October 2016 Headnotes: Business Litigation

Dallas Bar Association

HEADNOTES Focus Business Litigation

October 2016 Volume 41 Number 10

Connatser Family Law: Preserving Access to Justice for All matically qualify for free legal help because they live so close to the poverty level. One person’s divorce, one person’s eviction, one person’s consumer problem, $ is not just someone else’s problem. When that person needs legal advice, needs to understand their rights, needs to have $900,000 a judge rule on their case, their problem is our problem—mak$800,000 ing sure they can do this while preserving access to justice for $700,000 all.

Thank you Connatser Family $600,000 Law: Aubrey Connatser, Mike DeBruin, Abby Gregory, Chris$500,000 tine Leatherberry, and Alissa Castro, for your commitment to the Dallas Volunteer Attorney $400,000 Program and the Equal Access to Justice Campaign. $350,000 The Dallas Volunteer Attorney Program is a joint pro bono $300,000 program of the Dallas Bar Association and Legal Aid of North$250,000 West Texas. The program is the only one of its kind in Texas and $200,000 brings together the volunteer resources of a major metropoli$150,000 tan bar association with the legal aid expertise of the largest and $50,0000 oldest civil legal aid program in North Texas.

To learn more or make a gift, contact Alicia Hernandez at ahernandez@dallasbar.org or 214-220-7499.

HN To Give: www.dvapcampaign.org.

or mistrust our justice system, or find it so financially Aubrey Connatser, of Connatser Family Law has once inaccessible that the system is biased against them from again given $30,000 to the annual Equal Access to Jus- the start. It is about having lawyers fight for them in tice Campaign benefitting the Dallas Volunteer Attor- our established and trustworthy system so people can enforce and protect ney Program (DVAP). A donor since 2006, their rights. It is about Connatser Family Law, a boutique family law freedom and equality for firm, has donated more than $100,000 to the all and not just a priviCampaign. leged few.

Impressive? Definitely. Thankful? Cer“Access to justice tainly. Stunned? Some people are wondering should be a right and not why an attorney and her firm would give so a luxury,” said Aubrey. much and ask for so little in return?

“Each day we witness the We can tell you. Aubrey believes in our victimization of so many justice system. She believes that all people across the globe by unjust having access to a sound, fair, and democratic legal systems. I believe it way of resolving disputes is a cornerstone of is our duty as practitioour democracy. ners to ensure those most “A person’s ability to pay should not be vulnerable in our society the determining factor when access to our are not marginalized or justice system is necessary to protect a child ignored because of their or right a wrong,” said Aubrey. lack of resources.”

For Aubrey, access to justice is about the For DVAP, it is about individual as well as the broader societal the thousands of clients impact of access to justice. It is about her cliwho ask for and receive ents who have suffered years of domestic viohelp every year. It is lence. It is about her clients who needed child about the more than support to pay the bills. It is about clients who 2,500 clients who were just need to move past a failed marriage peacerepresented by pro bono fully and move on with the rest of their lives. attorneys in 2015. It is It is about all her clients—pro bono or about the hundreds of not. However, it is also about your clients. It Aubrey Connatser additional clients who is about all individuals in the court system and those who may need the court system someday. It is about received advice and counsel. It is about every DVAP businesses, both for profit and non-profit, needing a system client who has received services from the program since to resolve disagreements when trying to work things out its start, and the thousands of Dallas lawyers who have informally has failed. It is about making sure our citizens supported access to justice by representing DVAP’s clients. can seek and obtain results from our system of justice.

For Dallas, it is about the more than 600,000 people It is about advice, counsel, and understanding one’s legal rights. It is about making sure people do not fear (25 percent of the Dallas County population) who autoBY ALICIA HERNANDEZ

Alicia Hernandez is the director of the Dallas Volunteer Attorney Program and the DBA director of community services. She can be reached at ahernandez@dallasbar.org.

THANK YOU TO OUR MAJOR DONORS | Equal Access to Justice Campaign Kicks Off 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.

Please join us in recognizing and thanking the following for their generous gifts to the Campaign*:

PRESIDENT’S COUNCIL ($30,000) Connatser Family Law Crain Lewis Brogdon, LLP Perkins Coie LLP CHAIRMAN’S COUNCIL ($25,000) Anonymous Foundation AT&T Services, Inc. Payne Mitchell Law Group

PLATINUM ($10,000) Anonymous Dallas Association of Young Lawyers DBA Corporate Counsel Section Exxon Mobil Corporation Gary & Donna Fowler Haynes and Boone, LLP Jackson Walker LLP Jones Day Kastl Law, PC Koons Fuller, PC

GOLD ($5,100+) DBA Business Litigation Section DBA Probate, Trusts & Estates Law Section DBA Real Property Law Section Robert L. Tobey Waters & Kraus LLP *Donors as of press time.

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 Alicia Hernandez, ahernandez@dallasbar.org. For more information about the Campaign see www.dallasbar.org/dvapcampaign.

Inside 3 Al Ellis Selected for Professionalism Award 10 Don’t “/s” That Email . . . Just Yet 14 DBF Announces Diversity Scholarship Dinner Fundraiser 17 Using Out of Court “Tweets” at Trial

DBA MEMBER REMINDER – RENEW ONLINE TODAY! You may renew your 2017 DBA Dues online starting TODAY! Go to the DBA website and under the Membership tab, click on Renew Online.

Or if you prefer to mail in your payment, log in and select the View you 2017 Dues Statement option to print and mail in your 2017 DBA DUES STATEMENT with payment.

Your 2017 DBA DUES must be paid by December 31, 2016 in order to continue receiving ALL your member benefits.

Thank you for your support of the Dallas Bar Association!

2 He a d n o t e s l D a l l a s B a r A s s o ciation

October 2016

Calendar October Events FRIDAY CLINICS

OCTOBER 7-BELO Noon

“Unmanned Aerial Systems: Sky Wars Attack of the Drones,” Trey Crawford, Coyt Johnston, and Kent C. Krause. (MCLE 1.00)* RSVP to kzack@dallasbar.org.

OCTOBER 14-NORTH DALLAS** Noon

“An Overview of Bankruptcy and Applicable Exemption – It’s a Jungle Out There – So Beware,” William L. Siegel. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240.

Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre.

There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to kzack@dallasbar.org.

“Welcome to the Wild Wild West! Defamation on the Internet,” Shelly Skeen and Dave Wishnew. (MCLE 1.00)* RSVP to kzack@dallasbar.org

MONDAY, OCTOBER 3

Noon

Tax Law Section “Executive Compensation: What Every Tax Lawyer Needs to Know,” Eric Winwood.

(MCLE 1.00)*

TUESDAY, OCTOBER 4 Noon

Corporate Counsel Section “Tap your Full Potential: How Improving Your Non-Verbal Communication Can Make You a Better Lawyer,” Francie Kilborne. (Ethics 1.00)* Tort & Insurance Practice Section “Cross-examination of Experts,” Quentin Brogdon. (MCLE 1.00)*

Noon

Employee Benefits & Executive Compensation Section “IRS Updates – Reviewing the Revised Determination Letter Program and Recent 409A Guidance,” Lindsay Murphy and Allison Wilkerson. (MCLE 1.00)* Solo & Small Firm Section “Learn Three New Litigation Skills that the Best Lawyers Have in Common,” Shane Read.

(MCLE 1.00)*

Juvenile Justice Committee

Public Forum Committee

5:30 p.m. Bankruptcy & Commercial Law Section

Topic Not Yet Available 6:30 p.m. DAYL Annual Meeting

Judiciary Committee “Supreme Scuttlebutt,” Don Cruse and Hon. Don Willett. (MCLE 1.00)*

6:00 p.m. Home Project Committee

WEDNESDAY, OCTOBER 12 7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group

Minority Participation Committee

Christian Legal Society

Dallas LGBT Bar Association

3:30 p.m. DBA Board of Directors Meeting

11:30 a.m. House Committee Walk Through Noon

DAYL Lunch & Learn CLE

FRIDAY, OCTOBER 21 Noon

THURSDAY, OCTOBER 13

Friday Clinic—Belo “Welcome to the Wild Wild West! Defamation on the Internet,” Shelly Skeen and Dave Wishnew.

(MCLE 1.00)* RSVP to kzack@dallasbar.org

SATURDAY, OCTOBER 22

CLE Committee

Publications Committee

Family Law Section Board Meeting

Christian Lawyers Fellowship

St. Thomas More Society

6:00 p.m. J.L. Turner Legal Association

9:00 a.m. DBA Community Service Day

For more information log on to www.dallasbar. org/dbacommunitydayofservice.

FRIDAY, OCTOBER 7

FRIDAY, OCTOBER 14

6:00 p.m. JLTLA 64th Annual Scholarship Gala. At the Omni Dallas Hotel. For more information, email 2016jltlfgala@gmail.com.

Noon

8:30 a.m. Dallas Bar Association Education Symposium

“Cyber Security, A Conversation with Dr. Hinojosa, Educating Educators: Resources for Students in Crisis, and School Safety: Active Shooter Preparedness and Response,” Registration $35, includes lunch.

Keynote speaker: Cheryl Wattley. RSVP to ahernandez@dallasbar.org. (MCLE 1.75)*

Friday Clinic—Belo “Unmanned Aerial Systems: Sky Wars Attack of the Drones,” Trey Crawford, Coyt Johnston, and Kent C. Krause. (MCLE 1.00)* RSVP to kzack@ dallasbar.org.

Trial Skills Section “Representation of High Profile Athletes in Criminal Investigations and Trials,” Andy Drumheller and Rusty Hardin.

(MCLE 1.00)* High School Mock Trial Committee

Noon

1:00 p.m. Sports & Entertainment Law Boot Camp

“The Book of Sanctions: Enforcement of NCAA Bylaws, The Law Behind the Star, Show Me the Money: Present and Future of the NCAA Student-Athlete’s Compensation.” At City Tavern (1402 Main Street). Cost $30.

(MCLE 3.00)*

MONDAY, OCTOBER 10 Noon

Alternative Dispute Resolution Section “The Mediator’s Roundtable: A Guided Discussion,” John Shipp. (MCLE 1.00)*

Real Property Law Section “Insurance Basics for Real Estate Lawyers,” Linda M. Dedman. (MCLE 1.00)*

Peer Assistance Committee

THURSDAY, OCTOBER 6

TUESDAY, OCTOBER 11

8:25 a.m. Juvenile Delinquency Advanced Topics Conference

To register, go to www.dallasbar.org or contact ahernandez@dallasbar.org. Presented by the DBA Juvenile Justice Committee.

(MCLE 7.00, 2.00)*

Noon

Family Law Section “The Impact of Bankruptcy in Family Law,” Liz Boydston and Karen Kellett. (MCLE 1.00)*

Business Litigation Section “The American Jury,” Tim Newsome.

(MCLE 1.00)*

Noon

Government Law Section Topic Not Yet Available

Mergers & Acquisitions Section “What Makes Private Equity M&A Special?”

Construction Law Section “From the Inside Looking Out: The General Counsel Perspective on Life on the Inside and Expectations for Outside Counsel,” Eric Lugger, Danielle Senn and Derek Valz. (MCLE 1.00)*

Hon. Eric Moyé. (MCLE 1.00)* At UNT Dallas, 7300 University Hills Blvd, Building 1, Room #308. Park in lot in front of 7300 University Hills Blvd. RSVP to kzack@dallasbar.org.

Noon

6:00 p.m. DAYL Board of Directors Meeting

WEDNESDAY, OCTOBER 5

A panel moderated by Chris Babcock.

(MCLE 1.00)*

5:15 p.m. Legalline. Volunteers welcome.

Second floor Belo.

OCTOBER 21-BELO Noon

Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.

