Dallas Bar Association
HEADNOTES
Focus International/Franchise & Distribution Law
June 2013 Volume 38 Number 6
DBA Hosts Mock Voir Dire
Law Day Luncheon
Staff Report
On May 3, local judiciary and attorneys attended the 2013 Law Day Luncheon at which Hon. Jane J. Boyle, of the U.S. District Court, (pictured with DBA President Sally Crawford) was the keynote speaker. In addition to awards presented to the winners of the Law Day Dallas ISD art and essay contests, the Dallas Association of Young Lawyers presented awards for Outstanding Mentor, Outstanding Young Lawyer and the Liberty Bell Award.
Focus
Law Day is an annual celebration of the U.S. justice system. One of the highlights for the Law Day Committee each year is conducting a mock voir dire program for Dallas ISD high school students. This program gives high school students the opportunity to visit the Dallas County courthouse, learn about the jury system and participate in a voir dire demonstration. The mock voir dire was held at the George C. Allen Courts building on April 12, 2013. Approximately 300 students from nine schools participated. DBA President Sally Crawford and Hon. Martin Hoffman (68th Civil District Court) welcomed the students. Hamilton Lindley, of Deans & Lyons, LLP, served as moderator of a panel discussion on the importance of voting. Panelists included Judge Hoffman, Judge Jane J. Boyle, of the U.S. District Court, and Vonciel Jones Hill, attorney and Dallas City Council member. The students were then treated to a demonstration of the voir dire process by several Dallas trial lawyers—Rob Bogdanowicz, of Deans & Lyons, LLP; Shonn Brown, of Gruber Hurst Johansen Hail Shank LLP; John Burkhead, of The Law Offices of Frank L. Branson, P.C.; Ophelia Camina, of Susman Godfrey L.L.P.; Trey Crawford, of Gruber Hurst Johansen Hail Shank LLP; Greg Deans, of Deans & Lyons, LLP; Brian Hail, of Gruber Hurst Johansen Hail Shank LLP; Rachel Montes, of Montes Law Group; and Eric Policastro, of Gruber Hurst Johansen Hail Shank LLP. The students served as members of the jury panel. Judge Hoffman along with Hon. Rob Cañas (County Criminal Court No. 10), Hon. Mark Greenberg (County Court at Law No. 5), Hon. Jeffrey Rosenfeld (County Court of Criminal Appeals No. 2) and Hon. Chris Wilmoth (Probate Court No. 2) presided over the proceedings. Following the demonstration, the students were given an opportunity to ask questions of the lawyers and the judges. The Law Day Committee thanks all those involved for helping to make this a premier event.
International/Franchise & Distribution Law
The Accidental Franchise by Kevin L. Twining
Do you have clients who distribute goods and services through licensees or distributors? If so, when drafting or reviewing agreements for those clients it is imperative that you consider whether the relationship between your client and the other party is actually a franchise, as franchise laws apply regardless of the name of the agreement or the contracting parties’ intention. Failure to recognize that an agreement creates a franchise under federal or state law could have significant consequences for both you and your client. Most people think they know a franchise (e.g. McDonald’s and Subway) when they see it. However, franchising is not an industry, but rather a method of distribution. Most franchise legislation contains broad language in defining a franchise relationship. Thus, there is a risk that certain common legal relationships, such as distributorships and trademark licenses, could be deemed franchises. The increasing complexity of commercial relationships has led to an expanding number of relationships that fall within the broad reach of the franchise laws and thus become accidental franchises.
A business arrangement that meets all three of the elements discussed below will be deemed a franchise, and thus trigger federal and state presale disclosure requirements. Additionally, potentially applicable state registration and relationship laws may restrict the conditions under which the relationship may be terminated or not renewed. Failure to comply with these laws may subject the violator to damages, rescission or, in certain circumstances, criminal penalties. For purposes of the Federal Trade Commission’s “Franchise Rule,” which applies in all 50 states, a business arrangement is a franchise if it meets three basic elements: (i) the right to use a trademark in connection with the offer, sale or distribution of goods; (ii) the payment of more than $500 during the first six months of the relationship; and (iii) significant assistance to, or control over, the grantee’s business. State law franchise definitions largely resemble the FTC’s Franchise Rule, with a few variations. The trademark element of a franchise is met if the business is identified by the licensor’s or manufacturer’s trademark or if the goods are identified by the licensor’s or manufacturer’s trademark, symbols or slogan, even if the agreement lacks an express trademark license.
The required fee element captures all sources of revenue paid to the grantor for the license or distribution rights. This element is broad and includes not only upfront fees and royalties, but also training fees, advertising fees and innocuous payments for sales manuals, demonstration kits or point-of-sale advertising. The one exception to this element is the payment of a bona fide wholesale price of inventory for resale so long as there is not a requirement to purchase excessive quantities. The significant assistance or control element is inherently subjective, and courts typically look at a variety of factors. It may exist if the licensor or manufacturer provides a training program, marketing advice, site location assistance or a detailed operating manual, or if the licensor or manufacturer mandates personnel policies or practices, establishes operating methods or standards, prescribes operating hours, or restricts the sales territory or customers that may be served. In certain circumstances, any one of these factors may be sufficient to establish significant assistance or control. The parties’ course of dealing and industry customs are also relevant. Since this element is inherently imprecise and involves a variety of
factors, the key is knowing what and how many factors are enough to tip the scale. Most trademark license agreements include some quality control provisions since an owner may lose rights in a trademark if it fails to exercise reasonable control over its use. The problem arises when the licensor begins to exercise too much control or provide too much assistance to other aspects of the licensee’s business operations. For example, a simple trademark license agreement may become a franchise if the licensor requires the licensee to undertake a specific marketing plan or if the licensor provides a training program for the licensee. Likewise, a distribution agreement may be deemed a franchise if the manufacturer provides an operations manual or site selection assistance or requires specific hours of operation. Knowing the elements of a franchise and the line that separates a trademark license or distribution agreement from a franchise will allow you to protect your client (and you) from incurring liability for failing to identify the HN accidental franchise. Kevin L. Twining, a partner at Locke Lord LLP, chairs the firm’s franchise section. He can be reached at ktwining@lockelord.com.
Inside 5
Protecting the Franchise Against Unfair Competition
8
DBA and H|S|N|O Pro Bono Golf Tournament
11 What Every Attorney Should Know About Franchise Law 13 Bankruptcy and the Franchise Agreement
Mark Your Calendar for the
SBOT 2013 Annual Meeting The 2013 State Bar Annual Meeting is in Dallas June 20-22. For more information and to register, visit www.texasbar.com/annualmeeting.
2 He a d n o t e s l D a l l a s B a r A s s o ciation
Calendar
June Events
UNE 7-BELO Noon
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
FRIDAY CLINICS
“What Every Attorney Should Know About Recent U.S. Patent Law Changes,” Stan Moore. (MCLE 1.00)* RSVP to kzack@dallasbar.org.
JUNE 14-NORTH DALLAS** Noon
“Small Tenant Lease Issues,” Andrew Jenkins. (MCLE 1.00). At 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 Underwood Perkins, P.C. RSVP to kzack@dallasbar.org.
MONDAY, JUNE 3 Noon
Tax Law Section “Tax Ethics/Circular 230 Update,” Prof. Mike Lang. (Ethics 1.00)*
Peer Assistance Committee
TUESDAY, JUNE 4 Noon
Corporate Counsel Section “Introducing the iPad to Your Practice,” Mark Bennett. (MCLE 1.00)* Road to Executive Leadership Program Speakers: Julia Simon, Mary Kay Inc.; Wesley Terrell, AT&T; Helen Yu, American Airlines; and Chris Luna, MetroPCS, moderator. Sponsored by the DBA Minority Participation Committee
6:00 p.m. DAYL Board of Directors Meeting
WEDNESDAY, JUNE 5
Tonya Parker, Hon. John Peyton and Diane Sumoski, moderator. (MCLE 1.00)*
Family Law Section Board Meeting
DAYL Freedom Run Committee
FRIDAY, JUNE 7
8:25 a.m. Juvenile Delinquency Advanced Topics Spring Seminar Two-day event. (MCLE 7.50, Ethics 1.00)* To register, go to www.dallasbar.org or contact ahernandez@dallasbar.org. Presented by the DBA Juvenile Justice Committee Noon
DAYL Attorneys Serving Troops Committee
Noon
June 2013
Employee Benefits/Executive Compensation Law Section “Can A Partner Also Be An Employee?” Elizabeth Drigotas. (MCLE 1.00)* Solo & Small Firm Section “Market Update for Small Office Space,” Kyle Jacobs. (MCLE 1.00)*
Public Forum Committee
DAYL Judiciary Committee
5:30 p.m. Bankruptcy & Commercial Law Section “Legal Issues With Equipment Leasing in Texas,” Paul Cross. (MCLE 1.00)*
THURSDAY, JUNE 6
8:25 a.m. Juvenile Delinquency Advanced Topics Spring Seminar Two-day event. (MCLE 7.50, Ethics 2.50)* To register, go to www.dallasbar.org or contact ahernandez@dallasbar.org. Presented by the DBA Juvenile Justice Committee Noon Construction Law Section “Texas Residential Construction Claims 2013: What You Need To Know,” Mark S. McQuality. (MCLE 1.00)* Judiciary Committee “Judicial Perspectives on Effective Evidence,” Hon. David Evans, Hon. David Lopez, Hon.
Friday Clinic-Belo “What Every Attorney Should Know About Recent U.S. Patent Law Changes,” Stan Moore. (MCLE 1.00)* RSVP to kzack@ dallasbar.org. Pro Bono Summer Clerks Luncheon Speakers: Victoria Neave, Ebony Rivon and Judge Craig Smith. (MCLE 1.00, Ethics 0.25)* To register, contact Alicia Perkins at perkinsa@lanwt.org.
MONDAY, JUNE 10 Noon
Real Property Law Section “Surveyor/Research/Field/Calculation and Drafting Procedures Relating to an ALTA/ACSM Land Title survey,” Jim Brown. (MCLE 1.00)*
TUESDAY, JUNE 11 Noon
Government Law Section “Organization and Functions of the Dallas City Attorney’s Office,” Thomas P. Perkins. (MCLE 1.00)*
Legal Ethics Committee
DAYL Lawyers Promoting Diversity Committee
WEDNESDAY, JUNE 12
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group 11:30 a.m. House Committee Walk Through Noon
Family Law Section “Cooperation Evaluations, Not Custody Evaluations,” Dr. Robert Gordon, Phd. (MCLE 1.00)* Bench Bar Conference Committee
Mayor Visits DBA Habitat Home Site
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
Non-Profit Law Study Group
3:30 p.m. DBA Board of Directors Meeting 6:30 p.m. Justice Sandra Day O’Connor (Ret.) presents “Civics Education Within the Middle Schools.” (MCLE 1.00)* Sponsored by the Tort & Insurance Practice and Business Litigation Sections
THURSDAY, JUNE 13 Noon
CLE Committee
Publications Committee
Christian Lawyers Fellowship
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
THURSDAY, JUNE 20 Noon
Appellate Law Section “Tips and Trends in Mandamus Proceedings,” Charlie Frazier. (MCLE 1.00)*
Minority Participation Committee
Christian Legal Society
DAYL Animal Welfare Committee
Dallas Gay and Lesbian Bar Association
6:00 p.m. J.L. Turner Legal Association
FRIDAY, JUNE 14 Noon
Friday Clinic-North Dallas** “Small Tenant Lease Issues,” Andrew Jenkins. (MCLE 1.00). At 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 Underwood Perkins, P.C. RSVP to kzack@ dallasbar.org.
Trial Skills Section “Oral Advocacy,” T. Gerald Treece. (MCLE 1.00)*
Minority Clerkship Luncheon. Panelists include Carlos Morales, Barbara Nichols, Victoria Nsikak, Bill Richmond and Chalon Clark (moderator). Learn about the broad range of opportunities in Dallas. RSVP to bavina@dallasbar.org.
