More Changes Are Coming to the Texas Attorney Disciplinary Rules
Is There a Legal Remedy Against Cultural Appropriation?
Andrew Gratz Is on a Mission to Turn Lawyers Into Leaders
Purposeful Inclusion: The Key to Growing Female Leadership in the Courtroom
An Interview with HBA President David Harrell
Jennifer A. HAsley
Is There a Legal Remedy Against Cultural Appropriation? By AmAn K. GeBru
Andrew Gratz Is on a Mission to Turn Lawyers Into Leaders By JAclyn i. BArBosA
Purposeful Inclusion: The Key to Growing Female Leadership in the Courtroom By rAcHel PowitzKy steely
Hope for the Lost and Forgotten: Houston’s Not Guilty by Reason of Insanity Courts By AnnA ArcHer
Harvest Celebration Underwriters
An Interview with HBA President David Harrell
Locke Lord Partner David Harrell Becomes Houston Bar Association President
HBA DEI Summer Associate Luncheon Celebrates Diversity and Recognizes Award Winners
President’s messAGe
The Three A’s of Meaningful Mentorship By dAVid HArrell
from tHe editor
A Glance at The Houston Lawyer’s Year Ahead By Andrew PeArce
off tHe record
Larry Stuart: The Unexpected Garden By cHristine stuArt
A Profile in ProfessionAlism
Brent Benoit
deputy General counsel and chief Compliance Officer, National Oilwell Varco HBA Past President, 2012-2013
committee sPotliGHt
The Elder Law Committee: Charting New Territory By AnGelA odensKy
section sPotliGHt
Innovation and Involvement: How the Energy Law Section Shines in the Houston Legal Community and Education By melissA munson
leGAl trends
The FTC Non-Compete Roller Coaster Continues as Courts Begin to Rule By cHris HAnsliK
Give Me My Baby! Are Unused Embryos in a Divorce Property or a Person? By nicole Voyles
mediA reViews
A Case for Greatness: Achieving Success and Overcoming Trials in Your Law Career reviewed by Anietie AKPAn litiGAtion mArKetPlAce
“Beck Redden proudly joins hands with Houston Volunteer Lawyers, dedicating our time and expertise to champion justice and empower our community. From family, consumer, and guardianship matters, to Section 1983 civil rights litigation and asylum matters, our trial and appellate lawyers represent a diverse set of pro bono clientele with a wide array of legal needs every year.”
– Jackie M. Furlow, Partner and Pro Bono Chair
By Davi D Harrell locke lord
The Three A’s of Meaningful Mentorship
Many of us had opportunities to learn by watching others. For litigators, we could watch trial lawyers with exceptional courtroom skills, charisma, or preparation. We could watch lawyers with command of the negotiating table or boardroom. Perhaps we took the opportunity to watch someone who had an outstanding bedside manner with clients. The opportunity to observe is essential to developing skills.
Mentoring is more than just observation. If asked, I suspect each HBA member could talk about a favorite mentor, or a moment that resonated in which a mentor passed along some advice that has stuck for years. Mentoring means someone took the time to be intentional, to make a conscious decision to make teaching someone else the most important thing they did at that moment in time. It not only teaches, but also says “you are important to me.”
I have benefitted from many mentors. As a young lawyer, looking to grow my skillset and learn how to develop business, a mentor taught me the “Three A’s: Affability, Availability, and Ability.” He described the importance of being a lawyer that clients want to be around. He confirmed the significance of making time for clients and their needs. Of course, he emphasized the importance of always providing excellent service to clients. But he didn’t just tell me about those Three A’s. He took me to meet with clients and talked to me about those clients before and after the meetings. He explained why he did what he did. And he demonstrated genuine concern for others, including me.
I have worked with excellent trial lawyers and watched them at work. But some of those lawyers also took the time to talk about their conscious decisions at trial or deposition. They explained why they framed certain issues in motions and hearings with an eye to how the case would develop down the line. They gave me a chance to develop strategy and then discuss it, so that I could take the laboring oar and then benefit from their insight.
Each of those mentors took the time to stop what they were doing and prioritize me. Mentoring is important. The Houston Bar Association offers numerous mentoring opportunities to
match experienced lawyers with those who want to learn. For example:
• The Professionalism Committee oversees a year-round mentorship program, pairing attorneys licensed four years or less with more experienced attorneys who provide advice on career development, as well as guidance on work-life balance and ways mentees can engage with the bar through committees, volunteer opportunities, and other activities. HBA members can sign up for the mentorship program and find links to additional resources at hba.org/professionalism;
• The Communities In Schools (CIS) Committee’s Summer Legal Internship Program provides academically outstanding high school students who attend at-risk schools the opportunity for a paid, eight-week internship in a professional legal environment, as well as enrichment programs and mentoring. The high school students receive two mentors—an attorney mentor and a law student mentor. The committee recently hosted its orientation for this year’s program at South Texas College of Law Houston on June 10;
• The Diversity, Equity & Inclusion Committee partners with Houston-based legal employers to provide 1L clerkship opportunities through the HBA 1L Diversity, Equity & Inclusion Summer Clerkship and Mentoring Program (the “DE&I Program”). Mentees in this program also mentor high school students participating in the CIS program;
• The Gender Fairness Committee holds a speed mentoring event for women attorneys licensed five years or less during the Bar year; and
• The Military & Veterans Committee provides mentorship opportunities throughout the year, pairing military and veteran law students with military and veteran attorneys.
If you have insights to pass along, I hope you will consider participating in one of these programs. Learn more about the HBA’s mentorship opportunities at hba.org
BOARD OF DIRECTORS
President David Harrell
President-Elect
Daniella Landers
first Vice President Jeff Oldham
second Vice President Collin Cox
secretary Kaylan Dunn
treasurer Greg Ulmer
immediate Past
President Diana Gomez
DIRECTORS (2023-2025)
Carter Dugan Greg Moore Colin Pogge
DIRECTORS (2024-2025)
Todd Frankfort
DIRECTORS (2024-2026)
Keri Brown Robert Painter
Seepan V. Parseghian Samantha Torres
EDITORIAl STAFF
editor in chief
Andrew Pearce
Associate editors
Anna M. Archer Sydney Huber Bateman
Nikki Morris Lane Morrison
Braden Riley Kyle Steingreaber
editorial Board
Anietie Akpan Jaclyn Barbosa
Jessica Crutcher Jonathan Day
Corey Devine Allison Ebanks
Traci Gibson Felicia Harris Hoss
Jeffrey Johnston Denise Khoury
David T. López Dave Louie
Emily Mott Ciara Perritano
Rinku Ray Hon. Josefina M. Rendón
Benjamin Roberts Jennifer Smith
Rachael Thompson Carey Worrell
Nicolette Zulli
managing editor Maggie Martin
HBA OFFICE STAFF
executive director Vinh Ho
Associate executive director Ashley G. Steininger
executive Assistant and director of Board Affairs Gina Pendleton
controller Sarah Kole
Director, Marketing and communications Maggie Martin
communications specialist Briana Ramirez
education coordinator Alli Hessel
Director, Projects and Events Bonnie Simmons
Projects and Events Assistant Georgina Peña
Director, Membership and technology services Ron Riojas
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AssociAte editors
By a n D rew Pearce BoyarMiller
A Glance at The Houston Lawyer’s Year Ahead
When I was entering my second year of college, and only after much careful and considered deliberation, I made the decision to major in History. I was incredibly fortunate—my parents were paying for my education—but I was also a bit nervous about my parents’ reaction to my proposed liberal arts degree. The good news? My dad congratulated me on my thoughtful and reasoned analysis. The bad news? He hoped I could find a way to pay for it. I promptly pivoted and ultimately decided to pursue a degree in journalism. We reasoned (correctly, I think) that a strong foundation in writing would serve me well in any career.
About ten years later, after working as an account manager for a chemical distribution company, I met Alicia. We started dating and quickly began discussing our future. I told her I had always wanted to attend law school and pursue a legal career—a dream that had seemingly started to fade as I approached my thirties. Alicia was already accomplished in her field of education. She offered to support me in my endeavor, but she did not want to wait to start a family. So, it was in the fall of 2004 that I began my first year of law school at South Texas College of Law Houston as Alicia and I welcomed our daughter, Ashley (followed by our son, Owen, a few years later).
I suppose you can’t get lost if you don’t know where you are going, but I never imagined those choices, and all of the ones in between and since, would have led me here—celebrating more than 20 years of marriage to Alicia, serving as the Litigation Group Chair at BoyarMiller (the firm I joined as a summer associate in 2005), and, now, becoming editor in chief of The Houston Lawyer for the 2024-2025 bar year. I am profoundly grateful for where I find myself today.
My hope as editor is to introduce you to subjects and stories that will be as interesting to you as they are to me and our board—and what a truly outstanding board we have. I am lucky to be joined by nikki Morris (Articles Editor), lane Morrison (Legal Trends), Sydney Huber
Bateman (Committee/Section Spotlight), Braden Riley (Off the Record), Kyle Steingreaber (Media Reviews), and Anna Archer (Podcast).
In this issue, we cover several subjects that I believe are equal parts informative, important, and interesting. Rachel Powitzky Steely writes about growing female leadership in the courtroom and what can happen when we harness the collective strengths of diverse perspectives. Aman K. Gebru discusses the issue of cultural appropriation, including what it is, when and how it can be harmful, and what remedies might exist when cultural appreciation crosses into cultural appropriation. Jaclyn I. Barbosa asks whether lawyers are trained to become effective leaders and highlights the efforts of Andrew Gratz to make sure the answer to that question is “yes.”
Also, HBA Past President Jennifer A. Hasley informs us of the new additions and amendments to the attorney disciplinary rules following years of rulemaking attempts and process changes to allow Texas lawyers to utilize their privilege of self-regulation, as granted by the Texas Legislature and the Supreme Court of Texas.
This year, I am also excited to introduce our readers to each of Harris County’s six specialty courts—what they are and how they function—a terrific idea brought to us by Houston Bar Association President David Harrell. In this issue, Anna Archer introduces us to the NGRI (Not Guilty by Reason of Insanity) Court and, over the course of the year, we will highlight the STAR Adult Drug Court, the Veterans Court, the Felony Mental Health Court, Competency Restoration, and the Responsive Interventions for Change Docket.
I also want to express my appreciation and admiration for those editors I was privileged to work with and learn from during my previous years on the board: Anietie Akpan, Anna Archer, Brooksie Bonvillain Boutet, and, most recently, liz Malpass. Finally, I want to acknowledge and thank Maggie Martin, our managing editor. She somehow keeps everything, and everyone, organized and on task and this magazine truly would not exist without her.
Nikki Morris BakerHostetler
Kyle C. Steingreaber Adams and Reese
Lane Morrison Bush Seyferth
Anna M. Archer U.S. District Court
Braden Riley Marrow & Sheppard
Sydney Huber Bateman
Horne Rota Moos
By Jennifer A. HAsley
More Changes Are Coming to the Texas Attorney Disciplinary Rules
In April 2024, members of the State Bar of Texas (“SBOT”) voted to approve new additions and amendments to the attorney disciplinary rules. The 2024 SBOT Rules Vote Referendum flows out of years of rulemaking attempts and process changes to allow Texas lawyers to utilize their privilege of self-regulation, as granted by the Texas Legislature and the Supreme Court of Texas. While there is some question about whether the SBOT is truly self-regulating given the poor voting turnout in the referendum, these newly-added and amended rules will become the new minimum ethical standards for Texas lawyers.
Texas’ Attorney Disciplinary Rules
The Texas Disciplinary Rules do more than provide ethical guidelines for lawyers; the rules provide the standard by which a lawyer will be judged in any disciplinary proceeding. The Supreme Court of Texas ultimately has authority over the Texas attorney disciplinary system, which is the creation of legislation, rules, and case law. The disciplinary process is set out in the Texas Rules of Disciplinary Procedure (“TRDP”), and the mini-
mum standards of conduct, often referred to as rules of reason, are defined by the Texas Disciplinary Rules of Professional Conduct (“TDRPC”). Although the TDRPC generally track the language in the American Bar Association Model Rules of Professional Conduct—in part because of the privilege of selfregulation—there are many differences, and lawyers practicing in Texas need to know those differences.
The Rule Modification Process
The Texas disciplinary rulemaking process has significantly changed in the last 15 years but attorney engagement in the rulemaking process is generally low. In the 2011 SBOT Referendum, seven proposed updates to the TDRPC were voted down after years of diligent work and debate by SBOT committees, the State Bar Board of Directors (the “Board”), and the Texas Supreme Court. Forty-four percent (44%) of eligible Texas attorneys voted overwhelmingly against all of the proposed rule changes in a failed referendum that required a majority approval of those voting.1 In 2017, as part of the sunset review process of the performance of
the SBOT, and in an effort to improve the process for updating the TDRPC, the Texas Legislature created the nine-member Committee on Disciplinary Rules and Referenda (“CDRR”),2 which reviews ethics reform proposals in an open process. Both the SBOT president and the Texas Supreme Court appoint members of the CDRR.