DBA Annual Meeting The Annual Meeting is Friday, November 4, in the Pavilion. A reception begins at 3:30 p.m. and the meeting begins at 4:00 p.m.

If you have prior DBA service and wish to run for a position, you must contact Cathy Maher cmaher@dallasbar.org (214) 220-7401, no later than Thursday, November 3, 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 3, 2016.

Please update your spam software to allow the e-mail ballot to enter your inbox from DallasBar@BallotBoxOnline.com.

If you receive an online ballot but wish to vote by hard copy, please contact Alicia Hernandez at (214) 220-7499 to request that a paper ballot be mailed to you.

An amendment to the DBA Bylaws will be voted on at this meeting.

Friday Clinic—North Dallas** “An Overview of Bankruptcy and Applicable Exemption – It’s a Jungle Out There – So Beware,” William L. Siegel. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre.

There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to kzack@dallasbar.org.

SATURDAY, OCTOBER 15 6:00 p.m. DHBA Noche De Luz. At the Perot Museum. http://dallashispanicbar.com.

MONDAY, OCTOBER 17 Noon

Labor & Employment Law Section “Immigrant Employees: Practical Issues in Employment Law,” Michael O’Keefe Cowles.

(MCLE 1.00)*

DVAP Consumer Bankruptcy CLE “Chapter 7 Bankruptcy,” (MCLE 2.00, Ethics 1.00)* To RSVP contact reed-brownc@lanwt.org.

TUESDAY, OCTOBER 18 Noon

Franchise & Distribution Law Section “The Department of Labor’s Voluntary Agreements with Franchisors,” Greg McAllister, Jonathan Rector and Alex Stevens. (MCLE 1.00)*

MONDAY, OCTOBER 24 9:00 a.m Celebrate Pro Bono Week—DVAP Kinship CLE

“Kinship Legal Custody.” (MCLE 4.00, Ethics 1.00)* Noon

Securities Section “The Corporate Securities Attorney: Ethical and Liability Concerns,” Prof. Marc I. Steinberg.

(Ethics 1.00)*

Law in the Schools & Community Committee

TUESDAY, OCTOBER 25 Noon

Probate, Trusts & Estates Law Section “CourtCall and Its Use in the Probate Courts,” Sha Eaves, Ron DaLessio, and Cathy Winter.

(MCLE 1.00)*

Celebrate Pro Bono Week—DVAP CLE “Wills Drafting.” (MCLE 1.00)*

American Immigration Lawyers Association

5:00 p.m. Pro Bono Awards Celebration

Help the Dallas Volunteer Attorney Program celebrate! RSVP to popee@lanwt.org.

WEDNESDAY, OCTOBER 26 Noon

Computer/Entertainment, Art & Sports Law Sections “Emerging Issues in Video Game Law,” Gary Brubaker, Tom Kulik, and Mark Methinitis.

(MCLE 1.00)*

Celebrate Pro Bono Week—DVAP CLE “J.L. Turner Legal Association & DVAP.” (MCLE 1.00)*

DAYL Foundation Board Meeting

DVAP New Lawyers Luncheon.

Contact reed-brownc@lanwt.org.

Municipal Justice Bar Association

International Law Section “The Top Ten Things You Need to Know About International Trade,” Elsa Manzanares.

(MCLE 1.00)*

4:00 p.m. DVAP Belo Legal Clinic. Volunteers needed.

For more information, contact reed-brownc@ lanwt.org

DAYL Elder Law Committee

6:00 p.m. Dallas Hispanic Bar Association

THURSDAY, OCTOBER 27

Noon

Collaborative Law Section “Using the Collaborative Law Process in Probate, Will, Trust and Guardianship Disputes,” Brett Christiansen, Lawrence Maxwell, Jr., and Harry Munsinger. (MCLE 1.00)*

Criminal Law Section “Dallas County Pretrial Services,” Leah Gamble, Duane Steele and Gwen Truxal.

(MCLE 1.00)*

Annual Evening Ethics Program “Annual Evening Ethics Program.” DBA members: $30, Non-members: $90. RSVP required, contact kzack@dallasbar.org.

(Ethics 3.00)*

WEDNESDAY, OCTOBER 19 Noon

Energy Law Section “What’s In the Pipeline?” Jamie Lavergne Bryan. (MCLE 1.00)*

Environmental Law Section “Perspectives from TCEQ Commissioner,” Jon Niermann. (MCLE 1.00)*

Health Law Section “Health Law ADR,” Cecilia Morgan.

(MCLE 1.00)*

Library Committee

Pro Bono Activities Committee

Trial Skills Section “Improper Woodshedding v. Ethical Witness Preparation? How to Tell the Difference and Stay Out of Trouble,” Carol Payne. (Ethics 1.00)* Co-sponsored by the Legal Ethics Committee.

Non Profit Law Study Group

Christian Legal Society

DWLA Board of Directors Meeting

5:15 p.m. Legalline. Volunteers welcome.

Second floor Belo.

THURSDAY, OCTOBER 20 Noon

Appellate Law Section “Counterintuitive Lessons From Error Preservation Land,” Steve Haynes. (MCLE 1.00)*

South Dallas Clinic “Improving Your Courtroom Experience: What Civil, Criminal and Family Judges Want You to Know,” Hon. Mary Brown, Hon. Lisa Green, and

FRIDAY, OCTOBER 28 Noon

Intellectual Property Law Section “IP Issues in Social Media,” Ryan Garcia.

(MCLE 1.00)*

MONDAY, OCTOBER 31 Noon

DAYL Solo & Small Firm Committee

October 2016

D al l as Bar A ssoci ati on l Headnotes 3

Al Ellis: Professionalism Award Recipient Scrolling through Al Ellis’ Facebook page is a montage of family, faith, service, hope, dreams, and memories. Love is reflected in all forms—family, pets, critters, community, faith, music, and of course, Elvis. Kids with dogs, kids at school, career day, the zoo, the park, games, parties, and absolute unconditional love in every venue.

The following posts from Facebook give us a personal glimpse of Al through his own words and the words of others whom he admires and admire him:

BY DAWN FOWLER

Al Ellis’ name is synonymous with professionalism, integrity, service, and compassion. His life philosophy is a reflection: “To live is to become involved; to become involved is to care; to care is the essence of being. So, do all you can, in the time you have, in the place you are.”

Al Ellis is the 2016 recipient of the Morris Harrell Professionalism Award.

This annual award is presented by Dallas Bar Association and the Texas the Center for Legal Ethics and Professionalism to the “attorney who best exemplifies, by conduct and character, truly professional traits who others seek to emulate and who all in the bar admire.”

Al graduated with honors from South Oak Cliff High School, the University of Texas at Arlington, and Southern Methodist University. He is a warrior and a peacemaker: trial lawyer of 44 years with over 175 trials, and a D Magazine Best Lawyer for Alternative Dispute/Mediation. Board Certified, Personal Injury Trial Law and Civil Trial Law, Texas Board of Legal Specialization, and one of only 500 U.S. members in the International Academy of Trial Lawyers. He hangs his professional hat at Sommerman McCaffity & Quesada, LLP.; and his personal hat with wife, Sandy (a/k/a BabyCakes), children, and grandchildren (a/k/a Angels).

Al believes that professionalism is more than honesty and civility: “The law is a calling. Our law licenses are a privilege, not a right. While honesty and civility and respect for others are major tenants of our profession, the duty and obligation of community and public service is equally important.”

B-HA-P (Al’s license plate)

Al Ellis

As president of the Dallas Bar Association, he focused on inclusion, diversity, and community service. He and Rex Spivey partnered the DBA with Habitat for Humanity, and started the Home Project, now in its 25th year. Al is a core volunteer, participating in the building of hundreds of homes in Dallas, and working with the Carter Work Project in Vietnam, The Gulf Coast, and Haiti.

A full edition of Headnotes could be devoted to listing Al’s honors, accolades, awards, memberships, affiliations, professional associations, community service work, and professional and personal achievements. A simple Google search will quickly deliver that information on this amazing soul.

Another edition could be filled with quotes from lawyers, judges, community leaders, family, friends, and the folks with whom he has worked, played, and served.

I decided to take a different approach for this article.

• In the pursuit of happiness many people are too busy to find that which they seek. There can be happiness in the way the light falls through the trees.

There can be happiness in the way our children (or grandchildren) call for us by name or in the familiar sight of our home as we round the corner two blocks away. Happiness weaves its way through precious memories and keepsakes that have no monetary value but are priceless to us. Many take enormous delight in the presence of a beloved pet, just the way it looks at us or the unconditional love it pours upon us. Days of Healing, Days of Joy (editorial comment: easy to post; hard to do sometimes. I may have posted this cuz I needed my own reminder).

Cool dude, Grandpoppy.

• There was a boy with skin as dark as the earth & a girl with eyes as blue as the deep & they loved each other so well that people could not tell them apart, for in their hearts, there was no difference between them. Brian Andreas.

• It takes a village. We must all volunteer more, contribute more time and money, show more compassion and respect and do more for our neighbors

in need. In short, do whatever we can, whenever we can, with whatever talents we have.

Freedom is not free.

• Supreme Court gay marriage ruling.

There is justice after all.

• . . great big giving heart, his endless love of God and family. (Debbie Rima, Al’s assistant at SM&Q) • The greatness of our country is the way we rise up to help those hurt by disasters and war.

• Everyone sees the big things, but those smaller things are beautiful and people might not notice them if I didn’t emphasize them. Georgia O’Keeffe • Never let your head hang down.

Never give up and sit down and grieve.

Find another way. And don’t pray when it rains if you don’t pray when the sun shines. Satchel Paige • The most wasted day of all is that on which we have not laughed. Sebastien R.N. Chamfort • The salvation of man is through love and in love. Viktor Frankl • My dog does this amazing thing where he just exists and makes my whole life better because of it. 2 Traveling Dogs Al Ellis’ existence makes the whole world better. He has made a difference in so many lives through his professionalism and commitment by words, deeds, and actions. And yet at the end of the day, he would be the first to say “You can call me Al.” Paul Simon Please come celebrate with Al at 3:30 p.m. on Friday, November 4, 2016, at the DBA Annual Meeting at the HN Belo Mansion.

Dawn Fowler is a member of the Publications Committee, and practices family law. She can be reached at dawn@ dawnfowlerlaw.com.

4 He a d n o t e s l D a l l a s B a r A s s o ciation

October 2016

President's Column

Headnotes

Alicia Hernandez and What May Be The Most Important Thing We Do

BY JERRY ALEXANDER

Last month’s Headnotes headlined the great news that Alicia Hernandez has been named the next Executive Director of the Dallas Bar Association to succeed Cathy Maher upon Cathy’s retirement at the end of this year. The article talked about all of the things that Alicia had planned for next year and all of the great experience she would bring to the job.

All true.

Nestled in the longest paragraph in the article is a single sentence that merits its own “article” in this column. The quote reads, “She has served as the Director of DVAP, which has grown to a $1 million program under her leadership.” The quote does not point out that she grew this program from a “seedling” to an oak that raised $1 million per year and provides 10 times that in value every year in legal services for the poor.

The great news about filling the new Dallas Bar Association’s Executive Director position is that it is going to be filled by Alicia Hernandez. The downside in that news is Alicia has to find someone to fill her shoes as Director of DVAP. These “shoes” are more like seven league boots! The overall challenges for DVAP are ever growing.

Because of changes in the County’s demographics over the past decade and a half, the Dallas Volunteer Attorney Program has not only become one of the most important things the Dallas Bar Association does, it may have become the most important thing we do. It is certainly the most important thing we do insofar as community outreach is concerned.

