportunity to sit “second chair” with seasoned criminal lawyers in misdemeanor trials.
Applications available at www.dayl.com
Advisory Committee: Judge Tina Yoo Clinton, Judge Jennifer Bennett, Judge Bonnie Goldstein, Barry Sorrels, Katie Bishkin, Jody Rodenberg, Dennis Siaw-Lattey, Shay Talbitzer, and Andy Jones For more information contact: Cherie Harris at cherieh@dayl.com
Published by: DALLAS BAR ASSOCIATION
2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Michael K. Hurst President-Elect: Laura Benitez Geisler First Vice President: Robert L. Tobey Second Vice President: Aaron Z. Tobin Secretary-Treasurer: Vicki D. Blanton Immediate Past President: Rob D. Crain Directors: A. Shonn Brown, Jonathan Childers, Stephanie Culpepper, Isaac Faz (President, Dallas Hispanic Bar Association), Sakina Foster, Ashlei Gradney (President, J.L. Turner Legal Association), Hon. Martin Hoffman, Krisi Kastl, Shruti Krishnan (President, Dallas Asian American Bar Association), Bill Mateja, Karen McCloud (Chair), Kate Morris, Cheryl Camin Murray, Stephanie Osteen (President, Dallas Women Lawyers Association), Jennifer Ryback (President, Dallas Association of Young Lawyers), Mary Scott, and Victor D. Vital Advisory Directors: Charles Gearing (President-Elect, Dallas Association of Young Lawyers), Erin Nowell (President-Elect, J.L. Turner Legal Association), Javier Perez (President-Elect, Dallas Hispanic Bar Association), Sarah Rogers (PresidentElect, Dallas Women Lawyers Association), and Jason Shyung (President-Elect, Dallas Asian American Bar Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Jerry Alexander, David Kent, Gregory Sampson, Scott Stolley, and Brad Weber HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Display Advertising: Tobin Morgan, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Alexander Farr and Carl Roberts Vice-Chairs: Andy Jones and Beth Johnson Members: Timothy Ackermann, Logan Adcock, Wesley Alost, Stephen Angelette, Michael Barbee, David Black, Jason Bloom, Grant Boston, Andrew Botts, Emily Brannen, Jonathan Bridges, Amanda Brown, Angela Brown, Eric Buether, Casey Burgess, Cory Carlyle, Paul Chappell, Charles Coleman, Wyatt Colony, Shannon Conway, Natalie Cooley, Daniel Correa, G. Edel Cuadra, Jerald Davis, James Deets, James Dockery, Elisaveta (Leiza) Dolghih, Angela Downes, Sheena Duke, Charles Dunklin, Dawn Fowler, Juan Garcia, Britaney Garrett, Michael Gonzales, Andrew Gould, Jennifer Green, Kristina Haist, Susan Halpern, Bridget Hamway, Edward Harpole, Meghan Hausler, Jeremy Hawpe, Lindsay Hedrick, Marc Hubbard, Brad Jackson, Andrew Jones, Kristi Kautz, Thomas Keen, Daniel Klein, Michelle Koledi, Kevin Koronka, Susan Kravik, Jess Krochtengel, Dwayne Lewis, Margaret Lyle, Lawrence Maxwell, Jordan McCarroll, R. Sean McDonald, Kathryn (Kadie) Michaelis, Elise Mitchell, Terah Moxley, Daniel Murray, Jessica Nathan, Madhvi Patel, Keith Pillers, Kirk Pittard, Laura Anne Pohli, Luke Radney, Mark Rasmussen, Pamela Ratliff, David Ritter, F. Colby Roberts, Bryon Romine, Kathy Roux, Stacey Salters, Joshua Sandler, Matthew Sapp, Justin Sauls, Mazin Sbaiti, Mary Scott , Jared Slade, Thad Spalding, Jacob Sparks, John Stevenson, Scott Stolley, Elijah Stone, Amy Stowe, Adam Swartz, Ashley Swenson, Robert Tarleton, Paul Tipton, Michael Tristan, Tri Truong, Pryce Tucker, Adam Tunnell, Kathleen Turton, Peter Vogel, Suzanne Westerheim, Yuki Whitmire, Jason Wietjes, Sarah Wilson, Pei Yu DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Liz Hayden Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Marcela Mejia, Viridiana Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Membership Director: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist: Grecia Alfaro Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Managing Attorney: Holly Griffin Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Karra Rybicki, Dominick Vallejo Program Assistant: Patsy Quinn Secretary: Debbie Starling Copyright Dallas Bar Association 2018. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
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D al l as Bar A ssoci ati on l Headnotes 5
6 H e a d n o t e s l D a l l a s B a r A s s o ciation
January 2018
Jones Day Takes the Lead in the Equal Access to Justice Campaign BY MICHELLE ALDEN
Front Row (L to R) Jay Johnson, Lindsay Hedrick, Arielle Tobin, Thomas York Back Row (L to R) Mike Considine, Lauren Timmons, Bobby Cardone, Kara O’Connell, Keith Davis, Margaret Lyle, Hilda Galvan, Laura Jane Durfee, John Mazey, Thomas Allen
said Hilda Galvan, Partner-in-Charge of the Dallas office. In 2016, Jones Day attorneys, along with co-counsel, including attorneys from Legal Aid of NorthWest Texas, won a high-profile access-to-justice case in the Supreme Court of Texas. The Court upheld that Rule 145 of the Texas Rules of Civil Procedure does indeed protect indigent litigants from having to pay court costs. This decision has widereaching benefits for indigent litigants statewide. Jones Day has also been active with DVAP for many years—with their attorneys accepting divorce and custody cases, interviewing applicants at the South Dallas Clinic, and participating in DVAP’s Lenda-Lawyer program for several years, which involved loaning an associate to DVAP for three months to work exclusively on pro bono cases. In fact, Jones Day was named
MABEL PETERS CARUTH CENTER
Home of Communities Foundation of Texas
wh e re g iving
THRIVES At Communities Foundation of Texas, even our building helps giving thrive. Designed in 2002 by the late architect Bill Booziotis, the building serves as a hub for philanthropy, through which we help strengthen nonprofits and our donors. CFT is a place where community leaders convene, nonprofits network and passionate people work tirelessly to help build stronger, thriving communities.
In addition to designing our building, Bill Booziotis was one of our fund holders. After his wife’s death, he created a fund to support her favorite causes. He also established a fund to benefit students at Booker T. Washington High School for the Performing and Visual Arts. Through his estate plans with CFT, he is still giving to many cultural institutions that define Dallas. But for us, his legacy is also the 20,000 people who come through our building every year. Create your fund today. Call us at 214-750-4145, email giving@cftexas.org or visit CFTexas.org/givingfund
CFOT-17-010 Headnotes_Booziotis_02mg.indd 1
B I L L B O OZ I OT I S Architect and Friend ( 1935–2016)
Where giving thrives
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DVAP’s 2013 Law Firm of the Year for their extraordinary pro bono service. The value of pro bono work lies not only in helping low-income people access the courts, but also by providing an unparalleled training opportunity for young lawyers to learn their craft. In addition, the gratitude of the pro bono clients is a welcome benefit. Dan O’Brien served as the Jones Day Lend-a-Lawyer to DVAP in 2010. Dan found the work “very rewarding.” When he achieved a good outcome for a client, he “instantly saw the gratification on the client’s face.” And often the smile was the result of a simple call or letter, the work did not have to be complex to be important and meaningful. By the end, he said that the Lend-a-Lawyer program allowed him to “help someone in need” while also “helping [himself] grow as a lawyer and as a person.” Many volunteers can attest to similar pro bono experiences, which is why DVAP’s tagline, “pro bono: it’s like billable hours for your soul,” resonates with so many attorneys, paralegals, law students, judges, clerks, and CLIENT: Communities Foundation of Texas others who donate their time. JOB#: CFOT-17-010 TheCampaign commitment of Dallas attorneys 2017 Brand and the DBA to the Equal Access to JusTRIM: 5"w x 7.75"h tice5"wCampaign is impressive. Since 1997, LIVE: x 7.75"h BLEED: n/a the DBA and Legal Aid have joined forces COLOR: CMYK to raise money for the program, with Dallas PUB: Headnotes lawyers donating almost $13 million. CONTACT: DVAP is a joint pro bono program of Jessica D. Smith, the DBA Headnotes Editor and Legal Aid of NorthWest Communications/Media Director is the only one of its Texas. The program (214) 220-7477 kind in Texas and brings together the voljsmith@dallasbar.org unteer resources of a major metropolitan RELEASE: 12/8/17 bar association INSERTION: January 2018with the legal aid expertise of the largest and oldest civil legal aid program in North Texas. For more information, or to donate, visit www.dallas volunteerattorneyprogram.org. HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org.
$1 Million $900,000 $800,000
$700,000
To Give: www.dvapcampaign.org.
At more than 125 lawyers strong, Jones Day Dallas has delivered award-winning client service in litigation and in a full range of global and local transactions for more than 35 years. The attorneys of Jones Day also pride themselves on supporting the community in which they live and work. This desire to give back to the Dallas community led the firm to step up as this year’s lead sponsor and generously contribute $35,000 to this year’s Equal Access to Justice Campaign. The firm has a long and distinguished history of contributing to the Campaign. Including this gift, the firm has donated more than $193,000 to legal aid for the poor since 1995. The Equal Access to Justice Campaign is the annual fundraising campaign which supports the activities of the Dallas Volunteer Attorney Program (DVAP). The firm’s gift makes it possible for DVAP to continue to provide legal aid to the poor in Dallas, keeping the doors to the courthouse and our overall justice system open to many more people in our community. Since 1982, DVAP has provided, recruited, and trained pro bono lawyers to provide free legal aid to the poor in Dallas. Last year, a 15 member staff supported over 3,000 volunteers in their efforts to volunteer at legal clinics and advise and represent clients. The diversity of Jones Day’s pro bono efforts is truly impressive. “In Dallas, our pro bono commitments range from the representation of unaccompanied children immigrating from Central America, to veterans seeking disability benefits, to providing critical services to non-profit organizations. We are also committed to financially supporting the efforts of organizations that work to increase pro bono legal services to the poor. This year, Jones Day is proud to be the lead sponsor for the Dallas Volunteer Attorney Program’s 2018 Equal Access to Justice Campaign,”
$600,000 $500,000 $400,000 $350,000 $300,000 $250,000 $200,000 $150,000 $50,0000
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D al l as Bar A ssoci ati on l Headnotes 7
Being taken by surprise isn’t an option, so we prepare for everything.
