Dallas Bar Association
HEADNOTES Focus Corporate Counsel/Securities Law
November 2017 Volume 42 Number 11
Kim J. Askew Honored with DBA Distinguished Service Award BY SARAH WILSON
The Dallas Bar Association is proud to announce Kim J. Askew as the inaugural recipient of the Dallas Bar Association Distinguished Service Award. The award will be presented to Ms. Askew at a special DBA award luncheon, on Tuesday, November 7, 2017, at noon at the Belo Mansion. The newly established Dallas Bar Association Distinguished Service Award recognizes the DBA member who, through service to the Association and the Dallas community, has shown a lasting dedication to good works—above and beyond the traditional service of DBA members— while promoting good relations among lawyers, the judiciary, and the community. Ms. Askew, a partner at the Dallas office of K&L Gates LLP specializing in complex commercial and employment litigation, has embodied these characteristics throughout her long career in the Dallas community, and we are proud to now recognize her for these superior qualities and achievements. “I cannot think of another person who has given more time to the DBA than Kim Askew,” said DBA President Rob Crain. “Not only has Kim served the DBA in virtually every official capacity, she is the first person we call on when the long-term health of our association is on the line. She embodies wisdom, stability and grace. Those attributes have been a guiding presence and a big reason for the success of the DBA over the past three decades.” A graduate of Georgetown University Law Center and former clerk for the late U.S. District Judge Jerry Buchmeyer, Ms. Askew has dedicated the last three decades to elevating the DFW community as a whole through her tireless work with the Citizens Council of Dallas, Dallas Museum of Art, UT Southwestern Board of Visitors, Baptist Foundation of Texas (now HighGround Advisors), Dallas Theater Center, and St. Philips School. She has been awarded several prestigious local and national awards and commendations for her work, including the Women Helping Women Award from the Dallas Women’s Foundation, the Spirit of Excellence Award from the ABA Diversity Commission, the Flame
Kim Askew
of Honor Award from the Southwest Jewish Congress, and the Women Who Soar Award. Ms. Askew has risen to key leadership roles within the practice of law, as well, formerly chairing the ABA Section of Litigation, the SBOT Section of Litigation, and the SBOT Board of Directors. She was awarded a Presidential Citation for her work on the SBOT Board of Directors, the Louise Raggio Award for her work with the Dallas Women Lawyers Association, the Luther Soules III Award from the SBOT Section of Litigation for her commitment to professionalism and her outstanding contributions to the profession of law, and the Martin Luther King Jr. Justice Award from the Dallas Bar Association. Her talent, professionalism, and dedication have been lauded across the board. Ms. Askew has been consistently named one of the 500 Leading Lawyers in America, one of the Top 250 Women in Litigation (Benchmark Litigation), one of the 25 Greatest Texas Lawyers of the Past Quarter Century, Best Lawyers in America in Commercial
Litigation, and a Texas Super Lawyer many times over. She is highly sought after as a lawyer and as a distinguished author and speaker on topics of discovery, evidence, business litigation, and employment law. She also currently serves as the Texas State Delegate in the ABA House of Delegates. According to DBA past president Sally Crawford, “Kim is a proven leader. She has served as a mentor and role model to lawyers, young and old, in Dallas and around the country. We are fortunate to have Kim as one of our own.” One of the benefits of being a lawyer, according to Ms. Askew, is that “lawyers make a difference.” Her trailblazing accomplishments and accolades have only highlighted the fact that Ms. Askew is making a difference in the local, state, and national legal communities, achieving multi-faceted excellence in the face of often seemingly insurmountable odds. Ms. Askew was one of the first African American women lawyers to join a major Dallas law firm, and her experiences have led her to focus on issues of importance to women lawyers and lawyers of color. She says that her goal “is to always move the needle so that women and lawyers of color continue to advance in the profession.” This emphasis on diversity in the profession has led her to mentor and help elevate some of the best and brightest minds in the Dallas legal community, and her continued commitment to the general promotion of the Dallas legal community throughout the state and country cannot be denied—she is a credit to our profession and to the DBA. Her lifetime of achievements and dedication make Kim Askew the perfect recipient for this new and prestigious honor. She has selflessly dedicated her career to the advancement of the profession of law, and contributed tirelessly to improving our community in countless ways. We cannot think of a more deserving attorney on which to bestow the inaugural Dallas Bar Association Distinguished Service Award. And we thank Ms. Askew greatly for her continued dedication to the Dallas Bar Association, the HN legal profession, and the Dallas community. Sarah Wilson is an associate at Bellinger & Suberg, L.L.P. She can be reached at swilson@bellingersuberg.com.
THANK YOU TO OUR MAJOR DONORS The Dallas Bar Association and Legal Aid of NorthWest Texas kicked off their annual Equal Access to Justice Campaign benefitting the Dallas Volunteer Attorney Program. A number of Dallas firms, corporations, and friends have committed major support. Join us in recognizing and thanking the following for their generous gifts*:
PRESIDENT’S COUNCIL ($30,000+) Crain Lewis Brogdon, LLP Hartline Dacus Barger Dreyer LLP
PLATINUM (CONT) Haynes and Boone, LLP The Hartnett Law Firm Jackson Walker L.L.P. Jones Day Kastl Law, PC Locke Lord LLP Mike McKool Sidley Austin L.L.P. Vinson & Elkins Vistra Energy/TXU Energy
CHAIRMAN’S COUNCIL ($25,000+) Anonymous GOLD PATRON ($20,000+) Margaret & Jaime Spellings DIAMOND ($15,000+) AT&T Services, Inc. Dallas Association of Young Lawyers
GOLD ($5,100+) Charla Aldous Baker Botts, LLP Balch & Bingham LLP Condon Tobin Sladek Thornton PLLC
PLATINUM ($10,000+) Akin Gump Strauss Hauer & Feld, LLP Business Litigation Section
GOLD (CONT) Enoch Kever PLLC W. Gary and Donna Fowler Gibson, Dunn & Crutcher LLP Gruber Hail Johansen Hail Shank LLP Kirkland & Ellis LLP Latham & Watkins LLP The Mike & Barbara Lynn Philanthropic Fund Jeff & Annette Patterson Real Property Section Simon Greenstone Panatier Bartlett, PC Simpson Thacher & Bartlett LLP Nancy & John Solana Advised Fund of The Dallas Foundation Robert Tobey Waters, Kraus & Paul, LLP
Law firms, corporations, and individuals wishing to make a pledge will be prominently recognized beginning at the $5,000 level each month through January. To donate, contact Michelle Alden, aldenm@lanwt.org. For more information about the Campaign visit www.dallasbar.org/dvapcampaign. *Donors as of press time.
Inside 9
Keeping Up with Technology and Confidentiality
15 Effective Corporate Compliance on a Budget 18 Has Your Firm’s Website Been Approved? 22 DBA Bench Bar Conference
Guess What? IT’S DBA MEMBER APPRECIATION MONTH We will have random raffle drawings at several Section CLE presentations this month for a chance to win free lunch and parking for a day at the Belo as well as a special a CLE program on Social Media and more! Check out DBA Online for more details each week!
2 H e a d n o t e s l D a l l a s B a r A s s o c i a tion
Novem ber 2017
Calendar November Events Noon
Trial Skills Section “Resuscitating the American Jury Trial,” Steve Susman. (MCLE 1.00)*
FRIDAY CLINICS
NOVEMBER 3-BELO
“Happy Holidays? How Attorneys Can Manage Stress and Depression During the Holidays – Not Dread Them,” Terry Bentley Hill and Miranda Rhyne. (Ethics 1.00)* RSVP to mmejia@dallasbar.org. Co-sponsored by the Peer Assistance Committee.
NOVEMBER 10-NORTH DALLAS** Noon
“How To Protect Your Company From Cybersecurity Litigation & Other Software Disputes,” Michael Holmes and Jenny Martinez. (MCLE 1.00)* Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to mmejia@dallasbar.org
NOVEMBER 17-BELO Noon
“Powerfully Persuasive Demonstratives,” Trey Cox. (MCLE 1.00)* RSVP to mmejia@dallasbar.org.
WEDNESDAY, NOVEMBER 1 Noon Employee Benefits & Executive Compensation Section Topic Not Yet Available 5:30 p.m.
Bankruptcy & Commercial Law Section Topic Not Yet Available
Labor & Employment Law Section “Year in Review,” Hal Gillespie and Mark Shank. (MCLE 1.50, Ethics 0.25)*
THURSDAY, NOVEMBER 2 Noon Construction Law Section “2017 Legislative Update,” William Westcott. (MCLE 1.00)*
Solo & Small Firm Section “Retention and Destruction of Closed Client Files: the Ethical and Practical Issues” and “Update on Guidance for Sale of a Practice in Texas,” Prof. Fred Moss and Greg Sampson. (Ethics 1.00)*
Family Law Section Board Meeting
Judiciary Committee
Lawyer Referral Service Committee
St. Thomas More Society
FRIDAY, NOVEMBER 3
Noon Friday Clinic-Belo “Happy Holidays? How Attorneys Can Manage Stress and Depression During the Holidays – Not Dread Them,” Terry Bentley Hill and Miranda Rhyne. (Ethics 1.00)* RSVP to mmejia@dallasbar.org. Co-sponsored by the Peer Assistance Committee. 3:30 p.m.
DBA Annual Meeting
MONDAY, NOVEMBER 6
Noon Tax Law Section “Tax Legend Interview – Steve R. Akers,” interviewed by Bill Elliott. (MCLE 1.00, Ethics 0.25)*
TUESDAY, NOVEMBER 7
Noon DBA Awards Luncheon All members invited. We will honor award recipients Kim Askew, DBA Distinguished Service Award; Jennifer Wang, Outstanding Minority Attorney Award; Roy Stacy, DBA Professionalism Award; and present our Committee and Section awards. RSVP to lhayden@dallasbar.org.
Legal Ethics Committee
6:00 p.m.
DAYL Board of Directors Meeting
WEDNESDAY, NOVEMBER 8
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group Noon Family Law Section “Children with Disabilities in Family Law Cases,” Tresi Moore Weeks. (MCLE 1.00)* Admissions & Membership Committee/ SBOT “Advertising: What are the Rules? How do They Apply to Social Media?” Michael Dobbs. (Ethics 1.00)*
Public Forum Committee
Dallas Asian American Bar Association
DAYL Lunch & Learn CLE. For more information, contact cherieh@dayl.com. DVAP New Lawyers Luncheon. RSVP to reed-brownc@lanwt.org. 5:15 p.m. LegalLine. Volunteers needed. RSVP to sbush@dallasbar.org. 5:30 p.m. Pro Bono Awards Celebration Help the Dallas Volunteer Attorney Program celebrate! RSVP to vallejod@lanwt.org.
THURSDAY, NOVEMBER 9
8:30 a.m. DBA Education Symposium “DBA & Caruth Institute for Children’s Rights Education Symposium: Improving the Lives of Children Through Advocacy.” Keynote speakers: Jackie Davis and Daniel J. Micciche. RSVP to kzack@dallasbar.org. (MCLE 5.75)* Noon
CLE Committee
Criminal Justice
Publications Committee
Christian Lawyers Fellowship
6:00 p.m.
MONDAY, NOVEMBER 13 Noon Alternative Dispute Resolution “Dallas ADR Ethics Roadshow,” Liz Bulmash, Trey Bergman, Suzanne Duvall, and Lonnie Schooler. (Ethics 2.00)*
Blockchain Law Study Group “Know Your Customer, Anti-Money Laundering, and Money Service Business Regulation of Digital Currencies,” Arnold Spencer. (MCLE 1.00)*
Real Property Law Section “ABCs of Development Infrastructure Finance,” Corey Admire. (MCLE 1.00)*
International Law Section “Customs, Freight Forwarders, and Floating Liens: Dilemmas and Best Practices for International Businesses Potentially Affected by a Shipping-Related Insolvency,” Kim Carlson and Nicole Hay. (MCLE 1.00)*
Peer Assistance Committee
4:00 p.m.
DAYL Swearing-In Ceremony
TUESDAY, NOVEMBER 14 Noon Business Litigation “Why Smart People Give Stupid Testimony,” Ken Berman. (MCLE 1.00)*
Immigration Law Section Topic Not Yet Available
Mergers & Acquisitions Section Topic Not Yet Available
Admissions & Membership Committee
Courthouse Committee
Entertainment Committee
WEDNESDAY, NOVEMBER 15 Noon
Energy Law Section Topic Not Yet Available
Health Law Section “The Stark Law and Certain Trending Arrangements: What to Know When Analyzing Lithotripsy, Neuromonitoring, and Pathology Arrangements,” Jennifer Kreick and Lisa Prather. (MCLE 1.00)* Law in the Schools & Community Committee
Pro Bono Activities Committee
DWLA Board Meeting
Non-Profit Law Study Group
LegalLine. Volunteers needed. RSVP to 5:15 p.m. sbush@dallasbar.org.
