Vision 2020 Wrap-Up: Looking Back at Looking Forward A Transformative Year: • Pro Bono Service • Reflections from the Judiciary • Education • Equal Rights • Practicing Law
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Volume 58 – Number 6
A Transformative Year
May/June 2021
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contents May/June 2021
Volume 58 Number 6
FEATURES
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2020 Wrap-Up: Looking 10 Vision Back at Looking Forward By Tim McInturf
Service 12 ProTheBono Next Twenty Years: A Call for Continued Pro Bono Efforts By Anne Chandler
Serving Pro Bono Clients in a Pandemic: Houston Volunteer Lawyers Thompson Knight’s ‘This is Our Town’ Initiative By Michele (Mitch) Gibbons
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Stacy Allen: Representing Protestors By Anietie Akpan
BakerRipley’s Immigration Legal Services Collaborative By cindy ramirez
from the Judiciary 18 Reflections Civil Courts The Hon. Mike Engelhart
Criminal Courts
The Hon. Lori Chambers Gray
Federal Courts –An Interview with The Hon. Andrew M. Edison Houston Municipal Courts The Hon. J. Elaine Marshall
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32
22 Education A Transformative Year for
Students with Disabilities
By Kevin P. Shields and Jennifer Swanson
Lawyers Fighting for Education Justice in 2021 By Andrew Hairston
Rights 29 Equal A Rainbow During a Pandemic: Bostock’s Impact in Texas By Cheri Thomas
Bearing Witness to Hate
The Houston Lawyer
By Joshua D. Lee, Sarah Tejada, Kristina Vu and Nadine Ona Cover: The HBA conducts Law Day Poster, Photography and Essay contests in local elementary, middle and high schools throughout the area in the weeks surrounding Law Day, May 1. Featured here are some of the winning entries. To see all of the contest winners, visit hba.org/lawday. To read the first place essay, see page 36. Clockwise from left: “Laws Help Us” by Angel Olivera, Sabrina Tittle, Lesley Valadez and Alyssa Celis of MacArthur High School; “Fairness, Equality and Kindness” by Ryuki Hotta, 2nd grade, Austin Parkway Elementary School; “58 Years and Still Dreaming” by Amare’on Reyna, 12th grade, G.W. Carver Magnet School; “We the People” by Logan Lyn, 5th Grade, iUniversity Prep; “Remember Bald Eagle” by Naoki Hotta, kindergarten, St. Anthony Cathedral Basilica; “Lives Matter” by Aven Lumpkin, 5th grade, The Wide School; and “Standing Up for Equality” by Shelby Morrison, 8th grade, Wood Junior High School. 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, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2021. All rights reserved.
2 May/June 2021
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Law 32 Practicing Adapting to Disruptions By Ruby L. Powers
The Post Pandemic Residential Foreclosure Landscape By Dominique Marshall Varner
COVID’s Impact on Houston Commercial Real Estate
By Cassandra McGarvey
Texas Insurance Law in 2021 and Beyond
By Stephen P. Pate and Karl A. Schulz
36 HBA Law Day Essay Contest By Eric Lee
contents May/June 2021
Volume 58 Number 6
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departments Message 6 President’s HBA Engagement During
The Annus Horribilis By Bill Kroger
the Editor 8 From A Transformative Year:
Finding Your Voice By Anna M. Archer
Milestones 38 HBA The Houston Lawyer:
A Voice for the HBA
By Tara Shockley
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42
Spotlight 40 Section Probate, Trusts & Estates Section:
A Year Navigating the Pandemic By Paul D. Strug
Profile in professionalism 41 ARichard Heaton Chief Legal Officer, Hines
THE RECORD 42 OFF A Guardian of Texas Heritage:
C. Mark Murrah By Anuj A. Shah
Spotlight 43 Committee Teaching Texas, One Student
at a Time
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46
By Kimberly A. Chojnacki
trends 44 legal The Swales Decision and
Its Aftermath By Don Foty
Straehla’s Presumed Duties By Ryan Philip Pitts
reviews 46 Media The Best People
Reviewed by David T. LÓpez
The Houston Lawyer
48 Litigation MarketPlace
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president’s message By Bill Kroger Baker Botts L.L.P.
HBA Engagement During The Annus Horribilis
The Houston Lawyer
M
y term as President of the Houston Bar Association was bookended by COVID-19, beginning with the city mostly shut down and ending with its reopening after massive vaccination efforts. Along the way, we also experienced the collapse of oil and gas prices, the murder of George Floyd, the death of Justice Ginsberg and appointment of Justice Barrett, the 2020 Presidential election ending with a riot and a new President, and Winter Storm Uri. The HBA responded to these challenges with creativity, hard work, and persistence. We had one of the most impactful years in the 150year history of the HBA. Here are some of the HBA’s major accomplishments during the 2020-2021 annus horribilis: • Courthouse Closures and Reopening. Became the essential lifeline to lawyers and judges seeking to stay abreast of changes in courthouse procedures for hearings, trials, and other proceedings, both at the historic courthouses and the NRG Arena. Provided countless videos, webinars, and other resources on the HBA website, and feedback to the Harris County courts on the new procedures. • Harvest Celebration. Raised $869,000 for pro bono legal services from our Harvest Campaign, the largest sum raised in HBA history, despite not having an event to offer. • Legal Education. Offered 731 webinars and videos to HBA members and non-members, for 1,114 hours of MCLE credit and 250.75 hours of ethics credit. • Bench Bar Conferences. Held two virtual bench/bar conferences: Criminal/Appellate in October with 228 attendees, and Civil/Appellate with 364 attendees. Every Harris County judge participated. Raised $30,000, with the spring conference being the largest Bench Bar Conference in HBA history. • LegalLine. Went virtual, and reinvented its intake and advice practices. 514 volunteers provided free legal advice to 2,554 citizens. • Habitat for Humanity. On track for building two Habitat for Humanity homes this fall. • 36th Annual Eikenburg 8K Law Week Fun Run. Runners from California, Colorado, New Jersey, DC, Virginia, Florida, and cities across Texas participated in the virtual run. The HBA raised $73,625 for The Center for Pursuit, the fourth largest donation in HBA Fun Run history. • Golf Tournament. Held two golf tournaments, raising $46,000 for the Houston Bar Foundation, which supports pro bono legal services through Houston Volunteer Lawyers. • Lawyers for Literacy. Raised over $14,000 for new books and 20 fully-stocked Little Free Libraries located in underserved communities. Also, read to over 15,600 elementary students virtually for HBA Constitution Day. • The Houston Lawyer Podcast. Started first podcast, discussing im6 May/June 2021
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portant topics raised in each issue of The Houston Lawyer. Most Podcasts are accredited for CLE. • The Houston Lawyer. Produced historical issue for the HBA’s 150th Anniversary, recognizing the accomplishments of the many women and men, from all backgrounds and ethnicities, who helped transform the city. The Houston Lawyer also produced important editions and articles on race, equality, and justice; the importance of ADR during a pandemic; and changes in energy and environmental law. • COVID-19 Houston Legal Task Force. Formed group for local bar associations, law schools, and other organizations to discuss, coordinate, and work together on issues such as law student employment; the bar exam; diversity, equity and inclusion; poll watching; and jury pools. • Metro-Bar Presidents Meetings. Set up monthly meetings with other metro bar associations in Dallas, San Antonio, Tarrant County, and Austin. Allowed coordination across the state and sharing of programing, best ideas, and practices. • Judicial Investitures. Newly-elected Harris County judges were not able to have traditional in-person investitures. Created video profiles for newly-elected judges, giving them the opportunity to introduce themselves and discuss their plans for the year ahead. • Implicit Bias Task Force. In response to the murder of George Floyd, formed a working group comprised of local judges and lawyers, which developed multiple implicit bias education programs. More than 900 attorneys attended the programs, including all attorneys in the Harris County District Attorney’s Office and Public Defender’s Office. • Renaming of Harris County Law Library. Supported renaming of Law Library in honor of civil rights attorney Robert W. Hainsworth. Was approved by unanimous vote by the Harris County Commissioners Court. • Blood Drives. Helped arrange 31 blood drives for Houston blood banks, which were prevented from holding traditional blood drives, resulting in 896 blood donations, and saving up to 2,688 lives. • AIDs Outreach. 75 law firms, law departments, organizations, and individuals participated in the 24th annual HBA AIDS Outreach Adopt-a-Family Project, the largest project to date. Helped 108 families, including 156 adults and 229 children. • Election. Provided 40 volunteer poll workers to help ensure fair and safe voting during elections. Houston elections took place without major incident. • Campaign to End Homelessness and Hunger. 130 HBA volunteers participated in seven volunteer events at the Houston Food Bank (HFB) and its community partner locations. Also held a holiday gift drive for 600 homeless veterans living in shelters and raised
$12,000 for HFB. • Communities in Schools. Approximately 15 high school students are interning at Houston area law firms, corporations, courts, and other locations. • Diversity and Inclusion. 42 diverse law school students were hired by 35 employers, including law firms, corporations, the courts, and other locations. • HVL Services. Hired Anne Chandler as Houston Volunteer Lawyers (HVL) Executive Director. Started using a hybrid approach for the HVL legal intake and delivery services, allowing intake of cases virtually and then provision of virtual legal services by 850 lawyers to 2,000 individuals. Also sponsored first drive-thru clinics and developed a bilingual website where pro bono clients were able to apply for services through their phones. • Evictions. Launched pro bono COVID-19 eviction defense initiative that trained and recruited 340 attorneys committed to helping individuals facing eviction. • Houston Lawyer Referral Service (HLRS). Produced support materials for unemployed lawyers offering advice on developing a solo office practice. Also produced 12 videos providing advice to the public on pandemic-related legal issues. • Dispute Resolution Center (DRC). Reinvented mediation into a virtual service, providing more than 4,200 hours of mediation services and mediating 1,084 cases involving credit card debt, contracts, HOA, and family law matters. • Financial Stewardship. Cut costs while providing more services and encouraging dues renewal. HBA and its charitable arm, the Houston Bar Foundation (HBF) have fortress balance sheets, with HBF donating more money for pro bono legal services than in any year in its history. These are just some of the accomplishments of the HBA and its affiliates. These are not the successes of just a few people. Our staff worked long hours, including weekends, while thousands of lawyers volunteered countless hours. Together, they have transformed the HBA into the finest, most nimble, responsive, and engaged bar association in the United States. Thank you for allowing me to serve as your President during this important year. thehoustonlawyer.com
May/June 2021
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from the editor By Anna M. Archer U.S. District Court
A Transformative Year:
Associate Editors
Anietie Akpan METRO
Brooksie Bonvillain Boutet Shipley Snell Montgomery
Kimberly Chojnacki Baker Donelson
Elizabeth Furlow Baker Botts
The Houston Lawyer
Andrew Pearce BoyarMiller
Koby Wilbanks Murrah & Killough
8 May/June 2021
C
Finding Your Voice
hange is hard. And we have had a lot of it. Everything changed last March when our firms, businesses, and even courthouses shut down. There were growing pains—more for some than others—but we figured out how to work from home, and most of us became pretty good at it. We may have learned how to sew face masks, bake bread, or make craft cocktails at home. We made our dining rooms, kitchens, or living rooms into fully functioning home offices. Some of us learned how to home school or had bonus time with older children whose colleges also shut down. It wasn’t the easiest time, but we adjusted, and finally, we could say, “we got this.” Now, most of us have been vaccinated. The courthouses are open, jury trials are resuming, and people are returning to the office. It doesn’t look the same as it did when the pandemic started, though; we have changed, and being forced to stay home has in many ways caused an awakening. We’ve learned that sometimes working from home is better than working from the office. We don’t have to spend an hour and a half a day commuting or worry about what we are wearing to do a good job. We can go to meetings—sometimes more meetings than before the pandemic—without ever leaving our home office chair. We can do depositions, enter into multi-million dollar agreements, or attend court hearings from the same spot. With this new knowledge, some Houston lawyers are not going back to the office even though it is now safe to do so. Many are only going in some days. And some are returning full time as if the pandemic never happened. Except, it did. And we are tired. The commute is exhausting. The days seem longer. And we may wonder how we maintained this lifestyle before all of this started. It all comes down to—change is hard, and there has been a whole lot of it in the last year. Be kind to yourself during this transition and know that you are not alone. We are transforming as a nation, and we are navigating this change together. Sometimes words evoke a feeling, and Amanda Gorman’s Inaugural Poem feels like what we’ve all experienced: We did not feel prepared to be the heirs of such a terrifying hour but within it we found the power to author a new chapter ....
thehoustonlawyer.com
When day comes we step out of the shade, aflame and unafraid The new dawn blooms as we free it For there is always light, if only we’re brave enough to see it If only we’re brave enough to be it This is my last issue as editor in chief of The Houston Lawyer, and I have spent this year not only finding my voice but encouraging other Houston lawyers to do the same. I have many people to thank, including all the authors of articles in this “transformative year” issue who have documented this moment in time for future generations. I would also like to thank Bill Kroger (the 2020-2021 HBA President), who used his leadership position to author a new chapter for the HBA amidst the unexpected chaos this bar year continued to provide, and Tara Shockley (the managing editor of The Houston Lawyer), for the infinite wisdom, guidance, and friendship she has offered me during my term as editor in chief. Tara celebrated her 40th anniversary with the HBA this year, and the impact she has made on the lives of Houston lawyers is immeasurable. Additionally, thank you to Anietie Akpan, who is the current articles editor and the incoming editor in chief, for keeping everything organized and on track this year. While I am not ready for my term to end, I know The Houston Lawyer is in good hands. Finally, thanks to the associate editors and the entire Editorial Board. You have all played a role in educating Houston lawyers, inspiring important conversations among your colleagues, preserving the history of the Houston Bar, and documenting the issues Houston lawyers have faced this year, and you should be proud of your work. We started the year with issues focusing on COVID-19 and racial justice—topics that will define the year 2020 long after we are gone. Our work will be part of that history. We now conclude the bar year by not only reflecting back on this very challenging year, but looking forward to how what we have experienced will impact the future. It is my greatest hope that the words on the pages of this journal during this extremely challenging year inspired Houston lawyers to author a new chapter, be brave, and be the light.
BOARD OF DIRECTORS President
Secretary
President-Elect
Treasurer
First Vice President
Past President
Bill Kroger
Daniella D. Landers
Jennifer A. Hasley
Chris Popov
David Harrell
Benny Agosto, Jr.
Second Vice President
Diana Gomez
DIRECTORS (2019-2021)
Collin Cox Pamela Medina
Greg Moore Greg Ulmer
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May/June 2021
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By Tim McInturf
Vision 2020 Wrap-Up:
Looking Back at Looking Forward
I
er from sue cov is 0 2 0 2 Vision 2000
10
May/June 2021
thehoustonlawyer.com
n mid-2000, The Houston Lawyer Editorial Board asked various legal leading lights to predict changes in the profession twenty years hence. We published their thoughts in our “Vision 2020” issue.1 Our learned prognosticators expected major changes in three areas—legal education, pro bono services, and alternative dispute resolution (ADR). They predicted little change in human nature. They saw positive and negative impacts of technology upon legal education. They anticipated billable hours to continue to bury pro bono services as if it were a Fight Club mismatch. And they anticipated increasing client pressure to resolve conflicts without actually paying lawyers.
The “New” Rules of Civil Procedure The issue included coverage of the potential amendments to the Federal Rules of Civil Procedure, which were under consideration by Congress. In the 1999-2000 timeframe, state and federal rules were changing to ease the pain (and wasted expense) of civil discovery. Not surprisingly, changes since have been largely in the same vein but made to adapt to digital records and communications. Electronic communications may have made communicating easier, but they have created many nooks and crannies where evidence may reside. Predicted Changes in Legal Education Time has shown that perhaps some of our law professor prognosticators really knew what they are were talking about. They anticipated the need for, and proliferation of, law school practice skill programs—students needed to learn how to be a lawyer—not just think like a lawyer. Law schools needed to “flatten the curve”—the new-lawyer learning curve, that is.2 Medical education emphasizes hands-on training and experience. Lawyers aren’t there yet (or not again—early American legal education involved reading and working under an experienced lawyer). They optimistically expected we would get better about recruiting people from all walks of life to join the profession. They predicted that the mainstream legal community would no longer feel white, male, and exceptionally privileged. This prediction feels right to me.3 But this project is still on-going. They also predicted that technology and distance learning would open doors for more people to enter the profession. At the same time, they questioned whether technology would diminish the law school experience (and the cultural understanding that comes from a diverse student body) by reducing the time students spend with each other and their professors. This concern was prescient. COVID-19 has taught us that we don’t do well in isolation. Isolation
does not make us more empathetic. It ress in areas we think make our lives seems to cause us to look inward rather better. We aren’t making much progress than outward. And empathy is really in the selfless endeavor of providing important in law. Law is a pro bono legal services. people business. Modern Our prognosticators told communication technology us that human nature can do more than we previwasn’t going to change. Modern ously thought, but we need Billable hours and client to interact with each other communication calls will always compete more than we thought, too. with pro bono ser vices. technology can It is human nature. As Pro Bono Service Versus lawyers, we (of all prodo more than we fessions except perhaps the Jealous Mistress: The Challenge Continues previously thought, clergy) should remember Our 2000 prediction about that human nature will but we need to always be with us. As pro bono legal services could be succinctly stated thusly: interact with each much as we might wish “Until someone makes it otherwise, we advance other more than we mandatory, most lawyers the profession when we won’t do it.” We said it nicremember and make dethought, too.” er. We spoke about the prescisions accordingly. sure of increasing billable hours to offset increasing lawyer comTim McInturf was the editor-in-chief of pensation. We spoke of the constant call The Houston Lawyer in the 1999-2000 of a busy law practice. “The law is a jealbar year. He enjoys our professional ous mistress.” This was the case in 2000 advances, and he laments the areas we and it is still the case today. have stood still or lost ground. He is a husband, father, and professional conflict ADR Advances resolver. He can be reached at the We previously noted that 1980 to 2000 Caroline Mediation Center, 5009 saw mediation and arbitration move Caroline Street, Suite 100, Houston, into the mainstream. And we predicted, Texas 77004. His telephone is correctly, that from 2000 to 2020 the 713-449-8873. Learn more at use of these tools would increase; now, www.timmcinturf.com. most serious cases use one or both. The demand for these tools is consistent Endnotes 1. See generally Timothy T. McInturf, From the Editor, with growing and increasingly complex HOUS. LAW. (Sept./Oct. 2000) (available on court dockets without a corresponding Westlaw). increase in judicial resources. Between 2. See, e.g., Lawyering Skills and Strategies, UNIV. HOUS. L. CTR, http://www.law.uh.edu/lss/ (last discovery, delay tactics, and busy judgvisited May 6, 2021) (reflecting UH Law Center’s es, there is a tremendous need to get minimum required courses on Lawyer Skills and disputes resolved. Reports of huge jury Strategies); see also Discover the Clinics, UNIV. HOUS. L. CTR., https://www.law.uh.edu/clinic/ verdicts strike fear (or fuel fantasies deDiscover-the-clinics.asp (last visited May 6, pending upon your perspective). People 20201). (reflecting UH Law Center’s minimum required clinics). whose job it is to not-pay-any-money 3. See, e.g., 2020 Entering Class Profile, UNIV. HOUS. tend to view juries as a last resort. The L. CTR., https://www.law.uh.edu/admissions/ future has never been brighter for priclass-profile.asp. (last visited May 6, 2021) (reflecting UH Law Center’s entering class devate mediation and arbitration. mographics); Student Profile, S. TEX. COLL. L. Our prognosticators did pretty well. HOUS., http://www.stcl.edu/about-us/studentprofile/ (last visited May 17, 2021) (indicating But it should be noted that the advances that 45.5 percent of the 2020 fall registered class they predicted have not solved one single were minority students and 44 percent were feproblem. At most, we are making progmale).
