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Promoting Professionalism The Importance of Mentorship Programs Maintaining Professionalism in Crisis Situations Professionalism: It’s More than “Please and Thank You” Undaunted: Houston’s Earliest AfricanAmerican Lawyers

Volume 56 – Number 4

January/February 2019

Building champions.

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contents January/February 2019

Volume 56 Number 4

10

The Texas Lawyer’s Creed

22

FEATURES

10 The Texas Lawyer’s Creed Texas Lawyer’s Creed– 12 The 30 years later By tim Mcinturf

14 Professionalism: A Lawyer’s Mandate Professionalism 15 Promoting Houston Bar Association’s

Professionalism Committee

By Professor Lonny Hoffman

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The State Bar of Texas Professionalism Committee

By Liza Greene and Al Harrison

The Texas Bar College

By Al Harrison

Justice Eugene A. Cook Professionalism Award Recognizes Excellence

By Tara Shockley

Importance of Mentorship 22 The Programs

By Koby Wilbanks

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34

Professionalism 24 Maintaining in Crisis Situations

By Randall O. Sorrels and Michelle A. Ciolek

It’s More than 28 Professionalism: “Please and Thank You”

By Daniel D. Horowitz, III

Houston’s Earliest 30 Undaunted: African-American Lawyers

By John G. Browning

The Houston Lawyer

34 Reception Honors New Judges

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/QuantumSUR, Inc., 2017. All rights reserved.

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contents January/February 2019

Volume 56 Number 4

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38

departments Message 6 President’s Maintaining Public Confidence

through Professionalism

By Warren W. Harris

the Editor 8 From The Diverse Meaning

of Professionalism

By Polly Graham Fohn THE RECORD 36 OFF John Zavitsanos:

It’s All Greek to Him

By Allen Tanner

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41

Spotlight 38 Committee HAY Center Committee Helps Youth

Transition From Foster Care

By Scott Michelman

Spotlight 39 SECTION Animal Justice:

Advocating for the Voiceless

By Belinda Smith

Trends 40 Legal Gunn v. McCoy: Who May Provide

Affidavits to Prove Medical Expenses under CPRC 18.001?

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By Jonathan M. Jabcuga

Profile in professionalism 41 ARichard C. Kroger

Assistant General Counsel, Westlake Chemical Corporation

ReviewS 42 Media Positive Professionals: Creating

High-Performing Profitable Firms Through the Science of Engagement Reviewed by Tim McInturf

Searching for Pilar

Reviewed by Anietie Akpan

The Houston Lawyer

44 Litigation MarketPlace

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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

Holm | Bambace LLP

Shearman & Sterling LLP

Firms of 50-100 Attorneys

Abraham, Watkins, Nichols, Sorrels,

Horne Rota Moos LLP

Shellist | Lazarz | Slobin LLP

Akin Gump Strauss Hauer

Agosto and Aziz

Husch Blackwell LLP

Shipley Snell Montgomery LLP

& Feld LLP

Adair Myers Graves Stevenson PLLC

Irelan McDaniel, PLLC

Short Carter Morris, LLP

BakerHostetler LLP

Ajamie LLP

Jackson Lewis P.C.

Smith Murdaugh Little & Bonham LLP

Greenberg Traurig, LLP

Arnold & Itkin LLP

Jenkins & Kamin PC

Sponsel Miller Greenberg PLLC

Haynes and Boone, LLP

Baker, Donelson, Bearman, Caldwell

Johnson DeLuca Kurisky & Gould, P.C.

Sprott Newsom Quattlebaum Messenger

Jackson Walker L.L.P.

& Berkowitz, PC

Johnson Trent & Taylor LLP

Stone Pigman Walther Wittmann PLLC

Morgan, Lewis & Bockius LLP

Baker Williams Matthiesen LLP

Jordan, Lynch & Cancienne PLLC

Strong Pipkin Bissell & Ledyard LLP

Susman Godfrey LLP

Baker Wotring LLP

Kean | Miller LLP

Stuart PC

Thompson & Knight LLP

The Bale Law Firm, PLLC

Kelly, Sutter & Kendrick, P.C.

Taunton Snyder & Parish

Winstead PC

Barrett Daffin Frappier Turner & Engel, LLP

Kilpatrick Townsend & Stockton LLP

Taylor, Book, Allen and Morris, LLP

Berg & Androphy

KoonsFuller, PC

Thompson & Horton LLP

Firms of 100+ Attorneys

Bradley Arant Boult Cummings LLP

Kroger | Burrus

Tindall England PC

Baker Botts L.L.P.

Buck Keenan LLP

Law Feehan Adams LLP

Tracey & Fox Law Firm

Bracewell LLP

Bush & Ramirez, PLLC

LeClairRyan

Ware, Jackson, Lee, O’Neill, Smith

Hunton Andrews Kurth LLP

Cage Hill & Niehaus LLP

Linebarger Goggan Blair & Sampson, LLP

& Barrow, LLP

Locke Lord LLP

Campbell & Riggs, P.C.

Lorance & Thompson PC

Watt Thompson Frank & Carver LLP

Norton Rose Fulbright US LLP

Christian Smith & Jewell LLP

MacIntyre, McCulloch & Stanfield, LLP

West Mermis, PLLC

Porter Hedges LLP

Cozen O’Connor

McGinnis Lochridge

Weycer Kaplan Pulaski & Zuber PC

Vinson & Elkins LLP

Crady, Jewett, McCulley & Houren, LLP

McGuireWoods LLP

Williams Kherkher Hart Boundas, LLP

Crinion Davis & Richardson LLP

McKool Smith

Wilson Cribbs & Goren PC

Corporate Legal Departments

De Lange Hudspeth McConnell & Tibbets LLP

MehaffyWeber PC

Wright Abshire, Attorneys, PC

Anadarko Petroleum Corporation

Dentons US LLP

Morris Lendais Hollrah & Snowden

Wright Close & Barger, LLP

CenterPoint Energy

Devlin Naylor & Turbyfill PLLC

Nathan Sommers Jacobs PC

Ytterberg Deery Knull LLP

EOG Resources, Inc.

Dobrowski, Larkin & Johnson LLP

Pagel Davis & Hill PC

Zimmerman Axelrad Meyer Stern Wise

MAXXAM, Inc.

Dow Golub Remels & Gilbreath PLLC

Peckar & Abramson, P.C.

Zukowski, Bresenhan & Piazza L.L.P.

Plains All American Pipeline, L.P.

Doyle Restrepo Harvin & Robbins LLP

Perdue & Kidd

Ewing & Jones, PLLC

Phelps Dunbar LLP

Firms of 25-49 Attorneys

Rice University

Fisher & Phillips LLP

Pipkin Ferguson PLLC

Adams and Reese LLP

S & B Engineers and Constructors, Ltd.

Fizer Beck Webster Bentley & Scroggins

The Potts Law Firm

Ahmad, Zavitsanos, Anaipakos, Alavi

Fogler, Brar, Ford, O’Neil & Gray LLP

Ramey, Chandler, Quinn & Zito, P.C.

& Mensing P.C.

Law School Faculty

Ford + Bergner LLP

Rapp & Krock, PC

Andrews Myers, P.C.

South Texas College of Law Houston

Fowler Rodriguez

Reynolds Frizzell LLP

Beck Redden LLP

Thurgood Marshall School of Law

Frank, Elmore, Lievens, Chesney & Turet, L.L.P.

Roach & Newton, L.L.P.

Blank Rome LLP

University of Houston Law Center

Fulkerson Lotz LLP

Ross Banks May Cron & Cavin PC

BoyarMiller

Fullenweider Wilhite PC

Royston, Rayzor, Vickery

Cokinos | Young

Government Agencies

Funderburk Funderburk Courtois, LLP

& Williams, L.L.P.

Gibbs & Bruns LLP

Harris County Attorney’s Office

Galligan & Manning

Rusty Hardin & Associates, P.C.

Hogan Lovells US LLP

Harris County District Attorney’s Office

Germer PLLC

Rymer, Echols, Slay, Wilkerson

Kane Russell Coleman & Logan PC

Harris County Domestic Relations Office

Gibson, Dunn & Crutcher LLP

& Nelson-Archer PC

Martin Disiere Jefferson & Wisdom

Metropolitan Transit Authority of

Givens & Johnston PLLC

Schiffer Hicks & Johnson PLLC

McDowell & Hetherington LLP

Harris County Texas

Gordon Rees Scully & Mansukhani

Schirrmeister Diaz-Arrastia Brem LLP

Liskow & Lewis

Port of Houston Authority of

Hagans Montgomery & Rustay PC

Schwartz Page & Harding LLP

Littler Mendelson PC

Harris County, Texas

Hall Maines Lugrin, P.C.

Scott, Clawater & Houston, L.L.P.

Ogletree Deakins Nash Smoak

1st Court of Appeals

Henke, Williams & Boll, LLP

Shannon Martin Finkelstein Alvarado

& Stewart, P.C.

14th Court of Appeals

Hirsch & Westheimer PC

& Dunne, P.C.

Yetter Coleman LLP

Quantlab Financial, LLC

president’s message

By Warren W. Harris

Maintaining Public Confidence through Professionalism Bracewell LLP

T

his issue addresses one of my focus areas this year: dent. The award is presented to a lawyer or judge who exProfessionalism. Professionalism is important beemplifies the highest level of professionalism and legal ethcause we must maintain public confidence in our ics. The award focuses on a lifetime of professionalism and profession and the rule of law. is the highest honor awarded by the HBA for professionalThis year we will celebrate the 30th anniversary ism. The recipient must have demonstrated, by conduct and of the Texas Lawyer’s Creed. The Creed was character, a longstanding commitment to promulgated in 1989 by the Texas Supreme professionalism and a record of exemplary Professionalism is Court and Court of Criminal Appeals to adservice in the areas of professionalism, leimportant because dress abusive tactics by lawyers. In its pregal ethics, and legal excellence. The recipiamble, the Texas Lawyer’s Creed states: “I ent must also be a role model for younger we must maintain know that Professionalism requires more or less experienced lawyers and must make public confidence in than merely avoiding the violation of laws the bar proud of the legal profession. and rules. I am committed to this Creed for The new award was presented to its our profession and no other reason than it is right.” We must namesake, Justice Eugene A. Cook, widely the rule of law. always be committed to follow the princiregarded as the “father of professionalism” ples of the Creed. in Texas at the 2018 annual dinner. The To enhance the professionalism of new lawyers, preaward will be presented again at this year’s annual dinner. pare them to better represent their clients, and help them Part of what we must do as professionals is educate the make careers as practicing lawyers, mentoring is one of public, especially young people. The HBA puts lawyers and the most important things we can do as lawyers. This year, judges in schools to educate students on the rule of law, the Professionalism Committee has expanded our current judicial civics, and the role of lawyers in our society. These mentoring program to reach even more newly-licensed atschool programs are not only important, but they are among torneys. We are also adding more professionalism programthe favorite activities of many of our volunteers. Add to our ming—like the panel last fall on civility featuring Justice Teach Texas volunteers the hundreds of HBA members who Eva Guzman—which lawyers not only need, but actually go into schools each year for Law Day and Constitution Day want to attend. And we will expand the activities in conreadings. junction with this year’s Day of Civility.

Lawyers and judges are equally responsible to protect the Another action we have taken to bring attention to profesdignity and independence of the courts and of our professionalism is the creation of a new award to recognize prosion. Throughout history, citizens have looked to our professionalism. The Justice Eugene A. Cook Professionalism fession for leadership and guidance. We must demonstrate Award was established earlier this year by the HBA board our professionalism so that we can maintain public confiof directors and is named in honor of Eugene A. Cook, a dence in our profession and fulfill our responsibility to the former Texas Supreme Court Justice and former HBA Presilegal system.

“

The Houston Lawyer

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from the editor

By Polly Graham Fohn Haynes and Boone LLP

The Diverse Meaning of Professionalism

Associate Editors

Anietie Akpan Law Offices of Anietie Akpan, PLLC

Anna M. Archer U.S. District Court

Preston Hutson MehaffyWeber PC

The Houston Lawyer

Taunya Painter Painter Law Firm PLLC

Hon. Jeff Work The Freeman Law Firm, P.C.

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rofessionalism is often synonymous with integrity and ethics. But it also has a much broader meaning—encompassing any “qualities that characterize or mark a profession.”

Among the qualities that characterize some of the most iconic lawyers in our profession are diversity of race, culture and thought. These qualities evoke images of Thurgood Marshall arguing Brown v. Board of Education, Ruth Bader Ginsberg fighting for women’s rights, and even the fictional Atticus Finch delivering closing arguments in To Kill a Mockingbird.

That is why, in this issue on professionalism, we are honored to have award-winning author John G. Browning contribute a feature on Houston’s earliest African-American lawyers. Browning’s meticulously researched article draws on newspaper archives dating as far back as 1892. From their black and white pages, he brings us the colorful stories of pioneers such as J. Vance Lewis, a man born into slavery and orphaned at a young age, who became one of Houston’s most prominent early African-American lawyers. He also masterfully weaves together the professional history of Winston M.C. Dickson, who received his law degree from Harvard in 1905 before returning home to a successful legal career in Houston. It is lawyers such as these, whose stories might otherwise be forgotten, that exemplify professionalism.

Professionalism of course has taken many other forms throughout history. Author Tim McInturf, chief administrative and legal officer of Quantlab Financial, LLC, discusses how, 30 years ago, Texas became the first state to adopt a civility code, which

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it still embraces today: “The Texas Lawyer’s Creed— A Mandate for Professionalism.” The architect of the Creed was former Texas Supreme Court Justice Eugene A. Cook, whose accomplishments are featured in a column written by Tara Shockley, communications director for the HBA. Today, the legal community continues to face new professional challenges. President-Elect of the State Bar, Randy Sorrels, and his associate Michelle A. Ciolek, both of Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz, give readers a blueprint on how to maintain professionalism in crisis situations such as natural disasters. And, at times in heart-breaking narrative, Daniel D. Horowitz, III, past-president of the Houston Trial Lawyers Association, sheds light on mental health and substance abuse problems that afflict lawyers at higher rates than average. Horowitz encourages each of us to take care of one another—our friends, our colleagues, and even our legal adversaries. One way to connect with one another in an age where we increasingly rely on email and social media is to participate in the HBA’s Mentor-Mentee Program, which matches up new and experienced lawyers. The benefits of that program, as well as several others, is detailed by Koby Wilbanks, an associate at Murrah & Killough, PLLC, who also provides a testament to the importance of mentoring in her own career.