THURSDAY, NOVEMBER 16 Noon Appellate Law Section “Finding Your Way Through the Morass: Making Findings of Fact and Conclusions of Law Work for You,” Charles Frazier, Jr. (MCLE 1.00)*
DAYL Pro Bono Partners Committee
Christian Legal Society “Faith in Practice Series,” Leon Carter.
J.L. Turner Legal Association
DAYL Animal Welfare Committee
Dallas LGBT Bar Association
3:30 p.m.
DBA Board of Directors Meeting
FRIDAY, NOVEMBER 10
Tort & Insurance Practice Section “Witness Preparation,” Tarron Gartner and Lisa Songy. (MCLE 1.00)* DVAP CLE “Termination & Adoption Basics for Lawyers,” Jenny Womack. (MCLE 1.00)*
Government Law Section “2017 Legislative Update,” Bo Joseph. (MCLE 1.00)*
Monday, December 11, 6:00 to 8:00 p.m. at the Belo Mansion Enjoy pictures with Santa, magician, sing-alongs, clown, face-painting, tap dancing by Class Act, and more!
TUESDAY, NOVEMBER 21
Noon Antitrust & Trade Regulation Section “Cloud Legal Ethics in a Time of Cyber Threats,” Eddie Block and Peter Vogel. (Ethics 1.00)*
Noon North Dallas Friday Clinic “How to Protect Your Company From Cybersecurity Litigation & Other Software Disputes,” Michael Holmes and Jenny Martinez. (MCLE 1.00)* Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to mmejia@dallasbar.org
Corporate Counsel Section “HR Issues With Social Media and Holiday Parties,” Melodie Craft and Jackie Johnson. (MCLE 1.00)*
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
FRIDAY, NOVEMBER 17 Noon Friday Clinic-Belo “Powerfully Persuasive Demonstratives,” Trey Cox. (MCLE 1.00)* RSVP to mmejia@dallasbar.org.
DAYL 101
DAYL Elder Law Committee
6:00 p.m.
DAYL Aid to the Homeless Committee
Dallas Hispanic Bar Association
WEDNESDAY, NOVEMBER 22
THURSDAY, NOVEMBER 23 DBA Offices Closed in Observance of Thanksgiving Holiday
FRIDAY, NOVEMBER 24
DBA Offices Closed in Observance of Thanksgiving Holiday
MONDAY, NOVEMBER 27
Noon Science & Technology Law Section “Defending Your Data: Encryption and Compliance for Organizations Providing Post-Acute Services, Such as Home Health and Hospice,” Mina Saifi. (MCLE 1.00)* Securities Section “Cyber Risks to Lawyers for Insider Trading,” Edward Block and Peter Vogel. (MCLE 1.00)*
MONDAY, NOVEMBER 20 Noon Labor & Employment Law Section “Welcome to the Wild Wild West: Employment Law Meets the Anti-SLAPP Statute,” Robert Tobey. (MCLE 1.00, Ethics 0.25)*
DAYL Membership Committee
TUESDAY, NOVEMBER 28
Noon Probate, Trusts & Estates Law Section “Contesting the Plan/Planning the Contest: Discovery in Probate Litigation,” Jim Hartnett, Jr. and Scott Weber. (MCLE 1.00)* Legal History Discussion Group “Remnants of Conscience: a History of American Lawyer Ethics,” Prof. Michael Ariens. (Ethics 1.00)*
American Immigration Lawyers Association
DAYL Lawyers Promoting Diversity
Dallas Bar Foundation Board Meeting
WEDNESDAY, NOVEMBER 29 Noon Faith Leaders Empowering Lawyers Public Forum Pastor Richie Butler, Pastor Bryan Carter, Rabbi David Stern, Imam Omar Suleiman, and Pastor Jeff Warren. RSVP to sevans@dallasbar.org.
Municipal Justice Bar Association
THURSDAY, NOVEMBER 30 Noon
DAYL Lawyers Against Domestic Violence Committee
No DBA Events Scheduled
Community Service Fund Board Meeting
FRIDAY, DECEMBER 1
Noon Friday Clinic-Belo “Expedited Proceeding: Trial Skills,” Joshua Sandler. (MCLE 1.00)* RSVP to mmejia@dallasbar.org.
Intellectual Property Law Section Topic Not Yet Available
DAYL Lunch & Learn CLE
Join us at the DBA Awards Luncheon Tuesday, November 7, noon at Belo.
We will honor award recipients: Kim Askew, DBA Distinguished Service Award Roy Stacy, DBA Professionalism Award Jennifer Wang, Outstanding Minority Attorney Award Minority Participation and Publications Committees, Jo Anna Moreland Outstanding Committee Award Intellectual Property Law Section, Cathy Maher Special Section Award All members are invited to attend. RSVP to lhayden@dallasbar.org.
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez at (214) 220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Grecia Alfaro at the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact mmejia@dallasbar.org.
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D al l as Bar A ssoci ati on l Headnotes 3
4 H e a d n o t e s l D a l l a s B a r A s s o c i ation
Novem ber 2017
President’s Column
Headnotes Published by: DALLAS BAR ASSOCIATION
Stronger Together BY ROB CRAIN
As you likely know, part of this year’s agenda included committing ourselves to areas of self-education and outreach— educating ourselves as to implicit bias, and outreach to the community to facilitate safe discussions about race. The 26th Annual DBA Bench Bar Conference took place last month at Horseshoe Bay. Kimberly Papillon, a renowned speaker on implicit bias, performed a three-hour interactive workshop covering a swath of research and exercises demonstrating that we all have implicit bias and detailing what to do about it. She went through the neuroscience of how, and why, our brains react the way they do when introduced to information. If you have attended similar workshops, you know the importance of being aware of our biases and taking steps to minimize them. These biases are vast and cover multiple platforms, not just racial or gender bias. Following Ms. Papillon’s workshop, the Bench Bar attendees were led by Dallas County judges in breakout sessions to discuss implicit bias in our profession and courtrooms. I cannot tell you how proud I am of the substantive and meaningful discussions from each of these breakout sessions. When we sit down together, acknowledge our deficiencies, and discuss practical steps on how we can do better as a collective group, there is so much benefit for us individually, our relationships, our clients, our profession, and our community. These are not always easy discussions, but Ms. Papillon’s approach and the tone set by our judges set the stage for thoughtful dialogue. None of us want to think we have biases, but we all do. I encourage you and your colleagues to attend one of our implicit bias programs at the Belo Mansion or to conduct an in-house program at your office. Please let me know if you are interested; I will help coordinate. On our community outreach front, the DBA, as an Ambassador to the Year of Unity, will conduct our final Together We Dine event at Highland Park United Methodist Church on the evening of November 7. You can register for this event at www. dallasbar.org. For those of you unfamiliar with the effort, it is a remarkably simple and eye-opening experience. You sit down over dinner with eight people from all parts of our community and partake in a listening exercise. Recently, on matters of race, we’ve all been witness to people exercising their right to speak; this program encourages its attendees to exercise their right to listen. Attendees answer random questions about race while those at the table listen. After all have answered a question, the table is then open for each person to discuss what they heard that impacted them. What happens in these discussions is always unique in its content but uniform in its impact. Discussions at each table differ on topics, perspectives, and opinions but most every conversation reveals similar origins of opinion, be it peace, love, advancing our community, wanting a better life for children, or some other noble motivation. It is my appreciation that all who participate walk away from these exercises feeling closer to their community and neighbors than before they arrived. We will not always agree on issues,
2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873
on race or otherwise, but if we will listen to where the other person is coming from, we will likely recognize their intentions and heart come from a similar place as our own. We will appreciate that what unites us is greater than what divides us. If you are unable to attend the event on November 7, please let me know about your interest; I will make sure you are informed about future events. The DBA’s efforts with the Together We Dine program is a partnership with many, but primarily the Dallas faith community. I did not give the dynamic much thought when entering in the relationship, but the year has revealed a remarkable synergy when lawyers, and particularly our bar associations, join forces with a unified effort of the faith community. There is something about a profession being involved that connects with a resident who might otherwise shy away from an opportunity presented solely by the faith community. The same is true for the medical profession and others. Professionals are able to offer an element of comfortability different than what faith institutions provide. I am not qualified to answer why that may be the case, but I can say the partnership brings out a number of people in addition to those attracted by the faith community. On Wednesday, November 29, we will have a luncheon at the Belo Mansion with five of the City’s most dynamic faith leaders: Pastor Richie Butler, St. Paul United Methodist Church; Pastor Bryan Carter, Concord Church; Rabbi David Stern, Temple Emanu-El; Imam Omar Suleiman, Yaqeen Institute for Islamic Research; and Pastor Jeff Warren, Park Cities Baptist Church. Each of these leaders are not only changing the landscape on race relations in Dallas, they are reshaping how our local faith institutions interact with one another. They will discuss their efforts as well as what challenges lay ahead and how we can join forces to unleash the great potential of our city. You can RSVP to sevans@dallasbar.org. I am an unabashed fan of the City of Dallas—the people, diverse culture, quality of life, ambitious spirit, and many other qualities that are alive and vibrant in this city. There is also great potential. Our city’s history created many social and economic challenges common of large metropolitan areas. North Texas is growing at historical rates. Downtown Dallas, Uptown, and other areas are surging, but other areas remain slow to develop. New green spaces are bringing people together, but some neighborhoods remain isolated. Challenges with housing, public education, and poverty are intertwined and require a consolidated effort from all in our community. The structure of our city governance is purposefully fractured, thus making change slow to occur without the broader community coming together and supporting change. And there are some issues that have nothing to do with governance that require people working with people. I believe the dynamic of the faith community and leading professions coming together can not only mobilize large portions of our community, but it can also bring the necessary synergy to overcome many of our most stubborn challenges. Stronger Together Rob
Faith Leaders Empowering Lawyers Forum Wednesday, November 29, Noon at Belo
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: Rob D. Crain President-Elect: Michael K. Hurst First Vice President: Laura Benitez Geisler Second Vice President: Robert L. Tobey Secretary-Treasurer: Rocio Cristina Garcia Immediate Past President: Jerry C. Alexander Directors: A. Shonn Brown, Jonathan Childers, Dawn Estes, Sakina Foster, Stephanie Gause, Hon. Bonnie Goldstein (Judicial At-Large), Hon. Martin Hoffman, Christopher Kang (President, Dallas Asian American Bar Association), Krisi Kastl, Angelina LaPenotiere (President, Dallas Hispanic Bar Association), Bill Mateja, Karen McCloud (Vice Chair), Kate Morris, Cheryl Camin Murray, Erin Nowell, Paul Simon (President, Dallas Association of Young Lawyers), Tramaine Tinner (President, J.L. Turner Legal Association), Aaron Tobin (Chair), and Victor D. Vital Advisory Directors: Isaac Faz (President-Elect, Dallas Hispanic Bar Association), Ashlei Gradney (PresidentElect, J.L. Turner Legal Association), Shruti Krishnan (President-Elect, Dallas Asian American Bar Association), Stephanie Osteen (President-Elect, Dallas Women Lawyers Association), Jennifer Ryback (President-Elect, Dallas Association of Young Lawyers), and Dena DeNooyer Stroh (President, Dallas Women Lawyers Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Jerry Alexander, David Kent, Gregory Sampson, Scott Stolley and Brad Weber HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Josh Garza Display Advertising: Tobin Morgan, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Alexander Farr and Keith Pillers Vice-Chairs: Andy Jones and Carl Roberts Members: Timothy Ackermann, Logan Adock, Wes Alost, Jason Bloom, Grant Boston, Andrew Botts, Emily Brannen, Amanda Brown, Paul Chappell, Charles Coleman, Shannon Conway, Rob Crain, James Deets, James Dockery, Maria Fernandez, Dawn Fowler, Andrew Gould, Susan Halpern, Meghan Hausler, Jeremy Hawpe, Beth Hearn, Lindsay Hedrick, Nicole Holland, Michael Hurst, Brad Jackson, Andrew Jones, Kristi Kautz, Daniel Klein, Michelle Koledi, Kevin Koronka, Susan Kravick, Jess Krochtengel, Dwayne Lewis, Margaret Lyle, Lawrence Maxwell, Jr., R. Sean McDonald, Kadie Michaelis, Terah Moxley, Jessica Nathan, Eugene Olshevskyy, Kirk Pittard, Laura Anne Pohli, Charles Price, Mark Rasmussen, Adam Reed, Kathy Roux, Joshua Sandler, Mary Scott, Jared Slade, Christopher Snyder, Thad Spalding, Shana Stein, John Stevenson, Scott Stolley, Amy Stowe, Adam Swartz, Ashely Swenson, Michael Tristan, Pryce Tucker, Kathleen Turton, Peter Vogel, Suzanne Westerheim, Yuki Whitmire, Jason Wietjes, Sarah Wilson, Pei Yu DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Liz Hayden Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Avina, Marcela Mejia Law-Related Education & Programs Coordinator: Melissa Garcia Membership Director: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist: Grecia Alfaro Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Karra Rybicki, Dominick Vallejo Program Assistant: Patsy Quinn Secretary: Debbie Starling
Copyright Dallas Bar Association 2017. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher.
