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Practice Perspective: • A Look Back for the Benefit of the Future • A Look Forward with an Eye on the Past Overcoming Barriers to Recruit Diverse Talent What Planet Is My Client From?

Representing the Culturally Diverse Client An Unmatched Story: Judge Ruby Sondock Houston Bar Foundation Recognizes Outstanding Pro Bono, Volunteer Efforts

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THE HOUSTON

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Volume 53 – Number 5

March/April 2016

Diversity and Inclusion in the Legal Profession

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contents Volume 53 Number 5

March/April 2016

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FEATURES Perspective: 10 Practice A Look Back for the Benefit of the Future

By Kimberly A. Chojnacki

Perspective: 16 Practice A Look Forward with an Eye on the Past

By Kimberly A. Chojnacki

Barriers to 20 Overcoming Recruit Diverse Talent

By Elizabeth A. Campbell

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26

Planet Is My Client From?

26 What Representing the Culturally Diverse Client

By The Hon. Josefina M. Rend贸nn

Unmatched Story: 30 AnJudge Ruby Sondock

By Raymond L. Panneton

Bar Foundation 32 Houston Recognizes Outstanding Pro Bono, Volunteer Efforts

The Houston Lawyer

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32

Our Pro Bono 34 Hamilton, Founding Father Remarks of S. JACK BALAGIA Jr.

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. 漏The Houston Bar Association, 2016. All rights reserved.

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Trust Account Issues

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Bipolar Compulsive Gambling Compassion Fatigue & Burnout

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Illicit Drug Use Anxiety Disorders

Depression Other Pathologies Can Develop Secondarily Over Time

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contents Volume 53 Number 5

March/April 2016

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departments Message 6 President’s Diversity is the Key to Future Success

By LAURA GIBSON the Editor 8 From Embracing Diversity

By Angela L. Dixon Lawyers Who 36 Houston Made a Difference

Joseph C. Hutcheson, Jr.

By The Hon. Mark Davidson

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Spotlight 37 Committee HBA MOILP Program: Providing

Opportunities for Minority 1L Students

By Farrah Martinez

the record 38 off Erick Sandlin and His Spray Paint Artistry

By Paul Bowers Profile in professionalism 39 ADana O’Brien Senior Vice President and General Counsel, CenterPoint Energy Trends 40 Legal Transfer on Death Deed

By Amanda Kreshover

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Qualifying for Medicaid is Utterly Different than Having Medicaid

By Farrah Martinez ReviewS 42 Media Mirandized Statements: Successfully

Navigating the Legal and Psychological Issues

Reviewed by The Hon. Josefina M. Rendón

The Oxford Handbook of the U.S. Constitution Reviewed by Preston D. Hutson

The Houston Lawyer

Cover photo: The HBA Ambassadors are a group of 20 young women and men who represent the present and future of the bar. They reach out to groups within and outside the HBA, to talk about how the association can improve their professional and personal development. Seated, from left: Janet Brown, Bradford Crockard, Jamie Sullivan, Farrah Martinez, Jesus Castillon, Precious Owodunni, Simin Sun and Jamila Brinson. Standing, from left: Chris Domingo, Marni Otjen, Rick Anderson, Hillary Holmes, Margot Trevino, Chris Porter, Tracy Penn, Robert Ford, Neal Sarkar, Jenny Nguyen, Ryan Wooten and Scott Kendall.

Photo by Ariana Ochoa.

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Lawyer Interrupted: Successfully Transitioning from the Practice of Law and Back Again Reviewed by Judy L. Ney

44 Litigation MarketPlace 45 ‘A Special Day at the Courthouse’

Large Firm Champions

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

Corporate Champions

Baker Hughes Incorporated BP America Inc. CenterPoint Energy, Inc. ConocoPhillips, Inc. Exxon Mobil Corporation Halliburton LyondellBasell Marathon Oil Company Shell Oil Company

Mid-Size Firm Champions

Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Beck | Redden LLP Beirne, Maynard & Parsons, L.L.P. Chamberlain, Hrdlicka, White, Williams & Aughtry Gardere Wynne Sewell LLP Gibbs & Bruns LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Haynes and Boone, L.L.P. Jackson Walker L.L.P. Jones Day King & Spalding LLP Morgan, Lewis & Bockius LLP Porter Hedges LLP Sidley Austin LLP Strasburger & Price, L.L.P.

Susman Godfrey LLP Sutherland Asbill & Brennan LLP Winstead PC Winston & Strawn LLP

Boutique Firm Champions

Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Blank Rome LLP Dentons US LLP Edison, McDowell & Hetherington LLP Fullenweider Wilhite PC Hicks Thomas LLP Hogan Lovells US LLP Hughes Watters Askanase LLP Jenkins & Kamin, L.L.P. Johnson DeLuca Kurisky & Gould, P.C. LeClairRyan McGuireWoods LLP Ogden, Broocks & Hall, L.L.P. Ogletree, Deakins, Nash, Smoak & Stewart P.C. ReedSmith LLP Sutton McAughan Deaver LLP Vorys, Sater, Seymour and Pease LLP Weil, Gotshal & Manges LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs & Goren, P.C. Yetter Coleman LLP

Small Firm Champions

Coane & Associates Flowers & Frankfort Frye, Steidley, Oaks & Benavidez, PLLC Funderburk Funderburk & Courtois LLP Fuqua & Associates, P.C. Hunton & Williams LLP Katine & Nechman L.L.P. Katten Muchin Rosenman LLP

KimLy Law Firm PLLC KoonsFuller, P.C. Kroger | Burrus Law Office of James and Stagg, PLLC The Law Office of Scardino & Fazel Shortt & Nguyen, P.C. Strong Pipkin Bissell & Ledyard, L.L.P. Tindall & England, P.C. Trahan Dinn Kornegay Payne, LLP

Individual Champions

Alejandro Macias Angela Solice Burford Perry, LLP C.Y. Lee Legal Group, PLLC Damani Law Firm David Hsu Diane C. Treich Hasley Scarano L.L.P. Helene Dang The LaFitte Law Group, PLLC Law Office of Bertrand C. Moser Law Office of Cindi L. Robison Law Office of Gregory S. Lindley Law Office of J. Thomas Black, P.C. Law Office of Jeff Skarda Law Office of Maria S. Lowry Law Office of Papa M. Dieye Law Office of Peter J. Bennett Law Office of Robbie Gail Charette Martin R.G. Marasigan Law Offices Pilgrim Law Office Robert E. Price The Ericksen Law Firm The Jurek Law Group, PLLC Law Office of Evangeline Mitchell, PLLC The Law Office of Norma Levine Trusch

president’s message

By LAURA GIBSON Dentons US LLP

Diversity is the Key to Future Success

T

he HBA is proud to present you this outstanding issue of ethnic diversity and a 3% rise in revenue as a result of gender which explores the importance of diversity in the legal diversity. profession. The HBA has been committed to improvThe CTI study found that when teams have one or more meming and celebrating diversity for many years. In particbers who represent the gender, ethnicity, culture, generation, or ular, our Minority Opportunities in the Legal Professexual orientation of the team’s target end user, the entire team is sion Committee (MOILP) encourages and promotes much more likely to understand that end user such equal opportunities for minority lawyers in the legal Ultimately, that they dramatically increase their likelihood of profession and in the HBA in particular by developcoming up with innovative solutions for their target America’ s ing and sponsoring educational programs, as well as customer. clerkship opportunities for minority law students.

However, in order to maximize the value obtained answer to This year’s co-chairs are Chevazz Brown, a partner from the perspectives of a diverse workforce, leaders the intolerant have to be focused on developing what CTI refers with Jackson Walker LLP, and Farrah Martinez, a solo practitioner. The MOILP Committee is hard at to as a “speak-up” culture which is an environment man is work placing minority law students at Houston area where everyone is encouraged to volunteer their firms and public employers, such as with the courts opinions, innovative approaches and proposed sodiversity. and our county attorney. This year, the committee lutions that are different from the company’s estabRobert Kennedy hopes to place 50 students with 50 employers. lished practices.

The MOILP Committee is also working to plan the annual lunThe Harvard Business Review, in an article in 2012 titled “Leadcheon which will take place June 7 at the Doubletree Hotel. Please ership is a Conversation,” identified four elements of organizacontact the HBA if you want to demonstrate your commitment tional conversation which are critical in establishing an interperto diversity by employing a diverse law student this summer or sonal conversation. Those factors are: 1. intimacy; 2. interactivity; by attending the MOILP luncheon. You can read more about the 3. inclusion; and 4. intentionality. The authors found that leaders, committee on page 37. by talking with their employees rather than issuing mandates Diversity is not only the right thing to do, studies have found from on high, can recapture characteristics such as operational that organizations which are diverse are much more likely to be flexibility, tight strategic alignment and high levels of employee successful. In 2013, New York-based Center for Talent Innovation engagement that are typically characteristic of startup companies, (CTI) looked at 40 case studies and 1,800 employee surveys takwhich historically have consistently out-performed more estabing into account organizations which had “two-dimensional dilished competitors. In our current market, lawyers and law firms versity,” which is a combination of inherent diversity, such as genare striving to be innovative and meet our clients’ needs. By utilizder and race and “acquired diversity” such as language skills and ing these elements to encourage and promote a speak-up culture, global experience. CTI found that publicly traded companies who we can adapt to the changing market conditions. have a two-dimensional workforce were 45% more likely than We are fortunate to live and work in Houston. The Houston those without such diversity to have increased their market share metropolitan area is now the most ethnically diverse large metroover the past year and even more powerfully, 70% more likely to politan area in the country, and we all benefit from that diversity. have expanded into new market areas.

Texas lawyers are also truly privileged to have one of the best Similarly, a study by the American Sociological Association diversity programs in the country in the form of the Texas Minorfound that for every 1% rise in the rate of ethnic and gender diverity Counsel Program (TMCP). This year’s co-chairs are Caroline Continued on page 45 sity in a workforce, there is a 9% rise in sales revenue as a result

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Defending Texans Since 1994 Former Assistant United States Attorney Former Assistant District Attorney Founding Member of the National College of DUI Defense of Counsel Williams Kherkher LLP Law Office of Ned Barnett

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from the editor

By Angela L. Dixon Law Office of Angela L. Dixon, PLLC

Associate Editors

W

Embracing Diversity

their experiences and shared their thoughts on sevhen I learned of the themes for the eral topics, including challenges minority attorneys bar year, I was especially excited face and what changes can be made to hopefully reabout the theme for this issue, Dimove those challenges. The attorneys also give advice versity in the Profession. Oftentimes, on how attorneys can make their practice more fulfilwe do not take the time to discuss ing. I must acknowledge Kimberly A. Chojnacki who and highlight our differences. Diversity encompasses organized this effort doing everything from soliciting so many different things, but we certainly associate participants to writing the questions and it with race, gender, sexual orientation, final articles. The next article comes from culture and ethnicity. Some suggest that Oftentimes, Elizabeth Campbell who contributes a the legal profession is one of the least diFarrah Martinez piece on overcoming barriers to recruit verse in the country. While that may be we do not Attorney at diverse talent. She provides statistics and disheartening, efforts are being made to Law take the time data on historically under-represented bring light to how differences add value groups and what the legal industry can do and substance. If we open ourselves up to to discuss and to increase the presence of these groups. learning and embracing what individuals Next, Judge Josefina Rendon adds anwho are different from us have to offer, we highlight our other dynamic to the diversity issue in grow and will be better for it. her article on representing a culturally diOn The Houston Lawyer editorial board differences. verse client. Oftentimes there are barriers while small in size, we have a diverse Taunya Painter due to language, behaviors, customs, etc. Judge Rengroup of members.

Half of the board members are Painter Law Firm PLLC don discusses the most common issues and offers some women with varying years of experience and range of guidance on how to move forward when representing a practice areas. Some serve on the courts, while others client with a diverse background. Finally, in a personal work for big firms and others have their own law pracfeature, Ray Panneton sat down with Judge Ruby Sontice. Our members represent diverse cultures such as dock, first woman to sit full-time on the Texas Supreme African-American, Asian-American, Hispanic, Indian Court. She shares how she entered the profession and and Syrian to name a few. One female member was one reflects on her career experiences. of the first Hispanic attorney’s in Houston. Aside from As with all of the issues of The Houston Lawyer magaEnglish, a few board members speak multiple languagHon. Jeff Work Law Offices of Susan es and are fluent in French, Arabic, Spanish and Odia. zine, the reason we have such high caliber articles is E. Cartwright due to the help of dedicated guest editors. I would like Being a part of such a great diverse group has been bento thank Nicole Bakare, Kimberly A. Chojnacki, Amaneficial to me and most certainly it has helped advance da Kreshover, Judy Ney and Judge Josefina Rendon for the goals of the magazine. their commitment to making the March/April issue a In this issue of The Houston Lawyer, in order to gain great one! The bar year is passing quickly, but we still some perspective on diversity in the profession lohave one more issue. Our final issue of the bar year for cally, we assembled two articles, one from attorneys May/June will have a Historical focus. Until then, read who mostly have over thirty years of experience and Jill Yaziji these articles in good health and see how you can emone from younger attorneys practicing less than eleven Yaziji Law brace diversity! years.

These attorneys were willing to be candid about Firm Polly Graham Fohn Haynes and Boone, LLP

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The Houston Lawyer

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BOARD OF DIRECTORS President

Secretary

Laura Gibson

Warren W. Harris

President-Elect

Treasurer

Neil D. Kelly

Alistair B. Dawson

First Vice President

Past President

Todd M. Frankfort

M. Carter Crow

Second Vice President

Benny Agosto, Jr.