‘‘
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May/June 2021
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Pro Bono Service
A Transformative Year:
The Next Twenty Years:
A Call for Continued Pro Bono Efforts By Anne Chandler
We always overestimate the change that will occur in the next two years and underestimate the change that will occur in the next ten. —Bill Gates1
T
he world of pro bono representation can be done best if the world of disempowered persons is small and the world of law is more efficient. We live today in a world in which the need for pro bono services is immense. Even if the number of pro bono efforts quadruples, as I surely hope it does in the next twenty years, an immense gap would remain between need and meaningful access to justice. The number of persons whose conduct is directly and intensely affected by law is immense. A Continued Need for Pro Bono Services There is a large population of community members who live in dysfunctional personal relationships that cascade into violence and poverty. Until our society can find ways to better deter abuse of physical, sexual, and financial power in personal relationships and better educate people against the pressures of entering into such relationships, the need to protect people through law will persist. Individuals who are not well guided by an attorney can find themselves hitting rock bottom when they face consumer and contract disputes, an adult guardianship issue, or an eviction. As the recent pandemic has made ever clearer, a large number of Texans live on the financial edge. Loss of work is not a temporary matter to be tided over with nonexistent savings or by an equally burdened family, but the trigger for cascading catastrophes, ranging from loss of housing to loss of transportation or even food. Perhaps the next twenty years will bring about some equalization of income and wealth, but I doubt that our nation will greatly reduce the fraction of our population who will be unable to afford an attorney when a legal crisis hits. Against these unremitting needs, our legal system’s substantive and procedural complexity makes it extraordinarily difficult for those without formal training in the law to have much chance at success. For some, pro bono efforts built around a goal of education and assistance to pro se litigants are helpful, but for many others, those efforts fall short. Notwithstanding whatever efforts judges or those involved in the system make to explain matters to individuals snared in complex legal systems, a brief education, often conducted in language quite alien to them, is no substitute for trained counsel. The complexity of filing for child custody or handling the legal affairs of someone who fell ill to dementia will continue to demand a need for skilled attorneys. And at Houston Volunteer Lawyers, I am confident that in twenty years we will remain extremely proud of the thousands of attorneys who volunteer their time to bridge some of the gap between the demand for legal services and its availability. Hope for the Future I have a good deal of hope for the next twenty years. Some of it comes from the horror of the pandemic. I hope the pandemic has shown us that random forces beyond one’s control can result in terrible financial events and that an entitlement to fair adjudication of whatever conflicting interests develop in these settings is little less with some random events, like a business closing or an automobile accident, than it is with a disruptive virus. I hope we have learned from pandemic necessity over the past year that we can conduct judicial business and pro bono legal services more efficiently
than we have over the preceding twenty years. In-person hearings have value, but they are sometimes a high-cost substitute for justice that can be achieved through other means. The ubiquity of the web and ever-improving machine translation services for both written and oral statements should mean that useful information can be efficiently provided in a variety of languages without great expense. My other hope is that the nonprofit sector partners with the judiciary to facilitate efficient delivery of legal services. The past thirty years have seen the injustices that come through underrepresentation in a world where individual litigation is deemed necessary and the high costs of resulting under-deterrence deemed less concerning than the errors that inevitably come when litigation is done en masse. Greater repositories of law and fact relating to landlordtenant litigation could mean that there is not a need to engage in costly litigation of every case. One hundred years ago, we chose approximate justice over the tort system in the area of workplace injuries. And, frankly, we need to get more comfortable with approximate justice in other areas as well. My hope is that in the next twenty years we will do so. I imagine the best pro bono work will go into insisting that those automated systems be more intelligent and responsive than today’s automated systems.
in school, in church, and in the profession itself, voices speak up, aggressively, for a vision—one in which we are together in a society far more fragile than often acknowledged. And in that world, the barriers to effective pro bono representation that seem insuperable in today’s environment will come tumbling down. Anne Chandler is Executive Director of Houston Volunteer Lawyers.
Endnote 1. BILL GATES, THE ROAD AHEAD (rev. ed. 1996).
Changing Hearts Changes Lives The main change in pro bono services over the next twenty years has to come not from software or even the rule of law, but from a change of heart. Yes, those hearts might feel freer were they not being tugged at by levels of student debt that I hope will not persist in twenty years or by obligations to family that assuredly will. Ultimately, however, we will need to develop a broader sense of community that extends beyond the people in one’s immediate neighborhood and that persists beyond natural catastrophe. The best pro bono work comes not out of noblesse oblige but when we see the person being helped as our brother, as our sister, or as our neighbor. Let this pandemic remind us that we stand together with intertwined fates. I hope that at home, thehoustonlawyer.com
May/June 2021
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Pro Bono Spotlights Serving Pro Bono Clients in a Pandemic:
Houston Volunteer Lawyers
D
uring COVID-19, thousands of Houstonians have struggled with unemployment, often getting behind on their rent and facing eviction as moratoriums expired and landlords began eviction proceedings. Family law issues also increased, as domestic violence and other family problems were exacerbated by the need to quarantine and the stress caused by worry over jobs, health, and educating children remotely. Houston Volunteer Lawyers (HVL) mobilized early in the pandemic to recruit volunteer attorneys to provide legal representation for low-income Houstonians so they could achieve the best possible outcomes, while working within the constraints of remote intake, interviews, and hearings. During 2020, HVL quickly pivoted to online intake and virtual clinics, providing assistance to over 2,000 people in the Houston area. There were hundreds of local attorneys who volunteered to represent low-income Houstonians through HVL during the past year. They provided the expertise to make critical differences in the lives of those who need it most. Below are stories of just a few of those attorneys who helped during a challenging year. Eric Boylan
Eric Boylan of Locke Lord LLP represented a couple who were the parents of a son who had suffered since birth from conditions that made him completely dependent on his parents for care in every aspect of daily life. When their son turned 18, the parents were told they would no longer be able to make decisions for him because he was now a legal adult. Through HVL’s Medical-Legal Partnership with Texas Children’s Hospital, the parents were paired with Eric, who helped them seek co-guardianship of their son. Although the COVID-19 pandemic presented serious obstacles, Eric was able to work through every aspect of the case remotely, including intake, interviews, and the final prove-up hearing. On December 16, 2020, the parents were awarded co-guardianship and now can continue to provide the care their son needs. “Whether performed in person or remotely, pro bono work continues to be as important as it has ever been,” Eric said. “It has been a privilege and an honor to serve the Houston community and to provide the kinds of essential legal services that impact lives in a meaningful way.”
sistance, he had not yet been approved. Dalya was able to get a short trial continuance because of the client’s medical condition, and shelter housing became available right before the reset date. The veteran was able to move into the shelter while awaiting permanent housing. Meanwhile, the landlord amended his petition to request back rent, and he refused to negotiate a move-out agreement, insisting on going forward with a trial. At trial, Dalya successfully argued that the case was now moot, since the client had moved out and returned possession of the property to the landlord. The judge immediately dismissed the case, awarding $0 to the landlord. Because of Dalya’s efforts, the veteran faced a smoother transition into new housing. “Helping veterans is always a good thing,” said Dalya. “They put their lives on the line for us. It’s my honor to serve one of our heroes.” On continuing to serve pro bono clients during a pandemic, Dalya had this observation: “We will all have good stories to tell the next generation, so let’s empower them with love and compassion to help and support each other. I think this is one brick that can keep any community strong, no matter how hard the situation. This may have been my first experience with HVL, but I am sure it will not be the last.”
Dalya Alabassi
Staci Wilson
Dalya Alabassi assisted a veteran with severe health conditions who faced eviction and had nowhere to go. He did not have a lease on his apartment, but rather rented on a month to month basis. The landlord was a new owner of the property and wanted him to move out, so he filed to evict the veteran. Although the veteran had applied for veterans housing as-
Staci Wilson, a partner with Bracewell LLP, successfully represented a grandmother in a conservatorship case. The grandmother had been raising two grandchildren because her daughter suffered from mental illness and could not take care of them. The children’s fathers were not in their lives. Staci helped the grandmother get a court order granting her conservatorship so she could care for and
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make decisions to ensure her grandchildren had a better life. Soon after resolving the conservatorship issue for a grateful grandmother, Staci went back through the HVL case portal and accepted another family law case. “It was my absolute privilege to assist this dedicated grandmother in her efforts to continue caring for her two grandchildren. The love that she had for her grandchildren was evident each time I spoke with her, and she just needed help navigating the legal system so that she could have the proper legal paperwork that would allow her to continue to care for them,” Staci said. “It was truly a wonderful moment when the judge entered the final order giving her custody of the children. She was overcome with joy and relief. “That is what pro bono work is all about—helping those who need it most—and it is why I continue to volunteer through the HVL.” Ken Kuykendall Ken Kuykendall is a retired civil attorney who specializes in admiralty and maritime law. “I have been working with Houston Volunteer Lawyers for the last five years and only take pro bono cases. I do not take any paying cases,” Ken said. “My initial goal was to take 100 cases, but that goal was passed some time ago.”
In fact, HVL attorneys say Ken handled between 20-30 pro bono cases during the past year. “I don’t know how many cases I took in 2020, but it was less than usual as I got tied up in five cases... that each required about 100 hours. I expanded my work day from three to four hours a day to six to seven hours due to the pandemic and the difficult cases.” Ken’s pro bono work this bar year included several extremely complicated, emotional family law cases, with multiple issues including domestic violence, divorce, child support, and temporary support. In one case, a woman had reported her husband multiple times for assault and abuse. She finally found a job and was able to move into a shelter with her child. After a very difficult and protracted legal battle with her husband, Ken helped her obtain a divorce and the proper amount of child support. According to HVL attorney Barbara Cochran, “[Ken] does an amazing job to make sure that each of his clients has been provided the best representation possible.” These attorneys have all done their part to make justice happen during the pandemic. Visit makejusticehappen.org to learn more about HVL and how you can make justice happen by volunteering for a pro bono case. These stories were compiled and written by Tara Shockley, managing editor of The Houston Lawyer, from information provided by HVL staff attorneys and the pro bono volunteers.
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Pro Bono Spotlights
Thompson Knight’s ‘This is Our Town’ Initiative By Michele (Mitch) Gibbons
In light of the stay-at-home orders, business shutdowns, and economic downturn at the onset of the COVID-19 pandemic, many small businesses in Houston, which play an important part in our communities and broader economy, faced an uncertain future. Businesses we rely on every day, such as restaurants, laundromats and beauty salons, do not generally have access to the Mitch Gibbons traditional avenues for pro bono assistance. In response to the hardships faced by these businesses, in April 2020, Thompson & Knight LLP established the “This Is
Our Town” initiative, intended to fill the pro bono gap and provide legal assistance to small business owners. Over the course of the year, as part of the initiative, Thompson & Knight attorneys assisted local businesses with a broad range of legal issues, including applying for government assistance programs (such as Paycheck Protection Program [PPP] loans); lease and real property disputes; and contract interpretation, enforcement and drafting. In addition to presenting an opportunity to give back, it was an avenue for our attorneys to connect to the Houston community at a time when many felt isolated and uncertain about the prospects for reentering public life. Mitch Gibbons is a partner at Thompson & Knight LLP who focuses on securities regulation and compliance.
Stacy Allen:
Representing Protestors By Anietie Akpan As anti-police brutality protests broke out across the country after the murder of George Floyd last summer, thousands of people were arrested in connection to those demonstrations. While the majority of the gatherings were overwhelmingly peaceful, some became chaotic or even violent, and some demonstrators were met with tear gas, pepper Stacy Allen spray, and rubber bullets. Seeking to ensure fair legal treatment of demonstrators who were apprehended, some Houston lawyers offered pro bono representation for detained protestors. One of those lawyers was Stacy Allen, a Houston-based family and criminal defense attorney. When asked why providing this service was important to her, Stacy shared: “I pride myself on being a social engineer, someone who utilizes her legal skill set for the betterment of society. We all have a role to play in bending the moral arc toward justice and for me, ensuring that the constitutional right of free speech and assembly was protected, especially when those rights are utilized in demanding a more equitable and just system and for the liberation of Black people and all oppressed, was a no brainer. It was 16 May/June 2021
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my privilege and duty to be of service.”1 Approximately seven different demonstrators contacted Stacy over the course of the summer. “There were many lawyers like myself who volunteered through organizations or social media to represent anyone charged with a crime related to their participation in the George Floyd protests,” she explained, “so thankfully there was an abundance of help to go around.” In reflecting on how events of the past year could shape the legal community’s future civil rights-focused efforts, Stacy believes that attorneys cannot afford to become complacent in doing the good that our legal education empowers us to do. “You don’t have to be an expert in a particular area of law,” she said, “you just have to care” and, at times, be on the frontlines where the people in need are located. Anietie Akpan is in-house counsel for the Metropolitan Transit Authority of Harris County (METRO) and serves as Articles Editor for The Houston Lawyer.
Endnotes
1. The late Charles Hamilton Houston – who served as Dean of Howard University School of Law (Stacy’s alma mater) – once famously said, “A lawyer is either a social engineer or a parasite on society.” Mr. Houston was credited as the legal architect of civil rights arguments that led to the end of legalized racial segregation in the United States.
BakerRipley’s Immigration Legal Services Collaborative By Cindy Ramirez I am an immigration attorney at the non-profit, BakerRipley, and as part of the Houston Immigration Legal Services Collaborative, I provide free legal representation to people detained in the four immigration jails in the greater Houston area. While courts hearing nondetained cases closed in 2020 due to the COVID-19 pandemic, the Immigration Court in Conroe, Texas, never stopped Cindy Ramirez moving forward with detained people’s cases. Because of the global pandemic, I started setting up legal calls with clients and mailing forms and documents for them to review, sign, and send back to me in self-addressed stamped enve-
lopes, because I could not visit them in person. I, along with opposing counsel, also started appearing in court telephonically. Clients appeared via video teleconference, meaning none of us were in the courtroom with the immigration judge anymore. Preparing for court was challenging because legal calls were in short supply and clients were terrified of both being deported and contracting COVID-19 in the immigration jails, with limited opportunity for social distancing. My clients have kept me going throughout the pandemic because, in spite of the many obstacles they encountered throughout their lives, they are extremely resilient and hopeful. Cindy Ramirez is an Immigration Justice Corps Fellow and immigration attorney at BakerRipley.
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May/June 2021
17
Reflections from the Judiciary
A Transformative Year:
T
he Houston Lawyer asked several local judges about how the last year shaped or changed the court system and whether any of the new practices that were implemented during the year would likely continue into the future. The following reflections demonstrate that the pandemic and other events during this bar year had a significant impact on our justice system, but our local judicial officials worked hard to ensure that citizens still had access to justice.
Harris County District Courts – Civil
The Hon. Mike Engelhart During the 14 months since Friday, the 13th of March, 2020, which was my last day in the Harris County Civil Courthouse before we evacuated for the pandemic, our Courts have permanently evolved. Unless the Texas Legislature shuts us down, Zoom, or another video conferencing vendor, will be in use semi permanently. Now that judges and lawyers know its power and convenience, I am certain that we will have weekly Zoom hearings, Zoom bench trials, and Zoom witnesses in live jury trials. Thanks to the heroic work of a handful of innovative, energetic judges, including Judge Kristen Hawkins, Judge Rabeea Collier, Judge Bob Schaffer, and Judge Beau Miller, among others, our courts got back into the jury trial business starting in October 2020. Jury selection at NRG Arena in Houston, by the Astrodome, is now almost routine. Our court has tried almost a dozen jury trials by conducting voir dire at NRG and having live, socially distanced juries back at the Civil Courthouse. Only the threat of jury trials will mitigate the swell in our lawsuit inventories, and we are endeavoring to get lawsuits to trial in ever greater numbers. Our technical team in the District Clerk’s Office and in District Court Administration deserve plaudits for their tireless work and incredible innovation on the fly. They have stuck together a plausible and constitutional system that gives access to our proceedings to parties and the public. We owe them a huge debt. Despite everyone’s best efforts, I hope this is not a permanent situation. Since Hurricane Harvey in late August 2017, we have not had any business as usual. Harvey caused extensive damage to the Criminal Justice Center, and we started sharing our courts with twenty-two Criminal District Courts. We were basically down to 50% courtroom capacity. Just as the Criminal Courts were returning to their building in 2020, the pandemic took hold and we were again out of our courtrooms. I yearn for regular days of in-person hearings, jurors shoulder to shoulder in the jury box, and an end to having to manage the broadcast of our trials via Livestream and Zoom. I cannot wait until I have 100% use of my courtroom for its intended purpose; for the reason I signed up to do this great job. The Hon. Mike Engelhart is the judge of the 151st Civil District Court of Harris County. Judge Engelhart participated in the COVID-19 Roundtable discussion that was published in the July/August 2020 issue of The Houston Lawyer, and he graciously agreed to provide some additional thoughts for the final issue of the bar year.