8 He a d n o t e s l D a l l a s B a r A s s o ciation
January 2018
Tino Ramirez to Receive 2018 MLK Justice Award BY JESSICA D. SMITH
The dictionary defines justice as “just behavior or treatment; a concern for justice, peace, and genuine respect for people.” Who better personifies this definition than this year’s 2018 Martin Luther King, Jr. Justice Award recipient—Florentino “Tino” Ramirez. The DBA MLK Justice Award recognizes area leaders whose service to the community embodies the example of Dr. King. Described by his peers as a zealous advocate for his clients, a trusted counselor, and a reflection of graciousness, Tino exemplifies the qualities for which the award is presented. “For decades, Tino has embodied the fight for social justice in a firm but calming manner. I have looked up to Tino since I was a young lawyer for his leadership, professionalism and his role in paving the way for Hispanic lawyers throughout the State. I am proud to see Tino receive the recognition for all that he has humbly accomplished,” said DBA President Michael Hurst. From dishwasher to prominent international attorney, Tino’s life experiences
Tino Ramirez
helped him develop his work ethic, strong character, and determination. Three traits that would help him complete college, law school, and then open his own law firm in Dallas—becoming only the seventh Hispanic lawyer to practice in the city.
Born in Dallas in 1940, he spent his early years in Laredo, but Tino’s family moved back to Dallas when he was in elementary school. He spent his teen years working as a dishwasher and cook in the restaurants owned by his family. Hard work and responsibility were engrained in him from his father, and reaffirmed by his grandmother, with whom he often worked and was a driving force in his life. After graduating from Texas A&M University, he went on to law school at The University of Texas, where he obtained his law degree in 1965. Always a hard worker, Tino worked full-time while carrying a full load in law school, determined to fulfill his dream of becoming a lawyer. However, after graduating he found the city’s law firms unwelcoming to a newly licensed Hispanic person. While he knew he wanted to practice corporate law, he could find no job with a firm, so he decided to hang out his own shingle. He took every case that came to his door, met as many lawyers as he could, and he managed to stay afloat as a young solo attorney. On a visit to Mexico with a fellow Dallas attorney who hired him to interpret for a purchase the attorney was making, an idea began to take form—with his skills as a bilingual attorney he could transform himself into an international lawyer. He worked on marketing himself this way, while still taking any case he could get. In 1968, a defining case came through that door—he was asked by the Under Secretary of State for Mexico to represent a Mexican government-owned airline connection with the seizure of airplanes by a U.S. bank because of a default on a loan. With no hesitation, Tino took the job. His success with the case earned him recognition and referrals. He soon developed the reputation as “the” go-to attorney for Mexican businesses needing representation in Dallas. More than 50 years later Ramirez & Associates, P.C. is still one of the leading law firms
in Dallas, representing U.S. and foreign individuals and businesses. An international counselor, author, and adjunct professor, Tino is also active in the legal community. He was one of the founders of the Mexican-American Bar Association (now known as the Dallas Hispanic Bar Association), whose purpose is to promote the social, economic, educational, and civic advancement of the DFW Metroplex Hispanic community by making the legal system more accessible to the Hispanic community and more responsive to its needs. He was also the first president of the Dallas International Lawyers Association, the predecessor to the DBA International Law Section. In addition, he has been an extremely active member of the Bar, having served on numerous DBA Sections and Committees, and currently active in the International Law Section, Professionalism Committee, and Senior Lawyers Committee. He is on the board of numerous non-profits and commissions in Dallas, and has won too many awards to name, including the DBA Morris Harrell Professionalism Award and the Maestro Award for Leadership from Ferraez Publications Latino Leaders Magazine. While proud of his work throughout his long, prominent career, Tino is most proud of his family—his three children and his many grandchildren. And while retirement may be attractive to some, Tino plans to stay where he is as long as he can—why stop when you enjoy what you do? Members of the DBA and community are invited to attend the 2018 Martin Luther King, Jr. Justice Award Luncheon on Monday, January 15, noon at Belo. For reservations, contact Biri Avina at bavina@dallasbar.org. A plated lunch will be served at a cost of $14.96. HN Jessica D. Smith serves as the DBA’s Communications/Media Director. She can be reached at jsmith@dallasbar.org.
2018 INAUGURAL OF Michael K. Hurst A T T HE O MNI D ALLAS H OTEL
Saturday, January 20, 2018 The Dallas Bar Association will inaugurate its 109th President, Michael K. Hurst at the inaugural ball on Saturday, January 20. The black-tie ball will include dinner, live music by Live 80, and a silent auction. Cocktails 6:30 p.m. | Dinner 7:30 p.m. Tickets $175; Tables $1,750 | Judiciary $125 To reserve your ticket, contact Shawna Bush at (214) 220-7453 or sbush@dallasbar.org. Visit www.dallasbar.org for more information! Belo Mansion_Headnotes Ad.indd 1
8/11/2017 3:57:49 PM
Jan u a ry 2 0 1 8
D al l as Bar A ssoci ati on l Headnotes 9
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10 H e a d n o t e s l D a l l a s B a r A s s ociation
January 2018
DBA Offers New Member Benefit—Online CLE STAFF REPORT
Beginning January 2, 2018 the DBA will begin offering Online CLE courses as your newest DBA Member Benefit. The course offerings can be found online at onlinecle.dallasbar.org. The link will be active starting January 2. While the majority of our Section and Committee CLEs will still be offered onsite at Belo, the DBA understands the necessity of offering its members some courses available online. Right now you will find more than 20 courses in a variety of areas of law, and we will add to the Catalog throughout the year. This is a great opportunity for members who are located in the surrounding counties of Dallas who may not be able to make it downtown to the Belo for a CLE. As a member benefit, DBA members will receive 6 courses a year for free. Every two months a coupon code will be shared via the DBA Online enewsletter. The code is good for one free CLE in our “Free Member Benefit” category. A new
code will be distributed in DBA Online every two months. In addition to these free offerings, DBA members will be able to purchase
online CLEs for $20 (for normal onehour or less CLEs), whereas the nonmember rate will be $75. These costs will help support the infrastructure of
the program and to make this opportunity possible for the DBA and for you— our members. Want to sign up for an online CLE for your whole department or firm? It is easy for office admins to add multiple participants to an online CLE order. Section and Committee Chairs are encouraged to schedule their CLEs to be recorded. If you are interested, contact DBA Communications/Media Director Jessica Smith at jsmith@dallasbar.org for all details related to cost, procedure, and guidelines. This is a great opportunity to raise the profile of your Section or Committee and your speakers online—both locally and nationally. We will include a link to each Section or Committee’s webpage within the video description as additional promotion. Whether you need that last hour of ethics before your birthday deadline approaches or you find a topic that fits exactly what you were looking for…the DBA Online CLE Catalog can help. HN
Michael Hurst to be Inaugurated as DBA’s 109th President CONTINUED FROM PAGE 1
sionally, he likes helping people try to solve their problems. I am proud to call Michael a friend and someone I trust, respect and admire.” Michael has served in numerous roles with the DBA, including chairing the Morris Harrell Professionalism Committee, and starting the Day of Civility in Dallas in 2016. During Michael’s tenure as DBA President, not only will Dallas observe the Day of Civility, but the State
Bar of Texas will also implement the program so that lawyers and judges in Texas will observe a Statewide Day of Civility. Michael has additionally received outstanding mentor awards from both TYLA and DAYL, where he also served as President. The recommendations for his receipt of this award from lawyers-tobe, young lawyers, experienced lawyers, and his legal staff resonated the same message: that Michael gives his all selflessly to the legal profession. “Michael has a track record of
Why Donate to the Equal Access to Justice Campaign benefiting DVAP?
TO GIVE
HOPE
TO ASSIST
NEEDS
mentoring young lawyers and giving them career-changing opportunities to expand their practice experience,” said Judge Tonya Parker, District Judge for the 116th Judicial District Court. “He has led on almost every issue facing our bar, from equal access to justice to leveling the playing field for female attorneys. He is a credit to our local bar and entire profession.” Mentoring, especially of trial lawyers, is of extreme importance to Michael. It is no surprise that one of his programs this year, the “Second Chair Program,” will focus on providing young civil trial lawyers with trial experience alongside seasoned criminal lawyers. Michael’s clients know they are retaining not only a zealous advocate, but also a committed leader in the bar and greater community. One of his clients, David Hernandez, Executive Vice President and General Counsel of Hunt Consolidated, Inc., said, “I have worked
JUSTICE
The DBA Lawyer Referral Service Can Help.
☑ Help provide legal aid to the poor. recognition in Headnotes, D Magazine, The ☑ Receive Dallas Morning News Giving Guide, The Dallas Morning
Log on to www.dallasbar.org/dallas-lawyer-referral-service or call (214) 220-7499.
News, and Texas Lawyer.
COMMUNITY VOLUNTEER OPPORTUNITIES FOR LAWYERS
recognition in the DBA’s weekly e-newsletter and ☑ Receive on the DBA website and social media pages.
☑ the subject of a feature Headnotes article on you, your ☑ Be firm, or organization. ☑ Receive complimentary tickets to the DBA Inaugural Ball. ☑ Plus many more perks! Donate now to take advantage of these great benefits!
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Shonn Brown is a partner at Lynn Pinker Cox & Hurst, LLP and can be reached at sbrown@lynnllp.com. Josh Sandler is an associate at the firm and can be reached at jsandler@lynnllp.com.
NEED TO REFER A CASE?
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Be highlighted in press releases.
with Michael for years and know firsthand how deeply he cares about his clients, his partners, fellow members of the Bar, and the Dallas community as a whole. We at Hunt are thrilled that he has been selected to lead the DBA and plan to support him in his initiatives to enhance the support services that the DBA is able to provide in our community.” “Michael’s vision and tenacity for fulfilling it will make our bar better for everyone,” said Judge Parker. “We are truly blessed to have his devotion and leadership,” added Mr. Lynn. In the words of Mr. Hernandez, Michael K. Hurst, the 109th President of the Dallas Bar Association, “will make all of us and our community a better place.” HN
Volunteer to coach a High School Mock Trial team, contact mgarcia@dallasbar.org.
Tutor a Child Confined to the Henry Wade Juvenile Justice Center, contact kzack@dallasbar.org. Volunteer to help at a Dallas Volunteer Attorney Program free legal clinic, contact reed-brownc@lanwt.org. Mentor a Child Impacted by Incarceration, log on to www.dallasbar.org/amachi-texas. Speak to a Community or Civic Group on a Law-Related Topic, contact mgarcia@dallasbar.org.
Participate in mentor2.0, log on to www.dallasbar.org/mentor2.0.