DIRECTORS (2014-2016)

Richard Burleson Chris Popov

Diana Perez Gomez Greg Ulmer

Jennifer A. Hasley Daniella D. Landers

DIRECTORS (2013-2015) Bill Kroger Hon. Erin Lunceford

editorial staff Editor in Chief

Angela Dixon Associate Editors

Polly Graham Fohn Taunya Painter Jill Yaziji

Nicole Bakare Catherine Bratic Kimberly Chojnacki Jason Goff Al Harrison Preston Hutson Judy Ney Marni Otjen Raymond Panneton David Rusk Zach Wolfe

Farrah Martinez Hon. Jeff Work

Editorial Board

Paul Bowers Heaven Chee Jonathan C.C. Day Amy Hargis Matthew Heberlein Amanda Kreshover Jeff Oldham Suchismita Pahi Hon. Josefina Rendon Matthew Walker

Managing Editor

Tara Shockley

HBA office staff Executive Director

Kay Sim Administrative Assistant

Director of Projects

Director of Education

Projects Assistant

Continuing Legal Education Assistant

Membership and Technology Services Director

Communications Director

Membership Assistant

Communications Assistant /Web Manager

Receptionist/ Resource Secretary

Amanda Piesche

Bonnie Simmons

Ashley G. Steininger

Lindsey Ham

Jessica Lindsey

Ron Riojas

Tara Shockley

Sheena John

Ariana Ochoa

Lucia Valdez

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By Kimberly A. Chojnacki

Practice Perspective:

A Look Back for the Benefit of the Future I

look forward to telling future young attorneys (and my children and grandchildren) about the moment I learned that the United States Supreme Court held the federal Defense of Marriage Act unconstitutional,1 and the right to marry a person of one’s choosing so inviolate and fundamental that it could be not be denied to same-sex couples.2 For me, those have been decisive moments in history where I can see distinct, undeniable shifts in the way all Americans are respected and considered.

Each generation has its own defining moments that shape the path before them. This is especially true with respect to how we, attorneys, interact with one another in litigation and transactions as well as interpersonally.

Knowing the value of my own generation’s defining moment in my practice, I was curious to learn of the lessons and changes attorneys from previous generations have experienced. Six Houston attorneys, each with a different cultural perspective, agreed to share their thoughts on this issue.

Barbara Radnofsky is a thirty-six year litigator and now has a mediation practice. She was one of the first women to have children as an associate at Vinson & Elkins LLP, where she went on to attain partnership.

Harry Gee is a board certified immigration attorney of Chinese ancestry who has been practicing for 53 years.

The Honorable Josefina Rendón is a Hispanic judge, attorney, and mediator.

sexual orientation) differences in the profession, describe how the practice of law is different today from when you first began.

The Honorable Phyllis Randolph Frye is a transgender attorney who focuses on criminal defense and transgender issues, and she is an associate municipal judge.

Ruben Rendón is a Hispanic attorney who was on the plaintiffs’ team in Ross v. Houston Independent School District, which resulted in the desegregation of public schools in Houston and led to the creation of the magnet school program.

Senfronia Thompson is an African-American attorney who has been practicing for 37 years and is a member of the Texas House of Representatives.

These attorneys discuss their experiences here in their own words.

From the standpoint of accepting personal (e.g., culture, gender, race, ethnicity, or

B. Radnofsky: The practice of law seems more filled with minorities, but the struggles for equal treatment remain. People must still fight their own tendencies to mistrust, fear, or turn from anyone different, an ongoing battle. Blustering racist, women-hating bigots still gain attention in the media, causing fear and concern among good people who also recognize the effects from the McCarthy era of red baiting and purges from government and from other employment fields of individuals suspected of Communism.

H. Gee: Having participated on the boards of a number of bar associations, I know that the bars have made concerted efforts to integrate, and their achievements and successes should be recognized and applauded. Because state judges in Texas are elected, I believe the composition of the judiciary reflected the electorate. Thus, when I began my practice of the law there were no Asian, Hispanic, or black judges at the district court level. Now we see all races represented in the state courts and a large number of female judges. Thus, I believe there has been a great minimalization of racial disadvantage by virtue of the integration of our respective communities and the diverse backgrounds from whence the judiciary comes.

Hon. J. Rendón: When I became a lawyer in 1977, there were only two Hispanic woman lawyers in Houston, making me only the third and now the oldest living Latina lawyer in town. Similarly, there were very few other women and minority attorneys practicing law. Back then, people often did not believe I was an attorney, not only because of being a minority woman but also because I looked so young. There are certainly a lot more women and minorities practicing law now than when I started in the 1970s.

Now Houston’s law schools have pretty much a 50-50 gender split and the City

has significantly more minority law students and attorneys. Consequently, you do see more women and minorities in court. But even now, I see that women, and, to a lesser extent, minority attorneys, are assigned to supporting and “second chair” roles while their “Anglo” male counterparts more often take the lead roles. Women and minorities are also still proportionally underrepresented as partners or as decision-makers in big law firms.

Hon. P. Frye: I passed the State Bar and was sworn in as a lawyer in May 1981.

But as an out transwoman, I could not get anyone to hire me or to mentor me, not even those who I knew to be gay or lesbian. And so from 1981 to 1986, I wrote an occasional will, did an occasional simple divorce, and did an occasional change of the name of a transgender person. Life slowly and progressively got better for me and my wife (now married for fortytwo years). But even today, while I must remind people that “Black lives matter” because this nation is still dealing with racism, “Trans lives matter” as well. Violence against people who express their gender differently is evidenced by the annual Day of Remembrances, held in late November in cities across the nation and in other countries. We gather to grieve over people who were murdered during the previous year simply for expressing gender differently. Each year, the majority of those trans people who are killed are also people of color.

R. Rendón: When I began practicing law in Harris County, there was at least one county criminal court judge who used racial slurs from the bench when he addressed minority lawyers. We have certainly come a long way from that.

S. Thompson: When I first started in the practice of law, things were very different because there were not very many females or minorities in this field. For me personally, as a woman and AfricanAmerican, I saw things like better cases thehoustonlawyer.com

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(both criminal and civil) go to larger law firms with more Anglos and men. Today, however, there are more women and minorities in the practice of law and much more acceptance across the profession. I would like to note that there is still some lack of acceptance for female/minority attorneys when it comes to larger, more profitable cases.

What challenges do minority attorneys continue to face in the practice of law today?

H. Gee: Undoubtedly, there remain members of various communities who are prejudicial against members of communities different from their own. Sadly, I do not believe that people can be compelled to like other people but it is imperative that government, educational institutions, and other public institutions be prohibited from discrimination. Given a more equal playing field, it is up to the individuals to overcome prejudices, often a daunting challenge.

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Hon. J. Rendón: Minority attorneys often still have to prove themselves as competent lawyers, judges, and law firm partners. By the same token, since there are more women and minority attorneys practicing today, the competition among them is greater. Before, for better or for worse, women and minority lawyers stood out of the crowd. Now they face competition with each other for the limited number of positions available.

Hon. P. Frye: Until a few years ago, trans law students could see little in the way of getting a job after passing their state’s bar. However, the National Lesbian, Gay, Bisexual and Transgender (LGBT) Bar Association sponsors an annual career day for firms and governmental agencies looking to interview and hire LGBT lawyers. During the past two years, there has been movement to ensure that during this annual career day the “T” part receives more than mere “lip-service.” I advise any law student who is trans to attend the next National LGBT Bar Asso-

ciation Conference and Career Day event in August. For information, Google “Lavender Law 2016.”

R. Rendón: The challenges for minority attorneys are the same as they have always been, just not as pronounced. Minorities in the corporate and government sectors have problems reaching positions of responsibility. Those of us who represent individuals still have problems obtaining and retaining clients of different racial or ethnic groups as our own.

S. Thompson: Minorities and women in the practice of law still face challenges such as lower wages and being marginalized in their firms. Additionally, I would say that minorities and women are less likely to be of counsel and may face fiercer competition/criteria in the selection process.

What changes still need to happen?

B. Radnofsky: I see little human differ-

ence from the McCarthy era or the antics of George Wallace to the current, politically charged atmosphere of race baiting, hate-filled, misogynist national figures, most of them lawyers or dominant in their use of the legal system, seeking to prevent the betterment of folks different than they are. Good people, including fine lawyers, continue to work hard to overcome the roles of bad leaders appealing to the worst in human nature. Eternal vigilance seems a reasonable price to pay.

H. Gee: Educational opportunities must be accorded to all so as to fill the pipeline with qualified individuals, irrespective of their race, nationality, or gender.

R. Rendón: It would be great if more Texas attorneys were taught and became more conscious of cultural differences and how to avoid discrimination and being culturally biased. I also see a greater number of young attorneys not having the same respect for authority, the judicial system, or law enforcement that I believe my generation had. Many are entering the profession not realizing that they still have much they can learn from older and more experienced attorneys.

Hon. P. Frye: In general, I think that our nation still needs a lot of work on racism.

Yes, we have come far, but the United States remains a racist nation in many ways. Also, our nation still has a lot of work to do on sexism. Women should have pay equal to that of men for the same work. Women should represent half of the elected officials in the local, state, and national governments. Women should have control over their own bodies. Transwomen and transmen need to come out. It is more difficult for someone to discriminate against trans folks when these trans folks are folks that this particular someone has met and come to know and like.

R. Rendón: The changes, reflected by young people in general and young attorneys in particular, need to continue.

Their attitudes toward diversity in general are much more progressive than their parents’ attitudes.

S. Thompson: Society needs to be colorblind and invest in the educational system regardless of the school and the ethnicity of the students. A fundamental change in the diversity of the judiciary and the attorney population would greatly help minorities being marginalized.

If you could give your younger self (or younger attorneys) one piece of advice to make your practice more fulfilling, what advice would you give?

B. Radnofsky: I’d recommend someone starting out by taking the time to create a mission statement, set goals for what they’d love to do, and to maintain the flexibility to periodically evaluate and modify both the mission statement and the means used to carry it out.

H. Gee: While our responsibility as an at-

torney is to provide sound legal advice, I have found that my clients have appreciated and reciprocated my care and concern for their welfare even beyond the legal context. I have seen an instance where one of our attorneys erred in the handling of a client’s case, but the client so appreciated the attorney’s care and concern that he forgave the attorney for his error. While not all clients will be so forgiving, I have found the personal interest and concern is appreciated by our clients in their referrals and introductions to other legal opportunities. We treat our clients’ cases as more than just another legal matter, but more as a human odyssey.

Hon. J. Rendón: I did not get to actually practice law for very long, having become a judge within five years of becoming a lawyer. But as a judge for thirty-two years I have had the privilege of seeing many attorneys practice before me. I have dealt with attorneys that I highly respect for their ethics, integrity, and decency

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with their fellow human beings, regardless of status, color, or ethnicity. I have seen others who fell short on these attributes. Their reputations as one or the other have followed them through their careers, some deserving the respect of others, some not. I would urge all young attorneys to make sure they lead a life of professionalism in all aspects, including the equal and decent treatment of all others who appear in their path.

Hon. P. Frye: The practice of law is a business. You should get paid what you are worth, and you should be sure to get paid in a timely manner. Too many young attorneys devalue their work just to get a client. And too many do not collect at least some of the fee upfront.

R. Rendón: Lawyers are generally divided between those who represent large public and private institutions and those who don’t. For younger minority attorneys who represent individuals, the biggest mistake they make is not asking for help.

Therefore, my suggestion is to recognize how much one can benefit from asking for help and guidance from others.

S. Thompson: The pressures of life are such that it is very easy for a young lawyer to get the idea that he/she must be the most dynamic individual, a record breaker, set the world on fire, see their names in the headlines. However, to be a good lawyer you must be a good person and a good citizen.

Respect yourself, your client, your peers, the judges, and your opponents. This will get you much further along in your career and you will have a much more rewarding practice overall.

Kimberly A. Chojnacki is an associate of Dow Golub Remels & Beverly, LLP and practices commercial litigation. She thanks Judge Josefina Rendón for her help in recruiting the voices for this article.

Endnotes 1. United States v. Windsor, 133 S. Ct. 2675 (U.S. 2013).

2. Obergefell v. Hodges, 135 S. Ct. 2071 (U.S. 2015).

thehoustonlawyer.com

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By Kimberly A. Chojnacki

Practice Perspective:

A Look Forward with an Eye on the Past Y

ounger generations of practicing attorneys have seen incredible changes in their practice, even in the past five years alone, especially with respect to what the “Law of the Land” is and their role within it. While I appreciate that the younger generations are not unique in seeing such seismic shifts, it is interesting to be working with—and within—the law when it is changing so rapidly.

That being said, I also do not delude myself into believing we have no further steps to take to ensure our country— including the legal field—live up to its promise that all are created equal. And that is where the younger generations

of attorneys step in, to lead the charge of further change and equalization among citizens and colleagues. To do so, we must understand one another, our backgrounds, or viewpoints, and where we each believe change is necessary, in order to form that coveted more perfect union. To that end, four Houston attorneys with varying cultural perspectives agreed to share their thoughts on where we stand and where we should aim to go.

Andrew Dao is a fourth-year Vietnamese civil litigator.

Natara Williams is an African-American corporate lawyer who has been practicing for eleven years.

Nita Garg is an Indian-American, fifthyear healthcare attorney.

exceptions, and I have certainly witnessed certain biases and discriminatory attitudes, but I think this particular community is moving in the right direction in terms of overcoming many stereotypes and discrimination.

What challenges do minority attorneys continue to face in the practice of law today?

Stephanie Hamm is a seven-year civil litigator in labor and employment.

From the standpoint of accepting personal differences (e.g., cultural, gender, race, ethnicity, or sexual orientation) in the profession, describe how the practice of law is different today from when you first began.

A. Dao: I am proud to see the respectful way my colleagues (the attorneys I have personally interacted with) in the legal profession treat others with cultural, gender, race, and other differences.

N. Williams: I have been fortunate in that while working at a law firm, I was able to identify and work with partners for whom my race and gender was not an issue. Also, now as an in-house attorney, I have had the opportunity to work with other counsel and general counsel that have been accepting of my gender and race. From the firm perspective, it is more difficult to identify these partners and I have had experiences where partners were more hesitant to work with me or wanted to work only with lawyers who were of the same gender and shared their same racial and socioeconomic background. However, I quickly moved on from these partners and focused my efforts on working with those who seemed more accepting and open.