MONDAY, JUNE 17 Noon
Labor & Employment Law Section “Employment Law and Social Media: The Top 5 Issues to Watch in 2013,” Karen Denney. (MCLE 1.00)* Senior Lawyer Committee
TUESDAY, JUNE 18
9:00 a.m. DVAP Family Law Nuts & Bolts Video (MCLE 6.00; Ethics 2.00)* For information contact perkinsa@lanwt.org. Noon
Franchise & Distribution Law Section “Employment Law Trends in the Franchise Community,” Derek Sparks. (MCLE 1.00)*
International Law Section
Legal History Discussion Group No Man is Bound to Accuse Himself: Establishing a Right of Silence at the Old Bailey,” Steve Baskind. (MCLE 1.00)*
DAYL Elder Law Committee
WEDNESDAY, JUNE 19 Noon
Alternative Dispute Resolution Section “Overview of New CPR Administered Arbitration Rules Effective July 1, 2013,” Olivier P. André. (MCLE 1.00)* Energy Law Section “Supreme Court Landowner Condemnation: Landowner Perspective,” Luke J. Ellis and Justin A. Hodge. (MCLE 1.00)*
Health Law Section “Accountable Care Organizations - Structuring and Planning Considerations,” Lauren Waite and Kenya Woodruff. (MCLE 1.00)*
Library Committee
Pro Bono Activities Committee
DAYL CLE. For more information, contact cherieh@dayl.com
FRIDAY, JUNE 21 No DBA Events Scheduled
MONDAY, JUNE 24 Noon
Computer Law Section Topic Not Yet Available
Securities Section “Supreme Court Securities Litigation Update,” Thad Behrens and Scott Ewing. (MCLE 1.00)*
DAYL Solo & Small Firm Committee
TUESDAY, JUNE 25
11:00 a.m. Dallas Women Lawyers Association Noon
DAYL Aid to the Homeless Committee
DAYL Lunch & Learn CLE. For more information, contact cherieh@dayl.com
American Immigration Lawyers Association
6:00 p.m. Dallas Hispanic Bar Association
WENDESDAY, JUNE 26 Noon
Sports & Entertainment Law Section “Don’t Get Defensive…It’s Only Fair Use,” Danica Mathes. (MCLE 1.00)*
Legal Ethics Committee CLE “Trendy E-Discovery Practices – Hype or Must Have?” Hershel R. Chapin. (Ethics 1.00)*
Magna Carta Discussion Forum “The Legal Profession at a Crossroads— Predicting Our Future From Our Past,” Chief Judge Sidney A. Fitzwater. (MCLE 1.00)*
Juvenile Justice Committee
DVAP New Lawyers Luncheon. Contact reedbrownc@lanwt.org for more information.
DAYL Equal Access to Justice Committee
DAYL Foundation Board Meeting
Municipal Justice Bar Association
THURSDAY, JUNE 27 Noon
Collaborative Law Section Topic Not Yet Available
Criminal Law Section Topic Not Yet Available
Environmental Law Section “Greenhouse Gas Permitting,” Brian Tomasovic. (MCLE 1.00)*
FRIDAY, JUNE 28
11:30 a.m. SOLD OUT! Inspiring Women Luncheon Noon
Intellectual Property Law Section “CLS Bank: Searching for Consensus on Computer Implemented Inventions and Section 101,” Jerry R. Selinger. (MCLE 1.00)*
DAYL CLE Committee
The DBA is the longest whole-house sponsor of the Dallas Area Habitat for Humanity. This year marks the DBA’s 22nd house. Mayor Mike Rawlings paid a visit to the build site in April. (Left to right) KC Ashmore, Home Project Committee Co-Chair, Mayor Mike Rawlings and Greg McAllister, Home Project Committee Co-Chair. If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.
June 2 0 1 3
D al l as Bar A ssoci ati on l Headnotes 3
Taking on all challengers As a integral part of a trial and appellate firm with a reputation for getting results, the women attorneys at Godwin Lewis are ready when the stakes are high and the outcomes are critical. If your legal issues seem overwhelming, it’s time to turn to Godwin Lewis PC.
SHAREHOLDERS
(top two rows)
Jenny Martinez Keeli Rule **Carmen Elaine Eiker Carolyn Raines Misty Coné Jennifer Owens ***Gwen Richard
SENIOR ATTORNEYS (third row)
Melissa Swindle Stefanie Major McGregor Laci Myers Alexandra Fernandez
ASSOCIATES
(starting on row four)
Leiza Dolghih Kena Lopez LaJoi Murray Joni Ogle Christina Crippen Lauren Mitchell Alison Battiste Kali Thomson Nicole Michael Pia Das Jennifer Ware Ursula Willie Melissa Lopez Patricia Smith Charlotte Key Elizabeth Koehler Michelle MacLeod Erika Toledo
Marilea Lewis* Shareholder; Executive Vice President Chair, Family Law Section
*Board Certified by the Texas Board of Legal Specialization in Family Law **Board Certified by the Texas Board of Legal Specialization in two areas, Family Law and Civil Trial Law ***Board Certified by the Texas Board of Legal Specialization in Personal Injury Trial Law
Mission Critical Litigation®
Dallas | Houston | Plano
GodwinLewis.com
4 He a d n o t e s l D a l l a s B a r A s s o ciation
June 2013
Headnotes
President's Column
Professionalism: What Does It Mean To You? By sally crawford
Recently I have had the privilege of speaking to lawyers and students about professionalism and civility in the practice of law. As a consequence, I have had the opportunity to revisit and reflect on the Texas Disciplinary Rules of Professional Conduct, the Texas Lawyer’s Creed, the Dallas Lawyer’s Creed and many other sources of guidance on professionalism. The amount of material available today on the subject is overwhelming. As I began to think about professionalism, I was reminded of the words of Robert “Bob” Meyers, who was the administrative partner at Jones Day in 1986 when I joined the firm. During the orientation on my first day of practice at Jones Day, Bob told me and another new associate that we should never forget that it is a privilege to practice law. He said that the practice of law is not a job—it is a profession and we had an obligation to conduct ourselves professionally at all times. To be honest, at the time I did not know what Bob was talking about. He was older and my unspoken thought was that he was a throwback from another generation. Of course I have since learned the wisdom in his words and have come to understand the importance of what he was trying to tell us. The first paragraph of the preamble to the Texas Disciplinary Rules of Professional Conduct, which can be found at Art. 10, Section 9 of the State Bar Rules in Chapter 84, Texas Government Code, expresses this sentiment: “A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.” The balance of the preamble (which is too long to print here but I would highly recommend to you) is also very instructive. The following closing sentences of the preamble sum up the importance of these concepts: “So long as practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit no compromise.” I love that last phrase “which permit no compromise.” But while it is easy to say, it is not always easy to do. I doubt that any of us (if we are being honest with ourselves) can say that we have never bent or broken any of the rules of professional conduct. So what can we do to try to live up to the lofty goals we, as lawyers, have established for ourselves? One approach would be to remind ourselves regularly of what Justice Douglas Lang calls the “core values” of our profession—honesty, integrity and civility. Three simple words that encompass the heart of professionalism.
Even though it should go without saying, the requirement of honesty is stated in the Rules multiple times. For example, Rule 4.01 says a lawyer shall not knowingly make a false statement of a material fact or law; Rule 3.04(b) says a lawyer shall not falsify evidence, counsel or assist a witness to testify falsely; Rule 3.03(a)(5) says a lawyer shall not offer or use evidence that the lawyer knows to be false. These are but a few examples of “rules” that require lawyers to be honest. Given the fact that the oath we take in order to be admitted to practice requires us to “honestly demean” ourselves in the practice of law, we should not need to be repeatedly reminded to be honest. Of course integrity goes hand in hand with honesty. And then there is civility. To me civility or the lack thereof can be characterized simply by good or bad behavior, as the case may be. Supreme Court Chief Justice Warren Berger once said, “lawyers who know how to think, but have not learned how to behave are a menace and a liability, not an asset, to the administration of justice.” In other words, being a good attorney should not only mean you are well educated, it should also mean you know how to behave professionally and with integrity. Like we hear so often, it boils down to the rules we learned in kindergarten: do not lie, do not cheat, do not steal and do not hit anybody. These same concepts are integrated into The Texas Lawyer’s Creed—A Mandate for Professionalism, which was adopted by the Supreme Court of Texas and The Court of Criminal Appeals in 1989. It was adopted at a time when the courts recognized that bad behavior of lawyers was beginning to erode the faith of the public in our justice system. Unfortunately, many people were beginning to believe that lawyers were obstructionists, used abusive tactics and lied or “manipulated” the truth in order to achieve the goals of their clients. The courts adopted the Creed to help restore and maintain the confidence of the public in the legal system and to remind lawyers of their ethical and professional obligations. The Creed, which is aspirational, sets forth our responsibility as lawyers to the legal system, to our clients, to other lawyers and to judges and the courts. It contains specific actions which are essential to preserve the public trust in our justice system and the integrity of the rule of law. Last month in the Texas Bar Journal, State Bar President Buck Files wrote an article about the renewal of civility. In his article, he talked about the importance of the Creed to our profession and to the restoration of confidence of the public in lawyers and the legal system. Buck recommended that a copy of the Creed be displayed in all courtrooms and he is having posters made for that purpose. I would suggest that the Creed also be posted in all of our law offices as a constant reminder of the importance of professionalism to the practice of law, to the public and to our system of justice. It is up to each of us to do our part to ensure that the practice of law continues to be HN a privilege and a noble profession.
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: Sally L. Crawford President-Elect: Scott M. McElhaney First Vice President: Brad C. Weber Second Vice President: Jerry C. Alexander Secretary-Treasurer: John A. Goren Immediate Past President: Paul K. Stafford Directors: A. Shonn Brown (At-Large), Rob Crain (Chair), Wm. Frank Carroll, Hon. King Fifer (Judicial At-Large), Laura Benitez Geisler, Hon. Martin Hoffman, Michael K. Hurst (Vice Chair), Michele Wong Krause, Angelina LaPenotiere (President, Dallas Hispanic Bar Association), Karen McCloud, Christina McCracken (At-Large), Mandy Price (President, J.L. Turner Legal Association), Sarah Rogers (President, Dallas Association of Young Lawyers), Mary Scott, Scott Stolley, Diane M. Sumoski, Robert L. Tobey, Aaron Tobin, Jennifer Wang (President, Dallas Asian American Bar Association). Advisory Directors: Tatiana Alexander (President-Elect, J.L. Turner Legal Association), Mey Ly (President-Elect, Dallas Association of Young Lawyers), Sakina Rasheed (PresidentElect, Dallas Asian American Bar Association), Elisabeth A. Wilson (President-Elect, Dallas Hispanic Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Douglas S. Lang Directors, State Bar of Texas: Lawrence Boyd, Christina Melton Crain, Andy Payne, Frank E. Stevenson, II, Ike Vanden Eykel HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Display Advertising: Karla Howes, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Lea Dearing and Dawn Fowler Vice-Chairs: Jared Slade Members: Timothy Ackermann, Kevin Afghani, Vincent Allen, Natalie Arbaugh, Favad Bajaria, Matthew Baker, Martha Beard-Duncan, Jody Bishop, Lisa Blackburn, Jason Bloom, Eric Blue, Bobby Braxton, Kandice Bridges, William Brown, Eliot Burriss, Stacie Cargill, Lance Caughfield, Sally Crawford, James Crewse, Joel Crouch, G. Edel Cuadra, Walter Dean, David Dodds, Adam Dougherty, David Dummer, Paul Garrett, Megan George, Jenny Givens, Jennifer Gjesvold, Melanie Glover, James Gourley, Virginia Greenberg, Jerry Hall, Susan Halpern, William Hammel, Jeremy Hawpe, Zachary Hilton, Kelli Hinson, Zachary Hoard, Tyler Hokanson, James Holbrook III, Ezra Hood, Mary Louise Hopson, Dyan House, Michael Hurst, Michelle Jacobs, Jessica Janicek, Taylor Jerri, Soji John, Douglas Johnson, Adam Kielich, Robert Kisselburgh, Lissa Kivett, Michelle Koledi, Susan Kravik, Shruti Krishnan, Norman Lofgren, Mallory Loudenback, Sixuan Lu, Margaret Lyle, Andrew Mayo, Ashley Mayya, Jennifer McCollum, Scott McElhaney, Elizabeth McShan, John McShane, Paige Montgomery, Nick Nelson, Yvette Ostolaza, Seth Phillips, Kirk Pittard, Irina Plumlee, Laura Anne Pohli, Robert Ramage, Gabriel Reyes, Morgan Richards, Richard Salgado, Brendan Sansivero, Brooke Schultz, Isabel Segarra, Yon Sohn, Thad Spalding, Paul K. Stafford, Jacob Stasny, Jeanette Stecker, John Stevenson, Scott Stolley, Brian Stork, Michael Sukenik, Christine Tamer, Kristopher Tate, Robert Tobey, Pryce Tucker, David Urteago, Peter S. Vogel, Suzanne Westerheim and Andrew Wirmani DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Coordinator: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Amy E. Smith Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Carmen Perales, Andrew Musquiz, Tina Douglas Program Assistant: Patsy Quinn Copyright Dallas Bar Association 2013. 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.