This exceptional issue came together through the hard work of guest editors, Anietie Akpan of The Law Offices of Anietie Akpan, PLLC and Kimberly Chojnacki of Baker Donelson. We are indebted to their efforts. And, as always, thank you for reading The Houston Lawyer.

BOARD OF DIRECTORS President

Secretary

President-Elect

Treasurer

First Vice President

Past President

Warren W. Harris

David Harrell

Benny Agosto, Jr.

Bill Kroger

Jennifer A. Hasley

Alistair B. Dawson

Second Vice President

Chris Popov

DIRECTORS (2017-2019)

Collin Cox Hon. Erin Lunceford

Diana Perez Gomez Robert Painter

Daniella Landers Lionel M. Schooler

DIRECTORS (2018-2020) Greg Moore Greg Ulmer

editorial staff Editor in Chief

Polly Fohn Associate Editors

Anna Archer Jeff Oldham Hon. Jeff Work

Preston Hutson Taunya Painter

Anietie Akpan Natasha Breaux Marcel de Chermont Al Harrison Trey Holm Stacey Lafitte Michael A. Lee David Lopez Tim McInturf George Murr Taunya Painter Sara Taheri Tara Taheri

Editorial Board

Brooksie Bonvillain Boutet Kimberly A. Chojnacki Anna DeMaggio Matthew Heberlein Jonathan Jabcuga Kristen Lee Scott Reiter Link Farrah Martinez Avi Moshenberg Marni Otjen Raymond Panneton Joseph Verret Koby Wilbanks

Managing Editor

Tara Shockley

HBA office staff Executive Director

Kay Sim Ashley G. Steininger Education Assistant Christina Treviño Director of Projects Bonnie Simmons Project Assistant Alana Polk Director of Communications Tara Shockley Director of Education

Communications Assistant /Web Manager

Carly Wood

Director of Membership and Technology Services Ron Riojas Membership Assistant Database Assistant Director of Development Receptionist/Resource Assistant Administrative Assistant

Danielle Keith Leo Skelly Diane Cervenka Lucia Valdez Valerie Ramirez

Advertising sales Design & production QUANTUM/SUR

12818 Willow Centre, Ste. B, Houston, TX 77066 281.955.2449 • www.quantumsur.com Publisher

Leonel E. Mejía

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Marta M. Mejía

Advertising

Mary Chavoustie

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The Texas Lawyer’s Creed A MANDATE FOR PROFESSIONALISM

Promulgated by

The Supreme Court of Texas and the Court of Criminal Appeals. November 7, 1989

I am a lawyer. I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this creed for no other reason than it is right.

I. OUR LEGAL SYSTEM A lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer should always adhere to the highest principles of professionalism.

1. I am passionately proud of my profession. Therefore, “My word is my bond.”

2. I am responsible to assure that all persons have access to competent representation regardless of wealth or position in life.

3. I commit myself to an adequate and effective pro bono program.

4. I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.

5. I will always be conscious of my duty to the judicial system.

II. LAWYER TO CLIENT A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate means to protect and advance the client’s legitimate rights, claims, and objectives. A lawyer shall not be deterred by any real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.

1. I will advise my client of the contents of this creed when undertaking representation.

2. I will endeavor to achieve my client’s lawful objectives in legal transactions and in litigation as quickly and economically as possible.

3. I will be loyal and committed to my client’s lawful objectives, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice.

4. I will advise my client that civility and courtesy are expected and are not a sign of weakness.

5. I will advise my client of proper and expected behavior.

6. I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct.

7. I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.

8. I will advise my client that we will not pursue tactics which are intended primarily for delay.

9. I will advise my client that we will not pursue any course of action which is without merit.

10. I will advise my client that I reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect my client’s lawful objectives. A client has no right 10

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to instruct me to refuse reasonable requests made by other counsel.

11. I will advise my client regarding the availability of mediation, arbitration, and other alternative methods of resolving and settling disputes.

III. LAWYER TO LAWYER A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer’s conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional conduct in retaliation against other unprofessional conduct.

1. I will be courteous, civil, and prompt in oral and written communications.

2. I will not quarrel over matters of form or style, but I will concentrate on matters of substance.

3. I will identify for other counsel or parties all changes I have made in documents submitted for review.

4. I will attempt to prepare documents which correctly reflect the agreement of the parties. I will not include provisions which have not been agreed upon or omit provisions which are necessary to reflect the agreement of the parties.

5. I will notify opposing counsel, and, if appropriate, the Court or other persons, as soon as practicable, when hearings, depositions, meetings, conferences or closings are cancelled.

6. I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected.

7. I will not serve motions or pleadings in any manner that unfairly limits another party’s opportunity to respond.

8. will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses.

9. I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior.

I will neither encourage nor knowingly permit my client or anyone under my control to do anything which would be unethical or improper if done by me.

10. I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between cli-

ents. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.

11. I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about that counsel’s intention to proceed.

12. will promptly submit orders to the Court. I will deliver copies to opposing counsel before or contemporaneously with submission to the Court. I Will promptly approve the form of orders which accurately reflect the substance of the rulings of the Court.

13. I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.

14. I will not arbitrarily schedule a deposition, court appearance, or hearing until a good faith effort has been made to schedule it by agreement.

15. I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.

16. I will refrain from excessive and abusive discovery.

17. I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable. I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process. I will encourage witnesses to respond to all deposition questions which are reasonably understandable. I will neither encourage nor permit my witness to quibble about words where their meaning is reasonably clear.

18. I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable.

19. I will not seek sanctions or disqualification unless it is necessary for protection of my client’s lawful objectives or is fully justified by the circumstances.

IV. LAWYER AND JUDGE Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack.

Lawyers and judges are equally responsible to protect the dignity and independence of the Court and the profession.

1. I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol.

2. I will conduct myself in Court in a professional manner and demonstrate my respect for the Court and the law.

3. I will treat counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility.

4. I will be punctual.

5. I will not engage in any conduct which offends the dignity and decorum of proceedings.

6. I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.

7. I will respect the rulings of the Court.

8. I will give the issues in controversy deliberate, impartial and studied analysis and consideration.

9. I will be considerate of the time constraints and pressures imposed upon the Court, Court staff and counsel in efforts to administer justice and resolve disputes.

ORDER OF THE SUPREME COURT OF TEXAS AND THE COURT OF CRIMINAL APPEALS The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession’s broader duty to the legal system.

The Supreme Court of Texas and the Court of Criminal Appeals are committed to eliminating a practice in our State by a minority of lawyers of abusive tactics which have surfaced in many parts of our country. We believe such tactics are a disservice to our citizens, harmful to clients, and demeaning to our profession.

The abusive tactics range from lack of civility to outright hostility and obstructionism. Such behavior does not serve justice but tends to delay and often deny justice. The lawyers who use abusive tactics instead of being part of the solution have become part of the problem.

The desire for respect and confidence by lawyers from the public should provide the members of our profession with the necessary incentive to attain the highest degree of ethical and professional conduct. These rules are primarily aspirational. Compliance with the rules depends primarily upon understanding and voluntary compliance, secondarily upon re-enforcement by peer pressure and public opinion, and finally when necessary by enforcement by the courts through their inherent powers and rules already in existence.

These standards are not a set of rules that lawyers can use and abuse to incite ancillary litigation or arguments over whether or not they have been observed.

We must always be mindful that the practice of law is a profession.

As members of a learned art we pursue a common calling in the spirit of public service. We have a proud tradition. Throughout the history of our nation, the members of our citizenry have looked to the ranks of our profession for leadership and guidance. Let us now as a profession each rededicate ourselves to practice law so we can restore public confidence in our profession, faithfully serve our clients, and fulfill our responsibility to the legal system.

The Supreme Court of Texas and the Court of Criminal Appeals hereby promulgate and adopt “The Texas Lawyer’s Creed – A Mandate for Professionalism” as attached hereto and made a part hereof.

In Chambers, this 7th day of November, 1989.

The Supreme Court of Texas Thomas. R. Phillips, Chief Justice

Michael J. McCormick, Presiding Judge

Franklin S. Spears, Justice

W. C. Davis, Judge

C. L. Ray, Justice

Sam Houston Clinton, Judge

Raul A. Gonzales, Justice

Marvin O. Teague, Judge

Oscar H. Mauzy, Justice

Chuck Miller, Judge

Eugene A. Cook, Justice Jack Hightower, Justice

Charles F. (Chuck) Campbell, Judge

Nathan L. Hecht, Justice

Bill White, Judge

Lloyd A. Doggett, Justice

M. P. Duncan, III, Judge

The Supreme Court of Texas

David A. Berchelmann, Jr., Judge thehoustonlawyer.com

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By Tim McInturf

The Texas Lawyer’s Creed– 30 Years Later

O

nce upon a time—before exhaustive pretrial discovery— trial lawyers did not have so many options or incentives to make each other miserable. Each party did its own investigation and prepared its case. Lawyers went to the courthouse with a file under their arm, called their witnesses, introduced exhibits, made their arguments, and the jury decided. Sure, this presented the opportunity for trial by ambush—parties did not know every piece of evidence the other side would present. But the ambush was by “facts,” not by a procedural rule. Discovery happened in real time on the witness stand and rebuttal witnesses were truly rebuttal witnesses. There was no shortage of jury trials. Lawyers tended to see each other again and again working as opponents or sometimes on the same side. This provided an incentive for lawyers to treat each other with integrity and civility.

Today we lament the fact that the jury trial is disappearing. But this was the intended foreseeable consequence of creating exhaustive pre-trial discovery. The issue was, “how do we reduce the number of cases pending in our trial courts?” An idea surfaced: “If the parties were able to learn all the facts prior to trial, perhaps they would be able to evaluate their cases themselves and resolve them on their own through settlements.” Hence, the birth of the era of exhaustive pre-trial discovery,

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exclusion of evidence not previously disclosed, and over 95% of cases being resolved without a trial.1 This “solution” led to some ugly unintended consequences. One of those was the use of discovery tools as weapons rather than for their intended purposes—namely, to give everyone the opportunity to evaluate the same facts. Lawyers could use the new discovery procedures to engage in harassment that was not designed to seek the truth but rather to make the process so unbearable that the other side did not want to or could not afford to seek justice. This practice was dubbed “Rambo litigation.” At least in Texas, it is generally considered to have originated in Dallas2 and to have been encouraged by one prominent firm.3 This was not met with universal condemnation.

Some lawyers openly questioned whether it might be less than zealous representation not to use (that is, abuse) the discovery tools to inflict pain or drive up costs if it might give their client an advantage.

“During this period, some clients became aware of these tactics and even began demanding the same from their attorneys, including instructing them not to make agreements about anything no matter how trivial,” says Ed Harrell of Hughes Watters Askanase, LLP. This led to various responses. In 1987, the Dallas Bar Association adopted its “Lawyer’s Creed and Guidelines for Professional Courtesy.” In 1988, the Northern

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District of Texas adopted the Dallas Bar’s creed as mandatory and with a warning of possible sanctions in Dondi Properties Corp. v. Commerce Savings & Loan Assn., 121 F.R.D. 284 (N.D. Tex. 1988) (en banc).

These codes of conduct put to rest any fears that it would be malpractice to be civil to one another and only use the discovery tools to obtain legitimate discovery.4 In 1989, Texas became the first state to adopt a civility code, the Texas Lawyer’s Creed—A Mandate for Professionalism. It was adopted by order of the Texas Supreme Court and the Texas Court of Criminal Appeals. The order was signed by all the Justices and Judges except one Court of Criminal Appeals judge. He declined to disclose his reasons.5 Thereafter, many other states and the ABA adopted similar civility codes.

Texas Supreme Court Justice and former Houston Bar Association President Eugene A. Cook was the driving force behind the statewide Creed. He requested the Texas Supreme Court to appoint a Supreme Court Advisory Committee on Professionalism, which he chaired. Fred Hagans of Houston and Blackie Holmes of Dallas were co-chairs of the committee which drafted the Texas Lawyer’s Creed.

Justice Cook envisioned rules that would be directly enforced by courts through sanctions. However, the committee recommended a standard of expected conduct to be enforced primarily through peer pressure. Some members of the committee also believed that Texas courts would have the power to enforce the Creed under their inherent powers—a position courts adopted.

While the malpractice argument was put to rest, the adoption of the Creed did not halt all “Rambo” practices. But it did give those on the receiving end a powerful tool to cry foul.

The Supreme Court took another step toward mandatory civility in 1995 when it amended the rules of civil procedure to specifically prohibit some of the more common abusive discovery practices. No longer could a party withhold documents based upon a string of boilerplate objections. No longer could lawyers coach witnesses with speaking objections during depositions

(under the new rules, most objections were limited to “objection, form”). There were limits on the length of a deposition, on the number of written discovery requests and on the number of depositions. The tool of initial disclosures was created. And a discovery period was established to force the parties to get discovery completed within a reasonable time. These new rules were a major step forward toward civility. It put real limits in place that prohibited or created impediments to specific abusive discovery tactics. This improved the discovery climate, reduced costs for clients, and gave the lawyers fewer opportunities to use the discovery rules just to cause pain to the opponent.

In yet another perhaps related effort to raise the Bar—pun intended—in 1996, the Texas Bar Association increased the annual continuing education ethics requirement from one hour to three hours.

Yet, none of these efforts have caused lawyers to consistently treat each other with civility or integrity. Some lawyers— for their own reasons or to show off for their clients—continue to be rude and inconsiderate to opposing counsel. Lawyers who do it to show toughness to their clients fail to follow sections II (1) and (4) of the Creed. Section II (1) provides, “I will advise my clients of this creed when undertaking representation.” Section II (4) provides, “I will advise my clients that civility and courtesy are expected and are not a sign of weakness.”

The Creed also specifically addressed abusive suits and discovery abuse. Section II (9) says, “I will advise my client that we will not pursue any cause of action which is without merit.” Section II (7) provides, “I will advise my client that we will not pursue any conduct which is intended primarily to harass or drain the financial resources of the opposing party.”