Jan u a ry 2 0 1 8 â€
D al l as Bar A ssoci ati on l Headnotes 11
12 He a d n o t e s l D a l l a s B a r A s s ociation
Column
January 2018
Ethics
Ethical Considerations for the Lawyer Acting as a Real Estate Broker BY KELLY B. GIBBONS
Lawyers who practice real estate law can potentially wear many “hats.” The most common hat is to represent the buyer or seller in the transaction. A less common hat that lawyers sometimes wear is to serve as a broker in a real estate transaction. While the Texas Occupations Code authorizes lawyers to act as brokers in real estate transactions, ethical pitfalls can arise. There is no attorneyclient relationship “where a person hires an attorney in a non-legal capacity.” In re Bivins, 162 S.W.3d 415, 419 (Tex. App.— Waco 2005) (orig. proceeding). Thus, if a lawyer is only acting as a broker in a real estate transaction, his or her communications with their client may not be privileged or confidential, and depending on the specific circumstances, the lawyer
could easily violate the Texas Disciplinary Rules of Professional Conduct (TDRPC). Chapter 1101 of the Texas Occupations Code, known as the Real Estate License Act (RELA), defines a “broker” as a person, who for another person and in exchange for a commission or other valuable consideration, sells or purchases real estate, negotiates the listing, purchase, or sale of real estate, aids in locating real estate for purchase, or undertakes any of the other actions enumerated in the statute. Section 1101.005 of RELA provides that a lawyer licensed in Texas does not need a separate license to act as a real estate broker and can perform (with a few enumerated exceptions) all work that a broker is authorized to do. Ethical problems can arise when real estate transactions end up in litigation and a party questions whether the other
Need Referrals? Take out an Area of Practice and/or Foreign Language Proficiency listing in the 2018 DBA Member Directory to get great exposure for your practice. For just $25 per listing you will be included in both the printed and online DBA Member directory. Listing Cost: $25.00 For more information and an order form contact Judi Smalling at jsmalling@dallasbar.org or (214) 220-7452.
New For 2017 Maslanka’s TEXAS FIELD GUIDE TO EMPLOYMENT LAW, FLSA, FMLA, ADA, TEXAS LABOR CODE A must-have book for any HR professional, manager or enterpreneur and the attorneys representing them. Maslanka Walks Through • Which business must comply with each law. • Where to find the text of each law. • Which federal agency enforces each law. • What each law allows and prohibits. • Practical tips to remain within the scope of the law. • Resources for further research and information. To order, call 1.800.756.8993 or visit www.TexasLawyerBooks.com.
ABOUT THE AUTHOR Michael P. Maslanka has over three decades of experience. He litigates and tries employment law cases across Texas. He shares his knowledge through his Work Matters blog, the Maslanka Field Guide series on employment law, and his monthly “Work Matters” column for In-House Texas. He uses his practical knowledge to help clients simplify their issues, and to be a cost-effective partner to them. Chambers USA states that he is a “strong, insightful thinker” who takes a “holistic approach” to resolving his clients challenges. A Chambers USA source states that he is the “best teacher of labor and employment law . . . and just great before a jury.” Mike has served as Adjunct Counsel to a Fortune 10 company where he provided multi-state counseling on employment matters. He also served as a Field Attorney for the National Labor Relations Board. He is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. He is a Master of the Inns of Court. He also writes as the “Literate Lawyer,” a column on how literature makes us better lawyers and better people.
party’s attorney was acting as a broker or as an attorney in the transaction. In In re Rescue Concepts, Inc., --- S.W.3d --- (Tex. App.—Houston [1st Dist.] 2017) (orig. proceeding), the real estate transaction at issue failed to close, and the buyer sought discovery of communications between the seller and its attorney, who also served as the seller’s broker. The seller asserted that the communications were protected from disclosure pursuant to the attorneyclient privilege, and the buyer argued that the communications were not privileged because the seller’s attorney was only acting as a broker in the transaction. In finding that an attorney-client relationship existed between the seller and its attorney, the court (1) scrutinized the engagement agreement and found that the seller and the attorney intended to form an attorney-client relationship and (2) considered the services that the attorney rendered, which a broker could not have, such as negotiating and drafting special contract provisions and discussing litigation strategy. The Court then held that the communications were intended to be kept confidential between the seller and its attorney and were made for the purpose of providing legal services, and the Court conditionally granted the writ of mandamus. Thus, under the specific facts of Rescue Concepts, the lawyer was able to point to enough evidence to show that she was acting as a lawyer in the transaction and, consequently, her communications with her client were protected by the attorneyclient privilege. It is not difficult to see how the outcome may have been differ-
ent if her engagement agreement had not been as specific as it was or if she had not undertaken the additional work that a broker was not authorized to do under RELA. Rule 1.05 of the TDRPC defines “confidential information” to include both “privileged information” and “unprivileged client information.” Thus, based on Rescue Concepts, if the client intends to engage the lawyer as both a broker and as a lawyer, to comply with the lawyer’s obligations under Rule 1.05 of the TDRPC to protect the client’s confidential information, the lawyer should ensure that the scope of his or her engagement agreement is broad enough to include the rendition of legal services in connection with the specified real estate transaction. Additionally, the lawyer should explain to the client, and set out in the engagement agreement, the additional work that the lawyer will undertake that is beyond what a broker is authorized to do under RELA. Conversely, and extrapolating from Rescue Concepts, if the client wishes to retain the lawyer in the capacity as a broker only, the lawyer should consider clearly setting forth in his or her engagement agreement the disadvantages to that employment, such as the potential disclosure of the client’s confidential information. Additionally, the lawyer should consider advising the client to consult with other counsel should the client have any questions about the agreement to engage the lawyer as a broker only. HN Kelly B. Gibbons is an associate attorney with Campbell & Associates Law Firm, P.C. She can be reached at kgibbons@cllegal.com.
Jan u a ry 2 0 1 8
D al l as Bar A ssoci ati on l Headnotes 13
THANK YOU
DALLAS LEGAL COMMUNITY
FOR GIVING BACK
YOU GAVE HOPE
YOU ASSISTED NEEDS
YOU SOUGHT JUSTICE
Dear Citizens of Dallas:
The Equal Access to Justice Campaign is an annual fundraising drive benefiting the Dallas Volunteer Attorney Program. The Dallas Volunteer Attorney Program, or DVAP, is a free, civil legal aid program of the Dallas Bar Association and Legal Aid of NorthWest Texas. Through DVAP, over 3,000 volunteers donate their time and legal skills to help low-income people in Dallas resolve their legal problems. Those who have bravely served our country, innocent children, the elderly, and the disabled are some of the many people DVAP helps every day. The support of our donors is more important now than ever. Over 600,000 people in Dallas County already qualify for DVAP’s help, while the number of people living in poverty continues to grow. Please join us in thanking our generous donors for their support of access to justice for all.
Michael K. Hurst DBA President
Laura Benitez Geisler DBA President-Elect
PRESIDENT’S COUNCIL ($30,500) Jones Day Crain Lewis Brogdon, LLP Hartline Dacus Barger Dreyer LLP Mike Myers CHAIRMAN’S COUNCIL ($25,500) Anonymous Foundation GOLD PATRON ($20,000) Margaret & Jaime Spellings DIAMOND ($15,500) Jerry & Sherri Alexander AT&T Dallas Association of Young Lawyers GOLD ($5,500) Charla Aldous Andrews Kurth Kenyon LLP Anonymous Baker Botts, LLP Balch & Bingham LLP Barnes & Thornburg LLP Baron & Budd, P.C. Jonathan R. Childers Condon Tobin Sladek Thornton PLLC Drinker Biddle Dykema Cox Smith Eberstein & Witherite, LLP Enoch Kever PLLC Gary & Donna Fowler Laura Benitez Geisler Gibson, Dunn & Crutcher LLP Gruber Hail Johansen Shank LLP Latham & Watkins LLP The Mike and Barbara Lynn Philanthropic Fund McKool Smith Jeff & Annette Patterson Probate, Trusts & Estates Section Real Property Section Shackelford, Bowen, McKinley & Norton, LLP Lewis R. Sifford Simon Greenstone Panatier Bartlett, PC Simpson Thacher & Bartlett LLP The Nancy and John Solana Advised Fund of the Dallas Foundation Squire Patton Boggs (US) LLP Robert L. Tobey Waters, Kraus & Paul, LLP Winstead PC SILVER ($2,750) Baker McKenzie LLP Barry Barnett/Susman Godfrey LLP Roger Bivans & Sarah Donch Bracewell Nina Cortell
Jonathan Childers Campaign Co-Chair
PLATINUM ($10,500) Akin Gump Strauss Hauer & Feld LLP Business Litigation Section Corporate Counsel Section Deans & Lyons LLP Exxon Mobil Corporation The Hartnett Law Firm Haynes and Boone Foundation Jackson Walker LLP Kastl Law, PC Locke Lord LLP Mike McKool Sidley Austin LLP Thompson & Knight Foundation Vinson & Elkins LLP Vistra Energy/TXU Energy SILVER ($2,750) Dallas Hispanic Bar Association Energy Law Section Honorable King Fifer Fish & Richardson, P.C. Frost Bank and Frost Insurance Agency Honorable Mark Greenberg Robert A. Gwinn and Marianne S. Gwinn Family Foundation Estate of Vester T. Hughes, Jr. Mark L. Johansen Honorable Ron Kirk Thomas S. Leatherbury & Patricia J. Villareal Mergers & Acquisitions Section Dan Micciche Polsinelli PC The Ranger Trust Reese Gordon Marketos LLP Sayles Werbner Allen M. Stewart Strasburger & Price, LLP Tax Section Trial Skills Section Robb L. Voyles Zelle LLP BRONZE ($1,500) Deborah Ackerman Kim Askew Michael M. Boone Samuel L. Boyd Honorable Mary Brown Carrington, Coleman, Sloman & Blumenthal, L.L.P. William Cobb Jr. Robert Cohan Diane Couchman Cowles & Thompson Criminal Law Section Tim Durst John Eichman
Sakina Rasheed Foster Campaign Co-Chair
Cheryl Camin Murray Campaign Co-Chair
BRONZE ($1,500) Employee Benefits/Executive Compensation Section Estes Thorne & Carr PLLC Jesse Ferrer Sakina Rasheed Foster Royal Furgeson & Marcellene Malouf Paul R. Genender Gray Reed & McGraw PC David & Lori Haley J. Mark Hollingsworth Michael K. Hurst Michael L. Jones Larry & Joan Kelly Michael Krywucki Labor & Employment Section Lackey Hershman LLP Jeffrey S. Levinger Littler Mendelson, P.C. John H. Martin Bill & Sondi Mateja P. Mike McCullough, Jr. Joey Messina E. Lee Morris Honorable Mary Murphy Cheryl Camin Murray Diana C. Robinson Brent M. Rosenthal John Salazar Solo & Small Firm Section Pamela St. John Joe A. Stalcup Courtney & Ashlie Stamper Ross Stoddard III Tort & Insurance Practice Section SPONSORS ($1,000) Jim S. Adler & Associates ADR Section Appellate Law Section Bankruptcy & Commercial Law Section Mark W. Bayer Bell Nunnally & Martin LLP Bloom Strategic Consulting Talmage Boston Monica Lira Bravo Shonn & Clarence Brown Joseph F. Bruegger W. Ralph Canada, Jr. Chrysta Castaneda Deb & Scott Coldwell Gayla Campbell Crain Sally Crawford Dallas Women Lawyers Association Mark Dyslin & Cheryl Engelmann Al Ellis Haseena Enu & Randy Hulme Rocio Cristina Garcia Espinoza & Alex Espinoza Nancy & Gary Edd Fish Family Law Section
Sandra Phillips Rogers Honorary Co-Chair