June 2 0 1 3
Focus
D al l as Bar A ssoci ati on l Headnotes 5
International/Franchise & Distribution Law
Protecting the Franchise Against Unfair Competition by Cheryl Mullin and Christianne Edlund
Because the franchise relationship is built on a foundation of sharing trade secrets, confidential information and customer goodwill, the standard franchise agreement will contain covenants not to compete that prohibit a franchisee’s involvement in a competitive business during the franchise term and for a number of years following termination or expiration of the franchise term. During the franchise term, the geographic limit on the restriction is very broad, and typically includes any jurisdiction in which the franchisor or its franchisees conduct business. A geographically broad restriction is reasonable in this context because a franchisee has continuing access to a franchisor’s trade secrets, confidential information and beneficial supplier relationships throughout the franchise term. A franchisee should not be able to divert these benefits to another business that pays no royalties to the franchisor, or to use those assets to unfairly compete with other franchisees or company-owned businesses. For a limited time after the franchise relationship ends, most franchise agreements prohibit a franchisee from operating a competing business at the former franchised location or within a certain distance from other franchisedor company-owned locations. Preventing the former franchisee from continuing to operate a business at the former franchised location gives the franchisor some time to refranchise, and to protect its goodwill in the former
franchisee’s trade area while the new franchisee gets established. Preventing the former franchisee from operating a business near other franchisees protects other franchisees from unfair competition. Enforcement of a franchise agreement noncompete provision is governed by the Texas Covenants Not to Compete Act, which provides for enforcement if the covenant is “ancillary to or part of an otherwise enforceable agreement at the time the agreement is made to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.” In the franchise context, examples of legitimate protectable interests include business goodwill, trade secrets and other confidential or proprietary information. The Act further provides that if the covenant is ancillary to a personal services agreement (in other words, an employment contract), the promisee has the burden of proving that it meets the applicable enforcement criteria. If the agreement has a different primary purpose (such as sale of a business), it is the promisor’s burden to show that the covenant fails to meet those criteria. Although the Texas Supreme Court has not directly addressed this issue in the context of franchising, other Texas courts have held that a franchise agreement is not a personal services contract and, therefore, it is the franchisee’s burden to prove that a covenant is unenforceable.
When seeking to enforce a covenant not to compete in a franchise agreement, it is generally the franchisor’s burden to prove the elements necessary for an injunction, including that irreparable injury will result if injunctive relief does not issue. Although a typical franchise agreement will state that violation of the covenant not to compete will result in irreparable harm, contractual stipulations are insufficient, by themselves, to support a finding of irreparable harm. Because injunctive relief is an extraordinary remedy, courts have held that contractual stipulations are merely one factor to be examined in making the irreparable harm determination. Finally, it is important to determine who is subject to the obligation. Noncompete provisions bind the “franchisee” and often purport to bind the franchisee’s “owners” (which, to create a binding agreement, requires the owner’s signature on a written obligation). Sometimes, they will purport to extend
to related parties, such as a franchisee’s family members, who are not parties to the franchise agreement. Although such a provision may not create an enforceable obligation against the nonsignatory, the fact that the nonsignatory is involved in a competing business may provide independent grounds for termination of the franchise agreement. Moreover, if a nonsignatory conspires, acts in concert or aids and abets the franchisee’s breach of a covenant not to compete, a court is likely to enjoin the tortious conduct. Covenants not to compete are necessary to protect the franchise system from unfair competition, and will be enforced to the extent necessary to protect the franchisor’s legitimate business interests as determined on a HN case by case basis. Cheryl Mullin is Founding Shareholder at Mullin Law, PC and can be reached at Cheryl.Mullin@mullinlawpc.com. Christianne Edlund is Managing Attorney at Mullin Law, PC and can be reached at Christianne.Edlund@mullinlawpc.com.
Summer Law Clerks Pro Bono Luncheon Friday, June 7, Noon at Belo Learn about the many pro bono opportunities in Dallas. Speakers: Victoria Neave, Ebony Rivon and Hon. Craig Smith Co-sponsored by the DBA Pro Bono Committee and DVAP. RSVP to perkinsa@lanwt.org. (MCLE 1.00).
Estate, Trust and Guardianship Litigation
aggressive
adj. marked by driving forceful energy or initiative.
Ford+Bergner LLP
Don D. Ford III | Managing Partner Richard Bergner | Partner Board Certified in Estate Planning and Probate
Ford Bergner LLP
Ford+Bergner LLP
5151 San Felipe • Suite 1950 • Houston, TX 77056 T: 713.260.3926 • F: 713.260.3903
Ford+Bergner Headnotes Ad V4.indd 1
For over 13 years, Ford+Bergner LLP has aggressively represented clients throughout Texas in complex estate, trust, and guardianship litigation matters at both the trial and appellate levels.
Aaron Dobbs | Associate
Christopher Heald | Associate
Zac Copp | Of Counsel
With the recent expansion of our expertise in commercial and oil & gas matters, we have increased our commitment to serving the needs of our estate, trust, and guardianship clients regardless of the complexity of their litigation needs.
www.fordbergner.com
901 Main St. • Suite 6300 • Dallas, TX 75202 T: 214.389.0887 • F: 214.389.0888
4/15/13 12:55 PM
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
June 2013
2013 DBA 100 CLUB - Get on the LIST! The Dallas Bar Association would like to recognize the following Firms, Government agencies, and corporate legal departments for their support of the DBA along with their commitment to the advancement of the legal profession and the betterment of the community. The DBA 100 Club is a distinguished membership recognition category that consists of Firms and Government agencies with two or more attorneys as well as corporate legal departments that have 100% membership in the DBA. Recognition is given to the 2013 DBA 100 Club members in our June, July and August Headnotes and at our Annual meeting in November. Not a DBA 100 Club member yet? This is the perfect time to encourage your newly hired attorneys to join the DBA and take advantage of our many member benefits—such as 400 FREE CLE programs each year, networking opportunities, community projects and many other member benefits as well as the opportunity to qualify for the DBA 100 Club. Please note that the DBA 100 Club is open for renewal annually to every firm. We do not automatically renew a firm’s membership due to changes in firm rosters from year to year. How do you get on the list? To become a 2013 DBA 100 Club member, please submit your request via email and include a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and if you qualify, your firm will be added to the 2013 DBA 100 Club! If we receive your list by June 7th, your firm will be included on the July and August DBA 100 Club recognition list in Headnotes. Send in your list TODAY! DBA 100 Club Members As of May 15, 2013 Law Firms with 2 to 5 Attorneys A. William Arnold III & Associates, P.C. Ackerman & Savage, L.L.P. Adair, Morris & Osborn, P.C. Aldous Law Firm Alexander Dubose & Townsend LLP Anderson & Brocious P.C. Barnett • McNair • Hall, L.L.P. Blankenship, Wiland & O’Connor, P.C. Broden & Mickelsen Buchanan & Bellan, L.L.P. Busch Ruotolo Simpson LLP Calabrese Huff, P.C. Calhoun Pilgrim LLP Campbell & Chadwick, P.C. Carlock-Gormley-Hight Clark Law Firm Coffin & Driver, PLLC Collins Law Group PC Crain Lewis, L.L.P. Curtis | Castillo PC Dallas Baptist University Daniel Sheehan & Associates, LLP Dement, Roach & Stern, PLLC ELROD, PLLC Grogan & Brawner P.C. Gunnstaks Law Office
Hamilton & Squibb, LLP Hance | Wickham, P.C. Harper | Washam LLP Hollingsworth Walker Horton & Archibald, P.C. Hunt | Ham, PLLC John R. Vermillion & Associates, LLC Johnson & Silver, LLP Johnson | Broome, P.C. Johnston u Tobey, P.C. Kabani & Kabani, PLLC Kapioltas & Forni, PLLC Karel & Hicks, P.C. Keane, Fowler & Donohue Kelly, Durham & Pittard, LLP Kish & Manktelow, P.C. Koning Rubarts LLP Law Offices of Richard A. Gump, Jr., P.C. Lidji Dorey & Hooper Little Pedersen Fankhauser LLP Maris & Lanier, P.C. Marshall & Kellow, LLP McShane & Davis, L.L.P. McTaggart & Beasley, PLLC Milby, PLLC Mincey-Carter, PC Raggio & Raggio, P.L.L.C. Ramirez & Associates, P.C. Rasansky Law Firm Ray & Thatcher, Attorneys at Law PC
Schubert & Evans, P.C. Smith, Stern, Friedman & Nelms, P.C. Spencer Law, P.C. The Elliott Law Firm, P.C. The Law Offices of Shanna Nugent, P.C. Thomas, Cinclair & Beuttenmuller, PC Tillman Betanzos LLP Winn, Beaudry & Winn, L.L.P. Woodward & Shaw Woolley <> Wilson, LLP. Zaby & Associates Law Firms with 6 or More Attorneys Ackels & Ackels, L.L.P. Addison Law Firm P.C. Asiatico & Associates Baker Botts, L.L.P. Baker & McKenzie LLP Beirne, Maynard & Parsons, L.L.P. Bell Nunnally & Martin LLP Ben Abbott, P.C. Boyle & Lowry, L.L.P. Brousseau Graham & Massingill Brown & Hofmeister, L.L.P. Burford & Ryburn, L.L.P. Carrington, Coleman, Sloman & Blumenthal, L.L.P. Carstens & Cahoon, LLP Cowles & Thompson, P.C. Cox Smith
The tales we could tell, but don’t … ever. Your clients’ personal and business secrets are rare keepsakes for veteran family lawyer Karen Turner. For more than 23 years in family law, she has been professional, effective and discreet. Protect your clients by referring to her today. Karen B. Turner, PLLC 3710 Rawlins, Suite 1230 Dallas, Texas 75219 214-780-0646
info@karenturnerlaw.com www.karenturnerlaw.com
Board Certified in Family Law, Texas Board of Legal Specialization (since 1994)
David, Goodman & Madole, P.C. Deans & Lyons, LLP Estes Okon Thorne & Carr PLLC Fee, Smith, Sharp & Vitullo, L.L.P. Fletcher, Farley, Shipman & Salinas, LLP Ford, Nassen & Baldwin, P.C. Fulbright & Jaworski L.L.P. Godwin Lewis PC Gordon & Rees, LLP Gruber Hurst Johansen Hail Shank LLP Hankinson LLP Hermes Sargent Bates, LLP Hiersche, Hayward, Drakeley & Urbach, P.C. Higier Allen Lautin, P.C. Johnson Jordan Cresswell Monk, PC Klemchuk Kubasta LLP KoonsFuller Kroney Morse Lan, PC Langley Weinstein LLP Locke Lord LLP Loewinsohn Flegle Deary L.L.P. McCurley, Orsinger, McCurley, Nelson & Downing, L.L.P. McElree | Smith McGuire, Craddock & Strother, P.C. McKool Smith P.C. Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. Munsch Hardt Kopf & Harr, P.C.