Pastor Richie Butler
Pastor Bryan Carter
Rabbi David Stern
Imam Omar Suleiman
St. Paul United Methodist Church
Concord Church
Temple Emanu-El
Yaqeen Institute for Islamic Research
Pastor Jeff Warren Park Cities Baptist Church
Each of these leaders are not only changing the landscape on race relations in Dallas, they are reshaping how our local faith institutions interact with one another. Join the conversation as five of the City’s most dynamic faith leaders discuss their efforts, as well as what challenges lay ahead and how lawyers can join forces to unleash the great potential of our city.
RSVP to sevans@dallasbar.org
Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
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D al l as Bar A ssoci ati on l Headnotes 5
The best trial lawyers get the best results, in the courtroom or before the trial begins. These results are never more important than when someone is facing criminal charges. With the high stakes of criminal law and the real possibility of trial, a proven trial lawyer is critical. Dan Hagood and Barry Sorrels have the trial skills, the record, and the resources to fight for their clients and win.
2515 McKinney Avenue, Suite 940, Dallas, Texas, 75201 │ 214-237-0827 │ www.shdefense.com Not a partnership • Each attorney is engaged in the independent practice of law
6 Hea d n o t e s l D a l l a s B a r A s s o c i ation
Novem ber 2017
Do You Market on the Internet? BY JEANNE M. HUEY
With the rise of attorney listing and referral services on the internet comes the risk that what starts out as a simple listing—something as basic as the Yellow Pages—can turn into something that violates the Texas Disciplinary Rules of Professional Conduct (the Rules). Most online lawyer listing services start with a simple request to “claim” your profile and confirm that your information is correct. So far so good. But then you may get emails and calls from the service asking if you want to pay for an ‘enhanced’ listing or to have clients referred to you, or to give advice online. At that point you must be cautious because these additional services may run afoul of the limitations on attorney advertising and fee splitting in the Rules. The easiest way to avoid a violation of the Rules is to confirm that whatever listing you sign up for includes only those materials specifically exempt from the submission and approval process by the Advertising Review Committee (ARC). That list appears in Rule 7.07(e). The permitted information— traditionally called “Tombstone” advertising—can be freely used to populate your profiles on every listing service and social media site. It includes things like your name, address, phone number, dates of admission to the bar, federal courts, foreign language ability, and other publicly available information. If true, all of this information is regarded as unlikely to mislead the general pub-
lic and therefore exempt from the requirement of advertising pre-approval by the ARC. If you are unsure about something you want to put on a listing service you can apply this three-pronged filter, suggested by Gene Major, the State Bar Staff liaison to the ARC: 1. Exclude personally identifiable and client-related information; that is, do not reveal client confidences; 2. Populate your profiles only with identifying information exempt from review under 7.07(e) and 3. Know, set, and monitor the privacy settings for every social media outlet, listing, or referral site you use in order to limit access to and use of personally identifiable information about your followers, because they are likely to be clients. You can be confident about participating in attorney directories and listings if you stick to the basics. If you have a more aggressive marketing approach in mind, whether it is on a listing service or through your own web site then you need to be familiar with and follow all the Rules, including those concerning lawyer advertising (Rule 7) which sets out the pre-approval requirements. You must also use care when responding to online reviews or negative comments about your practice on the internet. It is always tempting when attacked to give a substantive response to defend yourself, but any such response is very likely to reveal information about
the client and the matter you were hired for. The confidentiality provisions in Rule 1.05 do not contain any exception for disclosing client confidences when responding to negative reviews on the internet, and the definition of confidential information is extremely broad. Think carefully before you publish any response about whether the information you are using came from the client or was obtained while representing the client for such information, no matter where else it might appear, likely constitutes a client confidence that you cannot reveal. Check out the Texas Committee on Professional Ethics Opinion 662 on this issue for a suggested response that a Texas attorney can make to a negative review without violating the Rules. Finally, be cautious dealing with services that refer clients or offer to pay for advice. Recent ethics’ opin-
ions from other states with similar rules of professional conduct find that the legal services programs offered by some online attorney directory services constitutes an impermissible fee-sharing and/or referral service. There is no Texas opinion on this issue, but given the similarity of our Rules to those of the states that have considered the question prudence suggests caution about any arrangement that involves a fee for referrals or participation in an online marketing program. (See Rules 5.04 and 7.03). You should carefully analyze each program and keep up with the latest ethics opinions before making a decision that might run afoul of the HN Rules. Jeanne M. Huey is a partner at Hunt Huey PLLC, blogs at www.legalethicstoday.com and can be contacted at jhuey@ hunthuey.com
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D al l as Bar A ssoci ati on l Headnotes 7
8 H e a d n o t e s l D a l l a s B a r A s s o c i ation
Novem ber 2017
Just How Broad is the Texas Anti-SLAPP Statute? BY RICHARD B. PHILLIPS, JR. & NICOLE L. WILLIAMS
The Texas Citizens Participation Act (TCPA, a/k/a the Anti-SLAPP Statute) was enacted in 2011 and updated in 2013. The TCPA provides a mechanism to dismiss a lawsuit “based on, relate[d] to, or in response to a party’s exercise of the right of free speech, right to petition, or right of association.” Each of these rights is connected to a party’s communications: to individuals with common interests, in connection with a matter of public concern, or pertaining to judicial, legislative, or executive proceedings. As motions to dismiss under the TCPA are being filed more frequently (and in more types of cases), a review of recent cases and open issues is in order. The TCPA’s language is broad, and the Texas Supreme Court has repeatedly held that it should be given its broad meaning. In a series of cases, the Court has reversed decisions of lower courts that limited the TCPA’s scope. First, in Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015), the Court reversed an appellate court that had held that a
communication must be “public” to be subject to the TCPA. The Court noted that nothing in the TCPA restricted its application to public communications. Any communication that is “in connection with” a matter of public concern can be subject to the TCPA. Next, in ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017), the Court addressed the breadth of “in connection with.” The Court reversed the court of appeals’ decision, which had held that there must be a “nexus” between the communication and the matter of public concern. Based on the broad statutory term “in connection with” and the lack of any limiting language in the TCPA, the Court held that even a tangential relationship between the communication and the matter of public concern is sufficient. Finally, in Hersh v. Tatum, 2017 WL 2839873 (Tex. 2017), the Court held that a defendant can show that a claim is “based on” a communication alleged by the plaintiff, even if the defendant denies making the alleged communication. The Court reasoned that the plaintiff’s petition is the best indicator of the basis of the
DAYL Charity Ball
plaintiff’s claim. The Court held that “when it is clear from the plaintiff’s pleadings that the action is covered by the Act, the defendant need show no more.” Justice Boyd concurred, noting that a defendant can also invoke the TCPA if the claim is “related to” or “in response to” the exercise of a protected right, and that those terms are broad and should be read broadly. As more defendants resort to the TCPA for early dismissal, one key open issue is whether the statute applies in federal court. The answer turns on whether the TCPA is substantive or procedural. The Fifth Circuit has thus far studiously avoided deciding whether similar state statutes are substantive or procedural and whether federal courts can apply them. Finally, recovery of attorney’s fees is an open issue. The TCPA provides that the trial court “shall” award attorneys fees to prevailing parties. Due to its First Amendment focus, the TCPA is often used by pro bono or public interest attorneys. While the Supreme Court has held that attorney’s fees are mandatory under the TCPA,
an unresolved issue is whether fees for pro bono or public-interest attorneys are recoverable under the TCPA, as they are under many similar statutory schemes, or whether fees must be actually incurred in order to be recovered. The Supreme Court has held that the phrase “as justice and equity may require” modifies only “other expenses incurred,” and that a trial court cannot reduce the court costs or attorney’s fees to a successful movant because they are unjust or inequitable. Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016). But the Dallas Court of Appeals has held that the modifying phrase “incurred in defending against the action” applies to court costs and attorney’s fees in addition to “other expenses.” Cruz v. Van Sickle, 452 S.W.3d 503 (Tex. App.—Dallas 2014, pet. denied). The Supreme Court has yet to decide whether fees must be incurred to be recoverable. HN Richard B. Phillips, Jr. and Nicole L. Williams are partners at Thompson & Knight LLP. They can be reached at rich.phillips@ tklaw.com and nicole.williams@tklaw.com, respectively.
DBA & Caruth Institute for Children’s Rights Education Symposium Improving the Lives of Children through Advocacy
Saturday, November 11, 2017, 8:00 p.m. at f.i.g. (Fashion Industry Gallery)
Thursday, November 9 ~ 8:30 a.m. ~ Belo Mansion
Open Bar, Catered Cuisine, Live Band, Live & Silent Auction
The Jack Lowe Sr. Award for Community Leadership will be presented during the luncheon.
Benefiting the DAYL Foundation Tickets available at www.daylcharityball.com.
When the issue is Healthcare Fraud... You need a Healthcare Litigator on your team...
Contact Kathryn Zack at (214) 220-7450 or kzack@dallasbar.org for more information.
DVAP’s Finest SHELBY RICKETTS Shelby Ricketts is the CEO and Corporate Counsel of Concote Corporation.. 1. How did you first get involved in pro bono? I basically wandered into a DVAP promotional seminar at the Belo Mansion for some free MCLE credit. I found out it was only free if I accepted two simple cases or a complex case. By the time I left, someone had swooped up the two simple cases and I ended up with a complex divorce case. I was hooked. 2. What types of cases have you accepted? Lease disputes, bankruptcies, divorces, expunctions and some probate. 3. What impact has pro bono service had on your career?
Martin Merritt
Health Law and Healthcare Litigation
Connect on LinkedIn www.linkedin.com/in/martinmerritt/ mmerritt@fflawoffice.com 972.788.1400
It has retrained me to think on my feet. When you accept cases outside of your “comfort zone,” you have to remember how to talk to a judge or client, even when you are not really sure what the answer is. 4. What is the most unexpected benefit you have received from doing pro bono? I have been reminded that lawyers have special gifts in the way they can solve a problem. Sometimes it is explaining the law and sometimes it is helping to lift someone up whose feels that their problem seems insurmountable. Many DVAP clients just need reassurance that their problem is temporary and that they will get past it.
Pro Bono: It’s Like Billable Hours for Your Soul.
When all else fails...
To volunteer or make a donation, call 214/748-1234, x2243. 5301 SPRING VALLEY ROAD SUITE 200 DALLAS, TEXAS 75254
www.fflawoffice.com
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Focus
D al l as Bar A ssoci ati on l Headnotes 9
Corporate Counsel/Securities
Keeping Up with Technology and Confidentiality BY RICHARD MUÑOZ
As a young in-house lawyer, I had a mentor that hated email. “Pick up the phone or walk down the hall if you are going to give advice,” he would say wagging his finger at me. I told him that I had carefully limited the addressees, separated my legal advice from my business advice and used a big bold header that read “Attorney Client Communication” on my emails. I then gave him a gentle ribbing about keeping up with technology. Times are a changing. Many companies are using so-called “collaborative tools” to help their business teams achieve objectives. These tools allow employees and third parties to work together on projects and tasks on a variety of desktop and mobile device platforms. There are instant messaging products like Slack, intra-company social media sites like Yammer and project management systems like Teamwork. A key benefit of these collaborative tools is that they allow project members to instantly communicate and share ideas. Typically, these collaboration tools have a centralized hub which provides a dashboard view of all related messages. At this hub, you can read or reply to messages from your entire project team. These messages are archived so they are searchable and easily retrievable. This means that current or future team members could potentially have access to every decision, discussion, link, file, and message the team created or posted on the project. These tools are designed to make communication instant and transparent.
Transparent communication can have some pitfalls, however. For example, you are Larry the in-house lawyer. Assume you are on Project X with three other company employees: Aaron, Betty, and Charlie. David, a non-paid intern from Miskatonic University, is also on the team along with Victor, an outside vendor. Aaron posts the following message on the hub for the whole team to see: “Larry, do we need to pay David for his internship?” As you draft your reply on the collaborative platform, you pause and wonder if the message would be considered confidential and protected by the attorneyclient privilege? We know that communications between the client, their attorney or their representatives are shielded by the attorney-client privilege as long as they are: (1) confidential and (2) made for the purpose of facilitating the rendering of legal advice. See TEXAS RULE OF EVIDENCE 503(b). The Texas Rules of Evidence define a communication as “confidential” if it is: [N]ot intended to be disclosed to third persons other than those to whom the disclosure is made in furtherance of the rendition of the professional legal services to the client or those reasonably necessary for the transmission of the communication. A court will look at the intent of the parties at the time the communication is made. Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.—Waco 1997, no pet.). There are a couple of Texas cases that hold that a
communication from an attorney was not intended to be confidential if it is simultaneously transmitted to non-representatives of the client, Osborne at 190, or the communication is of the type that is one routinely copied to third parties, Cameron County v. Hinojosa, 760 S.W.2d 742, 746 (Tex. App.— Corpus Christi 1988). Thus, an attorney should avoid creating the appearance that the communication was not intended to be confidential. Returning to our hypothetical, Aaron posted the question for the entire team to see, including David, the non-paid intern and Victor, the third-party vendor. If Larry posts an answer on the platform for the entire team to see, it could appear that neither he nor Aaron intended this communication to be confidential. Larry may wish to restrict who has access to his response. Fortunately, most collaborative software has privacy settings that restrict who can read or access a message. These settings should be used to limit
the message to recipients who need to know. If necessary, the privacy setting of a message could be used as evidence that the communication was intended to be confidential. As with email, attorneys should also consider using headers indicating that the communication is intended to render legal advice. Since the attorney-client privilege only applies to legal advice and not business advice, an attorney should put their legal advice into a separate message if possible. If you use such collaborative tools, these practices should help protect the confidentiality and attorney-client privilege of your communications. I wagged my finger at a younger colleague when she introduced me to collaborative tools. She gave a gentle ribbing about keeping up with technology. HN Richard Muñoz is the Assistant General Counsel for Buckner International. He can be reached at rmunoz@buckner.org.