S. Hamm: Practicing in such a large and diverse community as Houston, I have generally found that most people are fairly accepting of these types of differences, at least outwardly so. There are

A. Dao: I do not let my minority status affect the way I practice. I learned early on to let my work speak for itself.

Regardless of the color of ones’ skin, once people see the work ethic, professionalism, and results, they will see that person as a colleague to respect in and out of the courtroom. I feel the legal profession is underrepresented in terms of Asian-American attorneys (in comparison to other post-graduate fields).

I was fortunate to have several friends who have been on the same path, and hearing their experiences was helpful.

My family emigrated here from Vietnam with nothing. Their hard work and perseverance allowed me to have opportunities I would not have otherwise received. For that reason, I know that hard work is what ultimately matters.

Once I entered the legal profession, I do not believe I experienced challenges that were solely due to being a minority.

When I first practiced law, I did have a chip on my shoulder any time I came across other attorneys who would speak to me haughtily. But I didn’t attribute that to me being a minority. Rather, I put that on me being young and green in the practice of law, and not having done anything yet. Don’t let people’s initial impressions of you become a challenge or obstacle. Work hard and you will be taken seriously.

which I suffered was related to my minority status. As there are not many Asian-American female associates, let alone partners, for my first few years of practice, I had convinced myself that I must have been a “token” diversity hire and that I did not truly earn, or deserve, my position.

S. Hamm: I would not say that being a woman has necessarily affected the way that I practice law, except for situations where I’m forced to overcome certain challenges. I do sometimes feel like young female attorneys are expected to prove themselves in ways that other attorneys are not; so, if anything, maybe it has made me work even harder. But I have my own style, just like every other attorney, and I try to stay true to that, regardless of the situation presented. As a young female attorney, I have generally found that many older male attorneys are quick to assume that I am the attorney’s secretary or paralegal. On one occasion, I was finishing up a 30-minute meeting with an older male attorney (after months of exchanging emails with this attorney about the lawsuit we were working on), only for him to express great surprise that I would be defending an upcoming deposition, because the thought had not occurred to him that I was an attorney. At this point, I had been practicing for six years. Clients, too, often remark that I look “too young to be an attorney” and often refer to me as “sweetie” or “darling.” I am fairly certain my male counterparts do not have the same experiences. So, in short, the greatest challenge I have experienced as a young female attorney is being taken seriously before having to prove myself as a competent young attorney.

What changes still need to happen?

N. Garg: One of the earliest challenges I faced practicing law was feeling as though I belonged. I attribute some of my lack of confidence to natural first-year jitters, but I also believe that much of the “imposter syndrome” from

A. Dao: We all need to understand that we all come from different backgrounds.

As our upbringing and life experiences all shape who we are, we all bring something different to the table. We can thehoustonlawyer.com

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17

learn a lot from others, and we need to continue to be open-minded.

N. Williams: We have to encourage the majority to work with minorities and to be comfortable with being uncomfortable. Sometimes relationships with people who are different from us can initially take more effort and understanding and will require people to acknowledge and work on their own preconceived notions and prejudices.

We also have to get the message across that minorities shouldn’t just be given one chance. It’s easy to say, “Well I tried but he/she made a mistake and ‘didn’t get it’.” Give someone the room to make mistakes and to learn and grow from those mistakes without judgment or bias. It may require an adjustment in communication styles or explanations to be structured differently; however, in the end it’s a win-win for both parties.

Not only does it result in the practice of law being more inclusive and diverse as more minorities are given the op-

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portunity to progress, but it also makes the partner or senior attorney in that scenario a better lawyer and businessperson as he or she learns how to communicate effectively with a variety of people.

N. Garg: There is a glaring lack of diversity in the industry. This lack of diversity is only more apparent on the partner and management level. It is still major news when the managing partner of a large law firm office is female; it is even bigger news when it is a person of color. Perhaps it is my innate optimism, but I truly believe most attorneys want diversity among their colleagues. However, I think many firms and in-house employers are not pro-actively making the efforts necessary to increase diversity or, quite likely, have no idea how to begin. I believe a large part of the problem is that oftentimes, hiring decisions and diversity initiatives are led by management committees that often lack the diversity that they are seeking.

There needs to be more of a push for hiring committees to more adequately represent the diversity that firms are seeking.

S. Hamm: As with everything, I think it is important for people to be open minded about other genders, cultures, races, et cetera, and to reject the old stereotypes. Some stereotypes have become so ingrained in the way that people think that they do not even realize it. In my experience, the best way to get over certain stereotypes is to actually spend time with different groups of people.

If you could give your younger self (or younger attorneys) one piece of advice to make your practice more fulfilling, what advice would you give?

A. Dao: Join an organization or bar association. One of the first organizations I joined out of law school was the Asian American Bar Association

(AABA). Through the AABA, I met minority attorneys who were involved and succeeding in all different fields of law, including transactional, litigation, in-house, criminal, and immigration law. Find the type of law that makes you happy. Work is going to be work, but that doesn’t mean it shouldn’t be fun. I deeply respect the law. I have met many attorneys who are strong advocates for their clients. It is on us as attorneys, regardless of color, gender, or age, to continue making a good name for the practice of law and to do things the right way. The cases should come down to the facts, not gamesmanship and hiding the ball.

N. Williams: Have a defined strategy for getting work, identifying and fostering mentor and sponsor relationships and be flexible. Also, don’t put your career in the hands of someone else; take control of your career path and don’t be afraid to be vocal about your goals.

S. Hamm: I give all new attorneys the same advice I was given when I first started practicing: “Confidence is key. Figure out what you want to say, stand up, and say it.” Although this advice may sound more “easier said than done,” what I took it to mean is that preparation is vital because true preparation is what leads to confidence.

Take the time to really figure out what the legal and factual issues in your case are, and think about them from the viewpoint as an advocate for your client. Knowing your case inside and out and thinking about the issues in a way that favors your client makes it a lot easier to confidently stand up and make your case to the court (or opposing counsel).

Kimberly A. Chojnacki is an associate of Dow Golub Remels & Beverly, LLP and practices commercial litigation. She thanks Mr. Dao, Ms. Williams, Ms. Garg, and Ms. Hamm for lending their voices to this article. thehoustonlawyer.com

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By Elizabeth A. Campbell

Overcoming Barriers to Recruit Diverse Talent Chart based on law schools that submitted information to NALP. See endnote 3.

T

he legal industry needs more “HUGS” —i.e., more members of historically under-represented groups.1 At almost 90% white, law may be the least diverse profession,2 even though, as the chart [left, below] demonstrates, a diverse talent pool exists.3 The industry struggles to maintain this representation as students pursue their careers. For 2014 and 2015, the representation of ethnically diverse attorneys at some of the larger Texas firms was only 14%.4 While HUGS remain underrepresented, it is not due to lack of recruitment efforts.

Although vital, such efforts should be incorporated into a comprehensive talent strategy which can address why barriers to entry exist—and persist—for HUGS. Awareness is always the first step to addressing any problem. When we acknowledge recruitment barriers and their historical underpinnings, we can address those barriers and increase diversity.

Excellent efforts are underway, but for the diversity composition of the legal industry in the future to look different, we need comprehensive strategies.

I. CONTEXT Recruitment should not be viewed in a vacuum. Historically, the legal industry has been comprised predominantly of white males. While women and members of HUGS have been graduating from law schools since the 1800’s, collectively they have yet to attain critical mass in the workplace.5 Some disparity results from intentional discrimination, which was pretty much legal in the south before 1964. However, there likely were other, more subtle, barriers that thwarted the efforts of HUGS to get into college and law school.6 Requirements Even when members of HUGS did graduate, there were still barriers to attorney jobs,7 reflecting the conversion of “traditions,” “preferences,” and/or “conveniences” to “requirements.”8 What may have happened—and will

continue to happen without conscious decision-making—is that those with influence were systematically excluding HUGS by recruiting lawyers satisfying certain “requirements,” such as people with similar backgrounds, education, and geography.

Is it a “requirement” that one be from Texas or attend a Texas law school to work in Texas? Of course not. However, because of “traditions” (the way we have always done it), “preferences” (a firm’s hiring or managing partner went there), or “conveniences” (it is easier to recruit at nearby schools), many law schools and their diverse students may be eliminated from the recruitment process altogether.

While law schools outside of Texas champion their diversity efforts (e.g., Harvard and the University of Michigan), opponents of affirmative action have challenged the University of Texas (“UT”) before the United States Supreme Court twice.9 A ruling against UT could hamper the diversity efforts of educational institutions nationwide.

Atmospherics One cannot deny the chilling effect of unwelcoming conduct on HUGS, both in the courtroom and in the workplace. For example, a Texas state judge was recently disciplined for cultural/religious bias10 and a company paid $4 million to settle a case involving racially offensive workplace behaviors.11 Race (35%) and gender (30%) discrimination charges before the U.S. Equal Employment Opportunity Commission in fiscal year 2015 continue at high levels.

I experienced unwelcome conduct from a client who requested my removal from counsel’s table during an administrative hearing. I was second chair, had barely said one word, but my presence openly representing this client evidently could not be tolerated.

At the other end of the spectrum, there is also concern that “diversity programs” are unsuccessful and may negatively affect HUGS, white males,12 and workplace environments.

about yachts, professional sports franchise II. CURRENT EFFORTS ownership, or guns/hunting (as a student The Association of Law Firm Diversity elsewhere in Texas recently shared), the Professionals was formed to help advance resulting feeling of exclusion is palpable. diversity in the legal profession. It had While assimilation to cultural norms is about 30 members when I joined in 2007, tempting, it is usually of no comfort. but now has over 140 members from 96 During a visit at a client’s racetrack years firms. ago, I had to leave because Law firm diversity efthere were so many conforts include: working If leadership is federate flags. My French with law schools and bar not committed to this colleague innocently associations (including “What’s wrong?” the ABA Judicial Intern value proposition, then asked: My response: “I’m scared.”

Opportunity program It is a best practice for and the Houston Bar Asexpecting diversity law firms and law departsociation’s Minority Opments to take a strategic recruitment efforts to be portunities in the Legal approach to diversity and Profession program); successful long-term inclusion (“D&I”), whethparticipating in diversity er as a stand-alone straterecruitment fairs; sponis unrealistic. gy or as part of a business soring scholarships; and strategy which includes workforce, workstrategically utilizing summer programs. place and marketplace components.

Though helpful, selectively recruiting However, recruiting to satisfy a workdiverse law students misses the opportuforce representation metric is insufficient nity to cultivate pre-law students, likely a to achieve sustainable D&I progress. Emmore diverse talent pool. To this end, the ployers must also make the workplace legal industry is collaborating with organienvironment welcoming to HUGS, for exzations, such as: ample by: • Council on Legal Education Oppor• reviewing/updating human resource tunity (“CLEO”); policies to ensure inclusiveness of • Just the Beginning Foundation; HUGS; • Patricia and Paul Yetter Law School • training all employees on human Preparation Institute, University of resource policies and supporting Texas at El Paso; practices; • Sponsors for Educational Opportu• curtailing “exclusionary” behaviors;13 nity (“SEO”); and and • University of Houston Law Center • communicating leadership support.

Pre-Law Pipeline Program.

“

”

Strategies For long-term success, efforts to diversify the talent pipeline on the front end must be matched by a commitment to making the workplace environment welcoming to HUGS—which raises the “requirements” analysis. Defaulting to workplace “traditions” and “conveniences” could hamper genuine diversity efforts. The Anti-Defamation League’s “Community of Respect” recognition, for example, underscores the importance of workplace environment.

I have experienced this sense of “you are not like us.” Whether the conversation was

Finally, the historical (read “traditional”) reputation of an employer to exclude HUGS can thwart well-meaning current efforts to diversify. Thus, employers should “market” their D&I efforts and successes.

III. FUTURE The business case for D&I will prove itself over time, and employers will no longer perceive diversity as a “nice to have,” but rather require diversity from a talent and business perspective.

In this landscape, employers will proactively derive performance value from a thehoustonlawyer.com

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21

diverse team of attorneys for the benefit of their clients. If leadership is not committed to this value proposition, then expecting diversity recruitment efforts to be successful long-term is unrealistic.

Data Diversity recruiting could be more successful if there were an effort to address what unconsciously may be minimizing the representation of HUGS. Certainly, there is the general issue of implicit bias and its

impact on socialization in the workplace.14 And even in Houston, the country’s most diverse city, the assessment of race and ethnic relations varies widely by the race/ ethnicity of the observer.15 Several organizations collect and evaluate data relating to diversity recruitment and retention including the Institute for Inclusion in the Legal Profession and the Leadership Council on Legal Diversity (“LCLD”). Such data can guide firms and legal departments toward implementing

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effective D&I strategies. For example, research indicates that the shut out-rate (i.e., the percentage of students who did not get into any law school) is 31% for whites, but 37% for Asian/Pacific Islanders, 45% for Hispanics and 60% for African Americans.16 Incorporating law school admission test and law school preparedness into a diversity recruitment strategy may decrease the shut out rate for ethnic HUGS and, at the same time, increase their academic performance in the critical first semester of law school.

Organizations such as CLEO and SEO, which focus on preparing ethnically diverse students for law school, recognize that helping students meet existing hiring standards is a pathway to strong academic performance in the long-term, particularly for those who may be first-generation law students.

Grades Perhaps the ultimate “requirement,” law school grades matter, though firms may evaluate grades and class rank differently depending on the school. Nevertheless, the disproportionate impact of first semester grades on a student’s long-term career trajectory cannot be overstated. No matter the effort, it is difficult to overcome the effect of a first semester 2.0 grade point average (GPA). And it is certainly “convenient” for recruiters to cut through volumes of resumes by utilizing an inflexible grade/ school metric.

Interestingly, when I worked with outside counsel, I never asked an attorney his/ her GPA. As a practicing attorney, I cannot remember being asked about my GPA. And when I hired lawyers to work with me, I did not ask about their GPAs. My “requirement” was performance and relevant experience.17 Recognizing the realistic role that grades play in the hiring process is another reason for recruiting efforts to incorporate talent pipeline development programs. “It is easier to change the students than to change the system,” said my law partner Mark Arnold, who co-leads our associate evaluation committee.

