Employer Liability in Today’s Internet Cyber Security and Disaster Recovery Issues for Law Firms “What is THAT Doing on Facebook?!” Effective Web Marketing: Applying Old Understanding to New Tools 66th Harvest Celebration
lawyer
THE HOUSTON
inside...
Volume 53 – Number 4
January/February 2016
Saint Charles Villas EaDo
Modern on Spring Sawyer Heights
Beall Point
Shady Acres
Gibson Verandas Rice Military
From the $320’s
Winbern Modern Midtown
From the $330’s
BLVD on Dian Heights
From the $390’s
Leeland Bell Landing EaDo
Ovid Street Gardens
From the $390’s
Sawyer Heights
From the $410’s
Cottage Grove
From the $440’s
Darling Manors
Larkin Villages Cottage Grove
From the $440’s
Vistas De Sevilla Rice Military
From the $410’s
Petty Street Landing Cottage Grove
From the $380’s
From the $390’s
From the $420’s
From the $490’s
713-868-7226 5023 Washington Avenue www.UrbanLiving.com
www.urban Inc, TREC Broker #476135
3% Down loan for approved credit. Including Everything promotion must be approved by seller and written in at the time of contract.
NMLS: 137773
contents Volume 53 Number 4
January/February 2016
10
16
FEATURES Liability in 10 Employer Today’s Internet By Matt Deffebach, Pierre Grosdidier and Alex Stevens
Security and 16 Cyber Disaster Recovery Issues for Law Firms
By Eric A. Hawley
with the “Data Dump” 22 Dealing in E-Discovery By Jonathan Swerdloff
22
26
is THAT Doing 26 “What on Facebook?!”
A Guide to Advising Clients to ‘Clean Up’ Their Social Media Profiles By John G. Browning and Al Harrison
Web Marketing: 31 Effective Applying Old Understanding to New Tools
By Charles Brown
The Houston Lawyer
31
34
Harvest Celebration 34 66th Raises Record $732,720
for Houston Bar Foundation
The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association, 2016. All rights reserved.
2
January/February 2016
thehoustonlawyer.com
Join the HBA 100 Club! The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys
Horne Rota Moos LLP
Strong Pipkin Bissell & Ledyard LLP
Cokinos, Bosien & Young
Abraham, Watkins, Nichols, Sorrels,
Holm I Bambace LLP
Stuart PC
Gardere Wynne Sewell LLP
Agosto and Friend
Hunton & Williams LLP
Sutton McAughan Deaver, PLLC
Greenberg Traurig
Adair & Myers PLLC
Irelan McDaniel, PLLC
Tekell, Book, Allen, and Morris, L.L.P.
Haynes and Boone LLP
Ajamie LLP
Jackson Gilmour & Dobbs PC
Thompson & Horton LLP
Jackson Walker LLP
Bair Hilty, P.C.
Jackson Lewis LLP
Thompson Coe Cousins & Irons LLP
Martin Disiere Jefferson & Wisdom LLP
Baker Williams Matthiesen LLP
Jenkins Kamin, LLP
Taunton, Snyder & Slade, P.C.
Morgan Lewis & Bockius LLP
Baker • Wotring LLP
Johnson DeLuca Kurisky & Gould, P.C.
The Ward Law Firm
Thompson & Knight LLP
The Bale Law Firm, PLLC
Johnson Trent West & Taylor LLP
Ware, Jackson, Lee, O’Neill,
Winstead PC
Barrett Daffin Frappier Turner & Engel, LLP
Jones Walker LLP
Smith & Barrow, LLP
Berg & Androphy
Kelly, Sutter & Kendrick, P.C.
Watt Thompson & Henneman LLP
Firms of 100+ Attorneys
Bingham, Mann, & House
KoonsFuller, P.C.
Weinstein Tippetts & Little LLP
Andrews Kurth LLP
Buck Keenan LLP
Kroger I Burrus
Weycer Kaplan Pulaski & Zuber PC
Baker Botts L.L.P.
Bush & Ramirez PC
LeClairRyan
Williams Birnberg & Andersen LLP
Bracewell LLP
Cage Hill & Niehaus LLP
Legge Farrow Kimmitt McGrath & Brown, L.L.P.
Williams Kherkher Hart Boundas, LLP
Norton Rose Fulbright US LLP
Campbell & Riggs, P.C.
Linebarger Goggan Blair & Sampson LLP
Willingham, Fultz & Cougill, LLP
Locke Lord LLP
Chernosky Smith Ressling & Smith PLLC
Liskow & Lewis
Wilson Cribbs & Goren PC
Porter Hedges LLP
Christian Smith & Jewell LLP
Lorance & Thompson PC
Wilson Elser Moskowitz
Vinson & Elkins LLP
Cogan & Partners LLP
MacIntyre, McCulloch, Stanfield & Young, LLP
Edelman & Dicker
Cooper Jackson & Boanerges, PC
McGinnis Lochridge
Wright Abshire, Attorneys, PC
Corporate Legal Departments
Cozen O’Connor
McGuireWoods LLP
Wright & Close LLP
Anadarko Petroleum Corporation
Crady, Jewett & McCulley, LLP
MehaffyWeber PC
Ytterberg Deery Knull LLP
AT&T Texas
Crinion Davis & Richardson LLP
Morris Lendais Hollrah & Snowden
Zimmerman Axelrad Meyer
BP
De Lange Hudspeth McConnell
Nathan Sommers Jacobs PC
Stern & Wise PC
CenterPoint Energy
& Tibbets LLP
Ogden Broocks & Hall, LLP
Zimmerman, Lavine & Zimmermann P.C.
El Paso Corporation
Dentons US LLP
Ogletree Deakins Nash Smoak & Stewart, P.C.
Zukowski Bresenhan, Sinex
Kellogg Brown & Root, Inc.
Dobrowski, Larkin & Johnson LLP
Pagel Davis & Hill PC
& Petry LLP
LyondellBasell Industries
Dow Golub Remels & Beverly LLP
Parrott Sims & McInnis, PLLC
Doyle Restrepo Harvin & Robbins LLP
Perdue Brandon Fielder Collins & Mott
Firms of 25-49 Attorneys
Newfield Exploration Company
Ewing & Jones, PLLC
Perdue & Kidd L.L.P.
Adams and Reese LLP
Plains All American Pipeline L.P.
Faubus Keller & Burford LLP
Phelps Dunbar LLP
Ahmad, Zavitsanos, Anaipakos,
Rice University
Fernelius Alvarez & Simon PLLC
Ramey, Chandler, Quinn & Zito, P.C.
Alavi & Mensing P.C.
S & B Engineers and Constructors, Ltd.
Fisher, Boyd, Johnson & Huguenard, LLP
Reynolds Frizzell LLP
Andrews Myers, P.C.
Sysco Corporation
Fisher & Phillips LLP
Roach & Newton, L.L.P.
Akin Gump Strauss Hauer & Feld LLP
Texas Children’s Hospital
Fizer Beck Webster Bentley & Scroggins PC
Ross Banks May Cron & Cavin PC
Beck Redden LLP
Total E&P USA, Inc.
Fleming, Nolen & Jez, L.L.P.
Royston, Rayzor, Vickery & Williams, L.L.P.
Beirne Maynard & Parsons, L.L.P.
University of Houston System
Frank, Elmore, Lievens, Chesney & Turet, L.L.P.
Rusty Hardin & Associates, P.C.
Blank Rome LLP
Fullenweider Wilhite PC
Rymer Moore Jackson & Echols, P.C.
BoyarMiller
Law School Faculty
Funderburk Funderburk Courtois, LLP
Schiffer Odom Hicks & Johnson PLLC
Edison, McDowell & Hetherington LLP
South Texas College of Law
Galloway Johnson Tompkins Burr & Smith PC
Schirrmeister Diaz-Arrastia Brem LLP
Gibbs & Bruns LLP
Thurgood Marshall School of Law
Germer PLLC
Schwartz Page & Harding LLP
Kane Russell Coleman & Logan PC
University of Houston Law Center
Givens & Johnston PLLC
Scott, Clawater & Houston, L.L.P.
Littler Mendelson PC
Godwin PC
Shannon, Martin, Finkelstein,
Roberts Markel Weinberg Butler Hailey PC
Government Agencies
Gordon & Rees LLP
Alvarado & Dunne, P.C.
Seyfarth Shaw LLP
City of Houston Legal Department
Greer, Herz & Adams, L.L.P.
Shipley Snell Montgomery LLP
Yetter Coleman LLP
Harris County Attorney’s Office
Hagans Burdine Montgomery & Rustay PC
Short Carter Morris
Hartline Dacus Barger Dreyer LLP
Singleton Cooksey LLP
Firms of 50-100 Attorneys
Harris County Domestic Relations Office
Hawash Meade Gaston Neese & Cicack LLP
Smith Adams Law Feehan LLP
BakerHostetler
Metropolitan Transit Authority of
Henke & Williams
Smith Murdaugh Little & Bonham LLP
Chamberlain Hrdlicka White
Harris County Texas
Hicks Thomas LLP
Smyser Kaplan & Veselka LLP
Williams & Aughtry
Port of Houston Authority of
Hirsch & Westheimer PC
Sprott Newsom Quattlebaum Messenger
Coats | Rose
Harris County, Texas
MAXXAM, Inc.
Harris County District Attorney’s Office
thehoustonlawyer.com
January/February 2016
3
contents Volume 53 Number 4
January/February 2016
29
37
departments Message 6 President’s Dealing Effectively with Change By LAURA GIBSON the Editor 8 From Keeping Up With Technology By Angela L. Dixon Lawyers Who 29 Houston Made a Difference
Arnulfo D. “A. D.” Azios By The Hon. Mark Davidson
38
39
Profile in professionalism 33 ATravis J. Sales Partner, Baker Botts L.L.P. (Correcting a misprint from the Profile originally published in the Nov/Dec issue)
Spotlight 37 Committee Teach Texas Committee By Polly Fohn the record 38 off Pocket Full of Soul:
Todd Slobin Produces Definitive Documentary on the Harmonica By Raymond L. Panneton
Profile in professionalism 39 ADanny Goforth
42
Goforth Law Firm Trends 40 Legal Texas Supreme Court Defines
the Scope of the Attorney Immunity Doctrine By Nicole Bakare
Fifth Circuit Expands Restrictions on Student’s Off-Campus Speech By Jason D. Goff ReviewS 42 Media How to Capture and Keep Clients:
Marketing Strategies for Lawyers, 2nd Edition Reviewed by Raymond L. Panneton
The Houston Lawyer
Demand, and Commercial Letters for the General Practitioner Reviewed by Paul t. Bowers
HBA Member in Upcoming Legal Thriller
44 Litigation MarketPlace 4
January/February 2016
thehoustonlawyer.com
Large Firm Champions
Andrews Kurth LLP Baker Botts L.L.P. Bracewell Locke Lord LLP Norton Rose Fulbright US LLP Vinson & Elkins LLP
Corporate Champions
Baker Hughes Incorporated BP America Inc. CenterPoint Energy, Inc. ConocoPhillips, Inc. Exxon Mobil Corporation Halliburton LyondellBasell Marathon Oil Company Shell Oil Company
Mid-Size Firm Champions
Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Beck | Redden LLP Beirne, Maynard & Parsons, L.L.P. Chamberlain, Hrdlicka, White, Williams & Aughtry Gardere Wynne Sewell LLP Gibbs & Bruns LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Haynes and Boone, L.L.P. Jackson Walker L.L.P. Jones Day King & Spalding LLP Morgan, Lewis & Bockius LLP Porter Hedges LLP Sidley Austin LLP Strasburger & Price, L.L.P. Susman Godfrey LLP Sutherland Asbill & Brennan LLP
Winstead PC Winston & Strawn LLP
Boutique Firm Champions
Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Blank Rome LLP Dentons US LLP Edison, McDowell & Hetherington LLP Fullenweider Wilhite PC Hicks Thomas LLP Hogan Lovells US LLP Hughes Watters Askanase LLP Jenkins & Kamin, L.L.P. Johnson DeLuca Kurisky & Gould, P.C. LeClairRyan McGuireWoods LLP Ogden, Broocks & Hall, L.L.P. Ogletree, Deakins, Nash, Smoak & Stewart P.C. ReedSmith LLP Sutton McAughan Deaver LLP Vorys, Sater, Seymour and Pease LLP Weil, Gotshal & Manges LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs & Goren, P.C. Yetter Coleman LLP
Small Firm Champions
Coane & Associates Flowers & Frankfort Frye, Steidley, Oaks & Benavidez, PLLC Funderburk Funderburk & Courtois LLP Fuqua & Associates, P.C. Hunton & Williams LLP Katine & Nechman L.L.P. Katten Muchin Rosenman LLP KimLy Law Firm PLLC
KoonsFuller, P.C. Kroger | Burrus Law Office of James and Stagg, PLLC The Law Office of Scardino & Fazel Shortt & Nguyen, P.C. Strong Pipkin Bissell & Ledyard, L.L.P. Tindall & England, P.C. Trahan Dinn Kornegay Payne, LLP
Individual Champions
Alejandro Macias Angela Solice Brian Albrecht Burford Perry, LLP C.Y. Lee Legal Group, PLLC Damani Law Firm Danielle H. Maya David Hsu Diane C. Treich Hasley Scarano L.L.P. Helene Dang The LaFitte Law Group, PLLC Law Office of Bertrand C. Moser Law Office of Cindi L. Robison Law Office of Gregory S. Lindley Law Office of J. Thomas Black, P.C. Law Office of Jeff Skarda Law Office of Maria S. Lowry Law Office of Papa M. Dieye Law Office of Peter J. Bennett Law Office of Robbie Gail Charette Martin R.G. Marasigan Law Offices Pilgrim Law Office Robert E. Price The Ericksen Law Firm The Jurek Law Group, PLLC Law Office of Evangeline Mitchell, PLLC The Law Office of Norma Levine Trusch Travis Torrence
president’s message
By LAURA GIBSON Dentons US LLP
A
Dealing Effectively with Change
s you read this issue devoted to advancements in techa common interest and shared dedication to that cause, you will nology, whether you have been practicing thirty-one find a support group of colleagues who can provide help in times years as I have or are a newly licensed lawyer, I enof difficulty. In addition to the assistance you may receive from courage you to reflect not only on the changes in techothers, being able to help someone else in their time of need will nology which have occurred, but also the changes in make you stronger as well. the legal profession and how they have impacted your practice of law. While I cannot predict what ad2. Be optimistic. Focus on having an optimistic atditional changes in technology we will experience, titude. By being optimistic, you will be able to expect or how the practice of law will be affected by changes that good things will happen to you. Consider any in the economy and other external factors, I can say setback or failure as a temporary changeable situawith absolute certainty, that change is inevitable. tion. While we are powerless to change the past, we I have been thinking of changes in the legal procan work to anticipate change which may be occurfession a lot lately. After practicing law for almost 23 ring and accept it with less anxiety. As Charles Swinyears at Ogden, Gibson, Broocks, Longoria & Hall, doll wisely observed, “Life is 10 percent what hapLLP, a firm I co-founded in 1993 with my husband, pens to you, and 90 percent how you respond to it.” I Friedrich Nietzsche Bill Ogden, and two other partners from the firm now have found it to be helpful to try to differentiate from German Philosopher known as Locke Lord, I recently had the opportunity conditions which are unrelated to one’s skills and foto join Dentons. With approximately 7,000 lawyers and offices cus on those that are due to market conditions. For instance, our in 125 locations across 50 countries, Dentons has become the profession has been profoundly changed by tort reform and, as a largest law firm in the world. Going from seven lawyers to 7,000 result, many personal injury lawyers have had to develop another is perhaps a fairly extreme way to experience change. Nonethearea of the law in which to practice. Those lawyers who viewed less, the opportunity to head the labor and employment section of their decrease in business as a result of their efforts had a much the Houston office and team up with Glenn Ballard, the Houston more difficult time adapting than the lawyers who recognized managing partner and past HBA president, was an opportunity that the reduction in business was outside of their control and I could not pass up. As I prepared for this new challenge, I gave unrelated to their skills as a lawyer. some consideration as to how I could best deal with this change. I would like to share some of these thoughts with you. 3. Change is normal. Focus on the fact that change is a part of What can you do to position yourself to effectively deal with the life. Accept those changes that must be and focus your attention changes you, individually, and all of us as lawyers, will experion circumstances that you have the power to control. Gina Luna, ence in the future? Chief Marketing Officer at J.P. Morgan Chase, recently spoke on an HBA Gender Fairness panel. She encouraged those present to Here are eight suggestions: embrace the changes they will face and to draw on borrowed con1. Build strong relationships. In this New Year, in addition to your fidence. work responsibilities, pay particular attention to building connec4. Set attainable goals. All goals take time to achieve. Rather than tions with family, friends and colleagues. One way to do that is focus on the ultimate goal, break the goal down into manageable by becoming more active in HBA committees or sections. It is my pieces and work each day to accomplish the next step in the jourexperience from serving on HBA committees and being actively Continued on page 45 involved in the Labor & Employment Section, that by virtue of