Upon proper request, the CDRR reviews (with an option to decline), drafts, and submits proposed rule changes to the Board. After a prescribed time period for publication and comment, the CDRR makes a final recommendation to the Board.3 The Board must vote for or against the rule or return the rule to the CDRR for additional consideration.4 If the Board approves the recommendation, it must petition the Supreme Court to order a vote by SBOT members.5 Once the SBOT members vote, the Supreme Court by majority vote may approve or reject a proposed disciplinary rule in its entirety, but may not approve or reject only part of the rule. If the Supreme Court does not vote on the rule on or before the 120th day after approval by SBOT members, the rule is deemed approved.6
This new process was tested when eight rules were approved in the 2021 SBOT Rules Vote and by the Supreme Court. The 2021 referendum was hailed as a success despite a significant drop in voters with just 18.50% of eligible lawyers participating.7
In the 2024 SBOT Rules Vote Referendum, the voters approved 12 more recommended changes. Many proponents of the rulemaking process anticipated an increase in voter turnout with a second run in just three years strategically planned to coincide with the SBOT annual election. Of the 113,897 ballots sent out, 21,572 (18.94%) were returned.
The SBOT presidential candidates received a combined 20,986 votes (18.50%), but the proposed rule with the highest number of total votes was counted at 17,809, which represents 15.64% of eligible voters deciding the outcome. (Depending on the rule, the approval range was 77-86%.).
One of the privileges of being a dues paying member of the SBOT is the right of selfgovernance. The State Bar Act mandates that all attorneys licensed to practice law in Texas
are members of the SBOT. While many lawyers are involved in various state and local bar committees, sections, programs, etc., all have the right to vote in rule referenda and in leadership elections, yet individual participation in these and other important decisions often falls short. As noted above, less than one-fifth of Texas lawyers voted (either way) in the 2021 referendum and even less voted in this latest referendum. Whatever the rea-
son for non-participation—whether it is apathy or a misguided belief that others are better suited to make such decisions—it is inconsistent with the concept of self-regulation. If Texas lawyers want to maintain the right to self-regulate, they need to turn up and vote on these types of issues.
The 2024 Recommended Rule Changes
General compliance with the disciplinary rules is usually a matter of course for most Texas attorneys; however, understanding the applicability of the rule to a particular fact situation is where mistakes are often made. For 2024, the recommended changes include new terms and definitions; an overhaul of three conflict of interest rules; limits on the use of information learned from
a prospective client and communications with an unrepresented person; creation of a post-conviction duty for prosecutors; new requirements for partners or supervisory lawyers; guidance regarding the remote practice of law; and guidance for termination of custodianship. The Supreme Court has until the end of August to vote on the approvals, or they are deemed approved.
• TDRPC 1.00, Terminology Rule 1.00 identifies the section with a corresponding rule number and incorporates five new definitions of the following terms: “informed consent,” “confirmed in writing,” “representation” and its variations, and “writing.” It only takes a quick review of these new definitions to come away with an understanding that Texas lawyers need to focus on keeping their clients informed and documenting those communications.
• TDRPC 1.18, Duties to Prospective Clients
This graph, created by the author, provides a visual comparison of the active members of the Texas Bar and those participating in the 2011, 2021 and 2024 Rules Referenda.
The intent of Rule 1.18 is to address bad faith consultations used to conflict out law firms by a client’s adversary. The rule defines a “good faith” “prospective client” and prohibits a lawyer from disclosing confidential information learned from the prospective client and from representing a client with interests materially adverse to the prospective client. This rule is an adaptation of the Duty of Confidentiality and Conflict of Interest: General Rule, Rules 1.05 and 1.06(b)(2), respectively, which have been previously interpreted to be applicable to both prospective and retained clients. The bottom line is that this new rule provides protections for both the lawyer and the prospective client and makes clear that a prospective client is not entitled to all the same protections as an actual client.
• TDRPC 1.08, Conflict of Interest: Prohibited Transaction
Under Rule 1.08, the prohibition on a business transaction between a lawyer and client has been extended to preclude a lawyer from “knowingly acquir[ing] an ownership, possessory, surety or other pecuniary interest adverse to a client.” The rule provides the step-by-step process necessary to document an otherwise prohibited deal that is acceptable, including obtaining written informed consent by the client, and puts the burden on the lawyer to clearly document any transactions with a client.
• TDRPC 1.09, Conflict of Interest
Former Client
Rewritten Rule 1.09 describes the duties of a lawyer who has formerly represented a client or whose present or former law firm has previously represented a client. Consistent with other amendments to the rules, consent requires written informed consent by the former client for otherwise prohibited representation of any “person in the same or a substantially related matter in which that person’s interests
are materially adverse to the interests of the former client.” While this rule is nearly identical to the ABA Model Rule, this rule is likely to be problematic in application, as it is very fact-driven. The comments address clear problems, such as contesting a contract that an attorney drafted for a former client, but battling out whether a more complex matter is “substantially related” or “materially adverse” in a grievance process might be daunting.
• TDRPC 1.10, Imputation of Conflicts of Interest: General Rule
The amended and retitled Rule 1.10 endorses the use of screening conflicted attorneys to manage conflicts of interest. This rule provides some relief for issues created by other rules, such as the new Rule 1.09. Many lawyers, particularly in larger firms, will recognize that this codifies the screening processes currently in use.
• TDRPC 3.09, Special Duties of a Prosecutor Rule 3.09 has three new sections describing a prosecutor’s (1) duty to disclose information to the defendant, defense counsel, tribunal and entity that examines and litigates claims of actual innocence; (2) duty to take action to ensure the defendant is represented by counsel; and (3) duty to cooperate with defense counsel and to report new and credible information creating a reasonable likelihood that a convicted defendant did not commit an offense for which the defendant was convicted. This type of rule weighs important rights of defendants in the justice system against imposing obligations on prosecutors. A prosecutor who acts in good faith should not be subjected to discipline under the rule, but good faith may be situational. This rule is not quite as onerous on prosecutors as the ABA Model Rule, but there is little doubt that prosecutors (and former prosecutors) will be subject to
more grievances as a result of these amendments.
• TDRPC 4.03, Dealing With unrepresented Persons Rule 4.03 now prohibits a lawyer from giving any legal advice to an unrepresented person, other than the advice to secure counsel, if the person’s interests conflict with the interests of the client. As noted in the comments, the amendment presents another highly factual determination that can be problematic for attorneys. When in doubt, tell unrepresented persons they need a lawyer and put it in writing.
• TDRPC 5.01, Responsibilities of a Partner or Supervising lawyer
Amended Rule 5.01 requires a lawyer with managerial authority in a law firm to make reasonable efforts to ensure that the firm has measures in effect to reasonably assure that all lawyers in the firm comply with the disciplinary rules and that lawyers under the manager’s supervision comply with the rules. Unlike the ABA Model Rule, simply being a partner in a law firm does not impose an obligation to ensure compliance with the disciplinary rules within a firm; however, lawyer managers, such as managing partners or partners-in-charge, need to focus on these amendments.
• TDRPC 5.05, unauthorized Practice of law; Remote Practice
Amended and retitled Rule 5.05 addresses a Texas lawyer’s remote practice of law from outside of Texas and the remote practice of law by a lawyer not licensed in Texas from a location in Texas. This amendment clarifies what is and is not allowed for multi-jurisdictional practitioners.
• TDRPC 8.05, Jurisdiction
Amended Rule 8.05 clarifies that a lawyer admitted to practice in Texas is subject to the disciplinary authority of Texas, regardless of where the
lawyer’s conduct occurs, and a lawyer not admitted in Texas is also subject to the disciplinary authority of Texas if the lawyer provides or offers to provide any legal services in Texas. The rule addresses the increasing prominence of multi-jurisdictional practice and makes clear the same conduct may be the subject of discipline in multiple jurisdictions.
• TDRPC 8.06, Choice of law
New Rule 8.06 states that the disciplinary rules to be applied for conduct in connection with a matter pending before a tribunal are the rules of the jurisdiction in which the tribunal sits, and for other conduct, the disciplinary rules to be applied are the rules of the jurisdiction in which the lawyer’s conduct occurred or where the predominant effect of the conduct occurred. This rule goes hand in hand with Rule 8.05 and ensures the first fight in any multi-jurisdictional disciplinary case will concern which rules should be applied.
•
TRDP 13.05, Termination of Custodianship
The 2021 referendum added TRDP 13.04, which authorized a lawyer to voluntarily designate a custodian attorney to assist with the designating attorney’s cessation of practice. The addition of TRDP 13.05 provides the three ways a custodianship terminates. This is not a disciplinary rule, but rather a procedural rule put here because there is no other good place to put it.
Conclusion
What will be the real impact of these rule changes? The number of active attorneys in Texas between 2014 and 2024 increased from 94,804 to 113,771 (16.67%), and the number and complexity of the TDRPC has also increased significantly. Yet, the number of annual sanctions 8 entered against Texas attorneys during about the same 10year time period remained flat, 265 and 258 (down .02%).9 This means there is a
significant decrease in the number of sanctions per attorney over time. Do more rules make lawyers behave better, or are there other influences that have improved the practice of law? Some may argue that modernization and amendments of the TDPRC have positively guided attorneys, resulting in less sanctions per attorney. Others may argue that advances in technology not only improve the practice of law, but also provide instant access to information for lawyers and about lawyers. For example, lawyers concerned about reputation in an online world may make more of an effort to avoid or remediate their mistakes to avoid bad publicity. The more skeptical might suggest the number of sanctions is more a result of the Chief Disciplinary Counsel’s budget than anything else. Either way, it will be interesting to watch in the coming years whether these latest amendments have a real impact on attorney discipline and, in particular, the number of sanctions issued, and whether lawyers will realize that participation is the key to self-regulation.
Endnotes
Jennifer A. Hasley is a prominent ethics and legal malpractice attorney. She is a former president of the HBA and currently serves on the Houston Bar Foundation board.
1. For the six proposed categories of changes, the “no” votes ranged from 72-81% of the 44% of eligible Texas attorneys who voted. State Bar of Texas, State Bar of Texas Referendum 2011, Texas Disciplinary Rules of Professional Conduct, Results, TEX. B.J. vol. 74, No. 3, 189, 195 (2011).
2. TEX. GOV’T CODE, State Bar Act § 81.0872.
3. Committee on Disciplinary Rules and Referenda, Operating Rules and Procedures, available at https://www.texasbar.com/ Content/NavigationMenu/CDRR/Operating_Rules_and_ Procedures/OperatingRulesProcedures.pdf (2021).
4. TEX. GOV’T CODE § 81.0877, Approval of Proposed Disciplinary Rule by Board of Directors.
5. Id. § 81.0878, Referendum Vote by State Bar Members.
6. Id. § 81.0879, Supreme Court Approval or Rejection.
7. In 2021, 19,823 or 18.5% of the eligible lawyers voted with approvals ranging from 78-94% in favor of the amendments. State Bar of Texas, Annual Report 2020-2021, 1, 5 (2021) (total votes) (2021); see also State Bar of Texas, Results of the State Bar of Texas Rules Vote 2021, March 4, 2021 Total Results, TEX. B.J., Vol. 84, No. 4, 277, 290 (2021) (per rule).
8. Sanctions include a private and public reprimands, probations, suspensions, indefinite disability suspension, resignations, and disbarments.
9. Comparing 2014 to 2023, as the 2023-2024 disciplinary statistics are not yet published.
By AmAn K. GeBru
Is There a Legal Remedy Against Cultural Appropriation?
Katy Perry stirred up controversy when she dressed up as a geisha for her performance of “Unconditionally” at the 2013 American Music Awards.1 Some viewers criticized her kimono and overall attire as an appropriation of Japanese culture and accused her of perpetuating stereotypes of Japanese women as “unconditionally” submissive partners.2 Others saw it positively, as a celebrity entertainer paying homage to a culture she admires.3 Fashion houses also come up frequently in these incidents. For instance, Victoria’s Secret found itself in hot water for having bikini-wearing models walk the runway wearing Native American headdresses, which are revered symbols in many communities.4 Debates about cultural appropriation have occurred for at least a few decades, among layperson conversations, marketing team deliberations, news reports, and academic research. The dispute extends to whether cultural appropriation is necessarily always harmful and whether anything should be done about it. Despite the passionate discussions that many engage in over a specific incident, there is confusion about how to distinguish between appropriation and appreciation. Cultural appropriation feels like one of those things about which one would say, “I know it
when I see it.”
Despite lacking an agreed-upon definition, key elements are present in most cultural appropriation incidents. Cultural appropriation involves instances where someone (usually belonging to a dominant culture) uses a cultural symbol from a community they do not identify with (usually a minority culture) without consent from the source community and without an understanding of the symbol’s value to the source community.5 Frequently, members of source communities levy accusations of cultural appropriation because the use of their symbol harms them in some way.
The type of harm caused by cultural appropriation may vary depending on the context.6 One of the common accusations is that the appropriation is offensive. As in the Katy Perry example, the offense may be caused by stereotyping cultures. At times, the offensiveness emanates from the symbol being sacred to members of the source community. However, the harm could also be in the form of loss of economic opportunity, where an outsider misrepresents their products as “authentic,” thereby denying the community of potential economic gain.7 This type of harm exists when the source community is interested in commercializing the cultural artifact. Another type of harm is the erosion of the identity where the appropriator distorts the identity of the source community to the outside world. This distortion could relate to the cultural symbol itself and not necessarily to the community.