Texas Lawyers’ Assistance Program TLAP provides confidential help for lawyers, law students, and judges who have problems with substance abuse and/or mental health issues. In addition, TLAP offers many helpful resources, including: x Live Ethics CLE presentations x TLAP Newsletter x Request of specific educational materials x 1-1, group telephone calls on topics x Friday noon AA telephone meeting 1-800-393-0640, code 6767456
Find out more at www.texasbar.com.
10 He a d n o t e s l D a l l a s B a r A s s o c i ation
Focus
Novem ber 2017
Corporate Counsel/Securities
You Might Get Caught: Reasons to Abide by Private Placement Rules BY VALERIE P. THOMAS
Most passive investments are securities; a sale to even one person must be registered or exempt; registration violations can result in massive financial penalties or incarceration; and a term sheet is usually insufficient. Unless an exemption is available, every issuance of a “security” must be registered under both federal and state securities laws. Persons issuing “securities” must abide by registration rules. Securities laws make it a crime to offer or sell securities without having first filed a registration statement. It is a strict liability offense. Both federal and state laws define the term “security” so as to intentionally encompass virtually any instrument
that might be sold as an investment. The statutory definitions include, among others: stocks, any evidence of indebtedness, “investment contracts”, any limited partnership interest, and various instruments representing interests in oil, gas, or other mineral rights. The interpretations of the phrase “investment contract” essentially state that if the arrangement allows a passive investor to profit from the efforts of someone else, it is probably a security. Partnerships are sometimes shielded from the application of securities law because of the presumed active participation of all the partners, but recent cases have eroded the “strong presumption” that a general partnership or joint venture interest is not a security, especially in cases where one partner exclusively manages the partnership.
CIC NEEDS YOUR DONATIONS The DBA Community Involvement Committee is collecting gently used men and women’s suits, coats, dress clothes, and accessories (including dress shoes, shirts, belts and ties). Benefits the Dallas Life Foundation Drop off donations Friday, December 8, 9:00 a.m. to noon at Belo (circle drive). For more information, contact mgarcia@dallasbar.org.
REPRESENTING INVESTORS IN SECURITIES CASES
RICHARD LEWINS Has represented over 200 clients in arbitration with the NASD-FINRA and AAA in claims against brokerage firms, stockbrokers and investment advisors. Author of the highly-acclaimed book, “How to Keep from Going Broke with a Broker: A Guide to Opening, Maintaining and Surviving Your Brokerage Account.” Attorney referrals or co-counsel arrangements welcomed. 7920 Belt Line Road, Suite 650 Dallas, Texas 75254 972.934.1313 rlewins@lewinslaw.com
lewinslaw.com
Even the sale of an interest to a few friends could be labeled as a public offering of a security. Neither Regulation D nor Section 4(a)(2) to which Regulation D relates (or the case law thereunder), mentions a minimum number of purchasers or offerees. Even a sale to one person can be (and has been) considered a public offering. Additionally, the dollar value of the securities sold without registration is not a factor. However, the size of the offering is one relevant factor in determining whether or not a person has qualified for a Section 4(a)(2) private placement exemption from registration. However, the size of the offering is only one factor, which accounts for the prosecution of smaller deals. Of course, not everyone registers securities designed to raise money from investors. Issuers may instead qualify for an exemption to registration, the most common of which is the Regulation D private placement exemption. However, there are very few, if any, instances in which the sale of an unregistered equity/debt interest to a passive investor can be legally accomplished without some paperwork aimed at establishing an exemption from registration. The sanctions for a violation of the registration provisions include incarceration under federal law (up to five years) and under state law (two to five years). Common civil remedies include full disgorgement or rescission, plus interest. Defendants may not offset disgorgement
with actual expenses. Moreover, cases are often brought after the investment failed and the sentencing is often several years after the money is lost. The SEC has a broad range of other remedies available to it, including monetary penalties, injunctions, asset freezes, and the appointment of a receiver. The Texas Securities Commission may seek injunctions, appoint receivers (if fraud is present), and order administrative fines. Often, clients may ask for a term sheet consisting of a few pages, highlighting the business aspects of the transaction instead of a full private placement memorandum. The Section 4(a)(2) exemption requires registration-level disclosure be provided to all offerees and Regulation D offerings under Rule 506 thereunder generally require nearly the same amount of disclosure for nonaccredited investors. It is unlikely that all this information can be fully conveyed in a term sheet alone. Although Rule 502(b) does not explicitly call for detailed disclosure documents to be provided to accredited investors in a Rule 506 Regulation D offering, a prudent issuer will still issue detailed disclosure documents to all offerees to combat allegations of omission and/or misstatement and to establish a fallback position of reliance on Section 4(a)(2) if the Regulation D exemption is lost. HN Valerie P. Thomas is a partner with Krage & Janvey, L.L.P. and can be reached at vthomas@kjllp.com.
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12 He a d n o t e s l D a l l a s B a r A s s o c i ation
Focus
Novem ber 2017
Corporate Counsel/Securities
Internal Investigations: When To Hire Independent Counsel BY YVETTE OSTOLAZA AND NATALI WYSON
Once a corporation has decided to conduct an internal investigation, one of the first and most important decisions is who should lead that investigation. Investigations by independent outside counsel reporting to an independent committee of the board of directors are the most credible and defensible arrangements. However, that does not mean that every investigation must, or should be, conducted that way. In deciding who should conduct an investigation, companies should consider a number of factors, including: • Whether allegations of wrongdoing implicate senior executives, the Board, or in-house counsel; • The severity of the allegations; • Whether allegations suggest criminal liability or require government involvement; • Whether the alleged wrongdoing
implicates a significant financial or accounting issue; • The risk or threat of derivative litigation or other shareholder lawsuit; and • Whether applicable laws require an independent investigation. In situations where an allegation is not substantial, involves potential civil liability only, and does not implicate inhouse counsel, the investigation may be conducted by in-house counsel or by outside counsel reporting to the company. An example might be an internal complaint about improper workplace behavior involving a non-executive employee. While unnecessary, in-house counsel may still benefit from hiring outside counsel to assist with the investigation or review the process and evidence afterwards. In such scenarios, in-house counsel might consider having outside counsel prepare findings to provide an extra layer of objectivity and privilege protection.
The DBA CLE & Peer Assistance Committees present: “Happy Holidays? How Attorneys Can Manage Stress and Depression During the Holidays – Not Dread Them” Speakers: Terry Bentley Hill and Miranda Rhyne Ethics 1.00 | Friday, November 11, Noon at Belo RSVP to mmejia@dallasbar.org.
Issues involving senior executives may be more appropriate for outside counsel. One example might be a whistleblower claim against a senior executive or a member of the in-house legal team. Because of the positions of those involved and their relationships with in-house counsel, the investigation may run more smoothly and be more independent if handled by outside counsel. In situations where senior executives or in-house counsel are implicated in wrongdoing that could lead to criminal liability and government review, the investigation should be conducted by independent outside counsel. Independent outside counsel can add increased objectivity and credibility to the investigation. Note, however, that the selection of counsel will be scrutinized to determine disinterestedness and independence as set forth under applicable law. Outside counsel that has been go-to counsel for the corporation’s business or that has a working relationship with the corporation often will not be considered independent, especially if the investigation’s scope covers transactions or other work handled by the law firm. As the Eleventh Circuit held in Stepak v. Addison, “directors must ensure that counsel is capable of independently evaluating the corporation’s interests.” 20 F.3d 398, 405 (11th Cir. 1994). Because outside counsel in Stepak had previously represented the alleged wrongdoers in related proceedings, the court held that its independence was tainted and the board’s resulting rejection of a shareholder demand was therefore not given the deference normally owed. Even where senior executives and inhouse counsel are not implicated, an independent investigation may nonetheless be important if the alleged wrongdoing is
particularly severe and could lead to criminal liability, or if there is a real threat of derivative litigation. In such cases, independent investigations are not only more credible, they may also provide increased levels of deference by the government and courts. For example, under Section 101.458 of the Texas Business Organizations Code, a court “shall dismiss a derivate proceeding” if an “independent and disinterested” committee for a limited liability company determines “in good faith, after conducting a reasonable inquiry . . . that continuation of the derivative proceeding is not in the best interests” of the company. Additionally, such outside investigations have an increased likelihood of maintaining privilege because communications are less susceptible to claims that they involved a business purpose as opposed to legal advice. Finally, it is important to note that an independent investigation may be legally required due to the nature of the alleged wrongdoing and the laws that are implicated. For example, Section 301 of the Sarbanes-Oxley Act (15 U.S.C. § 78j-1) requires that companies have independent audit committees with authority to engage independent counsel and to develop procedures for investigating complaints related to accounting, internal controls, or auditing matters. Thus, certain accounting and internal controls issues may require independent investigations. Companies and boards should evaluate these factors carefully in deciding whether independence is necessary. HN Yvette Ostolaza is managing partner of Sidley Austin’s Dallas office. She can be reached at yvette.ostolaza@sidley.com. Natali Wyson is an associate at the firm. She can be reached at nwyson@sidley.com.
Cotton Bowl Foundation Fund at Communities Foundation of Texas invests in Barack Obama Male Leadership Academy
DBA MEMBER REMINDER – RENEW ONLINE TODAY! You may renew your 2018 DBA Dues online starting TODAY! Go to dallasbar.org and click on Member Login to access the Online Renewal form. If you prefer to mail in your payment, log in and select the View you 2018 Dues Statement option to print and mail in your 2018 DBA DUES STATEMENT with payment. Your 2018 DBA DUES must be paid by December 31, 2017 in order to continue receiving ALL your member benefits. Thank you for your support of the Dallas Bar Association!
wh e re g iving
THRIVES
A year ago, the Cotton Bowl Foundation came to
Communities Foundation of Texas to help define their
SAVE THE DATE
giving strategy. After working with our staff and deciding to focus some of their grantmaking on college
THE DALLAS BAR ASSOCIATION’S NEW MEMBER RECEPTION
and career access for underserved youth, CFT introduced them to Barack Obama Male Leadership Academy,
will now be held on
a Dallas ISD magnet school whose student body is made up of high-achieving, underserved young men.
Where giving thrives
Thanks to a grant from the Cotton Bowl Foundation facilitated by CFT, these young men will not only be college ready but further motivated to continue their education by having the chance to visit college campuses before graduation. It’s an investment in our community’s future where all sides win.
Create your fund today.
Thursday, February 8, 2018 Invitation to Follow
Call us at 214-750-4145, email giving@cftexas.org or visit www.CFTexas.org/GivingFund
For more information, or for sponsorship opportunities, contact kwatson@dallasbar.org
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D al l as Bar A ssoci ati on l Headnotes 13
14 He a d n o t e s l D a l l a s B a r A s s o c i ation
Novem ber 2017
Day of Civility & Professionalism
On Friday, October 20, the DBA hosted a Day of Civility & Professionalism. The keynote speaker was Justice Eva Guzman (third from right). Also pictured: (left to right) Greg Huffman, Co-Chair, Morris Harrell Professionalism Committee; Shereen El Domeiri, Co-Vice Chair, Morris Harrell Professionalism Committee; Tricia DeLeon, Co-Vice Chair, Morris Harrell Professionalism Committee; Wes Alost, Co-Chair, Morris Harrell Professionalism Committee; Mark Patrick, Texas Instruments; Jennifer Evans Morris, AT&T Legal; Pat Long, ABOTA; Rob Crain, DBA President; and Ellen Farrell, Toyota North America, Inc.
Panelists included (left to right): Mr. Long, Ms. Evans Morris, Ms. Farrell, and Mr. Patrick.
Save the Date for the 2018 Day of Civility & Professionalism – April 20, 2018.
U.S. News and World Report’s Best Lawyers named Mark Lanier to its Best Lawyers in America.