Harris County District Courts – Criminal
The Hon. Lori Chambers Gray American jurisprudence is clear that the right to petition the government for a redress of grievances contained in the First Amendment to the U.S. Constitution guarantees a right of court access. The Bill of Rights in Article 1 Section 13 of the Texas Constitution provides, “[A]ll courts shall be open and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”1 Historically, access to courts has been tested by people, policy, and natural disasters. Our courts have weathered every storm. Never has a crisis brought such rapid change to the judicial system than the unprecedented global pandemic in 2020. As COVID-19 spread across our state, Harris County court proceedings changed, seemingly overnight. But the central aim of our justice system—to have fair and public hearings before
all courts—held strong despite the challenges this virus posed. Governmental restrictions prohibiting in person meetings with no immediate cure in site caused our courts to adapt quickly to the new normal, and virtual court sessions were born. Harris County state district courts now have giant TV screens where juries once sat. There are microphones and cameras mounted on judges’ benches. Plexiglas shields court clerks, court reporters’ desks, and the witness stand. Tables and chairs inside the bar stand mostly empty. Prosecutors and defense attorneys appear by teleconference over internet connections. The Harris County state district courts use Zoom to conduct these virtual proceedings. Defendants who have the capability may also appear by Zoom. But there are safety precautions in place in each district court to allow for in-person appearances for defendants who do not have internet access or have some other compelling reason to attend live court sessions. In those cases, the number of people allowed in the courtroom at one time is limited to a very few to maintain the capacity regulations imposed by county authorities. Health screeners monitor courthouse entrances. Everyone, including court staff and the public, must pass the standard COVID-19 screening to gain entry. Once inside, everyone must wear the mandatory face mask.2 These safety measures have become our new normal. Our courts must provide a safe environment in order to continue to operate and fulfill our constitutional obligations.
The use of technology in courts to accommodate virtual proceedings is not without problems and concerns. Challenges to these unprecedented court proceedings are being raised on appeal. We are watching our appellate courts as they deal with these cases of first impression. The courts have and continue to adapt to the new changes brought on by the COVID-19 virus. Court administrators, medical personnel, lawyers, judges, public officials, and the public are coordinating efforts to maintain public safety and to ensure our responsibilities to communities and institutions are fulfilled. As we emerge from this latest crisis, courts will be forever changed. The convenience of this mixture of both public and virtual court proceedings likely will remain with us. This new way of employing technology to meet obligations in the midst of great storms has assured us that the right to court access, guaranteed by the United States Constitution and the Texas Constitution, can be and will be protected. The Honorable Lori Chambers Gray is the presiding judge of the 262nd Criminal Court of Harris County.
Endnotes
1. TEX. CONST. art. I, § 13. 2. The federal district courts in Houston have similar requirements. See Special Order H-2021012 (S.D. Tex. Apr. 15, 2021), https://www.txs.uscourts.gov/sites/ txs/files/Special%20Order%20H-2021-12%20Twelfth%20Supplemental%20 Court%20Operations%20in%20Houston%20and%20Galveston%20During%20 COVID-19.pdf.
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Federal Courts
An Interview with The Hon. Andrew M. Edison The federal courts have had to rapidly adapt operations during the pandemic, providing short- and long-term solutions to ensure that the public and practicing attorneys had continuous access to the justice system. While courts were somewhat forced into using Zoom during the pandemic to ensure access to justice, Judge Edison found that it made oral arguments more effective and saved time and expense. He believes that this platform will likely stay around in some form or fashion in the future. He noted that he had one case in particular in which the parties hailed from all over the country, but because the court used Zoom for the status conference, none of the parties were required to travel. Judge Edison said that Zoom hearings often provided better presentation of oral argument, and that the use of technology made his docket more efficient. The court made extensive use of the breakout room feature, in particular, which allowed litigants to discuss issues at court conferences, facilitating resolution of matters on
Houston Municipal Courts
The Hon. J. Elaine Marshall Since the start of the COVID-19 pandemic, all locations of the Houston Municipal Courts adjusted to our new normal. Our buildings never closed, and we continued to assist every citizen who came into the courts. We had multiple courts open to provide for social distancing and never had more than ten people in a courtroom. We suspended jury and bench trials and all in-person hearings. Because of our volume of cases, we did not see Zoom as a viable method for our trials or hearings. At the onset, attorneys and citizens were given the opportunity to come in and reset their cases, and we had additional courts open on Saturdays to accommodate the volume. Our Safe Harbor Court was established and started in November of 2020. This court was designed to assist defendants due to financial hardships, medical issues, or issues arising from COVID-19. It has three dedicated judges who the citizens come in to speak to, which gives the citizens consistency in making agreements with the court (since we have over sixty judges). The judges assist the defendants in satisfying judgments, and it gives them a safe harbor, free from the fear of arrest. The citizens must produce evidence of an inability to pay fine and fees, and the judges determine what options are 20 May/June 2021
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the docket. Moreover, criminal proceedings could also be held via video, which helped streamline the docket. While there is indeed a lack of face-to-face contact in this “new normal,” Judge Edison noted that litigants have not seemed to lose any sense of collegiality. Judge Edison advised that for litigants to be effective advocates during Zoom hearings, they should treat it as an official proceeding and give the court the attention and level of professionalism expected in an in-person hearing. One of the most common problems are litigants not being aware of the technical aspects of their presentation. Additionally, Judge Edison indicated that it is crucial that advocates are able to be heard, have proper lighting, and give the court their full attention during the proceedings. The Honorable Andrew M. Edison is a United States Magistrate Judge for the Southern District of Texas, Galveston Division. Judge Edison participated in the COVID-19 Roundtable Discussion that was published in the July/August 2020 issue of The Houston Lawyer, and graciously agreed to be interviewed about these same issues one year after the Roundtable.
best suited to assist the citizens. The additional greatness of this court is that once a month the judges will go into the community to discuss Safe Harbor options with citizens. Our courtrooms and courthouses were CDC-compliant, and we installed shields for all parties involved in trials, judges, and clerks. We also purchased clear masks for the jurors to use once we resumed trials. We have held several jury trials since re-opening fully on April 1, 2021. Our courtroom dockets were reduced in number upon reopening, especially at our Lubbock courthouse where we had already lost the entire basement, which housed five courtrooms and offices, due to Hurricane Harvey. We have managed to continue to operate despite all the obstacles that COVID-19 has thrown at us and continue to meet all constitutional needs of the citizens of Houston. Another challenge the courts faced this year was Winter Storm Uri. We kept our court open at the Joint Processing Center during this extreme weather event. We had two judges, one manager and two court clerk supervisors who worked around the clock 24/7 to ensure that the jail functions were met and warrant verification was fully operational. These five individuals were housed at the Hilton Americas, and were safely commuted back and forth to the Joint Processing Center to address all jail issues. The Hon. J. Elaine Marshall is the Director and Presiding Judge of the City of Houston Municipal Courts Department.
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Education
A Transformative Year:
A Transformative Year for Students with Disabilities
“W
By Kevin P. Shields and Jennifer Swanson
e picked up the kids on Friday for Spring Break, and they just never went back.” Every story was varied, but introductions generally began with something like that. School districts across the state introduced families to the concept of the extended spring break. While those extra school vacation days were cheered by children, the “holiday” quickly led to a statewide shutdown, impacting all students, families, and educators. The impact on children with disabilities was in many cases severe. In the spring of 2020, public schools across the country transitioned to remote learning. Parents who were fortunate enough to work from home did so, and anxiety exceeded our need for boosted internet bandwidth. Many of us tried our hand at homeschooling and modified family and work schedules, calendaring around asynchronous learning and Zoom meetings. For students with disabilities and their parents, however, the new day-to-day meant more than closed classrooms and virtual lessons.
Federal Law That Protects Students with Disabilities The Individuals with Disabilities Education Act (IDEA) guarantees a Free Appropriate Public Education (FAPE)—or a program tailored to one’s specific needs—to those students in need of special education and related services. The purpose of the IDEA is “to ensure that all children with disabilities have available to them a [program] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”1 “[T]he centerpiece of the IDEA’s education delivery system is the Individual Education Plan” (IEP).2 A school district must provide an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.3 Among other things, a child’s education plan (or the IEP) must include a description of the related services, additional supports and services, the instructional arrangement, program modifications, the duration and frequency of the services, and the location where educators will provide the services.4 The Annual Review and Dismissal (ARD) Committee develops each child’s IEP. Participants in a child’s ARD Committee meeting normally include the child’s parents, at least one of the child’s general education teachers and a special education teacher, a school representative, a person who can interpret evaluation results, and others that can help support the child.5 If the IEP fails to provide a child with appropriate support to make progress (say, for example, a health pandemic highlights a child’s deficits), the ARD Committee is responsible for reconvening and revising the IEP to ensure the school fully meets the child’s needs.6 The Texas Education Agency’s Pandemic Plan for Students with Disabilities As early as March 2020, the Texas Education Agency (TEA) released its initial guidance on COVID-19 to school districts and families. The State guidance mirrored federal guidance and reemphasized that the school district’s legal obligations to students with disabilities under the IDEA did not change. Unfortunately, the State guidance also provided:
If a school continues to provide instruction to the general school population during an extended closure due to a disaster... The ARD committee may meet... to determine if some, or all, of the identified [special education] services can be provided through alternate or additional methods. Once the school reopens, the ARD committee must determine whether, and to what extent, compensatory services are needed.7
ing drive-through home visits. We are unbelievably thankful for those educators who refused to allow students in need of additional support to fall through the cracks during the last year. Unfortunately, there were also families who were being left behind.9 Students receiving special education services require specially designed instruction, varying levels of support, accommodations, and serFor students vices to succeed in the general education curEssentially, TEA asked schools to provide serwith disabilities riculum and make progress per their IEP. Yet, it was not uncommon during the pandemic to vices where they could and then assess the damand their parents, see families dealing with schools that failed to age when kids returned to school in person. While public schools in Texas struggled to meet however, the assess a child’s individual needs, a practice the law requires of the ARD Committee. Some disIDEA requirements before the pandemic,8 during new day-to-day tricts refused to hold an ARD meeting at all, the shutdown, things intensified. Texas public schools were not ready to move efficiently to onmeant more denying parent requests for Zoom meetings to address student regression. Districts often atline learning. than closed tempted to use a “one size fits all” school-wide School Districts’ Initial Responses classrooms and program and failed to offer individualized instruction, appropriate supports, or necessary Families of students with disabilities expected virtual lessons.” services for children with disabilities. some hiccups and growing pains, but far too District response plans were, in fact, as varmany faced schools that were either unwilling or ied as school mascots. Some districts offered remote learning unable to serve their children. There were responsive, supthrough Zoom or Google Classroom; others provided hardportive districts that handed out computers and meals to stucopy packets stuffed with ditto sheets. There were even disdents, and there were also districts where teachers made it a tricts that had no plan at all. Zoom classes work great for point to routinely check in on children, with some even mak-
‘‘
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many students, but are far from ideal for a child who has severe ADHD (or one of many other disabilities) and is unable to sit in front of a computer screen focused on her lesson. How does one engage a non-verbal child via a virtual platform? Students whose programs required learning in a selfcontained special education setting (i.e., life skills) were often faced with a school program that only offered an internetbased general education program. For students given paper packets, the work assigned was often not on skill level, and it rarely accounted for the student’s disability-related deficits. One local school district, for example, sent worksheets home in an attempt to fulfill IEP speech obligations. Yes, speech. Not surprisingly, the student’s speech progress took a nosedive. In many cases, parents observed regression or the onset of new behaviors. In one instance, parents found out that their child would kick, scratch, and bite during Zoom sessions with teachers, behaviors not present before the pandemic. Families often had to choose between remaining with the school’s misaligned program or prioritizing the family’s mental and physical health. Discovering Pre-Pandemic Deficiencies As parents spent more time working with their children, some realized that the school based their child’s IEP on fiction rather than their child’s abilities. Their children could
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not perform the skills the school had represented had been mastered. Examples include a child who could not read ageappropriate books, yet the school had reported grade-level success, and a school report of proficiency in writing when the skill demonstrated at home was inadequate, at best. In one case, a review of over a thousand education records uncovered years of educational difficulties, the failure of timely and appropriate evaluations, and, ultimately, a need for more intensive intervention. Often when parents make such discoveries, legal action is the only way to obtain relief. Other Issues for Students with Disabilities Related to the Pandemic States and their respective state and local education agencies must identify, locate and evaluate every child with a disability who needs special education who is residing in its respective state. Many schools ignored their find-and-evaluate10 obligations, incorrectly telling parents that initial evaluations and reevaluations would need to wait. Some schools began to implement “contingency plans” via blanket IEP amendments sent en masse to parents via email. Although contingency plans emerged from TEA guidance to identify how a school district could implement a student’s IEP during the shutdown, school districts often utilized them to shirk their responsibilities and fundamentally alter the IEP itself. A common example was a one- or two-page document
entitled “IEP amendment.” It would include a blanket statement regarding what a child would be entitled to during the shutdown (i.e., twenty minutes of Zoom lessons per week, electronic work posted to See-Saw) but made no mention of the child’s actual IEP. Many Texas parents, distraught by their new situation, either signed the document or missed the email entirely. These unilateral and generic plans went into effect for the parents who did not know their rights. In the fall of 2020, many public schools made plans for the arduous return to campus. Generally, families could return to in-person classes or continue with distant learning. For students with vulnerable health conditions, remaining remote was the only viable option. For them, the fall of 2020 was not much different than the spring of 2020. As the year progressed, districts began to pressure underperforming students to come back to campus. For many remote learners, the family’s first sign of trouble was a letter requesting their child return to in-person learning. However, school districts had a duty to do more for students with IEPs. When a student with an IEP fails to make progress or has a concern to be addressed, such as an increase in behaviors, a school district’s first response should be to reconvene an ARD Committee meeting. To continue to offer an IEP reasonably calculated for a student, school districts must ensure that the IEP team reviews the child’s IEP periodically to determine whether the annual goals for the child are being achieved and revise the IEP to address any lack of expected progress toward the annual goals.11
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Compensatory Services The U.S. Department of Education has outlined that the loss of special education services due to the COVID-19 school closures entitles students to compensatory services.12 As of this article’s writing, more than one year has thehoustonlawyer.com
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passed since Texas public schools first closed their doors in response to the pandemic. However, many students still have not received compensatory services from their schools. Under the IDEA, a complaint (or Due Process Hearing Request) must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint, or, if the state has an explicit time limitation for filing a due process complaint under this part, in the time allowed by that State law.13 Problematically, Texas has such a limitation: one year from the date the parent or public education agency knew or should have known about the alleged action.14 The narrow window is problematic for most parents as it often takes more than a year for problems to become evident. The Texas Legislature, however, recently introduced a new bill—HB 1252—which would increase the limitations period for filing a complaint and requesting a special education due process hearing, to the maximum timeline under the IDEA.15 We hope this bill is one of many proactive steps taken to address the transformative needs of students with disabilities in Texas. Kevin Piwowarski Shields and Jennifer Lynn Swanson are special education attorneys at Shields Law Firm, LLP. They serve families and children with disabilities in special education law and special needs planning matters throughout Texas.
Endnotes 1. 2. 3. 4. 5. 6. 7.
Individuals with Disabilities Education Act, 20 U.S.C. § 1400(d). Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017). Id. 34 C.F.R. §§ 300.22, 300.323(a). Id. § 300.321. 20 U.S.C. §§ 1414(d)(4)(A)–(B). TEX. EDUC. AGENCY, COVID-19 AND SPECIAL EDUCATION FAQ (2020), https://tea.texas.gov/sites/default /files/COVID-19%20and%20Special %20Education%20FAQ%283-13-20%29.pdf. 8. See generally U.S. DEP’T OF EDUC., TEXAS PART B 2017 MONITORING VISIT LETTER (2017), https://www2.ed.gov/fund/data/report/idea/partbdmsrpts/ dms-tx-b-2017-enclosure.pdf; Adam Kelsey, Texas Schools Failed to Identify Special Education Students: Department of Education, ABCNEWS (Jan. 11, 2018), https://abcnews.go.com/US/texas-schools-failed-identify-specialeducation-students-department/story?id=52285774 (discussing a report released by the Department of Education that found the TEA failed to comply with federal laws relating to providing services to students with disabilities). 9. Shields Law Firm, LLP (the authors’ firm) conducted “know your rights” webinars for these families. 10. 42 U.S.C. § 1412(a)(3). 11. 34 C.F.R. § 300.324(b). 12. U.S. DEP’T OF EDUC., QUESTIONS AND ANSWERS ON PROVIDING SERVICES TO CHILDREN WITH DISABILITIES DURING THE CORONAVIRUS DISEASE 2019 OUTBREAK (2020), https://www2.ed.gov/policy/ speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf; U.S. DEP’T OF EDUC., SUPPLEMENTAL FACT SHEET ADDRESSING THE RISK OF COVID-19 IN PRESCHOOL, ELEMENTARY AND SECONDARY SCHOOLS WHILE SERVING CHILDREN WITH DISABILITIES (2020), https://www2. ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/Supple%20 Fact%20Sheet%203.21.20%20FINAL.pdf. 13. 34 C.F.R. § 300.507(a)(2) (emphasis added). 14. 19 TEX. ADMIN. CODE ANN. § 89.1151(c). 15. See Tex. House Bill 1252, LEGISCAN, https://legiscan.com/TX/text/HB1252/ id/2251021 (last visited May 16, 2021), to track the legislative progress of this bill.