The concept of cultural appropriation raises intractable questions of identity and group membership. What unit of identity should be used: tribe, nation, region, race, gender? How do we know the person using the symbol is an outsider to the source community? Who gets to decide on membership in the social group, and how is that decision made? Could the use of a cultural symbol by a member of the source community ever amount to an appropriation? If consent is to be sought, who is allowed to give it? While numerous scholars continue to offer responses to these questions,
many of them lack a decisive answer. For the sake of brevity, this essay focuses on a few specific examples, while noting that members of many communities also find cultural appropriation problematic. While the concept is debated in the public’s mind, accusations of cultural appropriation seem to be finding their way into courts, albeit with little success. Cultural appropriation was key to the theory of liability in at least two recent court cases. The first case arose in late 2020 and involved a disbanded girl band named OMG Girlz, who accused MGA Entertainment of making dolls that resembled the three members of the band.8 The case mainly dealt with trademark, trade dress, right of publicity, and misappropriation claims. However, OMG Girlz later added the claim of cultural appropriation, arguing that MGA Entertainment engaged in cultural appropriation of content developed by black creators. They cited the close resemblance of the color and style of dolls to that of the band members’ performance attire. This
seems to be the first time cultural appropriation was mentioned as a legal claim in a United States court.9 The court dismissed the cultural appropriation claim early on, stating that it was immaterial to the claimant’s case. Therefore, we do not have a robust understanding of the claim’s status in United States courts.
The second case involved a lawsuit brought by Sealaska Heritage Institute against the Dallas-based luxury retailer Neiman Marcus.10 Priced at $2,500, Neiman Marcus was selling its so-called “Ravenstail Knitted Coat,” which resembled the “Discovering the Angles of an Electrified Heart” design created by Clarisa Rizal, a prominent Alaska Native weaver.11 After Rizal passed away, her heirs registered and copyrighted the award-winning design in 2019.12 Several individuals contacted Rizal’s daughter with links to what they concluded were Neiman Marcus’ appropriations of Rizal’s award-winning design. A vital part of the accusation was that Neiman Marcus culturally appropriated a unique and
FAST.
famous design. Since United States courts have not recognized a claim against cultural appropriation, however, the lawsuit was based on a violation of the federal Indian Arts and Crafts Act (“IACA”), copyright infringement, and false designation of origin.13 Though Neiman Marcus filed for bankruptcy, the claimant has vowed to pursue the case.
Since neither dispute resulted in a detailed ruling from the bench, it remains unclear how courts will deal with cultural appropriation claims in the future. However, the fact that these two recent cases made claims of cultural appropriation suggests that cultural appropriation may be in the early stages of being transformed from a subject of public debate into a theory of liability.
These cases also come against the backdrop of a similar dispute between the Navajo Nation and Urban Outfitters. Although the Navajo Nation did not list cultural appropriation as a claim, representatives painted the dispute as cul-
tural appropriation, and the facts leading up to the dispute resemble the examples mentioned above. In the lawsuit, the Navajo Nation argued Urban Outfitters’ use of the “Navajo” term in relation to products it was selling amounted to trademark infringement, among other things. The products included what Urban Outfitters labeled a Navajo hipster panty, a peace treaty feather necklace, and a Navajo print flask.14 The dispute was settled for an undisclosed amount, with Urban Outfitters promising to work with the Navajo Nation on future products.
The unique aspect of this case is that, since 1943, the Navajo Nation has held a trademark registration for the term “Navajo,” which made it easy to bring a trademark infringement action when Urban Outfitters used the name without authorization. Many other cultural appropriation disputes do not involve officially recognized intellectual property rights owned by the source community. Given the popularity of the lawsuit, some future claimants may have learned to use the intellectual property system to defend against cultural appropriation.
In addition to these developments in United States courts, several nations have enacted legislation dealing with cultural appropriation in some form.15 For instance, recent federal legislation in Mexico created a legal claim against cultural appropriation for indigenous and Afro-Mexican peoples.16 Penalties include fines and jail time for what the act defines as misappropriation. The new law adopts novel approaches, including the recognition of communal ownership of cultural heritage and a proposal to create a National Registry of Cultural Heritage.17 The legislation is still in its early stages; thus, more time is needed before its effects can be adequately assessed. However, experts have already flagged the vague language as a significant shortcoming. Since Mexico is the United States’ third-largest trading partner, accounting for more than 14% of total trade, this new legislation may impact various aspects of the trade between the two countries.
Discussions of cultural appropriation are not limited to domestic jurisdictions. One of the most advanced conversations on cultural appropriation is taking place at the World Intellectual Property Organization (“WIPO”). Since 2001, one of WIPO’s committees—the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore—has been deliberating on three draft documents that advocates hope will turn into binding international treaties. The document dealing with cultural appropriation focuses on the intersection between intellectual property law and traditional cultural expressions.18 The other two documents deal with genetic resources and traditional knowledge.
The draft document dealing with genetic resources was the subject of a diplomatic conference, and resulted in a treaty approved by the WIPO general assembly on May 24, 2024.19 The WIPO Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge creates international law requiring patent applicants who rely on genetic resources and traditional knowledge from indigenous communities to disclose the source or origin of such information.20 This new law on the sister topic of genetic resources and traditional knowledge may also result in the conversion of the draft instrument on traditional cultural expression into a treaty. If the current version of this draft instrument becomes a treaty, then there will be an international legal right against some forms of cultural appropriation. However, the deliberations are unpredictable and timeconsuming; thus, such a legal right might not get adopted.
Given these national and international developments, there is a moderate chance claimants will ask courts in the United States to rule on a claim against cultural appropriation soon. Until we get such a ruling, however, there may be two promising avenues for claimants. For the first option to work, the cultural symbols giving rise to the lawsuit must be a subject matter of intellectual property laws. In that case, using recognized rights under such laws may of-
fer the most predictable outcome for claimants. Many cultural appropriation subjects could be part of a trademark, trade dress, or copyright infringement claim. Beyond these core claims, doctrines such as misappropriation or false designation of origin may also provide some redress. However, these theories of law have specific requirements that must be met. Unfortunately for claimants, many cultural appropriation disputes do not meet one or more of these requirements. For instance, the claimant’s use of their symbols in commerce is a core part of a trademark claim. Since many source communities may not have evidence to support sustained and public use of their symbols in commerce, their claims may be weak. Additionally, many of the cultural symbols that are subject to cultural appropriation disputes are sacred to the source community, which does not allow their commercialization. There are also challenges in identifying owners of collective goodwill who could satisfy standing requirements for many of these claims.
Second, claimants could rely on the IACA, in place since 1990, which enables members of Native American communities recognized at the federal or state levels to bring legal action to stop misrepresentation of their art in the marketing of goods or services. However, there are few legal cases citing violations of the act. Commentators cite many challenges to enforcement, ranging from lack of proper investigation to the light penalties imposed in the few instances in which infringement was found.21
The options outlined above highlight the minimal instances in which cultural appropriation claims could be made in a court of law. For instance, the IACA only applies to members of officially recognized tribes, excluding all other social groups in the United States. Further, using intellectual property or adjacent legislation is limited to the commercial context, which excludes a significant portion of cultural appropriation incidents. The strong protections for freedom of expression enshrined in the Constitution mean that claimants
could only bring action against those accused of cultural appropriation in limited circumstances, such as commercial misappropriation.
Endnotes
Aman K. Gebru is a law professor at the University of Houston Law Center.
1. Patricia Park, Why all the Fuss over Katy Perry’s Geisha Performance at the AMAs?, THE GUARDIAN (November 26, 2013), available at https://www.theguardian.com/commentisfree/ 2013/nov/26/katy-perry-geisha-performance-american-music-awards-fuss.
2. Nolan Feeney, Katy Perry’s ‘Geisha-Style’ Performance Needs to Be Called Out, THE ATLANTIC (November 25, 2013), available at https://www.theatlantic.com/entertainment/archive/2013/11/katy-perrys-geisha-style-performance-needsto-be-called-out/281805/.
3. Danika Fears, Katy Perry’s Geisha-inspired AMAs Performance Stirs Controversy, TODAY.COM (November 25, 2013), available at https://www.today.com/style/katy-perrys-geisha-inspiredamas-performance-stirs-controversy-2d11650791.
4. Avery Matera, 5 Times Victoria’s Secret Was Accused of Cultural Appropriation: From Chinese Dragons to Native Headdresses, TEEN VOGUE, (November 7, 2018).
5. Cultural Appropriation, “[T]he act of taking or using things
from a culture that is not your own, especially without showing that you understand or respect this culture,” CAMBRIDGE DICTIONARY, available at https://dictionary.cambridge.org/us/dictionary/english/cultural-appropriation.
6. For a detailed sociological analysis of the harms cultural appropriations cause, see BRUCE ZIFF AND PRATIMA V. RAO, Borrowed Power: Introduction to Cultural Appropriation: A Framework for Analysis, in BORROWED POWER: ESSAYS ON CULTURAL APPROPRIATION (Rutgers University Press, 1997).
7. Authenticity is a highly controversial concept given the complicated changes cultural symbols undergo to arrive in their current form. For an in-depth analysis of cultural authenticity, see ANTHONY KWAME APPIAH, COSMOPOLITANISM: ETHICS IN A WORLD OF STRANGERS (2007).
8. MGA Ent., Inc. v. Harris, No. CV2011548JVSAGRX, 2021 WL 4732923 (C.D. Cal. Aug. 27, 2021).
9. Riddhi Setty, OMG Girls Case Sidesteps Cultural Appropriation’s Day in Court, BLOOMBERG LAW (May 9, 2023), available at https://news.bloomberglaw.com/ip-law/omg-girlz-casesidesteps-cultural-appropriations-day-in-court.
10. Sealaska Heritage Inst. Inc. v. Neiman Marcus Grp. LTD, LLC, No. 1:20-cv-00002-SLG (D. Alaska filed Apr. 20, 2020).
11. Elizabeth Jenkins, Lawsuit over the cultural appropriation of Native designs proceeds, despite Neiman Marcus bankruptcy, ALASKA PUBLIC MEDIA (PBS, NPR) (July 1, 2020), available at https://alaskapublic.org/2020/07/01/lawsuit-overcultural-appropriation-of-native-designs-proceeds-despiteneiman-marcus-bankrupty/.
12. US Copyright Registration Number: VAu001380817 / 201909-06.
13. Indian Arts and Crafts Act of 1990, Pub. L. No. 101-644, 104 Stat. 4662 (1990). The IACA is a truth-in-advertising law designed to penalize misrepresentations that falsely suggest that a product is Native American-produced.
14. Nancy Woolf, Urban Outfitters settles with Navajo Nation after illegally using tribe’s name, THE GUARDIAN (November 18, 2016), available at https://www.theguardian.com/
15. WIPO has created a database of national laws on traditional cultural expressions, among other subjects. See Traditional Knowledge, Traditional Cultural Expressions & Genetic Resources Laws, available at https://www.wipo.int/tk/en/ databases/tklaws/.
16. The Federal Law for the Protection of the Cultural Heritage of Indigenous and Afro-Mexican Peoples and Communities (2022).
17. Chantal Flores, Mexico’s cultural appropriation ban is off to a messy start, THE VERGE (February 12, 2022), available at https://www.theverge.com/22924327/mexico-cultural-appropriation-law-indigenous-and-afro-mexican communities.
18. World Intellectual Property Organization, The Protection of Traditional Cultural Expression: Draft Articles, WIPO/ GRTKF/IC/47/5 (March 14, 2023).
19. Press Release, World Intellectual Property Organization, WIPO Member States Adopt Historic New Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (PR/2024/919, May 24, 2024), available at https:// www.wipo.int/pressroom/en/articles/2024/article_0007.html.
20. The WIPO Genetic Resources Treaty already has more than the 15 signatories it needs to enter into force. According to Article 17, it will enter into force three months after 15 member states have signed it. Press Release, World Intellectual Property Organization, WIPO Member States Adopt Historic New Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (May 24, 2024), available at https://www.wipo.int/pressroom/en/articles/2024/article_ 0007.html. See also WIPO General Assembly, Report on the Outcome of the Diplomatic Conference to Conclude an International Legal Instrument Relating to Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources.
21. William J Hapiuk Jr., Of Kitsch and Kachinas: A Critical Analysis of the Indian Arts and Crafts Act of 1990, 53 STAN. L. REV., No. 4, at 1009-1075 (2001).
By JAclyn i. BArBosA
Andrew Gratz Is on a Mission to Turn Lawyers Into Leaders
Alittle over two years ago, Andrew Gratz was attending a corporate executive development program when a crucial question popped into his head—“Are lawyers prepared to be effective leaders?” To answer this question, Gratz started reflecting on his 20-plus year legal career of leading teams responsible for global businesses, joint ventures, compliance issues, corporate governance initiatives, and multi-billion dollar transactions. As he thought about these experiences, working with, and for, other lawyers, Gratz had an epiphany: leadership development, collaboration, and teambuilding skills are conspicuously absent within the legal profession.
Eager to address this deficit, Gratz took action. He penned a series of articles titled “Lawyers as Leaders” for Corporate Counsel magazine.1 These articles championed foundational leadership principles gleaned from his MBA, corporate, and government affairs experience and emphasized the importance of aligning with an organization’s long-term goals, taking ownership, and building and developing cohesive, goal-oriented teams.