2018 INAUGURAL OF Michael K. Hurst A T T HE O MNI D ALLAS H OTEL
$9 Billion Pharmaceutical Award Trial Lawyer Magazine’s names Lanier one of America’s 100 Most Influential Trial Lawyers of 2011
Asbestos Victims Receive $188.3 Million Verdict New York Times described Lanier as “one of the top civil trial lawyers in America…”
$253 Million award in VIOXX Case Awards and accolades aside, this book is a must-have for PI attorneys.
Strengthen your practice overnight by adding Lanier’s Texas Personal Injury Forms, to your Law Library! To order this Texas Lawyer title, call 800.756.8993 or visit www.TexasLawyerBooks.com.
Saturday, January 20, 2018 The Dallas Bar Association will inaugurate its 109th President, Michael K. Hurst at the inaugural ball on Saturday, January 20. The black-tie ball will include dinner, live music, and a silent auction. Cocktails 6:30 p.m. | Dinner 7:30 p.m. To reserve your ticket, contact Shawna Bush at (214) 220-7453 or sbush@dallasbar.org. Visit www.dallasbar.org for more information!
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Focus
D al l as Bar A ssoci ati on l Headnotes 15
Corporate Counsel/Securities
Effective Corporate Compliance on a Budget BY JOSH ROSEMAN AND EVAN SINGER
Business is booming at the Department of Justice (DOJ) and at other government enforcement agencies. Last year alone, the DOJ negotiated 35 corporate non-prosecution agreements and deferred prosecution agreements. And always lurking in the background of this corporate criminal enforcement activity is the DOJ’s September 2015 “Yates Memorandum” that incentivizes companies seeking cooperation credit from the DOJ to turn over evidence implicating individuals. In short, this is a new era of heightened government enforcement and the risk to companies, directors, officers and employees has never been higher. The good news for companies is that the enormous financial and reputational risks associated with corporate misconduct can be mitigated by the implementation of an effective corporate compliance program. In this regard an effective corporate compliance program serves two important purposes: First, an effective compliance program decreases the opportunities for misconduct and increases a company’s ability to detect misconduct when it occurs. Second, the existence of an effective compliance program is a factor that prosecutors consider in determining whether to bring charges, in nego-
tiating plea agreements, and it is also a mitigating factor for purposes of criminal sentencing under the United States Government’s Federal Sentencing Guidelines. And in some countries outside the United States, the existence of an effective corporate compliance program even serves as an affirmative defense to corporate criminal liability altogether. Yet, at least one recent survey reveals that one-fourth of the companies surveyed had no dedicated budget for compliance training and that, in general, the companies surveyed had implemented fewer compliance steps this year compared to last. This is stunning given the enormity of the risks to be mitigated—risks that have been widely publicized by several recent high profile corporate criminal scandals. One of the hallmarks of an effective compliance program is that a company adequately fund and resource its compliance program. The hard truth, however, is that compliance is a cost center and most compliance programs could stand to use bigger budgets, more senior management commitment, and additional resources. In a perfect world all companies would appreciate the myriad of ways that good compliance can be good business and even drive profits. Until then, as compliance budgets are squeezed, it is imperative that companies and com-
pliance professionals wisely allocate their compliance dollars, resources, and energy. To that end, below are some tips for how a company can get more bang for its compliance buck. Appreciate the Hidden Value of the Risk Assessment. The DOJ does not use any formula in evaluating a compliance program. Instead, as the DOJ stated in its February 2017 guidelines on evaluating compliance programs: “each company’s risk profile and solutions to reduce its risks warrant particularized evaluation.” In other words, the DOJ expects that a company assess its risks using a sound and reasonable methodology and then tailor its compliance program to reasonably address those risks. The obvious value of such a risk assessment is that it helps direct compliance resources towards mitigating the company’s biggest risks. Too often, however, companies fail to appreciate that a risk assessment also provides an enormous cost savings opportunity by providing the justification for where to not commit time, money, and resources. Consider, for example, the issue of FCPA training. Many well-intentioned companies “over train” huge numbers of extremely low risk, lower level employees while at the same time failing to train a much smaller number of higher risk accounts payable personnel who control the outflow of money.
Piggyback on to Existing Processes and Pick the Low Hanging Fruit. Compliance measures are most effective, and less costly to implement, when they are embedded into existing business processes. Although companyspecific, there are countless opportunities for this. If the company has an annual meeting of the work force, for example, it can add live compliance training to the agenda. Or, for example, if the company distributes a periodic newsletter, it can include a compliance related topic. Another example is that the company can add adherence to compliance policies when conducting employee performance evaluations. Similarly, the company may be able to perform the required auditing and monitoring of the compliance program by enlisting the help of internal audit personnel. Companies and compliance personnel would be well served to identify other examples applicable to their own business environments. At bottom, implementing and maintaining an effective compliance can be a daunting and expensive exercise, but at most companies there exists plenty of untapped opportunity to do more with less. HN Josh Roseman and Evan Singer are partners at Jones Day. Josh can be reached at jsroseman@jonesday.com and Evan can be reached at epsinger@jonesday.com.
16 He a d n o t e s l D a l l a s B a r A s s o c i ation
Focus
Novem ber 2017
Corporate Counsel/Securities
Arbitrating the Brokerage Case: the Basics BY RICHARD ELLIOTT
Claims against brokers and brokerage firms for investment losses are handled through arbitration with the Financial Industry Regulatory Authority (FINRA). It is responsible for all arbitration functions in connection with disputes between member firms and their customers. FINRA is now the only forum for securities arbitration. Claims against brokers and dealers are generally not eligible for litigation in court, because the customer contracts that any dispute between the customer and the broker must be submitted to binding arbitration. The rules of procedure and discovery are therefore governed by the Code of Arbitration Procedure and FINRA’s rules, rather than by rules governing trials of cases in court.
Types of Claims and Defenses There are numerous claims that may be asserted arising out of losses sustained in a brokerage or retirement account. The following are the most common: (1) suitability; (2) failure to supervise; (3) fraud; (4) negligence; (5) breach of contract; (6) breach of fiduciary duty; (7) unauthorized transactions; (8) over-concentration; (9) churning; and (10) statutory violations, such as the Texas Securities Act. There are other, more mundane, claims such as selling away, improper execution of trades, and margin account trading. The most common claim made is that the investment was “unsuitable.� Pursuant to FINRA Rule 2111, the Suitability rule, brokers owe customers a duty to make suitable investment recommendations. An
unsuitable recommendation which causes losses may lead to recovery of damages by the investor. Over-concentration of an investor’s holdings in one or few securities or in a single industry, can lead to claims for failure to diversify. Since the collapse of the financial market in 2007-2008, another claim frequently made is that the product sold was so toxic that it would not be suitable for any investor, regardless of the customer’s level of sophistication or wealth. There are numerous defenses available to the Respondent, depending on the facts of the case and history of the account. One of the most often used defenses is the “sophisticated investor� defense. Other defenses are simply that the investments were suitable, ratification, failure to mitigate, and contributory negligence. Statutes of limitations are generally not available as a defense in securities arbitration. Instead, FINRA Rule 12206 provides that for a claim to be “eligible� for arbitration, it must be brought within six years from the occurrence or event giving rise to the claim. It often becomes a fact question as to when the cause of action accrued.
The New Fiduciary Rule
Post-Hearing Remedies
The Department of Labor’s new Fiduciary Rule requires advisors to act in the best interests of their clients, and to put their clients’ interests above their own. This is a much higher level of accountability than the suitability standard. Now, financial professionals are obligated to put their clients’ best interests first, rather than finding “suitable� investments. The main impact of the new Rule will be in IRAs and 401(k) rollovers. It is being phased in now, with full applicability by January 1, 2018. HN
Generally there is no appeal from an arbitration award. If an award is not paid within 30 days, a Claimant may file suit
Richard Elliott is a Dallas solo practitioner. He can be reached at lawdallas@aol.com.
I Just Passed the Bar, Now What? Things You Didn’t Learn in Law School!
The Arbitration Process The pleadings consist of a Statement of Claim and Answer. No particular form of pleading is required. The parties select the panel from a list of arbitrators provided by FINRA. Discovery is limited to document production and requests for information. Normally, no depositions are taken in arbitration. Jury trials are not allowed. Expert witnesses are typically used by both parties regarding both liability and damages. Damages may include actual market losses, benefit of the bargain losses or
to confirm the award. Either party may file suit in Court to vacate the award. However, vacatur is rarely granted, usually where the arbitrator failed to disclose a material conflict.
the difference between the value of the account and what it would have it been in a well-managed portfolio. Rescission is also a remedy, in which the damages include a return of the original investment, less any dividends or earnings, plus pre-judgment interest and attorney’s fees. The panel may award attorney’s fees in addition to actual damages. Attorney’s fees are recoverable under the Texas Securities Act as well as under common law and FINRA’s rules. Arbitrators have authority to award attorney’s fees and costs even in the absence of an explicit statute. Punitive damages are also recoverable by a Claimant in appropriate cases. Shearson/ American Express, Inc. v. McMahon, 482 U.S. 220, 107 S. Ct. 2332 (1987).
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D al l as Bar A ssoci ati on l Headnotes 17
18 He a d n o t e s l D a l l a s B a r A s s o c i ation
Column
Novem ber 2017
Ethics
Has Your Firm’s Website Been Approved? by Suzanne Raggio Westerheim
Rules 7.01 through 7.07 of the Texas Disciplinary Rules of Professional Conduct (the Advertising Rules) govern the provision of information about legal services. Lawyers often mistakenly think that they do not need to worry about these rules, because they do not advertise. But if your firm has a website, these rules apply to you. The Advertising Rules have applied to websites for as long as there have been websites. Amendments to the Advertising Rules in 2005 explicitly made these rules applicable to websites. The Advertising Rules require that all but the most basic of websites be submitted to the Advertising Review Committee of the State Bar of Texas (ARC) for review. Yet I see websites all the time that do not comply with the Advertising Rules and have obviously never been submitted for review. The ARC actively enforces the filing requirement. Recently I have had lawyers in everything from solo firms to international law firms contact me after receiving a letter from the ARC for failure to submit the firm’s website for review. It does not matter how big your law firm is or how many other states or countries in which it operates. If the firm has an office in Texas, the website must be submitted to the ARC for review, and the entire website must comply with the Texas Advertising Rules. What can happen if you fail to submit your website to the ARC? The Advertising Rules are, of course, disciplinary rules, and failure to comply with the rules can result the ARC fi ling a g rievance against
you. The good news is that is not usually the first step they will take if they learn that you have failed to submit your website for review. They will first send you a letter requiring you to submit the website for review. In addition to the regular $100 filing fee, you will also be required to pay a $250 late fee. Once the website is submitted for review, they will either approve the site or notify you of rule violations that are contained in the site and require that changes be made in a specified period of time. Failing to make the required changes can result in a grievance being initiated by the ARC. Failing to submit your website to the ARC can also result in a waste of time and money. For example, a firm could spend thousands of dollars on videos that later must be scrapped because they do not comply with the rules. Or a large firm can spend hundreds of thousands of dollars marketing the firm under what is later determined to be a prohibited trade name. What should you do if your website has never been submitted to the ARC or if you have received a letter from the ARC for failure to submit your website? The first thing you should do is review your website for compliance with the applicable rules. It is best to eliminate problems with your website before the ARC calls them to your attention. In addition to Advertising Rules, the ARC also publishes Interpretive Comments to the rules, which can be found on the State Bar website along with other information about the advertising review process. The Interpretive Comments contain addi-
tional requirements that are not found in the disciplinary rules, themselves. In Texas, lawyers are prohibited from practicing under a trade name. One thing that is not obvious from the rules is how broad that prohibition is. Anything other than the legal name of the firm is considered to be a trade name. So, if the name of the firm is Smith, Jones, Wilson & Park, P.C., using the name “Smith Jones” to refer to the firm can be considered a trade name. A shortened name of the firm can be used, but it must be used consistently on the website and the legal name of the firm must also appear on the home page. Once you have done your best to insure that the website complies with
the applicable rules, you should submit your website for review by filling out the application and submitting the required fee. Review can take from 25 to 40 days depending on whether the site is submitted for preapproval or filed concurrently with its first dissemination. After that period of time, you can expect either an approval letter or a letter with additional changes to be made. Once you have made all the required changes, you should receive a letter approving your website. Be sure to keep this letter for HN your records. Suzanne Raggio Westerheim has a solo legal ethics practice. She can be reached at suzanne@legallyethical.com.
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D al l as Bar A ssoci ati on l Headnotes 19
CONNATSER FAMILY LAW MEANS BUSINESS
From left: Mike DeBruin, Christine Leatherberry, Aubrey Connatser, Abby Gregory, Doug Harrison, Alissa Castro.