You see, there are presently 611,168 people (25 percent of the Dallas County population) living in Dallas County who qualify for legal aid. That is over 2-1/2 times the number reported a mere decade and a half ago in the year 2000. To qualify for legal aid, an individual must not have income of more than $14,850 per year.

A family of four must not have income of more than $30,375 per year. There are an additional 423,276 people in Dallas County who fall within Legal Aid’s eligibility guidelines who could potentially qualify for legal aid services after review of their expenses such as rent or mortgage payments and child care.

These are staggeringly large and intimidating numbers, but there are some silver linings in them.

First of all, thankfully, all of these people do not need legal services, and the ones that do, do not all need them at the same time. Last year, through DVAP and its amazing staff, Dallas Bar Association volunteers donated 23,620 hours of recorded pro bono service through the program. DVAP volunteers complement the services of Legal Aid of NorthWest Texas’ (LANWT) staff attorneys. Together they handle a large number of domestic violence, landlord tenant, veterans, benefits, foreclosure, probate, and re-entry issues that provide immediate and emergency services to clients that help protect their safety and well-being.

We all know that many lawyers donate many hours per year outside of the program also. A total of 5,973 people were helped with their legal problems in 2015 by the Dallas Volunteer Attorney Program and 3,871 people were helped by LANWT. (Many others were helped with free legal advice from the DBA’s Legallines and, again, from many practicing attorneys and DBA members who volunteered outside of the program.)

Obviously, other methods need to be used to keep up with this ever increasing demand. Every day over 100 people show up at the George Allen Courthouse looking for justice primarily in matters dealing with family law issues, but other issues as well.

They come to the Courthouse because they do not know where

else to go, how to get a lawyer, or how the legal system works from the standpoint of what it can and cannot do. The good news is these people are coming to the Courthouse for redress of their grievances and justice, and are not taking matters into their own hands or taking them to the streets. Societally, it is extraordinarily important—maybe the most important thing we do—that people like this not be turned away when they seek justice at the courthouse since this is their entrée into our legal culture. We are still one of the few countries that is a nation of laws with a functioning legal system.

I was privileged to attend a meeting in late August of a very special group of people looking for additional ways to work on this problem. In the Strasburger Room of the Belo Mansion, people holding the following offices were assembled all discussing what could be offered to meet these needs. The Dallas County Judge and other representatives of Dallas County were there, the President of the State Bar of Texas was there, the Dean of the University of North Texas College of Law at Dallas was there, the head of the SMU Dedman School of Law Family Law Clinic was there, Alicia Hernandez as head of the Dallas Volunteer Attorney Program was there, as was the President, Chair of the Board, and various committee heads of the Dallas Bar Association.

This same group of people will meet again this month to continue their work, and after hearing the sincerity and competence of all those present, I am convinced that good solutions and programs will be conceived and implemented, many of them on a trial basis, to see how best to address the delivery of legal services in civil matters to people who cannot afford them, but who really need them.

More great news is that DVAP’s Equal Access to Justice Campaign is off to a wonderful start! In addition to our growing list of donors, we hosted an EAJ Happy Hour Kickoff on September 8. Thanks to the hard work of Campaign Co-Chairs Karen McCloud and David Kent, the event brought together an amazing group of Corporate Counsel attorneys who volunteered their time as “celebrity bartenders,” helping to raise money for DVAP. The evening’s event raised almost $13,000 in less than two hours thanks to the help of these folks: David McAttee, AT&T, Inc. & Honorary Chair, 2017 EAJ Campaign; James Bristow, Enlink Midstream; Clarence Brown, III, Contran Corporation; Larry Foust, Children’s Health System of Texas; John Greco, One Technologies, LLC; Paul Kirkpatrick, Commercial Metals Company; Kath Kotel, TGI Friday; Paul Leslie, Parkland Health & Hospital System; Tom Mielke, KimberlyClark; Bhaveeni Parmar, Ziosk; Tracy Preston, The Neiman Marcus Group, Inc.; Carey O’Connor, Flowserve Corporation; Julia Simon, Mary Kay Inc.; Cynthia Sutherland, Pepsico; and Cynthia Trochu, Texas Instruments Incorporated.

The new Dallas Volunteer Attorney Program Director not only has big shoes to fill, but an ever growing challenge to meet.

The really good news there is that not only will Alicia Hernandez, essentially the godmother of the Dallas Volunteer Attorney Program, be primarily responsible for hiring that new Director, she will also be at the helm of the Dallas Bar Association to assist that new Dallas Volunteer Attorney Program Director in moving forward.

Our contributions to the Dallas Volunteer Attorney Program, both financially and in volunteer hours, are now more important than ever.

Our members’ generosity in both respects may be the most important thing we do.

See you at the Belo!

Jerry HN

SAVE THE DATE

Published by: DALLAS BAR ASSOCIATION 2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.

OFFICERS President: Jerry C. Alexander President-Elect: Rob D. Crain First Vice President: Michael K. Hurst Second Vice President: Laura Benitez Geisler Secretary-Treasurer: Sakina Rasheed Foster Immediate Past President: Bradley C. Weber Directors: A. Shonn Brown, Hon. Rob Cañas, Jonathan Childers, Dawn Estes, Rocio Cristina Garcia (President, Dallas Hispanic Bar Association), Stephanie Gause (President, Dallas Association of Young Lawyers), Hon. Martin Hoffman, Krisi Kastl, Bill Mateja, Karen McCloud, Kate Morris, Cheryl Camin Murray, Emmanuel Obi (President, J.L. Turner Legal Association), Monika Sanford (President, Dallas Asian American Bar Association), Diane M. Sumoski, Robert L. Tobey (Chair), Aaron Tobin (Vice Chair) and Victor D. Vital Advisory Directors: Christopher Kang (President-Elect, Dallas Asian American Bar Association), Angelina LaPenotiere (President-Elect, Dallas Hispanic Bar Association), Tramaine Scott (President-Elect, J.L. Turner Legal Association), and Paul Simon (President-Elect, Dallas Association of Young Lawyers) Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Leon Carter, John Jansonius, Gregory Sampson and Brad Weber

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October 2016

D al l as Bar A ssoci ati on l Headnotes 5

AUBREY M. CONNATSER Top 100 Attorneys in Texas (Super Lawyers 2014-15) Top 100 Attorneys in DFW Top 50 Women Attorneys in Texas (Super Lawyers 2014-16) Board Certified in Family Law (Texas Board of Legal Specialization )

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6 He a d n o t e s l D a l l a s B a r A s s o ciation

Focus

October 2016

Business Litigation

Discovery from the Internet of Things

BY KENNETH JOHNSTON AND DAN KLEIN

In a fraud case, you need to identify a key witnesses’ location on a specific date to substantiate a conspiracy claim. Can you subpoena data from her Fitbit or her car’s GPS device to show her location? In a product liability suit, you need to know more about conditions in a house before a devastating fire. Can you collect data from the house’s HVAC system? How would you respond to those types of discovery requests?

Business litigators are likely to face those questions as discovery expands into the world of everyday items that communicate through the Internet, i.e. the “Internet of things” or “IoT.” IoT discovery will become more important, and prevalent, as more “things” become connected. Credible sources predict 20 to 50 billion devices being connected by 2020.

Already there are more devices connected than people on the planet.

IoT discovery has a range of potential uses in business litigation. Many connected objects transmit their location, like a growing number of manufactured items that communicate as they move through the supply chain. Knowing the precise location of goods could be useful in contract disputes. Wearable fitness devices collect and transmit highly detailed health information. That information can help prove a plaintiff’s physical injuries, [as occurred in a recent Canadian personal injury case], or undercut damages claims. Aggregated data from “smart cars” on performance and vehicle condition could be relevant to class action suits challenging automobile safety, and data from individual vehicles can be used in accident and workplace injury lawsuits, as happened in a recent California lawsuit. The possibilities for creative discovery will only increase as the IoT grows.

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IoT discovery, however, poses preservation and collection challenges and may be prohibitively expensive in many circumstances. The following suggestions can help minimize those difficulties. Begin discussing IoT discovery with clients before litigation to address possession and retention issues. Texas Rule of Civil Procedure 192.3(b) limits discovery to items in the party’s “possession, custody, and control.” Some IoT devices store data locally, but, more commonly, devices transmit data to central storage facilities in “the Cloud,” usually operated by a third party. Clients should consider contractually specifying with the Cloud provider as to who controls that data.

Without a contract, a court may focus on the client’s use of and access to the data to determine whether it “possesses” that data under Tex. R. Civ. P. 192.7(b) and is responsible for its production.

The Texas Supreme Court’s 2014 Brookshire Bros Ltd. v. Aldridge decision and the recent amendments to Fed. R. Civ. P. 37(e) have clarified that a litigant has a duty to preserve information when litigation is reasonably foreseeable and the litigant knows such information may be relevant. Thus, it is important to understand the nature of IoT data the client collects so that when litigation becomes foreseeable, you can advise the client to institute appropriate retention measures. If the data is stored on individual IoT devices, then the client should consider working closely with employees who may not understand how best to preserve data on their devices. A standard hold letter may not be sufficient.

Another issue with IoT discovery is the potentially extensive costs asso-

ciated with collection and production, although litigators responding to IoT discovery requests can invoke a number of authorities to limit their costs. Texas Rule of Civil Procedure 196.4 limits electronic production to that “reasonably available to the responding party” and authorizes cost shifting if “extraordinary steps” are required to produce the information. Before fully engaging in IoT discovery, defense counsel can suggest targeted sample discovery to assess costs, as the Texas Supreme Court suggested in the e-discovery context in In re Weekley Homes. In re Weekley Homes further sets a high bar to allowing requesting parties to obtain direct access to IoT devices or databases. The 2015 amendments to Fed. R. Civ. P. 26 can also support limitations on IoT discovery. If IoT discovery is allowed, the good news is that review costs should be less than in typical document e-discovery, because privilege review and individual document analysis will likely be unnecessary.

While the Texas and Federal Rules of Civil Procedure and judicial decisions on e-discovery set a framework for IoT discovery, there are not yet any published decisions directly addressing it. In this developing area of the law, awareness of this growing data source’s benefits and risks and early client communication will help prepare you to effectively negotiate with opposing counsel and if discovery HN battles do arise.

Kenneth Johnston is a director, and Dan Klein an associate, at Kane Russell Coleman & Logan PC. They can be reached at kjohnston@krcl.com and dklein@krcl.com, respectively.

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October 2016

D al l as Bar A ssoci ati on l Headnotes 7

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8 He a d n o t e s l D a l l a s B a r A s s o ciation

October 2016

Finding Life Balance In Your Legal Career

BY RICHARD Y. CHENG

Finding the right “life balance� for attorneys can be challenging, yet so necessary. Life balance is about maintaining a homeostasis and can be measured by different human dimensions – physical, social, emotional, psychological, and spiritual. Life balance does not look the same for everyone because we are all different people with varying degrees of tolerance and diverse life experiences. As a whole, attorneys function in competitive, and sometimes adversarial, work environments. Each assignment, client request, or business development is measured by quality, keen analysis, timelines, and results. As such, attorneys are often pressured to produce quality work in an abbreviated time frame, even if it is at the expense of personal health and life balance. Because of this, many attorneys suffer from depression, anxiety, and physical ailments, such as high blood pressure, weight gain, and cardiac illnesses.

Often times the physical ailments are major contributing factors to depression, anxiety, and addiction (e.g. alcohol, gambling, etc.), creating a vicious cycle and a domino effect that are difficult to

stop. The key word here is difficult, but it is not impossible.

To achieve life balance, attorneys should assess and identify their own personal needs in each human dimension.