Passman & Jones, P.C. Sayles Werbner, P.C. Shackelford, Melton & McKinley, LLP Sorrels, Udashen & Anton Staubus & Randall, L.L.P. Stinnett Thiebaud & Remington L.L.P. Susman Godfrey L.L.P. The Bassett Firm, P.C. The Law Offices of Frank L. Branson, P.C. Thompson & Knight LLP VernerBrumley Vinson & Elkins LLP Winstead PC Corporate Legal Departments Alon USA Energy Inc. Austin Industries, Inc. Baptist Foundation of Texas Belo Corp. Front Burner Restaurants, LP Genesco Sports Enterprises MetroPCS Communications, Inc. Morgan Management Corporation Neuberger Berman ORIX USA Corporation Tenaska Power Services Co. Government Agencies City of Irving
J une 2 0 1 3
D al l as Bar A ssoci ati on l Headnotes 7
The shareholders, attorneys and staff of KoonsFuller, P.C. are both excited and saddened to announce that one of their long time litigation stars, Kevin Fuller, is hanging up his holster and transforming his practice from that of a seasoned and battle tested trial lawyer to a mediation practice as a creative and problem solving mediator and collaborative lawyer. With our full support, encouragement and best wishes, Kevin will be setting up his mediation practice, Fuller Mediations, separate and independent from KoonsFuller, P.C. At Kevin’s new practice, Fuller Mediations, he will serve in not only high stakes family law cases but also cases involving broken business relationships and business “divorces.” Kevin will be offering the following services:
Mediator in traditional litigation cases (full day, half day or hourly) Mediator/settlement facilitator in collaborative law/ cooperative cases Parties only mediation (pre-litigation) Settlement consultant for lawyers/clients regarding settlement ideas/concepts/strategies Collaborative lawyer in collaborative law cases
With Kevin’s long history in both the courtroom and at the negotiating table we are sure he will prove to be an outstanding problem solver as a mediator. Kevin will mediate, facilitate, consult and collaborate, but no longer litigate. You can contact Kevin at: Fuller Mediations 2912 Maple Avenue, Suites C&D Dallas, Texas 75201 Phone: 214-954-1212 Fax: 214-954-1213 kevin@fullermediations.com | www.fullermediations.com KoonsFuller, P.C. will remain, as it has always been - a house of advocacy with a deep bench of experienced attorneys with the talent and resources to meet any family law challenge.
Dallas Denton Houston Plano Southlake www.koonsfuller.com
8 He a d n o t e s l D a l l a s B a r A s s o ciation
June 2013
DBA and H|S|N|O On May 2, more than 100 golfers participated in the 22nd Annual DBA and H|S|N|O Golf Classic at Brookhaven Country Club to benefit the Dallas Volunteer Attorney Program and Legal Aid of NorthWest Texas. All proceeds will be used to help provide pro bono legal services to low-income residents of Dallas. Thank you to all of our sponsors! We appreciate you!
THANK YOU
H|S|N|O
OUR TITLE SPONSOR • Founded in 1973, HSNO is a leading internationally recognized accounting and consulting firm • Concentrating on forensic accounting and technology, litigation support and insurance claims • Ranked by Accounting Today as one of the Top 100 Accounting Firms 15601 Dallas Parkway, Suite 1050 Addison, TX 75001 (972) 980-5060 www.hsno.com
J une 2 0 1 3
D al l as Bar A ssoci ati on l Headnotes 9
Pro Bono Golf Tournament
“Loss of Profits” or “Loss of Value:” Which Measure is Appropriate? Karl D. Weisheit
The Question: The question of which measure of loss is appropriate, “Loss of Profits” or “Loss of Value,” has plagued many a lawyer. Loss of Profits has been the go to measure of a loss for many years, though Loss of Value has become more popular in recent years. This begs the question, “Which measure of loss is more appropriate?” The Answer: The answer (an expert’s disclaimer), of course, is, “It depends.” It depends on the jurisdiction and the facts and circumstances of the loss. Now that I have gotten the disclaimer out of the way, the real answer, in general, starts with another question, “Does the loss affect the target business temporarily or permanently?” If the loss is expected to affect the target business on a temporary basis, Loss of Profits is typically used as the measure of loss. If the loss is expected to affect the target business on a permanent basis, Loss of Value is typically used as the measure of loss. Additionally, if the target business suffers a partial or total destruction, a Loss of Value calculation would typically be in order. (Exceptions do exist to this prem-
ise, particularly in contract situations, such as insurance agreements, where the insurance policy may dictate a Loss of Profits calculation even in a business destruction situation.) And, sometimes these two methods are used together if there is a situation where you have a Loss of Profits for a temporary period of time followed by a Loss of Value for a permanent period of time. The Explanation: Loss of Profits is typically determined by calculating the difference between the income stream that would have been earned “but for” the loss event and the income stream actually earned. Loss of Value is typically determined by calculating the difference between the values of the target business immediately prior to the loss event and immediately subsequent to the loss event. The Similarities: In each measure of loss case, the analyst must determine which income stream to utilize in calculating the loss. Loss of Profits is often calculated utilizing net income (or profits) as the lost income stream, whereas Loss of Value calculations are typically calculated using some
form of cash flows. The facts and circumstances surrounding the loss will determine the income stream to utilize. When calculating Loss of Profits or Loss of Value, analysts typically perform projections utilizing income and expenses in the target business. Those income and expense projections are typically the same whether calculating Loss of Profits or Loss of Value. The Differences: One of the major differences between a Loss of Profits calculation and a Loss of Value calculation is that the Loss of Profits calculation, depending on the jurisdiction, is normally calculated utilizing information related to the target business that is known or knowable (often called the “Body of Knowledge”) up to the date of trial. Whereas a Loss of Value calculation, because it is a value calculation immediately prior and subsequent to the loss event, is normally calculated without the benefit of hindsight or the actual performance of the target business subsequent to the loss event. Another difference between the calculations of Loss of Profits and Loss of Value may be in the discount rate utilized. In a Loss of Profits calculation where
the period of loss is expected to extend beyond the date of trial, Loss of Profits expected to be incurred subsequent to the date of trial are usually discounted to present value as of the date of trial. In a Loss of Value calculation, income and expense projections are usually discounted to present value as of the date of the valuation. The discount rate utilized in calculations for Loss of Profits and Loss of Value may be the same or different depending on the type of income stream utilized in each of the calculations. Different utilizations of income streams, discount rates, and the Body of Knowledge, can create significant differences in the measurement of the loss. The Conclusion: Many factors go into the “Loss of Profits” versus “Loss of Value” measure of loss decision. Consult your favorite financial damages expert to help you make the decision on which one, or both, is the right one for you to pursue in your specific case in order to calculate financial losses to a reasonable degree of certainty. HN Karl D. Weisheit, CPA, CFF, CVA is a forensic accounting expert at HSNO in Dallas, Texas. He can be reached directly at (972) 980-5095 or at kweisheit@hsno.com.
10 H e a d n o t e s l D a l l a s B a r A s s o ciation
June 2013
Accepting Credit Cards on the Go by Amy Porter
Hundreds of professions are now taking advantage of smartphone and tablet technology to accept payments on the go. If handled correctly, attorneys can take advantage of the technology and convenience of using their smartphones and tablets to accept credit cards through new payment applications. If you decide to collect payments on the go, you need to take time to understand the options available for mobile payments. There are two main payment services available to process credit cards: traditional merchant accounts and the newer “aggregator” programs. It is important to know the difference between using a bona fide merchant account and a payment aggregator. Both options allow you to use a mobile credit card reader (i.e., a swiping device) in conjunction with an iPhone, Android phone, or tablet, but the method for processing the actual payment is drastically different, with advantages and disadvantages to both.
Aggregator Accounts
Prior to July 2011, Visa and MasterCard prohibited the practice of aggregating transactions, which is the commingling of transactions (think payments) from multiple merchants (think businesses) within one “master” merchant account. However, this is no longer the case, and aggregator services such as Square (www.square.com) have appeared to take advantage of this new capability. Once placed into this master merchant account, payments are sent out to the individual businesses based on approval by the
aggregator. This aggregation model allows a provider such as Square to minimize many of the per-account fees charged by Visa, MasterCard, and the other card brands, creating a more affordable payment option for many small businesses. A number of the newer mobile payment solutions now provide a merchant account (discussed in more detail below) for each business rather than using the aggregator model. You will need to check with the mobile providers you are considering as to the specifics of whether they use an aggregation model or a traditional merchant account model. To use an aggregator program, the card brands limit the credit card processing of an individual business to less than $8,000 per month. Also, because the payment aggregator accepts liability and risk on all transactions in their master account, they generally limit the size of individual transactions as well. For example, the popular payment option offered by Square is based on a payment aggregator model and, as of this writing, has a transaction limit of $400. Generally, if you exceed the parameters of an aggregator account, the service provider can hold the transaction for up to 30 days and usually charges a higher processing rate. Most of the mobile applications available through Apple’s iTunes Store are actually aggregator accounts, as opposed to traditional merchant accounts. Although aggregators frequently offer a quick online sign-up and lower (in some cases no) monthly fees, be sure to read the fine print. In addition to monthly transaction limits, which are sometimes as low as $1,000 per month, aggrega-
Professionalism Tip
Treat others as you want to be treated. Don’t ascribe base motives or ill will to adversaries. Accept that they have a different perspective on the dispute. Provided by the DBA Professionalism Committee
tors often charge materially higher processing rates when you run payments. In other words, the programs are “free” until you use the service.
Traditional Merchant Accounts
A traditional merchant account, on the other hand, is a one-to-one relationship between you and the credit card processor. Your account is based on the merit of your individual firm and your firm’s transaction history. As such, large transactions and higher processing volumes are generally allowed without delay of payment. Merchant accounts generally have a monthly fee, but the processing rates should be lower because law firms historically represent a lower risk to the provider and suffer lower incidents of fraud compared to other businesses. Also, if you follow your state guidelines for interest on lawyers trust accounts (IOLTA) and the American Bar Association’s Rules of Professional Conduct for processing payments, you will need the ability to separate earned and unearned fees/costs. Some traditional merchant account providers such as LawPay, LawCharge and others specifically work with law firms. Mobile technology is just one method to accept payments. A traditional account will also give you options for accepting payment in your office, over the phone, or through your firm website.
Points of Comparison
There are several common issues to consider when comparing mobile account options: Transaction limitations. Mobile aggregator programs are typically designed for smaller merchants who run smaller transactions. Again, some payment aggregators retain the right to hold larger charges or hold all or part of your total monthly volume, in many cases for 30 days or longer. Ability to separate earned and unearned fees. If your firm has the need to accept
credit card payments for advanced fees or to replenish client IOLTA accounts, it is recommended to process these transactions through a traditional account. A traditional merchant account, preferably a service designed to handle law firm merchants, can best protect fees and charges against your IOLTA deposit account. Security. When you accept payment from your clients, you also accept the responsibility for their credit card and personal information. The security of mobile payments and the various plug-in swiping devices has been widely debated by credit card professionals. Make certain the mobile device or method you choose fully encrypts the card information and transmits authorizations in a secure manner. When in doubt, ask if your provider is Payment Card Industry (PCI) Compliant. (For more details on compliance and best practices when handling credit card data, visit www. pcisecuritystandards.org.) Chargeback prevention. Mobile payments do not eliminate the need to document and get payment authorization from your clients. Regardless of the type of account used to process payments, attorneys should always be cognizant of the potential for cardholder disputes, commonly known as “chargebacks.” Your firm can easily defend chargebacks with proper documentation. Professionalism. Lastly, take a look at your overall billing and payment process to ensure you are creating a professional and positive client experience. The ability to accept credit card payments can greatly reduce delinquent accounts and collection efforts in your firm. By establishing either an aggregator service or opening a traditional merchant account, and using a mobile device to process your transactions, you get the best of both worlds. So go on, get HN out there, and get paid! Amy Porter is CEO of AffiniPay, a full-service bankcard processing company specializing in the legal industry. She can be reached at aporter@affinipay.com.
Member Benefit Provider
Trust
your transactions to the only merchant account recommended by over
60 bar associations!