SPONSORS ($1,000) Kevin & Sharla Fuller Hilda C. Galvan Glast, Phillips & Murray, P.C. Don M. Glendenning Beverly & Honorable David Godbey GoransonBain Beverly Goulet Guida, Slavich & Flores, P.C. Hallett & Perrin, P.C. Sally Hartman Hawkins, Parnell, Thackston & Young LLP Health Law Section Elise Healy Kate Hopkins Intellectual Property Law Section Kathleen E. Irvin Honorable Faith Johnson Johnston Tobey Baruch, P.C. Darrell E. Jordan Ambassador Robert W. Jordan Kathleen Kearney Daniel Kelly Kelly, Hart & Hallman, L.L.P. David Kent Kessler Collins PC Kilgore & Kilgore, PLLC Jill A. Kotvis Neel & Lynn Lemon Robert E. Luxen Elizabeth E. Mack Roger L. Mandel Jacob Marshall Richard A. Massman Charles W. Matthews, Jr. Retta Miller Honorable Kenneth H. Molberg Audrey Moorehead Kathryne Morris Maureen Murry Erle Nye Emmanuel Obi Parvin Law Group, P.C. Tino A. Ramirez W. Ashton Randall Honorable Brenda Rhoades Robert Ruckman Will Russ Daniel Sheehan & Associates PLLC Paul K. Stafford Frank E. Stevenson II Richard G. & Sandra J. Stewart Robert J. Stokes, Sr. Dena D. Stroh Mike & Karen Tankersley Phillip C. Umphres Deborah Verbil Victor & DeNette Vital Scott C. Wallace Catherine Dessa Watson-Ferris Joel & Terilyn Winful Donors as of December 12, 2017
14 H e a d n o t e s l D a l l a s B a r A s s o ciation
January 2018
Taking the Lead in 2018: Meet Your Sister Bar Presidents BY KEITH PILLERS
The Dallas Bar Association is proud to introduce the new presidents of its sister bar associations and looks forward to supporting these leaders as they seek to advance the goals of their organizations and promote the interests of their members in 2018. Isaac Faz will serve as President of the Dallas Hispanic Bar Association (DHBA). Prior to being elected as president, Mr. Faz served as presidentelect and vice president of the DHBA. He is chief legislative counsel for the Dallas County Community College District (DCCCD). In addition, he is a graduate of the Dallas Regional Chamber’s Leadership Dallas Class of 2017. In 2014, Mr. Faz simultaneously served as a State Bar of Texas Leadership Fellow and a Leadership ISD Fellow. He joined DCCCD in June 2015 and serves as an advocate for the district and its students at the Texas Capitol and in Washington, D.C. Before he joined DCCCD, Mr. Faz worked as an attorney in Dallas and was a Presidential appointee in the White House Office of the United States Trade Representative. He serves on the board of The Concilio and the Workers Defense Project. He is an alumnus of DCCCD, earned his bachelor’s degree in communication from the University of Texas at Austin and his juris doctor from the Thurgood Marshall School of Law. Ashlei Gradney will serve as Presi-
Isaac Faz
Ashlei Gradney
dent of the J.L. Turner Legal Association (JLTLA). Prior to being elected as president-elect, she served two terms as secretary of JLTLA. She is a Fellow of both the Dallas Bar Foundation and Dallas Association of Young Lawyers. Ms. Gradney is an active member of the Dallas Women Lawyer’s Association, Dallas Trial Lawyers Association, and Texas Bar College. She is a trial attorney at Kastl Law, P.C. Ms. Gradney earned both a Bachelor of Science degree and Masters in Business Administration from Lamar University and her law degree at Southern University Law Center. She served as a student law clerk to the Honorable Wilson Fields of the 19th Judicial District Court in Baton Rouge, Louisiana from 2011-2012. Her current practice focuses on complex civil litigation and family law. Shruti Krishnan will serve as President of the Dallas Asian American Bar Association (DAABA) as the organization marks its 30th anniversary. Ms. Krishnan is Associate Legal Counsel
Thank You Donors!
Stephanie Osteen
Shruti Krishnan
at Tabletop Media, LLC d/b/a Ziosk, which owns and manufactures a proprietary suite of tablet devices for use in casual dining restaurants. Her practice includes corporate, intellectual property, data security and privacy, and marketing and advertising law. Ms. Krishnan graduated from Rensselaer Polytechnic Institute with a B.S. in Bioinformatics and Molecular Biology, and from UT Southwestern Graduate School of Biomedical Sciences with a M.S. in Biophysics. She received her law degree from the SMU Dedman School of Law. Ms. Krishnan has been involved with DAABA for numerous years, serving on various committees, as Chair of Awards Night in 2013, as a member of the Board of Directors, Treasurer, and most recently as President-Elect. In addition, Ms. Krishnan has been involved in DAYL since being a member of the 2014 Leadership Class, and has served on the Social Committee, and was selected as DAYL’s “One to Watch.” Statewide, Ms. Krishnan has served as Chair of the SBOT Intellectual Property Section Diversity Committee for the past three years and was a member of the 2016 LeadershipSBOT class. Stephanie Osteen will serve as President of the Dallas Women Lawyers Association (DWLA). Prior to being elected as president, Ms. Osteen served as president-elect for DWLA. She is a member of the State Bar of Texas Pro Bono College and member of the Young Men’s Service League in Cop-
Jennifer Ryback
pell. Ms. Osteen is a Senior Attorney with Hunton & Williams. Her practice is focused on labor and employment litigation. She is Board Certified in Labor & Employment Law. Ms. Osteen earned her BA at the University of Texas at Arlington and her law degree at SMU Dedman School of Law. Jennifer Ryback will serve as President of the Dallas Association of Young Lawyers (DAYL). Prior to being elected as President, Ms. Ryback served as President-Elect, Vice President, and Treasurer. In addition, she served on DAYL’s Finance Committee, Judiciary Committee, CLE Committee, and Membership Committee. Ms. Ryback is an attorney with McGuire, Craddock & Strother, P.C., where she practices business litigation, with a focus on construction, real estate, and employment litigation. She graduated with honors from the University of Texas with a Bachelor of Arts in Government and a minor in English. Ms. Ryback earned her law degree from SMU Dedman School of Law in 2010. While in law school, she served as the President of the Student Bar Association and as the Case Note and Comment Editor for the Science and Technology Law Review. Jennifer has been named to the Texas Rising Stars list by Thomson Reuters, as published in Texas Monthly, in 2013, 2014, 2015, and 2016. HN Keith Pillers is a Vice President at the Private Bank at Bank of Texas and a former Co-Chair of the DBA Publications Committee. He can be contacted at kpillers@bankoftexas.com.
January Friday Clinics Thank you to all of our Equal Access to Justice Campaign sponsors who attended the Bachendorf’s Reception. And thank you to Bachendorf’s for their continued support of the EAJ Campaign.
Friday, January 12, Noon at Two Lincoln Centre
(5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240) “Ethics in Protecting Clients from Cyber Intrusions,” Peter Vogel | Ethics 1.00 Sponsored by the CLE & Peer Assistance Committees. Thank you to our sponsor Fox Rothschild LLP.
Cyber coverage now included with our malpractice policy.
Friday, January 19, Noon at Belo “Why Judgments Get Reversed,” Jason Steed | MCLE 1.00 RSVP to yhinojos@dallasbar.org.
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Jan u a ry 2 0 1 8
Focus
D al l as Bar A ssoci ati on l Headnotes 15
Real Property/Construction Law
What? You are Foreclosing? A Mechanic’s Lien Nightmare! BY TRACEY L. WILLIAMS
You just built and moved into your dream home and you receive a letter demanding payment for labor and/or material used in your home’s construction and enclosing a copy of a Mechanic’s and Materialman’s Lien Affidavit filed against your property. The letter threatens foreclosure of the lien if the debt is not paid. You are taken aback because you paid all of your bills. What do you do? Threat of foreclosure is scary. First, know that a mechanic’s lien may not be foreclosed without a court order authorizing foreclosure. A lien claimant is not entitled to foreclosure unless and until they prove their lien is valid and enforceable. Moreover, because of the statutory and constitutional protections relating to homesteads, the procedure for perfecting a lien against a homestead is stringent. The requirements for perfecting mechanic’s liens in Texas are quite cumbersome and often trip up less sophisticated laborers even when not related to residential homesteads. In order to enforce a mechanic’s and materialman’s lien against a homestead, the work must be the subject of a written agreement signed by the homeowner, both husband and wife if married, and the agreement must be signed before work is done. Additionally, the agreement must be filed with the county clerk in the county where the property is located. If the homeowner entered into an agreement with a builder that complies with these requirements, then any of the builder’s subcontractors may rely on the builder’s agreement. They must, however, still comply with the other pre-requisites to perfecting their lien,
such as timely filing the lien affidavit with the county clerk and timely sending any statutory notices concerning the claim. Residential lien deadlines are mostly shorter than commercial lien deadlines. If the claimant contracted directly with the homeowner, the claimant may be entitled to a constitutional lien. The Texas Constitution protects homesteads from forced sale. Consequently, no constitutional lien arises in connection with new construction on a homestead if the work was not contracted for in writing. Additional requirements apply to renovations or repairs, but are not discussed herein. So, you are convinced the lien is improper—what are your options? Sometimes the quickest way to get a lien removed is to reason with the lien claimant (or threaten to file a fraudulent lien action). Assuming cooler heads do not prevail, the lien could be discharged by the filing of a bond to indemnify. Under Texas law, a purchaser, title insurer, or lender may rely on the record of the bond and notice to the same extent as a recorded lien release. Alternatively, suit may be filed to remove cloud on title, for a determination that the lien is invalid or unenforceable and, if applicable, for damages incurred as a result of fraudulent lien filing. If suit is filed, the fastest way to remove an invalid and unenforceable lien is through the summary lien removal procedure found in the mechanic’s lien statute. The summary procedure is available with respect to homesteads if no contract was executed or filed as required, or if the required statutory warnings are not included in the lien affidavit or notice of claim. At least 21 days’ notice of the hearing on the motion to
remove the lien must be given. If the Court determines the motion should be granted, then the court must enter an order removing the lien, which is not subject to interlocutory appeal. The order to remove the lien must set the amount of security required by the lien claimant to stay removal of the lien and may not exceed the amount of the lien claim. The lien claimant has 30 days from the date of the order to file a bond or other security to stay the lien. If they fail to do so, the owner may file a copy of the order of removal with the county clerk,
together with a certificate from the court clerk stating that no bond was filed and no order staying the order to remove the lien was entered. Once filed, the claim or lien is removed and extinguished as to a creditor or subsequent purchaser for value who obtains an interest in the property. The removal of the lien does not, however, constitute a release of liability of the owner to the claimant, if any exists. However, the threat of foreclosure is gone. HN Tracey L. Williams is an Associate at Peckar & Abramson, P.C. She can be reached at twilliams@pecklaw.com.