“
That which does not kill us, makes us stronger
The Houston Lawyer
”
6
January/February 2016
thehoustonlawyer.com
Defending Texans Since 1994 Former Assistant United States Attorney Former Assistant District Attorney Founding Member of the National College of DUI Defense of Counsel Williams Kherkher LLP Law Office of Ned Barnett
Gulf Freeway Office: 8441 Gulf Freeway, Suite 600 • Houston, Texas 77017
713-222-6767 • www.nedbarnettlaw.com Board Certified in Criminal Law by the Texas Board of Legal Specialization thehoustonlawyer.com
January/February 2016
7
from the editor
By Angela L. Dixon Law Office of Angela L. Dixon, PLLC
Associate Editors
Keeping Up With Technology
W
practice. Charles Brown provides us with an article e made it! Here we are in a new year on Effective Web Marketing. Gone are the days where and half way through the bar year. I most people just relied on phonebooks to find a lawam proud that we have been able to yer. Now there are various online options that attorprovide you with four enlightening neys should be aware of to ensure potential clients issues of The Houston Lawyer. We can find them. Mr. Brown’s article gives you specific have two more issues to go, and I know they will tools to use and the most effective continue to provide you engaging commentary about various areas of While technology way to use them. John G. Browning’s and Al Harrison’s article on advising the law. clients on their social media profile As with a new year, if you are like is forever Farrah Martinez discusses some specific instances me, you sent greetings via text, email, Attorney at changing, where profiles were the center of and social media sites. I must admit, Law litigation, and also addresses lawI resisted social media for a long we have to yers’ ethical concerns when giving time. One of my friends, Brendettae advice on those profiles. Matt DefPayne, told me about Facebook some make sure febach, Pierre Grosdidier and Alex years ago. I outright refused to sign Stevens address employer liability as up because I did not feel the need we stay current it relates to the Internet. It addresses to share my personal thoughts with so that we can theft of confidential information, lithe world. She explained I could be Taunya Painter ability regarding litigation discovery friends with whomever I chose, and Painter Law Firm utilize these PLLC and liability for data breaches. For that I could put security preferences in place. It took some time but I resources fully and attorneys who are heavily involved in responding to discovery, Jonathan eventually agreed to check it out. I Swerdloff’s article on data dump in had to admit to her that I was missappropriately. e-discovery gives some helpful tools ing out and it was a great way to conon how to effectively and efficiently evaluate innect to family and friends. Since that time, I have coming data. Finally, with so many recent security utilized other social media sites. breaches of information, Eric A. Hawley tackled the While we generally use social media for various Hon. Jeff Work Law Offices of Susan purposes, we must be careful regarding the informaissues of cyber security and disaster recovery, proE. Cartwright viding insight on how law firms can protect themtion we choose to share and post. We have to conselves. cern ourselves with how the information may be I would like to thank the guest editors of the Janutaken out of context, used against us or simply misary/February issue of The Houston Lawyer, Ray Paninterpreted. While technology is forever changing, neton and Zach Wolfe. They have been a great asset we have to make sure we stay current so that we can to the board, always willing to serve where needed. utilize these resources fully and appropriately. Job well done! Until the next issue where we will This issue of The Houston Lawyer will certainly Jill Yaziji highlight Diversity in the Profession, stay technolopen your eyes to many options regarding technolYaziji Law ogy savvy! ogy and how you can use the various outlets in your Firm Polly Graham Fohn Haynes and Boone, LLP
“
The Houston Lawyer
”
8
January/February 2016
thehoustonlawyer.com
BOARD OF DIRECTORS President
Secretary
Laura Gibson
Warren W. Harris
President-Elect
Treasurer
Neil D. Kelly
Alistair B. Dawson
First Vice President
Past President
Todd M. Frankfort
M. Carter Crow
Second Vice President
Benny Agosto, Jr.
DIRECTORS (2014-2016)
Richard Burleson Chris Popov
Diana Perez Gomez Greg Ulmer
Jennifer A. Hasley Daniella D. Landers
DIRECTORS (2013-2015) Bill Kroger Hon. Erin Lunceford
editorial staff Editor in Chief
Angela Dixon Associate Editors
Polly Graham Fohn Taunya Painter Jill Yaziji
Nicole Bakare Catherine Bratic Kimberly Chojnacki Jason Goff Al Harrison Preston Hutson Judy Ney Marni Otjen Raymond Panneton David Rusk Zach Wolfe
Farrah Martinez Hon. Jeff Work
Editorial Board
Paul Bowers Heaven Chee Jonathan C.C. Day Amy Hargis Matthew Heberlein Amanda Kreshover Jeff Oldham Suchismita Pahi Hon. Josefina Rendon Matthew Walker
Managing Editor
Tara Shockley
HBA office staff Executive Director
Kay Sim Administrative Assistant
Director of Projects
Receptionist/ Resource Secretary
Membership and Technology Services Director
Director of Education
Communications Director
Continuing Legal Education Assistant
Communications Assistant /Web Manager
Amanda Piesche
Bonnie Simmons
Lucia Valdez
Ron Riojas
Ashley G. Steininger
Tara Shockley
Jessica Lindsey
Ariana Ochoa
Advertising sales Design & production QUANTUM/SUR
12818 Willow Centre, Ste. B, Houston, TX 77066 281.955.2449 • www.quantumsur.com Publisher
Leonel E. Mejía Production Manager
Marta M. Mejía Advertising
Mary Chavoustie
thehoustonlawyer.com
January/February 2016
9
By Matt Deffebach, Pierre Grosdidier and Alex Stevens
Employer Liability in Today’s Internet T
he Internet and its attendant technologies present a dichotomy for employers. Across industries, customers increasingly demand products and services that take advantage of, and are compatible with, these new technologies, leaving many employers to conclude that they must adapt their business models accordingly or face obsolescence at the hands of more innovative competitors. At the same time, innovations may carry significant risk. For example, data breaches and large-scale data theft are the heavy prices employers occasionally pay for today’s interconnected world. Even though neither of these problems is new, the relatively recent fragmenta-
tion of hardware and the vast increase in connectivity has exacerbated them. Gone are the days when an employer’s computer system consisted of a manageable closed system of servers, a network, and personal computers. In addition to their laptops, employees now carry a cornucopia of personal smart devices that can be connected to their employers’ networks, under the terms of bring-your-own-device (“BYOD”) policy, and that can backup to personal cloud storage accounts. Moreover, each of these devices is almost constantly connected to the Internet via ubiquitous wireless local area networks. Each smart device is, therefore, a hacker’s potential entry door to an employer’s network and data stores—or an exit trap for the employer’s trade secrets. Under these conditions, employers must not lose sight of what can go wrong when adopting these new technologies and must continually analyze their potential liabilities. Of course, many things can and do go wrong in almost every variety imaginable. But employers should be especially cognizant of the potential liabilities that arise from the intersection of new technologies with confidential information theft, discovery obligations in case of litigation, and data breaches. This article analyzes these three perennial areas of concern in light of today’s Internet technology. Employer liability for theft of confidential information by new hires Employers continue to be concerned about losing control of confidential information and trade secrets, such as proprietary formulas or processes, and customer lists. This information can be compromised through a data breach, or when unscrupulous employees decamp to a competitor with thumb drives full of files. But not enough employers think about the possibility of defending trade secret theft claims from a new hire’s former employer. Employer liability can and does arise when new employees bring pilfered information with them. Employers must increasingly consider the con-
sequences of these thefts given the ease with which employees can purloin vast quantities of information when they quit their jobs. Crafty employees soon might not even need thumb drives to steal files. Personal smart glasses might allow employees to visually capture all of their work product and reading material, and to store that information directly on their personal cloud storage accounts—ironically through their employers’ wireless networks. With new forms of portable technology seemingly marketed every day, employers undisputedly face growing challenges protecting themselves from trade secret theft—whether by existing or new employees. In Aspen Tech., Inc. v. M3 Tech., Inc., for example, M3 hired away Aspen Technology, Inc.’s (“AspenTech”) Director of Technology and Research who had a one-year post-employment non-compete agreement with AspenTech.1 AspenTech sued its former employee for breach of contract and later added claims against M3 for tortious interference with contract, trade secret misappropriation, and copyright infringement. Discovery revealed that various M3 employees—former AspenTech employees—possessed AspenTech’s trade secrets, including its source code, pricing information, client lists, and manuals. A jury awarded AspenTech over $11 million in damages. Unable to pay the judgment, M3 filed for bankruptcy protection. The claims that AspenTech asserted against M3 are just a few of the potential liabilities that employers expose themselves to when they hire employees with non-compete agreements, employees who bring filched information, or both. In another example of what the court described as “complex and hard fought litigation,” EMC Corp. sued its competitor Pure Storage Inc. for allegedly “engag[ing] in a deliberate, nationwide scheme” to entice EMC’s best employees to steal EMC’s proprietary information and join Pure Storage.2 EMC asserted seven claims against Pure Storage including “misappropriation of confidential infor-
mation and trade secrets.” Pure Storage denied the allegations and answered with 13 counterclaims. Aspen Tech and EMC illustrate how hard employers will try to prevent their former employees from absconding with their confidential information, how dramatically the resulting disputes can escalate, and how quickly an insufficiently-vetted employee can become a liability for the new employer.
“
employers must increasingly deal with employee-owned devices and cloudspace accounts, all of which may house relevant and responsive information. These possibilities require counsel’s familiarity not just with an employer’s computer systems, but also with employees’ devices and accounts. (iii) Requirement of technical literacy for attorneys James v. Nat’l Fin. LLC provides an excellent illustration of the costs of ignoring these developments during discovery. In this case, defendant’s counsel unfortunately mishandled e-discovery obligations and admitted at a sanctions hearing that he was “not computer literate,” that he missed the “cybernetic revolution,” and that he needed an assistant to help him “turn on the computer.”4 The court was unsympathetic. Invoking the amended Comment 8 to Rule 1.1 of the Delaware Rules of Professional Conduct, the court chastised counsel that “[p]rofessed technological incompetence [wa]s not an excuse for discovery misconduct.” Delaware’s Amended Comment 8 (the equivalent of which has not been adopted in Texas) states that the requirement for lawyer competence included keeping abreast of “the benefits and risks associated with relevant technology.” The court stated that a technically illiterate attorney should hire a tech-savvy lawyer or expert. Considering these and other facts in the case, the court concluded that the discovery violations were part of a pattern and it sanctioned the defendant.
...employers should be especially cognizant of the potential liabilities that arise from the intersection of new technologies with confidential information theft, discovery obligations in case of litigation, and data breaches.
Employer Liability Regarding Litigation Discovery Employers embroiled in litigation must continue to confront the challenges that technology places on conducting discovery. Three converging trends fuel this development: (i) a growing number of companies are having their in-house counsel respond to discovery; (ii) the fragmentation of hardware has increased the complexity of e-discovery; and (iii) courts increasingly expect attorneys to be technically literate. (i) In-house discovery responses Cost control predominantly drives the trend to bring e-discovery in-house, but other reasons exist.3 In-house counsel can develop domain knowledge regarding the location of their employers’ information and develop processes that might not only reduce costs, but also improve quality and consistency in discovery responses. These are significant considerations for large employers who own thousands of servers across the world. (ii) Fragmentation of hardware Such large employers understand that e-discovery requires technical expertise. As noted earlier in this article, hardware is ever more fragmented and
”
The Delaware Court of Chancery is not the only forum raising the bar on attorneys’ expected technical literacy.