In spite of the Creed, the new discovery rules, and greater ethics education, many lawyers no longer see themselves as powerful forces that create a fair and efficient conflict resolution system. Instead, they approach cases with a win-atall-costs mentality—integrity and civility

are optional. This is directly contrary to the Creed, the new discovery rules, and one more measure recently adopted by the Texas legislature.

In 2015, the Texas Legislature passed S.B. 534, which amended the oath each lawyer must take to be admitted to the State Bar. This new oath includes the promise to “conduct oneself with integrity and civility in dealing and communicating with the court and all parties.”

The Creed, the new Rules of Civil Procedure, increased ethics education, and now the amended oath are responses by the Courts, the Legislature and the State Bar to the decreasing civility and integrity demonstrated by lawyers over the past three decades. If this trend does not reverse, what does it portend for the future of the profession? And what does it portend for the psyche and soul of the individual practitioner?

Tim McInturf is the chief administrative and legal officer of Quantlab Financial, LLC. (www.quantlab.com). He was a brief-

ing attorney at the Fifth District Court of Appeals (1993-1994 term) and then a civil trial lawyer for nearly 20 years. He wishes to acknowledge Fred Hagans of Hagans Montgomery & Rustay, P.C.—a civil trial, arbitration and appellate boutique—for his generous contributions to this article.

Endnotes

1. There are many factors that have reduced the number of cases being filed (e.g., arbitration clauses, perceived increased hostility to plaintiff verdicts as the amount of the verdict increases, severe limitations on certain cases such as medical malpractice cases, and many others) 2. By the mid-1990’s, in Houston the term “Dallas lawyer” was pejorative.

3. According to D Magazine: Bill Brewer and John Bickel went into practice in the early ’80s with the intention of practicing “New York-style law,” says Brewer, which he defines as “truth neutral”-it doesn’t matter whether clients are right or wrong, only that the lawyers aggressively pursue their interests. In the years since, they’ve became known for scorched earth tactics that leave opponents reeling... www.dmagazine.com/publications/d-magazine/ 1998/april/the-gunslingers/ 4. See, e.g., Continental Carbon Co. v. Sea-Land Service, Inc., 27 S.W.3d 184 (Tex. App.—Dallas 2000, pet. denied) (reminding trial judges that they are authorized to enforce the Creed through their inherent powers).

5. Texas Lawyer, Two High Courts Approve Statewide Behavior Code, p. 4 (November 19, 1989).

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Professionalism: ALawyer’s Mandate

In 1989, the Houston Bar Association adopted its own statement to encourage members to observe traditional standards of professionalism. “Professionalism: A Lawyer’s Mandate” was developed by a Special Committee on Professionalism and adopted by the Houston Bar Association Board of Directors.

The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession’s broader duty to the legal system.

I. Relations with Clients A lawyer owes to a client undivided allegiance, the full application of the lawyer’s learning, skill, and industry, and the employment of all appropriate legal means to protect and enforce the client’s legitimate rights, claims, and objectives. In the discharge of this duty, a lawyer should not be deterred by any real or imagined fear of judicial disfavor or public unpopularity, nor be influenced directly or indirectly by any considerations or self-interest.

1. Representing my client in a professional manner is my first obligation.

2. I will be loyal and committed to my client’s cause, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice to the client.

3. I will endeavor to achieve my client’s lawful objectives in business transactions and in litigation as expeditiously and economically as possible.

4. When appropriate, I will counsel my client with respect to mediation, arbitration, and other alternative methods of resolving disputes.

5. I will advise my client against pursuing litigation (or any other course of action) that is without merit and against insisting on tactics which are intended primarily to delay resolution of a matter or to harass or drain the financial resources of the opposing party.

6. A client has no right to demand that I abuse the opposite party or counsel or indulge in other offensive conduct. I will always treat adverse parties and witnesses with fairness and due consideration.

II. Relations with Other Lawyers A lawyer owes to opposing counsel courtesy, candor, and cooperation in all respects not inconsistent with a client’s interest and scrupulous observance of all mutual agreements and understandings. Ill feelings between clients should not influence a lawyer’s conduct, attitude, or demeanor toward opposing lawyers.

1. I will be courteous, civil, and prompt in oral and written communications.

2. In litigation proceedings, I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided a legitimate interest of my client will not be adversely affected.

3. I will not serve motions and pleadings at such a time or in such a manner as will unfairly limit the other party’s opportunity to respond.

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4. I will attempt to resolve by agreement my objections to matters contained in pleadings and recovery and responses.

5. When scheduled hearings or depositions are cancelled, I will notify opposing counsel, and, if appropriate, the court (or other tribunal) as soon as practicable.

6. In business transactions, I will not quarrel over matters of form or style, but will concentrate on matters of substance.

7. I will identify for other counsel or parties all changes I have made in documents submitted to me for review.

III. Conduct in Court A lawyer owes to the judiciary respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack.

A judge has a reciprocal responsibility to maintain the dignity and independence of the Court and to treat the lawyer with courtesy and respect as an officer of the Court.

1. I will conduct myself in Court in a professional manner and demonstrate my respect for the Court and the law.

2. I will treat opposing counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility.

3. I will advise my client of the behavior expected of him or her.

4. I will be punctual so that preliminary matters may be disposed of in order to start the trial, hearing, or conference on time.

IV. Administration of Justice & Discovery A lawyer owes to the administration of justice personal dignity, professional integrity, and independence. A lawyer should adhere to the highest principles of professionalism in all dealings with others, regardless of the desires of a client.

1. Ordinarily, I will not give notice of a disposition or hearing until an effort has been made to schedule it by agreement.

2. In oral depositions and other discovery proceedings, I will treat opposing counsel, opposing parties, and any other present, with courtesy and civility.

3. I will refrain from excessive and abusive discovery, and I will comply with all reasonable discovery requests.

4. I will submit proposed orders to the Court promptly and will send copies to opposing counsel before or contemporaneously with submission to the court.

5. If the matter does not merit the filing of a motion or an agreed order, I will not unnecessarily involve the court or its staff with correspondence or with copies of correspondence to opposing counsel.

Unanimously adopted the 16th day of February, 1989, by the Board of Directors of the Houston Bar Association, on recommendation of the Special Committee on Professionalism, to encourage all lawyers to observe these traditional standards of professionalism to which the Houston Bar Association wholeheartedly subscribes.

Promoting Professionalism

Houston Bar Association’s Professionalism Committee

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By Professor Lonny Hoffman or more than 20 years, the HBA’s Professionalism Committee has worked to promote professionalism within the Houston legal community and encourage public awareness of the HBA’s commitment to its professionalism mandate. Some of the committee’s current major initiatives include the following.

Mentoring Program The Professionalism Committee’s mentoring program dates back more than two decades. It was started in the 1996–1997 bar year under the leadership of Justice Eugene A. Cook, who was the Professionalism Committee chair and has often been called the “Father of Professionalism.”

Since then, more than 1,100 newly-licensed attorneys in Houston have been matched with and mentored by experienced lawyers.

Any HBA member can participate in the program. Mentees are attorneys licensed three years or less. Mentors must have practiced for at least five years. Lawyers who participate in the yearly program meet with their mentor/mentee matches on a regular basis.

The program is explicitly not a jobs program (though, of course, it can never hurt to network).

Instead, the main idea is to help foster supportive relationships for new lawyers. As Laura Gibson, who served as the HBA’s president in the 2015–2016 bar year, noted, “With the practice changing so dramatically and many recent law graduates starting their own firms, providing guidance to our young lawyers has never been more important in preserving professionalism.” Mentors can offer practical skills advice, as well as professional input and guidance. It is also a very good way to get to know others and deepen collegial relationships in Houston’s legal community. In short, by facilitating these relationships, the HBA’s mentoring program tries to offer guidance to new lawyers at the start of their careers with the hope that this support will, in turn, raise the competency and professionalism of the local bar.

The mentoring program runs from the start of the calendar year and commences with an annual kickoff event where mentors and Justice Ken Wise, 14th Court of Appeals; Justice Eva Guzman, Supreme mentees can meet each other. Past speakers at this event have adCourt of Texas; and Judge Larry Weiman, 80th District Court, along dressed professionalism and other ethical issues. with HBA president, Warren Harris, as moderator, presented at the HBA Professionalism Committee’s fall ethics program.

Ethical Lecture Series Over the years, the HBA Professionalism Committee has also put on an ethical lecture series.

These lectures began in the 2009–2010 bar year with “An Hour That Will Impact Your Career: Practical Advice on Professionalism & Civility in the Practice of Law from United States District Judge Ewing Werlein, Jr.” Since then, speakers for the series have included: • Judge Randy Wilson and Richard Mithoff, (“An Hour That Will Impact Your Career: Practical Advice on Professionalism & Civility in the Practice of Law”); thehoustonlawyer.com

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• Judge Lee H. Rosenthal (“Practical Advice on Being a Cooperative and Effective Advocate”); • Judge Joseph J. “Tad” Halbach, Jr. (“Professionalism: The One Constant in the Practice of Law”); • Judge Gray Miller (“Practical Advice and Civility in the Practice of Law”); • Justice Tracy Christopher and Justice Bill Boyce (“Who is the Client? Recent Fee Dispute and Malpractice Cases”); • Justice Laura Carter Higley, Judge David Farr, and Reginald A. Hirsch (“An Hour That Will Impact Your Career: Professionalism and Ethics of Family Law Practice”); • William Noble, Gary Miller, and Charles Matthews (“An Hour That Will Impact Your Career: Professionalism & Ethics Between Outside and In-House Counsel”); • Judge Robert Schaffer and Judge Francelia Totty (“Views from the Bench: Professionalism & Ethics in State & City Courts”); • Fred Hagans, David Keltner, Judge Lamar McCorkle, and Jai L. Collier (“Texas Lawyer’s Creed: A Panel Discussion”); • Judge Keith Ellison (“Thoughts on Presentation and Professionalism in Federal Court”); • Kevin Dubose (“Practicing Professionally is Not Just About Being Nice – It’s a Winning Strategy”); • Judge Keith Ellison (“Things I Wish I had Known as a New Lawyer”); and • Rusty Hardin (“Civility In and Out of Court: A Greatly Underrated Virtue”).

Law School Presentations The Professionalism Committee also organizes ethics panels for

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Additional Recent Activities In January 2018, the Professionalism Committee participated in a New Licensee Meet and Greet held at the HBA offices. The committee also hosted a judicial panel discussion to commemorate the Texas Day of Civility on April 20, 2018. And in October 2018, the committee presented a professionalism discussion entitled “Civility & the Rule of Law—a View from the Bench,” featuring Justice Eva Guzman, Justice Ken Wise, and Judge Larry Weiman.

The committee is planning additional events centered around the mentoring program as well as CLE presentations with noted speakers. Please look for these events on the HBA calendar and visit www.hba.org/committees/professionalism. We hope to see you there.

Professor Lonny Hoffman is the Law Foundation Professor of Law at the University of Houston Law Center. He is a co-chair of HBA’s Professionalism Committee. Fellow co-chairs include William G. Hagans, a trial lawyer with Hagans, Montgomery & Rustay, P.C., Yvonne Ho, a Partner at Bracewell, L.L.P., and J. Robin Lindley, Managing Partner of Buck, Keenan, L.L.P.

The State Bar of Texas Professionalism Committee

By Liza Greene and Al Harrison he State Bar’s Professionalism Committee seeks to identify factors influencing professionalism and to recommend to the State Bar Board of Directors preferred procedures for improving professional development of new lawyers. The committee has numerous ongoing projects for promoting professionalism that are available to the bar at-large.

Day of Civility The committee was instrumental in establishing the statewide “Day of Civility” recently celebrated April 20, 2018. To encour16

law school students. This year’s program was at the University of Houston Law Center. Committee members William Hagans, Laura Gleen, Teresa Messer, and Caitlin Snelson all participated in the UH program. They spoke to students in Professor Stevenson’s Professional Responsibility class about the Texas Lawyer’s Creed and implementing the goals of the creed and highest standards of our profession, then answered wide-ranging questions from the class about how to make and keep a reputation of being an ethical, professional attorney.

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age local bars to sponsor regular Day of Civility programs, the Committee created a “Day of Civility Guide,” including step-bystep instructions on how to conduct a Day of Civility celebration (available online at www.texasbar.com/professionalism).

Mentorship To assist newly-licensed attorneys establish a professional and ethical law practice, the committee developed the “Transition to Practice” program, which is designed to help local bar associations match experienced attorneys with newly-licensed at-

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torneys for mentoring purposes. Interestingly, this mentoring program encompasses diverse topics, including law practice management, effective client representation, pro bono opportunities, career development, and other aspects helpful to meaningful and successful law practice.

Law Student Education The committee is also in the planning stages of forming a partnership with Texas law schools to present an interactive program centered on routinely incorporating professionalism and civility into law practice. This program, presented to law students during lunchtime with lunch provided courtesy of the Texas Bar College, will include practical tips on how to deal with challenges facing newly-licensed attorneys.

Directories Other programs launched by the committee include the State Bar of Texas Mentoring Network and “Got Ethics” Directory accessible via the State Bar website. Easy-interactive maps en-

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Educational Activities The College sponsors or otherwise assists in delivering educational activities of significant merit and widespread relevance to the legal profession. For example, the College has held an annual “Summer School” course in Galveston for the past 20 years, which encompasses no less than 17 areas of legal concentration, offers 17.75 hours of CLE including 3.25 hours of ethics, and affords the unique opportunity for legal practitioners to share Galveston’s recreational character with family.

As another example, the College has sponsored webcasts pertaining to the following topics: ethical safe practices involving legal technology and cybersecurity, ethics issues implicated January/February 2019

Texas Lawyer’s Creed The Texas Lawyer’s Creed, issued in 1989 by the Texas Supreme Court and Court of Criminal Appeals, is the foundation of any project supported by the committee. To celebrate the 25-year anniversary of the Texas Lawyer’s Creed, the committee designed a brochure and a poster-sized copy of the Creed, which are freely available to any member of the Bar by emailing professionalism@texasbar.com.

Liza Greene is Vice Chair of the State Bar Professionalism Committee and a board certified attorney specializing in family law and consumer bankruptcy with Laura Dale & Associates, P.C. in Houston. Al Harrison is a member of the State Bar Professionalism Committee, member of The Houston Lawyer Editorial Board, and a patent attorney practicing intellectual property law in Houston as a principal of Harrison Law Office, P.C.