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Hon. David Folsom
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About FedArb FedArb has the largest roster of former US federal district court judges in the world. It also has a roster of distinguished professors, lawyers and experts who, along with the retired judges, are responsible for resolving complex civil litigation across the globe. FedArb works actively with Fortune 500 and NASDAQ 100 companies to facilitate the resolution of disputes through arbitration and mediation, and also offers moot court exercises and leadership for corporate investigations. Its panelists have expertise in 27 different areas, including Securities Litigation, IP, Financial Services, Insurance, Construction, Employment, Entertainment, and Life Sciences/Pharmaceuticals. To schedule any of these judges please contact FedArb at 650-328-9500 or www.FedArb.com.
16 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
January 2018
Real Property/Construction Law
A Texas Two-Step on Common Title Endorsements BY KEVIN HAYS
The purpose of this article is to provide the general practitioner with an introductory working knowledge of the most commonly used title insurance endorsements, and the reasons why these endorsements are necessary. Exclusions can be found in the policy jacket of any title policy, explaining which items will not be insured in the policy, including (a) physical condition of the land; (b) building and zoning ordinances, (c) condemnation, (d) title issues caused by fraud or items not disclosed by the Insured, and (e) title issues resulting in no actual loss. Exceptions will be found in Schedule B of the policy, and include items not to be covered in the policy, unless specifically covered by an Endorsement. The standard exceptions are (a) covenants, deed restrictions and survey exceptions, (b) riparian rights, (c) tax exception, including rollback taxes, (d) mechanic’s liens, (e) exceptions for leases and subordinate liens, (f) rights of parties in possession, (g) easements and encroachments (if no survey), and (h) mineral rights. It is important to understand that an insured may not add an endorsement to a policy granting coverage for an item unless it has already been “excepted” in Schedule B. Endorsements are attached to the title policy when it is the insurer’s intention to alter or modify the provisions of a policy so that the insured receives greater coverage than existed under the non-endorsed policy. Some endorsements include a nominal fee, others require a fee that is a percentage of the basic rate premium for the policy, and some are free of charge. Each title endorsement is signified by the letter “T” (for Texas
endorsement) and the number which corresponds to the specific endorsement. One of the most commonly used endorsements is the T-19 Endorsement. This is referred to as the “REM” endorsement (Restrictions, Encroachments and Minerals) and may be used for residential or non-residential property. It insures the lender (T-19) or the property owner (T-19.1) against loss by reason of present or future violations of any covenants, conditions and restrictions. The charge for a T-19 Endorsement is 5 percent of the basic rate for residential policies and 10 percent for non-residential properties. If a practitioner is working with out-of-state attorneys, the ALTA (American Land Title Association) counterpart is the ALTA 9.1. There are variations of the T-19 that may be used in certain circumstances (T-19.2, T-19.3), but the discussion of these is beyond the scope of this article. The T-27 (Assignment of Rents and Leases) Endorsement is found on the Lender’s policy and is only available on non-residential property. It covers defects in the execution of the Assignment document, as well as prior assignments of record that are not specifically excepted in Schedule B. There is no charge for the T-27 endorsement, so commercial real estate practitioners representing lenders should be requesting this endorsement on every transaction. The ALTA counterpart to the T-27 is ALTA 37. The T-36 (Environmental Lien) Endorsement is issued with a Loan Policy, and it insures the validity of the mortgage lien, and that there is no loss of priority due to certain recorded environmental liens. The premium for this endorsement is $25.00, and practitioners will see this endorsement on virtually every residential
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transaction closed in Texas, as well as transactions involving apartment complexes. The ALTA counterpart is ALTA 8.1. The T-23 Access Endorsement is available on both owner and loan policies, and it adds coverage with regard to actual physical access to a street, road or highway, as opposed to a mere right of access found in the policy boilerplate. There is a $100 flat rate premium for the T-23, and the ALTA counterpart is ALTA 17. The T-3 Survey Deletion Endorsement allows the title company to insure the boundaries of an insured’s property, and any loss to the owner due to boundary conflicts or any loss due to encroaching improvements which are not shown on the survey. It does not insure against matters, conflicts, encroachments, etc.
that are found on the survey, and may only be provided if the title company reviews and approves the survey. It protects the buyer and lender against errors made by the surveyor or claims by neighboring owners involving boundaries or encroachments. The cost for this endorsement is generally 5 percent of the base premium and will shorten the Schedule B-2 exception to read “shortages in area.” For a more comprehensive look at title endorsements or an itemized listing of all endorsements with costs and Rate Rule references, one should contact his or her favorite title company or a local title attorney. HN Kevin Hays is a partner in the law firm of Hays & Muncey, PLLC. He may be reached at kevin@haysmuncey.com.
YOU ARE INVITED! M Ùã®Ä Lçã« Ù K®Ä¦ JÙ. LçÄ « ÊÄ Monday, January 15, Noon at the Belo MLK JusƟce Award to be presented to
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$14.95 per person. RSVPs required. Contact BAvina@dallasbar.org
Jan u a ry 2 0 1 8
Focus
D al l as Bar A ssoci ati on l Headnotes 17
Real Property/Construction Law
Natural Disasters and Real Estate and Construction Contracts BY JOHN PAUL NEYLAND
In the wake of Hurricane Harvey, many clients will have questions about its impact on their business. When a natural disaster occurs, time is of the essence when it comes to protecting your client’s rights. Clients in the construction and real estate industries, in particular, may have concerns regarding allocation of risk, monetary exposure, delays in performance, and destruction of a project or property. Although this article is not all-encompassing, below are certain key provisions in many real estate and construction agreements that are impacted by a natural disaster.
Force Majeure
When analyzing the legal impact of a natural disaster, often the first thing that comes to mind is the force majeure provision, which applies when a party’s performance is impacted by an event beyond its control, such as a hurricane. Most real estate and construction contracts contain some form of force majeure clause. While the force majeure provision is often thought of as boilerplate language, the specific wording of the clause is vitally important. The specific language controls whether the provision acts to completely excuse a party’s performance under the contract or merely allows for a delay in a party’s performance. Therefore, it is necessary to analyze the express language of the force majeure provision to determine its impact on the parties’ obligations. Additionally, many force majeure provisions have a notice requirement as a condition precedent to
invoking the protections of the provision. Therefore, it is essential to review the applicable real estate or construction agreement as soon as possible following a natural disaster to ensure your client complies with any such notice requirement, since the failure to do so may prohibit reliance on the provision.
Casualty
Casualty provisions are commonly found in real estate contracts, including real estate sales contracts and commercial leases. The casualty provision specifies the parties’ rights in the event a portion or all of the property subject to the agreement is destroyed or damaged by a casualty, such as a hurricane. Typically, in a real estate sales contract, the only remedy provided by the casualty provision is the right to terminate the contract, not the right to extend deadlines. In a commercial lease, the casualty provision often controls whether either party has a termination right. If the lease is not terminated, the provision may address the parties’ obligations to repair the premises, the tenant’s rights to rent abatement, if any, and any notices required to exercise rights under the provision. In situations where the lease is not terminated and the premises will be rebuilt, the casualty provision will often specify timing requirements for the premises to be rebuilt and whether the obligation to rebuild is limited to the amount of insurance proceeds received by the rebuilding party.
ents is the monetary impact of a natural disaster. Construction contracts and commercial leases typically allocate risk and provide financial protection or relief through insurance requirements. Commonly, a construction contract will require the owner or contractor to obtain a builders’ risk policy covering the project. A builders’ risk policy covers damage or destruction of a construction project occurring prior to completion of the project. Therefore, an inquiry should be made to determine if your client was obligated to procure such a policy. If so, be sure to timely and properly put the carrier on notice of the claim or potential claim. Commercial leases also typically contain insurance provisions which may apply in these situations. The lease commonly allocates risk of loss between the landlord and tenant by requiring the landlord to maintain insurance on the buildings and common areas and requiring the tenant to maintain insurance on its personal
property, improvements, equipment, and fixtures. As you would anticipate, there are numerous contractual provisions which may be relevant after a natural disaster. In addition to the matters addressed above, an agreement may also contain provisions concerning repair obligations or delays in performance. Therefore, analyzing the express provisions of the contract is essential. After a natural disaster such as a hurricane, clients in the real estate and construction industries are forced to deal with a variety of potentially overwhelming issues on both a personal and professional level. By knowing the key issues, you can provide guidance to your client after such an event, help them understand their rights and obligations, and make sure they comply with requirements contained in the applicable agreements. HN John Paul Neyland is an associate at Griffith Davison & Shurtleff, P.C. He can be reached at jneyland@griffithdavison.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 s s o ciation
Focus
January 2018
Real Property/Construction Law
Nonwavier Clauses Trump Landlord Conduct in Accepting Payments BY MARTIN CAMP
When does the Texas Supreme Court get involved in a commercial lease forcible-detainer eviction law suit? When the underlying facts allow it to set forth some bright line rules about how Texas courts should interpret an important concept—the enforceability and interpretation of nonwaiver clauses. Lovers of fern bars and Karaoke will soon have to find a new venue as it looks like the old staple on Lower Greenville, The San Francisco Rose bar will soon be closed as a result of the ruling in Shields Limited Partnership v. Boo Nathanial Bradberry and 40/40 Enterprises, Cause No. 15-0803, May 12, 2017. A subtenant/assignee
(Tenant) was occupying restaurant/ bar space under a lease which granted a series of renewal rights at favorable rent rates, tied to CPI index increases and sharing of taxes. The Tenant had occupied the premises for several years and had invested significant sums in decorating and remodeling. The Tenant also had a history of slow and late payment of rent which the landlord accepted without protest and also without reservation of rights notifications. The Tenant’s right to exercise its renewal options was contingent upon it not being in default. The lease contained a clear nonwaiver clause which stated that the Landlord’s acceptance of late payments would not be a waiver nor estop the Landlord from enforcing the lease
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provisions in the future. The lease also provided that all waivers must be in writing and signed by the waiving party and forbearance of enforcement would not constitute a waiver. The tenant attempted to exercise a renewal by sending the required notice to the Landlord. At the time this notice was sent, the Tenant was not in default, but the Tenant continued to make late payments, which were accepted by the Landlord. On the date of the lease expiration, when the renewal term would have commenced, the Tenant was a month late. The Tenant continued thereafter to make rent payments at the old rent rate and to be late in rent from time to time. The Landlord accepted the payments. The Landlord subsequently informed the Tenant that the lease was month to month and offered a new lease as a much higher rent. Upon failure to pay the new rent, the Landlord terminated the lease and sought to evict the Tenant. The Tenant argued that the extension was validly exercised despite the nonwaiver clause language because they were not in default at the moment they exercised their extension and the conduct of the Landlord in accepting the late rent without protest constituted a waiver by course of dealing. The Tenant additionally argued that the doctrine of estoppel should apply to prevent the Landlord from terminating the lease, since the Landlord was aware of the expenditures of the tenant in remodeling, etc. The Landlord countered that the nonwaiver clause was valid and that the exercise of the extension was not effective because of the multiple
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Purchase raffle tickets online at https://www2.dallasbar.org/dbaweb/dvap/raffle.aspx or at the DBA offices at the Belo Mansion (2101 Ross Avenue, Dallas, TX 75201). Drawing will be held at the DBA Inaugural Ball on January 20, 2018 The winner need not be present to win. The winner is responsible for all taxes, title and licensing. Prize is non-transferable. No cash option is available.