thehoustonlawyer.com
January/February 2016
11
The California State Bar recently issued Formal Opinion 2015-193, which deals with “an attorney’s ethical duties in the handling of discovery of electronically stored information.” The opinion lists nine tasks that e-discovery attorneys should be able to handle alone or with competent help. These tasks include “understand[ing] a client’s ESI systems and storage,” “identify[ing] custodians,” and “perform[ing] data searches.” Significantly, the opinion states that the attorney “should...ultimately, conduct appropriate tests until satisfied that the attorney is meeting his ethical obligations prior to releasing ESI.” This last requirement is consistent with earlier decisions that placed the ultimate responsibility for e-discovery squarely in counsel’s hands.5 Similarly, in 2010 the New York State Bar Association issued Opinion 842 addressing the issue of whether an attorney may use a cloud space provider to store client confidential information. Opinion 842 answered in the affirmative provided that, inter alia, the attorneys “stay abreast
12
January/February 2016
of technological advances to ensure that the storage system remains sufficiently advanced to protect the client’s information.” Although the use of cloud space storage would not, in and of itself, raise issues of potential employer liability, Opinion 842 shows the increasing level of technical competence expected of attorneys. Consequently, while occurring outside of Texas, these developments nevertheless warrant consideration to be prepared if ever confronted with the type of inquiry that the court conducted of counsel in the James case. Employer Liability for Data Breaches Statistics indicate that data breaches are a growing threat for many employers. Verizon reported “621 confirmed data disclosures” in 2012, 1,367 in 2013, and 2,122 in 2014.6 The information stolen often consists of personally identifiable information (“PII”), such as names, addresses, passwords, credit card numbers, social security numbers, and electronic protected health information (“ePHI”). An em-
thehoustonlawyer.com
ployer victim of a data breach should be prepared for public embarrassment, an expensive forensic investigation, costly prophylactic measures to notify and protect the victims of identity theft (usually the employer’s clients, vendors, or employees), civil class action lawsuits, and intervention by industry regulators. Regulatory interventions appear to have increased with the frequency and magnitude of data breaches. Since 2002, the Federal Trade Commission (“FTC”) has settled over 50 data breach-related actions.7 These interventions may continue to increase, especially in light of the Third Circuit Court of Appeals’ decision in F.T.C. v. Wyndham Worldwide Corp., upholding the FTC’s authority to police data breaches under Section 5 of the Federal Trade Commission Act.8 This section prohibits, inter alia, “unfair or deceptive acts or practices in or affecting commerce.”9 In Wyndham, the FTC alleged that the hotelier “engaged in unfair cybersecurity practices” because of its failure to take necessary electronic secu-
rity measures. The FTC has also sought sanctions against a medical services company, LabMD, for an ePHI data breach.10 LabMD’s data information arguably fell under the protection of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). The case has complicated factual and procedural histories and the FTC’s administrative decision is still pending. An appeal might test the FTC’s ability to police the disclosure of HIPAA-protected ePHI. Adding to the complexity of the issue is that fact that the FTC has not issued rules regarding acceptable data security standards, but instead relies on a touchstone “reasonableness” standard to police data breaches.11 Under this approach, a victimized company is not necessarily sanctionable if it took reasonable and appropriate protective measures in light of the circumstances. But in the absence of rules, and even though the FTC provides educational material regarding what it considers reasonable data security practices, employers could remain at risk of not meeting the FTC’s expectations given the fast pace at which digital technology evolves and the increasingly sophisticated cat-and-mouse games that hackers and computer security experts play via Internet. Other federal (and state) agencies also police data breaches. The U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights, for example, has focused on HIPAA violations. On May 7, 2014, HHS announced two HIPAA settlements for $4.8 million following the disclosure of the ePHI of 6,800 individuals, or on average $706 per ePHI record.12 A year earlier, another company paid HHS $1.7 million to settle potential HIPAA violations affecting the ePHI of 612,402 individuals.13 These cases illustrate the zeal with which employers can expect regulatory agencies to police and sanction data breaches. Employers who are victims of a data breach should also prepare for lawsuits by non-employee third-parties whose PII was supposedly stolen (“consumer cas-
es”), banks, and other credit card issuers (“bank cases”), among others. Consumer case plaintiffs have generally struggled to prevail in court because of their inability to prove damages and causation. These plaintiffs’ fundamental challenge stems from the fact that they are generally not held personally liable for fraudulent charges posted on their credit cards and, therefore, have no tangible damages. In federal courts, an absence of damages may frustrate standing under Article III, where a plaintiff can only establish standing by demonstrating an injury in fact that is “concrete, particularized, and actual or imminent.”14 Moreover, the injury must be “fairly traceable to the challenged action and redressable by a favorable ruling.” In Clapper, the U.S. Supreme Court further held that while an injury that is “certainly impending” can establish injury in fact for standing purposes, “[a]llegations of possible future injury are not sufficient.” (emphases added). Plaintiffs’ attorneys in consumer cases have asserted a panoply of claims in an
attempt to circumvent the “no damages” obstacle—until recently to no avail. In In re Barnes & Noble Pin Pad Litigation, for example, data breach victims alleged “untimely and inadequate notification of the security breach, improper disclosure of Plaintiffs’ PII, invasion of privacy, expenses incurred in efforts to mitigate the increased risk of identity theft or fraud caused by the security breach, time lost mitigating the increased risk of identity theft or fraud caused by the security breach, an increased risk of identity theft, deprivation of the value of Plaintiffs’ PII, anxiety and emotional distress, and diminished value of products and services.”15 The court held that these claims were too speculative to establish standing. The only tangible potential injury suffered by a plaintiff was the unauthorized use of a credit card that had to be cancelled and left the victim without a card for an unspecified period of time. The court held that there was no injury, especially in the absence of evidence linking the unauthorized use to the
COTROPIA MEDIATIONS Taking Steps to Settle Cases
Two Sneakers @ a Time! Carla Cotropia Mediating all types of Mills Shirley LLP disputes since 1999. 3 Riverway, Suite 100 Houston, TX 77056 (713) 225-0547 ccotropia@millsshirley.com www.cotropiaworkshops.com thehoustonlawyer.com
January/February 2016
13
data breach. For these reasons, the court granted Barnes & Noble’s motion to dismiss for lack of standing. Recent cases have given new hope to plaintiffs’ attorneys, however. In In re Adobe Systems, Inc. Privacy Litigation, for example, consumers alleged that their injuries included an increased risk of future harm and costs to mitigate same.16 The court held that the risk that hackers would misuse the plaintiffs’ personal PII was “immediate and real” and that the costs incurred to protect against future harm from this misuse constituted an injury-in-fact. Standing did not require that the plaintiffs wait for an actual injury, like the misuse of their cards, but merely imminent or “certainly impending” injury, as was the case here. For these reasons, the court denied Adobe’s motion to dismiss as to these two claims. But the burden remains on plaintiffs to prove actual harm at trial, which may prove difficult given the rules limiting consumer liability in cases of fraudulent card use. Settlements in consumer cases
14
January/February 2016
reflect this constraint: the December 2013 Target data breach, reportedly one of the largest in history, affected approximately 110 million consumers but settled for $10 million in available cash compensation (plus other noncash benefits), or on average 9 cents per consumer.17 Bank cases, on the other hand, are fueled by the question of who should pay for breach-related credit card fraud. Beyond the cost of fraudulent transactions lies the expense of replacing the compromised cards. Financial institutions (“FIs”) have alleged that the all-inclusive average replacement cost of each compromised card is $8. Given that large-scale data breaches can require the re-issuance of millions of cards on short notice, the future might see more bank cases trying to shift these expenses to the retailers, especially if facts suggest that the latter were arguably insufficiently alert or responsive to the threat of a data breach. Bank cases typically assert claims of negligence, breach of state data-protection statutes, and non-compliance with
thehoustonlawyer.com
applicable data-security standards. In In re Target, for example, the court denied Target’s motion to dismiss the FIs’ claims of negligence, breach of Minnesota’s Plastic Security Card Act (“PSCA”), and negligence per se based on Target’s alleged PSCA violation.18 The district court’s recent grant of class action status to the plaintiff FIs might incentivize further bank cases in the future.19 Even though the specifics of each case will lead to different outcomes, the above examples illustrate the challenges of employers guarding against data breaches affecting their employees and the consumers, vendors, and banks they do business with. Matthew Deffebach leads the Labor, Employment and Immigration Practice Group and co-leads the Litigation Department at Haynes and Boone, LLP. Having tried, as first chair, six matters in just the past four years, he is often entrusted with significant trial matters. Pierre Grosdidier is an attorney in
Haynes and Boone, LLP’s Litigation Department. His practice focuses on complex commercial litigation, especially lawsuits and arbitrations with strong technical and computer technology elements. Alex Stevens is an attorney in Haynes and Boone, LLP’s Labor, Employment and Immigration Practice Group. He frequently counsels clients regarding the intersection of labor and employment law and emerging technologies, as well as best practices to protect trade secrets and proprietary information online. Endnotes 1. Aspen Tech., Inc. v. M3 Tech., Inc., 569 Fed. Appx. 259, 262 (5th Cir. 2014) (disclosure: one of the authors, Mr. Grosdidier, is a former AspenTech employee). 2. EMC Corp. v. Pure Storage Inc., CV 13-12789-JGD, 2015 WL 5163044, at *1 (D. Mass. Sept. 3, 2015). 3. Steve Ihm et al., Seeing the Big Picture: Why Legal Directors are Bringing E-Discovery In House, HBR Consulting – Exterro, 2015. 4. James v. Nat’l Fin. LLC, No. 8931-VCL, 2014 WL 6845560, at * 12 (Del. Ch., Dec. 5, 2014) (unpublished). 5. See, e.g., Phoenix Four, Inc. v. Strategic Res. Corp., No. 05 Civ. 4837(HB), 2006 WL 1409413, at **5, 9 (S.D.N.Y. May 23, 2006) (imposing monetary sanc-
tions for counsel’s ineffectual production oversight and holding that counsel’s obligation includes the duty “to search for sources of information”)(emphasis in original). 6. Verizon 2013 Data Breach Investigations Report at 11 (available at http://www.verizonenterprise. com/resources/reports/rp_data-breach-investigations-report-2013_en_xg.pdf ); Verizon 2014 Data Breach Investigations Report at 2; Verizon 2015 Data Breach Investigations Report at 1. 7. FTC, “Commission Statement Marking the FTC’s 50th Data Security Settlement,” Jan. 31, 2014. 8. F.T.C. v. Wyndham Worldwide Corp., 799 F.3d 236 (3d Cir. 2015). 9. 15 U.S.C. § 45(a)(1). 10. LabMD, Inc. v. F.T.C., 776 F.3d 1275, 77 (11th Cir. 2015). 11. See supra note 8. 12. HHS Press Office, “Data breach results in $4.8 million HIPAA settlements,” May 7, 2014. 13. HHS Press Office, “WellPoint pays HHS $1.7 million for leaving information accessible over Internet,” July 11, 2013. 14. Clapper v. Amnesty Int’l USA, --- U.S. ---, 133 S.Ct. 1138, 1147 (2013). 15. In re Barnes & Noble Pin Pad Litigation, No. 12-cv8617, 2013 WL 4759588, at *3 (N.D. Ill. Sept. 3, 2013). 16. In re Adobe Systems, Inc. Privacy Litigation, 66 F. Supp. 3d 1197, 1211 (N.D. Cal. 2014). 17. In re Target Corp. Customer Data Security Breach Litigation (hereinafter “In re Target”), 66 F. Supp. 3d 1154, 1157 (D. Minn. Dec. 18, 2014); In re Target, MDL No. 14-2522 (PAM/JJK), at *7 (D. Minn. Mar. 18, 2014) (Pacer Doc. 358-1). 18. In re Target, 64 F. Supp. 3d 1304, 1308 (D. Minn. 2014). 19. In re Target, No. 14-2522 (PAM/JJK), 2015 WL 5432115, at *1 (D. Minn. Sept. 15, 2015
gary 13710
lane
treeban
k lane housto n, texa s 7707 tel: 28 0 1.894. 8608 cell: 71 3.202. 2994 gsl007 @sbcg lobal.n et
m a rke
ti n g co mmun
ic a tio
ns
n
Brare 65 1.440.36 Tel. 28 36 5 1.440.49 57 90 om Fax 28 rglass.c P.O. Box ston be fifi Hou defi@de 290 77 om s .c Texa rglass efifibe www.d Arthur
Sheron R. “Sam” Sheppard Co-owner / president
3101 Highway 59 N. Shepherd, TX 77371 WyVac, Inc. | Texas | USA
Office: (936) 628-1210 Cell: (713) 805-5720 Fax: (936) 628-1207 sam.sheppard@wyvac-inc.com www.wyvac-inc.com
1,000
full color business cards (both sides, front & back. design services available)
for only
$
84.95
281-955-2448 ext.11 leo@quantumsur.com
4 0 5 AV O N D A L E
We’re Almost There, But We Need Your Help! The Houston Bar Association Habitat Committee is working hard to fund construction on the HBA’s 19th home, but we are short of our goal of $75,000 to build in March-April.
HI S TOR I C , ON E -OF - A -KI N D , L IVE/ WO R K B U IL D IN G IN M ON T ROS E $1, 7 0 0 , 0 0 0 • 6 8 97 S. F. • 9800 S.F. lot • Built 1915
Houston Habitat for Humanity builds healthy, affordable homes that give families the opportunity to help themselves by breaking the cycle of poverty. Please help! Donate online at www.houstonhabitat.org/donate, then select “Houston Bar Association” or send a check payable to the Houston Bar Foundation to 1111 Bagby, FLB 200, Houston, TX 77002. For more information contact Bonnie Simmons at 713-759-1133 or bonnies@hba.org. Benny Agosto, Jr. Abraham, Watkins, Nichols, Sorrels, Agosto & Friend HBA Habitat Committee Co-Chair
Greg Ulmer Baker Hostetler HBA Habitat Committee Co-chair
On a substantial lot Truly central location Currently commercial Versatile, open spaces B I L L B A L D W I N Ample parking & storage 713.862.1600 ...yet perfect for living. bill@yourblvd.com thehoustonlawyer.com
January/February 2016
15
By Eric A. Hawley
Cyber Security and Disaster Recovery Issues for Law Firms I. Introduction Practicing law in the 21st century means that you have more sensitive data in your possession or access to such data than any other lawyer has had in history. The confidential information you receive from your clients is no longer boxes of documents kept in your office or a key to a room of files. Instead, you are now holding access to terabytes of your clients’ data through data storage sites, cloud service programs, e-discovery platforms, and numerous
other programs at your desktop or even in your pocket. Such data may include a client’s personal health information, trade secrets, intellectual property, or corporate strategies. Naturally, this makes lawyers and law firms increasingly the target of data breaches by sophisticated hackers. It is therefore important that your firm take appropriate steps to protect your clients’ information and learn how to respond in the event your system becomes compromised. Lawyers have a particularly high standard to protect the confidential information of their clients as both ethical and legal duties may be implicated by a data breach.1 Such duties have become complicated due to the constantly changing and rapidly developing body of law surrounding cybersecurity. Expectations for firms are also evolving with sophisticated clients increasingly auditing firms to ensure they are in compliance with the best practices and standards. Consequently, lawyers must not only acknowledge the legal risks of holding clients’ confidential information but also become aware of ways to guard against those risks. While there is no such thing as being bulletproof, there are basic steps that will go a long way in securing your client’s data. II. Examples of Recent Breaches at Law Firms There have been numerous recent instances of law firms being specifically targeted due to the confidential information they held. Cisco Systems, Inc., ranked law firms as the seventh-most vulnerable industry to “web malware encounters” in 2014.2 Big firms are particularly desirable targets, as at least 80 percent of the biggest 100 law firms have experienced some sort of data breach.3 In 2012, for example, Chinese-based hackers targeted several Canadian-based law firms looking to derail a $40 billion acquisition deal.4 Although hacking and malware are frequently thought of as the primary means for data breach, the most commonly reported form of data breach for law firms is actually the improper disposal of records.5
For example, in the Rio Grande Valley, hundreds of people’s private information was discovered on a lawmaker’s used jump drive that had been purchased in a local pawn shop.6 As can be seen from this example, the increasing presence of portable electronics exaggerates the significance of human error in protecting information. Accordingly, it is essential to take proper steps to safeguard the immense information available on each of your devices. III. Types of New Technology Shaping the Cyber Security Discussion There are numerous types of services and platforms that can create a risk of exposing your clients’ confidential information, and the odds are that you are using several of them right now. This may include cloud-hosted databases (i.e., Amazon RDS, Mongo DB), case management programs (i.e., Advologix PM, Clio), data storage services (i.e., Carbonite, Mozy), office suites (i.e., GoogleDocs, Microsoft Office 365), document management services (i.e., Dropbox, Box.net, Worldox), and third party hosting for e-discovery management.7 A cloud-hosted database, for instance, may be vulnerable to malicious attacks such as an SQL injection,8 which would allow the attacker access to potentially sensitive raw data contained in the database. Moreover, the risk of using these services and platforms increases when the information is unencrypted and when accessed over unsecure networks such as public Wi-Fi. Consequently, you must carefully evaluate which services you use, which providers you use, and when you use them. Some questions you should be asking when evaluating which programs to use include: Where is the data actually stored? Who has access to the data? What happens to the data when your firm is finished using the service? What kind of security does the third party system use? What do the terms of the agreements with the service entail? By asking these questions, you may be able to distinguish which programs are a better fit for your purposes and for your security.