It is vital to review your own investment and priorities, professionally and personally. In the process, more self-awareness may be realized together with the recognition of the need for change. For example, if weight gain has occurred during the course of a busy legal career, an attorney may experience self-doubt, fostering secondary depression. Emotional instability arguably alters one’s psychology (e.g. sadness), inducing other unhealthy behaviors, such as excessive use of alcohol or drugs. A cycle of unhealthy behaviors results, and life balance is lost. So how can attorneys break these cycles and achieve better life balance during their careers? Here are some tips using a wellness approach: 1. Commit to a realistic “game plan� – do not set unrealistic goals. Do not expect to run five miles in 30 minutes if you lived a completely sedentary lifestyle for the past three years. Do not expect to complete the Insanity Max 30 workout if you have only worked out once in the past year. Rather, find something

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you enjoy and know you are likely to commit to.

2. Find an enjoyable hobby – this might be a good opportunity to explore and find a new activity that brings personal enjoyment and happiness. It can be roller blading, cooking, a softball league, or gardening, etc. Also, by having a friend or spouse participate, it can bring more joy, more social interaction, and maintains long term engagement. Do not procrastinate. Just do it.

3. Embrace an active and food conscious lifestyle – there is no easy way around it. Commitment to some form of exercise or active lifestyle is highly recommended in achieving better life balance.

Exercise and living an active lifestyle can help develop a sense of personal accomplishment outside of work, heighten beneficial hormone levels (e.g. endorphins), and mitigate unhealthy weight gain.

Beyond an active lifestyle, it is equally critical to educate yourself on implementing a health conscious diet. It may be helpful to consult a dietitian to gain a new perspective on how a more health conscious diet can be formulated. By coupling a healthy diet with an active lifestyle, better life balance is one step closer.

4. Consider spirituality for support – some have personal faith to lean on. Others have family members or an alternative support system. Either way, spirituality has been shown to be supportive during a major life event or in high stress environments. For some attorneys, especially during challenging time periods, spirituality can provide hope. Finding hope is described as a spiritual belief that enables people to trust that “things are going to work out somehow,� allowing an individual to find the will to fight results in direct action to deal with the life circumstance. In creating more balance, spirituality can assist you in making

sense of what is happening in your professional and personal life.

5. Access educational and support resources – know that educational and supportive resources are readily available when balance becomes a challenge.

The Texas Lawyers’ Assistance Program (TLAP) provides confidential crisis counseling and referral program that helps Texas lawyers, law students and judges challenged by substance use and other mental health issues, including clinical depression, anxiety and stress. All communication with TLAP is confidential by statute. The Sheeran-Crowley Trust provides financial help to Texas attorneys, judges, and law students who need treatment for substance abuse, depression, or other mental health issues. Help is available by calling 1-800-343-8527.

The DBA’s Peer Assistance Committee is committed to providing CLE opportunities for attorneys to learn more about self-care, including providing programming which addresses wellness, mental health, and chemical dependency issues. The Peer Assistance Committee will host Brian Cuban at noon on November 4 when he will share his experience and new book, The Addicted Lawyer: Tales Of The Bar, Booze, Blow and Redemption.

Finding an appropriate lifestyle balance (again, it differs for everyone) is not a simple process. It is an on-going evolution and requires conscious effort to implement healthy practices. By adopting a wellness approach, attorneys can better manage stress levels and avoid unhealthy lifestyles, while minimizing the prospects of mental health challenges and debilitating physical conditions.

HN Richard Cheng is a partner at Shannon, Gracey, Ratliff & Miller, L.L.P. and a member of the DBA Peer Assistance Committee. He can be reached at rcheng@shannongracey.com.

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October 2016

D al l as Bar A ssoci ati on l Headnotes 9

10 H e a d n o t e s l D a l l a s B a r A s s ociation

Focus

October 2016

Business Litigation

Don’t “/s” That Email . . . Just Yet

BY DANIEL R. CORREA

Email interactions among attorneys is prevalent. Attorneys often send emails with a standard signature block denoting the attorney’s name and contact information. A simple click of the mouse and an attorney’s name is transmitted to another attorney or party’s inbox. You may wonder, now, what’s in a name? But unlike the question Juliet poses in her soliloquy about the vicarious nature of concepts in Romeo and Juliet, your name matters. The way in which you convey your name in an email may bind you to its content under Texas Rule of Civil Procedure 11.

In order for a Rule 11 agreement to be enforceable between attorneys or parties touching “any suit in pendency,” the agreement must be in writing, signed and “filed with the papers as part of the record or made in open court and entered of record.” Tex. R. Civ. P. 11. Emails or series of emails can constitute a writing, so long as the email(s) is/are “‘complete in every material detail and contain all of the essential elements of the agreement.’” Broderick v. Kaye Bassman Int’l Corp., 333 S.W.3d 895, 904-905, 909 (Tex. App.–Dallas 2011, no pet.) (quoting

Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995)).

Your signature to the email may satisfy the signature requirement under Rule 11.

Cunningham v. Zurich Am. Ins. Co., 352 S.W.3d 519, 529 (Tex. App.–Fort Worth 2011); Tex. Bus. & Com. Code §§ 322.002, 332.009. Your standard signature block may not bind you, but anything you physically type into the email that denotes an intent to personally sign the email may bind you.

Cunningham, 352 S.W.3d at 530.

In Cunningham, the court looked to the “signature block” and held it did not demonstrate an intent to sign the email. Cunningham, 352 S.W.3d at 530. There was no evidence that the party had personally typed the signature block at the bottom of the email and, even if the signature block were personally typed by the sender, the email did not evidence an intention that the signature block be her signature. After all, signature blocks are standard; typing one in an email might just be a matter of course . . . “oops, better include a signature block.” The court also noted that the email did not contain a graphical representation of a signature, for example an “s/” followed by her name.

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Consider how often you may do something as seemingly benign as typing your first name in a responsive email that does not contain your standard signature block.

Tybalt, You are my mortal enemy and I wish the plague upon you.

With all my heart, -Mercutio Depending on the content of that email and who is on the receiving end, you may find yourself defending that seemingly benign action against a claim that you were bound to follow through with something.

You may have viable defenses against such a claim—i.e., the parties did not agree to conduct transactions through electronic means; the material terms were not all contained in the email(s). But why place yourself in that position?

You might wonder now: Don’t both attorneys or parties have to sign the agreement for a Rule 11 to be enforceable? Not necessarily. Texas courts apply a statute of frauds analysis to determine whether the “in writing” requirement for Rule 11 agreement enforcement is satisfied. Broderick, 333 S.W.3d at 904-905. The same analysis likely applies to the signature requirement.

The statute of frauds only requires signature by the party against whom enforcement of the contract is sought. See e.g., Tex. Bus. & Com. Code § 26.01; Berryman’s South Fork, Inc. v. J. Brinkman Int’l Corp., 418 S.W.3d 172, 192 (Tex. App.–Dallas 2013, pet. denied). Rule 11 itself does not state who must sign the contract in order for it to be enforceable. Cf City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979) (holding judge’s signature on a summary judgment stipulation that was made in open court and was described in the court’s order satisfied Rule 11’s signature requirement).

Read your emails carefully for language that might be construed to form an agreement to do something, to change some deadline, or alter some procedure, before you type in your name. Consider creating a signature in outlook that contains a clear disclaimer to the email forming any agreement between the parties. At minimum, have the disclaimer ready to include at the click of a button. Don’t let your “/s” get you HN in a bind.

Daniel R. Correa is an associate at Cowles & Thompson and can be reached at dcorrea@cowlesthompson.com.

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October 2016

D al l as Bar A ssoci ati on l Headnotes 11

12 H e a d n o t e s l D a l l a s B a r A s s ociation

Focus

October 2016

Business Litigation

The Audit Interference Rule: Accounting Malpractice in Texas

BY MARTIN WOODWARD

An auditor’s sign-off on a company’s financial statements is a signal to other businesses that the audited company is in good financial shape. Of course, if the company later proves to be undercapitalized or even insolvent, those who relied on the audit may—to use the obvious pun—look to hold the accounting firm accountable.

If you are tasked either with recovering from or defending the accounting firm, you might start building your litigation strategy from the reasonable assumption that the comparative fault scheme in Texas will let it point fingers elsewhere. But be aware that an old legal doctrine might prevent the accountant from ever putting the claimant’s fault in play—and that should factor into your planning.

The “audit interference rule” has its roots in early 20th century jurisprudence.

It emerged as an exception or reaction to the then-prevalent doctrine of contributory negligence, the all-or-nothing principle that completely bars a plaintiff’s recovery even if the plaintiff is only partly at fault.

In accounting malpractice cases, contributory negligence had shielded accountants from liability in cases where, for example, an audit failed to discover embezzlement by an employee of the audited company.

But in the landmark case of National Surety Corp. v. Lybrand, 256 A.D. 226, 9 N.Y.S.2d 554 (1939), the New York Court of Appeals announced a new rule: an accountant may assert contributory negligence only if it contributed to the accountant’s failure to perform the audit properly.

Thus, broadly expressed, the hold-

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ing makes whatever happened before the audit irrelevant—and it keeps the claimant off the verdict form. The rule of National Surety, later dubbed the “audit interference rule,” was adopted by courts in several jurisdictions across the country, effectively leaving accountants without a contributory negligence defense.

But over time, almost all jurisdictions abandoned contributory negligence in favor of some form of a comparative negligence model, reducing a plaintiff’s damages in proportion to fault. Predictably, with the dawning of the age of comparative negligence, courts in some jurisdictions—noting the contributory negligence pedigree of the audit interference rule—rejected it, restoring a viable comparative negligence defense to accountants in cases challenging their conduct.

Other courts, though, continued to find support for the audit interference rule even where a comparative negligence scheme was in place. For these courts, the rule is consistent with principles that apply in other areas of professional liability jurisprudence, such as those preventing physicians from using a comparative negligence defense against a patient on the basis of the patient’s pre-treatment conduct.

Today, there is no national consensus on whether to limit an accountant’s use of a comparative negligence defense in a malpractice suit in keeping with National Surety: high courts in some states have expressly adopted the audit interference rule, high courts in others have rejected it, and in several states—such as Texas—the highest court has not weighed in definitively.

So, for Texas litigators on either side of a negligent audit case, a significant legal battle awaits. In arguing either for the applica-

tion of the audit interference rule, or, conversely, for the availability of a comparative negligence defense, both sides will find plenty of ammunition in the out-of-state opinions supporting and rejecting the rule.

For accounting malpractice plaintiffs in Texas, the arsenal includes at least one Texas case applying the audit interference rule: Greenstein, Logan & Co. v. Burgess Marketing, Inc., 744 S.W.2d 170 (Tex. App.—Waco 1987, writ denied). This opinion discusses and endorses the reasoning of the audit interference rule. But even a quick glance at its citation history shows that it has been criticized and distinguished, more than once, by courts in other states that ultimately rejected the audit interference rule (and, of course, it is not a Texas Supreme Court case).

For defendant accountants looking to stave off the audit interference rule and use a comparative negligence defense, Richardson v. Cheshier & Fuller, L.L.P., 2008 WL 5122122 (E.D. Tex. Dec. 3, 2008) is an arrow in your quiver. This case squarely rejects the audit interference rule in favor of the Texas statutory comparative negligence scheme. But the discussion is perfunctory and the case is unpublished, leaving it open to attack.

Until Texas law is settled, the audit interference rule may prevent an accounting firm from using a comparative negligence defense—unless the accountant succeeds in persuading a court to reject it. Texas litigators faced with pursuing or defending claims involving faulty audits should therefore be familiar with this rule and ready to fight for or against it.

HN Martin Woodward practices with The Stanley Law Group. He can be reached at mwoodward@stanleylawgroup.com.