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20 He a d n o t e s l D a l l a s B a r A s s o c i ation
Novem ber 2017
EMERITUS MEMBERS The Dallas Bar Association honors members who have contributed to the legal profession for 50 or more years. All 50 year members are invited to attend the DBA Annual Meeting on Friday, November 3, 2017 at 3:30 p.m. to be recognized. To RSVP, please contact Elizabeth Hayden at 214-220-7474 or lhayden@dallasbar.org. Licensed in 1939 Bernard Hirsh Licensed in 1941 Royal H. Brin, Jr. Licensed in 1942 Frank Ripy McWhorter Licensed in 1946 Jean L. White Licensed in 1948 Florence K. Fletcher Lionel E. Gilly Paul Harkey Licensed in 1949 Jack E. Brady William N. Hamilton Harold L. Hitchins Hon. Ted Z. Robertson Licensed in 1950 Albert L. Bartley, Jr. Harold B. Berman D. Louise Boucher Charles C. Garner Wayne Hancock William C. Herndon Robert G. Vial Licensed in 1951 Ramsey Clark M. Wayne Cummings Zack E. Mason John L. Roach Hon. Thomas B. Thorpe H.E. Walker, Jr. Licensed in 1952 Robert F. Ashley John H. Chiles James E. Coleman, Jr. Jerry N. Jordan William (Bill) H. Tinsley James A. Williams Licensed in 1953 Joe Don Denton Roy W. Howell, Jr. William R. McGarvey Licensed in 1954 Frederick H. Benners Paul M. Brewer Hon. Ben F. Ellis Charles W. Hall Harold F. Kleinman Benjamin E. Pickering Allen P. Schoolfield Maxel (Bud) Silverberg John R. Wright Licensed in 1955 Hon. Ted M. Akin Dennis G. Brewer, Sr. Tom M. Cain, Jr. Eugenio Cazorla Thomas N. Griffith
Lawrence P. Hochberg Jack Pew, Jr. Forrest Smith Robb Stewart Lewis T. Sweet, Jr. Lee D. Vendig Licensed in 1956 Benjamin R. Collier John L. Estes Frank Finn Merle R. Flagg Richard A. Freling Joseph J. French, Jr. Roger A. Hansen Marvin L. Levin Wilmer D. Masterson Elton M. Montgomery Hobert Price, Jr. Sidney Stahl Claude R. Wilson, Jr. Gerry N. Wren Licensed in 1957 Barton E. Bernstein William F. Bowles Bill H. Brister Don T. Cates Frank W. Elliott Jerry C. Gilmore V. Rock Grundman Ivan Irwin, Jr. Hon. Tom James William C. Koons Edward J. Lynch Bernard C. McGuire Kenneth J. Mighell Harold E. Moore Neil J. O’Brien Merlyn D. Sampels Clay C. Scott, Jr. Carl A. Skibell Hon. Milton Sturman Robert H. Thomas Louis J. Weber, Jr. Licensed in 1958 Walton P. Bondies, Jr. R.W. Calloway Robert C. Cox Robert Edwin Davis Hon. John M. Duhe F. Lynn Estep, Jr. Ernest John Flowers Robert (Jim) Foreman Ben A. Goff John W. Hicks Jr. Jerry Lastelick John E. Lawhon John H. McElhaney William T. Satterwhite Harry R. Shawver, Jr. Jack R. Wahlquist Emory L. White, Jr. Barney T. Young Norman A. Zable Licensed in 1959 William Jerome Adams Tom A. Blakeley, Jr.
Durwood D. Crawford Marshall J. Doke, Jr. Robert A. Fanning A.D. “Gus” Fields Frederick W. Fraley, III Larry L. Gollaher James J. Hartnett Jack W. Hawkins Norman P. Hines, Jr. Herbert L. Hooks Jerry D. Kelly Richard A. Lempert Aglaia D. Mauzy George David Neal Burton H. Patterson Paul L. Salzberger Edwin M. Sigel Joe A. Stalcup Licensed in 1960 Joe B. Abbey E. Karl Anderson Anthony Atwell Lester V. Baum P. Oswin Chrisman Edward A. Copley Alan D. Feld Paul L. Fourt Lawrence W. Jackson Leo J. Jordan, Sr. John L. Lancaster, III Albert J. Leviton Joe H. Loving Jr. Hon. Robert B. Maloney Hon. Pat McDowell Hon. Robert C. McGuire Hon. Don Metcalfe Robert L. Meyers, III Robert F. Middleton Jerome L. Prager Cecil A. Ray, Jr. Rust E. Reid James B. Sales Malcolm L. Shaw C. Freeman Stallings, Jr. Donald A. Swanson, Jr. Arthur I. Ungerman William D. White, Jr. Licensed in 1961 Arch A. Beasley, Jr. John F. Boyle, Jr. William T. Burke, Jr. Roy C. Coffee, Jr. Jim E. Cowles John A. Gilliam David G. Glickman Jay Rodney Kline Larry M. Lesh Warren C. Lyon Clark J. Matthews, II Donald C. McLeaish Stan McMurry John W. Payne Paul W. Phy Virgil E. Rogers James T. Rudd Miles L. Schulze Wade C. Smith Simeon R. Trotter
Paul B. Underkofler Fred D. Ward Christopher M. Weil Ben B. West Licensed in 1962 Frederick P. Ahrens Reyburn U. Anderson Bernard B. Athey, Jr. Bruce Baldwin Charles G. Barnett John H. Boswell Joseph T. Cain George C. Chapman George C. Dixie Robert E. Edwards Raymond J. Elliott Christie S. Flanagan Houston E. Holmes, Jr. A. Holt Irby Jimmy D. Ivy Tim K. Kirk Hon. William F. Kortemier, II David R. Latchford O. Fred Lohmeyer Donald J. Malouf Lawrence R. Maxwell, Jr. Hon. John P. McCall Frank E. McLain William H. McRae Curtis W. Meadows, Jr. William C. Roberts, Jr. Norman R. Rogers John Q. Stilwell, JD, PhD Mark A. Troy James A. Walters Licensed in 1963 Douglas Adkins Joseph E. Ashmore, Jr. Jerry W. Biesel Kenneth E. Blassingame John Willard Clark, Jr. George W. Coleman A.B. Conant, Jr. William (Bill) P. Davis James A. Donohoe Lawrence B. Gibbs Major Cyrus Ginsberg Jay L. Gueck R, Brooks Hamilton William M. Hayner Ronald M. Holley Joe T. Hood P. Mike McCullough Walter E. (Rip) Parker James E. Price Harry M. Roberts, Jr. Michael E. Rohde Edward V. Smith, III G. Dennis Sullivan Roy J. True J. Glenn Turner, Jr. Robert W. Turner Bill R. Womble Licensed in 1964 Neil D. Anderson James F. Bowen Charles Lee Caperton
Ernest Conner Dale F. Crowder James W. Deatherage Jim F. Evans Ernest E. Figari Lawrence Fischman John M. Gillis Kenneth R. Glaser Charles (Mickey) M. Hunt Darrell E. Jordan William D. Jordan Paul E. Lokey Donald J. Lucas John H. Marks Douglas D. Mulder Morton D. Newman Thomas W. Oliver Don M. Sallinger Joe H. Staley Peter M. Tart Maridell Templeton Jim A. Watson Dennis L. White John H. Withers Licensed in 1965 Scottie H. Ashley, Jr. G. Ward Beaudry Bruce J. Caldwell, Jr. Dennis R. Cassell John E. Collins David L. Fair John P. Gargan Herbert Garon, Jr. Hugh G. Hart, Jr. Joel Held John A. Martin Patrick F. McGowan Robert G. Mebus Norman L. (Happy) Nelson, Jr. Charles R. Nixon Erle A. Nye Jarrell B. Ormand William B. Pasley William B.C. Pittenger Florentino Ramirez Arthur Raphael Robert S. Rendell John K. Rothpletz Larry L. Schoenbrun Winfield W. Scott Douglas M. Smith John M. Stephenson, Jr. T. McCullough Strother Stephen D. Susman Windle Turley Peter Winstead Licensed in 1966 Nathan Allen J. Michael Amis James P. Barklow Andrew Barr John R. Bauer Jerrold (Jerry) M. Bell Ronald W. Bradley Donald Campbell Regis W. Campfield Dewey M. Dalton Jack H. Davis Michael G. Denton
William C. Dever Cal L. Donsky Hon. Kerry P. FitzGerald Richard A. Fogel Carl Allen Generes Robert G. Hallam R. Chris Harvey Walter J. Humann Gene L. Jameson Stephen W. Johnson H. Norman Kinzy William A. Kramer Robert H. Kroney W. (Nick) Kuntz Michael Lowenberg Jay J. Madrid Jack Manning Joe N. McClendon David G. McLane Paul McNutt Michael P. Metcalf Durward D. Moore Raymond D. Noah David R. Noteware Vincent W. Perini Edward A. Peterson Gerard Brandon Rickey Robert F. See James A. Showers Arthur Skibell Mel Stein Hon. Annette Stewart David H. Tannenbaum Jay M. Vogelson Robert E. Wilbur Licensed in 1967 Jim S. Adler James R. Alderson Dennis E. Alvoid G. William Baab Douglas A. Barnes Jerry L. Beane David E. Bird M. Robert Blakeney Michael M. Boone Sam P. Burford Joseph F. Cantebury David Carlock Richard J. Corbitt Ronald R. Cresswell Ronald A. Dubner Stewart Frazer H. Martin Gibson Kenneth A. Herridge Kathleen E. Irvin Grier Pat Jones John J. Klein Edward S. Koppman Gerald W. Livingston Charles J. McGuire John V. McShane Jerry W. Mills W.W. Mitchell Don D. Montgomery Harrell Pailet William B. Sechrest G. Lynn Smith William C. Strock Raymond J. Termini James H. Wallenstein
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Focus
D al l as Bar A ssoci ati on l Headnotes 21
Corporate Counsel/Securities
Five Steps to Take Now to Comply with GDPR BY DONNA M. WILKINSON
After years of dialogue, the European Union’s lengthy General Data Protection Regulation (GDPR) has been adopted and will become effective May 25, 2018. It may surprise some United States based companies that GDPR will apply to them. The regulation applies to all companies that collect and process EU consumer data or if goods and services are offered to EU individuals. GDPR is a wide-ranging piece of legislation passed by the EU and imposes a high duty of care on companies, with serious penalties for non-compliance. While some may view the new compliance requirements as burdensome, costly and unsettling, companies should view GDPR as a new opportunity to improve their data protection security practices. Here, we discuss five steps companies need to take now to meet the compliance obligations imposed by GDPR.
Assess data Regardless of the company’s size or location, it is imperative it take stock of the type of data being collected, transferred and stored, and ensure it has consent to collect that data. Com-
panies should document what data they hold, its source, and its purpose. This is a great start to organizing an information audit that can be used to help create policies and procedures, and to respond to audits. These reviews should be well documented and conducted routinely and whenever a new form of data collection is being considered.
Find GDPR gaps and create a plan Once the company has assessed the data it collects, a map can be created to assess compliance with the GDPR requirements. This step will help in finding gaps of non-compliance and can assist in creating a more detailed plan of how to fill those gaps. Some important points to remember when creating a plan include anonymizing data whenever possible, deleting data as soon as the company no longer has a need for it and aiming to make the data associated with an individual easy to find in the event the individual asks for their information to be deleted. Finding the gaps is crucial - it is these non-compliance gaps that could cost the company a fine of up to 4% of global revenue or €20 million, whichever is higher.
Appoint a Data Protection Officer (DPO) and create policies This is the time to invest in a privacy professional and/or appoint a DPO. If the company regularly and systematically monitors or processes EU personal data, the company is required to appoint a DPO, whose roles and duties are carefully prescribed by the GDPR. The DPO must be equipped with the tools needed to monitor the company’s compliance with GDPR. Before appointing a DPO, the company should have a policy in place that provides those tools and gives the DPO authority to draft additional policies and carry out GDPR accountability requirements.
Train staff Staff need to be empowered with a basic understanding of GDPR. Not only is training a requirement under GDPR, training is an obvious solution to ensuring compliance with the new regulation. While there are no formal requirements for training length or topics, the training must raise awareness about data protection. This requirement is low hanging fruit for a regulator to issue a fine if not completed. Start
to develop a training program now to make certain staff has the knowledge to protect the company.
Supervise Third parties The company should assess all vendors who handle personal data on its behalf. This is a good time to review the requirements you already have in place with your third-party vendors. Come up with a checklist of issues that now need to be considered based on the type of business and data the company handles, and the new requirements of GDPR. This may require current agreements to be revised or amended. The introduction of GDPR only increases a company’s risk of administrative fines and being named in a lawsuit as the new regulation is rolled out. The EU is taking a strict approach and companies need to begin addressing this strict regulation now. And don’t think Brexit gets the company off the hook. The UK Government has indicated that it intends to abide by GDPR despite its eventual departure from the EU. For more information, visit eugdpr.org. HN Donna M. Wilkinson is Associate Agency Counsel at The Marketing Arm. She can be reached at dwilkinson@ themarketingarm.com.
22 He a d n o t e s l D a l l a s B a r A s s o c i ation
Novem ber 2017
DBA Bench Bar Conference At Horseshoe Bay
Proudly announces that Blake Brownshadel has joined the firm as a senior associate attorney.