The Texas Bar College

By Al Harrison dopting the theme “Professionalism through Education,” the Texas Bar College is an honorary society, available to qualified lawyers, paralegals and judges, which was established by the Texas Supreme Court in 1981. Comprising about four percent of the total membership of the State Bar of Texas, the members of the College are legal practitioners in good standing who have distinguished themselves through public commitment to enhanced competence and profound professionalism by attending at least double the number of accredited CLE hours required each year. This high standard encourages lawyers, paralegals and judges to sustain and promote not only their respective professional skills, but also the quality of their service to the public through legal education.

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able Bar members to connect with locally available mentors or ethics speakers.

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with “Fifty Shades of Integrity,” and new U.S. Supreme Court caselaw.

CLE Perks Members of the College benefit from discounts to State Bar sponsored CLE courses and complimentary access to the Texas Bar CLE Online Library, a treasure trove of more than 20,000 articles pertaining to virtually all concentrations and concomitant facets of law practice in Texas.

Financial Assistance The College also provides financial assistance to the legal community. To help the legal community recover from the devastation caused by Hurricane Harvey, including destruction of Lone Star Legal Aid’s headquarters building, the College (in conjunction with the associated Texas Bar College Endowment Fund) donated $20,000 to be allocated between the Houston Volunteer Lawyers Program and Lone Star Legal Aid. The Texas Bar College Endowment Fund was established by the College to promote professionalism of lawyers and regularly underwrites College-sponsored CLE Programs for members, scholarships for legal aid program lawyers, and miscellaneous special requests for educational assistance.

Al Harrison is a member of the State Bar Professionalism Committee, member of The Houston Lawyer Editorial Board, and a patent attorney practicing intellectual property law in Houston as a principal of Harrison Law Office, P.C.

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Justice Eugene A. Cook Professionalism Award Recognizes Excellence

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heart: ‘A lawyer should always adhere to the highest principles

By Tara Shockley of professionalism.’” t the 2018 Houston Bar Association Annual Dinner, A focus on ethics and professionalism was the hallmark of the organization presented the inaugural Justice EuJustice Cook’s administration as president of the HBA, 1989gene A. Cook Professionalism Award to its namesake, 1990. He was appointed the former Texas to the Texas Supreme Supreme Court Justice Court in September and former president of 1988, while he was the HBA. Although Jusserving as presidenttice Cook was unable to elect of the HBA; he was attend the event, HBA then elected to the court President Warren Harin November 1988. ris and Fred Hagans, coThroughout his tenure chair of the committee as HBA president, JusJustice Cook appointed tice Cook traveled back to develop the Texas and forth from Austin, Lawyers Creed, later rarely missing an HBA presented the award to meeting or event. him at a small gathering “At his own expense, of his family, colleagues Justice Cook installed a and friends. special phone line at the “Justice Cook was HBA President Warren Harris, Texas Supreme Court Chief Justice Nathan Hecht, Texas Sucourt so the HBA office very touched and moved preme Court Justice Jeff Brown and Fred Hagans, former co-chair, Texas Supreme Court at the bar’s recognition Professionalism Committee, with the crystal eagle presented to Justice Eugene Cook, who could reach him,” said HBA Executive Director of his lifelong contribu- was unable to attend the 2018 Annual Dinner where the inaugural award was presented.

Kay Sim. “He was in daily contact with the HBA. He might tions to professionalism,” said Harris. “He truly appreciated come in for a noon meeting, then fly right back to Austin. He that going forward, the award will honor those who work diliwas able to handle both positions exceedingly well, and the gently to uphold the standards he lived by and encouraged all association never suffered at all.” In fact, it benefited greatly. attorneys to follow.”

As HBA president, and prior to that as chair of the HBA’s The award was established by the HBA Board of Directors to Professionalism Committee, Justice Cook promoted ethics and recognize a lawyer or judge who exemplifies the highest level professionalism throughout Houston and the state. He also of legal ethics and a lifetime of professionalism. “In 1989, Jusworked with courts, bar associations, and law schools in nutice Eugene Cook proposed that the Texas Supreme Court and merous other states to promote professionalism and the value the Court of Criminal Appeals adopt a joint statement encourof mentoring programs. aging lawyer civility. He was the architect of the Texas Law“[Justice Cook] was always proud to be a lawyer and worked yers Creed, making Texas the first state to adopt a mandate to his entire career to bolster the public’s perception of the legal govern the conduct of all of its lawyers,” said Texas Supreme profession,” said Texas Supreme Court Justice Jeff Brown, who Court Chief Justice Nathan Hecht, who accepted the award introduced the award at the Annual Dinner. “For all of his on his behalf. “The words were his, thoughtful and from the 20

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work, Justice Cook is often called the ‘father of professionalism’ in Texas.”

Justice Cook’s work has been recognized by other organizations. He received the Lewis F. Powell, Jr. Award for Professionalism and Ethics from the American Inns of Court, which is the preeminent national award for professionalism. Justice Cook also received the Lola Wright Foundation Award from the Texas Bar Foundation for advancing legal ethics and professionalism in Texas and the Distinguished Professionalism Award from the Texas Center for Legal Ethics and Professionalism.

Anyone interested in submitting a nomination for 2019 may contact HBA President Warren Harris at warren. harris@bracewell.com. The award will be presented at the HBA Annual Dinner, but may not be presented every year.

Tara Shockley is the communications director for the Houston Bar Association and managing editor of The Houston Lawyer.

A.A. WHITE DISPUTE RESOLUTION CENTER

exploring best practices in family mediation The training introduces family mediation as a method of resolving disputes that arise in marital dissolution, property division, modification, enforcement, conservatorship, parentage and other family litigation. Participants learn skills to mediate family conflict through interactive discussion, lecture and role play/simulation.

The program fulfills Texas statutory mediation education requirements and complies with Texas Mediation Trainers Roundtable Family Mediation Training standards.

The course includes a minimum of four hours of family violence dynamics training developed in consultation with a statewide family violence advocacy organization in compliance with Senate Bill 539 passed by the 85th Texas Legislature.

PROGRAM SCHEDULE

PAYMENT

Date

June 5 – June 8, 2o19

•

Time

9:30 am – 6:30 pm

We accept cash, check and credit card** ($995.00 if paying by credit card)

Location

UH Law Center

•

Make checks payable to: UH Law Foundation

Cost

$975.00**

•

Facilitators

Robert Hughes Tracy Leissner

Mail to University of Houston, 4604 Calhoun, Suite 59, Houston, Texas 77204-6060 ATTENTION: Judy Clark

Credit

34 CLE hours 6 Ethics Hours

•

Payment must be received no later than April 26, 2019

To register go to: http://www.law.uh.edu/blakely/aawhite/30-hour-basic-mediation-training.asp Contact: Judy Clark | Program Manager @ 713.743.2066 or jclark@uh.edu The University of Houston is a Carnegie-designated Tier One public research university and an EEO/AA institution.

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By Koby Wilbanks

The Importance of Mentorship Programs

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very year, hundreds of new attorneys are licensed to practice law in the greater Houston area.

Many of these attorneys enter the legal profession with great confidence in their abilities but are often confronted with unforeseen challenges that could easily become overwhelming.

Mentors provide a vital resource for newly admitted attorneys and help lay an enduring foundation for young attorneys to build a successful career in the practice of law. They provide the “real world” counterpart to the scholarly knowledge gained during school and can impart practical advice about the practice of law a young attorney would normally acquire through trial and error.

The best mentor-mentee relationships go beyond mere information exchange and extend into networking and business development, where the mentor acts as the mentee’s advocate and promoter by finding opportunities and making connections for the mentee that young attorneys often are unable to accomplish 22

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on their own. Mentoring also provides unique benefits to mentors, as well as mentees. Mentors that actively participate in a mentoring relationship are rewarded with the knowledge that they are directly influencing the next generation of attorneys. Likewise, mentors benefit from the mentor-mentee relationship by being exposed to novel ideas that can only be gained from a younger attorney’s perspective including: discussing new legal technologies, marketing techniques, or cutting-edge caselaw. The energy and passion created from a good mentoring relationship will have a positive impact on all participants.

The leaders of Houston’s legal community recognize the importance of mentormentee relationships and have created resources and programs to facilitate the creation of such relationships in an effort to strengthen the legal community.

HBA Mentor-Mentee Program One such available program to new attorneys in Houston is the Houston Bar

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Association’s Mentor-Mentee Program, which pairs new attorneys with experienced attorneys for a year-long program that provides one-on-one guidance. The structure is informal, with mentors and mentees discussing whatever topics are most helpful to the new attorney and allows the flexibility to communicate via phone, email, or in person, whatever works best for each pair.

To facilitate the best pairings, the mentor must have been licensed for at least five years and the mentee for less than three and both mentor and mentee must be HBA members to participate. Participants can select both their area(s) of practice and the location(s) of their practice.

In a city as large as Houston, the vast range of participants means that mentees will find someone that can help them with work/life balance, networking with other professionals, practicing in a specific area of law, starting their own law practice, maintaining high professional standards, and getting more involved with the HBA. The program is also ideal for mentors that want to give back to a younger generation of attorneys, but do not have time for the full commitment of joining another professional organization. To find out more about the HBA Mentor Program, visit www.hba.org/ committees/professionalism.

Inns of Court Another organization that provides mentoring opportunities for young attorneys is the local American Inn of Court chapters. The American Inn of Court Federation was formed with the purpose of building and strengthening professional relationships among attorneys, to advance high levels of integrity, ethics, and civility, and provide mentoring opportunities to members. Similar to the HBA’s Mentor-Mentee Program, the Inn system bridges the gap between an attorney’s formal law school training and the actual realities of legal practice.

Local Inn of Court chapters are split into pupilage groups that contain a mix of experienced attorneys, new attorneys,

sition. Even though these attorand judges. Each chapter meets neys were not my coworkers or monthly for a dinner meeting long-time friends, they took the that includes a CLE presentation time to listen to my concerns and put on by one of the pupilage goals, gave me the motivation to groups. New attorneys must be take the leap into the unknown, sponsored by an existing memand supported me through the ber of the specific Inn they wish ups and downs of my transition. to join and some chapters have I am forever grateful for the specific requirements for memsupport I have received as an atbership. torney, and I urge every young Houston is home to four Inns: attorney to participate in pro1) the Garland R. Walker Amerigrams like the HBA’s Mentorcan Inn of Court, which is the general civil inn; 2) the Burta William Hagans and Fred Hagans speak at the HBA Professionalism Commit- Mentee Program or a local Inn of tee’s mentor/mentee kickoff breakfast and ethics presentation on January 29.

Court Chapter, find those expeRhoads Raborn Family Law Inn ing for a settlement agreement, and even rienced attorneys that are willing to share of Court; 3) the Honorable Nancy F. Attraining me in the business of running a their knowledge and experience with las Intellectual Property American Inn law firm mean even more to me now than you, and then develop those connections of Court; and 4) the Honorable Arthur they did in the moment. into a lasting professional relationship.

L. Moller-David B. Foltz American Inn About four years into my legal career, I can promise that the support that you of Court, which focuses exclusively on I decided that I needed to switch the foreceive will be an essential component to bankruptcy law. cus of my legal practice, but was hesitant The Inn of Court organization is ideal your success. to make the jump. I reached out to other for mentees and mentors that have the attorneys (including multiple attorneys interest and time to join a full-fledged Koby Wilbanks is an associate at Murrah I met volunteering with the HBA) and professional organization. There are not & Killough, PLLC and a member of The asked for their advice regarding my tranmany organizations where you can have Houston Lawyer editorial board. dinner with the leaders of the field every month.

A Testament to Mentoring As a young attorney myself, I have been privileged to participate in both the HBA’s Mentor-Mentee Program and two local Inn of Court chapters. The relationships that I formed through both programs are invaluable, and I would not be where I am today without the support that those relationships provided.

After law school, I was struggling to find a position practicing family law because most of the firms are small and do not have the resources to train new associates. I was fortunate to secure a position working at a firm with a stellar reputation and the firm owner, Trey Yates, took the time and energy to train me every step of the way. Now, as a more experienced attorney, I understand that training a new attorney often takes much more time than simply doing a task yourself, so the hours he spent with me discussing case strategy, working out the best wordthehoustonlawyer.com

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By Randall O. Sorrels and Michelle A. Ciolek

Maintaining Professionalism in Crisis Situations

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hen a crisis arises, your law firm’s reputation and potentially its longevity are at stake. Whether you are facing a natural disaster or a public relations crisis, your firm should be ready. While most law firms implement business continuity plans to address firm operations in the aftermath of a natural disaster, very few plan for sticky situations such as a public relations crisis, which oftentimes can be equally or more damaging to a firm.

Developing a crisis communication plan to handle these situations is the first step to ensuring your firm maintains professionalism in the wake of a crisis. Proper planning and preparation are essential, not only to prevent business interruption, but also to help your firm fulfill its professional and ethical obligations both during and after a crisis. While the plan will undoubtedly differ based on the size of your firm, the types of cases you handle, and the potential scenarios you may encounter, you should consider the fol-

lowing elements when developing your plan.

Identify and Prepare for All Situations Your firm may encounter a variety of sticky situations including lawyer departures, firm disputes, unsavory media coverage of a case, allegations of attorney malpractice or malpractice lawsuits, cyber breaches, or criminal charges against a firm employee. Start by asking, “What possible scenarios could happen?” From there, create a list of scenarios, including the potential impact and consequences of each and develop an if/then test for every scenario you have identified. Consider involving employees from different departments or firm sections as each employee is likely to have valuable input on issues that are unique to their department or section. You should also consider consulting with third parties such as IT personnel to address specific scenarios.

Designate a Spokesperson When dealing with any crisis, it is imperative that a consistent and uniform message is delivered. To achieve this goal, designate a clear spokesperson to respond to inquiries and serve as the public voice of the firm. You should also designate an equally qualified backup spokesperson in case the primary spokesperson is unavailable or involved in the crisis. The spokesperson should practice answering tough questions, which must be anticipated. When developing your plan, prepare a variety of preliminary statements and standard interview responses which can later be modified to fit the situation at hand.