To achieve greater diversity, employers should: 1. assess the diversity representation of law schools as a selection criteria for recruiting; 2. interview students at a broader range of law schools; and then; 3. target law students who meet the “traditional” model of success potential (i.e., grades).

Successes Opportunities abound to increase diversity when the selection process considers factors such as work ethic and demonstrated performance. This is especially true for several judges whom I know.

For example, I am working with one federal judge in Texas who is committed to diversity among his interns/law clerks.

I assist by speaking to his team about the importance of D&I and by identifying candidates for him to evaluate. Our successes include a top student at the country’s most diverse law school, Thurgood Marshall School of Law. From mentoring her, I knew she was having difficulty finding law firm opportunities as a 2L, in spite of her outstanding academic performance.

However, she had a successful summer internship with this judge and subsequently obtained a clerkship with a U.S. Circuit Court judge.

I also introduced this judge to a top tier law school graduate desiring to move to Houston. Law firm offers were not forthcoming. The judge interviewed and hired her. The lawyer completed her clerkship and is now working at a major law firm in Houston.

I am not alone in this work and I am grateful to those who join in this effort.

Though challenging, it is well worth it.

IV. CLOSING For some, the discussion of D&I has no relevance in the legal community. Historically, this is the ultimate realization of the exclusionary effects of “requirements.”

Left unquestioned, the operation of “requirements” will suppress well-meaning recruitment efforts and likely stall the in-

crease in diverse talent.18 A more successful strategy may depend upon the other factors that influence decision-making, specifically the “preferences” of corporate counsel and others who hire attorneys and retain outside counsel. D&I may be the beneficiary of the elevation of these preferences to requirements.

Because the legal services industry is so competitive, increasingly legal work is being awarded via a Request for Proposal (“RFP”) process. Often RFPs ask propos-

ers to demonstrate their D&I commitment to align with that of the prospective client.

LCLD members and other corporations also want a diverse team of attorneys in pitch meetings. Some clients regularly ask for attorney demographics, including on invoices. Indeed, “[c]lients can influence law firm practices.”19 As members of HUGS advance to positions of influence, their impact on recruiting diverse talent should grow along with the utilization of diverse practice teams.

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When a client, I was cognizant of the make-up of trial teams and once had to recommend the termination of an outside lawyer for making gender offensive comments.

Clients are driving a sustainable consideration of D&I that will support recruitment of HUGS. These clients embrace Gandhi’s words: “Be the change you wish to see in the world.”

Change is difficult and it will take more than a few years of dedicated efforts to realize increased diversity in an industry as old as our country. With intentionality, change is going to come.

Finally, there is no “one size fits all” solution. Diversity recruiting strategies must be tailored to meld with an organization’s culture. Thus, per Dr. Martin Luther King Jr.: “If you can’t fly then run, if you can’t run then walk, if you can’t walk then crawl, but whatever you do you have to keep moving forward.”

Elizabeth A. Campbell is Partner and Chief Diversity Officer at Andrews Kurth LLP.

This article expresses her views and are not necessarily those of Andrews Kurth..

Endnotes

1. Here, “diverse” means people of color and members of the LGBT and disabled communities, collectively “HUGS” -- not my original term, but more accurate than “minorities.”

2. See, e.g., Deborah L. Rhode, Law is the least diverse profession in the nation. And Lawyers aren’t doing enough to change that, THE WASHINGTON POST: POST EVERYTHING (May 27, 2015). See also Letter from Will A. Gunn, Chair of ABA Commission on Racial and Ethnic Diversity in the Profession, to Elizabeth A. Campbell (December 30, 2015) (on file with author).

3. The ethnic information contained in this chart is based upon law school data submitted to NALP for students who voluntarily self-identify.

See www.nalplawschools.org. Therefore, not all students are included, and only six Texas law schools submitted data to NALP. 4. Brenda Sapino Jeffreys, Survey: Slight Increase of Minority Lawyers at Big Firms in Texas, TEXAS LAWYER (Dec. 3, 2015).

5. Elizabeth Espin Stern, ¿Quién Soy Yo?—Staying True to Your Unique Voice, INSTITUTE FOR INCLUSION IN THE LEGAL PROFESSION, IILP REVIEW 2014: THE STATE OF DIVERSITY AND INCLUSION IN THE LEGAL PROFESSION, AT 168, 171 (2014).

6. The fairness of the SAT has been questioned. See Maria Veronica Santelices & Mark Wilson, Unfair Treatment?, HARV. EDUC. REV. (Spring 2010).

7. See David Wilkins, Ronit Dinovitzer & Rishi Batra, Urban Law School Graduates in Large Law

Firms, 36 SW. U. L. REV. 433, 437 (2007).

8. See R. Roosevelt Thomas, Jr., Redefining Diversity, at p. 30 (1996).

9. Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013); Fisher v. Univ. of Tex. at Austin, 135 S. Ct. 2888 (2015).

10. John Council, Judge disciplined for “New York Jew” comment, TEXAS LAWYER, May 20, 2015, http://www.ieyenews.com /wordpress/judgedisciplined-for-new-york-jew-comment/.

11. John Council, Racist Graffiti Factors in $4M Factory Settlement, TEXAS LAWYER, Dec. 28, 2015, http://www.texaslawyer.com/id=1202745832001/ Racist-Graffiti-Factors-in-4M-Factory-Settlement.

12. See Tessa L. Dover, Cheryl R. Kaiser & Brenda Major, Diversity Policies Rarely Make Companies Fairer, and They Feel Threatening to White Men, HARV. BUS. REV. at 2 (Jan. 4, 2016).

13. See Dover, supra n. 12, at 4.

14. See the work of Dr. Jerry Kang, Vice Chancellor for Equity, Diversity and Inclusion and Professor of Law at UCLA, including Trojan Horses of Race, 118 HARV. L. REV. 1489, 1506 (2005).

15. Dr. Stephen Klineberg, The 34th Annual Kinder Houston Area Survey, RICE KINDER INST. FOR URBAN RES. (presentation) (Apr. 30, 2015), https://kinder.rice.edu/has/.

16. Robert L. Nelson, State of the Profession: Trends in Legal Diversity: Selected Findings from the Research Group in Legal Diversity, at 8 (presentation at ABA and Northwestern University) (Sept. 13, 2012).

17. The top three reasons chief legal officers cite in hiring outside counsel are: (1) results in similar cases; (2) reputation; and (3) prior relationship.

See Nelson, supra n. 16, at 25.

18. See Wilkins, supra n. 7, at 437.

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Crady, Jewett & McCulley, LLP

MehaffyWeber PC

Ytterberg Deery Knull LLP

BP

Crinion Davis & Richardson LLP

Morris Lendais Hollrah & Snowden

Zimmerman Axelrad Meyer Stern

CenterPoint Energy

De Lange Hudspeth McConnell & Tibbets LLP

Nathan Sommers Jacobs PC

& Wise PC

El Paso Corporation

Dentons US LLP

Ogden Broocks & Hall, LLP

Zimmerman, Lavine & Zimmermann P.C.

Kellogg Brown & Root, Inc.

Dobrowski, Larkin & Johnson LLP

Ogletree Deakins Nash Smoak

Zukowski Bresenhan, Sinex & Petry LLP

LyondellBasell Industries

Dow Golub Remels & Beverly LLP

& Stewart, P.C.

Doyle Restrepo Harvin & Robbins LLP

Pagel Davis & Hill PC

Firms of 25-49 Attorneys

Newfield Exploration Company

Ewing & Jones, PLLC

Parrott Sims & McInnis, PLLC

Adams and Reese LLP

Plains All American Pipeline L.P.

Faubus Keller & Burford LLP

Perdue Brandon Fielder Collins & Mott

Ahmad, Zavitsanos, Anaipakos,

Rice University

Fernelius Alvarez & Simon PLLC

Perdue & Kidd L.L.P.

Alavi & Mensing P.C.

S & B Engineers and Constructors, Ltd.

Fisher, Boyd, Johnson & Huguenard, LLP

Phelps Dunbar LLP

Andrews Myers, P.C.

Sysco Corporation

Fisher & Phillips LLP

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

Akin Gump Strauss Hauer & Feld LLP

Texas Children’s Hospital

Fizer Beck Webster Bentley & Scroggins PC

Reynolds Frizzell LLP

Beck Redden LLP

Total E&P USA, Inc.

Fleming, Nolen & Jez, L.L.P.

Roach & Newton, L.L.P.

Beirne Maynard & Parsons, L.L.P.

University of Houston System

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

Ross Banks May Cron & Cavin PC

Blank Rome LLP

Law School Faculty

Fullenweider Wilhite PC

Royston, Rayzor, Vickery & Williams, L.L.P.

BoyarMiller

Funderburk Funderburk Courtois, LLP

Rusty Hardin & Associates, P.C.

Edison, McDowell & Hetherington LLP

Law School Faculty

Galloway Johnson Tompkins Burr & Smith PC

Rymer Moore Jackson & Echols, P.C.

Gibbs & Bruns LLP

South Texas College of Law

Germer PLLC

Schiffer Odom Hicks & Johnson PLLC

Kane Russell Coleman & Logan PC

Thurgood Marshall School of Law

Givens & Johnston PLLC

Schirrmeister Diaz-Arrastia Brem LLP

Littler Mendelson PC

University of Houston Law Center

Godwin PC

Schwartz Page & Harding LLP

Roberts Markel Weinberg Butler Hailey PC

Gordon & Rees LLP

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

Seyfarth Shaw LLP

Government Agencies

Greer, Herz & Adams, L.L.P.

Shannon, Martin, Finkelstein, Alvarado

Yetter Coleman LLP

City of Houston Legal Department

Hagans Burdine Montgomery & Rustay PC

& Dunne, P.C.

Hartline Dacus Barger Dreyer LLP

Shipley Snell Montgomery LLP

Firms of 50-100 Attorneys

Harris County District Attorney’s Office

Hawash Meade Gaston Neese & Cicack LLP

Short Carter Morris

BakerHostetler

Harris County Domestic Relations Office

Henke & Williams

Singleton Cooksey LLP

Chamberlain Hrdlicka White Williams

Metropolitan Transit Authority of

Hicks Thomas LLP

Smith Adams Law Feehan LLP

& Aughtry

Harris County Texas

Hirsch & Westheimer PC

Smith Murdaugh Little & Bonham LLP

Coats | Rose

Port of Houston Authority of

Horne Rota Moos LLP

Smyser Kaplan & Veselka LLP

Cokinos, Bosien & Young

Harris County, Texas

MAXXAM, Inc.

Harris County Attorney’s Office

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By The Hon. Josefina M. Rendón

What Planet Is My Client From?

Representing the Culturally Diverse Client

A

few years ago an attorney friend spoke about a unique case he tried in Houston. A young woman had entered a public restroom and saw an older woman there who smiled at her.

Suddenly, the older woman approached her and touched her in the face while saying something in Spanish. Startled, the young woman ran out of the restroom and called security. The older woman was arrested and charged with misdemeanor assault. Now a criminal defendant, the older lady pled not guilty.

At trial, my friend tried to show the jury that his client did not assault the girl but instead was trying to protect her. According to old Mexican folklore and custom, if a young person is admired or smiled at, they become vulnerable to “mal de ojo” or the evil eye and susceptible to bad luck, sickness or death.1 The preventive remedy is to touch the young person. My friend brought credible evidence to show that this seemingly bizarre behavior was truly a custom in part of Mexico and that, consequently, there was no harmful intent on Defendant’s part. Still, the jury found her guilty. After trial, he learned that they did in fact believe her, but concluded that, since she lived in the United States, she should know that touching a stranger would have repercussions.

In few instances will American lawyers find such bizarre-sounding practices as in this case. However, with increasing frequency, American lawyers are bound to encounter client diversity issues that can impact, or derail, the outcome of their case. That is certainly the reality in the Greater Houston area where an estimated 28.4 percent of its population is foreign born and 45.8 percent live in homes where one of at least 90 foreign languages is spoken.2 Furthermore, Houston no longer has an actual racial majority and is now considered the most diverse metropolitan area in the country.3 Besides language,4 nationality, ethnicity, and race, client diversity issues may include: disabilities,5 gender, sexual orientation and others.

Diversity may specifically be why someone is seeking legal representation as the client may have claims involving employment discrimination, denial of disability accommodations, or other claims of discrimination or denial of legal rights. Our law schools and continuing legal education courses teach us how to best represent our clients in those situations, but seldom do they prepare us to handle client relationships or other “non-legal” issues dealing with our clients’ diversity. This article attempts to identify diversity issues that could affect case outcome or counsel’s ability to effectively represent the client. Most salient are the following: 1. How decision makers view and judge the clients and their behavior; 2. What are the clients’ expectations and views of our legal system, and; 3. How to interact with our culturally diverse clients.

How decision makers view and judge clients and their behavior As the above story tells, a jury may be negatively influenced by actions on the part of a client that deviate from more conventional behavior. Other factors impacting a decision maker’s view of a client include: language (whether or not, or how well the client speaks English), immigration status (though usually inadmissible in court), race, ethnicity, and education. Also potentially impacting decision makers’ favorable or unfavorable view of a client are gender, sexual orientation and disability.

A party’s or witness’ foreign citizenship or inability to speak English may affect American jurors negatively. Studies suggest that racial and ethnic minorities sometimes get less respect and lesser awards than similarly situated “mainstream” Americans.6 Such negative decisions by a judge or jury may be unconscious, rather than intentional. In fact, studies suggest that unconscious or “implicit” bias based on race, gender or other diversity situations strongly influences decision-making with inadvertent-

ly negative results.7 For example, regardcusal or change of venue. If your client’s less of what role they play in the justice conduct seems strange, get expert witsystem (attorney, litigant, witness, judge nesses familiar with your client’s culture or court employee), “women and mito explain differences and “normality” norities reported incidents of demeanof the behavior. Help the judge or jury ing behavior directed toward them.” see your client in the best light possible.