Martin L. Camp is an Assistant Dean for Graduate and International Programs and Professor of Practice at SMU Dedman School of Law. He can be reached at mlcamp@mail.smu.edu.
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defaults. Instead, the lease had become a month to month tenancy, a position supported by the fact that the Tenant had continued to pay rent at the old rent rate after the lease expiration. The tenant won at the trial court and on appeal. The Supreme Court reversed. The Court framed the issue this way: “The decisive issue is whether waiver of a nonwaiver provision can be anchored in the same conduct the parties specifically agreed would not give rise to a waiver of contract rights. We hold it cannot. A contrary conclusion could not be squared with Texas’s strong public policy favoring freedom of contract or with the notion that waiver required intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.” The Court did not hold that nonwaiver provisions can never be waived. Rather, the Court said “there must, at a minimum, be some act inconsistent with its terms.” In addition, the Court said that the Tenant “had not identified any false or misleading representation supporting an equitable estoppel bar to eviction.” The take away for practitioners? Well drafted nonwaiver clauses are going to be enforced even when the Landlord accepts late rent payments without protest. Absent acts or representations by the Landlord that satisfy the elements of equitable estoppel, the Landlord will be able to continue to enforce a lease as written. HN
The Dallas Volunteer Attorney Program (DVAP) has recently hired Holly Griffin as Managing Attorney. Ms. Griffin will succeed Michelle Alden who assumed the role of Director of DVAP in the summer of 2017. Prior to joining the DVAP staff Ms. Griffin was a domestic violence prosecutor with the Collin County District Attorney’s Office where she also handled civil protective order intake and prosecution, criminal case prosecution, witness interviews, legal research, case negotiation and management, document drafting, collaboration with law enforcement, and Holly Griffin conducted trainings on domestic violence. She has also held attorney positions at various private practice firms where she focused on family law. She is a graduate of Baylor Law School. In addition to being a DBA member, Ms. Griffin is also active in the community, serving as an Advisory Board Member of
the Collin County Council of Family Violence, a Board Member of Emily’s Place; a North Texas Council of Governments Criminal Justice Grant Committee Member, and in the Leadership Plano Class 26. As Managing Attorney, Ms. Griffin will be responsible for grant compliance, publicity and special events, including DVAP’s Pro Bono Awards, and networking and speaking at CLEs and recruiting events. The Dallas Volunteer Attorney Program is a joint program of the Dallas Bar Association and Legal Aid of NorthWest Texas which was created to address the legal needs of the poor in Dallas. DVAP is an organization dedicated to increasing and enhancing pro bono legal services to the poor in Dallas through the recruitment, training, and support of volunteer attorneys. The program provides free legal assistance to over 4,000 low-income families with civil legal needs each year. To find out more about DVAP, log on to www. dallasvolunteerattorneyprogram.org. HN
Jan u a ry 2 0 1 8
Focus
D al l as Bar A ssoci ati on l Headnotes 19
Real Property/Construction Law
What You Need to Know About 2017 AIA Forms BY CRIS BAIRD
The American Institute of Architects (AIA) promulgates standard forms of construction contracts for use by an owner and contractor when entering into an agreement for commercial construction services. The AIA also promulgates standard forms of owner/architect agreements to be used when an owner and architect contract for commercial design services. These AIA forms are considered standard in the industry and are the most commonly used forms utilized between owners and contractors, and owners and architects, in the United States. The AIA modifies their standard forms every 10 years to reflect changes and trends in the industry, with the most recent forms being released in April 2017. This article highlights some of the most significant changes between the 2007 versions of the AIA owner/contractor and owner/architect agreements, and the updated 2017 forms. Some of the most notable changes in the owner/contractor forms include the following. To eliminate ambiguity with respect to the parties’ obligations to purchase insurance, the AIA has developed a new Exhibit A “Insurance and Bonds.” The new exhibit assumes the owner will purchase general liability insurance, and unless the parties elect otherwise, the owner is also required to purchase builder’s risk insurance sufficient to cover the total value of the entire project on a replacement cost basis, and for the cost of any deductibles and self-insured retentions. The exhibit also includes blanks for the contractor’s commercial general liability provisions, and requires that the agreed upon amounts of automo-
bile liability coverage, employer’s liability coverage, and other liability coverages be filled in. If the contractor is purchasing the property insurance, the parties can now simply check certain boxes, as opposed to drafting and including new language in the contract. There is also a “fill in the blank” provision for the contractor’s obligation to provide performance and payment bonds. A new provision has been added requiring the owner to deliver to the contractor evidence that the owner has made financial arrangements to fulfill the owner’s obligations. If the owner fails to do so and commencement of the work is delayed, the contract time is automatically extended. In addition, after commencement of the work, the owner is required to furnish evidence that the owner has made financial arrangements to fulfill the owner’s obligations if the owner (1) fails to make payments as required, (2) the contractor identifies in writing a reasonable concern regarding the owner’s ability to make payment when due, or (3) a change in the work materially changes the contract sum. If the owner fails to deliver such evidence, the contractor may stop the work and the contract sum is automatically increased by the costs of the contractor’s shutdown, delay, and start-up costs, plus interest. A new provision has been added requiring the contractor to indemnify the owner against lien claims, and a standard 10-year time limit has been imposed on claims by the owner against the contractor. There are also new provisions allowing the parties to “fill in the blank” to agree on the amount of liquidated damages that will be payable to the owner due to the contractor’s failure to substantially complete the
work within the agreed upon timeframe, and the amount the owner will pay to the contractor in the event of a termination of the contract for the owner’s convenience. Some of the most notable changes in the owner/architect forms include: A new form AIA Document E204 – 2017, Sustainable Projects Exhibit, has been developed for use in the design of projects where the owner is seeking to build an environmentally sustainable project and obtain a sustainability certification (such as LEED certification). A provision allowing the parties to “fill in the blank” to identify the amount the owner will pay the architect in the event of a termination for the owner’s convenience. Clarifications regarding the difference between “Supplemental Services” and “Additional Services” and how progress payments are calculated. Provisions allowing the owner and
architect to “fill in the blanks” for the amount of liability insurance the architect will be required to carry, and clarification that the architect’s insurance obligations will terminate one year after substantial completion of the work. Due to the number of changes in the various forms, it is impossible to summarize or address every change in this brief article. For additional background and a complete listing of all of the AIA documents that have been revised, go to the AIA website: www.aia.org/press-releases/82526-2017-aiacontract-documents-now-availableAll of the current AIA documents, including comparison documents highlighting the changes between the 2007 and 2017 forms, can be found at www.aiacontracts.org/. HN C. Robert “Cris” Baird is Counsel at Bracewell, LLP. He can be reached at cris.baird@bracewell.com.
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20 H e a d n o t e s l D a l l a s B a r A s s o ciation
January 2018
Column
State Bar of Texas President
Civility & Professionalism TOM VICK
You know you have a good idea when someone pats your back or nods approvingly. But you know you have a truly great idea when someone copies it. A great idea was born in Dallas more than a year ago. It materialized in the form of the Day of Civility and Professionalism, first held on September 9, 2016, and again on October 20, 2017. The first year included a free, half-day seminar, where attorneys reaffirmed the Texas Lawyer’s Creed and rededicated themselves to the highest principles of civility. It was recognized in every Dallas state and federal court and by a number of legal chapters and organizations, including the Dallas Bar Association, the Dallas Chapter of the American Board of Trial Advocates, the local American Inns of Court, and the State Bar of Texas Professionalism Committee. Inspired by the work in Dallas, the State Bar Professionalism Committee created a guide to teach other bar associations how they could create their own Day of Civility. The guide, which includes a sample timeline, posters, fliers, and other useful items, can be found online at texasbar.com/professionalism. Not stopping there, this year, Texas will commemorate a statewide Day of Civility. The justices of the Supreme Court of Texas and the Texas Court of Criminal Appeals have proclaimed April 20, 2018, the Texas Day of Civility in the Law. The proclamation was signed in late 2017. The State Bar Board of Directors will pass its own proclamation in January supporting the statewide commemoration. The Supreme Court and Court of Criminal Appeals renewed the spirit of professionalism in 1989 when they promulgated the Texas Lawyer’s Creed. The driving force behind the creed’s creation is that proper conduct is much more than avoiding violation of disciplinary rules. The courts’ order began: “The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession’s broader duty to the legal system.” It is worth your time to read the entire Texas Lawyer’s Creed. The State
Tom Vick
Bar offers free creed brochures and posters and encourages lawyers and judges to place them in their offices and courtrooms. You can email professionalism@ texasbar.com to ask for copies. There will certainly be more announcements and events to come as we draw closer to April 20, but it is my honor to place credit where credit is due—with the Dallas legal community for the fantastic execution of the first Day of Civility. Thanks also to Suzanne Duvall, chair of the State Bar Professionalism Committee; Justice Douglas Lang, of Texas’ Fifth Court of Appeals, who is heading the State Bar Professionalism Committee’s Day of Civility subcommittee; and our esteemed high court justices and judges for their leadership in creating a statewide Day of Civility. I would also like to thank the following DBA members who helped put the initial program together: Jerry Alexander, Wes Alost, Shonn Brown, Al Ellis, DBA President Michael Hurst, Patrick Long, Richard Pullman, and Mary Scott. Promoting civility is an important step we can take to strengthen our profession and earn more respect from the public and for the rule of law. I am thrilled to support this initiative as State Bar president and invite you to get involved. HN Tom Vick, a partner in Vick Carney LLP in Weatherford, is the 2017-2018 president of the State Bar of Texas.