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Lawyers Fighting for Education Justice in 2021
I
By Andrew Hairston n March 2021, Texas Appleseed published Education Transformed: The K-12 Experience in Texas During the Coronavirus Pandemic (“Education Transformed”), a comprehensive report encapsulating research on how the coronavirus pandemic has detrimentally impacted young Texans, including economic deprivation, housing insecurity and education inequity. Through the research process for this report, the Texas Appleseed Education Justice Project team better understood just how detrimental the coronavirus pandemic has been on children across Texas. Every crisis faced by adults during this unparalleled moment has landed upon children with more force. In the first year of the coronavirus pandemic in the United States, children worked essential jobs to support their families, faced exclusionary discipline in schools, and, alongside their parents, navigated referrals to truancy courts.1 They waded through these difficulties as the nation mourned over 550,000 lives lost to COVID-19. Young people were expected to maintain some sense
of normalcy throughout this once-in-a-century experience. As we recognize that we won’t fully grasp the breadth of this crisis for years to come, we already see that the same zero-tolerance approach for children and their behavior stands to continue. Over the course of the coronavirus pandemic, the continuation of school policing and penalties for school absences demonstrate this argument most effectively. Both institutional practices represent the insidious mass criminalization of young people—a form of oppression that not even a global health crisis slowed.2 On the issue of school policing, Education Transformed provides both anecdotal and empirical evidence that nothing changed over the past twelve months. School districts maintained their internal school police departments and the budget line items that accompany them, even as the country witnessed incredible momentum around divestment from school policing in the summer of 2020.3 On a related note, school districts around Houston, like Pasadena ISD, have already administered several hundred formal disciplinary actions during this academic year.4
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The same principle applies to truancy referrals. Education Transformed notes that Mesquite ISD and Duncanville ISD in the Dallas-Fort Worth area administered over 300 referrals to parents and young people in the fall of 2020.5 The centuries-old notion of criminalization governs here; it allows school police officers and truancy courts to operate as usual during a pandemic, while millions struggle to meet their basic needs. As we sit with all of this suffering around us, we might wonder what we can do as lawyers? There are a number of ways to engage in the fight for social justice at this pivotal juncture. I urge my fellow attorneys to first seek out base-building organizations in their communities— ones that center the voices and leadership of people directly impacted by racism—and offer to provide material support to them. You can donate, amplify content on social media, and lend pro bono resources to them. Perhaps you may decide to enter into a limited representation agreement for members of the organization? This arrangement could potentially be helpful, for example, to children facing disciplinary hearings this academic year. To put this all more succinctly, this is an extraordinary moment. We only stand to witness more collapse in the immediate future; climate change, reckonings with racist policies, and economic inequality only stand to imminently intensify. As lawyers, we can stand in solidarity with social movements that attack the ongoing harms discussed in Education Transformed and this article. We can start by fighting for the dignity of the youngest among us in their schools and communities. Andrew Hairston is the Education Justice Project Director for Texas Appleseed. He holds a bachelor’s degree from Howard University and a law degree from Louisiana State University.
Endnotes
1. EDUCATION TRANSFORMED: THE K-12 EXPERIENCE IN TEXAS DURING THE CORONAVIRUS PANDEMIC, TEX. APPLESEED, 6 (2021), available at https://www.texasappleseed.org/sites/default/files/EducationTransformed_
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Report032921-Fin.pdf. 2. See Dana Goldstein, Do Police Officers Make Schools Safer or More Dangerous, N.Y. TIMES, June 12, 2020, https://www.nytimes.com/2020/06/12/us/ schools-police-resource-officers.html; Sarah Childress, Justice Department Probes Another “School-to-Prison Pipeline,” AUSTINPBS, Apr. 1, 2015, https:// www.pbs.org/wgbh/frontline/article/justice-department-probes-anotherschool-to-prison-pipeline/. 3. EDUCATION TRANSFORMED, supra note 1, at 29–33. 4. Id. at 25. 5. Id. at 20.
Equal Rights
A Transformative Year:
A Rainbow During a Pandemic:
Bostock’s Impact in Texas
T
By Cheri Thomas
he last year has been an incredibly tough one. Our communities and workplaces have been impacted by the pandemic, civil unrest, and economic turmoil. One silver lining (or perhaps rainbow) among the clouds was the U.S. Supreme Court’s historic decision in Bostock v. Clayton County.1 The Bostock court determined that Title VII’s prohibition against discrimination based on sex includes discrimination based on sexual orientation and gender identity, finally affirming that our family and friends in the LGBTQ+ community are protected from discrimination in employment under federal law.2 An employer cannot fire someone simply for being homosexual or transgender.3 Now, almost a year has passed since the historic decision. This article briefly examines Bostock’s impact on employment law in the Fifth Circuit Court of Appeals and Texas courts. Before Bostock, in 2019, the Fifth Circuit firmly reiterated its precedent that sexual orientation and gender identity were not protected under Title VII.4 Since Bostock, the Fifth Circuit did not decide a case involving employment discrimination based on sexual orientation or gender identity until May of this year. Nonetheless, a portion of the court found an opportunity to comment on Bostock only three An employer days after the opinion issued. In Thomas v. Reeves, the Fifth Circuit was charged with deciding whether cannot fire the three-judge district court statute, 28 U.S.C. § 2284(a), applied only to consomeone simply stitutional challenges, or to both constitutional and statutory challenges, to the apportionment of any statewide legislative body.5 The court ultimately defor being termined the appeal was moot; nonetheless, three different judges wrote sepahomosexual or rate concurrences to address the meaning of the statute.6 One concurrence relied on Bostock to support its “text-centric” conclusion that a three-judge transgender.” court must decide all challenges to the apportionment of statewide legislative bodies.7 Though the concurrence relied upon Bostock, it caricatured the reasoning of Bostock’s 6-3 majority: In the Bostock majority’s view, language coded by lawmakers is like language coded by programmers. A computer programmer may write faulty code, but the code will perform precisely as written, regardless of what the programmer anticipated. Courts, no less than computers, are bound by what was typed, and also by what was mistyped.8
‘‘
The concurrence acknowledged the Court was “bound by Bostock” but characterized its reasoning as “ascetic” and quoted heavily from Bostock’s dissent.9 More recently, the Fifth Circuit took a more deferential tone towards Bostock in the context of alleged same-sex harassment unrelated to sexual orientation or gender identity. In Newbury v. City of Windcrest, Ms. Brandy Newbury claimed that her female co-worker was rude to her because Newbury is a woman and the co-worker treated women worse than men.10 Newbury relied on Bostock to support her claim, arguing that under Bostock, a plaintiff’s sex need not be the sole reason for action taken against her. But Newbury presented no evidence that the co-worker’s rudeness was motivated by her sex.11 The Fifth Circuit concisely summarized the holding of Bostock: The Court interpreted Title VII to prohibit workplace discrimination against homosexual and thehoustonlawyer.com
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transgender persons. It reasoned that an employer’s taking adverse action against employees because of their sexual orientation or transgender status was inextricably tied to sex, even if sex was not the sole motivating factor for the action.12 The Fifth Circuit explained that “[a]lthough the [Supreme] Court expanded the groups of individuals protected by Title VII, it in no way altered the preexisting legal standard for sexual harassment.”13 Because Newbury presented no evidence that her alleged mistreatment was because of her sex, the Fifth Circuit held summary judgment was proper on her sex discrimination claim.14 Last month the Fifth Circuit applied Bostock for the first time in a case involving discrimination claims based in part on the plaintiff’s transgender status. In Olivarez v. T-Mobile USA Inc., Mr. Elijah Olivarez alleged, among other things, that he suffered discrimination and retaliation under Title VII after he reported demeaning and inappropriate comments made by a supervisor about his transgender status.15 The district court had dismissed these claims in response to a motion to dismiss because Olivarez did not allege that he was treated differently than other employees.16 Although Olivarez twice amended his complaint, his Second Amended Complaint did not allege he was treated less favorably than a similarly-situated employee outside his protected group as required to state a claim under Title VII.17 Less than a week after the district court issued its opinion dismissing Olivarez’s claims, the U.S. Supreme Court issued its opinion in Bostock. Olivarez filed a motion for rehearing with a motion to amend; he argued that Bostock changed the law and eliminated the requirement for comparator allegations and evidence in Title VII cases.18 The district court did not discuss this argument for reconsideration generally but denied the motion to amend pursuant to Federal Rule of Procedure 16(b), noting that Olivarez had failed to address the applicable Rule 16(b) standard.19 On appeal, the Fifth Circuit affirmed the district court’s ruling. The court emphasized that while Bostock grants a plaintiff alleging transgender discrimination the same benefits as any other plaintiff claiming sex discrimination under Title VII, it also subjects that plaintiff to the same legal burdens, including the requirement to allege facts to support a finding that he was treated less favorably than others outside his protected class.20 The Fifth Circuit rejected Olivarez’s argument that Bostock altered this requirement, explaining, “Bostock nowhere alters the requirement that a plaintiff under Title VII must identify a more favorably treated comparator in order to establish discrimination.”21 Federal district courts in Texas have not otherwise issued opinions involving employment discrimination based on sexual orientation or gender identity since Bostock. Neither have most Texas State Courts of Appeals.22 However, one Texas Court of Appeals recently issued a momentous opinion following Bos30 May/June 2021
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tock. In Tarrant County College District v. Sims, the Court of Appeals for Texas’s Fifth District held that discrimination based on sexual orientation and gender identity is prohibited under the Texas Commission on Human Rights Act (“TCHRA”), Texas’s state statute protecting against workplace discrimination.23 The court reasoned: In order to reconcile and conform the TCHRA with federal anti-discrimination and retaliation laws under Title VII, we conclude we must follow Bostock and read the TCHRA’s prohibition on discrimination “because of... sex” as prohibiting discrimination based on an individual’s status as a homosexual or transgender person.24 The U.S. Supreme Court’s decision in Bostock is a significant step toward protecting LGBTQ+ workers from discrimination. Still, it largely remains to be seen how the case law will develop in lower courts in Texas. Only time will tell how the Fifth Circuit and Texas courts, federal and state, will move forward to expand and apply Bostock. Cheri Thomas is a partner at Lewis Thomas Law PC, where she practices appellate law.
Endnotes
1. Bostock v. Clayton Cnty.,140 S.Ct. 1731 (2020). 2. President Biden has since issued an executive order declaring that his administration will apply Bostock’s interpretation of Title VII to other statutes prohibiting sex discrimination. Exec. Order No. 13,988, 86 Fed. Reg. 7023 (Jan. 20, 2021). In addition, the Department of Justice issued guidance specifically instructing federal agencies to apply Bostock’s definition of sex discrimination to Title IX. Pamela S. Karlan, Principal Deputy Assistant Att’y Gen., U.S. Dep’t of Justice, C.R. Div., Memorandum re: Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972 (Mar. 26, 2021). 3. Bostock, 140 S.Ct. at 1754. 4. Wittmer v. Phillips 66 Co., 915 F.3d 328, 330 (5th Cir. 2019). 5. Thomas v. Reeves, 961 F.3d 800 (5th Cir. 2020). 6. Id. 7. Id. at 824–25 (Willett, J., concurring). 8. Id. at 825. 9. Id. at 824–25. 10. Newberry v. City of Windcrest, 991 F.3d 672 (5th Cir. 2021). 11. Id. 12. Id. 13. Id. 14. Id. 15. Olivarez v. T-Mobile, USA, Inc., No. 20-20463, 2021 U.S. App. LEXIS 14105, *2 (5th Cir. May 12, 2021). 16. Id. at *3-4. 17. Id. 18. Id. at *8. 19. Id. at *4-5. 20. Id. at *1, 8-9. 21. Id. at *8-9. Although Olivarez eventually filed a Third Amended Complaint that alleged a comparator, this complaint was filed well outside the deadline set by the district court’s scheduling order, and after the time Olivarez sought reconsideration. Id. at *10-11. 22. The Fourteenth Court of Appeals recently relied on Bostock to support governmental immunity in a suit that taxpayers filed challenging the extension of benefits to same-sex spouses of city employees. See Pidgeon v. Turner, No. 14-19-00214-CV, 2021 Tex. App. LEXIS 3286, at *32-34 (Tex. App.—Houston [14th Dist.] Apr. 29, 2021, no pet.). 23. Tarrant Cnty. College Dist. v. Sims, No. 05-20-00351-CV, 2021 Tex. App. LEXIS 1781 (Tex. App.—Dallas Mar. 10, 2021, no pet.). 24. Id. at *11. But see id. at *21–26 (Schenck, J., dissenting).
Bearing Witness to Hate
V
By Joshua D. Lee, Sarah Tejada, Kristina Vu and Nadine Ona iolent attacks targeting Asian American-Pacific Islander (AAPI) communities are on the rise worldwide. They represent a grim reversal of a once downward trend. In the United States, over 3,700 reported hate incidents have been recorded since the beginning of the pandemic.1 New incidents are reported daily, including in Texas. Just last March, a knife-wielding assailant attempted to murder an Asian American family at a Sam’s Club in Midland, Texas, thinking they were “Chinese infecting people with coronavirus.” He stabbed two children, ages 2 and 6, and their father.2 This tragedy was not an isolated incident but rather is part of an alarming pattern of increased discrimination and violence towards the AAPI community. Sadly, each of the authors of this article knows friends, family members, and colleagues who have been the target of abuse and vitriol because of their race. The fear and frustration growing within our communities is enormous.3 Undoubtedly, pernicious rhetoric from government officials has contributed to the attacks. Use of terms like “China virus” and “kung flu” breathed new life into the xenophobic tendencies that have long persisted just below society’s surface. The phenomenon of anti-AAPI discrimination and violence is not new. It is a recurring theme of injustice in our country’s history. Japanese internment is often cited as a prime example,4 but we Americans have witnessed countless injustices. The hate and ignorance that spurred the U.S.’s internment policy is the same bigotry that in 1871 incited a 500-strong mob to lynch nineteen Chinese Americans in Los Angeles. Only ten men stood trial. All charges were dismissed or overturned.6 The same intolerance weaponized federal legislation to enact the Chinese Exclusion Act in 1882—notably, the only U.S. law to target a specific ethnic group. The Act stood for over sixty years before it was finally repealed.6 We are witnesses to hate-fueled violence that continues to this day. We saw it in 1989 when a deranged gunman, who spoke openly about Asian immigrants “taking jobs” from Americans, murdered five schoolchildren in California.7 None were older than the age of ten. We saw it in 2012 when a white supremacist fatally shot six Sikh victims in Wisconsin.8 A seventh died of his wounds last year. We saw it this March when a young mother, holding her baby, was spit on and assailed as “Chinese Virus” in Queens.9 We are still mourning the eight lives lost in Atlanta. Six of the victims were Asian American women, likely targeted because of their race and gender. And, in the aftermath, we are complicit when we rationalize these horrific crimes as the product of someone’s “bad day.”10 We don’t know the direction in which the trend will turn. We’re encouraged by the initiatives of our federal, state, and local of-
ficials to recognize and condemn bigotry and to promote greater AAPI representation within government.11 But there is far more work to be done. Law is “an expression of how we are united in community”—an attitude “for the people we want to be and the community we aim to have.”12 The acceptance of the rule of law must represent, at the least, a rejection of arbitrary violence. We do not divide property or air grievances with fists and knives. As lawyers, we rely on sound reason, good judgement, and impartial justice. Bigotry recognizes none of these. As custodians of the rule of law, we shoulder a duty to speak out and act when confronted with hate. The burden and duty of a witness is to testify—to speak what they know to be the truth. Dark days still lie ahead of us. The Asian American Bar Association of Houston has pledged in the coming months and years to take these steps: • Foster a community of tolerance and inclusivity by our words and actions, • Actively condemn all forms of violence against all communities of color and minorities, • Offer bystander intervention training with community activists and law enforcement officers, • Build a community of trust by engaging with community representatives, law enforcement, and other bar organizations in support of condemning hate in all its forms, and • Offer guidance, counsel, and resources to organizations that help victims of hate. We urge our colleagues to join us and bear witness: To speak when confronted with hate, to act when safe to do so, to support causes and organizations in the fight against bigotry, and to report incidents you become aware of. If you see or hear a hate incident, please do not hesitate to report it to one of the many organizations that actively track this important data, for example: • The Anti-Defamation League: https://www.adl.org/ reportincident • Stop AAPI Hate: https://stopaapihate.org/reportincident/ • OCA Greater Houston: https://www.aapihatecrimes.org/ aapi-hate-incident-form If you would like to receive bystander intervention training, stay informed, or support organizations that fight hate, please visit and consider supporting organizations like Asian Americans Advancing Justice, https://www.advancingjustice-aajc.org/anti-asian-hate, and Stop AAPI Hate, https://stopaapihate.org/actnow. Continued on page 49 thehoustonlawyer.com
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Practicing Law
A Transformative Year:
Adapting to Disruptions
T
By Ruby L. Powers he ever-evolving landscape of law practice management in reaction to COVID-19 and technology shifts has changed the way we practice law and do business. COVID-19 created multiple paradigm shifts that can’t be undone. In the face of uncertainty, we had to adapt to a new way of interacting with clients, government agencies, and courts, while dealing with the long list of unknowns we faced along the way. Lawyers and their staff worked remotely, communicated with clients via video calls, email, and phone, leveraged technology to deliver services, reevaluated their love of paper while going paperless, changed their marketing perspectives, and adapted to stay relevant and profitable.