Educate Your Lawyers and Support Staff Even if they are not directly involved in your response efforts, you must educate all firm lawyers, the people who answer the phone, and your support staff regarding the dos and don’ts of discussing the crisis and answering questions. You should formulate response procedures

which may simply direct the employee to provide the name and contact information of the firm spokesperson or provide a list of basic responses to be used in a variety of circumstances. The goal is to ensure that your employees have a thorough understanding of what is expected of them in the aftermath of a crisis. Be sure to update and review your response procedures with employees on an ongoing basis.

nal communications with former clients, the public or members of the media. You should identify appropriate communication channels to use during your response efforts. Depending on the scope of a crisis, you may consider sending a mass email or posting a message to your firm’s website or social media page. Another option is to send a press release or hold a press conference. If you anticipate using this approach, you should create a list of media contacts when develop-

ing your crisis communications plan. Be sure to continually update your list of media contacts.

Gather the Facts and Issue a Timely Response You must have a complete understanding of the facts of the situation and potential risks prior to making your initial response. However, often time is not on your side and any delay in responding may have negative connotations and

Keep Employees Informed Maintain an updated list of current employees and their contact information to ensure that all employees are timely notified and updated on situations as they develop. If possible, you should communicate internally with your employees before they learn of the crisis from an external source. Remember that written and e-mail communications may be discoverable in a lawsuit so you should consider conducting telephone or in-person meetings to discuss certain sensitive matters with your employees.

Manage Client Communications Oftentimes, crises occur behind the scenes rather than in the public eye. For client or case specific crises, lawyers may have an ethical and professional duty to contact their client directly and inform them of the situation.1 If this is the case, a lawyer should also be mindful of his or her duty to keep the client informed of a matter as it evolves to ensure that the client is able to make informed decisions regarding his or her representation.2 Even when the crisis involves the firm rather than an individual case or client, it may still be necessary to notify clients and be prepared to answer any questions clients may have about the crisis.

As with internal firm communications, lawyers should be mindful that any external communications with clients may become discoverable in a lawsuit or even disseminated to the media.

Define External Communication Channels Crisis management may involve exter-

Your Values.

Your Influence.

Your Legacy.

Our Advice.

From left: Tom Williams, Donnie Roberts, Maureen Phillips, Leah Bennett, Shelitha Smodic, Allen Lewis, Susan Wedelich

Westwood Wealth Management | Houston 10000 Memorial Drive, Suite 650, Houston, Texas 77024 T 713.683.7070 westwoodgroup.com

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25

could even cause more damage. That being said, “No comment” is not an option. Similarly, being hostile or dismissive when responding to an inquiry or attempting to shift blame will likely do more harm than good. In the early stages, the best approach is to acknowledge the situation and set expectations of when you will release an official statement or more information about the crisis. From there, focus on gathering all of the facts.

Be sure you thoroughly understand the who, what, when, where, why, and how, of the situation, before you issue a detailed statement. Most importantly, your initial response and all ongoing communications must be transparent, genuine, and honest.

Determine What Can and Cannot Be Said Your crisis communication plan must address the various ethical and professional obligations owed to your clients.

For instance, a lawyer is prohibited from knowingly revealing confidential information of a current or former client to an unauthorized person or anyone else other than the client, the client’s representatives, or the members, associates, or employees of the lawyer’s law firm.3 A lawyer is also prohibited from using a former client’s confidential information to the disadvantage of the former client unless the client consents after consultation or the confidential information has become generally known.4 Absent the client’s consent, a lawyer is prohibited from using privileged information of a client for the lawyer’s own personal advantage or the advantage of a third party.5 In addition, lawyers must also refrain from making certain extrajudicial statements that the lawyer “knows or reasonably should know” will “have a substantial likelihood of materially prejudicing an adjudicatory proceeding.”6 This prohibition also extends to situations in which a lawyer attempts to counsel or assist another person in making an extrajudicial statement.7 On the other hand, extrajudicial statements 26

January/February 2019

employees. regarding information contained in the Crises take many forms and oftenpublic record, the general nature of a times strike when they are least exclaim or defense, the fact that an invespected. With proper planning and tigation is pending, or the scheduling or preparation, you can minimize busiresult of any step in litigation will ordiness interruptions and ensure that your narily not constitute a violation of the practice continues running smoothly Texas Disciplinary Rules of Professional 8 during and after a crisis.

Conduct. Given the Although a crisis comscope of potential ethiYour crisis munication plan will cal and professional viocommunication plan not prevent or eliminate lations, lawyers should all of the costs and conexercise caution when must address the sequences of a crisis, making extrajudicial various ethical it will help minimize statements. damage to your firm’s and professional reputation and may Ensure You Have obligations owed even save your pracAdequate Insurance tice. Now is the time to Coverage to your clients. ask yourself, “If a crisis Review and evaluate For instance, strikes, will we be preyour malpractice insurpared?” ance policy regularly a lawyer is to ensure that you have prohibited from adequate coverage for Randall O. Sorrels is every type of crisis you the managing partner knowingly revealing may encounter. That beat Abraham, Watkins, confidential ing said, lawyers must Nichols, Sorrels, Agosto be mindful of the fact & Aziz and the presidentinformation of a that malpractice inelect of the State Bar of current or former surance alone is not Texas. enough. The secondary Michelle A. Ciolek is client to an effects of a crisis are ofan associate at Abraham, unauthorized ten far-reaching and can Watkins, Nichols, Sorrels, include business interAgosto & Aziz. They person... ruption, employee turncan be reached at over, or the loss of current or prospecrsorrels@awtxlaw.com and mciolek@ tive clients. You may consider obtaining awtxlaw.com. business interruption coverage, which provides money for these types of finanEndnotes 1. See Tex. Disciplinary Rules Prof’l Conduct R. 1.03(a), cial losses.

“

”

Put Your Plan in Writing.

Once completed, your crisis communication plan should be in writing and shared with each employee. During a crisis, a written plan ensures that each employee has a clear understanding of his or her role and individual responsibilities. You should also update your plan on an ongoing basis, including after every crisis and when there are changes in firm personnel. Be sure to share any updates or changes to the plan with your

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2.

3.

4.

5.

6.

7.

8.

which states that “[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.”

See Tex. Disciplinary Rules Prof’l Conduct R. 1.03(b), which states that “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

See Tex. Disciplinary Rules Prof’l Conduct R. 1.05(b) (1).

See Tex. Disciplinary Rules Prof’l Conduct R. 1.05(b) (3).

See Tex. Disciplinary Rules Prof’l Conduct R. 1.05(b) (4).

See Tex. Disciplinary Rules Prof’l Conduct R. 3.07(a).

See id.

See Tex. Disciplinary Rules Prof’l Conduct R. 3.07(c)(1)-(3), (5).

Equal Access Champions

The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers.

Large Firm Champions Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Vinson & Elkins LLP

Corporate Champions CenterPoint Energy, Inc. Exxon Mobil Corporation Halliburton Energy LyondellBasell Industries Marathon Oil Company Shell Oil Company

Mid-Size Firm Champions

Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Beck Redden LLP Chamberlain Hrdlicka Clark Hill Strasburger Foley Gardere 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 ReedSmith LLP Winstead PC Winston & Strawn LLP

Boutique Firm Champions

Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz Blank Rome LLP Dentons US LLP Fullenweider Wilhite PC Hogan Lovells US LLP Jenkins & Kamin, L.L.P. LeClairRyan McDowell & Hetherington LLP Ogden, Broocks & Hall, L.L.P. Ogletree, Deakins, Nash, Smoak & Stewart P.C. Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs & Goren, P.C. Yetter Coleman LLP

Small Firm Champions

Coane & Associates Frye, Benavidez and O’Neil, PLLC Fuqua & Associates, P.C. Gibson, Dunn & Crutcher LLP Givens & Johnston Katine & Nechman L.L.P. Katten Muchin Rosenman LLP KoonsFuller, P.C. MehaffyWeber, P.C.

Quinn Emanuel Urquhart & Sullivan, LLP Shortt & Nguyen, P.C. Trahan Kornegay Payne, LLP

Individual Champions

Law Office of Peter J. Bennett Law Office of J. Thomas Black, P.C. Burford Perry, LLP The Dieye Firm The Ericksen Law Firm Law Office of Todd M. Frankfort Hasley Scarano L.L.P. David Hsu and Associates The Jurek Law Group, PLLC Law Firm of Min Gyu Kim PLLC The LaFitte Law Group, PLLC Law Firm of Catherine Le PLLC C. Y. Lee Legal Group, PLLC Law Office of Gregory S. Lindley Martin R. G. Marasigan Law Offices Law Office of Evangeline Mitchell, PLLC Rita Pattni, Attorney at Law Law Office of Robert E. Price The Reece Law Firm, PLLC Sanchez Law Firm Law Office of Jeff Skarda Angela Solice, Attorney at Law Diane C. Treich, Attorney at Law Law Office of Norma Levine Trusch Law Office of Cindi L. Wiggins, J.D. Trey Yates Law

By Daniel D. Horowitz, III

Professionalism:

It’s More than “Please and Thank You”

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ebster’s dictionary defines professionalism as “the conduct, aims, or qualities that characterize or mark a profession or a professional person.” When you think about this in the context of lawyers, most think only about a lawyer’s manners, treatment of opposing counsel or behavior in the court room. Unfortunately, there is a much darker side of “professionalism” when it comes to the practice of law. Many times, the qualities that characterize or mark our profession include mental health issues and substance abuse.

For the past year, I have been fortunate to serve as president of the Houston Trial Lawyers Association. One of my goals during the year has been to put a spotlight on this darker side of the profession. Specifically, mental illness; self-care; depression; suicide; substance abuse; work-life balance; and most importantly lawyers’ ongoing failure to recognize or admit there is a problem.

My desire to push these issues out into the open comes directly from losing three dear friends (all attorneys) in just over four months last year. In August, one friend became so depressed he literally drank himself to death, like Nicholas Cage in Leaving Las Vegas. He was admitted to a local hospital with liver and kidney failure and never left.

He left behind a 2-year-old son. In September, my very best friend died when he crashed his Mercedes CLS 550 into a tree just three houses from home. His wife heard the crash and then received a knock on the front door from the police, telling her that her husband was dead.

His autopsy showed a BAC level of 0.27 and prescription depression medication.

No one knew he was battling depression.

He left behind a 3-year-old son. Then in November, Steve Mostyn tragically committed suicide at his home in Houston.

His family was in the home. Steve died as a result of a sudden onset and battle with mental illness. In the months before his death, Steve started to get help.

Unfortunately, he never shared with his wife or counselor he was suicidal. He left behind a 17-year-old son and a 10-yearold daughter.

While all three died from different “causes,” they all had one thing in common. They were all struggling with some level of unhappiness in their professional lives or mental illness, and none of their friends, family or colleagues had any idea until it was too late. No one knows if their lives would have turned out different if I, or anyone, would have recognized the seriousness of their issues sooner. But one thing is for certain: not even knowing they needed help took

away any chance to prevent their tragic deaths.

There is no denying the facts: lawyers consistently rate in the top two professions with the highest prevalence of mental health and substance abuse problems. Nearly 1/3 of young lawyers struggle with alcohol abuse, 28% of lawyers struggle with some level of depression, 19% demonstrate symptoms of anxiety, and another 11% have had suicidal thoughts at some point in their career. To compound the problem, lawyers traditionally have been reluctant to seek help for mental health or substance abuse issues. Many lawyers feel that because of the adversarial nature of our profession, an admission of depression or substance abuse issues could be a sign of weakness and are afraid it could be used against them in their careers.

So, what can be done? First and foremost, we should be able to speak about these issues openly without the need to worry about someone using it for their client’s advantage or against you. If we are not prepared to talk about it, then there is no way we can expect to deal with these issues.

Second, here in Texas we are fortunate to have TLAP (Texas Lawyers Assistance Program). One of the greatest resources available to Texas lawyers is this program. TLAP is a confidential program that specializes in helping with general wellness, stress and anxiety, depression, bipolar disorder, suicide prevention, substance abuse and cognitive decline for older lawyers. TLAP is 100% confidential to those who might need it.

Additionally, it is not just for lawyers.

They cover law students, judges and legal secretaries. TLAP can be reached 24/7 just by calling 1-800-343-8527.

You can also go to their website at www. tlaphelps.org. One of the most unique resources available through TLAP is the Patrick D. Sheeran & Michael J. Crowley Memorial Trust, www.sheerancrowley.org.

The trust provides financial help to Texas attorneys, judges and law students who need treatment for substance abuse,

depression, and other mental health issues.

Third, do not forget we are all attorneys and counselors at law. Our profession is not just about billing hours, trying lawsuits, and our egos. We have an obligation to the profession and each other to be counselors not only to our clients, but to our colleagues. Pay attention to those around you, pay attention to your own wellbeing, pay attention to your loved ones. Unless we all try to recognize the struggles attorneys face, there is no way we can prevent losing another life. So next time you are in a firm meeting, a deposition, a hearing or a trial, do not just say “please and thank you.” Take the time to find out what is going on in the

lives of your co-workers, opposing counsel, and friends. Do not be afraid to say “Hey, is everything alright? I’m here for you if you need anything. Why don’t we grab lunch to talk about it?” or whatever it takes to let those around you know others care about them and they are not alone. At the end of the day, we should all try to take care of each other.

Daniel D. Horowitz, III is the owner of his own law firm. He specializes in plaintiff’s personal injury litigation and is board certified in personal injury litigation. He is the immediate past president of the Houston Trial Lawyers Association. He can be reached at daniel@ddhlawyers.com; www.ddhlawyers.com; and 832-460-5181.