Thank you Platinum Level sponsors
For your generous support of the Dallas Bar Association Construction Law Section!
Jan u a ry 2 0 1 8
Focus
D al l as Bar A ssoci ati on l Headnotes 21
Real Property/Construction Law
Who Breached First, and Was It Material? BY LOGAN ADCOCK
The Texas Supreme Court issued its seminal opinion on the “prior material breach” rule in Mustang v. Driver Pipeline in 2004. Simply put, “when one party to a contract commits a material breach of that contract, the other party is discharged or excused from further performance.” Application of the rule is far from simple, though, and contracting parties have struggled with the practical and legal effects of withholding further performance in the wake of a breach by the other party. While determining who breached first is a relatively easy task for the finder of fact, determining whether that breach was material – and, depending on that answer, the allocation of damages – is much more difficult. The Supreme Court took another look at the rule in its 2017 opinion, Bartush v. Cimco, to correct misconceptions of the rule and clarify its application and effect. In Bartush, the owner of a foodproduct manufacturing plant engaged a contractor to install a new refrigeration system. Bartush-Schnitzius Foods Co. v. Cimco Refrigeration, Inc., 518 S.W.3d 432 (Tex. 2017). After installation, the new system failed. When resolution attempts broke down, the plant owner withheld the rema ining amount owed under the contract— about $113,000. The contractor sued to recover the balance, and the owner counterclaimed, seeking among other things, the costs associated with repairing the system. The jury found that both parties breached the contract, and that the contractor breached first. Although
the jury also found that the owner’s failure to pay the remaining contract balance was not excused, the trial court rendered judgment for the owner and awarded nothing to the contractor. The contractor appealed. The appellate court reversed and remanded to the trial court for entry of judgment that the owner take nothing and that the contractor recover the remaining contract balance. According to the appellate court, the jury’s finding that the owner was not excused from paying the contractor necessarily implied that the contractor’s breach was not material. The court then went a step further in holding that the owner’s failure to pay was a material breach which, under the prior material breach rule, excused the contractor’s breach. The owner then appealed to the Supreme Court, which held that, while both the trial court and the appellate court attempted to render judgment in accordance with the jury’s verdict, neither court did so. It was clear that, thirteen years after Mustang v. Driver, contracting parties, attorneys, and even courts remained confused as to the application of the prior material breach rule. The Supreme Court took the opportunity to restate and clarify the rule’s application and effect. First, in examining the contractor’s prior breach, the Court reiterated that the breach must be material to excuse further performance. By contrast, when a party commits a nonmaterial breach, the other party is not excused from future performance but may sue for the damages caused by the breach. In Bartush, the jury expressly found that the owner’s failure to pay was not
excused; therefore, the contractor’s breach was not material. Second, in examining the owner’s subsequent breach, the Court held that, while a party’s nonmaterial breach does not excuse the further performance by the other party, neither does the second, material breach excuse the first. In other words, the Court clarified that a material breach excuses further performance, not past performance. The appellate court “turned the doctrine on its head” in holding that the owner’s material breach of nonpayment retroactively excused the contractor’s prior breach. Having corrected the lower courts’ errors and better explained the application of the prior material breach rule, the Supreme Court then addressed the allocation of damages where both parties breached the contract. Because the contractor’s prior breach was nonmaterial, the owner was still obligated to pay the remaining contract balance.
On the other hand, the owner’s failure to pay, though material, did not retroactively excuse the contractor’s prior performance failures. Thus, while the owner remained liable for its breach of contract, it was entitled to offset the amount owed to the contractor by the costs associated with correcting the contractor’s improper work. While simple in theory, the prior material breach rule has proven difficult to apply for contracting parties, attorneys, and Texas courts alike. In Bartush the Supreme Court certainly provided additional guidance in dealing with competing breach claims; however, non-breaching parties still face a complicated and fact-intensive analysis in determining whether that prior breach excuses further performance. HN Logan Adcock is an associate at Canterbury Gooch Surratt Shapiro Stein Gaswirth & Jones, P.C. He can be reached at ladcock@canterburylaw.com
Texas Lawyers’ Assistance Program TLAP provides confidential help for lawyers, law students, and judges who have problems with substance abuse and/or mental health issues. In addition, TLAP offers many helpful resources, including: Live Ethics CLE presentations TLAP Newsletter Request of specific educational materials 1-1, group telephone calls on topics Friday noon AA telephone meeting 1-800-393-0640, code 6767456
Find out more at www.texasbar.com.
2017 DBA President Recognized
We Understand Your Business.
We Understand Your Business.
Aaron Tobin (right), Chair of the Board, presented 2017 DBA President Rob Crain with an oil painting of The Belo Mansion by Texas artist Jerral Derryberry. Mr. Derryberry’s work is currently represented and sold in fine art galleries and national exhibitions. More of his work can be seen at www.jerralderryberry.com.
I Just Passed the Bar, Now What? Things You Didn’t Learn in Law School! Wednesday, January 10, 5:30-7:30 p.m. at Belo | MCLE 2.00 Judicial Panel on Discovery, Effective Communications with Clients and Employees To register contact vallejod@lanwt.org.
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22 H e a d n o t e s l D a l l a s B a r A s s o ciation
January 2018
Modern Theft: Cybercrime in Real Estate Transactions BY JULIA GASC BECKMAN
Wire fraud and cybercrime are disrupting and delaying real estate transactions across the country on an alarming scale, and have resulted in over $15 million in losses annually since 2015 to purchasers and sellers of real estate, as well as third parties involved in the transactions. Advanced email phishing scams are affecting title companies, insurance underwriters, real estate agents, brokers, buyers, sellers, and their counsel, and there is little to no recourse for the parties, frustrated with the title companies, banks, and each other, to recover their losses. As with any developing, modern crime, parties affected do not know what to do or who to blame. The first thought is often litigation, with seemingly any party in the
transaction at-risk of being named. This is born out of the victim’s desperation to get such a large sum of money returned, with no way of determining who received the funds due to banking security restrictions and advanced cybercrime techniques. Title companies are taking action in order to avoid being the target of these scams that become more advanced each month, real estate agents are educating their clients to safeguard their funds, and attorneys are taking measures to avoid allowing their clients to fall victim to these scams, but surprisingly, no industry-wide regulations in real estate, banking or title have been implemented to prevent these criminal acts. As holders of funds in escrow for these transactions, title companies and insurance underwriters find themselves in a position that requires them to (i) be pro-
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ficient in training their staff to recognize scams, (ii) take measures to ensure that losses are avoided, and (iii) when losses do occur, they must attempt to recoup funds for their customers in this uncharted territory that is just beginning to become apparent to individuals outside of the title and banking industries. The typical scenario begins with one individual using an unsecured e-mail program such as a personal Gmail, Yahoo, or AOL account, to communicate with parties such as a title company, or real estate agent, regarding a transaction. Emails are monitored by unknown hackers that take advantage of an opportunity to instruct the individual to send funds to their bank account instead of the intended account such as the title company escrow account, or the account of the seller expecting proceeds, this is an act that falls into the category commonly known as phishing. Advanced phishing tactics are identifiable by their convincing disguise as originating from a trustworthy entity, one such as an individual’s real estate agent or someone employed by the title company they are working with on a particular transaction. Those less familiar with the red flags of phishing scams, including a large number of the general public that is unaware of the existence of these fraudsters, are susceptible to them. In cases that are most concerning, that are resulting in staggering financial losses, are those in which individuals are instructed to wire funds, a common practice in real estate transactions, and their funds are wired to a fraudster’s account instead of the intended recipient. Many times, these funds are gone forever once the wire is sent.
Generally, parties will continue to ask if funds have arrived, and as hours and sometimes days, pass, parties realize they cannot determine where their funds are, nor can they get information from the receiving bank, or their own bank on the recipient account holder that stole their money. Horror stories of individuals losing their life savings and the equity in their homes that was to go toward a new home purchase, and businesses losing millions in acquisition funds that they cannot recover, have begun circulating as this problem worsens. Despite this, little to nothing has been done where change is desperately needed. A disclaimer at the end of an e-mail signature block, and the vague mention of words like “wire fraud” and “cybercrime” are proving to be insufficient to educate consumers on the extreme risks they face when purchasing and selling real estate. There is a dire need for meaningful and preventative change across all members of the real estate industry, with few eager to work toward implementing change. Seemingly, the most apparent efforts are those of parties seeking to avoid liability. With the responsibility being in the hands of realtors, title companies, banks, and attorneys, there are members of multiple industries in the position to implement change at different levels. The greatest difficulty in finding a solution likely results from the need for collaboration across these industries to come together with a solution. HN Julia Gasc Beckman is a Commercial Closing Attorney and Assistant Vice President of MBL Title and she can be reached at julia.beckman@mbl-title.com.
DVAP’s Finest ADAM AUGUST
Adam August practices in the area of corporate and securities law with Akin Gump Strauss Hauer & Feld LLP. How did you first get involved in pro bono? As a first year associate, I had a strong relationship with Diane Couchman who led our pro bono efforts in the Dallas office. She was always extremely excited about pro bono opportunities and got me involved in DVAP and other pro bono work at the start of my career.
21st Annual Professional Advisor Seminar The Wealth of Their Lives: Practical approaches to help clients create lasting personal legacies Presented by Susan Turnbull Friday, February 2, 2018 7:30 a.m.-10:30 a.m. | The Belo Mansion Individual tickets and table sponsorships are available. To view additional information about the event, purchase tickets, or view continuing education certification credit availability, visit dallasfoundation.org or call 214.741.9898.
PRESENTING SPONSOR
About The Speaker – Susan Turnbull is founder and principal of Personal Legacy Advisors, LLC, which specializes in finding ways for high net worth individuals to communicate their feelings, values, advice and stories to future generations. Turnbull, author of The Wealth of Your Life: A Step-by-Step Guide for Creating Your Ethical Will, has also appeared in The New York Times and USA Today. She’s known for popularizing “ethical wills” as a way to hand down family traditions and values, and for developing strategies to help discern and define donor intent.
The Dallas Foundation, founded in 1929, is the oldest community foundation in Texas and serves as a resource for professional advisors, as well as a philanthropic partner for your clients.
Describe your most compelling pro bono case. One of the first cases I took involved an elderly woman who worked for minimum wage at a senior home. Notwithstanding her age, she showed up to work every day to help with the residents, cook their meals, and assist with their care. The owner and manager of the home turned out to be a scam artist that refused to pay her months of back wages. We were able to successfully obtain judgment against him for all back wages, plus treble damages for his intentional misconduct. Our client was obviously very thrilled with the outcome and the additional income, which she had not expected to receive, helped her enjoy her older years and it was a very satisfying case to be a part of. Why do you do pro bono? Not only do you get to help those in need and interact with people you might not otherwise serve as clients, but I think it broadens your sense of community, improves and expands your legal skills, and allows you to take on cases outside your area of expertise. What impact has pro bono service had on your career? It has allowed me to put my business and employment skills and training to use helping serve the underprivileged community, as well as increased my visibility both inside and outside the firm. What is the most unexpected benefit you have received from doing pro bono? The clients that I have stayed in touch with over the years. There are still folks who I receive holiday cards and updates on their life years after I have finished representing them.