Attract Clients Increase Business Control Cash Flow Reduce Collections Lower Fees up to 25%
LawPay credit card processing
AffiniPay is a registered ISO/MSP of Harris, N.A., Chicago, IL
866.376.0950
affiniscape.com/DallasBar
J une 2 0 1 3
Focus
Dal l as Bar A ssoci ati on l Headnotes 11
International/Franchise & Distribution Law
What Every Attorney Should Know About Franchise Law tions require that certain disclosures be made to prospective franchisees The concept of franchising dates and business opportunity purchasers back many centuries; however, what before a franchise is sold. There are we know today as franchising did not 23 required “Items” for disclosure. The develop until the early 1900s. Some disclosure document is referred to as of the earlier models were licensing the Franchise Disclosure Document or arrangements created by manufac- FDD. The FTC’s regulations apply to turers. Later, hotels were franchised. all franchises in the U.S. (subject to Franchising has developed exponen- certain limited exceptions), but do not tially since that time. Today, there are provide for any federal registration of the franchise or filing of the disclosure franchises in scores of industries. Franchising is highly regulated document, only disclosure. The FTC both at the state and federal level. also regulates business opportunities, Franchises face both specific regula- but franchisors are excluded from this tions and business opportunity regu- regulatory scheme. State Franchise Law. Fifteen states, lations. Moreover, there are two types excluding Texas, have some type of of regulatory schemes: (1) registration and disclosure laws that govern the franchise registration and/or disclosure offer and sale of franchises or business laws. These states do not have uniform opportunities; and (2) franchise rela- regulations in this regard. The states tionship laws that govern the ongoing have adopted the FDD format, but they relationship between the parties. Some typically require additional state specific disclosures be added to the FDD. states have both regulatory schemes. The federal definition of a franchise About 20 states, excluding Texas, also includes the following elements: a con- have some type of franchise relationtinuing commercial relationship in ship law that regulates matters such as which (1) the franchisor grants fran- permissible grounds for termination or chisee the right to operate using fran- nonrenewal of the franchise, as well chisor’s trademarks; (2) the franchisor as required notice and cure periods for has the authority to exert a significant defaults. These laws will trump landegree of control over franchisee’s guage in the standard franchise agreemethod of operation; and (3) the fran- ment. State Business Opportunity Law. chisee pays $500 or more for the right to operate the franchise. 16 CFR Part About 25 states, including Texas, have 436.1(h). Numerous states also have laws requiring registration and/or disfranchise laws that define a “franchise” closure of business opportunity sales. The laws of most states with business a bit differently. Federal Franchise Law. The Fed- opportunity regulations provide an eral Trade Commission (FTC) is the exemption for franchises; however, the federal regulatory agency with juris- exemption is generally subject to cerdiction over franchises and business tain conditions. Some states require Final-MullinLaw-Ad-outl.pdf 1 5/13/13 the 4:19 PM filing of additional documentation opportunities. The FTC’s regulaby Earsa R. Jackson
C
M
Y
CM
MY
CY
CMY
K
in order to obtain the exemption. Determining the Governing State Law. A franchise transaction may be governed by the laws of more than one state. The possible applicable state laws include: (1) the state of the franchisor’s domicile or where its sales office is located; (2) the state where the prospective franchisee resides or is domiciled; (3) the state where the prospective franchisee’s business is or will be located; (4) the state(s) to be included in the prospective franchisee’s territory; (5) the state where the offer of a franchise is made; and (6) the state(s) where any partner or joint venturer of the prospective franchisee resides or is domiciled. Penalties for Noncompliance. Many companies have attempted to structure models to avoid franchise implications. Others have merely called the relationship something else. Regardless of what the relationship is called by the parties, courts will look at the
actual relationship and transaction to determine whether a franchise exists. Noncompliance with franchise laws carries serious consequences such as civil penalties, criminal fines, and jail sentences. In some states, the violation of the state franchise law is a misdemeanor. In other states, it is considered to be a fraudulent and deceptive practice. Under the laws of some states, franchisees affected by the illegal conduct of a franchisor have special rights, including the right to terminate the franchise agreement and receive reimbursement of the fees paid to the franchisor, and/or the recovery of actual damages suffered by the franchisee as a result of the illegal conduct, plus a penalty of up to three times the amount of actual damages. As with most areas of law, ignorance of franchise laws does HN not excuse illegal conduct. Earsa R. Jackson is a Partner at Strasburger & Price, LLP. She can be reached at Earsa.jackson@strasburger.com.
12 H e a d n o t e s l D a l l a s B a r A s s o ciation
June 2013
HIPAA: Compliance is Important by Melinda Eitzen
HIPAA (Health Insurance Portability and Accountability Act) applies to many of our cases in family law, personal-injury, criminal law and other areas. Recently, judges have sanctioned some lawyers for incorrectly seeking medical information. There a couple of simple rules to remember to avoid this problem.. Rule 1: Secure a HIPPA release before accepting documents. A lawyer issues a trial subpoena to a “covered entity” (counselor, doctor etc.) under HIPAA. Prior to the hearing, the doctor contacts the serving lawyer to ask if she can avoid appearing at the hearing by sending the medical records. In this example the covered entity does not have a HIPAA release from the patient. The problem with this scenario is that we are not required to send copies of our trial subpoenas to opposing counsel and opposing counsel likely does not have notice that the records are being sought. The covered entity should not release those records with-
out a HIPAA release; however, the provider may mistakenly believe that the subpoena affords the provider permission to release those records. The lawyer, representing a party in the suit and not the covered entity has no duty to advise them otherwise. Now, the lawyer, by accepting the records prior to the hearing has circumvented the rules and protections provided by the Texas Rules of Civil Procedure. The opposing counsel never had an opportunity to object to his client’s records being released. Remember that the Rules of Civil Procedure are designed to make sure that the opposing party, and the person or entity being subpoenaed, have proper notice and opportunity to object prior to medical records being provided. Rule 2: Recognize that HIPPA may provide for different notice requirements than those found in our courts’ procedural rules. A lawyer subpoenas a doctor to a hearing and requests that the doctor provide medical records from the hospital. The lawyer gives the doctor only four days’ notice of the hearing. Texas Administrative Code 165.2 pro-
SUMMER LAW INTERN PROGRAM NEEDS YOUR HELP
Interns For Hire
Need some quality help this summer? Let our Summer Law Intern Program help you fill the position – Part-time or Full-time - either 4-wks or 8wks of our full program – the choice is yours!
vides the medical doctor a right to 15 days’ notice; four days’ notice is not adequate. Note that this provision does not appear to apply to all covered entities under HIPAA but does apply to physicians. One possible solution is, instead of issuing a subpoena for the medical records for the hearing, move for an order requiring the party whose records are sought to sign a proper HIPAA release. Rule 3: Act quickly to prevent the release of records if necessary. Your client’s medical records are being sought, but your client does not want them to be released. The medical provider has received a subpoena of which you, the lawyer, are aware. The lawyer needs to make the medical provider aware immediately of the client’s objection to the release of the records. Furthermore, the lawyer needs to file a motion to quash the subpoena with the court and force a hearing on the issue. There are several options available to the court, including: 1) Prohibiting release of the medical records; 2) Allowing a release of the records but only to the judge for in-camera inspection; 3) Allowing only a portion of the records to be released; and/ or 4) Allowing the records or a portion of the records to be released but only with a confidentiality order in place. Rule 4: Only share medical information if . . . If you represent a healthcare provider you should instruct your client,
the medical provider, not to speak to anyone about their patient or release records without either 1) a proper HIPAA release signed by the patient or 2) an order signed by a judge ordering the medical provider to release the documents. Typically in this instance, a subpoena is not an order. Rule 5: Not all releases are proper releases—make sure yours are. If you are using a HIPAA release make sure that it is a proper HIPAA release. All releases are not created equal. The law has very specific requirements regarding what should and should not be included in a HIPAA release. For example, it must have a specific end date. It must have a separate paragraph specifically stating that they medical provider can or cannot release information about substance abuse. It must have a separate paragraph stating that the medical provider can or cannot release information regarding the patient’s HIV status. It must specifically state by name of the person to whom the information can be released and for what purpose. Failure to properly comply with HIPAA can result in fines and in extreme cases, criminal penalties. In addition, no one wants to be sanctioned by a judge. Following the tips above will save you time, money and HN aggravation. Melinda Eitzen practices family law at Duffee+Eitzen and can be reached at meitzen@duffee-eitzen.com.
Probate Section Pro Bono Award
For more information, please contact asmith@dallasbar.org or visit www.dallasbar.org/summerlawinternprogram.
This O d Dog Happens To Know A Few Tricks.
Gregory Sampson (left), of Looper, Reed & McGraw, P.C., pictured with Judge Nikki DeShazo, received the 2013 Nikki DeShazo Pro Bono Award from the DBA Probate, Trusts & Estates Section.
Rely on a trial lawyer with 40 years of experience and 175 trials. When your case needs to be mediated, call Al Ellis, a trial lawyer who has the experience to help you creatively resolve any dispute. His vast experience in the courtroom gives him comprehensive insight that allows him to understand the different perspectives of each case. Al is one of only 500 U.S. members of the International Academy of Trial Lawyers, and is a former President of the Dallas Bar Association — evidence that Al has earned the respect of peers on both sides of the docket. Once Al gets his teeth into a case, he won’t let go, working tirelessly until he negotiates a fair, mutually agreeable deal. When it’s time for mediation, there’s no one better to have at your side.
Al Ellis
T R I A L L AW Y E R / M E D I AT O R Sommerman & Quesada, L.L.P. 214.720.0720 | Dallas, TX al@textrial.com
JRFRIM_Ad2012.indd 1
10/9/12 10:39 AM
J une 2 0 1 3
Focus
Dal l as Bar A ssoci ati on l Headnotes 13
International/Franchise & Distribution Law
Bankruptcy and the Franchise Agreement by Jason B. Binford
The principal issue in any bankruptcy case involving franchise issues will be the effect of the filing on the franchise agreement. As with most contracts, the party filing bankruptcy— the debtor—has two options. The debtor may assume the franchise agreement, obligating the debtor to pay all past due amounts and to continue performing for the agreement’s remaining term. Alternatively, the debtor may reject the franchise agreement, allowing the debtor to walk away from its obligations under the agreement and generally leaving the non-debtor party with only an unsecured claim in the bankruptcy case, often payable at pennies on the dollar. The nature of a franchise agreement adds an extra layer of complication to the assumption/rejection framework. By definition, a franchise agreement involves a trademark license. The effect of rejecting a contract that includes a trademark license will depend on whether the debtor is the licensee (i.e., the franchisee) or the licensor (i.e., the franchisor). A franchisee’s rejection of a trademark license follows the normal contract rules: the franchisee loses all rights under the agreement—including the right to use the trademark—and the franchisor files a claim in the bankruptcy case for damages resulting from the rejection. If the franchisor is the debtor, rejection of the trademark license may not follow this well-worn path. The Bankruptcy Code provides protection to licensees of “intellectual property”
when the licensor files bankruptcy and attempts to reject the license. The policy reasoning is that—since the licensee’s business very often centers on the license—permitting a rejection under the normal framework would immediately drive the franchisee out of business. Bankruptcy Code section 365(n) provides that, upon rejection of such a license, a licensee is presented with a choice. The licensee may follow the normal rules by treating the license as terminated and filing a claim. Alternatively, the licensee may elect to continue using the license, subject to certain restrictions, for the remainder of the term, notwithstanding that the licensor rejected the license. Unfortunately for franchisees, case law has not made clear whether Section 365(n) applies to trademark licenses. Specifically, Section 365(n) relies upon the definition of “intellectual property,” set forth in Section 101(35A), which excludes trademarks. Therefore, while patent and copyright licensees clearly have the right to make the Section 365(n) election, the rights of trademark licensees are less clear. Franchisees wishing to make the Section 365(n) election typically will walk the bankruptcy court through the potentially devastating effect of rejection on the franchisee’s business and the policy that Section 365(n) was enacted to protect against such harsh effects. The fact that a franchise agreement involves a trademark license may also complicate a franchisee’s attempt to assume and assign the franchise agreement in the bankruptcy case. The general bankruptcy rule is that provi-
sions in a contract prohibiting assignment will not be enforced. The policy reasoning is that assigning a valuable contract may be a significant source of recovery to the debtor’s creditors, and the non-debtor party to the contract should not be given the unilateral right to preclude such recovery. The exception to this general rule provides that contractual anti-assignment provisions will be enforced if “applicable law” excuses the non-debtor party to the contract from accepting performance from anyone other than the debtor. The classic example of such applicable law is state contract law governing personal service contracts. However, in addition to personal service contract law, many courts have included federal trademark law within this exception to the general rule. Because trademark law generally precludes assignment of the license without licensor consent, this interpretation would preclude debtor franchisees from assuming and assigning the franchise agreement over the franchi-
sor’s objection. There is a basis for a franchisee to make the argument that trademark law should not be included within the exception regarding the enforcement of anti-assignment provisions. Franchisees should be aware, however, that such an argument would be made against the majority viewpoint by courts that trademark licenses cannot be assigned in bankruptcy. A court’s finding that a trademark license is not assignable in bankruptcy could also, depending on the jurisdiction, lead a court to conclude that the license cannot even be assumed by the debtor licensee, whether or not the licensee seeks to assign the license. The inability to assume a franchise agreement typically would preclude any possibility of reorganization. How the applicable jurisdiction interprets this issue therefore is very significant for franchisees contemplating a bank HN ruptcy filing. Jason B. Binford is an associate at Kane Russell Coleman & Logan PC. He can be reached at jbinford@krcl.com.