The positive reception to Gratz’s writings and thought leadership prompted him to explore further avenues for change. His focus turned to Houston’s law schools, pivotal institutions shaping future legal leaders.
While these institutions excel in imparting legal doctrines and courtroom tactics through rigorous, often adversarial teaching methods, Gratz questioned whether they adequately equip students with collaborative skills crucial for effective legal practice and societal impact.
Gratz believes the absence of training and development at the law school level is even more problematic given the need for leadership skills as lawyers advance in their careers. Lawyers have the power to influence, advocate, and drive change. As such, lawyers urgently need to possess the necessary decision making and emotional intelligence to navigate the increasingly complex and ever-changing professional environment in both the public and private sectors. Moreover, lawyers are expected to lead and manage large teams of varying skills and expertise, from trial teams to transaction matters, as they become more senior. Some succeed when asked to take on this role, and others fail because they may not have been equipped with the necessary skills to excel at these responsibilities.
To address these concerns, Gratz developed a course, “Lawyers as Leaders,” for his alma mater, the University of Houston Law Center. In developing the course, Gratz interviewed managing partners from numerous AmLaw 50 firms, global business leaders, and general counsels, who confirmed Gratz’s assertion that the legal profession has a leadership gap that must be closed. While being incredibly generous with their time, each of these legal leaders also gave Gratz suggestions on the topics and issues that should be discussed and highlighted in his class. With this feedback in mind, Gratz designed a curriculum with assignments focused on leadership development, intensive discussion-based learning, and guest speakers from Houston’s legal and business communities.2
Gratz launched the inaugural class in Spring 2023, and he was asked to return to teach the course in Spring 2024. The class’s impact has been immediate and profound, with numerous students reporting that they immediately began implementing into their own lives the ideas and skills learned
in the class, which include a willingness to take more risks and “learning how to be comfortable in being uncomfortable.” The course has also attracted attention for its pioneering approach to integrating leadership training into the standard law school curriculum. With an emphasis on practical leadership development, the course empowers aspiring lawyers to navigate the intricate and dynamic professional landscape in both the public and private sectors.3
From Law Schools to the Entire Legal Community
Building on the success of Gratz’s “Lawyers as Leaders” class, the University of Houston Law Center recently started an Initiative on Lawyers as Leaders partly based on Gratz’s thought leadership. According to its website, the initiative “envisions leadership as a lifelong journey, and . . . intends to enhance students’ study and practice of leadership, and promote the study of what it means to be an effective and productive leader in the legal profession.” Gratz intends for the initiative to host workshops, organizations, discussion groups, and other forums to build and cultivate leadership among law students and the entire Houston legal community.
Indeed, beyond law schools, Gratz believes law firms and in-house legal departments must prioritize the implementation of leadership development programs. Why? Because these programs can lead to increased client satisfaction, improved employee retention, and enhanced reputation. Leadership skills are a necessity in today’s complex legal landscape, which emphasizes the urgency and importance of such initiatives. While client needs and billable hour
requirements very often seem to take priority over training, law firms and in-house legal departments must act intentionally to prioritize leadership training and invest in their lawyers’ professional development.
Leadership Is a Journey, Not a Destination
Gratz believes the legal profession stands to greatly benefit from a stronger emphasis on leadership development. Integrating leadership training into law school curricula and prioritizing leadership development programs in law firms and in-house legal departments can ensure future lawyers are not only well-versed in legal expertise but also well-equipped with crucial leadership skills necessary to navigate the complex and ever-changing professional landscape. This proactive approach will not only enhance the professional capabilities of lawyers but also empower them to make meaningful contributions to their communities, thereby fostering a more ethical and socially responsible legal profession
Jaclyn I. Barbosa is a Houston-based solo practitioner providing legal expertise in all areas of business and consumer law. She currently serves as an editorial board member of The Houston Lawyer
Endnotes
1. Andrew Gratz, Lawyers as Leaders: 6 Ways to Be the Calm in the Storm, LAW.COM’S CORPORATE COUNSEL, (Jan. 24, 2022), https://www.law.com/corpcounsel/2022/01/24/6-ways-to-bethe-calm-in-the-storm/; Andrew Gratz, Lawyers as Leaders: Building the Team, LAW.COM’S CORPORATE COUNSEL (Feb. 09, 2022), https://www.law.com/corpcounsel/2022/02/09/lawyers-asleaders-building-the-team/; Andrew Gratz, Lawyers as Leaders: 4 Steps to Take to Develop Your Team, LAW.COM’S CORPORATE COUNSEL (Mar. 03, 2022), https://www.law.com/corpcounsel/ 2022/03/03/lawyers-as-leaders-4-steps-to-take-to-develop-yourteam/; Andrew Gratz, Lawyers as Leaders: Three Steps to Improving Performance, LAW.COM’S CORPORATE COUNSEL (Mar. 24, 2022), https://www.law.com/corpcounsel/2022/03/24/lawyersas-leaders-three-steps-to-improving-performance/.
2. LAWYERS AS LEADERS: SPRING 2024 SYLLABUS, https:// www.law.uh.edu/assignments/spring2024/22930.pdf (last accessed July 25, 2024).
3. See Meghan Hemingway, Andrew Gratz on the Need for Lawyers to Become Leaders, LAWDRAGON (Apr. 8, 2024), https:// www.lawdragon.com/lawyer-limelights/2024-04-08-andrewgratz-on-the-need-for-lawyers-to-become-leaders; Will Grant, Andrew Gratz is Transforming Lawyers into Leaders, MODERN COUNSEL, (Apr. 30, 2024), https://modern-counsel.com/2024/ andrew-gratz-lyondellbasell-2/#:~:text=The%20University%20 of%20Houston%20Law%20Center%20established%20the%20 Initiative%20on,in%20the%20practice%20of%20law.
Andrew Gratz, associate general counsel at LyondellBasell and adjunct professor at the University of Houston Law Center.
By rAcHel PowitzKy steely
PURPoSEFUL INCLUSIoN:
The Key to Growing Female Leadership in the Courtroom
Last year, I posted a picture of our trial team on LinkedIn and asked my network if they had ever seen an all-female trial team in the courtroom. The responses were amazing and gratifying. For months, I had inquiries of “how” and “why” I put together an all-female trial team. There were many reasons, but the most obvious was that I had a team of talented litigators who were willing to work around the clock to prevail.
Over the last 15 years, I have worked with many trial teams made up of mostly female lawyers. For a long time, we drew the attention of judges, staff, and juries. One trial was dubbed the “boys vs. girls” trial, and in another, the judge commented that he had never seen a courtroom with only women. Slowly, but surely, these outings are becoming more commonplace, and more women are leading the efforts at trial.
dominated by men, with women often relegated to background or supporting roles. Despite women now making up the majority of law school graduates according to the American Bar Association’s (“ABA”) 2023 Profile of the Legal Profession,1 the courtroom remains one of several final frontiers where the gender gap is starkly evident. In a 2021 report issued by the ABA’s Commission on Women in the Profession, research confirmed a disturbing gender gap among elite trial attorneys.2 This particular report focused on records from the U.S. Court of Appeals for the Seventh Circuit, although the report suggests the gender gap could be even worse in other courts.3
Another remaining frontier is women in law firm leadership roles. The National Association for Law Placement’s 2023 Report on Diversity in U.S. Law Firms found that, although women now constitute the majority of law firm associates at 50.3%, the representation of women among equity partners at firms is still only 23.7%.4
‘‘ These disparities are not due to a lack of talent or ambition among female lawyers, but rather systemic barriers and biases.”
The legal profession has long been
These disparities are not due to a lack of talent or ambition among female lawyers, but rather systemic barriers and biases. It is crucial to recognize the ongoing challenges that women face in the legal profession, just as it is to appreciate the transformative impact diverse perspectives bring to a trial team, firm, and clients.
In my opinion, three important factors play a role in growing the next generation of female lead trial attorneys:
1. Clients promoting and supporting female lead lawyers
Most publicly-traded companies and large corporations insist on diversity of trial counsel, but many
do not focus on who leads the trial teams. Having the client support and encourage diverse attorneys playing an active role at trial provides significant leverage for partners to rely on young female attorneys at trial. Luckily, I work with clients who promote and insist on purposeful inclusion.
2. Active participation in hotly contested and contentious litigation
same as others does not help prepare trial lawyers. Female lawyers need
Female lawyers need to experience hotly contested and contentious litigation, which can turn dirty and unfair and in which their gender may be used against them. It still happens. Just last year, our trial team had several sexist remarks hurled against them. Female lawyers are still sometimes mistaken for staff or the court reporter. Pretending that female lawyers will always be treated the
to know how to respond and move forward in a professional and effective manner in the face of contentious litigation.
3. Firms supporting female-led trial teams and championing female leadership
One of the most effective mechanisms to retain and train female trial lawyers is to demonstrate that firms
support female-led trial teams and female leadership. The policies, practices, and culture within law firms can create obstacles for women, potentially contributing to attrition. Though the reasons for women leaving law firms are diverse, and not entirely under a firm’s control, it is important firms use the considerable influence they have to help narrow the gender gap.
Visibility is vital. I lateraled as an associate to Gardere Wynne Sewell LLP, which later merged with Foley & Lardner LLP, because it was one of the few large Texas firms that had female partners with children leading trial and corporate teams. The presence of female partners who balance successful trial careers with familial responsibilities serves as a powerful testament to the professional and personal opportunities available to aspiring female litiga-
tors. Women need to see that it is possible to maintain a family and an active practice, if they choose. And they need guidance on how to juggle a busy trial schedule with young children, aging parents, and other life responsibilities.
Authenticity in the Courtroom
Beyond addressing and promoting these three factors, we must emphasize and embrace authenticity. Early in my career, female trial lawyers were expected to be abrasive, which made me uncomfortable. I watched men avoid female trial attorneys because of the assumed hostility. I soon instead learned how valuable authenticity was in the courtroom, and now as a partner and vice chair of the Labor & Employment Practice Group at Foley, in my mentorship of younger attorneys, particularly women, I try to teach them that trial attorneys need to be focused on one thing—winning. The bullying, sexist, and borderline unethical behavior we still occasionally encounter from opposing counsel as female trial attorneys is to be navigated, but we cannot lessen our own standards to stoop to their level.
As a seasoned advocate and mentor, my own journey reflects a commitment to reshaping the landscape of trial advocacy. By championing young women in obtaining trial experience early in their careers, I seek to dismantle barriers and pave the way for future generations of female leaders in the legal profession. Emphasizing the value of authenticity and ethical integrity in courtroom conduct, I strive to instill confidence in young attorneys, empowering them to navigate challenges with grace and professionalism.
Looking Forward
Though much has changed in the last 30 years, there are still precious few experienced women litigators with large books of business at major firms. One of my missions is to help change that. Looking forward, the path to achieving gender parity in trial leadership requires
sustained efforts in promoting diversity, confronting biases, and fostering inclusive environments. Women have a difficult path from law school to law firm leadership, in particular trial team leadership. Firms, clients, and attorneys themselves all have a role to play to address the attrition and give more women the experience and opportunity they need to step into leadership roles.
As I have seen many talented women walk away from large firms, I advocate at Foley for getting young women trial experience, as that experience offers a path to reach the highest levels of the profession. I emphasize to my clients the value of having diverse voices advocating on their behalf. Bringing even more talented women into the fold will require purposeful inclusion, and I know that harnessing the collective strengths of diverse perspectives will not only enrich leading trial teams like my own, but also advance equity across the legal profession.
Rachel Powitzky Steely is a leading trial lawyer who helps companies protect their technology, confidential information and workforces, and assists executives during career transitions that may lead to litigation. Frequently recognized for her legal achievements, both in Texas and nationally, Rachel’s extensive trial experience includes employment, trade secrets, restrictive covenants, and commercial litigation.
Endnotes
1. ABA Profile of the Legal Profession 2023: Women, available at https://www.abalegalprofile.com/women.html (last visited June 27, 2024).
2. Amy J. St. Eve and Jaime B. Luguri, How Unappealing: An Empirical Analysis of the Gender Gap among Appellate Attorneys, ABA Commission on Women in the Profession (2021), available at https://www.americanbar.org/ content/dam/aba/administrative/women/how-unappealing-f_1.pdf.
3. Id. at 6.
4. NALP 2023 Report on Diversity in U.S. Law Firms, at 5, available at https://www.nalp.org/uploads/Research/2 023NALPReportonDiversityFinal.pdf (last visited June 27, 2024).
Annual Harvest Celebration
With over 900 lawyers in the United States, Asia, Europe and the Middle East, Hunton Andrews Kurth LLP serves clients across a broad range of complex transactional, litigation and regulatory matters. We are known for our strength in the energy, financial services, real estate, and retail and consumer products industries, as well as our considerable experience in more than 100 distinct areas of practice, including privacy and cybersecurity, intellectual property, environmental, and mergers and acquisitions. Our full-service litigation practice is one of the largest in the country, with particular depth in key litigation markets such as Texas, California, Florida and the Mid-Atlantic.