IV. How to Prevent Breaches The methods and details of your security will depend on many things, such as the size and sophistication of your firm, budget, and resources. You should consider whether it is more appropriate to use inhouse security measures or retain a third party to secure your firm’s information. Analyze your firm’s current level of risk and evaluate which changes will be necessary. A.Encryption One of the most important steps you should be taking to ensure the protection of your information is the implementation of encryption.9 What does encryption entail? Encryption does not necessarily prevent others from accessing data, but instead makes the data unreadable without a key or cipher. This means that even if an unauthorized party is able to access the data on your system, it will be unable to read the text without also having the decryption key. Encryption is commonly used to protect the information held directly on your computer or local network. It should also be used on a secondary level to protect sensitive messages that are transmitted outside the network because such messages can be intercepted by unauthorized individuals before reaching their destination. Without encrypting the actual e-mail and attachment, you are taking information that may have been heavily protected on your system and sending it out into other systems unprotected. It is holes such as these that can lead to compromising secure information. There are a couple of points to keep in mind with respect to encryption. First, encryption applies not only to desktop computers but also portable devices such as tablets, smart phones, flash drives, and external hard drives. Messages sent from portable devices should have the option for encryption. There are numerous applications for portable devices that provide encryption services, such as Kaspersky Mobile Security, Signal, Textsecure, and iPGMail. Second, although
encryption is a reliable way of protecting data, it operates on a sliding scale from strong to weak. Just because you have encryption does not mean you are without risk. The more complicated the encryption, the more secure the data. B. Physical Security In addition to encryption, basic physical security measures should be taken at your firm. Particularly, this means locking up servers behind closed doors. If your firm keeps long-term data archived on analog tape, the tapes should also be kept behind locked doors or offsite. While it is useful to have a gatekeeper at the front door of your firm, servers and networking hardware should not be accessible by any means to those without permission. C. Train Employees on Policies and Procedures Do not rely on your IT provider to be the guardian of your firm’s information. Train your attorneys and your staff on how to be responsible and safe with firm information. One of the most concrete steps you can take at your firm is to enact comprehensive policies and procedures for both the protection of information and the response in case of a breach. This includes mandatory updates for all passwords, anti-virus software, encryption, use of firewalls, and mobile device password protection. Additionally, you should evaluate where the information is actually being used and limit access to only those who need it. D. Test, Test, Test Like anything else, you must test the system to ensure that it is functioning properly. Test the networks to ensure your safeguards are operating properly. Also, test your personnel to ensure that they are taking the proper precautions and responding to breach events appropriately. V. Disaster Recovery: Your Firm’s Data is Breached – How Do You Respond? Not only is it important to protect your system from data breaches, it is equally imperative to understand how to respond
thehoustonlawyer.com
January/February 2016
17
if a breach takes place. First, eliminate any vulnerability to further breach. To do this, it will be necessary to investigate and collect information about the breach immediately upon discovery. Determine the time and date of the breach, the duration of time that the information was exposed, and the location of the breach. Determine how the breach was discovered and by whom. Discover the details about the type of data that was compromised and who was affected. Once you make these determinations, you will better be able to assess how to respond. If necessary, contact specialized security consultants or third party IT consultants to assist in capturing relevant information and performing forensic analysis. Once there has been a breach of your firm’s information, consider any legal implications. Begin by identifying which jurisdictions are potentially involved by determining the locations of the individuals and/or businesses that were affected by the breach. Most states have some type of breach notification laws, and the level
18
January/February 2016
thehoustonlawyer.com
of duties vary in strictness. Texas’ breach notification law can be found in Chapter 521 of the Texas Business & Commerce Code.10 Depending on the jurisdiction, the breach notification law may require that you alert your clients of the breach. Your firm may also be subject to various federal laws and regulations, depending on the type of information held by the firm. For example, if your firm uses or has access to protected health information, it may qualify as a “business associate” under the Health Insurance Portability and Accountability Act, better known as HIPAA.11 Additionally, review any potentially relevant insurance policies to determine whether there is coverage. Coverage for cyber liability or data breach insurance may overlap with professional liability coverages or general liability coverages in some cases, but in other cases there may be specific exclusions in the policy.12 Next, you should determine whether any third parties have obligations based on action or inaction involved in the breach. This may include the software programs, data stor-
thehoustonlawyer.com
January/February 2016
19
age sites, or security network hosts that were implicated in the breach. Check the language in the service-level agreement with the third party to determine their obligations. Finally, determine whether any individual employees violated firm policies or procedures related to cybersecurity. If the firm has comprehensive policies in place, it will be easier to discover the details of the breach and how to quickly respond to the damage. In addition to legal implications, there may also be ethical ramifications. The Texas Disciplinary Rules of Professional Conduct require that lawyers protect confidential client information.13 The focus of the disciplinary rules is on the competence of your actions and the confidentiality of the data.14 One way to limit your liability may be to obtain written consent from your clients prior to storing any confidential information offsite with a third party. VI. Conclusion There is no sure-fire way to protect your
20
January/February 2016
firm from a breach, but you can significantly improve your firm’s cybersecurity through simple steps such as encryption, enacting policies and procedures, and training firm personnel. While there are potential legal and ethical implications for lawyers who allow confidential client information to be disclosed, you will likely be protected if you have made reasonable efforts to protect the information. Eric A. Hawley is an associate at Garcia de la Garza, L.L.P., a boutique litigation firm. He practices commercial litigation and plaintiff’s personal injury litigation. Endnotes 1. See TEX. BUS. & COM. CODE ANN. § 521.052; Tex. Disciplinary R. Prof’l Conduct 1.05(a); MODEL RULES OF PROF’L CONDUCT 1.6, cmt. 18-19 (1983) (requiring a lawyer to use reasonable efforts to prevent disclosure of client information). 2. Cisco Systems, Inc., Cisco 2015 Annual Security Report, available at http://www.cisco.com/web/offers/ pdfs/cisco-asr-2015.pdf. 3. Ellen Rosen, Most Big Firms Have Had Some Hacking: Business of Law, BLOOMBERG BUSINESS, Mar. 11, 2015, available at http://www.bloomberg.
thehoustonlawyer.com
com/news/articles/2015-03-11/most-big-firmshave-had-some-form-of-hacking-business-of-law. 4. Michael A. Riley & Sophia Pearson, China-Based Hackers Target Law Firms to Get Secret Deal Data, BLOOMBERG BUSINESS, Jan. 31, 2012, available at http://www.bloomberg.com/news/articles/ 2012-01-31/china-based-hackers-target-lawfirms. 5. Jett Hanna, The Risk of Data Breaches in Law Firms, TEXAS LAWYERS INSURANCE EXCHANGE, available at http://www.tlie.org/article/ the-risk-of-data-breaches-in-law-firms/ [hereinafter Hanna]. 6. Id.; Michael Hill, Personal Information Found on Pawn Shop Computers, Nov. 21, 2008, available at http://lists.osvdb.org/pipermail/dataloss/2008November/001391.html. 7. Stephanie L. Kimbro & Tom Mighell, Popular Cloud Computing Services for Lawyers: Practice Management Online, LAW PRACTICE MAGAZINE, Vol. 37, No. 5 (2011). 8. A security exploit where the attacker inputs Structured Query Language code into a text box, such as a user name and password, that grants access to data in the database. 9. Dialawg is one example of a service that provides encrypted communications specifically for attorneys. 10. See TEX. BUS. & COM. CODE ANN. § 521.053. 11. See 45 C.F.R. §§ 164.400-414. 12. Hanna, supra note 5. 13. Tex. Disciplinary R. Prof’l Conduct 1.05(a). 14. Id.; see MODEL RULES OF PROF’L CONDUCT 1.6, cmt. 18-19.
TLIExceptional
STRENGTH THROUGH LEADERSHIP R. ALAN YORK NAMED AS GODWIN PC MANAGING SHAREHOLDER/COO Donald E. Godwin, and the shareholders, attorneys and staff of GODWIN PC, are proud to announce R. Alan York as Managing Shareholder and Chief Operating Officer of the Firm, expanding his current responsibilities as President.
Patricia Peterson, Claims Attorney Because of our exceptional coverage, Texas Lawyers’ Insurance Exchange has been voted best professional liability insurance company in Texas four years in a row by Texas Lawyer magazine. That same exceptional coverage and over 35 years in the business has also made TLIE a Preferred Provider of the State Bar of Texas. Not to mention, we have returned over $36,550,000 to our policyholders. See why exceptional coverage makes the difference.
512.480.9074 / 1.800.252.9332 INFO@TLIE.ORG / WWW.TLIE.ORG
@TLIE_
R. Alan York - GODWIN PC President Managing Shareholder Chief Operating Officer Chair, Appellate Law Section
Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization, Alan’s decades of experience in the legal arena, proven leadership abilities, professionalism, and commitment to his clients combine to make him uniquely qualified for this position. GODWIN PC is privileged to have Alan leading our Firm, in both Dallas and Houston, toward growth and continued success.
facebook.com/TLIE01
Dallas | Houston
GODWINLAW.COM 713-595-8300
thehoustonlawyer.com
January/February 2016
21
By Jonathan Swerdloff
Dealing with the “Data Dump” in E-Discovery H
ave you ever been overwhelmed by a document dump? If your adversary “dumps” a large amount of data on you, with little regard for relevance or organization, how do you deal with it? Years ago, you would have sent associates to a warehouse where they would pore over pages of moldy and
musty documents and return with a few hot documents in a few months. Now, the volumes produced make that nearly impossible and prohibitively costly. Producing parties may dump data for many reasons. They may do it as a costsaving measure, skipping a potentially expensive relevance review. They may be trying to bury relevant evidence so it is difficult to find. There also just may be a tremendous volume of documents responsive to your requests if you did not sufficiently tailor them. This article examines a few techniques and tools lawyers can use to triage incoming productions effectively and inexpensively. When your adversary dumps millions of pages on you, there are three general scenarios that will guide your strategy. First, your case may be well developed, and you know what types of documents you need to find. Second, you may have some sense of the case but need to fill in some gaps. Finally, you may not know much about your case at all, and want to understand the documents to develop and refine your theory. Let’s look at each one in turn. Scenario 1: When You Are Looking for Specific Documents If you are looking for specific documents in a data dump, you have the advantage of already knowing information that can lead you to what you need. Now you just need to find a needle in a haystack. In this scenario, traditional Boolean searches are likely to be helpful, just like you would use on Google or Lexis. If a Boolean search does not return what you expect, you can also try using metadata analytics to find what you’re looking for. Metadata analytics group documents by known categories and allow you to drill down based on those classifications. If you know the To, From, or CC of a specific email for example, or the domain from which an email was expected, the timing of documents, or anything about the metadata at all, you can use that to hone in on the specific evidence you want. Using metadata ana-
lytics to create a review set with messages from John Smith to Edgar Wright in March of 2000 about Acme’s widgets can provide a manageable set of documents to review. This is particularly helpful in matters where codenames, euphemisms, and nontraditional language are used. In a matter where you know what you’re looking for but not the specific terms used within the document, metadata analytics are your best first step. If metadata analytics don’t reveal what you want, using an example document with textual analytics may be successful. When provided with an example, the system can use textual analytics to reveal documents that are conceptually similar to the one you provide. If you believe you know what you are looking for but don’t have a sample, you can also create one using text from multiple documents, simply inventing your own imaginary example for the system to analyze for similar documents. Scenario 2: When You Have a General Idea of What You’re Looking For What happens when you know that there’s a haystack but you’re not so sure about what the needles might look like? What if you know the basic facts of your case but you have some evidentiary gaps? If you don’t know much about the specific evidence that you need to prove your points, there are several techniques and tools you can use to triage the received production. Because you have a well-developed theory of the case and you are trying to fill evidentiary gaps in a cost effective way, we’ll start with some very efficient first steps. The more specifics you know, the better off you are. For example, you may know date ranges, important players, and whether there are specific custodians who have had conversations. Using this information, you can use metadata analysis to narrow the set of documents. However, when taking this approach remember that you can’t find what isn’t there. If you decide to only search and review part of a production, as you will see
in a little while, you may miss important documents. This early data analysis can also give you the ability to select which documents to load. Only loading part of a production can potentially save you review time as well as money in hosting. The data you have not loaded will remain fully searchable and the text can still be reviewed before loading, so you also have less risk of missing something. At this stage, you will know something about the case and may have negotiated the search terms that were the cornerstone of the production. If this is the case, you should look at a keyword hit count report. This will tell you how many documents responsive to each of your negotiated terms were produced. Running this report will give you the ability to look at the specific documents within the production that are the most likely to be relevant and give you context for them. You can turn on keyword highlighting within the documents, which will increase speed and efficiency for review. The keyword hit count can also be useful in determining which of the keywords used by the producing party are creating false hits or returning too many documents within your production set. This gives you the opportunity to fine-tune your approach. You may want to run Boolean searches on multiple keywords to find specific concepts. Throughout this process, there will inevitably be some manual review. You need to look at your evidence before you can use it. When documents are produced, they are usually grouped in families. A family of documents is a set that
“
was initially grouped together, such as a single email and its attachments or a zip file that contains multiple documents. One caution about zip files and other archives – they can contain a fair number of irrelevant documents depending on the way the initial zip file was created. If a custodian zipped up an entire file folder, for example, and there was only one relevant document in the folder, you may end up with many documents that are needlessly reviewed. Reviewing families can add a huge number of documents to your review. Different circumstances call for different strategies. When you are looking for something specific, for instance, looking at a family may give color to the document you’ve found. On the other hand, if you’re trying to flesh out your case, adding family members can add a significant number of documents to your review. This is a double-edged sword–looking at families gives you a greater sense of the documents but takes more time and thus costs more. Working with keyword highlights can make this process much less onerous by identifying both which documents in an archive are relevant and where in those documents the relevant content is. If you already have a good sense of your case you should start filling in evidentiary gaps by leveraging the keyword hit report, keyword highlighting, and looking at documents in families. Whether it’s fleshing out your timeline or expanding on known concepts, these techniques help you shine a spotlight on exactly what you are looking for using what you already know as a guide.
This article examines a few techniques and tools lawyers can use to triage incoming productions effectively and inexpensively. When your adversary dumps millions of pages on you, there are three general scenarios that will guide your strategy.