October 2016

D al l as Bar A ssoci ati on l Headnotes 13

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14 H e a d n o t e s l D a l l a s B a r A s s o ciation

October 2016

Foundation Announces Annual Diversity Scholarship Dinner Fundraiser Staff Report

The Dallas Bar Foundation (DBF) is pleased to announce that for its 6th annual fundraiser dinner event, Bob Woodward, two-time Pulitzer Prize journalist and Associate Editor of The Washington Post, will be the keynote speaker.

The event, An Evening with Bob Woodward, will be held on Tuesday, November 15, 2016 one week after the presidential election. The Presenting Sponsor for the event is Crockett McBride & Associates at Merrill Lynch.

This annual event, which debuted in 2011, under the leadership of Rob Roby and Mark Shank, raises funds for the Foundation’s Judge Sarah T. Hughes Diversity Scholarship program for minority law students. Previous events, which have featured David Brooks, Doris Kearns Goodwin, former Senator Bill Bradley, Ken Burns, and David McCullough as keynote speakers, were sold out, and organizers are expecting a similar response this year with Bob Woodward.

“We are excited to have Bob Woodward join us, for this year’s event, one week after the presidential election. Having Talmage Boston, a DBF Trustee and shareholder at Winstead PC, introduce Woodward and serve as host is a real

Bob Woodward

bonus for us,” said Rey Rodriguez, DBF Chair, noting that Mr. Boston just had his most recent book, Cross-Examining History – A Lawyer Gets Answers From the Experts About Our Presidents, released in September.

“We are also deeply appreciative of Crockett McBride & Associates at Merrill

Lynch who is the event sponsor. They are well known for providing financial services to many legal professionals. The Dallas legal community’s support of the Hughes Diversity Scholarship program is critical in continuing the cycle of success the scholarships create for the students. It is so essential that we do all we can to enhance the diversity pipeline, and this program is a critical part of that effort. I am proud to announce that our Class of 2016 Hughes Scholars, Camille Powell and Dorlin Armijo, graduated with honors in May from SMU Dedman School of Law.” Earlier this year the Dallas Bar Foundation selected three students to be Hughes Scholars who will represent the three area law schools in North Texas: SMU Dedman School of Law, UNT Dallas College of Law, and Texas A&M University School of Law. The evening event is a great venue for law firms and businesses to entertain guests and meet Bob Woodward.

A renowned journalist and author, Bob Woodward has shared in two Pulitzer Prizes, first in 1973 for the coverage of the Watergate scandal, and second in 2002

as the lead reporter for coverage of the terrorist attacks on 9/11. Bob Schieffer, of CBS News has said, “Woodward has established himself as the best reporter of our time. He may be the best reporter of all time.”

The scholarship program, which the event supports, was established in 1981 and promotes diversity in the Dallas legal profession by attracting exceptional minority student leaders to Dallas. To date, the Foundation has awarded over $2.1 million in Hughes Scholarships to 55 students.

With the three new scholars selected in 2016 and who are attending law school this fall, the number of students, who have been provided an opportunity to achieve their dream of becoming a lawyer and practicing in Dallas, increases to 58.

Together we are making a difference and addressing the need for increased diversity in the North Texas legal ­community.

For information about table sponsorships and tickets for “An Evening with Bob Woodward” please contact Elizabeth Philipp at the Dallas Bar Foundation, (214) 220-7487, or go to www.dallasbarfoundation.org for more information. HN

DVAP’s Finest

Jonathan Rosamond

DVAP Pro Bono Awards—Tuesday, October 25—Belo—5:00-7:30 p.m.

Sponsored by the DBA Pro Bono Activities Committee and the Dallas Volunteer Attorney Program in conjunction with the ABA National Pro-Bono Celebration. For more information, contact Ellie Pope at popee@lanwt.org.

Pro Bono Week Schedule of Activities October 24

9:00 a.m.-1:30 p.m.

Kinship Legal Custody

October 25

Noon-1:00 p.m.

Wills Drafting CLE

October 25

5:00-7:30 p.m.

Pro Bono Awards

October 26

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JLTLA & DVAP CLE

October 26

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Belo Legal Clinic

Jonathan Rosamond is an Associate in the litigation group of Baker & McKenzie LLP. He currently serves as the Co-Chair of the Veterans Outreach Subcommittee of the Pro Bono Activities Committee of the Dallas Bar Association. The Veterans Outreach Subcommittee assists with the Veterans Legal Clinic, which is generally held on the first Friday of each month and located at the Veterans Resource Center near the Veterans Administration Hospital. The Veterans Legal Clinic is an intake clinic that connects Veterans in need of legal services in our community to attorneys willing to provide pro bono legal services through DVAP. As part of his role as Co-Chair, Jonathan is responsible for initiatives to raise awareness of and recruit volunteers for the Veterans Legal Clinic. Recently, these initiatives have included increasing the web presence of the Veterans Legal Clinic in an attempt to target younger Veterans who may not frequent the VA. In addition, Jonathan presents CLEs to pro bono volunteers from law firms and companies in the community who are interested in assisting veterans. Jonathan is also a member of Baker & McKenzie’s Pro Bono Committee. In that role, he recently assisted in the planning of his firm’s “Pro Bono Week” events for their summer associates. These events included a training on volunteering at DVAP clinics, a pro bono roundtable where the firm’s lawyers discussed their pro bono experiences with summer associates, an office-wide fundraiser for DVAP, and co-sponsoring the East Dallas Clinic with their summer associates. Jonathan has also taken on representation of two DVAP clients in the last two years. Thank you for all you do, Jonathan!

Pro Bono: It’s Like Billable Hours for Your Soul.

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October 2016

Focus

D al l as Bar A ssoci ati on l Headnotes 15

Business Litigation

Federal DTSA – A New Avenue for Trade Secret Enforcement

BY LEIZA DOLGHIH

According to some studies, trade secret theft costs American companies more than $300 billion a year. At least one software security company found that more than 50 percent of employees keep confidential information belonging to their former employers and 40 percent plan to use such misappropriated trade secrets at their new job. It does not help that “trade secrets” are defined very broadly and include all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible.

The Federal Defend Trade Secrets Act (DTSA) is the first federal statute that allows companies and individuals who do not have patents, copyrights, or trademarks to sue in federal court to protect their trade secrets.

In May of this year, President Obama signed into law the DTSA, allowing USA companies, including those in Texas, to file lawsuits in federal courts to protect their trade secrets from being shared by former employees with their competitors. The DTSA contains many provisions similar to the Texas Uniform Trade Secrets Act (TUTSA) enacted in Texas in 2013. However, it also contains aggressive enforcement provisions, including courtordered seizure to prevent the dissemination and use of stolen trade secrets.

The DTSA contains several key features that may come to play an impor-

tant role in any business dispute involving intellectual property, breach of non-disclosure agreements, or any host of unfair competition claims.

Federal Civil Action

The DTSA creates a federal civil cause of action, giving original jurisdiction to United States District Courts. This will allow companies to decide whether to bring claims in federal or state courts, and may have the overarching effect of moving most trade secret litigation to federal courts. Unlike a lot of federal statutes, however, DTSA does not preempt Texas statute on trade secret misappropriation.

Instead, it offers an alternative venue for enforcing trade secret protections.

Additional Remedies

The DTSA allows those companies whose trade secrets have been stolen by unscrupulous employees or competitors to recover actual monetary damages, attorney’s fees, and punitive damages against the thief. It also allows the companies to seek injunctive relief preventing the thief from disseminating, using, or benefiting from the stolen information. These remedies are similar to the ones afforded under the state statute.

Seizure of Property

The DTSA includes a controversial and unprecedented provision that permits federal courts to issue an order, upon ex parte application in “extraordinary circumstances,” seizing property to protect against improper dissemination of trade secrets.

There are many questions surrounding the

practical implementation of this seizure provision, including how often the courts will allow such seizures and what standards they will apply in deciding whether to permit a party to seize competitors’ property that might contain its trade secrets.

Protection of Trade Secrets in Court

Under the DTSA, a court may not authorize or direct the disclosure of any information the owner asserts to be a trade secret unless the court allows the owner the opportunity to file a submission under seal that describes the interest of the owner in keeping the information confidential.

Thus, this provision extends beyond briefs filed by parties in court and instead reaches disclosures at trial and court opinions.

Whistleblower Protection

In order to be able to take advantage of the DTSA, employers must provide their employees with notice that they will be protected from criminal or civil liability if they disclose a trade secret in confidence to a government official or to an attorney for the purpose of reporting a violation of law. If this notice is not included in a contract or agreement with an employee or independent contractor that governs the use of a trade secret or other confidential information, then the employer may not recover punitive damages or attorney’s fees in any lawsuit brought under the DTSA. HN

Leiza Dolghih is a senior attorney at Godwin Bowman & Martinez PC and the author of www.northtexaslegalnews.com. She can be reached at ldolghih@godwinlaw.com.

Celebrating 34 Years!

DVAP’s Pro Bono Awards Celebration Tuesday, October 25, 2016 5:00-7:30 p.m.

The Pavilion at the Belo Mansion Hosted by the Dallas Volunteer Attorney Program RSVP to popee@lanwt.org.

16 H e a d n o t e s l D a l l a s B a r A s s ociation

Column

October 2016

Ethics

Representing Multiple Parties During Settlement Negotiations

BY STEPHEN ANDREW KENNEDY

Rule 1.06(b)(2) of the Texas Disciplinary Rules of Professional Conduct provides that “a lawyer shall not represent a person if the representation of that person . . . reasonably appears to be or become adversely limited by the lawyer’s or law firm’s responsibilities to another client or to a third person or by the lawyer’s or law firm’s own interests.”

Note 3 to the Rule provides that “an impermissible conflict may exist or develop by reason of . . . the fact that there are substantially different possibilities of settlement of the claims or liabilities in question.”

For example, if a firm is representing multiple defendants in a patent case, it is foreseeable that Plaintiff will make a settlement offer to Client A but not Client B. Client A may want to accept the terms, or negotiate further. Client B could be adversely affected if A settles because (a) the non-settling party will be required to defend the case alone without the benefit of Client B contributing to the defense costs; and (b) Client A will be effectively contributing money to Plaintiff’s war chest to pursue Client B. In a patent case, a third adverse situation arises because the settle-

ment agreement between Client A and the Plaintiff will be evidence of the amount of a reasonable royalty under the patent damages statute.

The firm representing multiple clients faces other ethical issues resulting from these facts. D.R. 1.03(a) requires counsel to keep B informed of all matters relating to the case. That would include the settlement offer to A. One can easily envision B directing counsel to submit a competing offer, jeopardizing A’s settlement position.

By complying with D.R. 1.03(a), the firm potentially puts A’s interests at risk in violation of D.R. 105(b)(2) because the information concerning the possible settlement is confidential to A. If Client A insists that the settlement remain confidential, the firm will be in violation of D.R 103(a) with respect to Client B. In Haase v. Herberger, 44 S.W.3d 267 (Tex. App.—Houston [14th Dist.] 2001, no pet.), a Houston court reviewed a malpractice claim filed against a firm that had represented two parties in a settlement. In Haase, a wife and husband were involved in divorce proceedings and the two were represented by the same attorneys. During the pendency of the divorce proceed-

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ings, a settlement offer was made on a civil case, which arose prior to initiation of the divorce case, in which the husband and wife were co-plaintiffs. The husband did not desire to settle the case. The wife did. The wife obtained an order from the divorce trial court authorizing her to settle the civil case without the husband’s signature. Displeased with the result, the husband sued the couples’ attorneys, seeking forfeiture of attorneys’ fees. The court recognized that this fact scenario was certainly “consistent with being a potential conflict of interest.”