While some incidents were intentional, Show respect for your clients. “Humanmost were due to a lack ize” them and make of understanding of the them look as likable and Studies suggest 8 impact of their actions. “normal” as possible. that racial Treat them like you like Furthermore, judges and them yourself. If lanjurors may also “uninand ethnic guage is at issue, rememtentionally and autober that many variations matically ‘misremember’ minorities exist within each lanfacts in racially biased sometimes get guage and hire a certified ways during all facets of interpreter for that parthe legal decision makless respect ticular dialect or region. ing process.”9 Consider drafting jury How decision makers and lesser instructions addressing judge a client may also the possibility of implicit have to do with what awards than bias.12 Anticipate how they hear. If your client similarly situated does not speak English the client’s diversity may well, the interpreter’s affect the case and dis“mainstream” ability can have a crucuss this with the client cial impact on what the at the outset. Learn from Americans. jury actually hears. For your client by sensitively example, in Spanish the statement “Perdí asking direct, probative questions.13 la guagua” means “I missed the bus” in some countries, “I lost the baby” in othClients’ expectations and view of ers, or is totally incomprehensible in yet our legal system others. Similarly, a Cuban defendant on Perhaps cultural differences are most aptrial for public intoxication once testified parent in family law. Once in a family he had only four “maltas” (a non-alcoholic case, the young Latin American mother drink). The interpreter translated “maltas” assumed she would get custody of her as “four malt liquors,” leading a judge to children. “Why are you so sure?” I asked. view that as an admission of guilt.

“Because I’m the mother,” was her confident response. Though statistics may Practice Tips: show that, as the mother, she indeed had As an attorney, anticipate and be cona better chance, her confidence may have scious of how your client will likely come been somewhat misguided. She was not across to the judge, jury and other deciaware of Texas law stating: “The best sion makers. Beware of the possibility of interest of the child shall always be the implicit or hidden biases.10 Try to pick primary consideration of the court...”14 jurors that are most likely sympathetic Though this has long been the law in to your client. Anticipate how cultural Texas, it is not so in other jurisdictions. differences could affect potential jurors.

I was also surprised by her confidence Address those issues in voir dire to make since my experience has been that, unjurors aware of their possible biases and/ like her positive expectations of victory, or eliminate potentially problematic juAmerican minorities and/or foreigners 11 rors. If the biased decision maker is the often have lower and more cynical expectations of our legal system. judge, carefully consider requests for re-

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Practice Tips: Counsel should be aware of client expectations from the outset and help educate the client to be more realistic.

If a client has unrealistically high expectations and such outcome is difficult to deliver, this may expose counsel to possible complaints or malpractice lawsuits from the misguided client. Counsel should learn as much as possible about the client’s own legal system in order to better educate the client and explain the differences. If client expectations are overly optimistic, consider having someone other than yourself explain the bad news. As a long-time mediator, attorneys have sometimes requested that I be the person telling the “bad news.” If instead, client expectations are low, counsel may be able to deliver more than expected.

But if their low expectations are indeed realistic, consider settling early rather than going to trial. Regardless of client expectations, a lawyer should commit to doing the best job and preparation possible for all cases.

Interacting with your own client Rather than having a client with high or low expectations, an attorney may encounter confused clients. It may be up to the attorney not only to represent the client as best possible, but to educate the client regarding the legal realities and prepare for court. Again, language differences may be barriers to establishing good attorney-client communication, so we reiterate the importance of trained interpreters. However, sometimes, regardless of interpreter quality, words in one language may lack equivalence in another. For example, I once conducted a mediation involving a hearing-impaired party. She had overcome so many obstacles in life, that I felt compelled to say that I considered it a “privilege” to have met her. This was interpreted as “it was good meeting you” since there is no equivalent to “privilege” in sign language. Similarly, slang such as “pulling your leg,” “kick the bucket” “make waves,” “make a killing,” et cetera, is also 28

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difficult to translate.

Even when they speak English well, communicating with the client may still present challenges. Gender differences may also affect attorney-client communications.15 For example, some books humorously tell us that regarding worldview, communication styles and expectations, men and women come from different planets.16 If gender differences within American culture can be so disparate, differences between members of different countries, ethnic groups and various cultures can be even greater. Even when we think we are “on the same page” with our client, there may exist different interpretations, expectations and assumptions about the same words and facts. This reality was vividly shown by Dr. Sivasailam Thiagarajan with his experimental game “Barnga” that addressed “[w]hat would happen... if we deliberately give different rules to different people and pretended that everyone is playing by the same rules.”17 Created in 1980, Barnga involved a card game where different players unknowingly receive different instructions for a purportedly same game. For one set of players, Aces are the highest cards and Spades trump others, while for others, Aces are lowest and Diamonds trump.

Not realizing the other person has different rules, players get frustrated when others do not follow “the rules.” Barnga showed how, when people from different cultures interact, “the game” or subject matter may seem the same, but the rules, habits and expectations can be markedly different, resulting in conflict. This experiment showed that “[s]erious conflicts arise not from major, obvious cultural differences, but from unrecognized, minor ones.”18 Indeed, differences in communication among cultures have been well-documented.19 An attorney’s client may come from a “collectivist culture” as opposed to a predominantly “individualist culture” like the United States. A “collectivist” may bring members of his/her family to the lawyer’s office and be unwilling

to make decisions without consulting family members. This may be problematic with attorney-client privilege. Some people communicate more indirectly than others. Some are so expressive that they appear belligerent when they are just being loud. While others are so unexpressive that others misinterpret their respectful silence as arrogance. Some people have stronger inclinations to follow rules, while others are flexible in the application of rules and contract clauses.

Practice Tips: An attorney should self-reflect, including taking tests, regarding his/her possible explicit or implicit biases regarding a client’s diversity.20 Consider taking sensitivity classes about clients’ disabilities, sexual preferences or other diversity.

Anticipate and learn more about cultural differences that may emerge in a client’s case. If you handle many diverse clients, hire staff who are familiar with your clients’ cultures. If clients behave in seemingly strange ways, “gently inquire into the behavior” and “try to establish as much common ground as possible with your client, emphasizing the similarities.”21 Again, get excellent interpreters but remember that, regardless of the interpreter’s excellence, some words and concepts are not easily translated into other languages. Therefore, keep it simple, i.e. no slang, no legalese, no difficult words.22 Beware of your body language and hand gestures, such as “thumbs up” or V-shaped gestures symbolizing “peace” or “victory” that may actually be offensive gestures in other cultures.

A Caveat This article seeks to help attorneys understand practice issues dealing with diversity and cultural differences and to encourage them to learn more and overcome explicit or implicit bias. However, in the process of acknowledging and learning more about cultural differences, we should not lose sight of the fact that regardless how “different” a person may seem, that person may actually under-

stand English and our American culture more than they claim. In striving to be culturally sensitive, we should not lose sight of the possibility that, though genuinely “diverse” they may still be “playing a game,” pretending not to understand the culture as a strategy in their case.

Therefore, always look at their actions in the larger context. After considering context and all possible explanations for their “unique” behavior, ask: “do their actions make sense and seem genuine?

Could their conduct possibly be, for lack of a better word, a “con”?

Years ago, as a Municipal Judge, I conducted a trial where the jury found a defendant guilty of assault. He immediately raised his middle finger at them. Witnessing his obscene gesture, I quickly held him in contempt. His lawyer tried to explain that the middle finger had a different significance in his client’s country. Being sensitive to diversity issues, I understood the argument but also understood the context in which it occurred.

With all my sensitivities, I knew he meant his gesture the “American Way” and in contempt of court.

More recently, while presiding in district court, I was asked to compel a defendant to be deposed. The defendant had suffered a stroke and argued his inability to appear for depositions. After weighing all factors, including, defendant’s apparent disability, plaintiff’s need for depositions, and the possibility (however remote) that the defendant may be trying to avoid depositions, I drafted an order compelling the deposition but ordering numerous accommodations addressing the claimed disability. I weighed each party’s needs in order to accomplish the most balanced and fair outcome possible under the circumstances. Even while taking the defendant at his word, I had to give the other side a chance at discovery.

Final Tips: In conclusion, counsel should assume and respect the existence of diversity issues when interacting with clients, op-

posing counsel, decision makers and others. Follow the above suggestions to best represent a culturally-diverse client.

Search for possible implicit biases on your part. Educate your client regarding appropriate conduct in court. Don’t help them try to “beat the system” by pretending to not understand what is expected of them. In conclusion, balance all possible factors of diversity, legal context, logic and, most important, your duty to behave in the most ethical manner.

The Hon. Josefina M. Rendón is a 1976 graduate of the University of Houston Law Center and an Associate Municipal Judge in Houston, and a former Civil District Judge.

For over 20 years, she has taught and spoken about diversity isssues in mediation and law. She is also a member of The Houston Lawyer editorial board.

Endnotes

1. American MAL DE OJO, available at: http://medical spanish.com/cultural-topics/mal-de-ojo.html. also see: CULTURAL TOPICS, available at: http://www.practicing spanish.com/culture.html.

2. Josefina m. Rendón & lingling dai, the court of babel: the multilingual courtroom of the future, THE HOUSTON LAWYER magazine (march 2013). citing: about houston: houston facts and figures, THE CITY OF HOUSTON’S OFFICIAL SITE, available at: http://www.houstontx.gov/ abouthouston/houstonfacts.html.

3. Michael O. Emerson, Jenifer Bratter, Junia Howell, Wilner Jeanty, Houston region grows more ethnically diverse, with small declines in segregation. a joint report analyzing census data from 1990, 2000, and 2010, KINDER INSTITUTE FOR URBAN RESEARCH & HOBBY CENTER FOR THE STUDY OF TEXAS, available at: http://kinder. rice.edu/uploadedfiles/kinder_institute_for_urban_ research/gabriel/houston%20region%20grows%20 more%20ethnically%20diverse%201-22.pdf.

4. Rendon & Dai, supra n.2.

5. The following are identified disabilities: attention deficit disorder/adhd, autism/asperger syndrome/pervasive developmental disorder, blind/ vision impaired, cerebral palsy, down syndrome, epilepsy, fetal alcohol spectrum disorders, intellectual disability, language/ speech impairment, learning disabilities, mental illness, muscular dystrophy, tourette syndrome. The arc: greater houston chapter resource guide for special needs LOCAL HOUSTON, STATE AND NATIONAL RESOURCES. Available at: http://www.aogh.org/images/ pdfntlnktobastemp/resguitab_verylast2015revwithnewcovpageand%20latest%20format%20ab.pdf. See also: Katherine Bouton, quandary of hidden disabilities: conceal or reveal? THE NEW YORK TIMES (sep.

21, 2013). Available at: http://www.nytimes.com/ 2013/09/22/business/quandary-of-hidden-disabilitiesconceal-or-reveal.html?ref=business&_r=0.

6. Rendón, Josefina, under the justice radar?: prejudice in mediation and settlement negotiations, 30 T. MARSHALL L. REV. 347 (2005). Also see: Josefina Rendon, facing prejudice in mediation: what should the mediator do?

Available at: http://www.mediate.com/articles/rendon3. cfm, and Josefina Rendon, mediators’ and attorneys’ perception of prejudice in mediation: a survey. Available

at: http://www.mediate.com/articles/rendon2.cfm.

7. Ann T. Greeley, gender and racial bias in the courtroom, ABA SECTION OF LITIGATION 2012 SECTION ANNUAL CONF. (2012) TRIAL TACTICS IN A DIVERSE WORLD available at: http://www.americanbar.org/ content/dam/aba/administrative/litigation/materials/ sac_2012/37-1_gender_racial_bias_in_the_courroom. authcheckdam.pdf. See also: judicial council advisory comm. on access and fairness & orange county bar assoc. gender equity comm., guidelines for judicial officers: avoiding the appearance of bias (1996).

8. Interbranch Commission for Gender, Racial and Ethnic Fairness, achieving fairness through bias-free behavior: a pocket guide for the pennsylvania courts.

Also see: christine jolls and cass r. sunstein, the law of implicit bias, 94 cal. l. rev. 969 (2006). Available at: http://scholarship.law.berkeley.edu/californialaw review/vol94/iss4/2/.

9. Justin D. Levinson, forgotten racial equality: implicit bias, decisionmaking, and misremembering, DUKE L. J. vol. 57: p. 345 (2007).

10. Hon. Mark Bennett, addressing implicit bias in the law firm, client meetings and courtroom, (PRESENTATION AT STATE BAR OF TEXAS: WOMEN IN THE LAW SEMINAR) (march 24, 2014).; Judge Mark W. Bennett, unraveling the gordian knot of implicit bias in jury selection: the problems of judge-dominated voir dire, the failed promise of batson, and proposed solutions. HARVARD LAW &POLICY REV. vol 4: p. 149.

(2010).

11. Greeley, supra n.7.

12. Bennett, supra n.10.

13. Stephanie A. Gonzalez Ferrandez, domestic relations law representing diverse clients, GPSOLO MAGAZINE (march 2005) available at: http://www.americanbar. org/newsletter/publications/gp_solo_magazine_ home/gp_solo_magazine_index/representingdi vereseclients.html.

14. Tex. fam code sec. 153.002.

15. Deborah Tannen, THAT’S NOT WHAT I MEANT!: HOW CONVERSATIONAL STYLE MAKES OR BREAKS RELATIONSHIPS; william morrow & co.

(1986); YOU JUST DON’T UNDERSTAND: WOMEN AND MEN IN CONVERSATION william morrow & co. (1990); TALKING FROM 9 TO 5: WOMEN AND MEN AT WORK, harper collins (1994).

16. John Gray, MEN ARE FROM MARS, WOMEN ARE FROM VENUS, Harper Collins 1992.

17. Sivasailam Thiagi Thiagarajan & Raja Thiagarajan, Barnga: a simulation game on cultural clashes- 25th anniv. ed. intercultural press( 2006) at 3.

18. Barnga—when cultures play by different rules, available at: http://clearingcustoms.net/2013/05/31/ barnga-when-cultures-play-by-different-rules/.