Juvenile Delinquency Advanced Topics Spring Seminar June 6: MCLE 7.50 (Ethics 2.00); 8:25 a.m. to 5:00 p.m. June 7: MCLE 7.50 (Ethics 1.00); 8:25 a.m. to 5:15 p.m. For rates and registration information, log on to www.dallasbar.org Presented by the DBA Juvenile Justice Committee
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
June 2013
How To Deal with the Irascible Client by Elisa Maloff Reiter
I graduated from SMU School of Law in 1983. Pre-laptop. Pre-email. Pre-Skype. In days of yore, the irascible client presented him or herself with: 1. Multiple phone calls. 2. Many epistles. 3. Unannounced visits. 4. Contact with support staff that bordered on obsessive, and grew to verbal abuse. In 2013, thirty years after my graduation from law school, not much has changed. I remain a “beck and call” girl for many clients, who demand instant gratification. Available methods of contact may have changed with late night e-mail replacing letters or demands to Skype at 4 a.m. to accommodate a client’s schedule replacing unannounced visits, but the demands remain essentially the same. Balancing daily responsibility with the rigors of litigation may just push the average, reasonable, prudent person toward
irascible. Consider the following in respecting the demands on your time, the client’s time, and keeping either of you from lurching toward cantankerous: a. Listen carefully. Irascibility is most commonly a symptom of a deeper concern or issue. Clients often will reveal the underlying issue if you take the time, and make the effort, to listen carefully to their concerns. b. Do not argue. Client contact is about communication, not confrontation. c. Ask calm questions. Ascertain what can be done to identify real issues. d. Respect the client’s point of view. The litigant is likely stressed emotionally, financially and by the time demands of litigation. Needing a lawyer is, for many, an unusual experience fraught with many personal challenges. e. Be leery of clients’ requests to be a bookie. Practice law; do not quote odds or make guarantees just because you are asked. f. Make appropriate referrals. A men-
Our mediation office in Dallas, Texas serves clients in an atmosphere of fairness and excellence. Focused on Resolution
Contact Us
Mike McCullough works to resolve
Phone:
your case in a fair and efficient
www.McCulloughMediation.com
manner. You can trust our staff to
9400 N. Central Expwy., Suite 1305
serve with balance and respect.
Dallas, TX 75231
(214) 365-9000
tal health professional may help counsel with the client, and keep them focused. A forensic accountant can, for instance, assist the client in tracing a separate property claim. And you are not necessarily the best or most appropriate lawyer for every client; sometimes another member of the Bar is better suited, for whatever reason, to help. g. Give updates. Schedule conferences or dispatch email or other communication to assure that the client is up to date on the progress of the case. Regular communications are a cornerstone to a good client relationship and go a long way to reducing the likelihood that your client becomes irascible. h. Empathize. Attempt to understand the client’s frustration and confusion—and ensure that you can show what you have done to assuage their concerns. i. Measure your words. Even in the era of instant gratification, invoke the 24-hour rule, and do not immediately
respond. Doing so may allow you to be, in the words of Warren Cole, “responsive and not reactive.” And remember that not every email requires a response. j. Smile. Just like papa said, you catch more flies with honey than with vinegar. k. CYA. Document your file to reflect that what you are doing to keep up with and obviate your client’s concerns. Even better, send those updates to your client as part of your regular communications so that your client will know the efforts you are making to address his or her concerns. l. Terminate. End the relationship if you cannot use the above steps to preserve and foster a solid working relationship with the client. By following these steps, you hopefully can reduce the frequency of your experi HN ences with irascible clients. Elisa Maloff Reiter, Esq. is a solo practitioner, Board Certified in Family Law by the Texas Board of Legal Specialization. She can be reached at all hours at elisareiter@msn.com.
J une 2 0 1 3
Focus
Dal l as Bar A ssoci ati on l Headnotes 15
International/Franchise & Distribution Law
The International Distribution of Goods by Florentino Ramirez
Manufacturers continuously seek ways to expand the marketplace for their products in foreign countries. Some manufacturers experiment by investing and establishing a physical presence in foreign countries. Others develop a sales force consisting of independent sales persons who have the local contacts and are familiar with the local culture. This article is intended to generally address the second option and considerations in representing ‘Principals’ or ‘Sales Representatives’ when contracting with foreign counterparts. In the United States and Europe, this type of independent sales force is known as a Sales Representative or “Rep.” In Europe it is known as an “Agent.” While the general objective of Reps and Agents is the same—to get sales for their manufacturers (known as “Principals”) —their authority, duties and rights are distinguishable based on their country’s laws. In Mexico and other Latin American countries, parties are free to contractually define the authority of a sales representative, including setting the territory and the extent to which a representative may bind the Principal. However, in these countries a sales representative as an external business entity upon any termination of its agreements, if the termination results in a reduction in its personnel, will have to pay those terminated employees severance compensation based on their length of employment. Consequently, the representative will usually contractually provide that the Principal, upon termination of the sales representation will reimburse the representative for any resulting severance payments, which amounts can be shockingly high for the unfamiliar. The European Union (EU) has
adopted Directive 86/653/EEC (Directive) with the purpose of setting a minimum level of harmonization of the national laws of the EU States that are applicable to commercial Agents selling goods and their Principals. Each State retains the right to enact specific legislation concerning these relations, including setting the amount of compensation and the presumption of exclusivity of territory. An important feature of the European Agent is that it has the authority to negotiate a sale and bind the Principal without the Principals’ express consent. Therefore, caution must be used when retaining a European Agent. This authority may also impact compensation because the commission becomes due as soon as the sales transaction has or should have been executed by the Principal according to the agreement signed by the Agent for the Principal, or, as soon as it has been consummated by the customer ( for example if pre-payment is contractually required). Conversely, in the United States, the Sales Rep and Principal are free to contract as to when the commission is payable, which typically is after the customer pays the Principal. Moreover, upon termination, the European Agent is entitled to be “indemnified” or to be “compensated” by the Principal, depending upon the manner prescribed by the legislation of each Member State. Indemnity refers to payment with respect to the goodwill the agent accumulated during the contract term to which the Agent would be entitled if and to the extent it has brought new customers to the Principal or significantly increased the Principal’s business with the customers. Under the compensation rules, the European Agent is entitled to payment
Minority Clerkship Luncheon Friday, June 14, Noon at Belo
Panelists: Carlos Morales, Friedman & Feiger; Barbara Nicholas, Dallas County Criminal District Attorney’s Office; Victoria Nsikak, Law Clerk, Judge Renee Tolliver; Bill Richmond, Gruber Hurst Johansen Hail Shank; and Chalon Clark, Brown McCarroll (Moderator) For more information or to RSVP, e-mail bavina@dallasbar.org.
for the damage it suffers as result of the termination of the contract, in particular if the termination deprives the agent of the commissions which would have accrued to it while continuing to provide the Principal with the contractual benefit, or which have not enabled the Agent to amortize the costs and expenses it had incurred for the performance of the contract. On the other hand, contracts dealing with the U.S. Sales Reps are governed by the general contract law of each State, The U.S. Principal and Sales Rep are free to spell out the duties and scope of the Sales Rep’s role. Unlike the European Agent, it is well-accepted that a U.S. Rep does not have the legal authority to bind the Principal. Instead, its role is to solicit customers and orders, subject to the Principals’ approval. Terms as to when commissions are payable, their amounts and accountings are generally matters left to the agreement of the parties, as are provisions for the payment of commissions upon termination of the relationship. In the United States, 33 states have enacted legislation that protects Sales Reps in case of non-payment of commis-
sions. Some states provide a remedy only upon the termination or expiration of the agreement, while others apply protection only to written agreements. Texas’ commission protection law provides that a written agreement engaging a Rep to solicit orders within Texas must state the method of computation of the commission and when it is to be paid. The law sets venue in Texas, and provides that no provision of the law may be waived and that any contractual provision that attempts to subject the agreement to the laws of another state is void. Failure to pay the commissions when due, or within 30 days following termination of an oral agreement, gives rise to damages equal to three times the amount of commissions due, plus attorney fees and costs. A non-Texan Principal appoints the Texas Secretary of State HN as its agent for service. Florentino Ramirez is the founding Partner of Ramirez & Associates, P.C. and is a member of the 12-member Legal Working Group of the IUCABC Internationally United Commercial Agents and Brokers organization based in Amsterdam. He can be reached at framirez@ ramirezassociates.com.
NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/dallas-lawyer-referral-service or call (214) 220-7499.
If it’s a matter of
Wrongful Termination, Discrimination or Retaliation, we’re here to help.
Representing only individuals on a contingent fee basis. Advocating for employees from all walks of life. We appreciate your referrals.
3232 McKinney, Suite 700 | Dallas, Texas 75204 www.kendalllawgroup.com
|
214-744-3000
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
June 2013
LAW DAY 2013 Realizing the Dream: Equality for All
Each year, the American Bar Association sponsors Law Day, and regional bar associations, including the Dallas Bar Association, host various events, programs and contests to commemorate the chosen theme. Law Day not only educates students and citizens about our government, but also the legal system itself. One of its main goals is to focus students’ attention on important constitutional principles. As part of the DBA’s Law Day celebration, the association sponsors essay, art and photography competitions for Dallas ISD students in grades K-12. Here are some of this year’s winning entries, which depicted the Law Day theme of “Realizing the Dream: Equality for All.”
Maria Espinoza , 11th Grade First-Place Winner H. Grady Spruce High School
Eriana Colbert, 1st Grade First-Place Winner R.C. Burleson Elementary
Jasmine Medel, 3rd Grade First-Place Winner R.C. Burleson Elementary
The 2013 Texas Legal Malpractice & Lawyer Discipline is a practical and easy-to-use book that walks attorneys though the minefield of modern lawyering. It includes major developments over the past year, with explanatory commentary, practice tips, and helpful charts. Topics addressed:
appendix a
Chapter 1
Introduction
A Texas legend in luxury, hospitality and service. Conveniently located in the heart of the Dallas Arts District, The Fairmont Dallas American Bar Association Preferred Hotel offers luxurious hotel accommodations just blocks from Uptown, the Central Business
PROUD SUPPORTER OF
District and the Financial District. Minutes from fine dining, shopping, arts and entertainment, The Fairmont Dallas offers truly unrivalled presence and hospitality.
Discover a gem in the heart of the downtown Dallas Arts District, Hunt Institute located minutes Engineering & from the Central Business District and Uptown. The Fairmont is guest proud to welcome a new generation to the second Experience our new luxurious rooms and overof global $10leaders million in annual Humanity WeekEnjoy Engineering & Humanity Week. Wedining, salute you inmodern your efforts todecor end global poverty hotel upgrades. exceptional four-star and
through action. Together we will work to meet the challenges of the developing world. authentic Texas charm at this unforgettable downtown hotel. Whether you seek world-class shopping, culture and entertainment or simply a leisurely day by the pool, The Fairmont Dallas is a destination without equal. 1717 N Akard St. Dallas, Texas 75201 214.720.5290 www.fairmont.com/dallas
Rates available from $179 per night Promo Code: NABR To book a reservation, please visit fairmont.com/dallas or call 800-441-1414 and ask for the American Bar Association Rate.