Id. at 270. Though the court found that the attorneys were otherwise authorized by law to proceed with the settlement due to the divorce court’s order, the court cautioned that in situations such as this, counsel “should have followed the direction found in subsection (c) of [Rule] 1.06.” Id. The Court emphasized that counsel should have had both parties “consent to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any.”

Id. (quoting Rule 1.06 (c)).

When does a settlement offer to A arise to “an impermissible” conflict in the

representation of both A and B? In Haase, the saving grace for the attorneys was the divorce court’s order permitting the wife to settle the civil case. In the hypothetical patent case presented, the attorneys do not have that situation. As soon as A gives an indication that it wants to negotiate a settlement with the Plaintiff, Note 3 to D.R. 1.06(b)(2) is triggered because an actual conflict has arisen due to “substantially different possibilities of settlement.” The firm must disclose the existence of the conflict and advise both clients that separate counsel is necessary at least for the purpose of advancing the settlement negotiations.

Sacrificing billable time to a pair of other law firms may not be the preferred result, but the Disciplinary Rules are clear and compliance is not optional. Protecting both clients’ interests, however, will yield more for the soul of the ethical lawyer than just monetary HN profits at the end of the day.

Stephen Andrew Kennedy is the founder and managing partner of Kennedy Law, L.L.P. He is grateful for the assistance of Chelsie Spencer, senior associate at the firm, for her assistance in researching and drafting this article. He can be reached at skennedy@saklaw.net.

DALLAS HISPANIC BAR ASSOCIATION Invites you to: Noche De Luz Scholarship Dinner and Awards Ceremony October 15, at the Perot Museum of Nature & Science For more information, log on to http://dallashispanicbar.com

2017 INAUGURAL OF Rob Crain A T T HE W ESTIN G ALLERIA D ALLAS

SCOTT SWEET Sweet Life Fund at Communities Foundation of Texas

Saturday, January 14, 2017 The Dallas Bar Association will inaugurate its 108th President, Rob Crain at the inaugural ball on Saturday, January 14.

HELPING H A NDS Scott Sweet was just a second-grader when he was severely burned by a live wire. He spent countless days

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October 2016

Focus

D al l as Bar A ssoci ati on l Headnotes 17

Business Litigation

Using Out of Court “Tweets” at Trial

BY NICHOLAS A.F. SAROKHANIAN

In a breach of loyalty, Jones ditched your company, pilfered crucial information and staff, and started his own competing venture. Unsurprisingly, you have to prove Jones’ bad conduct circumstantially. Thankfully, you were able to capture some Twitter “tweets” (Twitter is a social media platform where users post messages of up to 140 characters to their “followers,” which may be total strangers to the user) from Jones and his co-conspirators to fill in the gaps left by Jones’ paltry production. But how do you use tweets to tell the story of Jones’ betrayal to the jury on crossexamination? Many articles explain how to authenticate tweets; this article is designed to help you clear the hearsay hurdle your opposing counsel will surely throw in your path.

First Things First: What is Hearsay? Hearsay is an out of court statement of a declarant that is offered for the truth of the matter asserted. See Tex. R. Evid.

801, 802; Fed. R. Evid. 801(c), 802. Many out of court statements are not hearsay at all, e.g., are admissions of a party opponent; are not offered for the truth of the matter asserted but to establish some other fact; or are admissible as an exception to the hearsay rule. See, e.g., Tex. R. Evid. 803(3) (present sense impression); Fed. R. Evid. 803(3) (same).

The best strategy is to get a ruling that the statement on social media is not hearsay at all, and, if necessary, work your way through the applicable exceptions to the hearsay rule.

Not Hearsay: Tweets as Admissions of Party Opponent. In Texas, there are five types of statements that are considered non-hearsay admissions of party opponents. See Tex. R. Evid. 801(e)(2)(A)-(E); Fed. R. Evid. 801(d)(2). For the sake of brevity, let us look at two common types of these admissions.

The first example is the easiest. Say Jones tweeted the following message while he was still employed by your client and while he was stealing your client’s pricing strategies:

Use this tweet to show that Jones planned to compete with your client. This is Jones’ own statement and should be admitted as an admission of a party opponent.

The second example is a statement made by Jones’ coconspirators. Smith and Johnson quit within days of Jones leaving. On Jones’ last day, he made a tweet that “mentioned” Smith and Johnson (the @ symbol preceding a name is a way to include another user in one’s tweet) and used a “hashtag” (the # sign) in an expressive manner:

Use this tweet as foundation that Smith and Johnson were with Jones celebrating his last day, that “#teamwork” indicates that they were working with Jones on something, and that “#OnToTheNextOne” tends to show they were working with him on his new company instead of benignly working together for your client. This should be admitted (at least conditionally) to help you introduce

Johnson’s bombshell tweet to your client’s best customer about being able to offer lower prices than your client can: You can use this tweet when you tell the jury that your client lost the customer days after Jones and Johnson left, which tends to fill in the “gap” in the document production, undercut the defendants’ argument that the loss of that customer was not proximately caused by their departure, and prove up your client’s damages.

An Exception: Present Sense Impression. Do not lose hope if a tweet is considered hearsay. Many courts are applying the “present sense impression” exception to the hearsay rule to social media. See Tex. R. Evid. 803(1); Fed. R. Evid. 803(1). This makes sense because social media is electronic, meaning it never really disappears like an oral statement might in a witness’s memory (all tweets are archived at the Library of Congress), and thus tends to be more reliable than not. Moreover, because almost everyone carries a smartphone, and because social media encourages people to contemporaneously “share” even mundane parts of life immediately, there is a good chance tweets were made while or soon after the user perceived a statement (an example is a reporter “live-tweeting” a speech). Other possibilities are the excited utterances or even the then-existing conditions exceptions. See Tex. R. Evid. 803(2), (3).

Social media is here to stay. Smart business trial attorneys can better serve their clients and add another weapon to their arsenal by applying familiar evidentiary rules to use social media strategically to win trials.

HN Nick Sarokhanian is an associate at Greenberg Traurig, LLP. He can be reached at sarokhaniann@gtlaw.com.

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18 H e a d n o t e s l D a l l a s B a r A s s ociation

October 2016

The LawPay Security Series: Security Step 3

BY AMY MANN

Wi-Fi networks make it easy to connect the systems in your practice, both to each other and the outside world. However, they often make it easy for an intruder to gain access to those same systems, and the data therein. You can significantly reduce this risk by making a few important changes to your network configuration.

one or more guest networks, and wired local network (LAN) ports to connect directly to the router. We recommend that you keep your office devices and staff on the primary Wi-Fi (your “private” Wi-Fi network) or LAN, and use a guest network for any clients or visitors who need internet access.

users, but requires additional configuration which may require IT services.) With WPA2-PSK, a shared password is used to access the network. Use your password manager to generate a different, strong password for both your private and guest Wi-Fi networks.

From your browser, you will need to

Secure Administrator Access

Start by setting a strong password for administrative access to your wireless router. Many networks are breached because the default password was never changed. You will need to log in to your router’s configuration website to reset this password and update the other security options discussed in this tip. For most wireless routers, you access this website by entering “192.168.1.1” or “192.168.0.1” into your browser address bar. (Make sure you are connected to your network first, either via an Ethernet cable or Wi-Fi.) With administrator access locked down, you should now secure access to the network itself. Most wireless routers today support a primary Wi-Fi network,

your private network—and out-of-reach of your confidential information. If you are not careful, however, you may inadvertently allow your guests much greater access. When configuring your guest network, you may see an option to allow guests to access your LAN, local network, or intranet. Make sure you do not allow LAN access so that your guests cannot reach office systems that are wired directly to the router.

Physical Security

Enforce Wi-Fi Authentication

Access to all of your Wi-Fi networks needs to be password-protected. For small businesses, the predominant standard is referred to as WPA2-PSK or WPA2-Personal, or just WPA2. (WPA2-Enterprise can provide more flexible authentication options for larger practices with many

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find the wireless settings section of your router’s configuration. For each wireless network, you should: Set a network name, or SSID. This is what users will see when they choose from available wireless networks. Clearly differentiate your private and guest network names.

Choose “WPA2-PSK” for the network authentication method and “AES” for the encryption method. Depending on your router, these may be grouped together or split into two separate options, and they may use different labels like “WPA2-Personal” or “WPA2”. Do not use “WEP”, “WPA” (without the “2”), or “TKIP” (without “AES” included) since these options are less secure and may be easily circumvented.

Enter the password you generated for the network, also known as the preshared key.

Limit Guest Access

Your guest network is there to keep your clients and visitors separate from

Keep in mind that wireless routers can typically be reset to their factory configuration with the push of a button or a straightened paperclip. Once reset, the default password is the only defense between an attacker and your network.

If possible, keep your wireless router in a locked enclosure or cabinet with the reset mechanism inaccessible.

After completing these steps, you will have locked down access to your network configuration and created a secure way to connect your staff and clients to the network resources they need.

About LawPay

More than just a “merchant account,” LawPay offers legal professionals an effortless way to separate earned and unearned fees to avoid trust account violations when accepting credit card payments. LawPay contractually protects client funds by restricting the ability of any third-party from debiting monies from a Trust or IOLTA account, and is the only payment provider approved and endorsed by over 90 bar associations. For more information, visit our website at https:// lawpay.com/dallasbar or give us a call HN at (866) 376-0950.

Amy Mann is the Content Writer for Lawpay. She can be reached at amann@affinipay.com.

October 2016

Focus

D al l as Bar A ssoci ati on l Headnotes 19

Business Litigation

The Contours of the Texas Allied-Litigant Privilege

BY YVETTE OSTOLAZA AND MARGARET HOPE ALLEN

Lawyers who typically practice outside of Texas or in federal court may become accustomed to the protection of the common interest and joint defense doctrines.

In Texas, however, we have our own way of doing things, and that includes how we define privilege.

In 2012, the Texas Supreme Court changed traditional notions of common interest and joint defense privilege in Texas, relying on a very close reading of the Texas Evidence Rules. In re XL Specialty Insurance Company, 373 S.W.3d 46, 53 (Tex. 2012).

The Court held that Rule 503(b)(1) only permits an “allied litigant” privilege, which requires that a communication must be: • Between a client (or representative), or the client’s lawyer (or representative), to • A lawyer (or the lawyer’s representative) for another party in a pending action, and • Concerning a matter of “common interest therein.”

XL Specialty was defending a worker’s compensation claim against its insured, Cintas. The company’s outside counsel communicated with Cintas, and in a later lawsuit, the plaintiff sought these communications. The Court held the communications were not protected: “[the company] is the client, and the communications were between [the company’s] lawyer and [the insured], who is not represented by [the company’s] lawyer (or any other lawyer) and was not a party to the litigation or any other related pending action.”

The Court made clear that communications from one party’s lawyer, client, or the client’s representative must be to another party’s counsel in a pending litigation.

This was a departure from more commonly adopted common interest and joint defense doctrines. It is far from clear whether a communication between a litigant’s counsel and a separate non-party would be protected under this particular doctrine.

That said, in 2015, the Dallas Court of Appeals potentially limited the breadth of XL Specialty, in In re Texas Health Resources, 472 S.W.3d 895 (Tex. App.— Dallas 2015, no pet.). The court distinguished XL Specialty and found that communications between (a) counsel for the insured and (b) the insurer controlling the defense of the litigation, were privileged.

The Court reasoned that the insurer in Texas Health qualified as a “representative of the client” under Rule 503; this ruling stands in contrast to XL Specialty, where the insured could not be construed as the representative of the insurance company.