By AnnA ArcHer
HoPE FoR THE LoST AND FoRGoTTEN:
Houston’s Not Guilty by Reason of Insanity Court
at the time—must undergo a mental health evaluation. If the parties agree the person is insane after this evaluation, no trial is necessary. Prior to deciding to agree to an NGRI judgment, prosecutors consider factors like the veracity of the report, the nature of the offense, the complainant’s wishes, and the potential outcome. Michele Oncken, division chief of the Mental Health and Child Fatality Division for the Harris County District Attorney’s Office, notes that what is important “is treatment and safety for the community based on getting this person better.”3 If there is no agreement on insanity, a trial will proceed before a judge or jury in the NGRI Court.
“ It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.1”
“ It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.1”
One of six specialty courts in Harris County, the Not Guilty by Reason of Insanity (NGRI) Specialty Court is an arm of the Competency Restoration (CR) Court, and the missions of the two courts go hand in hand. Both courts benefit from the expertise of judges Mark Ellis, Lori Gray, and Natalia Cornelio, as well as the various mental health experts and lawyers who regularly practice in the courts. Criminal cases involving severe mental health issues can be extremely time consuming. It is therefore extremely important that the judges, lawyers, and other professionals dealing with these cases understand the system.2
Defendants claiming they are NGRI— an affirmative defense where the defendant admits to the offense but claims a lack of understanding that it was wrong
According to Paul Morgan, a boardcertified criminal defense attorney, the relationship between the defense lawyers and prosecutors in the NGRI Court is collaborative, and it is a rehabilitative community. They all want the defendants rehabilitated, on proper medications, and re-integrated back into society. A large portion of the non-violent cases involve people who are disenfranchised or experiencing homelessness, and Morgan believes that it is good to move these defendants through the system efficiently to increase their compliance with medications and decrease criminality.4
If a violent offender is found NGRI, the offender is placed on a waiting list and remains in jail until a spot is available at the maximum security unit at Vernon State Hospital (VSH). Once admitted to VSH, the patient’s case will be reviewed once a year by a Dangerness Review Board (DRB) comprised of mental health professionals to determine if the patient is a danger to him or herself or others. The DRB recommends either that the patient be kept in the hospital or be released.5 If the DRB recommends release, the finding is sent to the NGRI judge and the lawyers on the case. If there is disagreement about the release, the NGRI judge will decide if the patient should be released after a hearing.6 Released patients are supervised by the Harris Center for Mental Health and IDD
(“HCMH”), and they remain under the supervision of the court for the window of time on the high end of the punishment range.7
Morgan notes that defendants in the NGRI Court are often severely mentally ill and have been untreated for years. Morgan is passionate about these cases that involve “people [who] are lost and forgotten,” noting that almost every defendant who ends up in the NGRI Court has a horrible backstory. Morgan has dedicated his career to helping these individuals find their ways to a more stable life so they are able to make positive contributions to our society.8
Morgan points out that prosecutors in some other Texas counties may not understand mental illness, or see it as an obstacle, cop out, or waste of time. But in Harris County, the people who regularly practice in or work at the NGRI Court “take mental illness seriously and treat the defendants with some modicum of dignity.”9 Harris County is fortunate to have a group of prosecutors, defense attorneys, mental health professionals, and judges who work together to tackle cases involving defendants who have severe mental health issues.
Endnotes
Anna Archer is a member of The Houston Lawyer editorial board and hosts Behind the Lines: The Houston Lawyer Podcast
1. TEX. PENAL CODE ANN. § 8.01(a). “The term ‘mental disease or defect’ does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” Id. § 8.01(b).
2. Interview with Paul Morgan (June 15, 2024) (on file with author).
3. See Michele Oncken et al., How to Navigate the Mental Health Dockets and Courts in Harris County (Jan. 13, 2023) (transcript available in HBA CLE Library).
4. Morgan, supra note 2.
5. Id
6. Id
7. HCMH provides significant support in the NGRI Court. See Oncken, supra note 3; see also The Harris Center for Mental Health and IDD, theharriscenter.org (last visited July 14, 2024).
8. Morgan, supra note 2.
9. Id
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Skadden, Arps, Slate, Meagher & Flom LLP
South Texas College of Law Houston
University of Houston Law Center
Womble Bond Dickinson (US) LLP
Crystal Sponsors
Anna Archer
Sharon M. Beausoleil
Brent & Christy Benoit
Susan L. Bickley & Bob Scott
Bragg Law PC
Hon. Harvey Brown
The Buck Family Fund
Hon. Brett & Erin Busby
Bush Seyferth PLLC
BWA Video, Inc.
Cozen O’Connor
David Toy Law Firm
Mindy & Joshua Davidson
Wendy & Alistair Dawson
Amy Catherine Dinn
Emma Doineau
Eric & Kami D’Olive
Kaylan & John Dunn
Ali Foyt
Lynn & Stewart W. Gagnon
Roland Garcia
Hon. Joseph “Tad” Halbach
Harris Hoss Mediations & Arbitrations
Gregory & Jennifer A. Hasley
HBA Juvenile Law Section
Jim & Cisselon Nichols Hurd
IMS Legal Strategies | Juris Medicus
Shae Keefe & Mark Jacobs
Sara & Jason Keith
Daniella D. Landers
James Leader
Elizabeth & Russell Lewis
Peter Lowy & Gabriela Boersner
Tim & Ginnie McConn
MehaffyWeber PC
Hon. Margaret Mirabal
Hon. Daryl L. Moore
Greg & Jennifer Moore
Nathan Sommers Gibson Dillon PC
Stephanie Noble
Christopher Northcutt
Jeff & Melissa Oldham
Olson & Olson, LLP
Connie H. Pfeiffer
Hon. Margaret Poissant
Quadros Migl & Crosby PLLC
Hon. Frank Rynd
Travis & Sandy Sales
Tramaine Singleton
Quentin & Aerin Smith
Hon. Susan S. Soussan
Terry G. Fry, P.C. & Gina Lucero
The Law Office of Daniel D. Horowitz, III, PC
Brooks & Jacquelyn Tobin
Samantha Torres & Jimmy Hollowell
Hilary Tyson
Sandy & Greg Ulmer
Roy & Dominique Varner
Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP
Ytterberg Deery Knull LLP
Krisina Zuñiga & Rick Houghton
Friend Sponsors
Hon. Terry Adams
Hon. Julie Countiss
Patrick Flynn
David T. Harvin
Sylvia Mayer with S. Mayer Law
Hon. Veronica Rivas-Molloy & David Molloy
Jane Langdell Robinson
Hon. Robert Schaffer
Hon. Charles Spain & John Adcock
Hon. Cheryl Elliott Thornton
Travis Torrence
Other Sponsors
Anthony & Antoinette Franklyn
In honor of Vinh Ho
Pennell Law Firm, PLLC
In-Kind Sponsors
Innovative Legal Solutions
An Interview with HBA President David Harrell
HBA President David Harrell talks about the significance of his family and mentors, and the areas the he wants to focus on during his year as HBA president.
Tell us about your family
David: My dad was a police officer, my mom a college instructor. I’m the oldest of three, and while we lost my dad three years ago, my mom and sisters all live in the Houston area. I married Tammie Fergusson in 2006. In addition to being a great lawyer herself, Tammie has been loving and supporting— without her, my life and career would look very different. One of our great joys is our three kids, Emma (15), Ava (12), and Joshua (9). Our time is spent dashing in different directions to soccer games, gymnastics practices and meets, school activities, and a host of recreational sports.
Where did you go to college and law school?
David: I graduated from the University of Houston in 1992 with a degree in Accounting, and I earned my law degree from SMU in 1995.
What prompted you to pursue a career in law?
David: I can’t pinpoint when I decided to become a lawyer. My dad was my hero, and I wanted to be a police officer just like him. Eventually, that turned into becoming a lawyer. I mirrored the respect for law and the judiciary that I saw from him.
What are your areas of specialty and what firms have you worked with in your legal career?
David: I started my career at McGlinchey Stafford, then I joined Locke Liddell & Sapp in 1999. I’ve been there ever since, although the firm name has changed a couple of times, ultimately to Locke Lord LLP.
Who are your mentors?
David: I started my career learning about litigation from Joel Morhman, while Ellis Tudzin taught me about practicing law. When I joined Locke Lord, I got to work alongside trial lawyers like Craig Weinstock and Janet Militello, who taught the importance of preparation, creativity, and setting high standards. Roland Garcia and Scott Sheehan exemplified the importance of participating in bar activities and the community. But I’ve also had the opportunity to learn from my peers, such as Derrick Carson, Brent Benoit, and Chris Verducci—all Locke Lord partners who are excellent lawyers.
What are some of your hobbies and interests?
David: I enjoy pretending to play golf. I’m a great spectator at kids’ sports, but it took a while for me to become a silent observer. My kids eventually convinced me that I don’t know as much
as I think I do, so now I just cheer (usually) and drive.
Are you involved with other professional or community organizations?
David: My first involvement with the HBA was as a very young lawyer working with the Historical Committee’s Living History Project. I have been active in the State Bar of Texas, chairing the Business Law Section and the ADR Section. I am currently chair-elect of the Texas Business Law Foundation. I have served on the Board of the Chartered Institute of Arbitrators. I am a member of the International Law Section of the New York State Bar Association, and I chair the Texas Chapter of that section. Outside of professional organizations, I have worked with the Houston Food Bank, Cenikor Foundation, and various organizations through my church.
What do you think is the role of the organized bar in society today?
David: Membership in the HBA is voluntary. As a young lawyer, it was a given that I would join the largest, oldest local bar
HBA President David Harrell
organization available to me. It offers excellent networking activities, the ability to select from a variety of committees that mirror member interests, and active sections that provide excellent CLE opportunities. But the HBA also provides a hub for members of other bar organizations to find what they may be missing elsewhere. I don’t see the HBA as competing with other local organizations; I see it as the “of course I’m a member” organization that everyone should elect to join.
What do you see as the role of the president in the Houston Bar Association?
David: I’ve had the opportunity to observe some outstanding lawyers serve as HBA president. I told Diana Gomez multiple times how hard it would be to follow after her after she set the bar so high. The
HBA president is an ambassador for the organization, a contact point for other bar organizations, and has the opportunity to steer the organization with focus areas. Fortunately, the task is made much easier by a hard-working staff that does the heavy lifting, as well as an active board of involved lawyers, a collection of dedicated committee chairs, and section chairs who are dedicated to their practice areas and education.
What areas will you focus on during your administration and why?
David: I have three major focus areas for the coming year. First, we are emphasizing the HBA’s role in the community by identifying ways to partner with local, affinity, and specialty bar associations and their members so that we can benefit from their voices and perspectives, while providing the networking and membership benefits
of the HBA. Meanwhile, the Historical Committee is expanding the Living History Project to record the histories of 10 members of the local bar who were instrumental in making the bar the community that it is today. Second, we are focusing on education. We are developing CLE programming focused on the new Texas Business Court, as well as articles for The Houston Lawyer that focus on specialty courts. Finally, we are highlighting opportunities with two of the HBA’s ancillary organizations, Houston Volunteer Lawyers and the Houston Lawyer Referral Service.
What is your message to HBA members as we begin the 2024-2025 bar year?
David: Thank you for your vote of confidence in me. I hope you will be active with the HBA, its committees, and its sections.
Locke Lord Partner David Harrell Becomes Houston Bar Association President
David Harrell, partner at Locke Lord LLP, became the 2024-2025 president of the Houston Bar Association at the HBA Annual Dinner on May 14. He succeeds Diana Gomez of Chamberlain Hrdlicka, who was recently elected to the State Bar of Texas Board of Directors as Director 4, Place 3.
The evening included a presentation of the HBA President’s Awards, given to outstanding members to celebrate their accomplishments over the past year. The HBA also presented the Justice Eugene A. Cook Professionalism Award, the association’s highest award for professionalism, to U.S. District Judge Keith P. Ellison of the United States District Court for the Southern District of Texas and Christopher L. Tritico of Tritico Rainey, PLLC. The HBA presented the Justice Ruby Kless Sondock Award to Judge Carolyn Dineen King, a circuit judge on the United States Court of Appeals for the Fifth Circuit, recognizing outstanding achievement and leadership for women in the law. HBA Past President (2019-2020) and current Houston Bar Foundation Board Member Benny Agosto, Jr., managing partner of Abraham, Watkins, Nichols, Agosto, Aziz & Stogner, was the recipient of the Exemplary Service to the Legal Profession and Community Award.
Shauna Johnson Clark
Photography by Deborah Wallace, Barfield Photography (exceptions noted with *)
2023-2024 HBA President Diana Gomez presents the gavel to 2024-2025 HBA President David Harrell.
Harrell presents the plaque of service to Gomez.*
Harrell with his family (L to R) Penny Fergusson, Tammie Harrell, Joshua Harrell, Brenda Harrell, Ava Harrell, and Emma Harrell.
Harrell poses with HBA Executive Director Vinh Ho and Former Executive Director Mindy G. Davidson, who retired in June.
Award Winners
** Award winners not pictured: Judge Latosha Lewis Payne, Melissa Munson, Kelly Sandill, and Anthony Franklyn.
Harell poses with Christopher L. Tritico of Tritico Rainey, PLLC, one of this year’s recipients of the Justice Eugene A. Cook Professionalism Award.
Harrell and Judge Keith P. Ellison of the United States District Court for the Southern District of Texas. Judge Ellison was a recipient of the Justice Eugene A. Cook Professionalism Award.
Gomez presents the Exemplary Service to the Legal Profession and the Community Award to Benny Agosto, Jr. (Abraham, Watkins, Nichols, Agosto, Aziz & Stogner).