Texas Disciplinary Rules of Professional Conduct
Chapter 2
appendix B
Guide to Lawyers' Duties and Liabilities
Texas Rules of Disciplinary Procedure [Post-2004]
Table of Cases
Order today by calling Chapter 3
Legal Malpractice in Texas
Chapter 4
appendix C The Texas Lawyer’s Creed
appendix d
800.756.8993 Disciplinary Rules for Lawyers — Texas Disciplinary Rules of Professional Conduct
Chapter 5
Texas Rules of Disciplinary Procedure
Texas Disciplinary Rules of Professional Conduct — Interpretive Comments appendix e
Supreme Court of Texas Board of Disciplinary Appeals Internal Procedural Rules
Chapter 6
appendix F
Texas Lawyer’s Creed
State Bar of Texas Pro Bono Policy
2013 Texas Legal Malpractice & Lawyer Discipline
E X P E R I E N C E T H E FA I R M O N T D A L L A S .
• New section on the statute of limitations with regards to the Texas Rules of Disciplinary Procedure. • New opinions from the Texas Supreme Court’s Professional Ethics Committee. • Over 50 new cases added to this year’s edition. • Other highlights include an addition to the Communication Section with the USSC case, Missouri v. Frye, 132 S.Ct. 1399 (2012). • Discussion of new cases concerning the civil and criminal barratry statutes. • Expanded coverage of the attorney-immunity doctrine. • Detailed case summaries on the expert testimony requirement with regards to the standard of care. • Updates on the causation element in legal malpractice cases, particularly the suit-within-a-suit requirement. • And more!
2013
Texas Legal Malpractice & Lawyer Discipline 12th edition
2013 Charles F. herring, Jr.
Only $115!
ABOUT THE AUTHOR: Charles F. Herring Jr., of Herring & Irwin, L.L.P. is an experienced litigator and an expert who has intensively studied the quirks of legal malpractice and lawyer discipline in Texas, including the Texas Disciplinary Rules of Professional Conduct. With years of writing and speaking both in court and at CLE programs, Herring understands how to communicate complicated legal issues simply, clearly and thoroughly. He chaired the State Bar’s Special Committee for the Prevention of Legal Malpractice and is a member of the Texas Center for Legal Ethics and Professionalism’s Malpractice and Grievance Prevention Task Force.
June 2 0 1 3
Focus
Dal l as Bar A ssoci ati on l Headnotes 17
International/Franchise & Distribution Law
International Franchising for the Non-Franchising Company by Michael Santa Maria, Kevin Maher and Mohammad Alturk
For companies that do not use franchising as a business model for growth, “franchising” may be the dreaded “F-word.” The thought of allowing third parties to use the company brand, related intellectual property (including valuable know-how) and other operating secrets gives them the heebie-jeebies (for lack of a better term). The lack of control over these third parties sends shivers up the collective spine of nonfranchising companies. But is this fear well founded—particularly in light of the potential up-side of growing a business internationally—or is it simply fear of the unknown? A good case study is Enterprise Holdings Inc., owner and operator of the iconic Enterprise Car Rental system. Here is a recent quote from its CEO, Andy Taylor, in a Bloomberg interview published on March 12, 2013: ‘Years ago, the thought of licensing was absolutely abhorrent,’ Andy Taylor, 65, said in the interview. ‘We want to control that customer experience. We want our people taking care of customers. But we’re learning that if we’re going to be a global brand, and we need to be competitive in the future, we’ll have to do it a different way.’ Enter the franchise model. The traditional view is that franchising is a business for fast food companies. Want to develop a sandwich shop on every corner? Franchise. It seems to have worked well for Subway, which recently surpassed McDonald’s for the top spot with the most units globally (now close to 40,000). But what about other types of businesses?
Most people do not think of major industries as franchises, but that is how automobile dealerships and soft drink bottlers often operate; not to mention retailers, hotels, travel agencies, tax and insurance firms, training companies, marketing companies and sports leagues. For a more comprehensive list of companies that franchise, visit the International Franchise Association’s Franchise Directory at www.franchise.org/SearchFranchise.aspx. Given the wide variety of industries and sizes of companies that use a licensing or franchising model to achieve growth, the use of franchising on the international stage is not surprising. After all, a franchise has been described—ok, by us, but it is still a catchy reference—as a “license on steroids.” The “flattening” of the world (to borrow from Thomas Friedman) has caused companies today to face the very real prospect of competitors that are able to service customers on a global basis, leaving a purely domestic operator at a strategic disadvantage. Purely domestic operators are not equipped to do much globally—they do not have the management ranks, depth or expertise; they do not have the desire to open their balance sheets to international scrutiny; they may not have shareholders that expect international exposure. That said, ignoring the possibility of expanding internationally could prove to be a wasted opportunity for many domestic companies, especially when many: • have established products, services, processes or business systems that can be easily leveraged under a franchise model; • have developed a local brand and reputation that can be extended into
DALLAS MEMBERS
foreign markets (thanks, in part, to the oft-maligned WTO, trademarks and other intellectual property rights enjoy a greater degree of protection globally); and • can obtain the leverage of using the human and economic capital of others (i.e., franchisees) to develop cash flows (initial fees and ongoing royalties, typically) that are currently non-existent. There are also intangible benefits to going global—the added energy and enthusiasm of growth, the enrichment of new learning experiences and the added dimensions and opportunities for professional growth, to name a few. So, why don’t more companies opt to expand globally through franchising? The most likely answer often revolves around losing control. Allowing someone else to drive the (business) bus without being able to control the route, speed or direction. In addition to franchise-spe-
cific regulations and IP considerations, loss of control appears to be the biggest boardroom obstacle to using franchising for international growth. Sadly, this is a passé view with little basis in what franchising has become in the 21st century. Modern business format franchising is a malleable business model that can be tailored to fit any measure of control. International practitioners are able to advise clients on how to structure a franchise model in order to keep the franchisor in the driver’s seat. With sufficient planning, forethought and coordination, a domestic concern can reap the benefits of international franchising without ever HN uttering the “F-word.” Michael Santa Maria and Kevin Maher are partners at Baker & McKenzie LLP and can be reached at msm@bakermckenzie. com and kevin.maher@bakermckenzie.com, respectively. Mohammad Alturk is an associate at the firm and can be reached at mohammad.alturk@bakermckenzie.com.
Bar None presents
“Downton Att’y” June 12-15 at the Greer Garson Theatre on the SMU Campus All proceeds benefit the Sarah T. Hughes Diversity Scholarships. To buy tickets, visit www.barnoneshow.com or contact Elizabeth Philipp at (214) 220-7487 or ephilipp@dallasbar.org.
Judge Ted Akin (214) 821-6370
Corbet Bryant, Jr. (214) 855-3008
jeff@judgeakin.com
cbryant@ccsb.com
Earl F. Hale, Jr. (214) 515-0199
Chris Nolland (214) 653-4360
efhale@earlhale.com
chris@nolland.com
Will Pryor (469) 374-0222
Mel Wolovits (214) 528-1411
wpryor@willpryor.com
mel@mediatenegotiate.com
Over 50 of Texas’ most respected mediators and arbitrators online at
www.TexasNeutrals.org
• Check Availabile Date Calendars Online • Send appt. requests directly to our
members’ offices - no admin or referral fees
• 3000+ mediations requested since 2011 by litigation attorneys & staff across Texas
The National Academy of Distinguished Neutrals is an invitation-only professional association of over 800 senior mediators & arbitrators. Visit our FREE National Directory at www.NADN.org
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
In the News
June 2013
June
FROM THE DAIS
Kenneth Raggio, of Raggio & Raggio PLLC, made a presentation to the national meeting of the American Academy of Matrimonial Lawyers in Fajardo, Puerto Rico. Carol Payne, of Estes Okon Thorne & Carr PLLC, and John DeGroote, of John DeGroote Services, LLC, were panelists on “Settle and Sue Again: Strategies and Snares” at the American Bar Association’s Spring 2013 National Legal Malpractice Conference in New Orleans. Lisa Blue Baron, of Baron & Blue, hosted the 13th Annual Women’s Advocacy Awards. The Honorable Tena Callahan, Judge of the 302nd Family District Court was one of the honorees.
KUDOS
Robert Roby, of Curran Tomko LLP, has been named CEO of Big Brothers Big Sisters Lone Star, which covers North Texas, West Central Texas and the Great Houston area. Chad A. West, of Chad West, PLLC, has been elected to membership in the Fellows of the Texas Bar Foundation. John Browning, of Lewis Brisbois Bisgaard & Smith LLP, received the 2013 Dan Rugeley Price Memorial Award from the Texas Bar Foundation. Joyce Mazero, of Haynes and Boone, LLP, has been elected to the National Restaurant Association Educational Foundation’s Board of Trustees. Susan S. Jeffus, of MoneyGram International, was promoted to Vice President, Associate General Counsel.
Baker Botts LLP, and Liz Boydston, of Fulbright & Jaworski. Nancy Furney, of Winstead PC, was elected to the firm’s Board of Directors. Eli Columbus was named practice group leader of business restructuring/bankruptcy. Tracey S. Bailey, Matt Ferris, Bradley R. Geier, Kristen L. Sherwin, Brian Vanderwoude and Stephen R. Voelker were named Shareholders. Amy E. Davis, of ChristiansenDavisBullock, LLC, received Board Certification from the Texas Board of Legal Specialization in Labor & Employment Law. In addition, the ABA published the “Guide to Protecting and Litigating Trade Secrets,” for which she was lead author. Greg Beane, of VernerBrumley PC, has become Board Certified in Family Law by the Texas Board of Legal Specialization. Jim Mueller has become Board Certified in Family Law by the Texas Board of Legal Specialization, and has been named Partner. Sonya J. McGill, of JC Penney Corporation, Inc., has been elected as a Texas Bar Foundation Fellow. Rebecca Tillery, of KoonsFuller, PC, won the Franklin Jones Best Continuing Legal Education Article Award for 2012 from the State Bar College. The winning paper was presented at the 37th Annual Advanced Family Law Course. Sean Barrett, of Wick Phillips, has been appointed secretary of the French American Chamber of Commerce.
Latin, of the firm, has been elected to the Executive Committee.
MOVE
Hamilton P. Lindley has joined Deans & Lyons, LLP as Of Counsel. Alysia N. Fancher has joined Cobb Martinez Woodward PLLC as Associate. Jennifer J. Spencer and Deborah L. Sterling have joined Quilling Selander Lownds Winslett Moser, P.C. Robert W. Dupuy has joined The Texas Methodist Foundation as General Counsel and Director of Charitable Services. John F. Martin has joined Ogletree, Deakins, Nash, Smoak & Stewart, P.C. as Shareholder in its Washington, D.C. office. Judith W. Ross formed the Law Offices of Judith W. Ross located at 700 N. Pearl St., Suite 1610, Dallas, TX 75201. Scott F. Ellis and Derek Taylor have joined Winstead PC as Of Counsel and Associate, respectively. Thad Spalding has joined Kelly, Durham & Pittard, LLP as Of Counsel. Brian P. DeVoss has joined Hartline Dacus Barger Dreyer LLP as Of Counsel. Greg Beane has joined the firm of Verner-
Michael L. Baum has joined Wick Phillips as Partner. Marc A. Myrin has joined Brown McCarroll, L.L.P. as Partner. News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org.
Preston Hollow People: Mock Trial Program
Dallas Examiner: Mock Trial Program
Rowlett Lakeshore Times: DVAP Legal Clinics
Dallas Morning News: Legalline, Home Project Committee, CIC Fan Drive, E-Mentoring Program, Law Day Luncheon, DBA Kaufman Resolution
Bruce Collins, of Carrington, Coleman, Sloman & Blumenthal, L.L.P., has been elected Managing Partner. Monica
Focus Daily News: Legalline
We’re Preferred.