The case arose from the local Ebola scare at Presbyterian. One of the nurses who was infected with the virus sued Presbyterian’s parent company, Texas Health Resources (THR). The nurse sought discovery of a note written by a claims adjustor working on behalf of THR’s insurer. The note documented a conversation between the claims adjustor and in-house counsel at THR about the defense of claims under the employers’ liability portion of the THR workers’ compensation policy. The nurse’s legal counsel argued that the note was discoverable because it was written by a third party and was not between attorneys and clients. The Court rejected this argument.

The Court recognized that “[t]here is no general privilege between insurance companies and their insureds,” but noted that the “absence of a general insurer-insured privilege does not preclude the applicability of other recognized privileges that arise in the

Our Bench Book series just got better!

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cally give the insurer complete and exclusive control of that defense, including the ability to obtain professional legal services on behalf of the insured. For that reason, under the proper circumstances, communications between an insurer and its insured’s counsel may be shielded from discovery.

The Court also distinguished XL Specialty on the ground that in workers’ compensation litigation, the claim is brought directly against the insurer, which is defending itself, rather than against the employer.

We can expect the contours of the allied-litigant privilege to continue to evolve in Texas. For now, the critical lesson from these cases is that communications are more likely to be privileged if: 1. There is a pending action where the client is sued; 2. The client’s lawyer (or the lawyer’s representative) is party to the communication; 3. The communication is to a representative of the client; and 4. The communication is about a common legal interest.

HN

course of the insurer-insured relationship.”

The Court then turned to Rule 503(b)(1), which protects communications between “the client or the client’s representative and the client’s lawyer or the lawyer’s representative.” Under Rule 503(a)(2), “[a] ‘client’s representative is: (A) a person who has the authority to obtain professional legal services for the client or to act for the client on the legal advice rendered; or (B) any other person who, to facilitate the rendition of professional legal services to the client, makes or receives a confidential communication while acting in the scope of employment for the client.” The Court held that “[I]f a person is authorized by the client to obtain legal services or act on legal advice on behalf of the client or to make or receive confidential communications with respect to legal services, that person is a client’s representative even if the person is not an employee of the client.”

The Court applied this framework to communications between an insured and insurer. It reasoned that insurance companies typically have the duty to conduct the defense of the insured under a liability policy, including the authority to select, employ, and pay the attorney. Such liability policies typi-

Yvette Ostolaza is a partner, and Margaret Hope Allen is Counsel at Sidley Austin LLP. They can be reached at yvette.ostolaza@ sidley.com and margaret.allen@sidley.com, respectively.

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20 H e a d n o t e s l D a l l a s B a r As s ociation

October 2016

Law Firms & the ADA: Private Firms Are Public Accommodations

by Richard M. Hunt and Jeanne M. Huey

Is that table in the conference room where you put the coffee no more than 36 inches high with sufficient clearance for a person in a wheelchair to approach it? Is there room for a wheelchair at the conference table? Is your firm’s website WCAG 2.0 Level AA compliant? Has your receptionist been trained to accept TTY and TRS calls and deal with a client’s miniature horse? If the answer to any of these questions is “no,” you need to look at ADA compliance.

You may think your private firm is a private place, but if you have a website, a front door, or a telephone line, you are open to the public and must meet the requirements of the ADA. This means your firm must be physically accessible, be willing to modify its policies to accommodate disabled guests, be willing to provide auxiliary aids and services to clients and potential clients, and, finally, must have an accessible website. The requirements

are complex, but the common problems are easy to identify.

Physical accessibility problems in law firms depend on where the firm has its offices. If you are in a modern office building it is likely that restrooms, doorways, and halls were designed to meet ADA standards. Your problems will come from using furnishings that do not meet ADA requirements or leaving clutter that makes accessibility difficult. For lawyers with offices in older buildings, especially old houses, front steps, lack of accessible parking, and non-accessible restrooms are likely issues. Contrary to popular belief there is no grandfathering under the ADA. The “readily achievable” standard for older buildings requires compliance with current ADA standards in almost every case, and proving an exception usually costs more than the cost of compliance.

An equally serious problem for many firms will be dealing with hearing impairments. Many deaf individuals use relay services to place phone calls, and these calls can sound very much like the kind

The 2016 DBA Membership Directory is now available in print & online.

Check out the directory and legal resource guide used by Dallas attorneys!

To view the Online Directory and Legal Resource & Expert Witness Guide, go to www.dallasbar.org/pictorial and login.

To request a copy of the new directory, contact pictorial@dallasbar.org.

Park Place Dallas Ticket to Drive Raffle ...Winner receives 2017 Mercedes-Benz CLA-Class*

of scam call you or your receptionist may not want to deal with. Failing to recognize this kind of incoming call will violate the ADA. Your firm also has an obligation to provide auxiliary aids and services, including sign language interpretation, at the firm’s expense. If you have not already identified resources for communicating with deaf clients and visitors, the time is now, before the need arises and someone files suit.

Dealing with hearing and vision impaired clients or guests may present other challenges as well. Many of our interactions with clients assume the client can easily read documents or memoranda. Software solutions will make electronic documents accessible if they are properly prepared, but proper preparation is required. If a blind client is required to review paper documents, some kind of additional accommodation may be required, again at the firm’s expense.

Service dogs and miniature horses may challenge law firm receptionists and attorneys, because a firm must be willing to accommodate these animals when they are needed by disabled clients or visitors. Law firms are less likely to encounter problems than restaurants and retail stores, but it is not hard to imagine the consternation a client accompanied by a miniature horse might create.

Last, but certainly not least, are problems with your firm’s website. The Depart-

ment of Justice believes that the ADA requires accessible websites, and private law firms have started suing all kinds of businesses with websites that are hard to use for blind, deaf, or mobility impaired individuals. Right now the de facto standard is the Web Content Accessibility Guidelines version 2.0 at success level AA. Unless every page of your website meets this standard, it will certainly be the position of the Department of Justice and private plaintiffs that you are violating the ADA. In some cases existing ethical standards anticipate the ADA’s communication requirements. Rules like 1.02(b), 1.03, and 7.02 require effective communication. Comment 5 to Rule 1.03 specifically addresses disabled clients, and though it is primarily directed at those with intellectual limitations, the principle will apply to all clients. A failure to provide the tools necessary for effective communication may well violate not only the ADA but also the Texas Disciplinary Rules of Professional Conduct.

Making legal services accessible to the disabled is requirement of our professional standards as well as federal and state law.

If your firm has not already reviewed its ADA compliance the time is now. HN Richard Hunt and Jeanne Huey are the owners of Hunt Huey PLLC. They may be reached at rhunt@hunthuey.com or jhuey@ hunthuey.com, respectively.

Thank you to the firms who supported the 2016 Summer Law Intern Program!

Adam L. Seidel, P.C. Bracewell LLP Dallas ISD Legal Services Gardere Wynne Sewell LLP Guerrero Law Offices Haynes and Boone, LLP Johnston Tobey Baruch, P.C. Jones Day Kastl Law, P.C. Law Office of Alisa Richman

Locke Lord LLP Munsch Hardt Kopf & Harr, P.C. Palter Stokley Sims PLLC Patterson & Sheridan, LLP Saputo Law Firm, PLLC Sargent Law, P.C. Strasburger & Price, LLP Weil, Gotshal & Manges LLP Winstead PC

If you would like to participate in 2017, please contact Kathryn Zack at kzack@dallasbar.org.

Runner-Up Receives:

Sonoma Valley Winemaker Package (Three-night stay at The Fairmont Sonoma Mission Inn & Spa, 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 14, 2017 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.

A multi-office national law firm is seeking Attorneys for its Dallas Office.

Litigation department is looking for Attorneys in the following areas: Professional Liability Defense, General Liability, Workers Compensation Defense, Construction, and Employment Liability Defense.

Corporate Law, Commercial Litigation and Financial Services departments are looking for Attorneys with experience handling securities and broker dealer matters, international and domestic taxation, bankruptcy, real estate, intellectual property, international law, corporate structure, asset protection, land use, and mergers and acquisitions. Portable book of business is a plus.

Also seeking 1-4 year Associates.

Email resume to RESUME@QPWBLAW.com

October 2016

Focus

D al l as Bar A ssoci ati on l Headnotes 21

Business Litigation

Error Preservation Concerning Attorney’s Fees Claims

BY STEVEN K. HAYES

Commercial litigation regularly includes a claim for attorney’s fees. The value of such a claim often approximates, or exceeds, the damage award.

Despite the frequency and magnitude of these claims, one of the things I found during a three year (and ongoing) study about error preservation is that complaints related to fees were in the top four categories of error preservation decisions decided by the courts of appeals—and in 80 percent of the error preservation decisions related to attorney’s fees, courts of appeals held that error was not preserved because the complaints were not raised in the trial court at all. With so much potentially at stake, what explains the frequency with which error is waived concerning complaints about attorney’s fees?

The element-driven nature of a claim for fees, and the nature of complaints about fees which were waived, may help explain the frequency with which error is not preserved as to such complaints.

To answer why error is not preserved to such complaints, first consider the element-driven nature of claims for fees under Chapter 38 of the Texas Civil Practices and Remedies Code. To recover reasonable attorney’s fees under Chapter 38 for a claim based on an oral or written contract, for example, (1) the claimant must be represented by counsel, (2) the claimant must present the claim to the opposing party, and (3) payment for the just amount owed must not have been tendered before

the expiration of the thirtieth day after the claim is presented. The party seeking fees must plead and prove the foregoing; neither filing suit, nor alleging a demand in the pleadings alone can constitute presentment. But if the plaintiff pleads these elements, and the defendant wants to force the plaintiff to prove them, the defendant must specifically deny those elements. Furthermore, if a defendant wants to argue that the plaintiff ’s demand was excessive (and thus ineffective), that alleged excessiveness is an affirmative defense the defendant must plead, prove, and obtain findings on, or it will waive the defense.

Next, consider the types of objections about fees which parties failed to preserve in the trial court. Here are a few I found in my study: (1) a party’s failure to present the claim as required by the statute; (2) a party’s inability to recover fees under TCPRC 38.001 against a partnership; (3) a failure to segregate fees between claims on which fees are recoverable and those on which they are not; (4) a complaint that the party did not incur fees, or that fees were excessive; and (5) the method for calculating fees.

Notice that only one of the foregoing complaints really focused on what we classically think of as the reasonableness and necessity of fees. The remainder of these unpreserved complaints focus, for the most part, on the elements of, nuances concerning, and procedures governing a fee claim.

To avoid waiving error as to fees: treat a claim for fees as a standalone claim, with its own elements, proof, and procedure.

I think the relatively large number of error preservation decisions involving attorney’s fees, the high percentage of holdings that error was not preserved about those complaints, and the nature of unpreserved complaints about fees show that many folks fail to recognize that a claim for fees is a separate cause of action, with its own (often statuto-

rily-dictated) elements. Failing to work up a fee claim just as we would any other cause of action can easily result in waiver of error—with a concomitant and significant adverse impact on the judgment.

You can find the foregoing study I mentioned on the Résumé page on my website at www.stevehayeslaw.com. HN Steve Hayes is a solo appellate practitioner in Fort Worth, and serves on the DBA’s Admissions and Membership Committee. He can be reached at shayes@stevehayeslaw.com.

Dallas Bar Association Education Symposium Friday, October 14 ~ 8:30 a.m. ~ Belo Mansion ~ MCLE 1.75

The Jack Lowe Sr. Award for Community Leadership will be presented during the luncheon.

Topics: Cyber Security, A Conversation with Dr. Hinojosa, Educating Educators: Resources for Students in Crisis, and School Safety: Active Shooter Preparedness and Response Keynote speaker: Cheryl Wattley, UNT Dallas College of Law Registration $35, includes lunch.

Contact Alicia Hernandez at (214) 220-7499 or ahernandez@dallasbar.org.

