THL_NovDec15

Sale of a Practice: When It’s Time, It’s Time Advice for Starting a Boutique Practice Growing a Small Office of a Large Firm Transitioning from a Large Firm to a Small Office How to Make the Best Digital Marketing Choices New Program to Celebrate 20th Anniversary of HBA Mentoring

lawyer

THE HOUSTON

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Volume 53 – Number 3

Surviving the New Normal

How to Be the Best Lawyer You Can Be

November/December 2015

Jimmy Erwin Justin Kaplan

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contents Volume 53 Number 3

November/December 2015

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14

FEATURES of a Practice: 10 Sale When It’s Time, It’s Time

By James E. Brill

for Starting a 14 Advice Boutique Practice

By Taunya Painter and Jill Yaziji

a Small Office of 22 Growing a Large Firm

By Bruce Oakley

22

26

from a Large Firm 26 Transitioning to a Small Office

By Robert H. Ford

to Make the Best Digital 30 How Marketing Choices

By Stacey E. Burke

Program to Celebrate 32 New Twentieth Anniversary of HBA Mentoring

By Warren W. Harris, Prof. Lonny Hoffman and Christopher V. Popov

The Houston Lawyer

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32

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association, 2015. All rights reserved.

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November/December 2015

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Houston Bar Association FREE HBA ONLINE CLE Earn CLE credit and ethics credit at your convenience, at no charge, as a benefit of HBA membership!

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- Key Issues When Employees Leave to Compete - 2015 Law and the Media Seminar - Recent Developments in Wage Hour Law - Whose Bill is it Anyway? Adult Child’s Responsibility to Pay for Their Parent’s Care - Things You Don’t Know (But Probably Should) About Family Law - What to do When Your Client Calls at Midnight - Navigating the EEOC’s Practice and Procedures - Recent Developments and Case Law Updates for Texas Oil & Gas Law - Managing Cyber Risk - Presenting, Recovering and Challenging Past Medical Expenses - Juvenile Court: Who We Are and What We Do - When FERC Comes Calling - Implications of the Supreme Court on DOMA - Beyond Reasonable Doubt: Challenging the Criminal Investigation - Oral Argument Revisited: Pitfalls, Tips and Practical Advice

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contents Volume 53 Number 3

November/December 2015

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36

departments Message 6 President’s Give of Yourself by Giving

the Gift of Justice

By LAURA GIBSON

the Editor 8 From A Little Help Goes a Long Way

By Angela L. Dixon Lawyers Who 29 Houston Made a Difference

E. E. Townes

By The Hon. Mark Davidson

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38

36 AT THE BAR Profile in professionalism 37 ATravis J. Sales Partner, Baker Botts L.L.P. the record 38 off The Hon. Nile Copeland and His

Fountain Pen Collection

By The Hon. Josefina Rendón Trends 40 Legal Texas Supreme Court Protects

Arbitration Provisions in Attorney-Client Employment Contracts

By Kimberly A. Chojnacki

42

Upcoming Changes to the Federal Rules of Civil Procedure

By Heaven Chee Review 42 Media From the Trenches: Strategies

and Tips from 21 of the Nation’s Top Trial Lawyers Reviewed by Taunya Painter

From Law School to Lawyer Reviewed by Al Harrison

The Houston Lawyer

44 Litigation MarketPlace

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Large Firm Champions

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

Corporate Champions

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

Mid-Size Firm Champions

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

Sutherland Asbill & Brennan LLP Winstead PC Winston & Strawn LLP

Boutique Firm Champions

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

Small Firm Champions

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

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

Solo Champions

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

president’s message

By LAURA GIBSON Ogden, Gibson, Broocks, Longoria & Hall, L.L.P.

Give of Yourself by Giving the Gift of Justice

D

uring the holiday season, our thoughts often turn providers. Some of these pro bono providers even handle the to giving. I am reminded that there is one gift that reporting to HVL with no additional work from the lawyers. only lawyers can give—donating our time and exSome of the approved providers you may be familiar with are: pertise to represent someone in need of legal serCatholic Charities, Human Rights First, KIND (Kids in Need vices, who cannot afford them. of Defense), and Tahirih Justice Center.