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D al l as Bar A ssoci ati on l Headnotes 23
DBA Bench Bar Conference At Horseshoe Bay
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24 He a d n o t e s l D a l l a s B a r A s s o c i ation
Novem ber 2017
The Art of the Interview BY CLAUDE DUCLOUX
While interviewing skills are critical to a lawyer’s success, few are ever trained how to do it. While colleagues in the medical profession spend a great deal of time learning how to “take a history” and probe the client for clues as to the source of their ailment or discomfort, no one seems to understand the importance of that process for lawyers. The value of properly interviewing proposed clients is immeasurable. A good interview can result in candor, trust, credibility, and choosing the most appropriate remedy for the issue presented. The true purpose of a legal interview should result in the following: realistic expectations as to the limits of the legal rights involved, timelines and costs, as well as alternatives that may be available to the client.
The Incoming Client Always keep in mind that as a lawyer, you are first and foremost a problem solver. People rarely go to see a lawyer to communicate their personal joy. Usually, a trip to the lawyer represents a problem in their lives—it could be a personal failure, an unexpected tragedy, or being confronted with a legal situation that requires sage advice. Therefore, keep in mind that you rarely see people at their best during a client interview. Think of your own hopefulness when you have a debilitating medical problem and go to the doctor hoping that he or she will fix it for you. Expect the same hopeful expectation in the person consulting you: to fix a problem.
Though you may have wonderful technical skills (you may know how to file a mechanic’s lien, prepare an extraordinary writ, or file a complex consumer case), all of those skills are simply tools for you to solve problems. So, look at every legal matter as a problem that requires resolution.
Resolve Potential Conflicts of Interest Early Older lawyers generally have learned the importance of resolving potential conflicts of interest early into the interview. If you wait 45 minutes into the interview, after the client has poured out their entire financial, moral, family history, and goals, and only then discover a conflict, you likely have already formed an attorney-client relationship, regardless of your being paid, or your intention to handle the matter. Remember, whether an attorney-client relationship has been formed is in the mind of the client and not in yours. If, by your action or inaction, you have encouraged the prospective client to disclose all of their most serious, confidential information to you and only then do you determine that a potential opposing party is your client or a client of your firm, you may be completely conflicted from handling any portion of that case, even for your existing client. So, as I mention, good lawyers attempt to discover in the first 5 minutes the names of parties or entities that may be involved and quickly determine whether a conflict exists. This is a hard lesson, especially for young lawyers who may not have had but a few dozen clients. Early
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on, a young lawyer may have few conflicts, but that likelihood only increases with time, even in a large city.
Form an Early Bond of Trust Remember the old adage: you never get a second chance to make a first impression. This applies to your initial interview. Look like a lawyer. You want an aura of professionalism, confidence, and dedication. I apologize to those who will call my thinking old-fashioned, but if you show up in a t-shirt and flip flops to a first meeting, you are diminishing the client’s assessment of your professionalism. Next, when the meeting starts, stop checking emails and hold all your calls. Feel free to make notes (I take very precise notes of the facts) and dedicate yourself 100 percent to attending to that client. Take a clue from our psychotherapy colleagues who believe that “healing begins when people believe they are
being listened to.” Listen closely, carefully, and make sure the client appreciates your concentrated efforts to understand their issue. Remember: you are a problem solver. Often, the client communicates what you need to know in the first 30 percent of the interview. But, if the client has unreasonable expectations, you need to make sure you hear the entire story (even irrelevant facts) to have credibility when you need to “push back” on unreasonable expectations, which I will discuss in our next installment. If you show interest, concentration, and ask intelligent questions, you very often are forming not only an attorney-client relationship, but a friend HN for life. Claude Ducloux is the Director of Education at LawPay and is Board Certified, Civil Trial Law and Civil Appellate Law, Texas Board of Legal Specialization.
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.
DBA Annual Meeting The Annual Meeting is Friday, November 3, in the Pavilion. A reception begins at 3:30 p.m. and the meeting begins at 4:00 p.m. An amendment to the bylaws will be considered at the annual meeting. If you have prior DBA service and wish to run for a position, you must contact Alicia Hernandez (ahernandez@dallasbar.org (214) 220-7401), no later than Thursday, November 2, at 5:00 p.m. to receive information about service on the Board. You are required to complete a biographical form prior to the meeting. Following the meeting all DBA resident members with an e-mail address on file will receive an online ballot. If you wish to vote online, please make sure the DBA has your e-mail address by visiting the DBA website at www.dallasbar.org, or call Kim Watson at (214) 220-7414 before 5:00 p.m. on Thursday, November 2, 2017. Please update your spam software to allow the e-mail ballot to enter your inbox from DallasBar@BallotBoxOnline.com.
Runner-Up Receives: Charleston Luxury Getaway (Private Historical Photo Tour, Dinner & Wine Pairings at Charleston Grill, Belmond Charleston Place 3-Night Stay with Airfare for 2)
®
Raffle tickets are $100 each — or 6 tickets for $500. Proceeds benefit the Dallas Volunteer Attorney Program, which provides legal services to the less fortunate in our community. No more than 1,500 tickets will be sold. *Picture shown is not exact winning vehicle
Purchase raffle tickets online at https://www2.dallasbar.org/dbaweb/dvap/raffle.aspx or at the DBA offices at the Belo Mansion (2101 Ross Avenue, Dallas, TX 75201). ™
Drawing will be held at the DBA Inaugural Ball on January 20, 2018 The winner need not be present to win. The winner is responsible for all taxes, title and licensing. Prize is non-transferable. No cash option is available.
®
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Focus
D al l as Bar A ssoci ati on l Headnotes 25
Corporate Counsel & Securities
The Telephone Consumer Protection Act: A Trap for the Unwary by Amber D. Reece
Any business that texts its customers but is unaware of its obligations under the ever-changing landscape of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq., could be unwittingly stepping into a minefield. In deciding when and how to communicate with customers, businesses must understand the TCPA’s prohibitions against making any calls using an “automatic telephone dialing system” to a cell phone without the recipient’s prior express consent. This provision of the TCPA is not limited to solicitations and applies regardless of the purpose of the call. Any individual who receives a text in violation of the TCPA can bring a lawsuit to recover $500 for each violation, which can be trebled if the violations are found to be willful and knowing. The TCPA was enacted in 1991— long before the ubiquitous use of cell phones—making some of its restrictions seem antiquated, especially when applied to text messages (which are considered calls under the statute). But the ease of sending text messages also means that damages can add up quickly for unwary businesses. In fact, the ability of individual plaintiffs to easily prove violations of the TCPA and recover statutory damages from unsuspecting callers has led to an upsurge in such lawsuits resulting in a number of high-profile and
high-dollar settlements from large and small companies alike. The TCPA defines “automatic telephone dialing system” or “autodialer” as equipment that has the capacity to (1) store or produce telephone numbers to be called using a random or sequential number generator and (2) dial such numbers. In 2015, the FCC issued an order concluding that any equipment that had such capacity, even if not being used for that purpose, is considered an autodialer subject to the TCPA’s restrictions. The Seventh Circuit recently analyzed the issue of whether an autodialer that could not and did not operate without human intervention could still subject the caller to liability in Blow v. Biora, Inc., 855 F.3d 793 (7th Cir. 2017). The court concluded that the district court had prematurely granted summary judgment to a defendant who put forth evidence showing that its software had not operated automatically. Nonetheless, the Seventh Circuit concluded that the software, which “‘pushed” texts to an aggregator that sent simultaneous messages to thousands of cell phones at a particular date and time was still an autodialer because human involvement was unnecessary at the “precise point of action barred by the TCPA.” Although the court upheld summary judgment for the defendant because it determined that the plaintiff had consented to the messages, the court’s analysis demonstrates that sending any sort of automated text message to a cell phone without the
recipient’s prior express consent could subject a caller to liability. What is more, businesses who get sued for violations of the TCPA may no longer be able to look to their insurers to provide a defense. The Ninth Circuit recently held that a policy that contained an exclusion from coverage for claims based upon allegations of an “invasion of privacy” did not provide coverage for a TCPA suit. In Los Angeles Lakers v. Federal Insurance Company, No. 15-55777, 2017 WL 3613340 (9th Cir. 2017), the Ninth Circuit affirmed the dismissal of the Lakers’ suit against its insurer based on the insurer’s refusal to defend the Lakers in a suit brought under the TCPA. In the underlying suit, an attendee at a Lakers game who sent a text message to a number displayed on the scoreboard inviting fans to submit messages to be displayed on the screen brought a putative class action against
the Lakers after receiving an automated response to his submission. The Lakers asked their insurer, Federal Insurance Company, to defend them in the suit, but Federal concluded that the claim was excluded from coverage because it was based on an invasion of privacy. The Lakers sued Federal, but the district court granted Federal’s motion to dismiss the suit, and the Ninth Circuit affirmed. In so doing, the Ninth Circuit concluded that a TCPA claim is “inherently an invasion of privacy claim.” With new developments happening daily, businesses that wish to text their customers must seek legal guidance from counsel with experience in this constantly evolving area of the law and technology to avoid being held liable for violations of the TCPA. HN Amber D. Reece is an associate at Figari + Davenport, LLP. She can be reached at amber.reece@figdav.com.
Need Help? You’re Not Alone. Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 More resources available online at www.dallasbar.org/content/peer-assistance-committee
26 He a d n o t e s l D a l l a s B a r A s s o c i ation
Novem ber 2017
In the News November FROM THE DAIS Karen Roberts Washington spoke at the Annual Meeting of the National Employment Lawyers Association in San Antonio Joel Crouch, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke for the Fort Worth Chapter/TSCPA Tax Institute and for the Metroplex Practice Management Group in Dallas.
Taxation Virtual/Webcast Conference and for Metroplex Practice Management Group. Alan Davis, Mike Villa, and Mary Wood, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke in Houston for the 35th Annual Advanced Tax Law Course sponsored by TexasBar CLE.
Anthony Daddino, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke for the Fort Worth Chapter/ TSCPA Tax.
Trey Cousins, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke in San Antonio, TX for the TSCPA Advanced Estate Planning Conference.
David Colmenero, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke for the TSCPA Texas State
Steve Beck, David Colmenero, and Joel Crouch, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P.,
Stephen Philbin Media Law Clerkship
spoke in Amarillo for the Panhandle Chapter/TSCPA Tax Institute. Mike Villa, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke in Euless for the DFW Chapter of the Texas Society of Enrolled Agents. Josh Ungerman, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke in San Francisco, CA for the Practicing Law Institute’s Basics of International Taxation. Joel Crouch, Charles Pulman, Matt Roberts, Steve Beck, Mike Villa, Matt Beard, Josh Ungerman, David Colmenero, Alex Pilawski, Aaron Borden, Alan Davis, Eric Marchand, and Chuck Meadows, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke at the 19th Annual Meadows Collier Tax Conference.
KUDOS Justice Douglas S. Lang, of the 5th District Court of Appeals, has been named the Chair of the Texas State Commission for Judicial Conduct. Karen Roberts Washington was tapped to serve on the Scope and Program Committee of the national Uniform Law Commission in Chicago, IL. Doug Clayton, of Cantey Hanger LLP, has been named Chairman of the firm’s Business, Tax and Estates section. Jamil Alibhai, of Munck Wilson Mandala, has been elected to the board of directors of Make-A-Wish® North Texas.
ON THE MOVE Kimberly Annello, Catherine Bowe, and Scott Garelick joined Exall+Wood, PLLC as Partners. Chris Hamilton and Paul Wingo have formed the firm Hamilton Wingo, LLP, 325 N Saint Paul St Ste 3300, Dallas, TX 75201. (214) 234-7900. Randy Gordon, Christopher Staine, and Luke Wohlford have joined the Dallas office of Crowe & Dunlevy. Stephen Higdon has joined Deans & Lyons, LLP. Clark B. Will has joined Kilgore + Kilgore PLLC. Neil Rajan has joined Locke Lord as Partner. Sandra Jonas and Vanessa Rosa-Kubik have joined Condon Tobin Sladek Thornton, PLLC as Associates. Stephanie Gause Culpepper joined ORIX USA Inc. as Assistant General Counsel for ORIX Real Estate Americas. Jacob Pritcher, Jr. and Ashley Veitenheimer have joined Kane Russell Coleman Logan PC as Senior Counsel and Senior Attorney, respectively. Talmage Boston has joined Shackelford, Bowen, McKinley & Norton as Partner. Barry J. Brooks has joined Peckar & Abramson, P.C. 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
The 2017 Stephen Philbin Media Law Clerkship was presented at the 34th annual Stephen Philbin Awards Luncheon on October 13. It is the only media law clerkship offered in Texas. Daley Epstein, 3L student at SMU Dedman School of Law, was selected for the 6-week clerkship, which was split between time spent at The Dallas Morning News and Jackson Walker, LLP. Susan Philbin, sister of Stephen Philbin, established the clerkship through the Dallas Bar Foundation. (Left to Right): Russ Coleman, of Dean Foods, Chair of the Philbin Clerkship Committee; recipient Daley Epstein; Christine Larkin, of The Dallas Morning News; and Paul Watler, of Jackson Walker, LLP.