Victoria Neave has formed Victoria Neave Law Firm, PC, located at 1819 S Buckner Blvd., Dallas, Texas 75217. Phone: (214) 391-5555.
Dallas Business Journal: DVAP Campaign Raises Record-Breaking $834,000, Al Ellis Receives MLK Justice Award, Home Project Committee
Diana S. Friedman received the A Standing Ovation Award for 2012 from the staff of the TexasBarCLE for providing continuing legal education.
Dallas ISD E-newsletter: DBA E-Mentoring Program
Justia.com: Legalline McAllen Monitor: Mock Trial Program
512.480.9074 / 1.800.252.9332
Timothy Ackermann, of The Ackermann Law Firm, has moved to 400 Katy Bldg., 701 Commerce Street, Dallas, Texas 75202.
OpenPR.com: CIC Fan Drive
Tim Springer and two other students on a team from the SMU Dedman School of Law won First Place and the Best Brief award at the 21st Annual Duberstein Bankruptcy Moot Court Competition in New York, NY, beating 60 other teams from over 40 law schools. The team was coached by Omar Alaniz, of
INFO@TLIE.ORG / WWW.TLIE.ORG
Kenneth Fuller has formed Fuller Mediations located at 2912 Maple Avenue, Suites C&D, Dallas, TX 75201. Phone: (214) 954-1212.
Al Dia: Legalline
Chad Baruch, of The Law Office of Chad Baruch, was named Men’s Basketball Coach at Paul Quinn College.
Reliable, dependable coverage provided by a trusted carrier. TLIE has provided affordable legal malpractice protection to over 5,000 Texas lawyers and judges. Isn’t it time that you protect yourself?
Joanna Tollenaere has joined The Willis Law Group as Partner.
Oak Cliff People: Mock Trial Program
John Roper, of Law Office of John Roper, PLLC, was elected as a Dallas Bar Foundation Life Fellow.
Texas Lawyers’ Insurance Exchange already has 33 years of experience and reliability providing malpractice insurance to Texas lawyers and judges. And, now the State Bar of Texas has selected TLIE as a preferred provider of Professional Liability Insurance – giving you even more reason to protect yourself against a claim.
Matthew Sikes has joined Thompson & Knight LLP as Associate.
. . . . . . DBA In the News . . . . . .
Karen Ensley and Garrin Fant, of Cutler-Smith, PC, were named Shareholders.
TLIE selected as a Preferred Provider by the State Bar of Texas
Kimberly H. Kerns has joined Glast, Phillips & Murray, P.C. as Associate.
During the past few months, your DBA has been highlighted in the following media:
Greg W. Curry, of Thompson & Knight LLP, has been named to the Board of Directors of Human Rights Initiative of North Texas. Andrew Melsheimer, of the firm, has been named to the Board of Directors of the North Dallas Chamber of Commerce.
Have you heard?
Brumley PC as Partner.
Mesquite News: DVAP Legal Clinics North Dallas Gazette: DVAP Legal Clinics
PRlog.com: CIC Fan Drive
State Bar of Texas Newsclips.com: Mike Baggett receives DBF Fellows Award, CIC Fan Drive, DBA Kaufman Resolution Texas Bar Journal: Michael Hurst/ Equal Access to Justice Campaign; DBA President Sally Crawford/Pro Bono Texas Lawyer: Al Ellis Receives MLK Justice Award; Mike Baggett receives DBF Fellows Award White Rock/East Dallas Neighbors: Mock Trial Program Wylie News: Mock Trial Program
June 2 0 1 3
Classifieds
Dal l as Bar A ssoci ati on l Headnotes 19
June
EXPERT WITNESS
Please call Brittanie at (972) 934-4100.
Drug/Alcohol Expert - Pharmacy Professor; 33 years’ experience consulting, teaching, researching prescription, illegal, overthe-counter drugs, alcohol, drug testing. Trial and deposition experience specializing in drug-related domestic, civil, criminal cases. Reviews, summaries, depositions, discovery, trials. Allison Welder, Ph.D. (361) 542-5636; allisonannewelder@yahoo.com; www.welderconsulting.com. Economic Damages Experts - Thomas Roney has more than twenty five 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, valuation and divorce 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) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com. “We Count.” Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. dlopez@pulmanlaw.com
OFFICE SPACE
Park Cities/Central Expwy – Law firm has up to 3 window offices in Class A building for lease. Great location at 8080 Central Expwy. at Caruth. Spectacular views of downtown and Park Cities. Elevator exposure and expensive finish out. Large conf. room and kitchen. Secretarial space, high-speed scanner/copier, broadband, extra storage and other amenities available. Call John (214) 546-6337. North Dallas Tollway (Galleria area) office space. Hardwood floors and ornate mahogany paneled walls in common areas. Several offices available in different sizes, all with accompanying mahogany secretarial carrel. All have access to three conference rooms, copier, postage meter, high-speed Internet, phones and two kitchens. Receptionist services also available.
North Dallas. Law firm located at Lincoln Centre has one partner size office, one small office and two cubicles available. Located at the Tollway and LBJ; two conference rooms; break room/kitchen; copiers; postage machine. Email: dallasipfirm@gmail.com for more information. Space for Sublease. Space available in Campbell Center (Highway 75 and NW Highway) for 1 or 2 attorneys. Great views, beautifully decorated, receptionist furnished, and space available for assistant. Call Kelly Jaggers for an appointment to view the space – (214) 691-7781. Available Immediately - Uptown Dallas Office Space Law office seeks to sublease to attorney or non-attorney businesses. Shared amenities, free visitor parking and convenient to DART rail. Contact dallasuptownoffice47@gmail.com. North Central at Meadow Road. Thinking about leaving your law firm and looking for office space? Officing on your own and looking for new space? Consider officing with PlusAssociates LLP, a Multidisciplinary Professional Services Group of Firms. If your area of practice complements those that are currently provided at PlusAssociates LLP, this may be the perfect place for you. Our current firms provide the following services: Tax Planning, Tax Return Preparation and Asset Protection (Bruce E. Bernstien & Associates, P.C.), Business Law, Commercial Collections, Wills, Trusts and Probate (Law Office of James R. Alexander), IRS Controversies, Estate Planning and Business Law (Law Office of Stanton D. Goldberg), Financial Planning, Investments, Insurance, Estate Planning and Retirement Planning (Lora J. Hoff Financial Planning - CFP), International Trade and Sourcing (H Ethos, Inc. – Jie Hao), Hedge Fund Investment (Equity Momentum Management LLC – Barry Davidson), Real Estate Investments (Trendview Real Estate Services – Carl Cross), Commercial Litigation (Cole & Cole, P.C. – Robert R. Cole, Jr.), and Systems, Network, Technology Design, Engineering, Integration, Maintenance and Troubleshooting (Protocol Systems – Mike Armbruster), Bookkeeping (Kenneth C. Fisher, LLC) and Family Law (Law Office of Rob McAngus). Several offices are available with conference rooms, kitchen, fax machine, copier, scanner, phone service, high-speed Internet service, email service, voicemail, free covered park-
DVAP’s Finest Ebony Rivon
Ebony Rivon is an associate at Looper Reed & McGraw, P.C. She currently serves as one of the Pro Bono Coordinators for her firm and, as such, represents the firm at local Pro Bono Coordinators’ meetings. She also serves as a member of the DBA Family Law Section Pro Bono Committee. Ebony volunteers at the South Dallas Legal Clinic and has taken several pro bono cases from DVAP in the areas of divorce, expunctions, name changes, and child support. She presented a legislative update on family law issues at a DVAP CLE training last year and has also received valuable training by attending various CLE’s offered by DVAP. Thank you for all you do, Ebony!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
ing and Dart Station nearby. Meadow Park office building at Meadow Road and North Central Expressway. Join us and take advantage of being associated with a growing group of firms with many opportunities for referral of clients to your firm. Call (214) 706-0837. Two office suites available, Preston Road South of Frankford - Georgetown Office Complex - in North Dallas, 17750 Preston Road. Immigration boutique law firm already in place. Recently remodeled - reasonable rates. Call (972) 521-7368 or email to garry@gldlaw.com for information or to schedule a showing.
POSITION AVAILABLE
The Law Offices of Frank L. Branson, P.C. seeks to laterally hire an associate whose background would meet the following criteria: top academic credentials and 10-15 years extensive personal injury trial experience on either, or preferably both, sides of the docket. Candidates with proven track record and strong client relations skills preferred. Send resume to flbranson@flbranson.com. This is an excellent opportunity for attorneys with three or more years of litigation experience to join a mid-size civil litigation firm in downtown Dallas. Firm is young, aggressive, growing, and has offices throughout Texas. Practice areas and caseload will include insurance coverage litigation, handling civil appeals, commercial matters, a broad pretrial and post-trial motion practice, and related trial practice responsibilities. Good writing, oral advocacy, and research skills are required. Deposition experience is a plus. Meaningful chance for advancement. Competitive salary and benefits are provided. Paid garage parking. Qualified and interested candidates should send their resumes to hr_lawfirm@yahoo.com. Palmer & Manuel, LLP, a fourteen attorney firm in Campbell Centre, seeks to add two to three attorneys with established practices in the areas of commercial litigation, business transactions or family law. Attractive offices and a collegial atmosphere make P&M, LLP a great place to practice law. The Firm’s formula-based compensation system allows attorneys to keep a substantial portion of their collected fees. For more information, email spalmer@pamlaw.com or call (214) 242-6444. The Lenahan Law Firm is looking for its fourth and final attorney. We are a smalldocket, intense-TLC, Dallas severe injury
firm (DallasSevereInjuryLawyers.com) not far from the NE corner of 35 & LBJ. The right attorney will be a kind-hearted, miracle-working, irreverently-humored, injury litigator with at least a decade’s experience who wants to find a career-long position getting the best possible result for each client. We understand that the right attorney may already have the perfect assistant, and we would be willing to consider their coming, too. Contact us at Law@Lenahan.com (no calls, please). Stinnett Thiebaud & Remington LLP, a law firm specializing in medical malpractice defense and healthcare law, is seeking to hire a 2-5 year attorney with medical malpractice defense experience. Send your resume to Christine Santosuosso, Adm. Mgr., Stinnett Thiebaud & Remington LLP, 1445 Ross Ave., Ste. 4800, Dallas, TX 75202 or e-mail to csantosuosso@strlaw.net or fax to (214) 754-0999. The Willis Law Group is seeking to hire an experienced trial lawyer with 10 to 13 years insurance defense experience or commercial litigation experience, portable business optional. Please send resumes to jbreaud@thewillislawgroup.com. North Dallas firm seeks to fill an immediate opening for a Real Estate Attorney with 1 to 3 years’ experience. Experience in construction contracts a plus. Applicants should send their resume to: Dallas Bar Association, Box 13-06, 2101 Ross Avenue, Dallas, Texas 75201.
SERVICES
Diamond and Gold Buyer. Buying all types of Diamonds, Immediate Cash Paid. Consignment terms available @ 10 -20% over CASH. For consultation and offers please call (214) 739-0089. Oil and Gas Buyer. Buying royalty interests, overriding royalty interests and non-operating working interests. Send descriptive information to royalty@coromandelenergy.com for a prompt and fair evaluation. Owner is SBOT and DBA member. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.
Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.
U.S. MAGISTRATE JUDGE Northern District of Texas The current term of the office of United States Magistrate Judge Paul D. Stickney at Dallas is due to expire March 1, 2014. The United States District Court is required by law to establish a panel of citizens to consider the reappointment of the magistrate judge. A full public notice for the magistrate judge position is posted at the offices of the U.S. District Clerk throughout the Northern District of Texas and on the Internet at: www.txnd.uscourts.gov. Comments from members of the bar and the public are invited as to whether the incumbent magistrate judge should be recommended by the panel for reappointment by the court and should be directed to: Karen Mitchell, Clerk of Court United States District Court, Northern District of Texas 1100 Commerce Street, Room 1452, Dallas, TX 75242. Comments must be received by July 19, 2013.
20 H e a d n o t e s l D a l l a s B a r A s s o ciationâ&#x20AC;
When fortune une and atter, family matter, sheâ&#x20AC;&#x2122;ll fight forr yours yours. ur . urs
June 2013