”
thehoustonlawyer.com
January/February 2016
23
Scenario 3: When You Don’t Know What You’re Looking for Yet But what do you do with a “data dump” when you only have a general sense of your case and are still developing your understanding of issues? Using the tools outlined below, you can leverage technology to make short work of your document dump while creating a robust evidentiary set. Building on the methods outlined above, once you have taken a look at the
keyword hit count and selected the documents that are relevant to your search, you can feed that search into a conceptclustering analytics tool. Concept clustering is more advanced than simple Boolean searching. It looks at words and concepts that are frequently seen together and reports on what they are. As an example, a set of documents might contain documents about football goalposts, as well as documents containing discussions where people are in an argument
Season Sponsor
MARCH 8 - 20 TUTS.COM • 713.558.TUTS GROUPS CALL 713.558.8888 OR VISIT TUTS.COM/GROUPS
24
January/February 2016
thehoustonlawyer.com
and accuse the other person of moving the goalposts. Concept clustering tools work to separate the two sets of goalpostrelated documents so that you only have to look at those that are related to the subject at hand. This is something a keyword search cannot do. This is known as unsupervised learning. Once you have a document or group of documents that you’ve found to be responsive, you will have other options using analytics to speed your process. Your review platform should have a categorization (predictive coding) feature that allows you to find documents related to your issues. Teaching the system by creating these categories and identifying what is in them is known as supervised learning or Technology Assisted Review (“TAR”). This process uses much the same mathematical logic as concept clustering, but instead of letting the documents be automatically sorted by topic, you teach the system what you are looking for and then it responds with more of the same. Once you are ready to set the system to its task, it takes the documents that you have selected or created as a “seed set” and finds other documents that are similar to them by determining how alike the documents are. TAR can help create a key set of priority documents for you to review by categorizing documents you haven’t seen as similar to ones that you have. TAR has more extensive uses in production, but it is still a valuable triage tool. If your TAR process reveals a new hot document, you can use that exemplar and feed it back into your tool and start the process again using what you’ve found. Once your TAR has finished marking documents, it is time for you to review the set of documents identified for you. There is no “easy button” and no substitute for looking at the documents when you have to make witness kits and select evidence for trial. If, after all of this, you have still not yet found what you thought you should, the next step in the process is to run a word frequency hit count. This is different than a keyword hit count. This hit count
will tell you the frequency of every word in the production. That will give you the ability to quickly pull out keywords to search for that may not have been apparent when you created the initial search terms. The more you know about your case the easier it will be to do this. You should already have some sense, through interrogatories, depositions, and interviews, of what you should be looking for. But you may not know codenames, project names, and employee shorthand. To the extent that you can determine these words by talking to opposing counsel or witnesses, you should. To the extent that you can’t, a word frequency hit count report is a good first step in identifying those terms that commonly appear. This may also reveal terms that you hadn’t thought of and that your interviews and depositions hadn’t revealed. The entire search process is designed to be iterative and repeatable, and each piece of the process has its own strengths. At this stage, you should have a significant set of relevant documents
and a sense of your case. As you learn more about the case by deposition, interrogatories, or through your review, you can follow these steps again and again to reveal more relevant evidence. There is no requirement that you follow the entire workflow. If a deposition reveals a hot document that you hadn’t seen before, you can feed it into your analytics tool to determine what similar documents are in your set. If a whole new area of inquiry arises, you can create a new category, feed it a new seed set, and allow the algorithm to do its work. If that happens, you may need to revisit those documents you loaded on your review platform and those you did not–a new issue may need new documents. Remember that you can only find what’s available to be found, so if you’ve chosen to only load part of a production, this may be the time to revisit. Conclusion: Select the Right Tools for Dealing with a Data Dump The workflows outlined above were de-
signed to help you based on what you already know. If you know a lot and need to find a little, a manual review based on predefined criteria will likely be faster and easier than using robust tools. When you know some things about your case but need to expand what you know, clustering results around what you already know lets you expand your issues. When you find a new area that requires a deeper dive, leveraging technology solutions like concept clustering and TAR may be the fastest and easiest way to come to grips with the deluge. With these tools in your belt, you have maximal flexibility to quickly, efficiently, and cost-effectively review a massive document production. Jonathan Swerdloff is an attorney consultant at Driven, Inc., a technology company focusing on assisting lawyers with e-discovery challenges. Prior to joining Driven, Jonathan was an associate at Hughes, Hubbard & Reed LLP where he gained over ten years of litigation and e-discovery experience.
thehoustonlawyer.com
January/February 2016
25
By John G. Browning and Al Harrison
“What is THAT Doing on Facebook?!” A Guide I to Advising Clients to ‘Clean Up’ Their Social Media Profiles
t’s a question that, sooner or later, virtually every lawyer practicing in the Digital Age will have to confront: how far to go advising a client to “clean up” his or her Facebook page or other social media profile? After all, regardless of practice concentration, the seemingly ubiquitous nature of social media–combined with the dizzying variety of personal information being shared every day on social networking platforms like Facebook, Twitter, Instagram, and YouTube–has morphed into a digital trove waiting to be mined by lawyers. Indeed, the statistics indicative of social networking activity are eye-popping: 293,000 status updates on Facebook every minute, hundreds of hours of video uploaded to YouTube during the same span, and nearly one billion tweets processed every 48 hours on Twitter. And, not surprisingly, some of these digital morsels of information can prove to be game-changing to a case, such as the “permanently disabled” personal injury plaintiff undone by her contemporaneous Facebook boasts about achieving her personal best in a local 10K race. While no one wants damaging social media revelations to come back to haunt her client, where are the ethical boundary
lines drawn for advising a client against sharing too much personal information on social media without running afoul of disciplinary rules or spoliating evidence? This ethical boundary issue implicated by social networking clean up can manifest potentially devastating consequences, and not just for the outcome of the case itself. For instance, in 2009, during a wrongful death case in Virginia, plaintiff’s counsel received a discovery request seeking “screen print copies on the day this request is signed of all pages from Isaiah Lester’s Facebook page including, but not limited to, all pictures, his profile, his message board, status updates, and all messages sent or received.”1 Attached to the discovery request was one of the photographs the defense attorney had downloaded off plaintiff Lester’s Facebook page (Lester’s wife had been tragically killed in an accident with a concrete truck owned by the defendant). The downloaded photo depicted Lester holding a beer can, surrounded by women, and wearing a T-shirt that reads: “I hot moms” — not exactly the portrait of a grieving widower! The following day, Lester’s attorney, Matthew Murray, instructed his paralegal “to tell Lester ‘clean up’ his Facebook page because we do not want any blow-ups of this stuff at trial.”2 The legal assistant emailed Lester, (as part of a thread that would later be referred to as “the stink bomb email”), directing him “to clean up” his Facebook page because “we do NOT want blowups of other pics at trial so please, please clean up your [F]acebook and [M]yspace!”3 Murray also had his client sign sworn answers to Interrogatories stating that he did not have an active Facebook account. The defense was wise to the deception as a result of its own informal investigation of Lester’s postings, and the results of later formal discovery (including a subpoena directed to Facebook itself). As a punishment for spoliation of evidence, the court issued adverse inference instructions to the jury and sanctioned both the plaintiff and his lawyer a staggering $722,000 ($542,000 against Murray, and $180,000 against Lester). The trial judge meted out this harsh
sanction on the basis of being appalled at “the extensive pattern of deceptive and obstructionist conduct.”4 In January 2013, the sanctions ruling was upheld by the Virginia Supreme Court. A few months later, facing disciplinary action from the Virginia State Bar, Murray entered into an agreed disposition of the charges against him for engaging in “dishonesty, fraud, deceit, or misrepresentation,” and his law license was suspended for five years–effectively ending his legal career.5 How can a lawyer avoid becoming another Digital Age cautionary tale pertaining to unethically advising clients about their social media activities? First, a lawyer must be cognizant of the plethora of potential social media pitfalls lurking out there in cyberspace, and communicating these pitfalls to clients early-on during representation. According to the Pew Internet Research Project, 74% of adult Americans have at least one social media profile, and 52% have two or more.6 And in the wake of changes adopted in August 2012 by the American Bar Association (ABA) to the Model Rules of Professional Conduct, attorneys are being held to a higher standard of what constitutes competent representation in the 21st century. Under revised ABA Model Rule 1.1, an attorney’s competence now encompasses being cognizant of “the benefits and risks associated with technology,” which would certainly include being aware of how your client’s postings on Facebook could impact the case. Although the Texas Bar has not addressed this issue, attorneys uncertain about the shifting ethical landscape in this area can also look to the growing number of ethics opinions from jurisdictions around the country which have examined this issue. The first ethics body to address just how far a lawyer may go in advising a client about his or her social media presence was the New York County Lawyers Association Committee on Professional Ethics in July 2013, with its Formal Opinion 745.7 In this opinion, the Committee noted that, with the serious privacy and litigation concerns implicated by what a client might post, it’s certainly permissible for a lawyer to review
what the client planned to post, counsel the client regarding the content and advisability of such posts, and even to advise the client how these posts might be perceived or precipitate lines of questioning. The Committee also reaffirmed that a lawyer may proactively counsel a client about judiciously setting her social media privacy profile. But perhaps the biggest bombshell dropped by the Committee, with barely any explanation, was that an attorney may also offer advice as to removing or taking down content, “[p]rovided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence.”8 New York would later return to this crucial ethics issue in March 2014, wherein the New York State Bar Association’s Commercial and Federal Litigation Section issued a sweeping set of “Social Media Ethics Guidelines.”9 These guidelines clarified that there was no problem with a lawyer advising a client about privacy settings, reviewing what a client planned to post, or recommending social media policy. However, these guidelines also went into more detail about “taking down” social media content, emphasizing that, in order to comply with evidence preservation obligations, lawyers should not allow clients to delete information that is potentially relevant to litigation “[u]nless an appropriate record of the social media information or data is preserved.”10 The next jurisdiction to tackle this issue was the Philadelphia Bar Association Professional Guidance Committee in its July 2014 Opinion 2014-5.11 Like its New York counterparts, the Philadelphia Committee held that a lawyer can certainly counsel a client to restrict access to its social media information and could also advise a client on managing the nature and scope of account content. This Committee also agreed that while a lawyer may not instruct or knowingly allow a client to delete or destroy a relevant photo, link, text or other content, a lawyer may instruct her client to “delete” damaging information on Facebook if she also took care to “take appropriate action to preserve the information in the event it should prove to be relevant and
discoverable.”12 Soon after the Philadelphia Committee’s opinion, the Pennsylvania Bar Association handed down its Formal Opinion 2014-300, an 18-page opinion that provided comprehensive guidance pertaining to attorneys’ involvement with and use of social media, including a range of issues implicating advising clients on their social media accounts.13 The Opinion reminded lawyers that “a competent lawyer should advise clients about the content that they post publicly online and how it can affect a case or other legal dispute.”14 And like its predecessors in New York and Philadelphia, the Pennsylvania Bar Committee concluded that a lawyer may “instruct a client to delete information that may be damaging from the client’s page, provided the conduct does not constitute spoliation or is otherwise illegal, but must take appropriate action to preserve the information in the event it is discoverable or becomes relevant to the client’s matter.”15 The next ethics opinions to weigh in on this question were the North Carolina Bar Association’s Proposed 2014 Formal Ethics Opinion 5 on “Advising a Civil Litigation Client About Social Media” issued in April 2014 and the Florida Bar’s Proposed Advisory Opinion 14-1 issued in January 2015.16 Like earlier opinions, the North Carolina ethics opinion found that–both before and after filing a lawsuit–advising a client to implement heightened privacy settings was perfectly fine. Similarly, counseling a client about the legal implications of posting on social media sites was, the Committee held, not only permissible but also integral to a lawyer’s duty to provide “competent and diligent representation to clients.”17 Finally, the North Carolina opinion concluded that, while a lawyer may instruct a client to take down existing social media posts, it added the caveats that such removal must not constitute spoliation or violate a court order, and that the lawyer “must also advise the client to preserve the postings by printing the material, or saving the material to a memory stick, compact disc, DVD, or other technology, including web-based technology, used to save documents, audio, and video.”18 Florida’s ethics opinion lim-
thehoustonlawyer.com
January/February 2016
27
ited itself to a pre-litigation timeframe, but cited and agreed with the conclusions of preceding ethics opinions. Like its counterparts in other states, Florida’s Professional Ethics Committee found that it was ethically fine for a lawyer to advise a client about privacy settings as well as content, and that a lawyer could advise a client to take down content from a social media page, provided that there was no “violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence,” and as long as “an appropriate record of the social media information or data is preserved.”19 The most recent ethics opinion was rendered in October 2015 by the West Virginia Bar’s Legal Ethics Opinion No. 2015-02, broadly addressing many areas of attorney social media activity, including lawyer advertising manifest on social networking platforms. It also tackled lawyer advice to clients about the context on their social media profiles. Like the other jurisdictions’ ethics opinions, West Virginia articulated that attorneys “may and often should advise their clients about their postings, and that monitoring clients’ use of social media may be helpful for attorneys to stay abreast of matters that may impact their clients’ legal disputes.” Like the predecessor opinions, this 2015 opinion perceived nothing wrong with attorneys advising clients to change privacy settings or even to delete profile information, provided that the attorneys take “appropriate steps” to preserve information and to avoid engaging in conduct that might constitute spoliation. What are the consequences for failure to preserve such evidence? In the context of justification for a spoliation jury instruction, the Texas Supreme Court recently clarified the duty of counsel to preserve evidence by avoiding spoliation. In Jesse James Gutierrez v. Wackenhut Corp., the trial court in Val Verde County granted a jury instruction that defendant Wackenhut intentionally and knowingly destroyed a video recording of an accident in which a Wackenhut charter bus collided with a car driven by Gutierrez. The jury awarded Gutierrez $1,201,050.08 in damages and prejudgment interest, and the San Antonio 28
January/February 2016
Court of Appeals affirmed,20 overruling Wackenhut’s sole issue on appeal that the trial court erred in submitting the spoliation instruction. The Texas Supreme Court in February 2015, under an abuse of discretion standard, granted Wackenhut’s petition for review and remanded the case for a new trial absent a spoliation jury instruction.21 The Texas Supreme Court articulated a two-pronged standard for spoliation and, indeed, by extension, for the standard of care for attorneys regarding preservation of evidence. First, did the spoliating party act with intent to conceal discoverable evidence and, second, did the spoliating party act negligently, thereby causing the non-spoliating party to be irreparably deprived of any meaningful ability to present a claim or a defense? The Court held that, since an abundance of evidence was otherwise available to the parties, Gutierrez was not irreparably deprived of any meaningful ability to present his claim, and so the trial court had abused its discretion by submitting the spoliation instruction to the jury. Dealing with clients’ activities on social networking sites will continue to present dilemmas for attorneys on both ethical and practical levels for quite some time to come. Ethics opinions among the various state bars, like those discussed herein as well as forthcoming opinions will continue to develop attorneys’ standard of care and so afford some measure of guidance, while raising concomitant questions. For example, who decides whether social media content is relevant? After all, relevance–like beauty– is often in the eye of the beholder. And what about the format in which social media content is preserved? Can a paper printout or screenshot depicting information possibly suffice in view of the dynamic nature of social media content and the wealth of information or metadata to be gleaned by analyzing what lies beyond the surface of a screenshot? Moreover, what will the implications be as technology changes? Popular apps such as Snapchat, which deletes data shortly after being shared, raise a plethora of discovery and evidentiary issues. Such questions serve as a reminder for lawyers of the importance of knowing how clients are
thehoustonlawyer.com
using social networking platforms and what the ramifications of such use may be. John G. Browning is a partner in Passman & Jones, where he handles commercial litigation, employment, health care and personal injury matters. He is the author of the recently published books entitled “The Lawyer’s Guide to Social Networking” and “Social Media and Litigation Practice Guide.” Browning also serves as an adjunct professor at SMU Dedman Law School and as editor-in-chief of the Texas Bar Journal. He frequently speaks on social media issues pertaining to law practice and related matters. Al Harrison is a patent attorney concentrating on intellectual property law with Harrison Law Office, P.C. His practice focuses on patent and trademark prosecution, consulting, and serving as an expert witness and IP counsel. He is a frequent speaker at HBA and State Bar seminars and courses. He has been a long-time member of The Houston Lawyer editorial board and is a member of the State Bar Advertising Review Committee. Endnotes 1. Allied Concrete Co. v. Lester, 736 S.E. 2d 699 (2013). 2. Id. 3. Id. 4. Id. 5. Va. State Bar, Disciplinary System Actions, http:// www.vsb.org./profguides/actions_jul13-dec13.html (last visited Nov. 4, 2013). 6. Pew Internet Project Social Networking Fact Sheet, Pew Internet.org (Jan. 2014), http:www.PewInternet. org/fact-sheets/social-networking-fact-sheet. 7. N.Y. Cnty. Lawyers Ass’n Comm. On Prof’l Ethics, Formal Opinion 745 (2013). 8. Id. 9. N.Y. State Bar Ass’n, Commercial and Federal Litigation Section, Social Media Ethics Guidelines, (Mar. 18, 2014), http://www.nysba.org/Sections/Commercial_ Federal_Litigation/Com_Fed_PDFs/Social_Media_ Ethics_Guidelines.html. 10. Id. 11. Phila. Bar Ass’n, Formal Op. 2014-5 (2014). 12. Id. 13. Pa. Bar Ass’n, Formal Op. 2014-300 (2014). 14. Id. 15. Id. 16. N.C. State Bar, Formal Op. 5 (2014); Fla. Bar Prof’l Ethics Comm., Proposed Advisory Op. 14-1 (2015) (Florida’s Proposed Opinion, with only minor changes, recently was formally adopted). 17. Id. 18. Id. 19. Id. 20. Wackenhut Corp. v. Gutierrez, 358 S.W. 3d 722, 72425 (Tex. App. – San Antonio 2011, pet. granted) 21. Wackenhut Corp. v. Jesse James Gutierrez, 453 S.W.3d 917 (Tex. 2015).