Remote Work 2020 taught us that almost all legal work can be performed remotely whether we wanted to believe it or not. This technology has actually mostly been available for years; I personally ran my law firm from Dubai a decade ago. Now, firms are making decisions on whether to come back fully in person, establish a hybrid model, or stay fully remote. Mastering the remote or hybrid firm model reaps immense savings from costly office space. If our staff can work remotely, why couldn’t we hire full-time or contract staff located anywhere? Many firms are questioning their pre-COVID staffing arrangements, and one could expect more outsourcing and remote employment moving forward due to labor cost savings and providing more flexible arrangements to cover staffing needs. Streamlining Client/Attorney Communication When in-person availability was no longer possible, attorney-client communication was left to online video calls, email, mail, text, etc. The level of disruption of non-in-person communication depended on the firm and its clients. For some, this was no different than before and for others, it was a gamechanger. Firms learned how best to communicate with low-tech clients and often invested in better technology to be more efficient firmwide. Not only did firms have to improve attorney-client relationships, but also internal communication. Work-life balance became blurred for ourselves as practitioners and our clients, causing an increase in anxiety for some and changing norms. As a result, calls and emails do not stop after business hours, and firms consequently may have adopted 24/7 receptionist services and/or various chat services to respond to clients’ needs after regular business hours. Automating Basic Administrative Work When you take out the in-person component of communication and you add improved technological options, firms have to simplify case management and automate basic administrative functions to adapt and stay efficient. Most of the software that I have used this last year has improved because software companies knew firms were evolving and rethinking their basic processes to adapt to working remotely internally and with their clients. In fact, if you reevaluate your systems, automate or eliminate repetitive tasks, and leverage case management programs, you can save time and labor. As a frequent attendee of the American Bar Association’s TechShow and ClioCon, I have learned that the programs and integrations available continue to grow.1 If firms haven’t adapted already and don’t do so on a regular basis, they will be left behind. More Digital Interface with Courts and Administrative Agencies How firms function is often a reaction to the rules and processes of the courts and government agencies that they work the most closely with. For example, as an immigration attorney, when U.S. Citizenship and Immigration Services allowed scanned copies of signatures for forms, we no longer had to collect original signatures, and it was a game changer for our processes. Many courts leveraged Zoom
or Microsoft Teams to conduct hearings during COVID-19, and some might continue to do so in the future.2 Some courts already allowed e-filings, which encouraged paperless practices, but for immigration courts, e-filing was used sparsely and inconsistently, which kept immigration firms still using paper filings. The digital accessibility agencies offer will continue to dictate how efficiently firms will be able to provide services to clients. Artificial Intelligence Law is among the slowest industries to adopt new technology, and likely it is related to the governmental agencies’ adoption of technology. Artificial Intelligence (AI) is being used in almost every new online tool, and you can expect to see a lot more in the future. Whether reviewing contracts, anticipating the next question from a prospective client on a chatbot, or helping draft a brief, AI is already here and firms must embrace and leverage this resource. Non-Lawyer Ownership Amidst advancements in technology and societal shifts, it is hard to ignore that the legal market’s climate is changing on another front. The debate over the legal industry becoming available to non-lawyers has long been a point of contention. Recent court rulings in Utah and Arizona have us rethinking this standard, partly in response to calls for criminal justice reforms, innova-
tion, and increased access to justice concerns. When other states and countries take notice of the results, they could ultimately follow and create a whole new era of law firm ownership and the practice of law.3 As leaders in the transformative legal industry, we must remain agile to adapt and thrive in the new environment. Ruby L. Powers is the founder of Powers Law Group, P.C., a full-service immigration law firm, and she is Board Certified in Immigration and Nationality Law. She authored American Immigration Lawyers Association’s “Build and Manage Your Successful Immigration Law Practice (Without Losing Your Mind).” She is a law practice management consultant and coach with Powers Strategy Group (www.rubypowers.com). She is a former candidate for public office, an advocate, and a regular author and media contributor on law practice management and immigration topics. Stay connected at https://www.linkedin.com/in/ rubypowers.
Endnotes
1. See ABA, About ABA Techshow, https://www.techshow.com/ (last visited May 17, 2021). 2. See A Transformative Year: Reflections from the Judiciary on page 18 of this issue of The Houston Lawyer for more information about how the events of this year have impacted courts. 3. For more information on non-lawyer ownership of firms, see Ruby L. Powers, New Laws Allowing Non-Lawyer Ownership of Law Firms, HOUS. LAW. (Mar/Apr. 2021).
The Post Pandemic Residential Foreclosure Landscape By Dominique Marshall Varner
I
n March 2020, residential foreclosures were at historically low levels. The economy was booming. The Federal Reserve was keeping interest rates perpetually low—a response to the 2008 Great Recession. Property values continued year-overyear recovery after the devastation caused by the 2007 housing market crash. While Texas, and the Houston area in particular, fared much better than the rest of the country during those years, 2008 to 2010 was an inordinately busy time for firms that specialize in the practice area of “default servicing,” i.e., foreclosures, evictions, and creditor representation in bankruptcy court. The ensuing years were calmer, as the lessons learned from the housing crisis resulted in tighter underwriter standards and better-quality mortgages. Struggling borrowers, having more equity in their homes, became more proactive by engaging with their lenders in programs to avoid foreclosure, known in the industry as “loss mitigation.” Foreclosures certainly didn’t go away, but by early 2020, the number of foreclosure postings each month had
significantly declined. Then came COVID-19. In a matter of weeks, the booming economy was forcibly stalled. Job losses were rampant, and by January 2021, almost three million borrowers in the U.S. (about 6% of mortgages) were in default and 2.3 million had entered a forbearance program with their lenders. The CARES Act,1 passed on March 27, 2020, provided for a six-month grace period—free of negative reporting and late fees—to virtually anyone who asked, followed by another six months upon request. While the CARES Act grace period technically only applied to borrowers with “federally backed mortgage loans,” private lenders offered them as well. Those forbearance periods were later extended to June 30, 2021,2 giving some borrowers the potential to avoid payment on their mortgage loans for up to twenty-one months from the start of the crisis, with the liability for the debt remaining intact. There is currently another proposal under consideration to prothehoustonlawyer.com
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hibit servicers from initiating foreclosures until December 31, 2021.3 While these directives have come to the rescue of millions of borrowers, the moratoriums will eventually end, resulting in the resumption of foreclosure activity on residential loans, many of which were in foreclosure before COVID-19. So, what can we expect this time around? The avalanche feared by many government policy makers may not materialize. There are significant differences between 2008 and 2021. For one, mortgage loan servicers learned how to better process requests for help from borrowers. During the earlier crisis, they improved upon various tools for helping borrowers stay in their homes by, for example, streamlining the processing of loan modifications (where payments are reduced and/or the loan terms extended), or by allowing borrowers a less painful exit from their homes with short sales (the servicer accepts a payoff that is less than the debt owed), or by accepting a deed in lieu of foreclosure (the borrower conveys the property back in full or partial satisfaction of the debt). With foreclosures being on hold since March 18, 2020, mortgage servicers have had plenty of time to fine-tune these loss mitigation options and will be much better prepared when the moratoriums end. Servicers are also subject to strict scrutiny under the Consumer Financial Protection Bureau (“CFPB”), a consumer protection watchdog, largely dormant during the Trump Administration, that has come roaring back to life. On March 31, 2021, the CFPB issued a bulletin that essentially warned mortgage servicers that they will be held accountable if they are unprepared for the wave of requests from borrowers for loss mitigation assistance once the forbearance periods are over.4 Additionally, the pandemic has resulted in a severe housing shortage, which means property values are at an all-time high. Selling a property to avoid foreclosure (and retaining the equity in the process) is an option that was not available to many strug-
gling borrowers during the Great Recession. Finally, the American Rescue Plan Act of 20215 has provided an unprecedented infusion of cash into the economy, much of it specifically directed towards various programs to assist homeowners in avoiding default. While foreclosure attorneys cannot see the post-pandemic landscape with a set of clear binoculars just yet, we are optimistic that this time around, the tidal wave of anticipated foreclosures may turn out to be more of a steady trickle. Dominique Marshall Varner is a partner at Hughes Watters Askanase, LLP, where she co-manages the Default Servicing section of the firm. She is the current president of the Houston Bar Association Auxiliary and co-chair of the Houston Bar Association Hay Center Committee.
Endnotes
1. Coronavirus Aid, Relief and Economic Security Act, Pub. L. 116-136, 134 Stat. 281 (Mar. 27, 2020). 2. U.S. DEP’T OF HOUS. & URBAN DEV., SUBJECT EXTENSIONS OF SINGLE FAMILY FORECLOSURE AND EVICTION MORATORIUM, START DATE OF COVID-19 INITIAL FORBEARANCE, AND HECM EXTENSION PERIOD; EXPANSION OF COVID-19 LOSS MITIGATION OPTIONS, 2021 WL 1132344, at *2 (Feb. 16, 2021); see also WHITE HOUSE, FACT SHEET: BIDEN ADMINISTRATION ANNOUNCES EXTENSION OF COVID-19 FORBEARANCE AND FORECLOSURE PROTECTIONS FOR HOMEOWNERS (Feb. 16, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/ 2021/02/16/fact-sheet-biden-administration-announces-extension-of-covid19-forbearance-and-foreclosure-protections-for-homeowners/. 3. Protections for Borrowers Affected by the COVID-19 Emergency Under the Real Estate Settlement Procedures Act (RESPA), Regulation X, 86 Fed. Reg. 18840 (proposed Apr. 9, 2021) (to be codified at 12 C.F.R. 1024). 4. BUREAU OF CONSUMER FIN. PROTS., BULLETIN 2021-02: SUPERVISION AND ENFORCEMENT PRIORITIES REGARDING HOUSING INSECURITY (Mar. 31, 2021) (Bulletin from David Uejio, Acting Directo)r, https://files. consumerfinance.gov/f/documents/cfpb_bulletin-2021-02_supervision-andenforcement-priorities-regarding-housing_WHcae8E.pdf. 5. American Rescue Plan Act of 2021, H.R. 1319, 117th Cong. (2021) (enacted).
COVID’s Impact on Houston Commercial Real Estate
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By Cassandra McGarvey
ommercial real estate has not normalized after the pandemic—either in transactions or in litigation. While I do not characterize the future of commercial real estate as bleak, I would say that the market reflects the uncertainty that many business owners are feeling. This uncertainty is reflected in sales transactions, leases, and litigation. And the level of uncertainty varies based on the type of business and the location of the business. Transactions remain in flux, but seasoned investors are actively making deals. Low interest rates are encouraging investors whose
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primary concern is the cost of borrowed money to make purchases. More cautious investors are opting to wait for the ideal market conditions and until they believe prices are at their lowest. These cautious investors are waiting for the recession and are prepared to spend when others are not. Even with market uncertainty, increased residential development is supporting the development of shopping centers providing essential services. These shopping centers are particularly attractive to commercial investors when they are anchored with grocery stores, pharmacies, and other stores providing essentials. These centers will be successful be-
cause they are providing services to support the new neighborhoods. About commercial leasing, many news outlets continue to report that vacancy rates overall are on the rise. Yet, perhaps anecdotally, we are seeing a distinction in vacancy rates in Class A business center locations versus Class B (or lower) suburban locations. Landlords of Class A buildings with large spaces to lease are experiencing higher vacancy rates, while class B buildings, especially those in suburban markets with smaller lease spaces, are filling their vacancies. These buildings appeal to businesses looking to increase their geographic presence to customers and provide additional and flexible workspaces for their employees. The availability of a small office with a short-term lease allows a business to establish an address in a new location and bring employees out of their homes. Lease negotiations will continue to include a more detailed review of relevant terms, specifically, force majeure, early termination, and expansion/contraction clauses are areas of focus. With government ordered shut-downs of many industries (such as gyms and restaurants), force majeure clauses in leases have been reworked and revisited. No longer are businesses quickly skim-
ming this provision of the lease; it is now being negotiated. Additionally, tenants are looking for options to easily increase or decrease their leased space. These types of clauses, allowing a landlord to easily demise spaces, are workable for landlords who are leasing to smaller tenants. In terms of litigation, we are anticipating additional foreclosures and breach of contract cases. Personally, I have seen increased cases involving allegations of fraud and failure to disclose in the underlying transaction. These are cases wherein there are allegations of forged or fraudulent deeds and fraud in the due diligence documentations or other misrepresentations. Overall, the commercial real estate climate continues to be challenging. While we cannot predict the future, we can continue to practice due diligence in protecting our clients’ interests. We can encourage our clients to be flexible, when needed, and in making the appropriate business decisions in the uncertain market. Cassandra McGarvey is the founder and principal of McGarvey PLLC. She has over fourteen years of experience representing clients in complex title, real estate, and probate litigation matters and real estate transactions.
Texas Insurance Law in 2021 and Beyond
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By Stephen P. Pate and Karl A. Schulz he practice of insurance law in Texas has been touched in many ways by the challenging events of the last year. Looking forward, it is clear that some trends are still playing out, but some changes are likely here to stay.
in a sloppy, biased, outcome-oriented investigation in violation of the Texas Insurance Code. The insurer will typically argue that the joinder of the adjuster is simply a tactic to defeat diversity and keep the case in state court, which may be perceived as more plaintiff-friendly. This debate is not new, but it is taking place in the The larger new setting of the pandemic. COVID-19 Pandemic Numerous insureds have filed claims and lawsuits The larger trend that is new is the outcome of trend that is new seeking coverage for lost business income under their the coverage disputes. The trend is in favor of inis the outcome surers. The requirement of “direct physical loss of commercial property insurance policies. For example, a movie theater may have shut its doors during of the coverage or damage to” property presents a threshold probthe lockdown and wants to replace income from lost lem for insureds. Courts are recognizing that indisputes. The sureds are not pleading such “direct physical loss sales of tickets and concessions. Typically, such policies insure against “direct physical loss of or damage trend is in favor or damage to” property and that COVID-19 does to” property. Also typically, such policies contain an not cause such loss or damage to property.1 Also, of insurers.” exclusion that precludes coverage for losses due to a virus exclusions are knocking out some claims, virus. but often courts do not even reach the exclusions There is a growing body of case law arising out of these disbecause the insured has not satisfied the threshold burden of putes. One aspect of the case law concerns instances in which bringing the claim within coverage.2 the insured filed suit against its insurer and an in-state adjustContinued on page 49 er. The insured will typically argue that the adjuster engaged
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In commemoration of Law Day, May 1, the Houston Bar Association each year holds poster, photography and essay contests in local elementary, middle and high schools. Some of the poster and photo winners are feature on the cover of this issue. With a national theme of “Advancing the Rule of Law Now,” the high school essay contest had 120 entries from nine schools in five school districts, as well as a private school. The first place essay by senior Eric Lee is presented here.
First Place:
Houston Bar Association Law Day Essay Contest
The American Law System: Improved but Not Perfect By Eric Lee
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Michael E. DeBakey High School for Health Professions
ince the formation of the United States there have been laws that keep individuals in check; however, over the 245 years of existence, the United States judiciary system and the laws it enforces have adapted to the changing times. Many of the laws created in the 1900s are now considered unjust, like the Jim Crow Laws enforced in the southern states following Reconstruction. The Jim Crow Laws made racial segregation legal and resulted in African Americans being constricted to the bottom of society. Much like one hundred years ago, the rule of law is not yet perfect and still requires improvements to ensure the promotion of widespread economic, racial, and gender equality for the future. The first step to making the rule of law more fair is identifying discrepancies in laws which target a certain group. By identifying these discrepancies, lawmakers will have a starting point at which they can focus their efforts. Although it may seem like there are not many laws which fit this description, there are still many laws which remain outdated and favor certain groups. An example of this are the current bail laws. These laws allow only the individuals who can afford extraordinary bail costs to leave prison before their trial while rendering the less wealthy incarcerated, regardless of their crime. This favors the rich as they will be more likely able to pay their way home, while leaving the less wealthy individuals incarcerated. In addition, these less-wealthy individuals are more likely to lose their house or car due to prolonged jail
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times in comparison to wealthier individuals. Because of this, the lower classes of society experience two losses: the mental strain from having to stay in jail, as well as the loss of their belongings. This law/policy is evidently unjust and must be changed, so why have we as a society not yet done so? This stems from the background of many of the lawmakers of our country. They are, generally speaking, highly educated, wealthy individuals from successful and affluent families. Because of this, many of them have never experienced some of these hardships or the inequalities that the laws present, and thus, see no issue with the creation of these laws. With this being said, the next step to making laws more universally favorable is electing a more diverse range of lawmakers in terms of race, economic background, and gender. As these individuals will provide diverse outlooks and ideas, the laws or adjustments that ensue will ultimately promote a greater equality, encompassing more ethnic and social groups. This all arises from the fact that these individuals will be from different backgrounds and hold different experiences that they can contribute. Although there is no perfect formula to creating a utopian society, by identifying the laws which demonstrate injustices towards a specific group as well as electing a more diverse set of lawmakers, we will pave the way for a brighter future where equality and justice will be provided for all.