Harrell poses with Judge Carolyn Dineen of the United States Court of Appeals for the Fifth Circuit, and her son, Philip D. Randall. Judge King was this year’s recipient for the Justice Ruby Kless Sondock Award.
Harris County Precinct 4 Commissioner Lesley Briones, champion of the HBA Lactation Pods Initiative.
Gomez with Fred Hagans and Judge Michael Gomez. Judge Gomez received recognition as a champion of the HBA Lactation Pods Initiative and co-chair of the HBA Bench Bar Conference Committee.
Judge R.K. Sandill, champion of the HBA Lactation Pods Initiative.
Gomez with HBA County Law Library co-chairs and Harris County Robert W. Hainsworth Law Library leadership: Mariann Sears, Leslie Tan, Andre Davison, Justice Frances Bourliot, and Justice Julie Countiss.
Judge Kyle Carter, recipient of the Outstanding Service to the HBA Award.
Judge Rabeea Collier, recipient of the Outstanding Service to the HBA Award, with her husband, Robert Collier.
Rocio Guadalupe Mendoza, president of the Hispanic Bar Association of Houston and recipient of the Outstanding Service to the HBA Award.
Jillan Marullo and Rich Frazier accept an award on behalf of HBA Energy Law Section Chair Melissa Munson.
Gomez poses with Membership Committee Co-Chairs Bailey Bridges, Samantha Torres, and Raj Mahadass.
Liz Malpass, editor in chief of The Houston Lawyer.
HBA Family Law Section Chair Tasha Wilson.
HBA Labor & Employment Law Section Chair Nehal Anand.
Davidson with HBA Litigation Section Chair Louie Layrisson.
Judge Hazel B. Jones and Joe Bailey, co-chairs of the HBA Bench Bar Conference Committee.
Judge Dena Palermo, co-chair of the HBA Bench Bar Conference Committee.
50-Year Lawyers
The HBA recognizes all members who reached their 50th year of practice
Hon. Nancy Atlas
Darrell Barger
Dean Barker
Bruce Baughman
Riecke Baumann
Roger Beck
Michael Bell
Robert Bennett
Theodore Borrego
James Bradley
Gary Bush
Richard Callaway
Carol Carrier
Thomas Cook
Tom Cunningham
Ernestine Dansby
Algenita Scott Davis
Monte Donaldson
David Dulock
David Dunlap
Stacy Eastland
Robert Eutsler
Michael Feehan
Kenneth Fenelon
Tommy Fibich
Albert Finch
Stewart W. Gagnon
Dennis Gardner
Albert Giddens
Robert Givens
John Glover
Steven Glover
J. Weldon Granger
Bill Green
Michael Hays
William Henri
Riley Hetherington
Larry Knapp
John Lastrapes
Stuart Levin
Martin Levy
Leonard Ligon
Stephen Mason
Edward Mattingly
William Maynard
Ralph McBride
Stephen McCarthy
Garland McInnis
Robert Morse
Stephen Mueller
Eugene Nettles
Hon. Rory Olsen
Randall Pais
Daniel Pappas
Charles Parker
David Peden
Bette Pesikoff
Hon. Thomas Phillips
Jesse Pierce
Michael Powell
Barry Racusin
Clifton Ransom
Ronald Restrepo
Richard Rose
President’s Awards
Barbara Runge
Vince Ryan
Carlos Ryerson
George Sauer
Gerard Swonke
Marshall Taheri
Thomas Taylor
Edward Thigpen
Robert Thomas
Stephen Tipps
Ben Tobor
Timothy Unger
Charles Walker
Mark Wise
William York
Each year, the Houston Bar Association president has the pleasure of recognizing outstanding contributions by HBA members. The HBA has more than 30 committees with hundreds of HBA members volunteering their time to further community engagement, plan special projects and events, provide continuing legal education, and more. We recognize a lot of outstanding work goes on throughout the year. We take this opportunity to recognize only a fraction of this work and dedication with these President’s Awards at the HBA Annual Dinner. Diana Gomez presented the 2023-2024 President’s Awards to:
BENCH BAR CoNFERENCE CoMMITTEE
Hon. Dena Palermo
Hon. Michael Gomez
Hon. Hazel B. Jones
Joe W. Bailey
Collin Cox
Kelly Sandill
CoUNTy LAw LIBRARy CoMMITTEE AND CoUNTy LAw LIBRARy LEADERSHIP
Hon. Frances Bourliot
Hon. Julie Countiss
Andre Davison
Mariann Sears
Leslie Tan
GENDER FAIRNESS CoMMITTEE AND CHAMPIoNS oF THE LACTATIoN PoDS INITIATIvE
Commissioner Lesley Briones
Akilah Craig
Carter Dugan
Hon. Michael Gomez
Stephanie Noble
Hon. Latosha Lewis Payne
Hon. Ravi K. Sandill
Hon. Cheryl Elliott Thornton
MEMBERSHIP CoMMITTEE
Bailey Bridges
Anthony Franklyn
Raj Mahadass
Samantha Torres
THE HoUSToN LAwyER EDIToRIAL BoARD
Liz Malpass
oUTSTANDING SERvICE To THE HBA
Hon. Kyle Carter
Hon. Rabeea Collier
Rocio Guadalupe Mendoza
ENERGy LAw SECTIoN
Melissa Munson
FAMILy LAw SECTIoN
Tasha Wilson
LABoR & EMPLoyMENT LAw SECTIoN
Nehal Anand
LITIGATIoN SECTIoN
Louie Layrisson
ExEMPLARy SERvICE To THE LEGAL PRoFESSIoN AND THE CoMMUNITy
Benny Agosto, Jr.
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 Volunteers Lawyers.
abraham, Watkins, nichols, agosto, aziz & stogner
akin gump strauss hauer & feld LLp
angela solice, attorney at Law
archie Law pLLC
Baker Botts L.L.p
Bakerhostetler LLp
Balch & Bingham LLp
Beck redden LLp
Blank rome LLp
Bracewell LLp
Centerpoint energy, inc.
Chamberlain hrdlicka
Chevron Usa
Coane & associates
dentons Us LLp
elizabeth s. pagel, pLLC
eversheds sutherland Us LLp
exxon mobil Corporation
fleurinord Law pLLC
foley & Lardner LLp
frye and Benavidez, pLLC
fuqua & associates, p.C.
gibbs & Bruns LLp
gibson, dunn & Crutcher LLp
gray reed
greenberg traurig, LLp
halliburton
hasley scarano, L.L.p.
haynes and Boone, LLp
hunton andrews Kurth LLp
Jackson Walker, LLp
Jenkins & Kamin, LLp
Jeremy northum, attorney at Law
King & spalding LLp
Kirkland & ellis LLp
Law Office of Cindi L. Rickman
Law Office of Norma Levine Trusch
Law Office of Robert E. Price
Law Offices of Omonzusi Imobioh
Limbaga Law
Locke Lord LLp
LyondellBasell industries
Martin R.G. Marasigan Law Offices
mcdowell & hetherington LLp
mcgarvey pLLC
morgan, Lewis & Bockius LLp
norton rose fulbright
o’melveny & myers LLp
painter Law firm pLLC reed smith LLp
royston, rayzor, Vickery & Williams, LLp
sanchez Law firm
shell Usa, inc.
shipley snell montgomery LLp
shortt & nguyen, p.C.
sidley austin LLp
sorrels Law
squire patton Boggs the ericksen Law firm
the Jurek Law group, pLLC
travis Bryan Law group, pLLC
Vinson & elkins LLp
Weycer, Kaplan, pulaski & Zuber, p.C.
Wilson, Cribbs, & goren, p.C.
Winstead pC
Winston & strawn LLp
Yetter Coleman LLp
HBA DEI Summer Associate Luncheon
Celebrates Diversity and Recognizes Award Winners
More than 300 HBA members came together at the JW Marriott Houston Downtown on June 6 for the 26th Annual HBA DEI Summer Associate Luncheon. The event, hosted by the HBA Diversity, Equity & Inclusion Committee, recognized the achievements of this year’s HBA Diversity Award winners, Law Day contest winners, and DEI scholarship winners, as well as the 1L summer associates
and employers who participated in this year’s Summer Associate program.
The luncheon included a panel discussion with the Honorable Yvonne Ho (United States Magistrate Judge, Southern District of Texas) and Sergio Garza (Westlake Corporation), moderated by Harris County Attorney Christian D. Menefee.
The HBA Diversity, Equity and Inclusion Committee would like to thank the following employers for supporting the HBA’s 2024 DEI IL Summer Clerkship Program by reviewing applications for potential hiring of our applicants:
Anchor QEA, LLC
Andrews Myers, P.C.*
Baker Botts L.L.P
Bracewell LLP
Bradley Arant Boult Cummings LLP
BSP Law
CenterPoint Energy, Inc.*
Chamberlain Hrdlicka*
The Ericksen Law Firm PLLC*
Federal Public Defender*
Foley & Lardner LLP
Gray Reed
Harris County Attorney’s Office*
Harris County District Attorney’s Office*
Haynes & Boone, LLP
Hines*
Holland & Knight LLP
Hon. Te’iva Bell, 339th District Court
Hon. Alfred Bennett, U.S. District Court
Hon. Peter Bray, U.S. Magistrate*
Hon. Rabeea Collier, 113th Civil District Court*
Hon. Natalia (Nata) Cornelio, 351st Criminal District Court*
Hon. Jason Cox, Harris County Probate Court 3*
Hon. Dedra Davis, 270th Civil District Court*
Hon. David Fleischer, Harris County Criminal Court at Law No. 5
Hon. Michael Gomez, 129th Civil District Court*
Hon. Angela Graves-Harrington, 246th Family District Court
Hon. Ursula A. Hall, 165th Civil District Court*
Hon. Yvonne Ho, U.S. District Court, Southern District of Texas
Hon. Kelli Johnson, 178th Criminal District Court
Hon. Tonya Jones, Harris County Criminal Court at Law No. 15*
Hon. Latosha Lewis Payne, 55th Civil District Court
Hon. Pamela Medina, Harris County Probate Court No 2*
Hon. Beau Miller, 190th Civil District Court
Hon. Lauren Reeder, 234th Civil District Court*
Hon. Donna Roth, 295th Civil District Court
Hon. Manpreet Monica Singh, Harris County Civil Court at Law No. 4
Hon. LaShawn Williams, Harris County Civil Court at Law No. 3
Houston Young Lawyers Association
Husch Blackwell LLP
Jackson Lewis P.C.
Kane Russell Coleman Logan PC*
Locke Lord LLP*
Mandl Law Immigration Lawyers*
Munck Wilson Mandala, LLP
Patterson + Sheridan LLP
Sunnova Energy
Vinson & Elkins LLP*
Wong Fleming*
*Hired 1L Clerks in 2024 HBA DEI 1L Summer Clerkship Program
Attendees of the 2024 DEI Summer Associate Luncheon.
Some of the students hired through the 2024 HBA DEI 1L Summer Clerkship Program.
The Honorable yvonne Ho, Sergio Garza, and Christian D. Menefee took part in a panel conversation at the luncheon.
Congratulations to the following students hired through the 2024 HBA DEI 1L Summer Clerkship Program:
Arsalan M. Babar, STCLH
DeAndré Bell II, TMSL
Michael Chandler, TMSL
Shelby Davis, STCLH
Anne Marie (Therese) Eamiguel, UHLC
Aaliyah Fleming, TMSL
Alexander Garcia, UHLC
Lauren Gonzales, UHLC
Landon Hamm, STCLH
Kendall Hoofe, STCLH
Jasmine Jackson, TMSL
Sydney Lazard, TMSL
Kimberly Licon, TMSL
Reva Mulani, STCLH
Jasmin Nassar, STCLH
Austin Niemtschk, UHLC
Grace Ojofeitimi, UHLC
Nadieska Oviedo, STCLH
Seher Patel, UHLC
Julio Perez, UHLC
Veronique Reid, TMSL
Monique Reyes, STCLH
Kathleen (Kathy) Sandoval, STCLH
Kaneez Sayal, UHLC
Laura Tenorio, STCLH
Ashley Thompson, TMSL
Nabeegh Usman, UHLC
Madison Villarrial, UHLC
Yasmine Wicker, TMSL
Alexandra (Lexi) Zaugg, STCLH
Congratulations to this year’s scholarship winners. The purpose of the scholarship is to fund applicants in the HBA DEI 1L Clerkship program who have accepted public interest or governmental opportunities. Each student was awarded $1,500.
Deandré Bell II, Thurgood Marshall School of Law, Federal Public Defender
Alexander Garcia, University of Houston Law Center, Hon. Lauren Reeder
Sydney Lazard, Thurgood Marshall School of Law, Hon. Peter Bray
Monique Reyes, South Texas College of Law Houston, Hon. Ursula Hall
Madison Villarrial, University of Houston Law Center, Hon. Lauren Reeder
Alexandra Zaugg, South Texas College of Law Houston, Harris County District Attorney’s Office
Congratulations to the winners of the 2024 HBA Diversity Awards. The HBA Diversity Awards were created in 2019 by HBA President Benny Agosto, Jr. (2019-2020) to recognize outstanding achievements and dedication by law offices, legal departments, and individuals in the areas of diversity, equity, and inclusion in the legal profession. organization Lone Star Legal Aid
Individual
DeAndrea Washington, partner, Spencer Fane
Individual
Alan York, partner, Reed Smith LLP
Learn more about the HBA Diversity, Equity & Inclusion Committee at hba.org/dei.