H o u s to n L a w y e r s W h o M a d e a D i f f e r e n c e
Arnulfo D. “A. D.” Azios By The Hon. Mark Davidson
T
he United States Military Code of Honor and the provisions of the Geneva Convention place an obligation on our military to attempt to escape if taken prisoner of war by enemy combatants. The reason for the rule is simple – the greater a chance of escape, the more of the enemy’s forces must be spent in custodial roles, and therefore there will be fewer of those forces in the field. In some cases, of course, escaping can save the lives of the prisoners, since not all nations follow the Geneva Convention or the laws of humanity to the letter. Arnulfo D. “A. D.” Azios was a member of the 9th Armored Division who had been given specialized training in the German language. In December of 1944, he was performing patrol duty on the border between France and Luxembourg when the Nazi army started its last major offensive of the war – the Battle of the Bulge. The American division was outnumbered five to one, but valiantly retreated to strategic locations – the
for his bravery and dedication to duty before and after his capture. In leading an escape, he followed the Code of Honor to the letter – saving lives in the process. Azios would become a lawyer and the Judge of four different courts after the war – always being a gentleman who took his job best known of which was seriously but never taking Bastogne. During the himself too seriously. His retreat to that position, judicial career would last Azios and his platoon more than thirty years. were taken prisoners. He He was the first judge in would spend four months Texas to admit DNA eviin captivity. As the Allied dence. He was known to armies advanced, the be a friend and advisor Germans took their pristo young lawyers, always oners back into central being willing to give the Germany. During a move, benefit of his lifetime of Azios, using his language experience to succeedskills, led ten soldiers in Arnulfo D. “A. D.” Azios ing generations of the bar. a successful escape attempt. Risking To the soldiers he liberated and to the his life and those of his comrades from nation he loved, Azios was a dedicated execution by the Germans or friendly leader. To the public he served and the fire from the American army, he made it bar, he made a difference. across “no man’s land” to freedom. Before being found by the American army, The Hon. Mark Davidson is an MDL he even took ten German soldiers prisjudge and judge (retired) of the 11th oner. District Court. His column for The A number of prisoners captured durHouston Lawyer focuses on Houston ing the Battle of the Bulge never made it attorneys who have had significant impact home – they were executed at Malmedy, on the law, the legal profession and those or were allowed to starve or freeze to served by the law. death. Azios received numerous awards
thehoustonlawyer.com
January/February 2016
29
By Charles Brown
Effective Web Marketing:
Applying Old Understanding to New Tools
A
s Texas attorneys, we strive to provide quality legal services to our clients. However, doing so presupposes that we actually have clients and, increasingly, that means that we need an effective web presence. We all know that. The trouble is that what constitutes an effective web presence is constantly evolving and staying in front of every trend is beyond the capabilities of most law firms. That is why it is a better approach for most law firms to provide consistent quality content through the three primary marketing outlets—directories, web pages, and social media. Rather than think of these as entirely new inventions, it is likely more accurate to see them simply as more effective versions of prior tools. For decades, there were a few staples of law firm marketing: directories, brochures, and networking. Those staples are still present; they have simply changed their nature from physical to digital. Those tools have transformed to become internet search engines and directories, websites, and social media. Although the form has changed, the goals have remained the same.
From One Yellow Book to A Thousand Directories The goal of buying a Yellow Page ad and paying for a Martindale-Hubbell listing was simple—when your target audience, whether it be consumers or other law firms, needed to find a lawyer, this is where they would look. So once you made sure that the information in those ads or listings was correct, you were done for the year. For years, this strategy worked. Throughout the 1980s and 1990s, as many as 34 percent of adults looking for legal services utilized print directories.1 Unfortunately, today, the simplicity of the Yellow Pages and Martindale-Hubbell has been replaced by the fluidity and complexity of Google’s search algorithm and thousands of specialty directories and websites competing for legal advertising dollars and consumer attention. Further, many smaller web directories will create entries for businesses based on scraped data, which is information extracted from other websites. This can lead to inconsistency across the web, which is a negative signal for many search engines, including Google. So an attorney can no longer simply sign off on a listing in one book or directory and be finished for the year. Now the process is constant and expensive, whether in terms of time or money. Recall, however, that the goal is simple—to let those looking for you know how to find you. With that in mind, the real goal is to place your firm in the appropriate directories and to make sure that all web directory entries have the same, correct information for your firm. Thankfully, there are a number of tools that can assist the lawyer who wants to handle this task in house. One such example is Moz Local. For $84.00 per year, Moz Local will push the correct location data to data aggregators across the web. This ensures that the data found on the web for your locations is correct and complete. Another similar tool is Manta’s Listing Manager. For $33 per month,
Manta’s Listing Manager performs a similar service, but hits 50 different directories. Whether firms use these tools or others, for a relatively small outlay of time and money, firms can reduce the burden of maintaining consistent directory listings across the internet, which is a key indicator of authority for many search engines and necessary when your potential client tries to find your firm.
“
that reflect your firm and the types of legal work you are interested in. Google’s Keyword Tool will take that list and give you up to 1,000 additional keyword ideas. Once you have the list, you can begin to get estimates of both the volume of the search and the competition for the search. It is best to view the competition or keywords on a local level (e.g. Houston) rather than a national or global level if your practice is a local practice. Also, make sure to check on the difference between mobile search and desktop search if that is relevant to your practice area. Now, cull that list down to the top 10 keywords. These are the words that you are going to target.
Think of your website as your firm’s brochure. Only now, your digital brochure is available to people wherever they are and contains up-to-date information.
Which Directories Matter While these tools ensure consistent entries across the web, they do not tell you where you should consider advertising your firm to maximize your return on investment. In other words, how do you find the digital equivalent of the Yellow Pages and Martindale-Hubbell listings for today’s legal consumer? The simple answer is to focus on the directory that your potential client will use. There is no escaping the mental process of putting yourself in the shoes of your potential client and determining their method for locating a lawyer who performs your services. Matching your marketing efforts to your client’s needs is the first step to an effective web presence. You might be the lucky law firm that ranks number one in Google for “bankruptcy lawyer” but that does not help if your firm specializes in family law. So how do you determine how your potential client would find you? Step 1: Google Keyword Tool. The Google Keyword Tool serves two primary functions—to give you keyword ideas and to give you insight on the monthly volume of searches for particular keywords. Once you create an account, create a list of keywords
”
Step 2: Using Google and Bing, search the internet. Once you have a list of the keywords you want to use to get traffic to your site, the next step is researching what keywords are driving traffic to your competitors’ websites. As a law firm, you already know your industry, niche, and target market, so the next step is determining who your competition is. You can do this process yourself, or use an online tool like Raven or Compete.com to help you analyze the data. In the online world, your competitors would include other law firms that are visible on the same or similar search engine results pages as yours. Look for the first five or ten firms that appear in results with yours, and then review their websites. The goal is to find opportunities that your competitors have missed in their digital arsenal. Step 3: Search for Directories. There are numerous online directo-
ries, but some will have better ranking on large search engines like Google and Bing. Among the top search engine performers are Yelp, Manta, and Yahoo! Local Listing. Looking more specifically at the legal industry in Houston, top directories include Avvo, lawyers.com, and justia.com. If there are one or two directories that consistently appear in the search results for your keywords, you should strongly consider advertising in these directories. What Once Was a Brochure Is Now a Web Page Once the potential client finds you via web directories or search engines, they are likely going to visit your website. Think of your website as your firm’s brochure. Only now, your digital brochure is available to people wherever they are and contains up-to-date information. The humble brochure has become your website and blog. As with legal directories, the days of set-it and forget-it are over. Change is required. Many refer to this as blogging, which is consistently adding content to your website. Whether you think of it in terms of blogging or a constantly growing brochure is not terribly relevant. What is critical to success on the web is the idea of consistently adding quality content to your website. Blogging is one of the most effective strategies to improve your search engine visibility and reach consumers. The Texas Bar Association even offers a directory of blogs at blog.texasbar.com. Success in blogging is no different than any other form of marketing. Your goal is to create quality content. By creating content that speaks to the needs of the consumers and that answers their questions, you will find potential clients. Family law attorneys can reach consumers by creating informative blogs related to topics like co-parenting, changes in child support laws, or tips for an amicable divorce. Similarly, personal injury firms can reach clients by using current,
thehoustonlawyer.com
January/February 2016
31
real life news examples of accidents or injuries and then explaining how their firm can help clients in similar situations pursue financial recovery. But remember to focus on your potential client’s needs, not your own. Simply posting a prefabricated press release by an awards group is not effective and serves a limited function. Instead, if you provide unique information to your potential clients, the search engines and potential new clients will find you. Improving Your Website Just as the text of your brochure is critical to its utility, the text of a website can make the website more useful to consumers and more easily indexed by search engines. So taking the time to ensure that your website has effective content is worth it in the long run. To start, it is critically important to know what keywords you want your website to focus on. While some firms take the shotgun approach, hoping to get cases in more lucrative areas than they
regularly practice in (think truck accidents), a better approach for consumers and for search engines is to focus on your firm’s strengths. Then, when a potential client sees your site, they will know that you are an expert in your field and feel comfortable that you are the right lawyer for them. This keyword list should be similar to the list created for the directory project above. After creating and refining your keyword list, a firm must ensure that a visitor to the website would quickly see those keywords sprinkled throughout the website. The following are some ideas for ensuring that your website focuses on your keywords: • Keyword Placement: There should be a page for each keyword that you would like to focus on. Once you have established the keyword for the particular page, make sure that the keyword appears in the title, headline, URL, and in appropriate places in the body text. Think early
THE POWER OF AN LL.M. DEGREE The University of Houston Law Center is home to renowned LL.M. specialty programs with two (Health Law and Intellectual Property) ranked in the Top Ten according to U.S. News & World Report. • Energy, Environment and Natural Resources- There is no better place to study the interrelated areas of energy, environment and natural resources law than UH Law Center located in the energy capital of the world. • Health Law- The Health Law & Policy Institute emphasizes interdisciplinary studies in all areas of health law and policy, and benefits from UH’s association with the Texas Medical Center, the world’s largest medical complex. • Intellectual Property & Information Law- The Law Center’s top-rated IPIL program is on the cutting edge as these disciplines rapidly evolve in the global economy. • International Law- Growing interdependence places a premium on lawyers who understand the intricacies of public and private international law. Houston holds a commanding presence in the global marketplace, and our LL.M. program capitalizes on the city’s substantial connections. • Tax Law- The LL.M. tax program provides the enhanced knowledge and practical skills needed to meet the challenge of successfully dealing with ever-changing tax laws.
Now accepting applications for the fall 2016 semester For more information contact llm@uh.edu or visit law.uh.edu/llm UH is an EEO/AA institution
32
January/February 2016
thehoustonlawyer.com
and prominent. If the page is about custody disputes, Custody Disputes would be a good title for that page. It should also appear as the URL for that page. As you outline the page, it should probably also appear regularly throughout the text. • Focus on the Consumer: If your page is poorly written or the content is weak, consumers will not remain interested in your website for very long and are not going to be interested in hiring you as their lawyer. By focusing on the potential client, many of the search engine optimization goals will be met naturally. Small law firms looking for a competitive search engine edge should also consider creating their website on a platform that is mobile-friendly.2 More and more people search from their phones rather than a computer. • Add Visuals: Just as a text-only brochure would be terribly boring, so is a website without pictures or video. Adding these visuals to a website helps in several ways. First, adding photographs or video to a website can build trust among consumers. Photographs help convey the human element of attorneys and law firms, helping our potential clients connect with people within the firm. Similarly, Continued on page 45
Correction An error by the publisher of The Houston Lawyer caused a mistake in the text of Travis Sales’ Profile in Professionalism in the NovemberDecember 2015 issue. The publisher and the HBA would like to correct that error by reprinting his Profile in Professionalism on the next page. We deeply regret that this error occurred and apologize to Mr. Sales and his law firm, Baker Botts L.L.P.
A Profile
in pro f e s s io n ali s m
Travis J. Sales Partner, Baker Botts L.L.P.
Jim Sales, and Wayne Fisher, Ralph Carrigan, Richard Josephson, Ron Krist, Bob Malinak, and others. As I enter my 28th year of practicing law, truisms I heard from them as a young lawyer seem even truer today. That integrity means doing the right thing when no one is looking. That it takes years to build a good reputation but only a day to wreck it. That you’ll never regret taking the high road. That your word is your bond. And that lawyers are uniquely privileged to have a license to help others with legal problems. In that regard, providing pro bono legal service to those in need is the foundation of our professionalism. Recently, helping a sick veteran at the VA Hospital with his last will and testament reinforced that to me. I am proud to be part of a generous and professional group that helps people solve problems. I am proud to be a Houston lawyer. The Houston Lawyer
A
s lawyers, we face the constant question of whether the practice of law is a profession or a business. In today’s competitive legal market, the pressure to produce to the bottom line drives many to believe the old adage of “the law is a noble profession” no longer applies. That need not and ought not be the case. Indeed, professionalism and successful business results should be and most commonly are complementary, not mutually exclusive. While there are exceptions, clients expect their lawyers to be zealous advocates, but to do things the right way, to be honest, and to give back to the community. Gaining clients’ trust and admiration is good business. I have been blessed to have wonderful role models in the practice of law and in life. Lawyers who exemplify the “noble lawyer.” Lawyers like my father,
thehoustonlawyer.com
January/February 2016
33
66 Harvest Celebration Raises Record $732,720 for Houston Bar Foundation th
T
he 66th Harvest Celebration, co-sponsored by the Houston Bar Association, Houston Bar Association Auxiliary and Houston Bar Foundation, raised a record $732,720 in underwriting to benefit the Foundation, the charitable arm of the association. The event was held November 16 at River Oaks Country Club, with more than 1,000 HBA members and their guests in attendance. HBA Treasurer Alistair Dawson and Houston Bar Foundation Chair William R. Buck served as event co-chairs. As the main fundraising From left, Alistair Dawson, Harvest Celebration co-chair; Wendy Dawson, HBAA president; event for the Foundation, the Laura Gibson, HBA president; Bill Ogden; Leslie Buck; and William R. Buck, HBF chair. Harvest Celebration honors the spirit of giving embodied by members’ contributions, not only financially but also through pro bono service to those less fortunate. The Foundation’s primary beneficiary is the Houston Volunteer Lawyers, which provides thousands of hours of pro bono legal representation to low-income Harris County residents A number of HBA Ambassadors attended the Harvest Celebration. Photo left: Scott Kendall, Jenny Nguyen, Jesús Castillón, Simin Sun, Bradford Crockard, Margot Trevino Rosson, Chris each year. Domingo, Jamie Sullivan, Ryan Wooten, Hillary Holmes, and Rick Anderson. Photo right: Photos by Temple Webber Photography
34
January/February 2016
Christopher Porter, Tracy Penn, Farrah Martinez, Robert Ford, Marni Otjen and Neal Sarkar.
thehoustonlawyer.com
Benny and Nikki Agosto
Kelly and Carmela Frels
Stewart and Lynn Gagnon
Ann Stephens, Susan Ballard and Glenn Ballard Greg Ulmer and Sandy Brown
Attorneys from Williams Kherkher LLP show support for the Harvest Celebration
Sheridan and John Eddie Williams
Fred Hagans with daughter Lindsay Hagans and son William G. Hagans. thehoustonlawyer.com
January/February 2016
35
Houston Bar Association FREE HBA ONLINE CLE Earn CLE credit and ethics credit at your convenience, at no charge, as a benefit of HBA membership! Visit www.hba.org and click “Free Online CLE Videos” on our homepage. Log in using your HBA account information. You can also create an account on that page. More than 30 videos offer more than 50 CLE hours, many including ethics. New videos are added monthly.