Equal Access Champions The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers. Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Akin Gump Strauss Hauer & Feld LLP Baker Botts L.L.P. BakerHostetler LLP Beck Redden LLP Blank Rome LLP Bracewell LLP Burford Perry, LLP CenterPoint Energy, Inc. Chamberlain Hrdlicka Chevron USA Dentons US LLP The Ericksen Law Firm Eversheds Sutherland US LLP Exxon Mobil Corporation Foley & Lardner LLP Fleurinord Law PLLC Frye and Benavidez, PLLC Fuqua & Associates, P.C. Gibbs & Bruns LLP Gibson, Dunn & Crutcher LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Halliburton Energy Hasley Scarano, L.L.P. Haynes and Boone, L.L.P. David Hsu and Associates Hunton Andrews Kurth LLP Jackson Walker L.L.P. Jenkins & Kamin, L.L.P. The Jurek Law Group, PLLC Katine & Nechman L.L.P. Kean Miller LLP Law Firm of Min Gyu Kim PLLC
King & Spalding LLP Kirkland & Ellis LLP KoonsFuller, P.C. The LaFitte Law Group, PLLC Locke Lord LLP LyondellBasell Industries Martin R.G. Marasigan Law Offices Marathon Oil Company McDowell & Hetherington LLP McGarvey PLLC Morgan, Lewis & Bockius LLP Norton Rose Fulbright US LLP Ogletree, Deakins, Nash, Smoak & Stewart P.C. Rita Pattni, Attorney at Law Porter Hedges LLP Law Office of Robert E. Price Rapp & Krock, PC Reed Smith LLP Royston, Rayzor, Vickery & Williams, LLP Sanchez Law Firm Shell Oil Company Shortt & Nguyen, P.C. Sidley Austin LLP Angela Solice, Attorney at Law Squire Patton Boggs Diane C. Treich, Attorney at Law Law Office of Norma Levine Trusch Vinson & Elkins LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Law Office of Cindi L. Wiggins, J.D. Wilson, Cribbs, & Goren, P.C. Winstead PC Winston & Strawn LLP Yetter Coleman LLP thehoustonlawyer.com
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HBA Milestones The Houston Lawyer:
A Voice for the HBA
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By Tara Shockley
n November 6, 1963, The Houston Lawyer debuted at the HBA’s annual Harvest Party at River Oaks Country Club. A small, digest-size publication with an unimposing mustard yellow cover, that first issue was the beginning of almost 60 years of chronicling legal and cultural developments at the Houston Bar Association, the City of Houston, the State of Texas, and the nation. Attorney Quinnan Hodges was the first editor and attorney Harold Lloyd the first business manager of The Houston Lawyer. In his editor’s column, Hodges described it as a monthly publication that would “keep pace with the growth of the Houston Bar Association and with our growing community.” The Houston Lawyer has grown into one of the premier legal publications in the state. It has won numerous awards from the State Bar of Texas and garnered a Lone Star Press Award for a special issue on the legal problems faced by veterans. The HBA takes pride in supporting a publication that is for Houston lawyers, written by Houston lawyers, with articles that are well-written, practical, and sometimes provocative. In November 1980, I joined the HBA staff as Publications Director, and I have had the privilege of serving as managing editor of The Houston Lawyer for over 40 years. The Houston Lawyer now has a large, well-organized, incredibly productive editorial board, led this year by a brilliant editor in chief, Anna Archer, and a team of talented, dedicated associate editors. Working with the HBA president each year, The Houston Lawyer editorial board develops each issue with creative, practical articles that educate readers on 38 May/June 2021
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cutting-edge legal topics, inspire thought, and highlight the legal and community accomplishments of members. Here is a brief look at The Houston Lawyer through the decades.1 1960s — Throughout the mid ‘60s, social issues were at the forefront of Houston’s legal community, as they were in the nation. Many pages of The Houston Lawyer were devoted to articles on the establishment of the Houston Legal Foundation, the forerunner of Lone Star Legal Aid and the future inspiration for the HBA’s Houston Volunteer Lawyers. When the Foundation accepted a limited role in a desegregation suit against a Houston school district, the HBA was criticized by the public and in the press. The Houston Lawyer countered by publishing a full account of the Legal Foundation’s role. In 1969, HBA President Leroy Jeffers in his President’s Message called for “a return to reason, rationality and the rule of law” among lawyers as an antidote to “the moral and intellectual sickness that seeks to equate crime in the streets and crime on the campus.” 1970s — In May 1971, the Houston Bar Association celebrated its Centennial, and a special issue of The Houston Lawyer examined the association’s history and the grand Centennial Banquet held at the Astroworld Hotel to mark the event. The early and mid ‘70s saw the public’s perception of lawyers strike bottom as the Watergate scandal unfolded and lawyer after lawyer was called to testify before the Ervin Committee. The Houston Lawyer reported on efforts by the HBA, the State Bar of Texas, and the American Bar Association to investigate illegal and unprofessional conduct among lawyers and to impose higher ethical standards on members. In 1977, the pressures of monthly deadlines and increasing costs led to the announcement of a new bimonthly publication schedule. However, that schedule also proved unmanageable, and the magazine became a quarterly publication for several years. Under the editorship of Judge Mary Bacon in 1978, The Houston Lawyer underwent a dramatic graphic change, going
from the 6-inch by 9-inch digest format to the current 8 1/2 by 11-inch magazine format. 1980s — The Houston Lawyer moved into the ‘80s with a dramatic refocus on substantive legal articles. Legislative updates, book reviews, opinion pieces, and original cover art were among significant changes to the publication. In 1985, The Houston Lawyer made a successful transition to a bimonthly publication schedule. No longer strapped for good articles, the publication’s editorial board could effectively solicit and selectively choose articles from among the finest legal writers in Houston and the state. In November 1988, The Houston Lawyer celebrated its 25th anniversary with a luncheon at the Inns of Court Club. Inaugural editor Quinnan Hodges posed for the cover seated at a grand piano, surrounded by many of the editors from the ensuing years, holding balloons and a birthday cake. 1990s — Although the HBA began the expansion of its community service programs in the late ‘80s, the ‘90s were a time of increased emphasis on continuing legal education, public education, and community service projects. The Houston Lawyer followed this direction with more articles about HBA members’ involvement in the community and the association, while continuing to publish practical, substantive legal articles. The ‘90s were years of self-reflection, and many lawyers began questioning whether their increasing workloads were leaving time for other important aspects of their lives. The Houston Lawyer often focused on “quality of life” issues, such as balancing work and family, career satisfaction, and the importance of volunteering in the community. In the early 1990s, The Houston Lawyer expanded its editorial board to serve a growing publication and created associate editor positions to support the editor in chief. In 1995, the HBA celebrated its 125th anniversary. A special issue of The Houston Lawyer featured articles on legal history, including a historical perspective on the role of women and minorities in the Houston Bar Association. The issue ushered in a renewed interest in articles that examined the association’s rich legal history. Judge Mark Davidson began a series of articles on the history of the Harris County courts, followed by a series on Harris County’s more memorable judicial elections. Robert L. Dabney wrote many articles about Texas legal history and some of the colorful characters in the state’s legal past. Through the late ‘90s, the magazine continued to provide in-depth legal articles, while at the same time spotlighting individual members with the initiation of columns like “Off the Record,” which emphasizes interests, lifestyles, second careers, and other non-legal talents of HBA members. 2000s-2020s — As The Houston Lawyer moved into the new millennium, it continued to evolve to represent a major metropoli-
tan association that has grown from only 3,000 members in 1963 to over 10,000 members. With the September-October 2000 issue, The Houston Lawyer entered a partnership with Quantum/ SUR, the current publisher of the magazine. Quantum is responsible for advertising sales, provides the publication’s outstanding four-color graphic design, and coordinates printing services. All editorial content continues to be the responsibility of The Houston Lawyer editorial board, a diverse group of nearly thirty attorneys representing a wide variety of practice areas and affiliations. The magazine remains true to its mission of keeping members informed about HBA activities and members and providing articles that educate and interest Houston attorneys, primarily written by Houston attorneys. It has expanded its regular columns to focus on the important work of HBA committees and sections and provide updates on the latest court decisions, legislation, and professional trends. While continuing a primary focus on substantive legal articles, The Houston Lawyer includes articles on social and professional issues, encouraging varied viewpoints and discussion. In addition to print copies still mailed to members, The Houston Lawyer and back issues from 2003 forward are now available online in digital format through a partnership with the publisher. In August 2020, the HBA started “Behind the Lines: The Houston Lawyer Podcast.” Hosted by editorial board member Brooksie Boutet, the podcast episodes complement each issue of The Houston Lawyer by expanding topics or covering aspects of the issue’s theme that were not included in the publication. During the past year, The Houston Lawyer has been part of the HBA’s celebration of 150 years of service, including a special issue that highlighted judges who made history, historical public servants, and legendary lawyers. A column developed just for the anniversary year—“HBA Milestones”—highlighted important programs in the association’s history. The COVID-19 pandemic affected almost every aspect of HBA members’ lives and practices, so The Houston Lawyer included articles that helped practitioners navigate the changes and challenges of an unprecedented year. In 2023, The Houston Lawyer will celebrate 60 years of chronicling the association and the legal profession. As it has throughout the decades, with support from the HBA Board of Directors and a dedicated editorial board, The Houston Lawyer will continue to be a voice for the HBA by educating, informing, and celebrating the association and its members. Tara Shockley is the associate executive director of the Houston Bar Association and serves as managing editor of The Houston Lawyer. Endnotes
1. Much of the history contained in this article is drawn from a previous article written to highlight the 40th anniversary of the publication. See Tara Shockley, The Houston Lawyer at 40: Magazine Chronicles Legal Issues for Four Decades, HOUS. LAW., Vol. 41 No. 3 (Nov.Dec. 2003).
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SECTION spotlight
Probate, Trusts & Estates Section:
A
A Year Navigating the Pandemic
The Houston Lawyer
By Paul D. Strug
s it has for all the sections of the Houston Bar Association, security protection and remediation for businesses, including law firms, this past year has presented unique challenges for the Prothat have been victims of such an attack. John shared recent high-profile bate, Trusts & Estates Section. For many years, the Section ransomware attacks and phishing attacks, as well as some alarming stamembers have gathered on the last Tuesday of each month, tistics and trends. He also offered some practice tips for Section members September through May, for some to consider in order to prevent a cyber-attack continuing education, followed by an opporand to mitigate damages and loss of data if tunity to network and visit with fellow memsuch an attack does occur. bers of the Section. Throughout my tenure as The four Harris County Probate Court Chair, we have not been able to continue with judges, and their wonderful staff, have any in-person gatherings; as such, our suite worked diligently to allow the probate process of programming has moved entirely online. to continue as efficiently as can be permitted While the pandemic has affected every during the pandemic. As such, hearings via member of the HBA, it did have some unique Zoom have become a regular occurrence— considerations for members of the Probate, in fact, many practitioners have commented Trusts & Estates Section. For those members that their clients prefer a Zoom probate hearwhose practice is focused on estate planning, ing instead of navigating downtown Housthe inability to meet clients in person has ton, parking, and the courthouse. In June, Probate Judge Jason Cox tweets about the Jeopardy game made executing documents far more difficult. that Harris County Probate Judges participated in as part of the Harris County Probate Court judges parThis was coupled with the fact that many in- the HBA Probate, Trusts & Estates Section’s April program. ticipated in a panel discussion hosted by the dividuals sought to get their wills and ancillary planning documents finalHouston Bar Association to inform local attorneys about practicing before ized and executed, as they began to understand the severity and spread their Courts during the then-current shutdown. Additionally, the Probate, of Covid-19. Fortunately, Governor Abbot relaxed some of the rules that Trusts and Estates Section hosted its annual judges panel on April 27 to require the physical presence for a notary on certain estate planning docuallow Section members to hear any further updates, and to gain some adments. This allowed for some greater flexibility for Section members to acditional practice insight from the Harris County Probate Court judges. commodate their client’s planning needs. With this backdrop, the Section The balance of the Section’s programming this year has been focused kicked off its programming year by hosting (on YouTube) Bill Pargaman, on various core components of estate planning and probate law, including a partner with the firm of Saunders, Norval, Pargaman & Atkins. Bill foDavid Johnson speaking about Trust Administration, Nolan Moullé offercused on the impact of the pandemic on the estate planning practice and ing insights on the SECURE Act, Keri Brown providing a current update some options for getting documents executed. Bill’s presentation was acfrom the Tax Court, and Professor Gerry Beyer entertaining the Section companied with A Guide to Executing Estate Planning Documents in Uncermembers with his case law update. tain Times, which has proven to be a valuable resource for Section members If you are interested in becoming a member of the Probate, Trusts and throughout the pandemic. Estates Section, or for more information about the programs planned for Another common theme of Section members during the pandemic was the balance of this year, please visit www.hba.org/PTE. how many of us were working remotely —from a home office, kitchen table, or anywhere else in the house with some privacy and a strong WiPaul D. Strug is chair of the Probate, Trusts and Estates Section of the Houston Fi connection. To provide guidance as more and more work was being Bar Association. He is a shareholder at Weycer, Kaplan, Pulaski & Zuber, P.C., handled in such a fashion, the Section asked John Ansbach to speak about and is board certified in estate planning and probate law by the Texas Board of cybersecurity concerns and considerations. John is an attorney currently Legal Specialization. Strug focuses his practice on estate planning, probate, and working with Stroz Friedberg, a division of AON, with a focus on cybertrust administration.
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A Profile
in pro f e s s i o n a l i s m
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Richard Heaton Chief Legal Officer, Hines
suppose it might be obvious for one to say that professionalism means doing and being those things that enhance the stature of the profession. Attributes like respect, courtesy, fairness, integrity, loyalty to principle, dedication and taking pride in excellence. These values are self-evident to most attorneys, but we sometimes compromise in these areas, perhaps thinking that it will result in short term gains. However, consistent striving to live these ideals will result in the greatest benefit and personal satisfaction over the long run. As I think about professionalism, I ask myself: “Do others want to be a better professional because of their interactions with me?” While exhibiting professionalism can lead to success in legal practice, some of the most satisfying experiences for me as a professional have been the ability to help others —often just one person. Securing a visa for a victim of human trafficking, providing family budget counseling, mentoring another lawyer… What an opportunity for good our profession has by using skills honed and developed in the practice of law! Interestingly, many of the attributes we use to describe professionalism are expressed in relation to others—such as courtesy, respect and fairness. Beyond negotiating a contract successfully or securing a courtroom victory, we who practice the legal profession can use the privileges and opportunities we’ve received to lift others. Working at Hines for the last eight years, I have seen professionalism in action. Our late founder Gerald D. Hines instilled in the firm the values of striving for the best, quality in all we do, integrity and always doing the right thing. By working in this way, Hines has made communities like Houston better places to work and live. It is important to us that we leave them better than when we started. By seeking to use the skills, attributes and opportunities we have as professionals to help others, we leave the profession a better place; leave the community a better place; and leave the world a better place.
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OFF THE RECORD
A Guardian of Texas Heritage:
T
The Houston Lawyer
By Anuj A. Shah
C. Mark Murrah
here are very few people who know Texas history as well as C. Mark Murrah1, and almost certainly even fewer with the unique historical documents reflecting the State’s history that Mark has collected. Focusing on Texas’ Republic Period (1836 – 1845), Mark has diligently accumulated over the years a whole host of legal and economic documents from this period in our State’s storied history. The major inspiration for Mark’s avocation is his family lineage: Mark’s ancestors have been in Texas since the 1830s, and he is a descendant of Texas Governor Pendleton Murrah, who governed during the Civil War. This ancestry inspired Mark not only to major in History (and Political Science) at Rice, but also to spend his leisure time studying this state’s past and, for the last decade, collect key documents reflecting the state’s legal and ecoC. Mark Murrah’s unique collection of nomic development. historical documents focuses on the As a real-estate attorney, Republic of Texas, 1836-1845. Mark is especially fascinated by legal documents such as land grants, some of which go back to the Kingdom of Spain. In his own collection, Mark has a land grant signed by the last President of the Republic of Texas, Anson Jones. Mark collects many of his items online. “You’d be surprised what’s on eBay,” he laughs. Examples of other items in Mark’s collection are deeds, probate documents, and trade documents, all reflecting the evolution of Texas’ legal, trade and economic landscape. In fact, a docket of the Robertson County District Court from 1838 to the early 1840s (what Mark considers to be “one of [his] better collected items from an academic standpoint”) showcases the plethora of legal matters people were litigating even in those days. One of Mark’s favorite items is a legal bill from 1840 that lists mileage on a horse. Reflecting on these types of documents, he cites Mark Twain’s observation that “History never repeats itself, but it does often rhyme.” He continues, “These documents show that people still had the same concerns back then: they needed their coffee, they worried about their economic welfare, they ran their businesses,” concluding, “Frankly, we’re just not as advanced and interesting as we think we are.”
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Reflecting further on the importance of such documents, Mark notes that “more than anything else historically, except for maybe some things of archaeology, these documents are the window into what was happening in people’s lives. The immediacy of being able to view that world, the immediacy of the past where you can just step right in, is remarkable. Artefacts are great, but don’t provide the same access.” Mark is a trove of fascinating historical tidbits. For instance, the Republic of Texas had numerous consular posts around the United States as well as in Europe. In Paris, the consular post was at 1 Place Vendome, a highly desirable area where the modern-day wealthy live and shop. And in the “whodathunk it” category, it turns out that UK pop star Phil Collins is a “huge Alamo collector,” and he just donated his collection of Alamo historical items to Texas a couple of years ago. As Mark’s collection grows, he is increasingly inclined to showcase his documents in a formal gallery or museum setting. In fact, this summer, Mark is lending a trading post bill and bills of lading for the Port of Velasco to a museum exhibit in Freeport, Texas. Mark remains as passionate as ever about his hobby and will continue to collect choice items for years to come. Aspirationally, he still hopes to get his hands on a document with Sam Houston’s signature, and one day, he would love to possess one of the few remaining original copies of the Texas Declaration of Independence. Ultimately, when the time presents itself, Mark will likely donate his collection to a museum. “It’s important that these documents survive. They’re part of our cultural patrimony as a society.” Anuj A. Shah is the Managing Partner of Anuj A. Shah, P.C., and is Board Certified in Immigration & Nationality Law by the Texas Board of Legal Specialization. He is a member of The Houston Lawyer editorial board. Endnotes
1. C. Mark Murrah is a business transaction attorney with a focus on real estate, construction, and finance. In his spare time, when he’s not collecting Texas historical documents, he is doting on his teenage son.