19. Josefina Rendon, “when you can’t get through to them: cultural diversity in mediation” ALTERNATIVE RESOLUTIONS (jan. 2000), available at: http://www.mediate. com/articles/rendon.cfm, citing: trompenaars, fons; RIDING THE WAVES OF CULTURE: UNDERSTANDING DIVERSITY IN GLOBAL BUSINESS (chicago, irwin 1993) pp. 69-78; brake, terence; walker, danielle m. and walker, thomas; DOING BUSINESS INTERNATIONALLY: THE GUIDE TO CROSS CULTURAL SUCCESS (burr ridge, ill. irwin, 1995) pp.46, 58, 162; Stewart, Edward, C. & Bennett, m.c. AMERICAN CULTURAL PATTERNS: A CROSCULTURAL PERSPECTIVE. at p.150-151, 153-155.

20. Project implicit, available at: https://implicit.harvard. edu/implicit/.

21. Joan B. Kessler, the lawyer’s intercultural communication problems with clients from diverse cultures NORTHWESTERN J. OF INT’L L.& BUSINESS vol.

9 p.64 (1988).

22. See: Victoria Law Institute; how to manage client expectations, available at: http://www.liv.asn.au/ younglawyersblog/july-2014/how-to-manage-clientexpectations.

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By Raymond L. Panneton

An Unmatched Story: Judge Ruby Sondock

J

udge Ruby Sondock’s journey from growing up in Houston to the Texas Supreme Court, to use her words, “doesn’t match anybody else’s.”

Growing up in the late 20’s and early 30’s, Judge Sondock had no great glass-ceiling shattering expectations for her career. Although Judge Sondock worked in her husband’s family’s Brook May’s Music store while he was overseas during World War II, she had no long-term expectations of working after his return.

After getting married, Judge Sondock, or Ruby at the time, wanted to find work in a field which would allow for her to provide for her family, should the need ever arise. To accomplish this, Ruby enrolled at the University of Houston Law Center to become a legal secretary. “I wanted to go to school to get the highest degree that I could,” Judge Sondock reflects. Although she had no intention to utilize her education to actually become a legal assistant, Ruby wanted to ensure she was ready for the workforce.

Ruby’s life and career would take a sharp turn in 1961. The day after sitting for the bar, Ruby received a phone call from local Houston attorney Donn Fullenweider. Mr. Fullenweider wanted Ruby to come to his firm for an interview that same day. “Donn, you have to be kidding, I just took the bar exam and I am in no shape for an interview,” Ruby resisted. After much pressing, Ruby was in Fred Parks’ office within hours interviewing for her first job, not as a legal assistant, but as an attorney. Despite her reluctance to enter the workforce, Ruby accepted the position with Mr. Parks with the understanding that her schedule would allow her to complete her last year of law school at the University of Houston. Ruby Sondock graduated from the University of Houston Law Center in 1962 and was her class valedictorian.

Ruby Sondock’s story did not stop there; it only continued to get more unbelievable. In an era where women

Supreme Court when she was appointwere filling administrative roles, Ruby ed by Governor Bill Clements to comSondock was a practicing attorney with plete Judge James Denton’s term after a well-respected Houston law firm. A his passing. Although she was eligible few years later she would open her own and well-qualified to seek re-election law firm. While enjoying a successful for her Supreme Court seat, Justice private practice, Ruby received a call in Sondock wanted to return to her roots, late-1972 that would continue to place instead running for her on a trajectory for election for her former greatness.

Growing up in District Court bench In September 1972, unopposed. With the Ruby Sondock received the late 20’s and exception of a special a letter from Goverearly 30’s, Judge all-women court called nor Preston Smith rein 1925 to hear just one questing a meeting Sondock had case because all of the with her. “I thought no great glassJustices were disqualithis was a joke,” she refied, Justice Sondock called. After receiving ceiling shattering was the first woman to confirmation that this expectations sit full-time on the Texwas indeed a genuine as Supreme Court, pavoffer from the Governor, for her career. ing the way for many Ruby met with Goverother female justices. nor Smith in Austin. It Although Judge Although now a mewas during this meetSondock worked diator and arbitrator, ing that she learned Justice Sondock reflects that the Governor in her husband’s fondly on her successful wanted her to meet family’s Brook May’s and trailblazing career. with 20 political insid“Every time I talk about ers. True to herself, she Music store while what I have been able to resisted. “I told the do in my career, I can’t Governor that I would he was overseas believe it myself,” she meet with three, but during World War II, reflects. not 20.”

Over the course of her In January 1973, Govshe had no longcareer, Justice Sondock ernor Preston Smith apterm expectations has received countpointed Ruby Sondock less awards and accoto the Harris County of working after lades, including being Domestic Relations named a Legal Legend Court No. 5. Then Judge his return by the Litigation SecSondock was appointed tion of the State Bar of Texas and havto the 234th District Court in 1977 by ing the 2015-2016 academic year at Governor Doph Briscoe. Judge Sonthe University of Houston Law Center dock was the first woman appointed named the Year of Justice Ruby K. Sonas a State Civil District Court Judge in dock. Never one to accept praise, JusHarris County, and would be the only tice Sondock quickly responds that “it woman to serve on the Family Court wasn’t me. The whole thing just hapbench in Harris County until the appened.” pointment of Judge Linda Motheral by Governor Ann Richards in 1993.

Ultimately, Judge Ruby Sondock beRaymond L. Panneton is an associate came Justice Ruby Sondock, as she was with the Talaska Law Firm, PLLC where appointed to the Texas Supreme Court. he practices medical malpractice, pharmaJustice Sondock served on the Texas ceutical, and medical device litigation.

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Houston Bar Foundation Recognizes Outstanding Pro Bono, Volunteer Efforts Denise Scofield Takes Office as 2016 Foundation Chair

2015 Foundation Chair, William R. Buck, and new Foundation Chair, Denise Scofield.

T

he Houston Bar Foundation marked its 33rd year of service at its Annual Meeting and Luncheon held February 10 at the Hilton-Americas Hotel. The luncheon not only commemorated the installation of new officers, but also recognized the contributions of volunteers who provide pro bono legal representation and other services to the community.

Denise Scofield of Morgan, Lewis & Bockius LLP took office as 2016 chair of the Houston Bar Foundation, succeeding William R. Buck of Exxon Mobil Corporation. The keynote speaker was S. Jack Balagia, Jr., vice president and general counsel of Exxon Mobil Corporation.

Timothy S. McConn of Andrews Kurth LLP will serve as vice chair of the Foundation and Tom Godbold of Twin Eagle Resource Management, LLC will serve as treasurer. Newly-appointed directors for 2016-2018 are Jeffrey Kaplan of LyondellBasell; Barrett Reasoner of Gibbs & Bruns LLP; and John Eddie Williams of Williams Kherkher Hart Boundas. Completing two-year terms as directors are Michael Donaldson of EOG Resources; Veronica H. Foley of Precision Drilling Corporation; and Travis J. Sales of Baker Botts L.L.P. Buck will serve on the board as immediate past chair.

Buck presented the Foundation’s annual awards for pro bono service through the Houston Volunteer Lawyers Program (HVL), volunteer mediation services through the Dispute Resolution Center (DRC), and legal writing in The Houston Lawyer, the HBA’s professional journal.

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John Eddie Williams, center, was the recipient of the James B. Sales Pro Bono Leadership Award. Pictured with him are James B. Sales, the award’s namesake, and keynote speaker S. Jack Balagia, Jr.

M. Carter Crow accepted the award for Norton Rose Fulbright US LLP for Outstanding Contribution to the HVL by a Large Firm.

Donna Petrone, William R. Buck and Susan Sanchez accept the award for Exxon Mobil Corporation for Outstanding Contribution to the HVL by a corporate legal department.

Lewis Smith accepted the award for Morgan, Lewis & Bockius LLP for Outstanding Contribution to the HVL by a Mid-size Firm.

Barry Abrams accepted the award for Blank Rome LLP as one of two firms honored for Outstanding Contribution to the HVL by a Boutique Firm.

Lynn Kamin accepted the award for Jenkins & Kamin, L.L.P. as one of two firms honored for Outstanding Contribution to the HVL by a Boutique Firm.

Lan Nguyen accepted the award for Shortt & Nguyen, P.C. for Outstanding Contribution to the HVL by a Small Firm.

Peter J. Bennett was honored for Outstanding Contribution to the HVL by a Solo Practitioner.

Monica Karuturi of CenterPoint Energy was honored for Outstanding Contribution to the HVL by a Pro Bono Coordinator.

Frederick J. Wagner earned the award for Outstanding Contribution to the Dispute Resolution Center.

Patricia Bushman was honored for Longevity of Exemplary Service to the Dispute Resolution Center.

Shelley J. White of Wright & Close, L.L.P., left, and Preston Hutson of LeClairRyan were honored as the authors of Outstanding Legal Articles in The Houston Lawyer for 2014-2015. The articles were judged by the deans of the three Houston law schools, and this year the authors of two different articles tied for the honor. thehoustonlawyer.com

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T S. Jack Balagia, Jr.

Hamilton, Our Pro Bono Founding Father Remarks of S. Jack Balagia, Jr., vice president and general counsel of Exxon Mobil Corporation, at the Houston Bar Foundation’s 2016 Annual Luncheon.

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he hottest ticket on Broadway right now is for a musical called “Hamilton.” It’s a show about the life of one of this country’s founding fathers, Alexander Hamilton, and is set predominantly to a musical style called hip hop.

In anticipation of seeing the show, I’ve been reading the biography on which the show is based. I have come away from that reading with the belief that Hamilton was the most fascinating, and most brilliant of our founding fathers, and perhaps our pro bono founding father.

Here’s his background for those of you who don’t know it. Hamilton was born to unwed parents in the West Indies, into an existence so bleak that today we don’t know for sure who his father was or whether he was born in 1755 or 1757.

He was orphaned at the age of 11 (or 13) when his mother died. Thanks to some local benefactors, he was sent to the American colonies for an education. He interviewed at the College of New Jersey (now Princeton) but ended up at Kings College, today’s Columbia.

He became a captain of the local militia and defeated the British in a major skirmish, attracting the attention of General George Washington. He joined Washington’s staff a year after the Declaration of Independence as a Lieutenant Colonel, and became his most trusted aide. He was a hero at the last major battle of the war, at Yorktown.

After the War, Hamilton began practicing law in New York City. He quickly became a respected member of the New York Bar, and was elected as one of New York’s three representatives to the constitutional convention. He was the principal author of The Federalist Papers, which he co-wrote with James Madison and John Jay in order to persuade New York to ratify the new constitution.

After the new federal government was formed, Washington named Hamilton our nation’s first Treasury Secretary. In that job, he created the Bank of the United States, our national currency, our Coast Guard, and our first whiskey tax; he op-

posed slavery; and he advocated a strong central government and an independent federal judiciary. Along with Thomas Jefferson, he started our political party system.

Hamilton also was the victim of the nation’s first sex scandal. He had an affair with a married woman, Maria Reynolds, who along with her husband set up Hamilton for blackmail. The affair became public, probably disclosed by James Monroe and other followers of Thomas Jefferson.

Hamilton was concerned that people would think he had compromised his government position as a result of the liaison. So against the advice of his friends, he wrote a 95 page pamphlet admitting that he had had sex with that woman, Ms. Reynolds, but traded no government favors in exchange for hers.

The scandal may have prevented him from running for President, and he left government service in 1795 for his law practice. As the leader of the Federalist Party, he continued to influence our nation’s early path, in the face of much opposition from Thomas Jefferson and his Republican allies.

In 1804, reports surfaced that Hamilton, at a dinner party, had expressed “despicable opinions” about the then Vice President of the United States, Aaron Burr. Burr was running for Governor of New York after Jefferson had dumped him from the ticket. When Hamilton refused to deny the reports, Burr challenged him to a duel. Hamilton purposely “threw away his fire,” meaning he deliberately missed his opponent, and Burr’s shot killed him. He died two days later at the age of 47 (or 49).

Unfortunately for Hamilton, his political opponents —and there were many— took advantage of his early death to publish their own accounts of the times, often diminishing his role in our nation’s history. In the rough and tumble politics of those days, John Adams called Hamilton “the bastard brat of a Scotch peddler,” and Jefferson said that Hamilton was not only a monarchist, “but for a monarchy bot-

tomed on corruption.”

Now why am I spending all this time on Hamilton? For one, he is important to our history as a country and as a profession. Here’s what George Will says: “There is an elegant memorial in Washington to Jefferson, but none to Hamilton. However, if you seek Hamilton’s monument, look around. You are living in it. We honor Jefferson but live in Hamilton’s country, a mighty industrial nation with a strong central government.”

The other reason I bring up Hamilton today is that of all our founders, Hamilton, as a practicing lawyer, most clearly recognized the importance of our justice system, and pro bono service, to our success as a nation. This was a man who could easily have parlayed his power and influence into wealth. He did not. He died in debt.

Hamilton believed that “The first duty of society is justice,” and he lived those words. According to his biographer, Hamilton was not just a “cloud-wreathed, Olympian lawyer. He represented poor people in criminal cases on a pro bono basis or was paid with just a barrel of ham.”

So Hamilton really is our pro bono founding father. And there is plenty of evidence that the people in this room, and all who support this Foundation, have taken Hamilton’s words and deeds to heart.

Each year, Houston Volunteer Lawyers receives 30,000 calls for help. They provide free legal advice to nearly 5,000 people. Last year 3,000 of you served as volunteers, donating four million dollars’ worth of time. If there is a larger volunteer organization in Houston, I don’t know it.

But as we sit here today, there is so much more to be done. IOLTA funds that were, for so long, a principal source of financial support to legal aid, no longer help in our low interest rate economy.

More than 75% of Texans, many of whom are veterans, who would otherwise qualify for legal aid cannot get it because we don’t have enough legal professionals meeting their needs. This under-service continues in an era when we have more lawyers than lawyer jobs. We have to find

a way to put these additional and able legal resources to work.

What more can we do? Let me offer a few suggestions. And I realize I’m preaching to the choir because so many of you already are doing these things.