Nicole Voyles presented at the 2015 New Licensee Institute.
HBA Seminars and Section Presentations HBA Seminars and Section Presentations provide continuing education on a variety of legal topics, including ethics credit for some programs.Current programs include: - 10 Things the Family Law Practitioner Needs to Know About Bankruptcy - Anatomy of a First Party Insurance Case - The Policyholder’s Perspective - Sports Agency - Process to Player - NCAA Investigation and Outside Counsel’s Role - Your Practice and Immigration: Anticipating Potential Immigration Issues and the Impact on Your Clients - Alternatives to Guardianship - Dude Where’s My Car? Texas Towing and Booting Laws - Art and War of Cross and Direct Examination - U.S. Supreme Court Update - HBA’s 2015 Fall Ethics Program - So You’ve Been Appointed a Guardian Ad Litem - Now What? - Key Issues When Employees Leave to Compete - Recent Developments in Wage Hour Law - Whose Bill is it Anyway? Adult Child’s Responsibility to Pay for Their Parent’s Care - When FERC Comes Calling - Implications of the Supreme Court on DOMA - Beyond Reasonable Doubt: Challenging the Criminal Investigation - Oral Argument Revisited: Pitfalls, Tips and Practical Advice
New Licensee Series on Starting a Solo Practice This series will help you start your solo practice, from setting up an office, getting and keeping clients, ethically marketing your services, and using courtroom technology.
Zach Wolfe presented on “Ethical Use of Social Media by Lawyers.” 36
January/February 2016
- Using Technology in the Courtroom - Legal Marketing 101 - Ethical Use of Social Media by Lawyers - Starting Your Practice: Advice from Two Solos - 2015 New Licensee Institute
thehoustonlawyer.com
COMMITTEE SPOTLIGHT
Teach Texas Committee By Polly Fohn
I
n the fall of 2013, Justice Sandra Day O’Connor spoke at a Texas Supreme Court Historical Society dinner attended by many of the most prominent members of the Texas bar. She talked that evening, among other things, about the importance of teaching civics in the public schools. Warren Harris, head of Bracewell LLP’s appellate practice group and then-president of the Historical Society, was inspired to transform her words into action. Harris’s vision has now materialized into a new book: Taming Texas: How Law and Order Came to the Lone Star State, written by the award-winning historian James L. Haley and co-authored by Marilyn P. Duncan. The book, which is designed for use in seventh grade Texas history classrooms, chronicles how the rule of law came to the Texas frontier. In an endorsement, Retired Chief Justice Wallace B. Jefferson urges readers: “A seventh-grade curriculum would be incomplete without an examination of the law’s fundamental impact on society.” As Taming Texas was nearing completion, Houston Bar Association President, Laura Gibson, decided to create a new committee to facilitate the book’s rollout into classrooms across Houston—and with that, the Teach Texas Committee was born. Gibson appoint-
ed three co-chairs to work with Harris on the new committee. Each of the cochairs has unique expertise. David Furlow, a solo practitioner in Houston and the Executive Editor of the Texas Supreme Court Historical Society Journal, brings his experience designing educational programs for Texas schools. This past summer, at the invitation of Harris County District Judge Erin Lunceford, Furlow partnered with several judges to present a program on the history of the Magna Carta to middle school and high school teachers and administrators from across Texas. Judge Lunceford is a fellow committee chair and an active member of the Texas Chapter of the American Board of Trial Advocates, which hosts an annual “Teacher’s Law School” in Texas. The Committee will also draw on the experience of its third co-chair, Justice Brett Busby, who serves on the Fourteenth
Court of Appeals and has long been involved through The Houston Symphony in creating educational programs for Texas school children. The Committee is currently working to form a coalition of lawyers and judges to begin teaching the book Taming Texas. It has already secured the commitment of several Texas Supreme Court Justices to lead the way. The rollout of the program into the public schools is slated to begin in February. Middle schools in the Houston area are welcoming the program with open arms and 75 schools have already agreed to participate in the program. With such a successful start, the Teach Texas Committee is sure to be an HBA staple for years to come. Polly Fohn is an appellate attorney at Haynes and Boone, LLP and a member of The Houston Lawyer editorial board.
thehoustonlawyer.com
January/February 2016
37
OFF THE RECORD
Pocket Full of Soul:
Todd Slobin Produces Definitive Documentary on the Harmonica
By Raymond L. Panneton
The Houston Lawyer
C
successful, they would need harmonica players that could lend ontract negotiations can be brutal, cutthroat, and marketability to the project. downright dirty. Houston attorney Todd Slobin, a partThrough countless efforts, Slobin finally found the players the ner with Shellist Lazarz Slobin, LLP, knows this first film needed. The final credited cast included, among others, Clint hand: “I would have never thought negotiating with Black, James Cotton, Taylor Hicks, Robert Klein, John Popper, Alvin and the Chipmunks was going to be so difficult.” Kim Wilson, and Huey Lewis, who agreed to narrate the movie. Slobin was not negotiating a multi-billion dollar takeover of the Slobin recalls the particularly tedious task of scheduling: “Somepopular franchise; he was negotiating use of a clip from a Chiptimes these interviews could take months to coordinate. Others munks’ television special for use in his own movie, Pocket Full of would get scheduled and then unexpectedly canceled. It was a lot Soul: The Harmonica Documentary. Widely touted as THE definiof work, but it was well worth it in the end.” tive documentary of the harmonica, Pocket Full of Soul captures The film was ultimately released both the culture and importance of in December 2014, to a very warm this tiny instrument and its large imreception. The film has screened in pact on American culture. Although theaters from New York to Los AnPocket Full of Soul now enjoys a wide geles. Since then, as with the harcult following, the journey for Todd monica itself, the film has garnered Slobin and his documentary did not a passionate, cult-like fan base. Not start in a production studio in Holonly are harmonica players offering lywood, but rather at a Bar Mitzvah high praise for the film, critics are in Beverly Hills. taking notice. Since its release, PockWhile speaking with a 70-year old et Full of Soul has garnered numerous cousin, Slobin learned that the harawards, including the Keeping the monica was hugely popular in the Blues Alive Award. The film also re1940s, and that one of the chart top- Todd Slobin with Clint Black and Marc Lempert ceived “Official Selection” status in film and music ping groups of the time used harmonicas. During the following festivals in Houston, Austin, Tucson, and Maui. In days, Slobin continued to think about the harmonica group and addition, the film almost broke the World Record discovered that there was an upcoming harmonica convention for largest harmonica ensemble, when it gave out in Dallas. 10,000 harmonicas at an Astros’ game. “I was at this convention for 30 minutes, and I knew this was From an initially self-funded documentary project to an award something special,” Slobin recalls. Attending this convention was winning film, Slobin has a substantial financial and time investthe first spark. Quickly devising a plan, Slobin created a makement in the endeavor. “All of the work I put into the film was shift interview room and sign-up sheet so attendees could record outside of my law practice. I would work all day at the office, come their passion and experiences with the harmonica. “I went into home, eat dinner with my family, and I would work on the film at these interviews as I would a deposition. I knew the general idea night,” Slobin recalls. But the work has paid off. Slobin continues of what I wanted to obtain and used that as a springboard to get to see the film gain in popularity and has had sold out showings of some really great material.” the film in theaters across the country and internationally. Along with film partner and director, Marc Lempert, Slobin beTo learn more about Pocket Full of Soul or to purchase a copy, gan harmonica convention hopping. “We went all over the world,” please visit www.pocketfullofsoulmovie.com. Slobin recalls, “the United States to Italy, Germany, and Taiwan.” In the beginning, a majority of the interviews they did and footage they collected were of unknown, albeit very talented, playRay Panneton practices medical malpractice, medical device, and ers. Slobin and Lempert knew if they wanted this project to be pharmaceutical litigation with The Talaska Law Firm, PLLC.
38
January/February 2016
thehoustonlawyer.com
A Profile
in pro f e s s io n ali s m
’ve seen many great trial lawyers exemplify professionalism with their honesty, expertise, and zeal. No doubt these traits are admirable. But what I’ve learned in over 45 years of practicing is that none of them can exist without courage. To become a professional trial lawyer, I needed courage to face the fears in my mind, the flaws in my client’s case, and the demons in my soul—and conquer them to serve my clients. Being a professional means having the courage to face your fears. When I was a young lawyer, that meant having the courage to go to trial. Litigators have plenty of reason to fear going to trial. After all, it could risk the client’s property, assets, or even freedom. And it always risks your reputation. But what I’ve learned through trying cases with the likes of Joe Jamail, Wayne Fisher, Ernest Cannon, Mark Lanier, and John O’Quinn is that when the facts call for trial, true professionals set aside these fears—and answer. Being a professional means having the courage to
face the flaws in your client’s case. For me as a trial lawyer, those flaws are often challenging facts that, like a bomb, can explode the clients’ case. Too often, lawyers dwell on the good facts—and hope the harmful ones don’t detonate. But true professionals don’t accept that level of risk. They have the courage to approach these bad facts and the expertise to dismantle them. Being a professional means having the courage to face your demons. For me, that exorcism happened in 1988—when I confronted my problem with drugs and alcohol. Admitting my problem and seeking help from the Texas Lawyers’ Assistance Program took courage. But conquering my addiction enabled me to become the best version of myself. You have a professional duty to your client to be your personal best. True professionals fulfill that duty by discovering the courage to confront their demons. Whether you’re an old trial lawyer like me or an upand-coming attorney, being a professional takes courage. So find it.
thehoustonlawyer.com
January/February 2016
The Houston Lawyer
I
Danny Goforth Goforth Law Firm
39
LEGAL TRENDS
Texas Supreme Court Defines the Scope of the Attorney Immunity Doctrine
I The Houston Lawyer
n Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015), a 5-4 majority of the Texas Supreme Court held that a law firm was entitled to attorney immunity against a suit brought by a nonclient because it conclusively established that its alleged conduct—even if wrongful or fraudulent—was within the scope of the representation.
Factual and Procedural Background The petitioner, Cantey Hanger, LLP, represented Nancy Simenstad in divorce proceedings from Philip Byrd. An agreed divorce decree awarded Simenstad three aircraft as her separate property, including a Piper Seminole that had been owned by Lucy Leasing Co., LLC, which the decree awarded to Byrd. Byrd, Lucy Leasing, and another company awarded to Byrd in the decree later sued Simenstad and Cantey Hanger for fraud, aiding and abetting, and conspiracy, alleging that they had falsified a bill of sale January/February 2016
“
the majority explained, “the defense does not extend to fraudulent conduct that is outside the scope of an attorney’s legal representation of his client, just as it does not extend to other wrongful conduct outside the scope of representation.” Thus, “[a]n attorney who pleads the affirmative defense of attorney immunity has the burden to prove that his alleged wrongful conduct, regardless of whether it is labeled fraudulent, is part of the discharge of his duties to his client.” Applying these rules, the majority held that Cantey Hanger was entitled to summary judgment on its immunity defense because it had conclusively established that its alleged conduct was within the scope of its legal representation of Simenstad in the divorce proceedings. The plaintiffs had essentially complained that the manner in which Cantey Hanger had carried out a specific responsibility assigned to it by the divorce decree—transferring ownership of the plane to Simenstad—imposed tax liabilities on the plaintiffs in a way that violated the decree. Whether meritorious or not, the majority continued, this type of conduct fell “squarely” within the scope of its representation of Simenstad in the divorce proceedings. In other words, that the conduct may have been wrongful or fraudulent does not, by itself, take it outside the scope of the firm’s representation of its client.
The majority
began its analysis by reviewing the law of
attorney immunity
in Texas, explaining that, ‘as a general rule, attorneys
are immune from
By Nicole Bakare
40
transferring the Piper Seminole from Lucy Leasing to a third party in such a way that shifted tax liability from Simenstad to the plaintiffs. Cantey Hanger moved for summary judgment on attorney-immunity grounds. The plaintiffs generally argued in response that the trial court should permit the claims because they involved fraudulent conduct. The trial court granted Cantey Hanger’s motion, but a majority of the court of appeals reversed, holding that Cantey Hanger was not entitled to immunity because its alleged fraudulent conduct involving the sale of the plane “was not required by, and had nothing to do with, the divorce decree” and, as a result, was “outside the scope of representation of a client.” 409 S.W.3d 772, 779–83 (Tex. App.—Fort Worth 2013). The Texas Supreme Court accepted Cantey Hanger’s petition for review to address the parties’ dispute over “the scope and application of the attorney-immunity doctrine.”
civil liability to
non-clients “for
actions taken in connection with
representing a client
The Court’s Analysis The majority began its analysis by reviewing the law of attorney immunity in Texas, explaining that, “as a general rule, attorneys are immune from civil liability to non-clients ‘for actions taken in connection with representing a client in litigation.’” That an attorney’s conduct has been labeled as fraudulent, the majority continued, “does not and should not remove it from the scope of client representation or render it ‘foreign to the duties of an attorney.’” Nor is fraudulent conduct an exception to the attorney-immunity defense. Rather,
thehoustonlawyer.com
”
in litigation.” ’
Nicole Bakare is an associate in the Global Insurance Department at Cozen O’Connor and a member of The Houston Lawyer editorial board.