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By John G. Browning

Undaunted:

Houston’s Earliest African-American Lawyers T I.

he elusive and often foggy history of Texas’ early African-American lawyers has only recently begun to attract the interest of historians and of the bar itself.1 One explanation for this lies in the paucity of surviving records and papers, since black attorneys practicing in Reconstruction Texas and the Jim Crow South were viewed more as a novelty than a historically significant milestone. Another explanation can be founded in the small numbers at issue. In 1890, there were only 12 black lawyers in Texas, most of whom practiced in rural areas or small towns. While more African-American attorneys eventually moved to cities like Dallas, Houston, and Galveston as the years passed, by 1930 there were still only 20 black lawyers in the entire state. Yet despite these small numbers and despite being largely overlooked by historians, the earliest African-American lawyers in Texas made their presence felt in many ways. Many were invaluable leaders and role models in their communities, often adding the title of “teacher,” “journalist,” or “political organizer” to the mantle of “attorney.” They blazed these trails at a time when their mere presence could get them lynched, when their fellow African-Americans couldn’t even serve on juries, and when even practicing in the same courts as their

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practice in the courts of Harris county,” and whose admission was sponsored by a distinguished local white attorney, Col. Frank S. Burke.3 Smith’s stay was a short one, since by 1892, another newspaper was identifying a different attorney, Fred Mason, as “the only colored lawyer in the city.”4 Mason was touted not only as having recently received a commission authorizing him to represent claimants before the Department of the Interior, but for having the distinction of being “the only colored lawyer in the State favored with such recognition.”5 But while the stays of the first of Houston’s black lawyers may have been fleeting, a more enlightened snapshot of the lives and contributions of the early African-American lawyers in the city can be found in two pioneers who embodied the black experience and quest for upward mobility at the turn of the century: J. Vance Lewis and Winston M.C. Dickson.

white counterparts came with a host of indignities— like being called by their II. first name inVance Lewis was not stead of “Counonly among the most selor” or havprominent, colorful, J. Vance Lewis was among the most promiing to walk to nent of Houston’s early black lawyers. (The and controversial of another build- New York Public Library) Houston’s pioneering black ating to use the restroom because of a lack of torneys, he also left behind more documen“colored facilities.” tation for historians to pore over. The larger Texas’ first black lawyers gravitated than life Lewis left behind a self-published mainly to small communities and rural arautobiography entitled From Out of the eas with predominantly African-American Ditch: A True Story of an Ex-Slave, replete populations. The first of these, W.A. Price with flowery reminisces of his childhood of Fort Bend County (and later Matagorda and soaring prose detailing his courtroom County), served as a justice of the peace in triumphs.6 In addition, the home he had 1872 and would be admitted to the bar in built at 1218 Wilson Street in 1907 and 1873. Among the cities, San Antonio saw dubbed the “Van Court” has been made its first African-American lawyer, George the subject of excavations in 2010 by Rice Fremont, in 1879, while John N. Johnson University archaeologists. Lewis came to became a trailblazer in Austin in 1882. In prominence in Freedmen’s Town, HousMarch 1881, Samuel H. Scott became Dallas’ ton’s oldest black community settled by first black lawyer. But what about Houston? newly-emancipated slaves after the end of The earliest black lawyer in Houston was the Civil War. Freedmen’s Town numbered apparently Charles M. Smith in 1892, who nearly 15,000 inhabitants in 1900, a figure was already licensed to practice in Michithat would double by 1915. gan, Kansas, and Alabama.2 A May 1892 Lewis was born into slavery in 1863 in newspaper article describes him as “the first Houma, Louisiana (his date of birth has colored lawyer who ever made application to been variously reported as 1853 and 1868,

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confined to civil matbut the 1870 Census ters, trouble followed lists him as seven Lewis. He was conyears old). Orphaned victed of “falsely inat a young age, Lewterpreting a written is saved $64 from instrument” and senworking in the fields tenced to two years and used it to further in the penitentiary.10 his education. After studying at Leland Lewis, it seems, had University in New “misrepresented the Orleans, he returned contents of a written to Texas and earned a instrument to be that teaching certificate at Winston M.C. Dickson stands alone (bottom right) at a junior class night event, 1903, at Pomona Col- of a mortgage, when the Normal School in lege (Boyton Collection of Early Claremont/Claremont Colleges Digital Library) it was a deed, and Orange, Texas in 1890. After working as a thereby became possessed of a valuable teacher and principal in east Texas, Lewis piece of land located in the city.”11 Howsaved enough to continue his education, ever, Lewis’ initial conviction was overattending Lincoln University in Pennsylturned.12 vania for two terms. While enrolled there, By 1915, Lewis was at the forefront of a visit to the courtrooms of Buffalo, New African-American lawyers serving the York made a lasting impression on him. city’s 30,000-strong black population.

There he saw a “Negro lawyer pleading His contemporaries included Winston for a Negro man’s life before a white jury...

M.C. Dickson, J.M. Adkins, L.V. Allen, the force of his eloquence was insatiable.”7 G.O. Burgess, H.M Broyles, W.L. Jackson, Madison G. Lewis, A.G. Perkins, Awestruck, Lewis followed the lawyer and asked him for career advice. The law- J. Vance Lewis in his law office. (Law Office of J. Vance Lewis) and Oscar C. Millard. In 1919, he copanied by accusations of professional misfounded the short-lived Twentieth Century yer recommended going to law school in conduct. As Lewis describes it in his autoState Bank and Trust Company of Houston, Ann Arbor, Michigan. Lewis followed that biography, and in 1920, he ran unsuccessfully for disadvice, graduated, and in 1894 was admit8 There was a little two-by-four colored trict court judge on the Republican Party’s ted to practice in Michigan. lawyer, and one or two low class white “Black and Tan” ticket. He was also a memLewis decided he needed more legal eduones in Houston, who made a living ber of the Colored Commercial Club, an cation, so he left Michigan for Illinois. He out of the little cases, especially the organization devoted to nurturing blackattended Chicago College of Law, graduatdivorce cases which were now coming owned businesses in Houston. Lewis was ing in 1897 and gaining admission to the to us. When not drunk, they watched a sought-after and eloquent public speaker, Illinois bar shortly thereafter. In October our success with ever-increasing envy and his speeches often evoked a theme of 1897, Lewis was admitted to practice before and finally reported to Judge Chas E. African-American empowerment through the U.S. Supreme Court. Lewis’ practice in Ashe and also to Judge W.P. Hamblen education and hard work.

Illinois, judging from the cases discussed that there was some irregularity in the Lewis died on April 24, 1925, and he was in his autobiography, seem to have focused citation of every case that I had on file. buried in Olivewood Cemetery. His home in on criminal work, including murder cases.

Our success had been phenomenal, the Fourth Ward was listed in the National In 1900, he moved to New Orleans but, by and I do not wonder that Judge HamRegister of Historic Places in 1985, and in 1901, he had relocated to Houston. blen believed the statement of this 2007, it received both a Texas Historical In Houston, Lewis quickly found success, Cateline and his cohorts.9 Commission marker and a City of Housforming a partnership with L.W. Greenly.

Disbarment proceedings were initiated ton Protected Landmark designation. On He became widely known as the first Afriagainst Lewis in 1903, and though he was April 27, 2013, a Texas Historical Marker can-American lawyer to win a murder case found not guilty, he was suspended from was dedicated in Lewis’ honor. Born into for a black client in front of a Harris County practicing law for six months. Following slavery and educated “out of the ditch,” J. jury, and in 1904, he was admitted to pracanother charge, he was suspended from Vance Lewis blazed a trail for countless othtice before the Supreme Court of Texas. At handling criminal cases for seven years; ers to follow and he left a legacy that must be one point, Lewis was juggling as many as undaunted, Lewis focused on solely civil measured by far more than his courtroom one hundred divorce cases on file. But with cases (primarily divorce). But even when victories.13 success came professional jealousy, accomthehoustonlawyer.com

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O III.

f all of Houston’s earliest AfricanAmerican lawyers, perhaps the most fascinating and inspiring story is that of Winston M.C. Dickson, a contemporary of Lewis. Born in 1872 in Crockett, a small farming community 100 miles north of Houston, Dickson was the son of freed slaves Winston W. Dickson and his wife Elizabeth. Although he toiled in the fields with the rest of his family, Dickson pursued his education with a passion. After getting a teaching certificate in 1894 at historically black Tillotson College in Austin, young Dickson began teaching at a black high school outside downtown Houston.14 But he yearned for more, and with the support of Congregationalist American Missionary Association missionaries, the 29 year-old former schoolteacher found himself in Southern California as the first (and only) African-American at Pomona College.15 Dickson thrived at Pomona, becoming not just a top debater and editor of the student publication but also serving as president of the Literary Society, the Choral Union, and the Prohibition League as well.

Yet even in an environment that was seemingly more tolerant than his Texas hometown, Dickson received regular reminders of the racism of the day, particularly in the form of the campus’ popular minstrel shows. Seeing African-American life being crudely lampooned by white actors in blackface must have heightened the isolation he felt.

But Dickson persevered, earning an academic record impressive enough to carry him to Harvard, where he earned a Bachelor of Jurisprudence in 1905 before crossing the Charles River to add a Master of Jurisprudence from Boston University School of Law in 1907.

Dickson came back home in 1911 to continue his legal career in Houston. The early years of his practice there seem to have coincided with something of a renaissance for the city’s African-American legal community. The 1915 “Red Book of Houston” (billed as “a compendium of social, professional, religious, educational and industrial interests 32

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of Houston’s colored population”) lists nine lawyers, including Dickson and J. Vance Lewis, as catering to the city’s then-30,000 black residents.16 With many types of legal work closed to black lawyers at the time (as many corporations generally shunned minority lawyers), Dickson focused his practice on what was available to him—mainly divorce, probate, and small business cases.

The 1919 Moore v. Moore case, which Dickson took to the Beaumont Court of Appeals, resulted in his client Mayme Moore gaining custody of her child.17 Four years later, in American Woodmen v. Smith, he won the insurance payout claimed by his client, Viola Smith, after the death of her husband.18 All of Dickson’s legal work, one must remember, was being done at a time when AfricanAmerican lawyers and their clients suffered routine indignities such as having to wait in court for all the white lawyers’ cases to be called first.

From his office at 409½ Milam Street, Dickson swiftly gained a reputation as one of Houston’s leading black lawyers. In 1920, he was an unsuccessful candidate for county judge in Harris County. That same year, Dickson was singled out as a “most learned lawyer of the race” by the Dallas Express for a case he won for black defendants “over vigorous objections of white attorney for the plaintiff.”19 By 1923, Houston’s black newspaper, the Houston Informer identified him as president of the city’s Colored Bar Association.20 Dickson was certainly a “go-to” lawyer for many prominent members of Houston’s African-American community, and he enjoyed that status for decades. For example, in 1912 his defense of a black notary public indicted for forgery made the papers.21 Yet a preference for white lawyers persisted among some elites in the black community, prompting Houston Informer editor/publisher C.F. Richardson to pen a searing front page editorial attack on such so-called “race leaders.”22 Of one such prominent figure who had hired white counsel for an African-American fraternal organization, Richardson wrote “he is not enough ‘race man’ to even employ colored counsel, despite the fact that a local lawyer, W.M.C. Dickson, as

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attorney for B.H. Grimes v. J.D. Ryan et al., won over a team of lawyers from another race, thereby demonstrating his ability as a barrister.”23 This issue of black organizations and businesses not hiring “their own” as counsel was a persistent one, as illustrated by the fact that Winston Dickson and other members of the multistate Southwestern Negro Bar Association made it a focal point of their annual meeting in 1941.24 Dickson lived in the same house on Orange Street in Houston’s Fifth Ward from 1930 to his death in November 1959. And while his contributions to the black community were many, Dickson may be best known historically for being on the wrong side of history. In 1946, black postal worker Heman Merion Sweatt applied to the University of Texas School of Law and was denied admission on the basis of his race. But as the case was winding its way through appellate courts en route to the 1950 Sweatt v. Painter decision from the U.S. Supreme Court, Governor Coke Stevenson approached W.R. Banks, the president of Prairie View A&M, about having Prairie View set up a makeshift law school for blacks as a way of placating white segregationists. Banks in turn visited Dickson about the prospect of turning his Milam Street office into such an ad hoc law school, with Dickson serving as its dean. Dickson and his law partner agreed to the proposal, only to be vilified by the black press. The Houston Informer characterized it this way: “These men, being lawyers, would be presumed to have known that any participation in this scheme to set up this makeshift law school could not help but be used by whites to escape meeting their obligation to establish a full-fledged law school for Negroes.”25 Of course, such a law school never materialized. The University of Texas Law School had to admit Heman Sweatt in the aftermath of Thurgood Marshall’s victory in Sweatt v. Painter, and Dickson would be relegated to a sad footnote in the annals of desegregation.

It was a depressing final act to Dickson’s otherwise distinguished career. Like other trailblazing lawyers in the Houston legal community, Dickson was a role model and a mentor to generations of African-American

lawyers. It is perhaps most fitting to remember him with the words from a speech he gave in 1911 (shortly after launching his legal career in Houston) commemorating the 48th anniversary of the Emancipation Proclamation: “Let each man, therefore, look to himself, for as the individual or the majority of individuals, so the race.”

John Browning is a shareholder in the Dallas law firm of Passman & Jones, where he handles a wide variety of civil litigation and appeals in state and federal court.

His work on Texas’ first African American lawyers has appeared in numerous publications and earned a number of awards, including the State Bar of Texas’ Presidents’ Certificate of Merit.

Endnotes

1. See, e.g., John G. Browning & Chief Justice Carolyn Wright, We Stood on Their Shoulders: The First African American Attorneys in Texas, 59 HOWARD L.J. 1 (2015); Maxwell Bloomfield, From Deference to Confrontation: The Early Black Lawyers of Galveston, Texas, 1895–1920, in THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA 151 (Gerard W. Gawalt ed. 1984).

2. A Negro Lawyer, GALVESTON DAILY NEWS, May 28,

1892, www.texashistory.unt.edu/ark:/67531/metapth468353.

3. Id. 4. City Brevities, HOUS. DAILY POST, Aug. 4, 1899, www.texas history.unt.edu/ark:/67531/metapth83104.

5. Id. 6. J. VANCE LEWIS, OUT OF THE DITCH: A TRUE STORY OF AN EX-SLAVE (1910).

7. Id. at 31.

8. Here, the historical trail is murky, since the University of Michigan Law School does not list Lewis as a graduate. Although his bar admission to practice is documented, it remains unclear where Lewis received his initial legal education.

9. LEWIS, supra note 6, at 84.

10. J. Vance Lewis Case, HOUS. POST, Jan. 5, 1906, www. texashistory.unt.edu/ark:/67531/metapth443267.

11. Id. 12. Id. 13. In the introduction to his autobiography, Lewis wrote that “my struggles might inspire other boys to pursue their highest aspirations and be proof against discouragement...and might be the means of helping to change certain adverse conditions for the better.” Lewis, supra note 6, at 5.