The Houston Bar Association and our Houston Volunteer In the 2014-15 bar year, HVL placed 953 cases with pro bono Lawyers have developed many ways to help lawyers. Almost 700 of those were placed with lawyers provide those crucial services. One Equal Access firms, enabling them to meet alThe Houston Bar way is through the Equal Access to Justice most 97% of their required cases. Seventy-eight Champions Program. Equal Access was estabof the cases taken were through HVL approved Association and our lished during the 2006-2007 bar year, under providers.

Houston Volunteer Glenn Ballard’s leadership, to address the fact By volunteering to handle a pro bono case, that in order to meet the legal needs of those lawyers can obtain oral hearings, even Lawyers have developed young who could not afford to hire a lawyer, law firms before the courts of appeals. Justice Jane Bland, needed to commit to provide legal services on a justice of the First Court of Appeals recently many ways to help a continuing basis. Firms, corporations and reminded lawyers attending the Gender Fairlawyers provide individuals who joined the program commitness luncheon that by advising court personted to handling a certain number of cases each in pleadings that the case involves pro bono those crucial services. nel year based upon a tiered system largely depenrepresentation, the courts will grant oral argudent upon the number of lawyers in their ofment when they otherwise wouldn’t to assist One way is through fice, who continued that commitment to hanyoung lawyers in getting the experience they the Equal Access dle pro bono cases for five years. need to develop in the profession.

The Equal Access program was innovative You can go to the HVL website (www.maketo Justice Champions and highly successful. The ABA recognized the justicehappen.org) or the HBA website (www. important work of the program by awarding hba.org) to find a list of our Equal Access Program. the HBA with the prestigious Harrison Tweed Champions. If your firm is not an Equal Access Award in 2008. Finding that the program was working very Champion, I encourage you to join so that you too can make well, our Equal Access firms renewed their commitment in justice happen in Houston.

2011 for another five years. Since then, bars across the country Last year, our volunteer lawyers provided $4,567,800 worth have followed the lead set by the HBA by creating their own of donated lawyer service hours. That is 19,828 hours, calcuequal access programs. lated at an artificially low rate of $250 an hour.

In 2014, the HBA announced changes to the program which Many lawyers say they can’t take pro bono cases because of revised the number of cases each firm was required to take so a lack of time and responsibility for family obligations. Do not that participants now take one case for every five lawyers in the let that stop you from fulfilling your obligation to see that all firm’s Houston office. Additionally, the program was changed persons have access to legal representation. Instead, you can to allow lawyers and firms to satisfy one-third of their case obchoose to help with our pro bono efforts by donating money Continued on page 45 ligation by accepting pro bono matters through HVL-approved

“

The Houston Lawyer

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November/December 2015

thehoustonlawyer.com

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

Gulf Freeway Office: 8441 Gulf Freeway, Suite 600 • Houston, Texas 77017

713-222-6767 • www.nedbarnettlaw.com Board Certified in Criminal Law by the Texas Board of Legal Specialization thehoustonlawyer.com

November/December 2015

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from the editor

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

Associate Editors

A Little Help Goes a Long Way

W

and Christopher V. Popov have provided an article dehen I graduated from law school, I tailing what is in store for mentees and mentors for practiced in a law firm for a few years next year. I was in the mentor program and gained before I branched out on my own. valuable insight into the profession, so I highly recomAt the time, I realized I had a lot to mend the program. learn about running a practice—like Second, Taunya Painter and Jill Yaziji contribute an where do I file this lawsuit? In the law firm, I just article on starting a boutique practice, drafted the document and my great paralegals took care of the rest. Now I I am excited about providing guidance from several attorneys specializing in immigration, had to draft, file and pay the fees myestate planning and probate, and self. Other issues surfaced like where this issue of Farrah Martinez worker’s compensation law. Third, to office, what practice areas would be Attorney at The Houston Lawyer for those in large firms and thinking best, what types of software did I need Law transitioning, Robert Ford’s article for billing and drafting documents, because it is all about ofgives some key questions to ask yourand the list goes on.