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
Jan u a ry 2 0 1 8
Classifieds
D al l as Bar A ssoci ati on l Headnotes 23
January
EXPERT WITNESS
Economic Damages Experts - Thomas Roney has more than thirty years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, and business valuation matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 6659458 or Houston (713) 513-7113. troney@ thomasroneyllc.com. “We Count.” Insurance Industry Expert. R. P. “Bob” Gaddis, JD, 46 years’ experience in Property/Casualty Insurance, sequentially as Underwriter, Agent, and Insurance Litigation Attorney. His underwriting and agency work concentrated on complex commercial accounts. Served as Expert Witness in over 65 cases. Visit complexinsuranceconsulting.com or contact him at bgaddis@complexins.com, (713) 621-1601. Economic Damages Experts – HSNO is the Forensics Firm. Economic Damages Experts - HSNO is a CPA firm specializing in Financial Damages. The Dallas office of HSNO has five CPA testifying experts who specialize in the calculation of financial damages in most areas including commercial lost profits, personal lost earnings, business valuations, insurance litigation, intellectual properties and contract disputes. HSNO is qualified in most industries including, but not limited to; energy, manufacturing, hospitality, service, insurance, transportation, entertainment, product liability and construction. HSNO has 10 U.S. offices and an office in London. Contact Peter Hagen CPA CFF CEO at (972) 980.5060 or go to HSNO.com.
OFFICE SPACE
75 Central & Forest Lane. Johnson English Law Center – Merit Tower Office Space. For lease – Sleek, contemporary office space: 12222 Merit Drive – 12th Floor. Nine conference rooms, lobby with receptionist/mail service, high speed Internet, library, spacious breakroom… plus parking and workout facilities are complementary! Come take a look – Contact arobinson@englishpllc.com or (214) 528-4300. Coit/Churchill - Office share opportunity with small established law firm. Large corner window office with separate support staff custom built work station. No lease; 60 day move-out notice required. Includes shared reception areatwo conference rooms-kitchen, two 5-drawer lateral cabinets, DD phones, Wi-Fi, fax, copier/printer/scanner/postage meter at pass-thru cost, 24/7 security and tenant access, free gym, free large meeting room, 1 underground executive parking space, 1 secured upper level parking, free visitor parking. Contact Renay @ (214) 292-2614. Prime legal office space on Central Expwy at Knox Henderson for small firm. Free parking and Wi-Fi. Just ten minutes from courthouse. Each office is large. Two conference rooms, shared staff and kitchen area. Twelve month lease. RMC@RobertMClark.net or call (214) 528-2400. Downtown Dallas – Two window offices with included secretarial space available, in the historic KATY Building overlooking the Old Red Courthouse and Kennedy Memorial. Receptionist, notary,
phone system, conference room, Wi-Fi, fax and copier provided for tenants use. No deposit or lease required. Please inquire at (214) 748-1948. Virtual Office – Available Immediately! Contemporary office space, 12222 Merit Drive, Suite 1200, offers nine conference rooms, receptionist, Internet service, mail service, parking, fully equipped breakroom. $300 monthly fee – competitive rates! Email Amy at arobinson@englishpllc.com or (214) 528-4300. McKinney Avenue. Office with secretarial area available at 4054 McKinney Avenue. Shared conference room, break room, copier, fax, DSL & phone equipment are available if needed. No long term commitment and a monthly rate of $800.00 for the furnished or unfurnished large office and $300.00 for the furnished secretarial office. Possibility of overflow Real Estate or Civil Litigation work. Call (214) 520-0600. Uptown. 4054 McKinney Avenue has available one office suite with 1550 sq. ft. and one suite with 2500 sq. ft. Each space has three offices with reception, conference and secretarial space. Located across from Cole Park with surface parking. One year terms with flat rates are available. Possibility of overflow Civil Litigation work. Call (214) 520-0600. Lee Park Area - executive office space available for lease in a professional, legal environment. Two large executive window offices available (furnished or unfurnished) to share with experienced and established lawyers. Separate areas available for assistants or paraprofessionals. Three bench seat spaces available for daily or shortterm use, if desired. Referrals and other case arrangements are possible. Amenities include reception area, telephone, fax and copy machines, Wi-Fi, notary, conference room, kitchen area, covered visitor parking, and free secured office parking. Location convenient to Dallas courts, downtown, and all traffic arteries. Please contact Judy at (214) 740-5033 for a tour and information. Walnut Glen Tower (Walnut Hill/Central). Great Deal! Terrific offices in Class A building near NorthPark with views of downtown over lake with fountains. Convenient access to DART station. Prized, central location wherever you need to go in the Metroplex. Do business in a relaxed yet professional environment which includes administrative stations, conference room, kitchen, copier, phones, reserved garage parking, on-site restaurant and other amenities. A larger executive office and/or smaller offices/flex space for as little as $500/month. A fully furnished office is an option. Why not have a professional location for your business and quality of life at work? Please call (214) 373-0404 for details. North Dallas - LBJ/Montfort. Executive Office Suites, external $650, internal $300. All inclusive: Receptionist, kitchen, garage parking, free guest parking, Internet, WI-FI, phone, conference room, coffee/water/ice, utilities, janitorial and maintenance. Contact Laura at: email laura@5580midtown.com or (214) 888-2800. North Dallas - Hillcrest Road / LBJ Area: Day Rental Rates for Mediation Conference Space (includes professional office). Also, large attorney suite has offices available for monthly rental. Contact hicks@morganmediations.com or call (214) 697-3537 for information. Professional office suites for lease in Uptown State Thomas area. Restored Victorian home circa 1890 w/ hardwood floors throughout. Shared conference
room. 2619/2608 Hibernia St 1 block from McKinney Avenue Whole Foods. Lawyers preferred. $750-$850/month. Includes phone & Internet. Phone (214) 987-8240.
POSITIONS AVAILABLE
Family Law Litigator with 3-5 years of experience needed at Plano firm. Start as a contract attorney for a period of 3-6 months, with the opportunity of full-time employment. Principal duties include client interaction, drafting and responding to discovery, preparing for and attending hearings, taking depositions, and handling or assisting with trial. Must have excellent communication and writing skills and be able to work independently and with others. Compensation commensurate with experience, bonus possible. Great opportunity for a motivated, self-starting individual who wants to experience a work environment before making a full-time commitment. We are a small, family oriented firm that emphasizes work/life balance. We are looking for team members that will be committed to the firm’s growth and expansion in the future. Please submit resume and payment requirements to pam@carsonsteinbauer.com. Commercial Insurance Litigation Attorney. Small, highly-respected, downtown Dallas, insurance coverage/defense firm seeks 4-5yr+ attorney with solid commercial insurance coverage/coverage litigation experience. Ideal candidate has significant experience with CGL insurance, particularly construction defects. Portable business and insurance defense litigation experience a plus, but not required. Reasonable billable hour expectation allows for good lifestyle balance. Excellent benefits (health insurance, 401k, parking). Salary negotiable. Email cramsey@schubertevans.com or call (214) 744-4400. Geary, Porter & Donovan, P.C. Real Estate Associate Attorney. AV-rated, north Dallas law firm has an immediate opening for an associate attorney to join its Commercial Real Estate & Finance practice. Excellent academic credentials, Law Review and some experience preferred. Commercial development, leasing, construction, contract review/drafting; candidate will possess strong business development skills. Send resumes to: hr@ gpd.com; Fax: (972) 931-9208. Far North Dallas/Farmers Branch Area law firm seeks an associate attorney with 2 - 3 years’ experience. Real estate law background required. Corporate or business law background a plus. Compensation commensurate with experience. Send resume to chicagogar7@yahoo.com. Downtown Dallas firm seeks associate attorney. Dallas Texas Boutique Firm seeks an associate attorney to join our team in the areas of Probate and Business Law. Qualified candidates will have 1-2 years’ experience, exceptional communication and writing skills, a strong work ethic and the ability to learn quickly. This position will have direct client interfacing; work on cases from the contract stage through arbitration and litigation, including appeals; and have significant interaction with firm management and staff, and has oppor-
tunity for growth. Ideal candidates will be comfortable in a fast-paced, multitasked environment where delivering the best service to clients is the number one focus. They will be professional, detail oriented, and have a passion for helping people. Our office is equipped with top of the line technology and software tools that our attorneys and staff utilize to navigate daily tasks, conduct investigations, litigate cases, and stay in contact with our clients. Compensation is base plus hours billed. Interested candidates should email their resume to joe@parvinlaw.com. Dallas Family Firm that helps people through divorce with empathy and unyielding representation seeks associate with 5+ years’ experience. Email resume to christina@katielewisfamilylaw.com; subject line should be your last name in all caps plus one word that describes you. Accounting Manager: Law firm with two offices and 20+ attorneys/staff seeks accounting manager to handle complex bookkeeping and accounting functions. Manager will be responsible for bookkeeping, coordination with outside accountants and tax advisors, generation of monthly financials and specialized reports, invoicing, bill payment, and other financial duties as assigned. Experience in the legal industry preferred. Full benefits provided. Salary commensurate with experience. Resumes to: Burns Charest LLP, Attn. Acct Manager Search, 900 Jackson Street, Suite 500, Dallas, TX, 75202. Palmer & Manuel, LLP, a 14 attorney firm in Campbell Centre, seeks one or two experienced attorneys with established practices to join our family law team and/or our business, bankruptcy and general civil practice group. Work with us, not for us. Our formula based compensation system allows attorneys to keep a substantial portion of their fees. See our website at www.pamlaw.com or contact Steve Palmer or Rebecca Manuel at 214-242-6444.
SERVICES
Credentialed Forensic Genealogist & Attorney – hire an experienced attorney and credentialed forensic genealogist to ethically find next of kin and missing heirs for intestacy, probate, guardianship, property issues, and more. Reasonable hourly rate. See www.ProfessionalAncestryResearch.com. Wanda Smith, (972) 836-9091. Mediation Dispute Resolution ServiceMediation Center. Mediations at affordable rates. Please visit our website at www. mediatewithme.com. (469) 213-0940; (214) 932-3495. Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089. To place an affordable classified ad here, contact Judi Smalling at (214) 2207452 or email jsmalling@dallasbar.org.
Don’t miss your opportunity to advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide” in Dallas County. Contact PJ Hines at (214) 597-5920 or pjhines@legaldirectories.com
24 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
January 2018