1. Tone at the Top. If you are a leader in your law firm or law department, make sure others in your organization know that pro bono service is important to you. Participate yourself. More importantly, provide the opportunity for others in your organization to do pro bono work. Acknowledge and reward participation, and let the legal community know your firm is involved. I promise you that a positive tone at the top will make a difference.

2. Partner with Others. Pro Bono service can be an economic positive for your organization. If you are in a law firm, partner with your clients’ law departments - or your would-be clients’ law departments - to sponsor clinics, to work the hotlines or handle cases. Your clients or future clients can see you in action and find out what great lawyers you are. That can lead to future business.

If you are in a corporate law department, you can learn who the best outside lawyers are by working with them on pro bono activities. You can size up your outside counsel before you hire them on paying work. I think both law firms and law departments can benefit financially from pro bono partnerships.

3. Designate a Pro Bono Coordinator.

We have been fortunate at ExxonMobil to have two award winning pro bono coordinators in our organization. The pro bono coordinator can be the spark for action; someone to sound the bell, arrange the training, and schedule the events. Having a coordinator will greatly enhance participation.

4. Participate financially. Many of you

already do this. The Houston Bar contributes in excess of a million dollars a year in real money to support pro bono service. But your financial support is critical. So sponsor the Harvest Party, become a Fellow in the Bar Foundation, or maybe even a Sustaining Life Fellow. Your dollars will make a difference.

Let me close by remembering another great American lawyer; a lawyer who, like Alexander Hamilton before him, believed in the importance of access to our justice system.

Joe Jamail left us in December at the age of 90 after living as complete a life as any lawyer could perhaps imagine. We were deeply saddened by his passing. Joe was supposed to live forever. The news reports of his death mentioned the more obvious milestones of his career: his wealth, Pennzoil, his kinship with celebrities like Willie Nelson and Darrell Royal, his colorful vocabulary, and his unmatched courtroom skills.

What you didn’t read, though, was his devotion to the justice system. He was devoted to making our courts accessible to those who otherwise could not enter. Joe was taking cases for no fee long before he was wealthy. Even when he took a fee he often donated it to charity. He also was a great benefactor of this organization and the Texas Access to Justice Commission.

Joe once said “For me, being a lawyer means to help those in need. It’s a great feeling knowing you’ve helped someone.

That’s what I’ve spent my life doing and my practice.”

Joe, like Alexander Hamilton, believed that justice was the foundation of our system of government. And he believed that lawyers were the sacred guardians of our rights and access to that system. As we acknowledge and remember both Joe and Hamilton today, and honor those of you who participate in pro bono service, I hope all of us can continue these examples toward making justice a duty — and access to justice a reality— to all who need it. thehoustonlawyer.com

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H o u s to n L a w y e r s W h o M a d e a D i f f e r e n c e

Joseph C. Hutcheson, Jr.

By The Hon. Mark Davidson

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any elected officials consider themselves “Public Servants.” An excellent argument can be made that all should. Judge Joseph C. Hutcheson, Jr. was one whose adult lifetime was spent serving the public and making a real difference in many ways over a long period of time.

He was elected Mayor of Houston in 1917, and was serving when the city faced its saddest day – the Camp Logan Riots. At a time in which citizens, police and soldiers were killed and everyone in Houston was on edge, Hutcheson was a calming influence, touring the AfricanAmerican community and the Army base to assure all that violence was unnecessary. His tireless work paid off and order was peaceably restored.

Shortly thereafter, he was appointed

by President Woodrow Wilson to become a judge in the Southern District of Texas, and would eventually be named to the Fifth Circuit by President Herbert Hoover. His service as a judge

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of the Fifth Circuit, Judge Hutcheson pushed to create a free legal aid clinic for Houston’s poor. His work paid off.

Fighting young lawyers who opposed any legal aid on the ground it would take their clients, Houston became the first city in Texas to provide help for the needy. would last for forty-six He was even known to years. Appointment to call friends and get contwo Federal Benches by tributions for the clinic two very different Presiso that basic secretarial dents of different parservices could be proties is a monument to vided for the volunteers. his reputation as a legal Judge Hutcheson was scholar. During his years renowned for his seras Chief Justice of the vice as a judge, and was Fifth Circuit, he named loved and respected by the panels on the Court all who served with him. that would decide many On and off the bench, leading civil rights cases he was a public servant in a progressive manner.

Outside of his time on Joseph C. Hutcheson, Jr. — Photo in many, many ways. In courtesy of Library, United States each way he served the the bench, he worked to Court of Appeals, Fifth Circuit, New public, he made a differimprove our community Orleans, Louisiana. ence. and world. Two examples show the breadth of his work. As The Hon. Mark Davidson is an MDL a member of the Post-World War II Anjudge and judge (retired) of the 11th glo-American Community on Displaced District Court. His column for The Persons, he led the fight to allow Great Houston Lawyer focuses on Houston Britain to allow Jewish refugees into attorneys who have had significant impact Palestine. His efforts helped lead to the on the law, the legal profession and those creation of the State of Israel. served by the law.

Throughout his time as Chief Justice

COMMITTEE SPOTLIGHT

HBA MOILP Program:

Providing Opportunities for Minority 1L Students

By Farrah Martinez

T

ployers with promising law students, but he Minority Opportunity in Following the completion of the stuit also helps prepare the students for the the Legal Profession Commitdent application and employer selecapplication and legal interview process by tee (MOILP) was established tion process, the committee will host a hosting a seminar that provides tips on in the 1990-1991 bar year by mandatory seminar that will focus on resume writing and the do’s and don’ts for then HBA President Pearson legal writing, transactional skills, ofGrimes along with the fice etiquette, and the very first co-chairs, importance of profesAnthony Sadberry and sionalism. the Honorable Lupe I co-chair the 2015Salinas. The commit2016 MOILP Comtee was tasked with enmittee, along with couraging and promotChevazz Brown of ing equal opportunities Jackson Walker. We for minority lawyers in strongly encourage the legal profession and law firms, governwithin the Houston Bar mental entities, corAssociation by sponsorporations and noning and developing eduprofits to continue cational programs, as to participate in the well as service projects.

MOILP Program, beWhile the commit- Law students in the 2015 1L Summer Clerkship Program celebrate their success at the cause even one placetee has evolved since its annual MOILP Luncheon, held last June. ment has the ability interviewing. Since last year, the comorigin back in 1990, under current HBA to profoundly change the course of that mittee has increased the number of posiPresident Laura Gibson, the MOILP student’s career. tions offered through the clerkship. This Committee is thriving. One of the comOn June 7, 2016, the committee will year the committee secured a total of 74 mittee’s primary initiatives is the 1L sponsor its Annual Summer Associate potential positions. Forty-one of those Summer Clerkship Program, one of the Luncheon at the Double Tree Hotel. For positions offer pay through private sector only clerkship programs offered for firstmore information about the 1L Clerkemployers and 33 are unpaid positions ofyear law students. Houston law firms, ship Program or to reserve your firm or fered through the public sector. corporations, governmental institutions agency’s seating, please contact Bonnie This year the committee has already and courts have supported the program Simmons, HBA Director of Projects, at held three informational sessions at each with the collective goal of creating new bonnies@hba.org or 713-759-1133. of the area law schools to help prepare employment and mentoring opportunistudents for the application process, ties for first-year minority students from Farrah Martinez is the founder of Farrah in addition to an interview workshop the three Houston-area law schools.

Martinez, PLLC and her practice focuses hosted at the University of Houston Law The committee continues to reach new on personal injury and accident cases. She Center which was highly attended by heights and this year is no exception. is also an associate editor of The Houston students from all three law schools.

The committee not only connects emLawyer magazine. thehoustonlawyer.com

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OFF THE RECORD

Erick Sandlin and His Spray Paint Artistry

By Paul Bowers

The Houston Lawyer

A

ton in 2008, he had a house with big walls and no décor, so s attorneys, we always prefer hard evidence, solid he made his own. Three works later, and friends were encase law, and a fairly clear path to winning our couraging him to make more to sell. A coffee shop wanted to client’s case. Neither an attorney nor a client hire him to create art for them in 2009, and now he is creatwould be happy with a laid-back approach, letting ing works for churchthe process es, vendor donations, meander, and leaving and commissions. a result mostly up to He prefers the work chance. But that is to be fluid and unreexactly what the nonstricted. He says he is legal clients of Erick most alive as an artist Sandlin want. when he can create Erick Sandlin Diffident –Spray Paint on Canvas, 24x24” Thought Experiments –Spray Paint on Canvas, 48x60” Is This Gloria? –Spray Paint on Canvas, 36x36” from the mind frame is Senior Counsel of “whatever hapat Bracewell LLP’s pens, happens.” He Houston office. He paints in his backis also an artist. His yard, allowing the work right now is weather have a say in the area of spray whenever appropripaint art. ate. He says the avBuyers and fans of erage hardware store Erick’s spray paint also plays a role. pieces appreciate his “Whatever I pick up non-objective ap—spray cans, lids, proach to creating paint thinner, sticks, each piece. Someduct tape, buckets, times a buyer will who knows— can give Erick an idea of end up in the creative what they are looking process.” He paints for, but he does not Artist and lawyer Erick Sandlin uses spray paint as part of his creative process. mostly on canvas, but sometimes on wood. know or guarantee how it will turn out. He uses the items Erick says he draws inspiration from many artists, specifiavailable to him and begins his process, letting the paintcally Willem de Kooning and Mark Rothko (Mark Rothko: A ing guide his direction. With this approach, he has steadily Retrospective recently was on exhibition at Museum of Fine risen from the humble beginnings of painting as a hobby to Arts, Houston). “I like the contrast between their works,” he selling pieces around the Houston Heights. says. His clients should appreciate his, as well.

When it comes to describing his journey as an artist, Erick doesn’t mince words: “I always liked art, but I was terrible at it growing up.” While clerking in Austin in 2007, he decidPaul Bowers is an attorney in Houston. A 2011 graduate of ed to randomly make one painting. “This was one last shot South Texas College of Law, he is a member of The Houston where it didn’t have to be perfect.” After he moved to HousLawyer editorial board..

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A Profile

in pro f e s s i o n ali s m

am fortunate to have led the legal departments of three companies and to have worked with extraordinary business leaders and fellow attorneys.

From them, I have developed my sense that legal professionalism requires three key ingredients: teamwork, leadership, and giving back.

For in house lawyers, professional success requires collaborating as part of a team often made up of people from across the business. Having an enterprise mindset, while being a strategic business partner, is critically important. We strive to provide actionable advice to our clients, focusing on real risks and finding solutions. That is how we add value for our Company.

Leadership is the next key. Leadership is far more than authority. It entails modeling good behavior, constructively challenging the status quo to continuously improve, and effectively influencing others. It also involves helping everyone on the team realize his

or her full potential. That requires mentoring younger lawyers, identifying development opportunities for them, and sharing credit. I firmly believe that my team’s success is my success.

Last, legal professionalism requires giving back. As legal professionals, we have wonderful opportunities —and obligations— to help those who are less fortunate. That includes real commitments to pro bono work, and I’m proud that at CenterPoint Energy we have recently revitalized our pro bono program. Our team also regularly participates in community service projects including making lunches for underprivileged kids and the homeless. My personal passion is children’s causes, so I serve on the board of two wonderful organizations dedicated to helping kids and families in need.

I believe that when we get these right —teamwork, leadership, and giving back —we embody the very best of the legal profession.

thehoustonlawyer.com

March/April 2016

The Houston Lawyer

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Dana O’Brien Senior Vice President and General Counsel, CenterPoint Energy

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LEGAL TRENDS

Transfer on Death Deed

By Amanda Kreshover

E

ffective September 1, 2015, owners of real property may execute a transfer on death deed. A transfer on death deed permits a real property owner (“transferor”) to transfer their real property interest to one or more beneficiaries upon the transferor’s death. With this type of deed the beneficiaries are granted immediate ownership of the home following the transferor’s death, without the time and expense of probate.

The Houston Lawyer

Creation Any individual with the legal capacity to execute a deed may create a transfer on death deed. An effective deed must include all essential elements of a recordable deed, including the transferor’s signature, mailing address, and a legal description of the real property.

The deed must be executed with all of the formalities of a recordable deed, including the acknowledgment, signature, and seal of a notary public. A valid deed must designate a primary beneficiary, as well as include a statement that the transfer of property is to take place upon the transferor’s death. Finally, the deed must be recorded in the real property records of the county where the real property is located prior to the transferor’s death.

Revocation A transfer on death deed is fully revocable by the transferor. Executing and recording a new transfer on death deed that either expressly revokes the previous deed, or contains inconsistent provisions will revoke the original transfer 40

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on death deed. Additionally, the transferor may revoke the deed by filing any instrument that expressly revokes the transfer on death deed in whole or part, so long as the instrument is signed by the transferor after the execution date of the original transfer on death deed, and the instrument is recorded in the real property records of the county where the deed being revoked is recorded.

“

Effect of a Will on a Transfer on Death Deed A will, whether executed prior to or after the execution and recording of a transfer on death deed, does not supersede or revoke a transfer on death deed, even if the real property is specifically mentioned in the will.

With this type of deed the

beneficiaries are

Transferor’s Rights The transferor’s property rights are not affected by the execution of a transfer on death deed.

The transferor may continue to exercise all of her normal rights as a property owner, including her right to sell the property, receive property tax exemptions, or use the property as collateral for securing a loan. If the transferor sells the property after executing a transfer on death deed, the transfer on death deed is effectively revoked, so long as the new deed is recorded prior to the transferor’s death.

granted immediate ownership of the home

following the transferor’s

death, without

Effect of a Divorce on a Transfer on Death Deed If a transferor names their spouse as a beneficiary in a transfer on death deed, and then subsequently divorces the named beneficiary, the recording of the judgment of divorce in the real property records where the transfer on death deed is recorded revokes the transfer on death deed with respect to the ex-spouse.

the time

Creditor Rights A transfer on death deed converts the real property at issue into a nonprobate asset; however, the real property will still be subject to any debts secured by the property, as well as any secured or unsecured debts that the transferor’s estate is liable for.

and expense

”

of probate.