14. Saahil Desai, The Erasure of Winston M.C. Dickson, MEDIUM (Dec. 19, 2015), https://medium.com/@saahil_desai/the-erasure-of-winston-m-c-dickson-d459d67796ae.

15. Both Tillotson & Pomona College had Congregationalist roots, and the church’s AMA missionaries had made educating African-Americans a priority, founding more than 500 schools and eleven colleges across the South during Reconstruction.

16. THE RED BOOK OF HOUSTON (1915).

17. Moore v. Moore, 213 S.W. 949 (Tex. Civ. App.—Beaumont 1919).

18. American Woodmen v. Smith, 251 S.W. 308 (Tex. Civ. App.— Beaumont 1923).

19. W.M.C. Dickson, DALL. EXPRESS, May 8, 1920, https:// tex a shi stor y.unt.edu /ark:/67531/met apt h 278308/ m1/4/?q=W.M.C. Dickson.

20. Decades later, as an octogenarian, Dickson would help found the Houston Lawyers Association, which today continues its mission of mentoring and advocating for African-American lawyers.

21. Negro Notary Public Indicted Wednesday, HOUS. POST, Oct. 31, 1912, https://texashistory.unt.edu/ark:/6753/ metapth605996/.

22. Clifton F. Richardson, Much Ado About Nothing or A Tempest in a Teapot: ‘Race Leaders’ Take Cold Feet, HOUS. INFORMER, Aug. 2, 1919, https://texashistory.unt.edu/ark:/67531/ metapth523813/m1/4.

23. Id. 24. U.J. Andrews, Bar Association Scores Use of White Lawyers, SAN ANTONIO REGISTER, June 20, 1941, https:// tex a shi stor y.unt.edu /ark:/67531/met apt h 399868/ m1/5/.

25. Carter Wesley, Archer Welshes, Marshall Argues, Sweatt Appeals, HOUS. INFORMER, Dec. 21, 1946.

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Reception Honors New Judges T

he Houston Bar Association honored judges elected in November 2018 at a reception at the 1910 Courthouse on January 16. HBA members and judges alike had the opportunity to network and enjoy a social gathering.

The HBA would like to thank the law firms and corporations listed below for sponsoring the reception.

The Hon. Rabeea Collier

The Hon. Germaine Tanner

The Hon. Tanya Garrison

The Hon. Clinton Wells

The Hon. Scot Dollinger The Hon. Beau Miller

Juvenile District Courts The Hon. Natalia Oakes

The Hon. Lauren Reeder

The Hon. Michelle Moore The Hon. Leah Shapiro

Reception Underwriters Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz Akin Gump Strauss Hauer & Feld LLP Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Baker Botts L.L.P. BakerHostetler LLP Beck Redden LLP Blank Rome LLP Bracewell LLP CenterPoint Energy, Inc. Chamberlain Hrdlicka Hunton Andrews Kurth LLP Jackson Walker LLP Locke Lord LLP Norton Rose Fulbright US LLP Porter Hedges LLP Reed Smith LLP Susman Godfrey L.L.P. Vinson & Elkins LLP Williams Kherkher Hart Boundas, L.L.P. Winstead PC Winston & Strawn LLP Yetter Coleman LLP

The Hon. Cory Sepolio 269th District Court

315th District Court

The Hon. Dedra Davis

Probate Courts The Hon. Jerry Simoneaux

New Harris County Judges Appellate Courts The Hon. Gordon Goodman First Court of Appeals, Place 2

The Hon. Sarah Beth Landau First Court of Appeals, Place 6

The Hon. Julie Countiss

First Court of Appeals, Place 7

The Hon. Richard Hightower First Court of Appeals, Place 8

The Hon. Peter Kelly

First Court of Appeals, Place 9

The Hon. Jerry Zimmerer

Fourteenth Court of Appeals, Place 3

The Hon. Charles Spain

Fourteenth Court of Appeals, Place 4

113th District Court 157th District Court

189th District Court

190th District Court

234th District Court

270th District Court

The Hon. Christine Weems 281st District Court

The Hon. Donna Roth 295th District Court

311th District Court

312th District Court

313th District Court 314th District Court

Probate Court No. 1

The Hon. Michael Newman Probate Court No. 2

The Hon. Jason Cox

Criminal District Courts The Hon. DaSean Jones

Probate Court No. 3

The Hon. Danilo Lacayo

County Civil Courts The Hon. Jim F. Kovach

180th District Court

182nd District Court

The Hon. Chuck Silverman 183rd District Court

The Hon. Abigail Anastasio 184th District Court

The Hon. Jason Luong 185th District Court

The Hon. Greg Glass 208th District Court

The Hon. James Horwitz Probate Court No. 4

County Civil Court at Law No. 2

The Hon. LaShawn A. Williams County Civil Court at Law No. 3

The Hon. William McLeod

County Civil Court at Law No. 4

County Criminal Courts The Hon. Alex Salgado

The Hon. Brian Warren

County Criminal Court at Law No. 1

The Hon. Frank Aguilar

County Criminal Court at Law No. 2

The Hon. Chris Morton

County Criminal Court at Law No. 3

The Hon. Josh Hill

County Criminal Court at Law No. 4

The Hon. Hilary Unger

County Criminal Court at Law No. 5

The Hon. Lori Chambers Gray

County Criminal Court at Law No. 6

The Hon. Amy Martin

County Criminal Court at Law No. 7

209th District Court

228th District Court

230th District Court

232nd District Court 248th District Court

262nd District Court

The Hon. Ronnisha Bowman The Hon. Erica Hughes

The Hon. Shannon Baldwin

The Hon. David M. Fleischer The Hon. Kelley Andrews

The Hon. Andrew A. Wright

263rd District Court

The Hon. Franklin Bynum

Family District Courts The Hon. Tristan H. Longino

The Hon. Toria J. Finch

The Hon. Angela Graves-Harrington

County Criminal Court at Law No. 10

245th District Court

246th District Court

The Hon. Janice Berg 247th District Court

The Hon. Sandra Peake

County Criminal Court at Law No. 8 County Criminal Court at Law No. 9

The Hon. Lee Harper Wilson

The Hon. Sedrick T. Walker II

County Criminal Court at Law No. 11

The Hon. Raul Rodriguez

County Criminal Court at Law No. 13

257th District Court

The Hon. David L. Singer

The Hon. Meagan Hassan

The Hon. Barbara J. Stalder

The Hon. Tonya Jones

The Hon. Margaret Poissant

The Hon. Gloria Lopez

The Hon. Frances Bourliot

Fourteenth Court of Appeals, Place 5 Fourteenth Court of Appeals, Place 6

280th District Court

Justice Courts The Hon. Jeremy L. Brown

The Hon. Sonya Heath

The Hon. Sharon M. Burney

308th District Court

Civil District Courts The Hon. Latosha Lewis Payne

309th District Court

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January/February 2019

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County Criminal Court at Law No. 15

The Hon. Linda Marie Dunson

Fourteenth Court of Appeals, Place 8

55th District Court

County Criminal Court at Law No. 14

310th District Court

Justice of the Peace Court, Pct. 7 Pl. 1 Justice of the Peace Court, Pct. 7 Pl. 2

New Harris County judges gather on the staircase in the 1910 Courthouse rotunda for a welcome from the bar.

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January/February 2019

35

OFF THE RECORD

John Zavitsanos:

It’s All Greek to Him

T

The Houston Lawyer

By Allen Tanner

My grandfather fought in four wars to keep our family alive and rying cases is a passion for John Zavitsanos, but so defend his country. I feel like I’d dishonor him not to go back is being Greek. He was born in Greece, to a family of every summer. And I want my kids shepherds. He has performed in a traditional Greek to have that part of their identity,” dance troupe, and every summer spends a month he said. at his second home on the exquisite Greek island of Like John, Joni and their four Lefkada where he runs his law practice by cellphone. children are all fluent in Greek. In John’s childhood home fact, the eldest daughter spoke only in a Greek village finally Greek until she went to preschool. got electricity when he He sincerely believes speaking a was five years old, and second language enables you to his parents brought him think in an entirely different unito the United States at verse. “Most lawyers have mostly age eight. They moved-in professional friends and neighbors. They live and with his uncle’s family in work in a bubble. Visiting Greece helps me anchor a one-bedroom basement in two worlds, and I think I’m a better lawyer for apartment in Chicago. it,” he said.

John spoke no EngThanks to his Greek fluency and values that lish and failed his first Greeks share, John has many clients of Greek herielementary class in his tage. He serves gyros, spanakopita, and baklava at new country. But making some of the law firm’s events. His wife Joni is an sure his son got an eduartist, and many of her bold Greek-feminist works cation was of paramount are on the walls of his firm. importance to his father, John is also passionate about his faith and plays who had none. Once John John Zavitsanos a major role in the Greek Orthodox Church. In learned English, and 2004, the church bestowed upon him its highest honor for though his parents could not read, he was expected to get all a layman, recognizing him as an Archon of the Ecumenical A’s. In a show of gratitude when he graduated from the UniPatriarchate. There are fewer than 750 Archons in the United versity of Michigan Law School, John had his father’s name, States. In May 2018, John helped organize leaders of the Greek Socrates Zavitsanos, put on his diploma.

Orthodox Church in the United States for a religious freedom When John moved to Houston, he quickly assimilated into summit in New York City focusing on the persecution of Christhe Greek community here and met his future wife Joni. “She tians in the Middle East and Turkey. was very involved in the dance troupe, so I didn’t have much Given his zeal for trying cases and the thrill of winning of a choice [about dancing with the troupe],” he said. He has them, it’s hard to imagine a day when John might retire. But if danced at the Greek Festival many times, and their troupe even that day ever comes, returning to his homeland is always in the traveled to Greece twice. back of his mind. As he puts it, “Every first-generation Greek The dance troupe included many Greek Houstonians who has dreams of one day going home.” had never been to Greece. “It was super cool. There were a bunch of young people who had never been there. It was awesome to watch a light go on in them,” he said.

Allen Tanner was is a former prosecutor and current Houston “It’s important to me not to lose the connection to Greece. criminal defense lawyer at Law Offices of Allen Tanner.

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January/February 2019

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t he

HBA serves you Enhance your practice Try the HBA advantage.

www.hba.org

Harris County Bench Bar Pro Bono Awards Did you, your firm or your corporate legal department perform outstanding pro bono work during 2018? If so, submit a nomination!

You may self-nominate or nominate another firm or individual.

Large Firm Mid-Size Firm Small Firm Corporate Legal Department Individual

Nominations are reviewed and selected by a committee of Harris County judges and members of the bar, co-chaired by Harris County Administrative Judge Robert K. Schaffer and HBA President Warren Harris.

Award winners will be recognized at the 2019 Harris County Bench Bar Pro Bono Award Luncheon on May 8, 2019 at the Civil Courthouse.

For nomination forms, visit www.hba.org.

Nominations due by 5:00 p.m. Friday, March 22, 2018.

Questions? Contact Tara Shockley at (713) 759-1133.

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January/February 2019

37

committee spotlight

HAY Center Committee Helps Youth Transition From Foster Care

H

The Houston Lawyer

By Scott Michelman

ouston has thousands of children living in foster care.

Many of them have endured the traumas of abuse and neglect, separation from their families, and growing up in the CPS system. When these children turn 18 and “age out” of the foster-care system, they often lack the support and skills necessary for a successful transition to adulthood. The Houston Alumni and Youth (HAY) Center helps them make this transition.

Each year the HAY Center works with more than 1,200 foster youth ages 14 to 26. It provides access to resources and programs, including Preparation for Adult Living (PAL) classes. Through the HAY Center, foster youth learn about job readiness, financial management, and life decisions. The HAY Center also offers a Bridge Housing Program that provides rent-free housing for young adults learning to live independently.

The HBA first began its involvement with the HAY Center in 2009—by helping to identify speakers for the PAL classes. The following year, HBA President Mark Kelly created the HAY Center committee, and for the last ten years the committee has continued its support of the HAY Center’s efforts.

The committee currently dedicates the majority of its time to two of the Center’s activities. The first is the annual holiday party.

The committee raises money and in-kind donations to provide a holiday experience for foster youth, including those who have children of their own. The families who attend receive a holiday meal along with gifts, filled stockings, and door prizes. Santa Claus even makes an appearance for the children! In addition, each family leaves with a food bag containing all the fixings for a holiday dinner at home.

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January/February 2019

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The second activity is the Prom Readiness Event. The committee raises money and coordinates donations of clothing and merchandise. Then, for one afternoon in March, the HAY Center converts itself into an upscale clothing store—complete with clothing racks and dressing rooms—where foster youth can “shop” for their prom attire at no cost. Girls get to pick out the perfect prom dress, along with shoes, jewelry, and makeup to match. They can also choose other formal pieces for future use. Boys get new suits, dress shirts, belts, shoes, and ties. Volunteers on site help with the selections and even perform on-the-spot alterations. All the participants get to keep the clothes they have chosen, some of which can then be worn for job interviews. The participants also receive gift cards to a restaurant for a prom-night dinner.

In addition to those two signature events, committee members also help the HAY Center youth with job interviewing skills.

Many foster youth have never applied for a job, so the committee conducts mock job interviews at the HAY Center throughout the year. And finally, the committee continues to provide speakers for the PAL education classes, as it has done since 2009.

The committee is proud of its partnership with the HAY Center, an organization that does so much for foster youth in Houston.

If you would like more information about the HAY Center, go to www.haycenter.org. If you would like more information about the committee, or if you would like to volunteer to help with any of the events, please contact any of this year’s co-chairs: David Harrell, Scott Michelman, or Ashley Selwyn.

Scott Michelman is a partner at Shook Hardy & Bacon. He is co-chair of the HBA HAY Center Committee.

SECTION spotlight

Animal Justice:

Advocating for the Voiceless

T

By Belinda Smith

he HBA Animal Law Section is committed to being a event will celebrate the efforts of the Harris County Animal voice for the voiceless and an education tool for those Cruelty Taskforce. The lead agencies in the Taskforce include who advocate for animals. We plan and host animalthe Harris County District Attorney’s Office, Harris County specific CLE seminars and perform outreach through Constable Pct. 5, Houston Police Department, Harris County the Humanitarian Awards Dinner. In Texas, there are Sheriff’s Office, the City of Houston Animal Shelter, the Haronly two bar associations that ris County Animal Shelter and have Sections devoted to aniCrime Stoppers. This Taskmal law, namely the State Bar force, the only one of its kind of Texas and the Houston Bar in the country, is committed Association. We are very proud to investigating and prosecutof this distinction and work ing animal cruelty cases. Since hard on behalf of our memits inception in 2018, the Taskbers, the community and the force has received over 2,700 animals. animal cruelty reports and 172 Each year we sponsor the criminal charges were filed.