LEGAL TRENDS
Fifth Circuit Expands Restrictions on Student’s Off-Campus Speech By Jason D. Goff
I
n Taylor Bell, et al. v. Itawamba County School Board, the United States Court of Appeals for the Fifth Circuit, sitting en banc, expanded the parameter of a school’s right to limit their students’ right to free speech.1 The Fifth Circuit used the reasoning previously provided by the United States Supreme Court in the Tinker case as the vehicle for its expansion.2 Taylor Bell was a senior at Itawamba Agricultural High School in Itawamba County, Mississippi. By Bell’s own account, he felt compelled to write and perform a rap song, which he recorded and posted on Facebook and YouTube. The subject of the rap song was what Bell alleged as improper conduct by two male teachers against various female students at the school. The Fifth Circuit described the rap recording as “incredibly profane and vulgar,” but the main concern was at least four lyrical instances of “threatening, harassing, and intimidating language” towards the two teachers. Bell was disciplined for his rap
song because of the threatening language, with a temporary suspension and temporary transfer to an alternative school. Bell and his mother brought suit against the school district, alleging that the punishment infringed on his constitutional right to freedom of expression. In Tinker v. Des Moines, the seminal case on student’s rights to free expression in school settings, students were suspended and sent home for wearing black armbands in protest of the Vietnam War. The students brought suit, alleging an unconstitutional restriction by the school of their first amendment rights. The Supreme Court annunciated the following standard, reiterated by the Fifth Circuit as follows: “A student ‘may express his opinions... if he does so without materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others.’”3 Since the Tinker case was decided in 1969, numerous cases have carved out certain exceptions to this standard— all involving expressions occurring or discovered at school.4 What distinguishes the Taylor Bell case is that the expression in question was not created or presented on school premises or during a school activity. Bell thus argued that Tinker did not apply to off-campus speech, and even if it did, the “substantial disruption” test was not satisfied. The Fifth Circuit disagreed. While Tinker ad-
dressed an expression which occurred inside the “schoolhouse gate”—wearing the black armbands during school—the Fifth Circuit opined that in this new age of technology and social media, the old boundaries between on and off campus are dissolving.5 The Fifth Circuit went on to hold that the substantial interference standard in Tinker should be expanded to include off-campus speech intentionally directed at the school community and which may interfere with school operations. The Fifth Circuit further held that it was reasonable for the school board to find that Bell’s rap song threatened, harassed, and intimidated the two teachers and therefore, could reasonably be forecast by the board as a future substantial disruption. Finally, the Fifth Circuit held that the school board’s disciplinary response was measured and appropriate under the circumstances. Jason D. Goff is an attorney with Sheehy, Ware and Pappas. His practice is dedicated to trial work where he defends clients in civil litigation claims. Goff is a member of The Houston Lawyer editorial board. Endnotes 1. Bell v. Itawamba County Sch. Bd., 799 F.3d 379 (5th Cir. 2015). 2. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969). 3. Bell at 390 (emphasis added). 4. Id. 5. Id at 392.
thehoustonlawyer.com
January/February 2016
41
Media Reviews
How to Capture and Keep Clients: Marketing Strategies for Lawyers, 2nd Edition Edited by Jennifer J. Rose American Bar Association, 2015 Reviewed by Raymond L. Panneton
The Houston Lawyer
A
s the title suggests, capturing and keeping clients can be one of the most daunting aspects of the practice of law. In today’s modern practice, firm owners can easily get so caught up in their social media presence that they often overlook the act of actually obtaining clients. However, without clients, the stellar attorney directory rating means nothing. How to Capture and Keep Clients: Marketing Strategies for Lawyers, 2nd Edition, has been published by the American Bar Association for over a decade. The 2nd Edition, published in 2015 and edited by Jennifer J. Rose, seeks to compile real-word, useful tools for obtaining and maintaining a strong client base for the practitioner. Rose, who was the former editor-in-chief of GPSolo magazine, understands the unique posi-
42
January/February 2016
tion of the solo and small firm and uses this knowledge in creating a relevant and worthwhile tool kit. This anthology, authored by true practitioners from across the United States, touches on every relevant area of modern law firm marketing. Topics covered range from “asking for business” to “tax implications of law firm marketing.” Unlike most books on law firm marketing that simply gloss over the main ideas, How to Capture and Keep Clients fully explores and develops each section in a way where true knowledge and insight is being passed along. As a reader, you feel that the author truly wants you to succeed and they are not “holding anything back” from you. This is a breath of fresh air. Laid out in topical sections, this book does not and should not be read in order, cover to cover. It is written, by design, in such a way to function as a frequent reference book for the practitioner. Per the editor, Jennifer Rose, “[this book] should resemble a well-used Joy of Cooking, replete with the smudges of dirty fingerprints.” How to Capture and Keep Clients is an excellent arrow in the practitioner’s quiver. The editor has successfully compiled a group of authors that understand the modern struggles of law firm marketing, and are able to effectively communicate ways to overcome these struggles to be successful. The advice being given within its pages is relevant, concise, and well explained. A small firm owner or solo practitioner at any stage of their career can benefit in some way from the wisdom given. Raymond L. Panneton is an associate with the Talaska Law Firm, PLLC where he practices medical malpractice, pharmaceutical, and medical device litigation.
thehoustonlawyer.com
Collection, Demand, and Commercial Letters for the General Practitioner By David J. Cook, JD American Bar Association, 2015 Reviewed by paul t. bowers
I
n Collection, Demand, and Commercial Letters for the General Practitioner, David J. Cook provides a practical and engaging approach to prelitigation demand letter writing that will afford many attorneys with a war chest of demand and commercial letter samples. Cook draws upon his over 40 years of experience as a collections attorney in California to author this extremely useful practice guide. Cook imparts his personal insight and philosophy about demand letter writing in the book, with commentary following each letter sample he provides. The author also includes a few useful adages, which help to convey his letter-writing approach to any attorney. These axioms, such as “Measure twice, but cut once” and “You had me at hello,” listed and expanded upon in the Prologue, allow readers to immediately
Media Reviews
get on board with Cook’s ideas on writing effective demand letters. The author opens the book with an emphasis on the importance of demand letters and he includes a section on the importance of the delivery method. Although he cites California law, similar rules and principles should be applicable in most states. Personally, I like how he stresses that compliance is mandatory by the attorney when under the auspice of state and federal debt collection laws. This book includes many examples of letters that attorneys can use in a wide array of situations that require demanding payment or action of some kind. Most of the letters are demand specific. An example is a letter that demands adequate assurances of performance (p. 81). This is a letter that expresses concern to and demands assurances from a party that your client has contracted with who is behind on payments to your client. This fact, coupled with swirling rumors that the same party of the demand is not paying its other partners, will address the situation where credit needs to be suspended and measures need to be taken to avoid further loss. Maybe the greatest feature of the book is the commentary following each letter. Written in plain English, it frequently addresses questions and concerns that might arise when reading the letters (see comparing the right of revocation to the “return desk” at Macy’s, p. 234). This guide will be a valuable resource for any commercial litigator who wants to add to their collection of practice tools. Paul Bowers is an attorney with the law firm The Bowers Law Group, where he practices business litigation and personal injury litigation. He is a member of The Houston Lawyer Editorial Board.
HBA Member in Upcoming Legal Thriller
A
legal-thriller movie entitled, Misconduct, starring Anthony Hopkins and Al Pacino was due to be released February 5, 2016. HBA member Jason Gibson plays a supporting role as “Graham,” an assistant to Hopkins’ character in the movie. Hopkins plays “Denning,” a billionaire CEO of a pharmaceutical company who is used to ALWAYS getting his own way. Pacino portrays the senior partner of a large law firm who aims to expose Denning. The central character is a young associate at Pacino’s firm played by Josh Duhamel. The suspenseful drama also stars Alice Eve, Malin Akerman and Julia Stiles and the movie is rated “R.”
31 ST
Houston Bar Association
John J. Eikenburg Law Week
03.12.2016
8k FUN RUN
For more information, go to www.lawweekfunrun.com
Benefitting
The Center thehoustonlawyer.com
January/February 2016
43
LITIGATION MARKETPLACE
Document Examiner
Legal Document Retrieval, Inc
www.legaldocusa.com CV., CR., BK. Documents All Courts & Archives. UCC, Corporate, Patent & Trademark Assets & Property Reports Service of Process Mass Mail Outs legaldocusa@aol.com
713.222.2244
The Houston Lawyer
Office Space
RIVER OAKS TOWER Kirby & Richmond. Guariglia & Placzek Family Law Attorneys have office spaces available for sublease. Amenities include conference room, local and long distance telephone, private voicemail, high speed internet, printer, copier, fax, Lexis Nexis, ProDoc, filing and pick up for Court documents, and full kitchen. Accounting Services are available at an extra charge. Great working and Collaborative environment. Call Philip: 713-208-2222. HOUSTON/GAL LER I A. Two outside offices are available in an office suite shared with nine experienced and established attorneys. Included in monthly rent are free parking, three conference rooms, receptionist, internet access, telephone system, Toshiba color copier scanner, postage machine, fax and a fully stocked kitchen. Covered parking, file storage facilities and secretary/paralegal space are available. Office furniture not included. Call Jim at 713-759-1188.
Heights Area Law Office Sharing North Loop near Shepherd. Wi-Fi and wired Internet, attached covered parking, and beautiful conference room. Break room includes coffee, water, and soft drinks. Galleria Area One window office with downtown view, available Available for sublease to a sole practitioner, a furnished immediately. Call Teri 713-529-2020. 240 sq.ft. exterior office (wall of windows). Includes use Office Space at 3 Riverway. of a conference room, wifi, Class “A” building located phone w/vm, receptionist off Woodway Drive and 610 and limited secretarial assisWest Loop. Law firm is pri- tance. Incentives for a commary tenant. Several offices mitment of twelve months available. On-site manage- or more. Call 713-993-9363. ment and security guard, attached parking garage for tenGALLERIA AREA ST. JAMES PLACE ants and visitors, conference rooms, receptionist services, Attorney-size office with kitchen, wired for broadband secretarial work station for sublease — AV rated firm, internet access. Contact Lisa DeWild 713-209-2934 Class A build out. Possibil44
January/February 2016
thehoustonlawyer.com
ity for referrals. Please send inquiries to houstongalleria lawfirm@gmail.com Great office space at 1601 Westheimer at Mandell, minutes from downtown Houston. Rent includes shared access to two conference rooms, kitchens, internet, cable, phones with VM, all utilities, part-time receptionist. Window offices ranging from $400-$1,000 per month with no long-term commitment. For information, please call Mark Kidd at 713-968-4601 Professional Services All things driving and sealing/expunging criminal histories. We defend traffic and ordinance violations, remove arrest warrants, solve DPS license issues, obtain occupational licenses, and handle DWI, racing, reckless driving, evading, and hit and run cases. 4 1/2 YELP stars. Robert W. Eutsler 713-464-6461 www.TheTicketAttorney.com
Watlington & Associates, LLC
ATTORNEYS Eliminate the Expense of Nonmeritorious Lawsuits
Certified Legal Nurse Consultant® & Registered Nurse Call 281-732-0160 Risk -Free Guarantee! Email: shari.watlington@yahoo.com
PAYMENT PROCESSING EXCLUSIVELY FOR ATTORNEYS
the
HBA
serves you
Enhance your practice Try the HBA advantage.
www.hba.org
Time to redesign your website? contact
leo@quantumsur.com 281.955.2449 ext.11
For classifieds ads please contact:
Mary Chavoustie Email: mary@quantumsur.com
Helping law firms get paid.
www.LawPay.com
866.376.0950
or call her at: 281.955.2449 ext. 13
Dealing Effectively with Change
Applying Old Understanding to New Tools
From page 6
From page 32
ney of accomplishing your goal. Before you know it, you will have achieved your goal.
thoughtful, concise videos can help potential clients understand your firm’s approach and values.
5. Take good care of yourself. Difficult circumstances will be more manageable if you maintain a healthy diet, get regular exercise and get plenty of sleep. As any parent of a young child knows, without regular fuel, a healthy body and a well-rested mind, even small setbacks can seem insurmountable. Make sure that you are ready to embrace change by being as strong as you possibly can be.
Networking Is Now Social Networking Networking is an overused marketing device for the lazy and ineffective. As traditionally practiced, networking consists primarily of haphazardly attending conferences, happy hours, or lunches with people who may, in theory, have work to send you at some unspecified time. It allows lawyers to feel like they are “getting out there” and “beating the bush” but really it accomplishes very little. Social media networking is no different. Posting on Facebook or Twitter without a plan is not marketing. Instead, a firm must have a wellthought-out plan and execute impeccably in order to have any success generating consistent work through social media. To start, a firm must build a follower base that is likely to have work for the firm. It is not effective to have 1,000 followers that see your message if none of the followers are decision makers with a legal problem that you can solve. How best can you find followers who might either have legal work for you or know others who will? Mine your former and current client base. Every effort should be made to recruit as many of your current and former clients as you can to follow your social messaging accounts. Firms should also follow and monitor current and former clients’ social media accounts. This can not only give you insight into the current issues impacting your clients, but also help you obtain additional followers with similar backgrounds and interests to your current and former clients. Social media has the ability to magnify the other efforts firms make to get their message out to potential clients. However, just like networking in the real world, social media marketing is hard work to do well, and time-consuming and expensive when done poorly.
6. Focus on lessons learned. With greater experience comes greater wisdom. Consider keeping a journal so that you can recount past experiences. Review your journal from time to time to help you identify positive and negative outcomes and to obtain clarity with regard to what you should do in the future to make it more likely you will have a favorable outcome. 7. Have a plan. Rather than ignoring problems caused by change, be proactive. Take time to figure out what you need to do to deal with adversity, make a plan and take action. By doing so, you can work to improve your situation. 8. Make every day meaningful. Each day, focus on doing something that gives you a sense of accomplishment and purpose. Think of ways you can make a difference in the lives of others. Doing so will help restore your sense of self-esteem. For instance, if your workload has diminished, think about volunteering with the Houston Volunteer Lawyers. Not only will your efforts enable someone to get access to justice, you will also be reminded of your significant skills and your ability to solve problems for the benefit of others. You will also be exposed to people who see your high quality of work and can provide you with referral opportunities. As you embark on the new year in 2016, I wish you the best for your continued success. Happy new year!
Summing It Up Online marketing is required for law firms. While many can become confused by all of the online marketing options, remembering that today’s tools are little more than digital versions of old tools can help focus firms on effective marketing strategies and empower them when they are pitched by vendors who seek to confuse rather than clarify. Just as before, the goal is to make sure that your potential clients can find you and like what they see once they do. Charles Brown is the managing partner of the Brown Wharton & Brothers Law Firm and practices medical malpractice and nursing home abuse litigation. He can be reached at cbrown@medmalfirm.com.
Sylvia Mayer
Attorney, Mediator & Arbitrator 713.893.0339 smayer@smayerlaw.com
Endnotes 1. American Bar Association (2011). Perspectives on Finding Personal Legal Services. http:// www.americanbar.org/content/dam/aba/administrative/delivery_legal_services/20110228_ aba_harris_survey_report.authcheckdam.pdf 2. Hendricks, Drew (2015). 3 Secrets Regarding SEO for Law Firms. http://www.allbusiness.com/ seo-for-law-firms-21481-1.html
thehoustonlawyer.com
January/February 2016
45
Up to 100% Financing for Attorneys Cadence recognizes the needs of customers just beginning their law careers by offering this Early Professionals mortgage loan program: • Must be in professional career (5 years or less from certification) • 5/1 ARM and Fixed Rate programs available • Loan Amounts up to $1,000,000 • Up to 100% LTV • Owner Occupied Purchases • No Mortgage Insurance Requirement Maybe you are already established in your law career and looking to purchase a new home or refinance your current home. Cadence has great loan products for you as well with up to 80% LTV: • Fixed Rate Jumbo Loans • One-Time Close Construction & Renovation Loans • Lot Loans • Refinances For more information contact:
John C. Thomas Mortgage Loan Originator NMLS#595247
Office: 713-871-4041 john.thomas@cadencebank.com Visit Me Online: johnthomas.cadencebank.com
M O RTGAGE All loans are subject to credit approval. Loan terms and availability subject to change. Restrictions apply. Consult a Cadence Bank Mortgage Lender for complete details. Cadence Mortgage is a Division of Cadence Bank, N.A. NMLS#525022