L ARRy S TUART:
The Unexpected Garden
By cHristine stuArt
One of the delights of a long marriage is sharing the discovery of new, unexpected talents. I met Larry Stuart in 1992 when we were first years in law school. When we married in 2000, I knew he was a brilliant, hardworking lawyer with a kind heart and a sharp sense of humor. What I did not know was that this man would someday become a tomato-obsessed, seed collecting, dawn to dusk, prolific gardener.
His garden started small, in a modest area of a gravel driveway that got too much shade. Aside from mint and some hearty rosemary, nothing thrived. We eventually found a property that was large enough for a real garden. In 2016, we planted a few beds for herbs, a fig tree, and a few citrus trees. Larry immediately started expanding and experimenting, building raised beds for cucumbers and tomatoes. In 2017, he planted a Chinese long bean plant that climbed along the front fence and produced a pound of beans per day. Sharing the abundance of that simple vine with friends and eating food you can’t find at a grocery store was a turning point. He began studying seed catalogs and making frequent pilgrimages to local nurseries.
He added trellises and arches, grew stalks of corn, and added more varieties of his beloved tomatoes. Black Krim is his absolute favorite and the crowning glory of his tomato empire. His summer repertoire expanded to include sugar baby watermelons, impossibly sweet cantaloupes, beautiful specked lima beans, and neon artichoke thistles for the bees. Knowing my love of herbs, he grew everything from Mexican mint marigold (tastes like tarragon) to Vietnamese coriander.
As the garden increased in bounty and variety, we found new ways to consume and share. We regularly distribute extras to beloved neighbors, including many lawyer friends. We pickle everything from watermelon rind to long beans. We make pepper relish, jams, assorted syrups for cocktails, and infuse vinegar and vodka. In May, the derecho robbed our young plum and peach trees of their green fruit. Larry found a recipe for green plum jam, which finally prompted me to learn to can. All of this is possible only because Larry persists in tending to his garden in the face of powdery mildew, armies of insects, droughts, freezes, floods, and the infernal Texas heat. Undeterred, he sources beneficial insects, hunts down the hungry horn worms, trims the plants, and kills the stink bugs.
By early 2020, Larry already had a very productive garden. A riot of flowers in the front yard. In the fall/winter, broccoli, cauliflower, kale, Romanesco, and insane amounts of Swiss chard. In the spring: fennel, strawberries, radishes, lettuce, cucumbers, and arugula, followed by the coveted tomatoes. In the summer, blackberries, figs, and passionfruit. And in late summer when it is too hot to breathe, peppers and okra.
But with the onset of pandemic and lockdown, his garden hobby took on new proportions. He added more beds and began spending entire days prepping beds, growing plants from seed, watching instructional videos, and tending to his plant babies.
Most mornings and evenings, and every weekend, you’ll find Larry in the garden. It is a form of therapy, mental and physical, and a break from the never-ending demands of the office. The garden requires his patience, his problem-solving skills, and his dedication. It frustrates him with tomato blight, and it surprises him with volunteer Kajari melons that pop up unexpectedly. Neither of us could have predicted that the man who once ripped out the St. Augustine thinking it was a weed has created a thriving oasis. It is hard, sweaty work, but the rewards are delicious.
Christine Stuart is a recent canning enthusiast, and a lawyer and ICF ACC accredited leadership coach at Stuart PC.
Larry holds a pot of basil, 2019.
Larry’s coveted tomatoes include his favorite, Black Krim.
Larry Stuart.
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
Abraham, Watkins, Nichols, Agosto, Aziz & Stogner
Ajamie LLP
Alvarez Stauffer Bremer PLLC
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Buck Keenan LLP
Christian Levine Law Group, LLC
Coats | Rose
Crady, Jewett, McCulley & Houren, LLP
De Lange Hudspeth McConnell & Tibbets LLP
Dentons US LLP
Dobrowski Stafford LLP
Doyle Restrepo Harvin & Robbins LLP
Ewing & Jones, PLLC
Fisher & Phillips LLP
Fizer Beck Webster Bentley & Scroggins
Fogler, Brar, O’Neil & Gray LLP
Frank, Elmore, Lievens, Slaughter & Turet, L.L.P.
Funderburk Funderburk Courtois, LLP
Germer PLLC
Gordon Rees Scully & Mansukhani, LLP
Hagans
Henke, Williams & Boll, LLP
Hirsch & Westheimer, P.C.
Holm | Bambace LLP
Horne Rota Moos LLP
Hughes, Watters & Askanase, L.L.P.
Husch Blackwell LLP
Jackson Lewis P.C.
Jenkins & Kamin, LLP
Johnson DeLuca Kurisky & Gould, P.C.
Jordan, Lynch & Cancienne
Kean Miller
Kilpatrick Townsend & Stockton LLP
Law Feehan Adams LLP
Linebarger Goggan Blair & Sampson, LLP
Liskow
McGinnis Lochridge
McGuireWoods LLP
McKool Smith
MehaffyWeber PC
Morris Lendais Hollrah & Snowden
Murrah & Killough, PLLC
Nathan Sommers Jacobs
Ogletree Deakins Nash Smoak & Stewart, P.C.
Paranjpe Mahadass Ruemke LLP
Peckar & Abramson, P.C.
Phelps Dunbar LLP
Pillsbury Winthrop Shaw Pittman LLP
Ramey, Chandler, Quinn & Zito, P.C.
Rapp & Krock PC
Reynolds Frizzell LLP
Roach & Newton, L.L.P.
Ross Banks May Cron & Cavin PC
Royston, Rayzor, Vickery & Williams, L.L.P.
Rusty Hardin & Associates, LLP
Schirrmeister Diaz-Arrastia Brem LLP
Schwartz, Page & Harding, L.L.P.
Scott, Clawater & Houston, L.L.P.
Shannon Martin Finkelstein
Alvarado & Dunne, P.C.
Shearman & Sterling
Shellist | Lazarz | Slobin LLP
Shipley Snell Montgomery LLP
Smith Murdaugh Little & Bonham LLP
Sorrels Law
Spencer Fane
Sponsel Miller Greenberg PLLC
Stuart PC
Taunton Snyder & Parish
Thompson & Horton LLP
Tindall England PC
Tracey & Fox Law Firm
Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP
West Mermis
Weycer, Kaplan, Pulaski & Zuber, PC
Williams Hart & Boundas, LLP
Wright Abshire, Attorneys, PC
Wright Close & Barger, LLP
Ytterberg Deery Knull LLP
Zukowski, Bresenhan & Piazza L.L.P.
Firms of 25-49 Attorneys
Adams and Reese LLP
Andrews Myers, P.C.
Beck Redden LLP
BoyarMiller
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CELEBRATIO HARVE
A Profile
in p R o F ession A lism
Benoit Deputy General Counsel and Chief Compliance Officer, National Oilwell Varco HBA Past President,
Ithink we all recognize that there is a difference between the practice of law and the business of law, but I sometimes worry that attorneys too often lose sight of that distinction. The practice of law requires zealous advocacy of a client, but that advocacy must remain within the bounds of truth and civility. Attorneys work in a legal system that depends on the integrity and professionalism of its participants.
The business of law is not inherently bad, but it occupies us with concerns that often center on the profitability of our practices. It is certainly fair for attorneys to be concerned about these things, but these concerns should never interfere with our professional obligations to our clients, the public, and the legal system in general.
I know countless attorneys who refuse to compromise their professionalism, but I have also known too many attorneys who failed to do so. I have observed attorneys who represent all clients with the same vigor, but I have also watched attorneys give insufficient attention to less important or less profitable cases. I have admired attorneys who are venerated for their ability to practice law without rancor or bitterness, but I have also been frustrated to know attorneys who view sharp tactics and bullying as hallmarks of good lawyering and who sacrifice their professionalism on the altar of personal success. I know many lawyers who give selflessly to ensure access to our legal system, but I have talked with too many attorneys who take no action to help those who cannot otherwise afford representation.
The practice of law is an honorable profession, but it will only remain so if we do not conflate professionalism with a successful business enterprise. When those aims conflict, we are dutybound to subordinate the business of law to our professional obligations. We must fiercely insist that our profession remains honorable and devoted to the pursuit of justice with integrity, compassion, and civility.
Brent
2012-2013
THE ELDER L Aw CoMMITTEE : Charting New Territory
By ANGELA ODENSKy
The Houston Bar Association’s Elder Law Committee (ELC) is a small and dedicated group of attorneys who specialize in elder law. Issues covered by elder law including housing, healthcare, guardianships, and wills. Because their clients have a variety of different legal and social needs, elder law attorneys do not just practice in one area of law so much as we serve a specific population of people. We serve elders and their families, adults with special needs, and anyone else who finds themselves lucky enough to circle the sun year after year. Some elder law attorneys focus on planning for incapacity and protecting incapacitated people from exploitation. Some focus on maximizing public benefits and helping people get the long-term care that they need and otherwise couldn’t afford. And others fight with Medicare or long-term care insurance companies to make sure their clients receive all the health benefits they are entitled to.
special needs; members of the bar are experiencing the same situations and can feel just as helpless in the face of them.
Elder law attorneys also address non-legal needs. Some clients need assistance finding appropriate housing and placement. Others need advice on aging in place. Though these are not legal issues we deal with, our clients look to us to have resources for them, and we are generally able to provide them.
At some point, everyone can benefit from the advice of an elder law attorney. Attorneys in other areas of law seek our expertise for advice in areas such as capacity and decisionmaking, preserving government benefits after a windfall judgment, and navigating Medicaid Estate Recovery in an otherwise straightforward probate. Many attorneys who practice in traditional areas may not know what elder law attorneys can offer them. The ELC is aiming to change that.
The ELC is currently in a time of transition. Previously, the ELC’s role has been assisting Houston Volunteer Lawyers with its annual Will-a-Thon. HVL has that well in hand. Instead, the ELC is switching gears to offer more member benefits and education to HBA members. Our clients are not the only ones who are dealing with aging parents or caring for children with
The goal of the ELC moving forward is to offer programming on topics such as how to care for an aging parent or a child with special needs, how to manage the loss of a spouse or parent, and dealing with Social Security and other government benefits programs. And, most importantly, the ELC would like to highlight the value that elder law attorneys bring when managing difficult personal and professional situations that arise as a result of aging. For example, what options do you have to help your aging client who refuses to give up his business but may not be capable of day-to-day management? How do you help a family member navigate a diagnosis of cognitive decline? What resources are available to allow an adult with special needs to live their fullest life? These are the kinds of situations an elder law attorney deals with every day.
The ELC is currently working on a panel presentation to discuss the spectrum of disability in the workplace, protections afforded to the disabled under the law, and accommodations that can be made. There are excellent attorneys and staff members in our offices who have a wide range of abilities and disabilities. Some disabilities are visible to all, and others are invisible. One goal of the panel is to help attorney employers understand the range of people’s abilities and how best to support them in the workplace. It is not only about what is required legally, but also good practices to create environments for everyone to work in.
Angela Odensky is co-chair of the HBA Elder Law Committee. She is a Certified Elder Law Attorney (CELA) and principal at The Law Office of Angela Odensky. Angela’s focus is estate planning, probate, elder law, and special needs planning. She is an active member of the Texas Chapter of the National Academy of Elder Law Attorneys, the Houston Bar Association, the Texas Bar Association, and the Texas Bar College.
INNovATIoN AND INvoLvEMENT:
How the Energy Law Section Shines in the Houston Legal Community
By MELISSA MUNSON
In the dynamic realm of law, where practice areas ebb and flow with economic and technological tides, the Energy Law Section of the Houston Bar Association remains a beacon of expertise and engagement. Section members are engaged in all aspects of energy law, whether private practice; in-house; governmental organizations; upstream, midstream, and downstream; and traditional fossil fuels and renewable energies.
Educational Insights
The Energy Law Section provides a platform for legal professionals to stay at the forefront of the industry through monthly luncheons. These events cover pivotal topics, such as regulatory updates, litigation trends, and the impact of global energy markets. Notably, recent sessions have featured distinguished speakers, including leading practitioners and scholars who bring timely insights into the evolving landscape of energy law. These gatherings are not only educational but also foster a collaborative environment where ideas and strategies are freely exchanged.
Engaging Through Social Events
accessible education is evident in its policy of offering events at minimal or no cost to law students, ensuring that emerging professionals have the opportunity to engage fully with the industry.
Guided by an Expert Advisory Council
The strategic direction and initiatives of the Energy Law Section are expertly guided by an advisory council composed of seasoned attorneys. This year, we highlight the contributions of Jordan Benningfield and Jillian Marullo, whose dedication and volunteerism have significantly enhanced the section’s operations and outreach. Jordan has been instrumental in organizing panels featuring general counsels and securing corporate sponsorships, which have greatly expanded the section’s resources and visibility. Meanwhile, Jillian’s efforts in spearheading the successful spring social have not only enriched community engagement but also underscored the importance of volunteerism in professional growth.