Lawyers to the Rescue SemiWe plan to assist the Tasknar. This seminar offers subforce in their efforts by donatstantial hours of CLE credit ing the proceeds of the Awards and addresses legal issues facdinner to their designated ing small and medium-sized non-profit, Paw & Order: non-profit animal rescue/welF.A.C.T. (Friends of the Harris Belinda Smith, third from left, at the Humanitarian Awards Dinner. fare organizations. In NovemCounty Animal Cruelty Taskber, we held the seminar for the sixth time, and we had a reforce). The proceeds of the dinner will be used by the Taskforce cord number of attendees including law enforcement officers, to set up a medical fund of $5,000 to pay for veterinary care veterinarians, animal control officers and rescue groups. This and housing of animals seized during the investigations. We year we gave the Rescuer of the Year Award to Greg Mahle, who will announce the date of the dinner in February, and we will gave an inspirational talk. Mr. Mahle is the founder of Rescue partner with Paw & Order: F.A.C.T., so stay tuned. If you are inRoad Trips, an organization that provides low cost transportaterested in volunteering, please contact Paw & Order: F.A.C.T. tion for rescue dogs in the deep southern states to loving homes at 1-888-344-3228 or info@pawandorderfact.com. in New England and surrounding areas. Mr. Mahle has been Our goal is simple: we hope to have an even bigger impact on featured on the Today Show, People Magazine and many other the lives of animals and our community, but we need your help. media outlets.

If you are an animal lover, please consider joining our section This spring, we are excited to sponsor The Humanitarian and helping us advocate for the voiceless.

Awards Dinner. This annual event promotes public awareness of causes that protect our animals. The Awards celebrate individBelinda Smith is retired from the Harris County District Attoruals, professionals, and organizations that demonstrate a comney’s Office. She was the State’s first animal cruelty prosecutor mitment to improving and protecting animal lives. This year’s and co-founder of the Animal Law Section. thehoustonlawyer.com

January/February 2019

39

LEGAL TRENDS

Gunn v. McCoy: Who May Provide Affidavits to Prove Medical Expenses under CPRC 18.001?

T

The Houston Lawyer

By Jonathan M. Jabcuga

he use of affidavits under Section 18.001 of the Texas Civil Practice and Remedies Code is often relied upon by attorneys at trial to streamline proof of the reasonableness and necessity of medical expenses. Section 18.001(c)(2) requires these affidavits be made by the person who provided the service, or the person in charge of records showing the service provided and charge made. The Texas Supreme Court in Gunn v. McCoy, 554 S.W.3d 645 (Tex. 2018), addressed the nuanced question of whether affidavits from records custodians to prove past medical expenses were required to be made by a records custodian for the specific medical provider who provided the service.

In Gunn, a pregnant patient presented to a hospital with severe abdominal pain and was diagnosed with a placental abruption and an unviable fetus. Both during and after delivery, the patient experienced numerous complications that resulted in the patient suffering brain damage and quadriplegia. The patient’s husband, acting as her guardian, sued the hospital, several physicians, and their respective practice groups for negligence in failing to adequately diagnose and treat the patient’s medical condition.

As with many medical malpractice cases involving traumatic brain injury, the patient incurred significant medical expenses during her admission to the hospital and following

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discharge for post-injury rehabilitation services. In support of these damages at trial, plaintiff offered fourteen Section 18.001 affidavits from the subrogation agents for the health insurance carriers that had paid the patient’s incurred medical expenses. The affidavits were admitted to evidence over the objections of the defendants who argued that Section 18.001 limits the proper affiants to providers or record custodians for those providers.

Ultimately, the jury returned an eleven-toone verdict in favor of the plaintiff against the treating physician and physician’s practice group and awarded over $10 million in damages, including over $700,000 in past medical expenses. Both defendants appealed, raising several issues including challenging the evidentiary sufficiency of the patient’s past medical expenses. The Fourteenth Court of Appeals slightly reduced the trial court’s award of future medical expenses but otherwise affirmed the judgment as modified. Defendants appealed, and the Texas Supreme Court granted the defendants’ petitions for review.

At the Supreme Court, both defendants again argued that plaintiff failed to present legally sufficient evidence of the patient’s past medical expenses because the Section 18.001 affidavits were not made by the actual medical provider who provided the service or the record custodian for the provider. The Texas Supreme Court disagreed and held that Section 18.001 does not limit the proper affiants to medical providers and medical providers’ record custodians.

In reaching their decision, the Supreme Court first noted that the plain language of Section 18.001(c)(2)(B) does not require that affidavits be made by a records custodian for a medical provider. However, the Court recognized that the reasonableness and necessity of past medical expenses must still be proven by legally sufficient evidence. Thus, the Court evaluated whether subrogation agents are qualified to testify to the reasonableness and necessity of medical expenses.

In holding that subrogation agents are uniquely positioned to testify about these expenses, the Court acknowledged the complex

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reality of health care costs today noting that hospitals have implemented a two-tier pricing system including a list price and an actual price which is what private insurers, Medicaid and Medicare actually pay after negotiations.

Because of this reality, insurance companies regularly negotiate with providers across the nation to agree upon the actual price for services. In conjunction with these negotiations, the insurance companies keep records and databases of both the list prices and actual prices of specific treatments and procedures.

The Court determined that, armed with this knowledge, insurance agents are generally well-suited to determine the reasonableness of medical expenses. With respect to the necessity of medical expenses, the Court conceded that insurance companies heavily influence what is considered “necessary” by determining whether they are willing to cover specific treatments and procedures. Accordingly, the Court held that the subrogation agent affidavits served by the plaintiff were proper and constituted legally sufficient evidence of the reasonableness and necessity of the patient’s past medical expenses.

While the Supreme Court’s decision may at first glance appear to expand the pool of individuals who may establish past medical expenses by affidavit, in reality, the holding affirms the legislature’s original intent to streamline proof of reasonableness and necessity of medical expenses by providing for only those individuals with appropriate qualifications to testify. Subrogation agents meet this burden. However, it should be noted that affidavits served under Section 18.001 are purely procedural and do not amount to conclusive evidence of expenses. When served with a Section 18.001 affidavit, attorneys should be prepared to file a controverting affidavit contesting the reasonableness and necessity of the charges to ensure a fact issue for trial.

Jonathan M. Jabcuga is a senior associate at Ford + Bergner LLP and focuses his practice in Estate, Trust and Guardianship Litigation.

He is a member of The Houston Lawyer Editorial Board.

A Profile

in pro f e s s i o n a l i s m

E

Richard C. Kroger Assistant General Counsel, Westlake Chemical Corporation

veryone today thinks of themselves as a professional. My plumber is a “professional.” My Uber driver is a “professional driver,” not one of those “amateur Lyft drivers” (or so he said on the way to the airport). Those guys on Sunday at NRG Stadium wearing #4 and #99 for the Texans are professionals as well.

So, what makes up a true professional in our line of work? I think a professional is a lot of things. Being dedicated to your work, consistently trying to improve your skill sets, and being honest and accountable to your clients are all things that make up a legal professional.

But more than anything, I think a professional is someone who treats others with respect. In a courtroom, in discovery disputes, in mediations, there is no reason not to treat those involved cordially. When your counterpart on the other side of a legal matter loses it, don’t respond in a like manner—be better than that. Taking advantage of the other side just because you can is the opposite of being a pro.

In 2019, there is way too much angst, and people who are upset and convinced their opinion is the only right one. These people do not respect alternate positions, and it is a disturbing and all-too-common trend. I would like to see more mutual respect for each other, more deference and control—in other words, more of us all being professional to one another.

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41

Media Reviews

Positive Professionals: Creating High-Performing Profitable Firms Through the Science of Engagement

By Anne Bradford ABA Law Practice Division, 2018

“A

The Houston Lawyer

Reviewed by Tim McInturf

re law firms broken?”

That is a question the author asks in Positive Professionals: Creating HighPerforming Profitable Firms Through the Science of Engagement published by the ABA Law Practice Division (2018). Before you stop reading, consider that the author, Anne Brafford, is one of us. She practiced law for 18 years—concluding as an equity partner in Morgan, Lewis & Brockius, LLP—then returned to school for a Master’s degree in Applied Positive Psychology. She imagined her colleagues and others would respond negatively to her decision to leave law. The overwhelming response was in the nature of, “I wish I could do something like that.”

A must-read for law firm leaders, this is a valuable resource to combat the high rates of burnout, substance abuse, and trapped feelings that exist in the practice of law. Bradford explains concepts 42

January/February 2109

like “engagement,” “meaningfulness,” “self-determination theory,” “positive and negative emotions,” “transformational leadership,” “significance,” “purpose,” “high-quality relationships,” and personal “growth mindsets.” By way of example, she discusses how law firms are frequently corrosive with incivility and controlling behavior rather than affirming with encouraging relationships, selfdetermination and appropriate autonomy among high-achieving professionals. She further posits how expanding a firm’s management focus beyond merely business development, billable hours, and collections to include the above-mentioned concepts will benefit the firm in the long run (i.e., make it self-sustaining) by making lawyers healthier, happier, and more productive for a longer period of time.

Lawyers who find themselves in law firm management—as opposed to large company leaders who have many times been steeped in these concepts beginning in undergraduate business school—are usually unprepared to lead the human capital aspects of their organizations.

As a short course in both psychology and organizational behavior, Bradford has created an important work for individual lawyers struggling with meaning, purpose, or burnout—she explains how we get there and what can be done about it. For law firm leaders, her work creates a roadmap to better health which includes a “checklist for change” for leaders based upon her years of experience and professional study in both law and psychology.

Not surprisingly, she concludes that law firms are, in fact, broken. Her knowledge of what really goes on in law firms gives her analysis and recommendations credibility. At the same time she identifies problems and offers solutions. Her recommendations are not contrary to the

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existing business model of a typical law firm. Instead, her recommendations are additive and complimentary. She expands the scope of things successful leaders must manage to increase the bottom-line and sustain the organization by protecting and preserving the revenue-generating human capital that is essential for a successful law firm.

Tim McInturf is the chief administrative and legal officer of Quantlab Financial, LLC, a global high-frequency trading firm (www.quantlab.com). Like the author, he was in private law practice for nearly 18 years concluding as an equity partner in an international law firm. Unlike the author, he started his career as an executive trainee in a large public company where he received significant business and people management training.

Searching for Pilar

By Patricia Hunt Holmes Egg Harbor Publishing, 2018

“A

Reviewed by Anietie Akpan

lawyer’s role in society is to seek justice” So states Mary Chavez, one of the heroines of Patricia Hunt Holmes’ Searching for Pilar, a cautionary tale of one family’s journey to “seek justice” for the titular character and other brave survivors of sexual slavery.

The book begins with the beautiful and willful Pilar agonizing over how to provide for her family after the pottery factory where she has been employed closed down. Lured by a stranger (who turns out to be one of Pilar’s villainous abductors) of an offer of a high-paying secretarial job in Mexico City, Pilar is drugged, transported across the border and quickly be-

Media Reviews

comes a victim of the dangerous and dark world of sex trafficking.

This is not a book for the light-hearted.

Holmes does not shy away from painfully describing the sexual violence Pilar endures at the hands of her “customers.”

Holmes also addresses the subsequent implications of sex trafficking, such as mental illness and substance abuse, through the experiences of Pilar and the other young women who have also been abducted.

The reader will quickly learn that Pilar’s story—which spans a number of years— also encapsulates numerous intertwining stories of all the people impacted by her abduction: her devoted husband, Alejandro, who is left helpless in Mexico; her fiercely dedicated brother, Diego (whose perspective is worthy of its own book); law enforcement at the local, state and federal level; attorneys; and community activists, including a priest.

However, as Searching for Pilar is written by an attorney, the book also examines many intersectional issues that arise in the discussion of law and litigation.

For example, gender politics within the law profession is not-so-subtly addressed throughout the book (there’s an especially infuriating exchange between a male U.S. Attorney and “do-gooder” attorney Mary Chavez which will certainly get your blood boiling). Issues of classism are also discussed, and there is of course, the prominent overview of the commercialization and dehumanization of female bodies.

But one of the most interesting matters addressed in this book was Holmes’ complex examination of the difficult navigation of the American corporate space as a first-generation American and as a person of color. This is especially exemplified in the very interesting background of siblings John and Mary Chavez, who become integral players in Diego’s quest to find his sister.

Although both are attorneys, Mary, the younger sibling, has dedicated her practice to public interest law, working with under-

served communities, navigating dangerous spaces, and earning a marginal income. In contrast, older sibling John works at a prestigious corporate transaction law office, married a non-Latin woman from an “oil money” family, and resides in River Oaks.

John is at times unfairly villainized for his choice of career and marriage partner (“[Y]ou live in such an innerloop bubble!” Mary lashes at John at one point); Holmes wants to make it evident that these choices have resulted in John feeling detached from his racial heritage, the larger socio-political issues globally impacting his community, even in the way he interacts with other LatinAmerican individuals (it is evident how visibly uncomfortable John is speaking with a particular character towards the beginning of the book).

If I had to give only one “critique,” it would be with Holmes’ criminal underuse of her supporting characters. This book is peppered with an incredible supporting “cast”—a gruff undercover detective with a heart-of-gold, a kind and docile priest, a femme fatale who is the daughter of a prominent crime family—just to name a few. Unfortunately these characters fall victim to a common literary trap, where they are introduced rather jarringly, utilized to introduce a sub-plot, and then are mentioned sparingly thereafter, if it all. I wished they had received a bit more development as they justly deserved.

In summation, Pilar’s story—although at times very difficult to read— is ultimately one of the undeniable power of faith and love, propelled by one woman’s impregnable dedication to her family and willpower to find her way home.

Anietie Akpan is a member of The Houston Lawyer Editorial Board.

She is a solo practitioner who practices estate planning and education law.

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