Planning to do some holiday shopping on Amazon? If so, you can shop on Amazon and Give Back to DVAP! You can now help the Dallas Volunteer Attorney Program by simply shopping on Amazon. Go online to https://smile.amazon.com/ch/75-2410525 to get started. When you shop through AmazonSmile, the AmazonSmileFoundation will donate .5% of the price of eligible purchases to DVAP.
(1) Publication Title: Headnotes. (2) Publication Number: 1057-0144. (3) Filing Date: September 20, 2017. (4) Issue Frequency: Monthly. (5) Number of Issues Published Annually: 12. (6) Annual Subscription Price: $30. (7) Complete Mailing Address of Known Office of Publication: 2101 Ross Ave., Dallas, TX 75201-2768. Contact Person: Jessica D. Smith. Telephone: 214-220-7477. (8) Complete Mailing Address of Headquarters or General Business Office of Publisher: 2101 Ross Ave., Dallas, TX 75201. (9) Full Name and Complete Mailing Address of Publisher: Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Full Name and Complete Mailing Address of Editor: Alicia Hernandez, Executive Editor, 2101 Ross Ave., Dallas, TX 75201. Full Name and Complete Mailing Address of Managing Editor: Jessica D. Smith, Editor, 2101 Ross Ave., Dallas, TX 75201. (10) Owner: Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. (11) Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities: None. (12) Tax Status: Has Not Changed During Preceding 12 Months. (13) Publication Title: Headnotes. (14) Issue Date for Circulation Data: September 1, 2017. (15) Extent and Nature of Circulation. (First number is Average No. Copies Each Issue During Preceding 12 Months; Second number is No. Copies of Single Issue Published Nearest to Filing Date). (15a) Total Number of Copies (net press run): 12,229; 18,880. (15b1) Mailed Outside-County Paid Subscriptions Stated on PS Form 3541: 1,720; 1,766. (15b2) Mailed In-County Paid Subscriptions Stated on PS Form 3541: 9,195; 9,226. (15b3) Paid Distribution Outside the Mails Including Sales Through Dealers and Carriers, Street Vendors, Counter Sales, and Other Paid Distribution Outside USPS: 0; 0. (15b4) Paid Distribution by Other Classes of Mail Through the USPS: 0; 0. (15c) Total Paid Distribution: 10,915; 10,992. (15d1) Free or Nominal Rate OutsideCounty Copies Included on PS Form 3541: 325; 1,835. (15d2) Free or Nominal Rate In-County Copies Included on PS Form 3541: 816; 5,850. (15d3) Free or Nominal Rate Copies Mailed at Other Classes Through the USPS: 43; 55. (15d4) Free or Nominal Rate Distribution Outside the Mail: 76; 87. (15e) Total Free or Nominal Rate Distribution: 1,259; 7,827. (15f) Total Distribution: 12,174; 18,819. (15g) Copies not Distributed: 55; 61 (15h) Total: 12,229; 18,880. (15i) Percent Paid: 89.66%; 58.41%. (16a) Electronic Copy Circulation. 0 (16b) Total Paid Print Copies + Paid Electronic Copies: 10,915; 10,992. (16c) Total Paid Distribution + Paid Electronic Copies: 12,174; 18,819. (16d) Percent Paid: 89.66%; 58.41%. (17) Publication of Statement of Ownership. Publication required. Will be printed in the November 1, 2017, issue of this publication. (18) Signature and Title of Editor, Publisher, Business Manager, or Owner: Jessica D. Smith, Editor. Date: September 20, 2017. I certify that all information furnished on this form is true and complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including civil penalties).
N ove mb e r 2 0 1 7
Classifieds
D al l as Bar A ssoci ati on l Headnotes 27
November
EXPERT WITNESS Economic Damages Experts – HSNO is the Forensics Firm. The Dallas office of HSNO has six CPA testifying experts who specialize in the calculation of economic damages in areas such as commercial lost profits, personal lost earnings, business valuations, property damage, insurance litigation, intellectual properties, commercial litigation, contract disputes, bankruptcy, and fraud. HSNO is qualified in most industries including, but not limited to; energy (offshore and onshore), manufacturing, hospitality, service, insurance, transportation, entertainment, product liability and construction. HSNO has 17 U.S. offices and an office in London. Contact Peter Hagen at (972) 980-5060 or go to HSNO.com. Mexican Law Expert - Attorney, former law professor testifying for 20 years 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) 602-9895. dlopez@ccn-law.com. Economic Damages Experts - Thomas Roney has more than thirty years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, and business valuation matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 5137113. troney@thomasroneyllc.com. “We Count.” Insurance Industry Expert. R. P. “Bob” Gaddis, JD, 46 years’ experience in Property/Casualty Insurance, sequentially as Underwriter, Agent, and Insurance Litigation Attorney. His underwriting and agency work concentrated on complex commercial accounts. Served as Expert Witness in over 65 cases. Visit complexinsuranceconsulting.com or contact him at bgaddis@complexins. com, (713) 621-1601.
FOR SALE Texas’ Best Legal Marketing Firm, go to https://tinyurl.com/yaa9r5uk, info@ texlawmkg.com, or call (214) 405-5093.
OFFICE SPACE Uptown - Bowen & Carlisle. Kilgore Law/MADI building at Bowen and Carlisle has 1200 square feet to lease. Perfect for two or three lawyers and supporting assistants. Two window offices. Possibility of sharing breakroom, copy and fax resources with Kilgore Law exists. Conference rooms, free surface parking or underground parking available. Please email: ecb@kilgorelaw.com. McKinney Avenue. Office with secretarial area available at 4054 McKinney Avenue. Shared conference room, break room, copier, fax, DSL & phone equipment are available if needed. No long term commitment and a monthly rate of $800.00 for the furnished or unfurnished large office and $300.00 for the furnished secretarial office. Possibility of overflow Real Estate or Civil Litigation work. Call (214) 520-0600.
Downtown Dallas – Two window offices with included secretarial space available, in the historic KATY Building overlooking the Old Red Courthouse and Kennedy Memorial. Receptionist, notary, phone system, conference room, Wi-Fi, fax and copier provided for tenants use. No deposit or lease required. Please inquire at 214/748-1948. North Dallas - LBJ/Montfort. Executive Office Suites, external $650, internal $300. All inclusive: Receptionist, kitchen, garage parking, free guest parking, internet, Wi-Fi, phone, conference room, coffee/water/ice, utilities, janitorial and maintenance. Contact Laura at: email laura@5580midtown.com or (214) 888-2800. Tollway/Keller Springs. Luxury Executive Office Sublease – Large furnished office w/floor to ceiling windows. Share reception/kitchen. Amenities: Large desk; Conference Table; Internet; VOIP Phone w/private number; Voice Mail to Email; 24/7 access. $1,500/mo. Contact Chris at cape74d@gmail.com or call (972) 849-6013. Walnut Glen Tower (Walnut Hill/Central). Great Deal! Terrific offices in Class A building near Northpark with views of downtown over lake with fountains. Convenient access to DART station. Prized, central location wherever you need to go in the Metroplex. Do business in a relaxed yet professional environment which includes administrative stations, conference room, kitchen, copier, phones, reserved garage parking, on-site restaurant and other amenities. A larger executive office and/or smaller offices/flex space for as little as $500/month. A fully furnished office is an option. Why not have a professional location for your business and quality of life at work? Please call (214) 373-0404 for details. Virtual Office – Available Immediately! Contemporary office space, 12222 Merit Drive, Suite 1200, offers nine conference rooms, receptionist, internet service, mail service, parking, fully equipped breakroom. $300 monthly fee – competitive rates! Email Amy at arobinson@ englishpllc.com or (214) 528.4300. Lee Park Area - executive office space available for lease in a professional, legal environment. Two large executive window offices available (furnished or unfurnished) to share with experienced and established lawyers. Separate areas available for assistants or paraprofessionals. Three bench seat spaces available for daily or short-term use, if desired. Referrals and other case arrangements are possible. Amenities include reception area, telephone, fax and copy machines, Wi-Fi, notary, conference room, kitchen area, covered visitor parking, and free secured office parking. Location convenient to Dallas courts, downtown, and all traffic arteries. Please contact Judy at (214) 740-5033 for a tour and information. Downtown Dallas - Arts District. Offices available for rent with law firm located in Downtown Dallas Class A, Arts District building. Amenities include conference room, law library, secretarial station, kitchen, parking garage, photocopy/scanner/postage/facsimile and related amenities. Contact Laura at (214) 922-9265. Desoto Executive Office Suites. 215 Dalton Drive, DeSoto 75115. Large Executive Office Suites available in DeSoto! Suite B - $995/mo. includes: Lobby/ 3 offices/ small conference room. Suite D - $2300/ mo. Includes: Lobby/5 offices/conference
area. *Contact: (469) 289-8123 or Info@ ImaniCapital.com* Professional office suites for lease in Uptown State Thomas area. Restored Victorian home circa 1890 w/ hardwood floors throughout. Shared conference room. 2619/2608 Hibernia St 1 block from McKinney Avenue Whole Foods. Lawyers preferred. $750-$850/month. Includes phone & internet. Phone (214) 987-8240. 75 Central & Forest Lane. Johnson English Law Center – Merit Tower Office Space. For lease – Sleek, contemporary office space. 12222 Merit Drive – 12th Floor. Nine conference rooms, lobby with receptionist/mail service, high speed Internet, library, spacious breakroom… plus parking and workout facilities are complementary! Come take a look – Contact arobinson@englishpllc.com or (214) -528-4300. North Dallas – Spring Valley/Midway. Sublease through April 2018. 1,584 Sq Ft., 2 Offices, Large Conference Room, work room, cubical area with two cubes. Upgraded, marble-floored reception area. Office suite is adjacent to elevator lobby. Professional appearance and finishes, full glass doors to lobby. Two covered parking spaces. Email Brett Christiansen at bchristiansen@cdfirm.com or call at (214) 838-3501 ext. 1. Uptown. 4054 McKinney Avenue has available one office suite with 1550 sq. ft. and one suite with 2500 sq. ft. Each space has three offices with reception, conference and secretarial space. Located across from Cole Park with surface parking. One year terms with flat rates are available. Possibility of overflow Civil Litigation work. Call (214) 520-0600.
well-developed skills in patent application preparation and prosecution, as well as in conducting validity and infringement assessments. Please forward resumes with cover letter to accounting@grspc.com. Experienced plaintiff’s employment and benefits (ERISA and non-ERISA) lawyer looking for attorney with 10-15 years’ experience as protégé and ultimately to take over practice within 5-10 years. Applicant should be ready to work on mostly contingent fee basis. Please forward resumes with cover letter emphasizing appropriateness of interest in position to ecb@kilgorelaw.com.
SERVICES Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089. Credentialed Forensic Genealogist & Attorney – hire an experienced attorney and credentialed forensic genealogist to ethically find next of kin and missing heirs for intestacy, probate, guardianship, property issues, and more. Reasonable hourly rate. See www.ProfessionalAncestryResearch. com. Wanda Smith, (972) 836-9091. Mediation Dispute Resolution ServiceMediation Center. Mediations at affordable rates. Please visit our website at www. mediatewithme.com. (469) 213-0940 (214) 932-3495. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.
POSITIONS AVAILABLE Associate Litigation Attorney Needed. Established medium sized AV-rated law firm in downtown Dallas needs an associate attorney with five to seven years of defense litigation experience. Insurance defense experience is a plus. Principal duties include interacting with clients, preparing reports, handling discovery, attending hearings, taking depositions, legal research and writing, and assisting with trying lawsuits. Energetic work environment offers substantial responsibility at competitive compensation plus bonus program. Other benefits include 401(k), medical and life insurance, and parking. Replies held in confidence. Please include a writing sample (five pages or less) on a legal analysis issue. Reply via e-mail to personnel@tbjbs.com. Downtown Defense Firm – Experienced Associate. Downtown mid-sized defense litigation firm looking for associate with 5+ years’ experience. Practice areas include overall defense litigation, premises liability, automobile, trucking and subrogation (both workers’ compensation and ERISA). Must have good communication skills, solid writing ability, be able to work independently and with others, and have experience working with insurance companies. Great opportunity for a motivated, self-starting individual. Please submit resume and salary requirements to dwoodard@downsstanford.com. Experienced Commercial Litigator. Law firm. 5 attorneys. New office in Uptown. Seeking experienced commercial litigator with portable office. Will provide overflow. Call Charles (214) 522-4900. Intellectual Property law firm is seeking a patent agent or patent attorney with 1-4 years of experience. The candidate would preferably have a degree in mechanical or electrical engineering, and have
JEFF ABRAMS Mediator & Arbitrator
Experienced Creative Dog Friendly Online scheduling calendar www.abramsmediation.com Office 972-702-9066 Cell 214-289-4427 jeff@abramsmediation.com Case coordinator: kelli@abramsmediation.com
28 He a d n o t e s l D a l l a s B a r A s s o c i ation
Novem ber 2017