The Catholic Foundation presents the 10th Annual

The Advisors Series For Estate and Wealth Management Professionals Post-Election Perspective: "Daily Bread" Estate and Financial Planning for Our Middle Tier Clients This presentation will discuss the probable impact of the November elections on Federal transfer and income tax planning and discuss methods to enhance wealth for individuals, estates and trusts, including methods to reduce income taxes, acquire and hold life insurance and plan for retirement.

Jonathan G. Blattmachr December 8, 2016 The Belo Mansion, 2101 Ross Avenue, Dallas 7:30 a.m. Breakfast $80 per person 8:00 a.m. Program 2 Hours of Continuing Education Credit Presenting Sponsors: Gardere Wynne Sewell LLP Carter Financial Management For more information and to register, call 972.661.9792 or visit www.catholicfoundation.com

22 H e a d n o t e s l D a l l a s B a r A s s ociation

October 2016

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1. Over 400 FREE CLE courses offered each year! Our 30 substantive law Sections present cutting edge CLE programs. Members meet monthly at Belo during lunch or in the evening.

2. DBA Headnotes monthly publication is full of substantive legal articles and weekly Dallas Bar Online e-newsletter lists upcoming CLE programs and events.

3. Lawyer Referral Service panel is a great way to get connected with citizens who need legal help.

4. Get involved with various DBA Mentoring Programs that pair new lawyers with seasoned attorneys.

5. Post job openings, search resumes and jobs through our online DBA Career Center. Sign up on DBA website.

6. If you are accepting credit cards, trust your transactions to LawPay. DBA members can save up to 25% off credit card processing fees. For more information, call (866) 376-0950 or visit https://lawpay.com/dallasbar/.

7. You will be included in the DBA Pictorial Directory available in print and online to all DBA members.

8. Take advantage of ABA Publication Discounts as a DBA member. For a list of titles or to place an order, visit www.abanet.org/abastore.

9. The Dallas Volunteer Attorney Program offers lawyers

Pro Bono Opportunities to assist low-income residents through clinics, and provides free CLE training seminars.

10. DBA Committee Membership is a great way to perform community service and/or participate in the legal community.

11. Participate in social activities for great Networking Opportunities with lawyers from all areas of practice.

12. Discounts on Texas Rangers and Dallas Mavericks tickets available to all DBA members.

13. DBA members receive Clothing Discounts on Brooks Brothers and JoS. A. Bank clothing. For discount codes, send request to membership@dallasbar.org.

14. Members receive Hotel Discounts at many La Quinta Inns & Suites. Visit DBA website for more details.

15. Discounted Health Club Memberships are available at TELOS Fitness Center and The Texas Club.

16. DBA Members may rent the Belo Mansion for an event or special occasion or bring a guest to the daily buffet lunch.

Questions? Contact Kim Watson, Membership Director, (214) 220-7414 or kwatson@dallasbar.org

Ben Abbott Ben Abbott & Associates

Kristina N. Kastl Kastl Law, P.C.

Randolph D. Addison Addison Law Firm P.C.

Justin Martin Godsey - Martin, P.C.

Micah Adkins The Adkins Firm, P.C.

Sawnie A. McEntire Parsons McEntire McCleary & Clark PLLC

William W. Camp Camp Law Group

Mike McKool McKool Smith P.C.

Mary B. Campbell Nancy A. Nasher NorthPark Development Company Carol C. Donovan Carol Crabtree Donovan, PC Al Ellis Sommerman, McCaffity & Quesada, L.L.P.

Angie N’Duka Angie N. N’Duka Law Firm, PLLC Robert H. Osburn Robert H. Osburn, P.C.

Hon. Tom C. Fuller

Lance A. Pool Friedman & Feiger, L.L.P.

W. Royal Furgeson UNT Dallas College of Law

Ellen S. Pryor UNT Dallas College of Law

David L. Godsey Godsey - Martin, P.C.

Richard D. Pullman Kessler Collins, P.C.

Hon. Bonnie L. Goldstein 44th District Court

Glynis W. Redwine The Redwine Law Firm

James J. Hartnett, Jr. The Hartnett Law Firm

Michael L. Riddle Middleberg Riddle Group

Houston E. Holmes, Jr. Attorney at Law

Daniel J. Sheehan, Jr. Daniel Sheehan & Associates, L.L.P.

Kathleen E. Irvin Attorney at Law

Darryl J. Silvera The Silvera Firm

Justice Tom James Attorney at Law

Peter S. Vogel Gardere Wynne Sewell LLP

October 2016

Classifieds

D al l as Bar A ssoci ati on l Headnotes 23

October

EXPERT WITNESS

Economic Damages Experts – HSNO is the Forensics Firm. The Dallas office of HSNO has five 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, construction and construction. HSNO has 17 U.S. offices and offices in London and Mexico.

Contact Peter Hagen or Karl Weisheit at (972) 980-5060 or HSNO.com.

Economic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, business valuation, credit damage and divorce matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 5137113. troney@thomasroneyllc.com. “We Count.”

Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 222-9494. dlopez@pulmanlaw.com

OFFICE SPACE

Addison A/V Rated law firm with great location at Belt Line and Dallas North Tollway has two, adjacent offices and secretary bay for lease. One office is partner-size, and one is partner/associate size.

Offices come with telephone service and receptionist, use of conference rooms and kitchen area, work/copy room, some additional storage, covered parking and Wi-Fi. Kelly@crb-law.com.

North Dallas - LBJ Freeway. Law Firm – North Dallas - For Lease: Professional office space, 7616 LBJ Freeway, offers conference room, receptionist, Internet service, lobby kitchen, parking. Available 8/30/16. Email Amy at arobinson@englishpllc.com or call (214) 528-4300.

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 environ-

ment 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. Why not have a professional location for your business and quality of life at work? Please call (214) 373-0404 for details.

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 $850.00 for the furnished or unfurnished large office and $300.00 for the furnished secretarial office. Call (214) 520-0600.

Downtown Dallas – Two window offices and secretarial space available, in the historic KATY Building overlooking the Dallas County Courthouses. 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.

Uptown - Executive Office space available for lease in a professional Legal environment, in uptown. Share office space with experienced and established lawyers. Case referrals and other case arrangements are possible. Amenities include: Bi-lingual receptionist, fax and copy machines, two conference rooms, two kitchen areas, and plenty of free parking. Location is convenient to all Dallas Courts and traffic arteries. Please call Rosa at (214) 696-9253 for a tour.

Turtle Creek Blvd. - executive office space available for lease in a professional, legal environment. One large office available (furnished or unfurnished) to share with experienced and established lawyers. Separate areas available for assistants or para-professionals. Three bench seat spaces available for daily or shortterm use, if desired. Referrals and other case arrangements are possible. Amenities include reception area, telephone, fax and copy machines, conference room, kitchen area, covered visitor parking, and free office parking. Location convenient to Dallas courts, downtown, and all traffic arteries. Please contact Judy at (214) 7405033 for a tour and information.

lawyer(s). Office is brand new build-out in Class A office building, 3811 Turtle Creek, with building amenities of parking, 24/7 security, and gym access. Inoffice amenities include network (wired and Wi-Fi) and telephone access, conference room, break room, and stocked kitchen. Inquiries made by calling (214) 347-7377, ext. 5.

POSITIONS AVAILABLE

Palmer & Manuel, LLP, a 14 attorney firm in Campbell Centre, seeks one or two experienced attorneys with established practices to join our family law team and/ or our general civil practice group. Work with us, not for us. Our formula based compensation system allows attorneys to keep a substantial portion of their fees.

See our website at www.pamlaw.com or contact Steve Palmer or Rebecca Manuel at (214) 242-6444.

Family Law Attorney. North Dallas midsize AV rated litigation firm seeks a seasoned family law attorney ready to work in a fast paced environment dealing with contested and complex cases. Will consider candidates at the partner level who possess an existing book of business or associates with 10+ years of experience.

Ideal candidates will have team management and leadership skills, be highly motivated, organized and able to respond to client needs immediately. Competitive compensation package and benefits.

Interested candidates should submit their resume and cover letter to Connie Womack at cwomack@fflawoffice.com.

Turtle Creek Offices Available. Law firm seeks to sublease one or two offices to solo

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

POSITION WANTED

After 40+ years of business law practice in Dallas, my small firm partners and I have decided not to renew our lease. I am looking to transition my clients and midsix figure practice to ethical, compatible, competent attorneys while serving as Of Counsel or similar capacity during the next 2-3 years. Reply to attyresponse@ gmail.com.

SERVICES

Energy Acquisition(s): I buy any size royalty(ies), mineral(s) , working interest(s) and try to reach (and pay) the sellers asking price. I am a licensed attorney and have been making oil and gas purchases for 35 +/- years. E-mail to bleitch@prodigy.net or call Kirk Leitch or Brenda Phillips at 1-800-760-9890 or (214) 720-9890 for a friendly and quick analysis and response.

Join Growing Dallas Firm. Great new firm with excellent opportunity for growth and profit seeks experienced lawyers to join our North Texas practice. Opportunities include working remotely or in our downtown Dallas office. Better compensation model, better technology, better opportunity. See our recruiting website and video at careers.emmertparvin.com.

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. Call Wanda Smith at (972) 836-9091.

Short Drive / Big Growth – Lateral Partner-Level Attorney Wanted by McKinney Firm. Saunders, Walsh &

To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.

Justice Stephen Breyer In Dallas — December 13

Turtle Creek - Uptown. Gorgeous Brand New Class A Fully Furnished Office Available In Prestigious Turtle Creek/ Uptown Dallas Building. Parking, Gym, 24/7 Security, Internet, Phone, Club Lounge, and More. For more information email: mn7054a@american.edu. Pictures/ tour available.

Dallas High-Rise: All-Inclusive independent attorney ecosystem. Furnished window offices, dedicated workspaces, co-working space, virtual offices. Mail/ reception, conference rooms, coffee bar, media lounge. CLE/MGMT training, social events, instant referral network.

6-month minimum, 1st month free with 1-year agreement. Tour/info: (214) 8657770. www.attorneyvenue.com.

Beard, a growing AV-rated Collin County business litigation-focused firm seeks a strong lawyer with complimentary practice area to join our highly efficient firm.

Located in the heart of rapidly growing Collin County, we are a short drive from the northern suburbs and are benefiting from a sterling reputation and the daily influx of new arrivals to the area. Firm culture prioritizes low overhead, highest quality legal work, and collegial atmosphere. Some portable business required.

If interested, call (214) 919-3555 or email us at info@saunderswalsh.com.

“There are loads of countries that have nice written constitutions like ours. But there aren’t loads of countries where they’re followed.”

– Supreme Court Justice Stephen Breyer Tuesday, December 13, 2016 At the Hyatt Regency Dallas 11:30 a.m. VIP Reception Noon Luncheon, Program & Book Signing

Purchase tickets online at www.dfwworld.org/register/StephenBreyer Sponsored by the Dallas Bar Association, DFW World Affairs Council, Haynes and Boone, LLP, and Texas A&M University School of Law

BECOME INVOLVED IN HIGH SCHOOL MOCK TRIAL x

x

Help with competitions

Become an advocate for mock trial Help recruit compeƟƟon volunteers and conduct trainings to educate schools, students and teacher coaches on mock trial.

x

Attorney Advisor Help a team prepare for compeƟƟon.

Mock Trial CompeƟƟon Dates: January 21Ͳ28, February 4 and March 3Ͳ4, 2017 See website for details: www.texashighschoolmocktrial.com To volunteer, or for more informaƟon: mgarcia@dallasbar.org | (214) 220Ͳ7484.

24 H e a d n o t e s l D a l l a s B a r A s s ociation

October 2016