Committee spotlight
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Teaching Texas, One Student at a Time
By Kimberly A. Chojnacki
ince its inception in 2015, the Teach Texas program Richard Whiteley, also co-chair of the committee, expandhas reached over 21,000 seventh grade students in ed on the value of the program to our State’s seventh gradTexas, teaching ers: “The students can ask them about how questions, and that’s the fun the state’s court part. They ask excellent, insystem fits into the larger picteresting questions. Many of ture of Texas history. Those the students, the experience students have spanned eight they’ve had with the legal school districts and five prisystem or lawyers, for a lot vate schools over the last five of them, the experience may years. And in the 2015–2016 have been negative.” The bar year alone, over 220 atTeach Texas program looks torneys and judges volunto change that perception. teered to participate in the While the program was program. suspended for the 2019The Teach Texas project 2020 academic year, signs was developed by the Texas of life are returning as the Supreme Court Historical COVID-19 pandemic beSociety and is based on the gins to ebb or otherwise book series Taming Texas. become more manageable. The Teach Texas Committee A student at Hamilton Middle School participates in a virtual session of Teach The Teach Texas Commitrecruits judges and attorneys Texas, led by Justice Charles Spain and Akilah Mance tee used the downtime to to teach the curriculum to seventh graders in the Houston area. further polish the lesson materials and brainstorm expansion The basis of the curriculum is the Taming Texas series, a of the program to other parts of the State. As schools begin to three-volume set written specifically for seventh-grade Texas welcome outside programs back to campuses, the Teach Texas history classes. The first volume—How Law and Order Came Committee is staying flexible, offering in-person and virtual to the Lone Star State—helps students orient themselves in an programming for the classrooms. The committee was able to early Texas, devoid of law or order, and develop an understandreach over 300 students this school year, a remarkable accoming of how society began to move toward our current legal sysplishment given the circumstances. tem. The second book—Law and the Texas Frontier—focuses The Teach Texas program relies on its dedicated volunon the interplay of Texas’ unique frontier history and changing teers—attorneys and judges—for its continued success. If laws from 1598 through 1900. The third part of the series— you’re interested in learning more about the Teach Texas ComThe Chief Justices of Texas—introduces our seventh graders to mittee or volunteering in the classroom, please visit hba.org/ the chief justices of the Texas Supreme Court over the years. teachtexas. To learn more about the Taming Texas series, please The heart of the Teach Texas program, however, are the volvisit www.tamingtexas.org. unteers and the students. As co-chair of the Teach Texas Committee—the Honorable Jennifer Elrod—put it, the program Kimberly A. Chojnacki is an associate editor of The Houston “would not work without the volunteers of the HBA, lawyers Lawyer. She also is a litigation associate at Baker Donelson in and judges who go into the schools. It’s very rewarding expeHouston. She represents corporate clients in eminent domain rience and easy to do. I encourage everyone to volunteer, dip proceedings, complex commercial litigation, and insurance their toe in the water.” defense disputes. thehoustonlawyer.com
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LEGAL TRENDS
The Swales Decision and Its Aftermath
O
The Houston Lawyer
By Don Foty
n January 12, 2021, the Fifth Circuit issued the decision of Swales v. KLLM Transport Servs., LLC.1 In Swales, the Fifth Circuit expressly rejected the Lusardi two-stage method for class certification under the Fair Labor Standards Act, which had been the general standard for certification across the country for approximately 30 years.2 Under Lusardi, a class notice is sent to potential members of the action informing them of the nature of the case.3 After discovery, the court makes a final determination as to whether those individuals who had joined the case are “similarly situated.”5 Unlike a Rule 23 class action, the claims of the potential class members under the Fair Labor Standards Act (“FLSA”) are not tolled until each member affirmatively joins the case.5 The Lusardi method was viewed as striking the necessary balance between preserving the statutes of limitations of the potential class members while allowing both sides sufficient discovery to identify whether the class members are similarly situated. Now, the Fifth Circuit stands as an island among the other circuits in having expressly rejected the Lusardi method. However, what was truly unique about the Swales decision was not the rejection of the Lusardi method, but the fact that the court did not expressly adopt any test for certification. The Fifth Circuit made clear that district courts are no longer “captive to Lusardi or any ‘certification’ test.”6 That means that the standards under Lusardi, Rule 23, or any other test for class certification do not apply to collective actions under the FLSA.7 While the Fifth Circuit did not expressly adopt a new test, it did provide some guidance to the district courts as to how 44 May/June 2021
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to decide whether to authorize a collective action. 1. District courts are to evaluate potential collective actions on a “case by case basis.” First, the Fifth Circuit acknowledged that claims under the FLSA can be quite varied.8 Some FLSA claims can be resolved with little discovery while others are more fact intensive.9 Therefore, each potential collective action should be evaluated on a “case by case basis.”10 2. Class discovery can be permitted “as early as possible.” Second, after evaluating the nature of the FLSA claims raised by the plaintiff, district courts can authorize class discovery if needed.11 Following Swales, district courts have permitted broad discovery into the existence and identities of potential class members to allow an informed decision to be made.12 This is consistent with the Supreme Court’s guidance in HoffmanLaRoche.13 Other district courts have granted certification under the FLSA without any discovery following Swales.14 3. The test for deciding whether to grant a collective action is “whether merits questions can be answered collectively.” Third, the ultimate issue for the court in deciding whether to authorize a collective action is “whether merits questions can be answered collectively.”15 In other words, when the facts and legal issues relevant to proving the named plaintiff’s claims are the same facts and legal issues relevant to proving the class members’ claims, certification should likely be granted.16 The Fifth Circuit gave an example stating a collective action should likely be authorized when “the plaintiffs all have the same job description, and the allegations revolve around the same aspect of that job.”17
4. District courts have broad discretion in authorizing collective actions. Fourth, certification of a collective action is no longer a “yes” or “no” proposition. Now, district courts have broad discretion and can (1) authorize a collective action as requested, (2) determine that a smaller group or subset of the workers are similarly situated, (3) allow further discovery, or (4) decide the case cannot proceed collectively.18 When Swales was first issued, it was prematurely labeled by some practitioners as a pro-employer decision. Now that the dust has settled, it appears to be the opposite. Following Swales, the overwhelming majority of district courts in the Fifth Circuit have authorized collective actions.19 Also, under the Lusardi test, the employer has an automatic right to move for decertification following the close of discovery. Under Swales, that step appears to have been eliminated. While the full impact of the Swales decision remains to be seen, it is fair to say that collective actions in the Fifth Circuit are here to stay. Don Foty is a partner with the law firm of Hodges & Foty, LLP. He represents workers in wage and hour disputes across the country and has served as class counsel in nearly 100 class and/or collective actions. He is currently serving as class counsel on behalf of workers in cases pending in California, New Mexico, Ohio, and Texas. Endnotes
5. 985 F.3d 430 (5th Cir. 2021). 6. See id. at 439. 7. Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987); Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995). 8. Id. 9. See Fed. R. Civ. P. 23; Mooney, 54 F.3d at 1212. 10. Swales, 985 F.3d at 443. 11. See id. 12. Id. at 441-42. 13. Id. 14. Id. at 441. 15. Id. 16. See, e.g., Rogers v. 12291 CBW, LLC, No. 1:19-CV-00266MJT, 2021 WL 1156629, at *2 (E.D. Tex. Mar. 15, 2021). 17. Sperling v. Hoffman-La Roche, 110 S. Ct. 482, 486 (1989) (stating: “The District Court was correct to permit dis-
LEGAL TRENDS
covery of the names and addresses of the discharged employees…the discovery was relevant to the subject matter of the action.”) 18. See Young v. Energy Drilling Co., No. Civ. A. 4:20-cv1716, 2021 WL 1550343 (S.D. Tex. Apr. 20, 2021); T.S. v. The Burke Foundation, No Civ. A. 1:19-cv-809, 2021 WL 1807994 (W.D. Tex. Feb. 22, 2021). 19. Swales, 985 F.3d at 442. 20. See id. 21. Id. at 441-42. 22. See id. at 443. 23. See Young v. Energy Drilling Co., No. Civ. A. 4:20-cv1716, 2021 WL 1550343 (S.D. Tex. Apr. 20, 2021) (granting certification of a collective action following Swales); T.S. v. The Burke Foundation, No Civ. A. 1:19cv-809, 2021 WL 1807994 (W.D. Tex. Feb. 22, 2021) (same); Hernandez v. Pritchard Indus. (Southwest), LLC, No. Civ. A. 20-cv-0508, 2021 WL 1146005 (W.D. Tex. Mar. 25, 2021) (same); Badon v. Berry’s Reliable Resource, LLC, No. Civ. A. 19-cv-12317, 2021 WL 933033 (E.D. La. Mar. 11, 2021) (affirming certification of a collective action following Swales); but see Hebert v. Technipfmc USA, Inc., No. 4:20-CV-2059, 2021 WL 1137256, at *2, 5 (S.D. Tex. Feb. 5, 2021) (denying certification).
preme Court may hand down the final word. The uncertainty on these questions has grown from the Texas Business Organizations Code. While the Code does not expressly impose any duties on the members or managers of a limited liability company, it does make a related, cryptic statement: The company agreement of a limited liability company may expand or restrict any duties, including fiduciary duties, and related liabilities that a member, manager, officer, or other person has to the company or to a member or manager of the company. TEX. BUS. ORG. CODE § 101.401.
Straehla’s Presumed Duties
This language does not seem to beget “any duties” itself. That said, if a formational agreement may expand or contract the scope of fiduciary duties, does that assume they necessarily exist in the first place? Understandably, this question has caused pause—and, in a series of mostly unpublished decisions, Texas courts of appeals have made broad statements about it but decided little of substance, and, when pushed, either left the question to a jury or found other ways to decide the case.4 And so has this question, along with the scope of any underlying duties, remained unsettled. Straehla has provided long-awaited answers. To shorten a complicated tale, Straehla involved the aftermath of Hurricane Maria in Puerto Rico; alleged selfdealing by a member of a limited liability company hired to provide security for the repair of Puerto Rico’s electric utility system (self-dealing which arose, allegedly, from an affair that caused business to go to a competitor, owned partly by an affairee); a subsequent lawsuit by the company; a motion under the Texas Citizens’ Participation Act; its denial; and an interlocutory appeal.5 The allegedly self-dealing member argued, on appeal, that the district court erred in denying the TCPA motion because he did not owe fiduciary duties.
T
By Ryan Philip Pitts
he rule in Texas has long been that general partners and corporate officers and directors owe fiduciary duties to look after the interests of the legal entity that they represent.1 But what of limited liability companies in Texas? Do their managers and members owe similar duties of loyalty, care, and good faith? And should they? In what may come as a surprise, these questions have persisted without a firm answer from the Texas courts—leaving the managers and members of limited liability companies to wonder at their duties and the scope of them, and the federal courts to guess at them, too.2 In a recent decision, the Fourth Court of Appeals at long last addressed these questions head on in Straehla v. AL Global Services, LLC and fashioned a presumption that both members and managers of limited liability companies do owe fiduciary duties of care, loyalty, and good faith, to the company.3 While this presumption would align Texas law with that of jurisdictions such as Delaware, the Texas Su-
The Fourth Court disagreed. Relying on the “assumption” inherent in Section 101.401 of Texas Business Organizations Code and the “corporate-like” benefits of limited liability companies, it fashioned a presumption that the member “owed the same fiduciary duties that a corporate executive or partner would owe a corporation or partnership, unless the LLC agreement shows otherwise.”6 The Straehla rule is thus that the members (and managers) of limited liability companies do owe fiduciary duties, the same as partners and corporate officers, unless the company’s formational agreement says otherwise. The rule set out in Straehla aligns Texas law with that of jurisdictions like Delaware, which courts have looked to for guidance on questions of corporate law.7 Under law like Delaware’s, the managers and members of limited liability companies owe fiduciary duties to the company by default, but these duties may be modified or eliminated by language in the formational agreement.8 The Straehla presumption, working with Section 101.401 of the Texas Business Organizations Code, would bring Texas and Delaware law very close, with little space between. Yet Texas law could still shift in a different direction. The two appellants in Straehla have individually filed petitions for review of the Fourth Court’s decision with the Texas Supreme Court.9 Among other things, they argue the Fourth Court erred by presuming that members of a limited liability company owe fiduciary duties, because, in their view, such a presumption lacks a basis in the Texas Business Organizations Code.10 While it is unclear whether the Texas Supreme Court will grant review, if it did, members and managers of Texas limited liability companies may finally know for certain what duties they owe the company. Ryan Philip Pitts is an associate in the appellate practice group of Haynes and Boone LLP’s Houston office. thehoustonlawyer.com
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LEGAL TRENDS
The Houston Lawyer
Endnotes
1. See Bohatch v. Butler & Binon, 977 S.W.2d 543, 545 (Tex. 1998) (partners owe fiduciary duties); Somers ex rel. EGL, Inc. v. Crane, 295 S.W.3d 5, 12 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (corporate officers and directors owe fiduciary duties). 2. See Katz v. Intel Pharma, LLC, No. H-18-1347, 2020 WL 3871493, at *2 (S.D. Tex. July 9, 2020) (Rosenthal, J.) (“[T] he court has not found[] a case expressly stating that under Texas law, an LLC’s managing member owes the company fiduciary duties as a matter of law.”); Gill v. Grewal, No. 14CV-2502, 2020 WL 3171360, at *11 n.12 (S.D. Tex. June 15, 2020) (similar); Gadin v. Societe Captrade, No. 08-CV-3773, 2009 WL 1704049, at *3 (S.D. Tex. June 17, 2009) (similar). 3. 619 S.W.3d 795, (Tex. App.—San Antonio 2020, pet. filed). 4. See, e.g., Houle v. Casillas, 594 S.W.3d 524, 546 (Tex. App.—El Paso 2019, no pet.) (stating it is unclear “whether members of an LLC owe each other a fiduciary duty” but avoiding the question because “Houle does not appear to be arguing that Casillas owed him a duty as a fellow member of the LLC”); Cardwell v. Gurley, No. 05-09-01068CV, 2018 WL 3454800, at *5–6 (Tex. App.—Dallas July 18, 2018, pet. denied) (mem. op.) (noting that Section 101.401 of the Business Organizations Code “presume[s] the existence of fiduciary duties” but seemingly deciding the case, at least in part, on waiver grounds); Chahadeh v. Regions Bank, No. 01-15-00656-CV, 2017 WL 3261384, at *6 (Tex. App.—Houston [1st Dist.] July 31, 2017, no pet.) (mem. op.) (“No general duty exists between members of a limited liability corporation (“LLC”) but a manager of an LLC may owe a duty to the corporation and its members as defined in the agreement establishing the LLC.”); Vejara v. Levior Int’l, LLC, No. 04-11-00595-CV, 2012 WL 5354681, at *4 (Tex. App.—San Antonio Oct. 31, 2012, pet. denied) (mem. op.) (“Texas courts have recognized that in the same manner that business partners owe each other and their partnerships a fiduciary duty, the nature of the relationship between shareholders in a limited liability company sometimes gives rise to an informal fiduciary duty between the shareholders.”); Suntech Processing Sys., L.L.C. v. Sun Comm’cns, Inc., No. 05-99-00213-CV, 2000 WL 1780236, at *7 (Tex. App.—Dallas Dec. 5, 2000, no pet.) (mem. op.) (“[T]he existence of a fiduciary relationships between coshareholders is a fact question.”). 5. Straehla v. AL Global Servs., LLC, 619 S.W.3d 795 (Tex. App.—San Antonio, pet. filed). 6. Id. 7. See Hanmi Fin. Corp. v. SWNB Bancorp, Inc., No. 18-CV3546, 2019 WL 937195, at *7 (S.D. Tex. Feb. 26, 2019) (“Texas courts consider Delaware decisional law persuasive in resolving unsettled issues of Texas corporate law.” (quotation omitted)); In re Aguilar, 344 S.W.3d 41, 47 (Tex. App.—El Paso 2011, no pet.) (“Courts throughout the country look to Delaware for guidance on matters of corporate law” and Delaware “has been described as ‘the Mother Court of corporate law’”). 8. See Auriga Capital Corp. v. Gatz Props., 40 A.3d 839, 850– 51 (Del. Ch. 2012) (“[B]ecause LLC managers are clearly fiduciaries, and because fiduciaries owe the fiduciary duties of loyalty and care, the LLC Act starts with the default that managers of LLCs owe enforceable fiduciary duties.”); Feeley v. NHAOCG, LLC, 62 A.3d 649, 663–64 (Del. Ch. 2012); see also Strebel v. Wimberly, 371 S.W.3d 267, 276–77 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). 9. See Straehla v. AL Global Servs., LLC, N0. 21-0056 (Tex.), docket available at https://search.txcourts.gov/Case.aspx? cn=21-0056&coa=cossup. 10. The appellants’ petitions for review are available at the following links: • h t t p s : // s e a r c h .t x c o u r t s . g o v / S e a r c h M e d i a . aspx?MediaVersionID=3397a8d4-c9f7-4a8f-84a8841d6c96a015&coa=cossup&DT=BRIEFS&MediaID= 8e9e2c54-09bd-4d40-bfc6-71267201c7cb; • h t t p s : // s e a r c h .t x c o u r t s . g o v / S e a r c h M e d i a . aspx?MediaVersionID=058e9536-874b-4e00-abc157863a98001f&coa=cossup&DT=BRIEFS&MediaID=2 ad1659b-4881-4590-9dab-a27b42fcbb9f.