Joint Ownership A transferor can only transfer her own interest in the property through a transfer on death deed. If the transferor owns property jointly with another individual and chooses to execute a transfer on death deed, the transfer is only effective with regard to the transferor’s interest.

Additionally, if the property is held with rights of survivorship and one of the joint property owners executes a transfer on death deed, the deed will only be effective if the transferor is the surviving owner on the property.

Power of Attorney An agent acting under the authority of a power of attorney may not execute a transfer on death deed. However, an agent may revoke a transfer on death deed under the authority of a power of attorney.

Conclusion The transfer on death deed is an excellent new tool in every estate planning attorney’s toolbox. It provides clients with an affordable means to avoid probate

LEGAL TRENDS

when their estate consists primarily of real property. However, given the deed’s ability to trump a properly executed will, it is important that estate planning and probate attorneys account for any transfer on death deeds their client may have executed. For more information see Texas Estates Code, Chapter 114.

Amanda Kreshover is a solo practitioner practicing at Kreshover Law, where her practice focuses exclusively in the areas of estate planning, probate, and guardianship law.

She is a certified Attorney Ad Litem, and she serves on the editorial board of The Houston Lawyer.

Qualifying for Medicaid is Utterly Different than Having Medicaid

During the trial, the district court allowed Guzman to present evidence detailing his medical bills. None of his medical bills reflected a reduction in charges by any health insurance coverage. At the time of the accident, the parties stipulated Guzman was not a Medicaid participant and received no benefits from the program toward his medical expenses and he did not receive any worker’s compensation benefits.

Defendants argued that Guzman’s medical bills were not admissible at trial because he was eligible to receive Medicaid benefits and worker’s compensation benefits; the trial court denied the motion. Guzman was allowed to present the bills as issued by his healthcare

By Farrah Martinez

I

n Guzman v. Jones, 804 F.3d 707 (5th Cir. 2015), Guzman was injured in a motor vehicle accident that Jones caused while working for Celadon.

All parties agreed that Jones was liable and Celadon was vicariously liable because the accident occurred within the scope of Jones’ employment. Damages were the point of contention.

providers. At trial, the jury returned an award of $1,314,000 to Guzman, of which $104,000 was designated for past medical expenses. Defendants appealed.

The issue before the court was whether an uninsured Plaintiff who may have been eligible for insurance benefits but did not have insurance at the time of his injury or treatment is barred from pre-

senting evidence of the list prices he was charged by the hospital and that he is obligated to pay.

Appellants argued Haygood v. De Escobedo, 356 S.W. 3d 390 (Tex. 2012) applied. At trial, Haygood introduced medical bills that did not reflect the rates of Medicare Part B participants. Defendant alleged the bills were inaccurate because Haygood was a participant, so the bills did not accurately reflect Haygood’s personal liability. The Texas Supreme Court ruled against Haygood explaining that the collateral source rule, a “common law principle that precludes any reduction in a tortfeasor’s liability because of benefits received by the plaintiff from a third party” was not applicable. Instead, the Court relied on Texas Civil Practice & Remedies Code § 41.0105, which limits a plaintiff’s recovery of medical expenses to those which have actually been paid or must be paid by or for the plaintiff. Neither Haygood nor Medicare was under any obligation to pay the full amounts of the bills.

The Fifth Circuit distinguished Guzman from Haygood. Guzman actually incurred the costs presented at trial, he was uninsured at the time of his injury and ultimately he was obligated to pay the list price as charged by the hospital. The fact that Guzman might have been eligible for Medicaid does not inhibit Guzman’s legal obligation to pay the bills for medical care he received. Guzman did not benefit from a reduced rate; therefore, the medical bills presented at trial by Guzman were accurate.

Farrah Martinez is the founder of Farrah Martinez, PLLC and her practice focuses on personal injury and accident cases.

She is an associate editor of The Houston Lawyer magazine. thehoustonlawyer.com

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Media Reviews

Mirandized Statements: Successfully Navigating the Legal and Psychological Issues

By Richard Rogers and Eric Drogin American Bar Association, 2014 Reviewed by The Hon. Josefina M. Rendón

The Houston Lawyer

O

n the year of the 50th anniversary of Miranda v Arizona the book Mirandized Statements: Successfully Navigating the Legal and Psychological Issues is a great addition to the literature on this momentous case in U.S. history. Much of the book deals with how lawyers and expert witnesses can address Miranda issues.

Miranda vs. Arizona [384 U.S. 436 (1966)] is the landmark U.S. Supreme Court decision specifying criminal defendants’ constitutional rights when in custody. This decision and a series of post-Miranda decisions require five warnings: the right to remain silent; the effect of waiving that right; the right to an attorney; the availability of appointed counsel; and the option to request these rights at any time. In addition, any waiver of Miranda rights must be made voluntarily, knowingly, and intelligently.

Author Richard Rogers is a nationally known psychologist, author and professor at University of North Texas who developed the Standardized Assessment of Miranda

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Abilities (SAMA) which is nationally used by forensic psychologists to assess defendants’ cognitive and mental capacity to understand Miranda warnings. Author Eric Drogin is an equally known attorney, forensic psychologist and professor at Harvard Medical School.

The book includes a chapter on “Trial Matters” providing advice to both state and defense attorneys on trial preparation, interrogation and cross examination for a Miranda suppression hearing. It also includes possible strengths, limitations and weaknesses to be considered by each side with information to take into account in deciding whether to enter a plea bargain or proceed to trial. Other chapters discuss issues of psychology and Miranda reasoning and comprehension.

About one third of the book is composed of practical appendices. These include: 1) sample psychological diagnostic reports from both prosecution and defense expert witnesses; 2) various analyses of Mirandarelevant vocabulary; 3) intelligence and cognitive abilities to be considered in determining Miranda comprehension and reasoning; and 4) key psychotic, depressive, manic symptoms of defendants to consider at the pretrial stage.

The book discusses and dispels some myths about Miranda warnings by informing: (a) the language used in Miranda warnings is not uniform and instead varies from jurisdiction to jurisdiction throughout the country; (b) juvenile Miranda warnings are sometimes more difficult to understand than adult warnings; and (c) foreign language Miranda translations are often inaccurate.

In short, the book provides a great balance of scholarship and practicality with an excellent overview of both the legal and psychological issues regarding defendants’ Miranda rights. As such, the book is equally helpful to criminal defense attorneys, prosecutors and judges as well as mental health experts who deal with all aspects of Miranda rights.

The Hon. Josefina M. Rendón has administered dozens of Miranda warnings during her 32 years as a judge. Most memorable was the warning for a murder in Phoenix, Arizona where she was subpoenaed to testify on June 13, 1986, coincidentally on the 20th anniversary and the city of origin of the Miranda decision. She is a 1976 graduate of the University of Houston Law Center and a member of The Houston Lawyer editorial board.

The Oxford Handbook of the U.S. Constitution Edited by Mark Tushnet, Mark A. Graber and Sanford Levinson Oxford University Press, 2015 Reviewed by Preston D. Hutson

T

he Constitution endures as the revolutionary manifestation of American popular sovereignty; its legitimacy lies within the ideal that it represents a covenant among Americans to live according to the code enumerated within its text. Americans revere the Constitution as a sacred text justifying their continued belief in a Constitutional faith. As Barbara Jordan famously noted, “My faith in the Constitution is whole, it is complete, it is total. And I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction, of the Constitution.”1 But while Americans might agree upon the Constitution’s sacred status, that agreement often devolves into acrimonious, self-serving discord when those same Americans attempt to discern its meaning.

The recently published “Oxford Handbook of the U.S. Constitution” represents a comprehensive attempt to provide some structure to this hyperbolic debate within the political mainstream. Edited by renowned Constitu-

Media Reviews

tional scholars Mark Tushnet, Mark A. Graber, and Sanford Levinson, the Oxford Handbook provides 47 scholarly essays organized into five sections offering different frameworks from which to study the Constitution.

Part I (History) addresses the Constitution’s historical development from the Constitutional Convention, through Jacksonian Age, Reconstruction, the New Deal, and the “Reagan Revolution.” These essays trace the role played by the Supreme Court in the development and understanding of Constitutional law within the larger historical context.

Parts II (Political Science) and III (Law) detail the governmental structure imposed by the Constitution and the political interplay between the three branches of the national government. Other essays trace the development of political parties under the Constitution and the role of varying social movements in altering constitutional interpretation. Lastly, these sections include essays recounting the growth of executive power through the administrative state, as well as the role played by the Fifteenth Amendment in the evolution of Constitutional law.

Part IV (Rights) includes 14 essays detailing individual liberties under the Constitution. These essays trace the initial concepts of equality and liberty and their evolution in American jurisprudence. Additionally, Part IV offers intelligent, historical discussions on the Supreme Court’s handling of specific topics through American jurisprudence, including property, race, gender, citizenship, religion, and the right to bear arms. Lastly, Part V (Themes), the Handbook concludes with a discussion of various Constitutional themes.

Essays include a learned discussion on methods of constitutional interpretation and the manner in which those methods are brought to bear on actual cases.

In total, “The Oxford Handbook of the U.S. Constitution” offers a comprehensive guide capable of providing reason and sanity to the stilted debate within the current political mainstream. Indeed, it is to our benefit that the editors disclaim any “cheerleading impulse” favoring one constitutional meme

over another. Instead, the Handbook offers credible scholarship enabling readers to critically assess the constitutional literature and jurisprudence for themselves.

Preston D. Hutson is an officer with LeClairRyan in their Houston Office. He is a member of The Houston Lawyer editorial board.

Endnotes 1. Barbara Jordan, SPEAKING THE TRUTH WITH ELOQUENT THUNDER 27 (Max Sherman ed., 2007).

Lawyer Interrupted: Successfully Transitioning from the Practice of Law and Back Again

By Amy Impellizzeri American Bar Association, 2015 Reviewed by Judy L. Ney

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very lawyer at one point in their work-life questions whether they have chosen the correct career path and whether there is “something more out there.” This book provides a very useful guide to a lawyer in expanding their range of knowledge about alternate career paths. The author’s own story illustrates the power of interrupting and reconsidering your career. In today’s economy, this topic is less stigmatized and more socially acceptable.

The writing style in the book is organized and highly readable. The author gives realistic advice for navigating a career break or transition, and actually deals with real-life issues. The American Bar Association is the publisher, thus signifying that the legal profession itself is acknowledging that many paths can be taken by a person with a Doctor of Jurisprudence degree.

The format of the book is broken down into three major sections: Starting Out, Mid-Career, and Retirement Years. Lawyer Interrupted is more about ideas rather than the specific steps to take in transitioning to a different field. Topics include the timing for change, how to go about change without “burning bridges,” dealing with fallout/ money problems, with practical and ethical considerations.

The author stresses that one has to look inside and know who they are before making a lifestyle change. Self-assessment is key to the transitioning process and it is key to the re-launching process as well. Self-assessment is not all passive but it is active also. Impelliizzeri emphasizes that even if one changes career paths, one needs to do everything to “keep your foot in the door of the profession,” including keeping your law license active. Attorneys still identify with the saying: “Once a lawyer, always a lawyer.”

The most impressive part of this best practices book is the resource tools located in the appendix. Most of the additional resources are web-based and may change over time, but for more information about changing careers, this list is extensive, on-topic and current.

Lawyers may not want to practice law for all of their working lives. There is never a wrong time to reconsider the direction of one’s legal career. Lawyer Interrupted is a must read when one’s dreams and plans are still just ideas, in order to help one consider the steps to take to change paths.

Judy L. Ney is a hearing officer with the Texas Department of Insurance, Division of Workers’ Compensation. She is a member of The Houston Lawyer editorial board. thehoustonlawyer.com

March/April 2016

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From page 6

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Volunteers who assisted with the HBA Law Day The program drew good attendance Committee’s program on guardianship for special from local schools at the historic needs students and their teachers.

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his year the Houston Bar Association rolled out a new edition of “A Special Day at the Courthouse,” a civics-education program designed to give high school students with intellectual disabilities a basic understanding of what lawyers and judges do. Administered by the Law Day Committee, the program provides special education teachers with practical support for community-based instruction about our laws and legal system. The idea is to introduce the students to the concepts in terms the students can understand. To meet the goal, the presentation team uses a variety of visuals and props to explain how lawyers and judges help people solve problems. Now in its fourth year, the program provides a unique learning experience for students with special needs.

Special education students from ten area high schools arrived at the historic Harris County 1910 Courthouse in downtown Houston on Friday, February 5, to learn how the law impacts their lives. For this year’s edition —“All About Guardianships”­— lawyers and judges explained what a guardianship is and what students can expect if and when they go to court for a guardianship proceeding. The presentation team included Chief Justice Kem Frost and Justice Ken Wise of the Fourteenth Court of Appeals and Houston attorneys Alistair Dawson, Marie Jamison, Karen Lukin, and John MacVane.

Frost, who chaired the event, explained that the innovative programming fills an unmet need in the community to equip intellectually-disabled students nearing adulthood with basic knowledge about guardianships. “Helping these potential wards understand the role of a guardian is an important step in their transition to adulthood,” she noted.

The bar association provides the programming and participating schools provide transportation, supervision, and any special assistance necessary for their students to participate. Lawyer volunteers for the event included Cole Conkling, Conrad Coutinho, Yvonne Kunetka, Jason Muriby, Christine Harvat Ng, Tracy Penn, and Sarah Valenti.

To accommodate the swelling interest in “All About Guardianships,” the Houston Bar Association offered a second session. “It was great to see that big courtroom filled to capacity. The strong response to the guardianship program highlights the need,” said Alistair Dawson, a partner at Houston’s Beck Redden LLP, who helped launch the original program four years ago.

“This year’s edition not only advances civics education for the intellectually disabled but also helps to prepare them for the future,” Frost added. “If and when they face a guardianship, they’ll be better equipped.” The program appears to be the only one of its kind in Texas. thehoustonlawyer.com

March/April 2016

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