Stay Connected
Beyond the courtroom and corporate settings, the Energy Law Section understands the importance of community and camaraderie. This year’s holiday brunch and the spring social, in collaboration with the Houston Producers Forum, were standout events that provided relaxed settings for networking and leisure. These gatherings are crucial in building strong, supportive relationships among members, and promoting a sense of unity and mutual support within the legal community.
Supporting the Future of Energy Law
The Energy Law Section is deeply committed to nurturing the next generation of legal minds. This commitment is exemplified by the section’s scholarship initiative, which recognizes outstanding law students from Houston area schools for their excellence in oil and gas law studies. These scholarships encourage academic excellence and continued interest in energy law. Further, the section’s dedication to
For those interested in the latest developments in energy law or in joining the community of dedicated professionals, visit hba.org/sections, where you can find information on upcoming events, educational resources, and opportunities to get involved.
The 2023-2024 section officers were Melissa Munson (chair), Meghan McElvy (chair-elect), Christopher Hogan (treasurer), and Austin Brister (secretary). This year’s section officers are Meghan McElvy (chair), Christopher Hogan (chair-elect), Austin Brister (treasurer) and Jordan Benningfield (secretary).
The Energy Law Section of the Houston Bar Association remains committed to education, community, and professional excellence. Through its educational programs and social events, and with the support of its advisory council, the section continues to play a pivotal role in supporting the practice of energy law in Houston and beyond.
Melissa Munson is immediate past chair of the HBA Energy Law Section, and a member practicing energy transactions in the Woodlands, Texas office of Steptoe & Johnson, PLLC.
The HBA Energy Law Section hosts a case law update at the Petroleum Club on January 23, 2020.
The FTC Non-Compete Roller Coaster Continues as Courts Begin to Rule
By cHris HAnsliK
On April 23, 2024, the Federal Trade Commission (FTC) issued a rule aimed to prohibit nearly all non-compete clauses between employers and workers, which the agency argued would enhance economic opportunities and foster fair competition. A recent ruling by a Texas federal judge has significantly impacted the FTC’s attempt to implement a ban on non-compete agreements, but a recent ruling by a federal court in Pennsylvania reached a different conclusion in refusing to enjoin the FTC’s rule.
The FTC’s rule comprehensively prohibits the use of non-compete clauses in agreements between employers and workers in almost all circumstances. The rule prohibits employers from entering non-compete agreements with an expansive category of workers, including employees, independent contractors, externs, interns, and volunteers, among others. However, the rule exempts existing agreements between employers and the limited category of workers who qualify as “senior executives,” which are defined as workers who act in a “policy making position” and who received at least $151,164 in total compensation in the preceding year. At least one exception to the rule applies to non-competes entered into as part of a “bona fide sale of a business entity.”
However, the rule has faced substantial legal challenges. One prominent lawsuit, led by the tax services firm
Ryan, LLC and joined by the U.S. Chamber of Commerce, argues that the FTC overstepped its authority. The plaintiffs assert that the rule represents an unconstitutional expansion of federal power, violating the major-questions doctrine and other constitutional principles. This lawsuit, along with two others, has led to significant legal uncertainty surrounding the rule’s implementation.
As of July 3, 2024, the rule’s enforcement has been delayed, to a certain extent. U.S. District Judge Ada Brown granted a motion for preliminary injunction without a hearing.1 However, her ruling only bans enforcement of the non-compete rule against the plaintiffs, Ryan, LLC and the U.S. Chamber of Commerce, but not its members. Judge Brown indicated she will issue a final ruling on the merits by August 30, 2024, before the rule’s effective date of September 4, 2024. In her order, the judge focused significant attention on the plaintiffs’ likelihood of success on the merits on at least two fronts: (1) that the FTC lacked the statutory authority to enact the rule; and (2) that the rule was arbitrary and capricious under the Administrative Procedure Act. The order also strongly suggests that Judge Brown is likely to invalidate the rule in her August ruling.
Meanwhile, in a case pending in the Eastern District of Pennsylvania, U.S. District Court Judge Kelley B. Hodge refused to enjoin the rule, finding that the plaintiff failed to establish both a likelihood of success on the merits and irreparable harm.2 In ATS, the court found that “[w]hen taken in the context of the goal of the Act and the FTC’s purpose, the Court finds it clear that the FTC is empowered to make both procedural and substantive rules as is necessary to prevent unfair methods of competition.”3
Neither decision changes the fact that the FTC’s rule will go into effect on Sep -
tember 4, 2024. However, Judge Brown in the Ryan matter is expected to issue a decision by August 30th that will place a nationwide ban on the rule pending appeal.
For businesses, these rulings necessitate a review of current employment contracts and non-compete clauses to ensure compliance with any future legal requirements. Employers should be prepared for potential changes and consider alternative methods to protect their business interests, such as non-disclosure agreements and non-solicitation clauses.
Chris Hanslik is firm chairman at BoyarMiller. His experience includes commercial transactions and business litigation, including contracts, business torts, securities and corporate governance, oil and gas, trade secrets, non-compete agreements and other employment-related disputes.
2. ATS Tree Services, LLC v FTC, No: 2:24-cv-01743KBH (E.D. Pa. July 23, 2024).
3. Id. at p. 26.
Give
Me My Baby! Are Unused Embryos in a Divorce Property or a Person?
By nicole Voyles
Fertility treatment can be an extremely stressful process. Reaching the point of having a viable embryo may take years of tests, hormones, pills, shots, inconvenient doctor appointments and,
even more so, failures with the process. If a person has frozen embryo(s), they may be attached to them in an unimaginable way because of the hopes and dreams caught up in that tiny piece of science. Because of these emotions, deciding how these embryos should be dealt with in a divorce has recently been a contested topic.
On June 14, 2024, the Texas Supreme Court declined to take up a Denton woman’s appeal to determine whether the embryos the couple had frozen via in vitro fertilization (“IVF”) were legally children, and therefore subject to child custody law. In the parties’ divorce proceeding, Caroline Antoun agreed to award her husband, Gaby Antoun, their three frozen embryos as his “property.” This was based on an agreement Mr. and Mrs. Antoun had made during their marriage in their IVF clinic contract. Mrs. Antoun stipulated that any extra embryos created during the IVF process would go to Mr. Antoun if a divorce were to occur. However, once the U.S. Supreme Court overturned Roe v. Wade in June 2022 in Dobbs vs. Jackson Woman’s Health Organization, 597 U.S. 215 (2022), Mrs. Antoun claimed the embryos should be considered “living beings” because life begins when an egg is fertilized as the Dobbs case had decided. This would allow Mrs. Antoun to have a custody case over the embryos, instead of her having to honor the IVF contract.
In the Antoun case, the Texas Supreme Court had an opportunity to reclassify embryos from property, as is the current law, to unborn children, and if embryos were considered unborn children, a decision would have to be made as far as who would receive “custody” of these unborn children, not ownership. This determination regarding custody could encompass awarding possession, care, custody, and control of children during divorce. This stance is opposite to how the courts are currently dealing with
frozen embryos and would completely modify how parties litigate division of embryos during divorce. The Texas Supreme Court’s denial of Mrs. Antoun’s petition for review upheld the prior court’s ruling that the parties’ IVF contract did in fact govern the ownership of the embryos. Based on a valid contract, Mr. Antoun would receive ownership of the embryos and be able to determine how they were used in the future.
Currently in Texas, most IVF clinics include language in their contract regarding how the frozen embryos will be handled in the event of a divorce or death. Often it addresses that the embryos will be discarded or donated for the embryos to stay out of divorce proceedings. However, the parties can always negotiate for one to be awarded the embryos in the divorce by agreement, and therefore agree to modify their contractual agreement. The divorce court does not have a legal ability to modify the parties’ contract but must uphold the IVF contract agreements. Changing embryos from being property to living beings could substantially modify the current IVF contracts parties have entered into and increase litigation in a divorce proceeding since the current contracts most likely do not address embryos as living beings. Further, an argument would be made that it is against public policy to contract over living beings, unlike personal property.
The Antoun case could have had immediate effects on IVF clinics here in Texas, much like the Alabama Supreme Court case did for Alabama IVF clinics in February, when it ruled frozen embryos were children. LePage v. Ctr. for Reprod. Med., P.C.1 The three largest IVF clinics in Alabama suspended their services while looking into the legality of moving forward. And those clinics that did not suspend their services at the very least did not discard embryos.
The Texas Legislature that will meet
in January 2025 has the ability to make the next decisions on how embryos are defined under Texas law. They will have the opportunity to decide whether an embryo is a viable person when fertilized or once implanted in a pregnancy. If this legislation is important to you and your future family, pay attention and speak out.
The Antoun case may be the first of many cases where a party will attempt to contest their IVF contract regarding the outcome of their embryos in a divorce. Often when signing the contracts, parties are not of the mindset that their intact family may not stay together, what that might mean regarding the embryos they have frozen by the clinic, or their ability to use those embryos to expand their family.
Nicole Voyles is a board-certified family law attorney with Laura Dale & Associates.
A Case for Greatness: Achieving Success and Overcoming Trials in Your Law Career
By Alvin Adjei Published by elite online Publishing
reviewed by Anietie AKPAn
“Courage
was not about being fearless. It was doing what needed to be done despite how I felt.”
This quote perfectly encapsulates the ethos of the book it comes from: A Case for Greatness: Achieving Success and Over-coming Trials in Your Law Career, written by Houston-based at-torney Alvin Adjei. At its core, Greatness is an autobiography; one narrated with warmth and vulnerability in which Alvin shares the interwoven pathways of both his personal and professional journeys to achieve greatness. But what does it mean to be great? Is it defined by money? Possessions? Relationships? Academic achievements in school or professional achievements as a post-grad? Or is it measured by something else? Overcoming life’s many challenges? The pain of watching your parents go their separate ways. First bullies. First loves. First jobs. Alvin reflects on all these experiences in his book, highlighting how each
one shaped his own path to greatness, not just as a highly respected young litigator, but as a man.
A nonfiction book that reads like a novel, Greatness contains 70 “chapters,” which read more like bite-sized, sliceof-life short stories. Beginning with reflections of his Millennial childhood in the Houston suburbs (in which he confronted his first bully), to navigating middle school labels (and the everaching longing to obtain “cool” status), to being challenged by acrimonious office politics while looking for his first post-law-school job, to acknowledging and embracing the unique duality of his Blackness as the son of an American mother and an African immigrant father—the common dominator of each chapter (both metaphorical and literal) of Alvin’s life is the power of the human spirit.
One of Greatness’ first (and most resonating) chapters was Alvin’s recounting of he and his father traveling through Jasper, Texas during a family trip the summer before Alvin’s first semester of college. With the shadow of James Byrd, Jr.’s murder from a decade prior still looming over the community (learning of the sundown towns dotted between Houston and Louisiana is often the first cruel lesson of racism for most young Black and Brown kids raised in the Texas Gulf, including myself), Alvin expressed his reluctance to
step into a grocery store during the trip, at the displeasure of his father. “What are you going to do if you have a case or a client in some part of town that you’ve never been to?” he asked a teenage Alvin. “Are you going to let fear stop you?” That was the first of many lessons of resilience taught by Alvin’s father; lessons which prepared him for the trials in the courtroom and the trials of life.
‘‘ One of Greatness’ first (and most resonating) chapters was Alvin’s recounting of he and his father traveling through Jasper, Texas during a family trip the summer before Alvin’s first semester of college.”
Those lessons created the bedrock of Alvin’s success in his professional life, which he chronicles in detail in the second half of Greatness. After graduating from Notre Dame Law School and a brief stint in immigration law, Alvin was offered a position at the Harris County District Attorney’s Office, where he cut his teeth in criminal prosecution. With an impressive winning streak in court, Alvin ascended from misdemeanor to felony prosecutor. He then transitioned to private practice, where he was hired by a renowned personal injury law firm, and ultimately opened his own practice (all while serving in several bar leadership positions and obtaining local and state professional accolades). This is a seemingly perfect ending to a memoir, but in its last few pages, Alvin reminds all of us that our stories— including his own— are still moving forward.
Greatness is a must read for anyone who may need to be reminded that the power to overcome life’s obstacles with grit and grace, comes from within.
Anietie Akpan is director, corporate counsel for Mattress Firm, Inc. and is on the editorial board of The Houston Lawyer
EXCluSIVE SuITE, GAllERIA InnER lOOP
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Law firm seeks attorney with 2-8 years of experience to attend hearings, prepare pleadings and on occasion try cases. Contact: Jay Dushkin 713-443-3362 or email: jay@jaydushkin.com
LAW FIRM FOR SALE
Well-established Commercial Collections (75%) and Contract (25%) law firm is interested in selling the practice. Firm presently has two outstanding experienced paralegals, and the attorney (Seller) is willing to stay on up to 5 years to assist in the transition and base the sales price on an Earn Out based on revenues. Attorney also refers many cases to other firms and a Buyer that has a practice that is broader in scope could keep referred cases in house to increase the revenues. Although the firm is based in the Greenway/Galleria area in Houston, the firm practices across Texas. Revenues have always been steady and great. Tremendous opportunity for an attorney with 5-12 years’ experience who seeks to double or triple the size of their practice or for a law firm that wants a Houston and/ or Texas presence. Interested individuals can email their inquiry and contact information to mary@ quantumsur.com. Please include “LAW FIRM FOR SALE” in the Subject line. The email will be forwarded on to the Seller.