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Media Reviews
The Best People By Marc Grossberg Greenleaf Press, 2019 Reviewed by David T. López
M
arc Grossberg, fellow Houston lawyer, has written a wonderfully entertaining book that has engendered well-earned popularity from readers throughout the country. “The Best People,” a book of what he subtitles “a tale of trials and errors” of a newly licensed Houston attorney, timely arrived to lift spirits from the pandemic funk. A transplanted Brooklyn policeman with a brand new bar card, sky-high ambitions, and unfettered confidence takes on an artificially inflated social milieu, and mixes perspicacity with a substantial happenstance of fortuitous events to aim for the top ranks of local divorce lawyers. His path crosses with a strikingly beautiful and equally shrewd single mother with comparable aspirations, that carries her from the barrio to a fling with one of the wealthiest and amply established men among the Houston elite. The “trials” in the book relate as much to the personal failings of the characters, Paddy and Pilar, as to courtroom activities, including personal injury and medical malpractice as well as divorce. The book explores the difficulties that they encounter and the consequences of the choices they make in their circumstances. With deftly crafted characters and surprising, yet believable, plotting, Grossberg imbues satisfying entertainment with commentary and lessons–perseverance in the face of unfairness and the inherent artificiality at times evident in moneyed society. Paddy earns an award
in moot court competition at South Texas but cannot get hired as an associate. His willingness to take on a pro bono case leads him to a prompt rise in professional success. Pilar escapes an abusive relationship and tries to build a better life for her daughter. While working a temporary job as a secretary, she meets and marries a man with a multi-milliondollar business. That the book might well induce some to contemplate how opportunities and social advancement can be subject to chance or mere arbitrary social convention does not in any way diminish the pleasure of a story that some readers have matched with Grisham and Turow. One finishes the book with an enhanced appreciation of skilled writing and of the benefits of being prepared to take advantage of whatever might be presented. Grossberg’s generation of the idea on which the book is based is, in itself, a valid example. He revealed to a Houston Chronicle reporter that the novel came about because he happened to mistakenly enter a women’s restroom. Hearing women’s voices, he suddenly realized his mistake, but was able to escape undiscovered. What could happen, he wondered, if a conversation were overheard by someone who was not supposed to have been there? For Grossberg, there was the happy result of his book, and the reader similarly can expect the happy satisfaction of reading time well spent. The Best People is available in hardback and in an Amazon Kindle edition. David T. López, like Paddy, was graduated from South Texas Collage of Law Houston into a solo practice and is now a domestic and international mediator and arbitrator, following nearly 50 years as a litigator.
Join the HBA 100 Club! The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Adair Myers Graves Stevenson PLLC Ajamie LLP Alvarez Stauffer Bremer PLLC Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Baker Williams Matthiesen LLP The Bale Law Firm, PLLC Berg & Androphy Bradley Arant Boult Cummings LLP Buck Keenan LLP Bush & Ramirez, PLLC Carter Morris, LLP Christian Levine Law Group, LLC Cozen O’Connor Crady, Jewett, McCulley & Houren, LLP De Lange Hudspeth McConnell & Tibbets LLP Dentons US LLP Devlin Naylor & Turbyfill PLLC Dobrowski, Larkin & Stafford, L.L.P. Doyle Restrepo Harvin & Robbins LLP Ewing & Jones, PLLC Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins Fogler, Brar, O’Neil & Gray LLP Frank, Elmore, Lievens, Slaughter & Turet, L.L.P. Funderburk Funderburk Courtois, LLP Galligan & Manning Germer PLLC Givens & Johnston PLLC Gordon Rees Scully & Mansukhani Henke, Williams & Boll, LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Horne Rota Moos LLP Hughes, Watters & Askanase, L.L.P. Husch Blackwell LLP Irelan McDaniel, PLLC Jackson Lewis P.C. Jenkins & Kamin PC
Johnson DeLuca Kurisky & Gould, P.C. Jordan, Lynch & Cancienne PLLC Kean | Miller LLP Kelly, Sutter & Kendrick, P.C. Kilpatrick Townsend & Stockton LLP KoonsFuller, PC Law Feehan Adams LLP Linebarger Goggan Blair & Sampson, LLP Lorance Thompson, P.C. MacIntyre McCulloch & Stanfield, L.L.P. McGinnis Lochridge McGuireWoods LLP McKool Smith MehaffyWeber PC Morris Lendais Hollrah & Snowden Murrah & Killough, PLLC Nathan Sommers Jacobs PC Paranjpe Mahadass Ruemke LLP Peckar & Abramson, P.C. Phelps Dunbar LLP Pillsbury Winthrop Shaw Pittman LLP Pipkin Ferguson PLLC Ramey, Chandler, Quinn & Zito, P.C. Rapp & Krock, PC Reynolds Frizzell LLP Roach & Newton, L.L.P. Ross Banks May Cron & Cavin PC Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Rymer, Echols, Slay & Nelson-Archer, P.C. Schiffer Hicks Johnson PLLC Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Page & Harding, L.L.P. Scott, Clawater & Houston, L.L.P. Shannon Martin Finkelstein Alvarado & Dunne, P.C. Shearman & Sterling LLP Shellist | Lazarz | Slobin LLP Shipley Snell Montgomery LLP Smith Murdaugh Little & Bonham LLP Spencer Fane LLP
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Brown Sims, P.C. Greenberg Traurig, LLP Haynes and Boone, LLP Jackson Walker L.L.P. Morgan, Lewis & Bockius LLP Susman Godfrey LLP Winstead PC Firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Porter Hedges LLP Vinson & Elkins LLP Corporate Legal Departments CenterPoint Energy, Inc. EOG Resources, Inc. MAXXAM, Inc. Plains All American Pipeline, L.P. Quantlab Financial, LLC Rice University S & B Engineers and Constructors, Ltd. Law School Faculty South Texas College of Law Houston Thurgood Marshall School of Law University of Houston Law Center Government Agencies Harris County Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County, Texas 1st Court of Appeals 14th Court of Appeals
Firms of 50-99 Attorneys BakerHostetler LLP
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LITIGATION MARKETPLACE
Office Space Midtown Office Space I3518 Travis, ground floor, 4 window exposure executive offices available, conference room access, full shared kitchen, all expected amenities. Internal clerical space also available. Will accommodate. Call 713-960-8300. KIRBY – 3730 Kirby, 7th Floor. Window office available. Part downtown & med center view. Suite shared w/ 4 attorneys. Includes networked copier/fax/scanner, phone, internet, conference room & reception area, kitchen, fileroom, staff space available. Covered free parking. Call Sam Bernstein at 713-526-4968.
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HOUSTON/ENERGY CORRIDOR I-10 & 1155 Dairy Ashford Established law firm with estate/trust planning, probate/trust administration, elder law and business practice seeks to lease large 12x15 window office in friendly, beautiful office suite, with reception area. Office easily accommodates credenza, full size desk, two client chairs, two 5-drawer lateral files. Telephone, WiFi, high speed Internet, copiers/scanners, fax. Kitchen with microwave and coffee. Notary available. Access to conference rooms on scheduled basis. Free covered parking for attorney and clients. Possible overflow work subject to attorney availability, skill and experience. $895/month, quarterly term. Steve 713-553-0732 (cell) steve@mendellawfirm.com. HOUSTON—ONE GREENWAY PLAZA, SUITE 100— Beautiful Class A space available for sublease. Great Multi-Lawyer/Corporate/Professional Suite-1st floor, 15 ft+ ceilings, security, garage/covered parking, digital phone/voicemailemailed/fax/high-speed-internet/ cable system, 2 conference rooms, file room, front full-time bilingual receptionist, kitchen area, walk to restaurants-food court/gyms/Tony’s/ Starbucks/Double Tree-Hilton. At present, five well established law firms lease at this location ... being around other attorneys is also a great way to start a new practice. Currently available: 2 large window offices, 1 large interior office, and 2 furnished secretarial spaces, as well as virtual space! Call Lawrence at 713-6501222 or email: legal@texas.net. 48 May/June 2021
HOUSTON UPTOWN NEW NORMAL OFFICE SPACE One approx. 14’ x 15’ office and one cubicle with high partitions. 5,000 sq ft suite for easy social distancing. File space; 2 conference rooms; kitchen; telephone system; fiber internet; copier; ground floor (no elevator rides). Not an executive suite. Contact kurt@kurtarbuckle.com. HOUSTON MEMORIAL OFFICE SUITES Legal offices available on Westview Drive between Wirt and Antoine. Shared receptionist, conference room, and break room. Rent includes all utilities, internet, phone, parking, security, cleaning service, and office maintenance. For details contact: jacquesb@marksfirm.com. OFFICE SPACE Houston Junior League area. Join 9 independent, established lawyers. Large outside office and one inside office. Reception area and receptionist. Notary. Large outside conference room, library/conference room; kitchen with microwave, 2 refrigerators, coffee center, telephone system, copier, fax, scanner, internet, covered parking, electrical stations, file room. Furnished or non-furnished. 713-237-3222 or jim@jhwlaw.com. TIRED OF YOUR SMALL, STAY-AT-HOME OFFICE? Established solo practitioner offering large office space (22’ X 9’) for lease. Dairy Ashford, near Westheimer. Furnished with desk and bookcases. Three-month lease ($450/month) includes free parking. Possible overflow legal work. Call Judith 713-780–1355. In Riverway/Woodway/ Tanglewood area One 15-1/2 x 15-1/2 window office available (furnished or unfurnished) in a legal office suite with five practicing attorneys. A second 12 x 12 Window half-office is also available along with a 16 1/2 x 9.8 interior office. The suite has a kitchen and conference room, free parking for attorney, assistant and all other office services available, including phone, internet, photocopies/scan, postage. Perfect for two attorneys and one assistant or one attorney with two assistants. Call Dan at 713-523-1200 or Steve at 713-800-0220.
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4 executive offices & secretarial space available for lease starting July 1. Historic building in Woodland Heights completely renovated in 2021. New: kitchen, windows, appliances, phone system, bathrooms, paint, wiring/hi-speed internet cabling, HVAC, refinished hard wood floors. 12 person conference room with flat screen TV. Security system. Shared receptionist. New parking lot & landscaping coming soon. Call Lee Thweatt at 713-600-4710 for appointment. Law Firm Acquiring Kiefaber & Oliva LLP is Interested in Acquiring a Law Firm We are eager to hear from principals of law firms that meet all of the following criteria: •Sizable revenue (an average of at least $1M of top line revenue over the last 5 years); •Demostrated consistent earning power (we are not interested in future projections); •Business earning good returns while employing little or no debt; •Management and staff in place; •Simple practice; •An offering price (we don’t want to waste our time or that of the seller by talking, even preliminarily, about a transaction when price is unknown). We can promise complete confidentiality and a very fast answer as to whether we’re interested. Please send correspondence to Zachary Oliva, Managing Partner of Kiefaber & Oliva LLP, via e-mail (zoliva@kolawllp.com) or U.S. Mail (Kiefaber & Oliva LLP, 815 Walker Street, Suite 1140, Houston, Texas 77002). Professional Services
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Bearing Witness to Hate
Texas Insurance Law in 2021 and Beyond
From page 31
From page 35
Joshua Lee is a trial lawyer and partner at Armstrong & Lee LLP and serves as President-Elect of the Asian American Bar Association of Houston (AABA). Sarah Tejada is an immigration attorney and partner at the Rosas Law Group and serves as the current President of the AABA. Kristina Vu is a litigation associate at Baker Botts L.L.P. and serves on the AABA’s Public Statements Committee. Nadine Ona is a litigation associate at Germer PLLC and serves on the AABA’s Public Statements Committee.
Endnotes
1. STOP AAPI HATE, STOP AAPI HATE NAT’L REPORT, https://stopaapihate.org/2020-2021-nationalreport/. 2. See Anna Bauman, Asian Texans Establish Goals to Tackle Uptick in Hate Crimes, HOUS. CHRON., Mar. 23, 2021, updated Apr. 9, 2021, https://www.houstonchronicle.com/ news/houston-texas/texas/article/Asian-Texans-establishgoals-to-tackle-uptick-in-16047205.php. 3. For example, firearms purveyors across the country have reported a surge in the number of first-time purchases among Asian American customers. See Aaron Smith, More Asian-Americans Are Buying Guns for Protection from Hate Crimes, FORBES (Mar. 18, 2021), https://www.forbes.com/ sites/aaronsmith/2021/03/18/asian-americans-buy-gunsfor-protection-from-hate-crimes/?sh=5dd5c6da3edd. 4. Korematsu v. United States, 323 U.S. 214 (1944). 5. The history of the 19th century is replete with examples of mass lynchings perpetuated against Asian Americans. Some of the most egregious examples include the Massacre of Wyoming of 1885 (twenty-eight Chinese murdered, fifteen wounded, hundreds driven from their homes); the Massacre of Washington of 1885 (three Chinese murdered in Squak Valley with similar incidents occurring in Tacoma and Seattle); and the Massacre of Oregon of 1887 (thirty-four Chinese murdered; no one held accountable). 6. The authors thank H.C. Chang of McGehee, Chang, Landgraf, Feiler, for the historical research he provided for this article. They would also like to thank Mr. Chang for the efforts that he and OCA Greater Houston are undertaking to raise awareness of and identify solutions for the rise in AAPI hate incidents. 7. Five Children Killed as Gunman Attacks a California School, N.Y. TIMES, Jan. 18, 1989, at A-1. 8. Steven Yaccino et al., Gunman Kills 6 at a Sikh Temple Near Milwaukee, N.Y. Times, Aug. 5, 2012, at A-1, https://www. nytimes.com/2012/08/06/us/shooting-reported-at-templein-wisconsin.html. 9. CeFaan Kim, Asian American Mother Says She Was Spit at While Holding Baby, Called “Chinese Virus”, ABC 7 NY, WABC-TV (Mar. 11, 2021), https://abc7ny.com/womanspit-at-chinese-virus-possible-hate-crime-asian-americanassault/10405303/. 10. Courtney Vinopal, What We Know About the Atlanta Spa Shootings That Killed 8, Including 6 Asian Women, PBS NEWS HOUR (Mar. 17, 2021, 7:20 p.m., updated Mar. 19, 2021, 1:47 p.m.), https://www.pbs.org/newshour/nation/ what-we-know-about-the-atlanta-spa-shootings-thatkilled-8-including-6-asian-women. 11. E.g., Statement of President Joe Biden on Senate Passage of the COVID-19 Hate Crimes Act, The White House (Apr. 23, 2021), https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/23/statement-of-president-joebiden-on-senate-passage-of-the-covid-19-hate-crimes-act/. 12. RONALD DWORKIN, LAW’S EMPIRE 413 (1986).
Winter Storm Uri The icy misery of the storm is still only the recent past, so insurance litigation, if there is going to be any arising out of the storm, has not yet begun in earnest. When and if litigation ensues, it will be another opportunity to apply Texas Insurance Code Chapter 542A. This statute became effective on September 1, 2017, and the common law interpreting the statute is still in the early stages of development. The statute applies to first-party claims arising “from damage to loss of covered property caused, wholly or partly, by forces of nature, including an earthquake or earth tremor, a wildfire, a flood, a tornado, lightning, a hurricane, hail, wind, a snowstorm, or a rainstorm.”3 Claimants must provide additional pre-suit notice and a mandatory opportunity for the insurer to re-inspect the loss.4 Insurers can accept the liability of an adjuster, a provision aimed at the improper joinder of in-state adjusters.5 Winter Storm Uri also serves as a reminder that policyholders should always be reviewing their insurance policies so that they understand what will be covered and what will not be covered. An insured is generally bound by the terms of the policy, whether he or she reads it or not.6 Practice of Insurance Law Like many other fields of law, attorneys practicing insurance law have had to quickly come up to speed in taking depositions by Zoom and other remote services providers. Given the cost savings, insurers and other large institutional clients are likely to prefer virtual depositions even after the pandemic subsides. Zoom is also helpful for some activities that are particular to insurance law. For example, appraisal umpires are holding remote hearings with appraisers. Video conferencing has many advantages over a conference call, or exchanges of emails, as in appraisals past. For example, in real time, appraisers can highlight and draw arrows on photographs, scroll through estimates, and present other supporting evidence.7 Finally, TexasBarCLE’s Insurance Law 101 and Advanced Insurance Law courses were recently rescheduled from June 2021 to September 29–October 1, 2021. The courses will be an excellent opportunity to stay informed on changes to insurance law coming out of this challenging year. Stephen P. Pate is a member at Cozen O’Connor in Houston. He has practiced first party insurance law for 36 years. He is a Regent in the American College of Coverage Counsel, an Advocate in the American Board of Trial Advocates, and a Member of the American Law Institute. Karl A. Schulz is a partner with Cozen O’Connor in its Houston office. He has extensive experience in first party property insurance and is widely published on the subject. Endnotes
1. See e.g., Steiner Steakhouse, LLC v. Amco Ins. Co., No. 1:20-CV-858-LY, 2020 U.S. Dist. LEXIS 252012, *8 (W.D. Tex. Dec. 30, 2020). 2. See Selery Fulfillment, Inc. v. Colony Ins. Co., No. 4:20-cv0853, 2021 U.S. Dist. LEXIS 47483, *12 (E.D. Tex. Mar. 15, 2021). 3. TEX. INS. CODE ANN. § 542A.001(2)(C). 4. Id. §§ 542A.003–.004. 5. See id. § 542A.006; Koenig v. Unitrin Safeguard Ins. Co., No. SA-20-CV-00887-JKP-HJB, 2021 U.S. Dist. LEXIS 1703, *4 (W.D. Tex. Jan, 6, 2021). 6. Heritage Manor of Blaylock Props, Inc. v. Petersson, 677 S.W.2d 689, 691 (Tex. App.—Dallas 1984, writ ref’d n.r.e.); Howard v. Burlington Ins. Co., 347 S.W.3d 783, 792 (Tex. App.—Dallas 2011, no pet.). 7. See McGinty v. Hennen, 372 S.W.3d 625, 627 (Tex. 2012); Paschal v. Engle, No. 03-16-00043-CV, 2016 Tex. App. LEXIS 9161, *9 (Tex. App.—Austin Aug. 23, 2016, no pet.); Smith v. Overby, No., 04-15-00436-CV, 2016 Tex. App. LEXIS 9172, *17 (Tex. App.—San Antonio Aug. 24, 2016, no pet.).
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2021 Harvest Celebration We’ll be back in person this year at the River Oaks Country Club! Monday, November 8, 2021 7:00 - 10:00 p.m. Attend the celebration and support the fundraising campaign, which benefits Houston Volunteer Lawyers to provide legal services to Houstonians in need.
Tickets and more at hba.org/harvest