I had so many questions that needhelping new as well as self when moving to a boutique practice, while Bruce Oakley’s article on ed answers. Luckily for me, I had indigrowing a small office of a large firm viduals who were willing to help me, seasoned lawyers addresses the challenges one may face like Cheryl Harris Diggs who already who may be thinking and strategies for success in doing so. had her own practice. I was introTaunya Painter Fifth, one option to starting a practice duced to Cheryl by a friend and even Painter Law Firm about starting out PLLC is to purchase one from an attorney though she did not know me personalready established in your chosen ally, she happily met with me and on their own. field. James Brill gives this perspective gave me guidance on what to do to get in his piece on the sale of a law practice. Lastly, Stacey started. I still remember meeting Cheryl for lunch at Burke’s article on making the best digital marketing the Park Shops downtown and how encouraging and choices is a must read. With so many options, it is hard supporting she was. We all need a little help from time to know which marketing resources are the best, and to time, no matter if it is learning how to navigate firm she provides clear and easy guidance on which ones life or starting your own practice. Even in my role as Hon. Jeff Work Law Offices of Susan Editor in Chief of The Houston Lawyer I sought the can help you get the word out about your practice.

E. Cartwright I would like to give special thanks to the guest ediguidance of past editors Tamara Stiner Toomer, Robert tors of the November/December issue of The Houston Painter and John Gray, who gave me great tips and asLawyer. Heaven Chee, Paul Bowers and Amy Hargis sured me I would do a great job. did an excellent job coordinating this issue. Heaven I am excited about this issue of The Houston Lawand Paul are new to the board so I really appreciate yer because it is all about helping new as well as seatheir willingness to jump right in and take on this resoned lawyers who may be thinking about starting out sponsibility. As you read and enjoy this issue, keep a on their own, changing practice areas or moving to Jill Yaziji look out for the January/February issue that will take smaller firms. First, the HBA is revamping the mentor Yaziji Law on Technology and Social Media topics. program, and Warren W. Harris, Prof.

Lonny Hoffman Firm Polly Graham Fohn Haynes and Boone, LLP

“

The Houston Lawyer

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November/December 2015

thehoustonlawyer.com

BOARD OF DIRECTORS President

Secretary

Laura Gibson

Warren W. Harris

President-Elect

Treasurer

Neil D. Kelly

Alistair B. Dawson

First Vice President

Past President

Todd M. Frankfort

M. Carter Crow

Second Vice President

Benny Agosto, Jr.

DIRECTORS (2014-2016)

Richard Burleson Chris Popov

Diana Perez Gomez Greg Ulmer

Jennifer A. Hasley Daniella D. Landers

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

editorial staff Editor in Chief

Angela Dixon Associate Editors

Polly Graham Fohn Taunya Painter Jill Yaziji

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

Farrah Martinez Hon. Jeff Work

Editorial Board

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

Managing Editor

Tara Shockley

HBA office staff Executive Director

Kay Sim Administrative Assistant

Director of Projects

Receptionist/ Resource Secretary

Membership and Technology Services Director

Director of Education

Membership Assistant

Continuing Legal Education Assistant

Communications Assistant /Web Manager

Amanda Piesche

Bonnie Simmons

Lucia Valdez

Ron Riojas

Ashley G. Steininger

Caroline Fitzgerald

Dozie Oheri

Ariana Ochoa

Communications Director

Tara Shockley

Advertising sales Design & production QUANTUM/SUR

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

Leonel E. Mejía Production Manager

Marta M. Mejía Advertising

Mary Chavoustie

thehoustonlawyer.com

November/December 2015

9

By James E. Brill

SALE OF A PRACTICE:

When It’s Time, It’s Time E

verything has a life cycle. Remember lava lamps, mood rings, and pet rocks? Add a lawyer’s practice to that list.

After many years in practice, the time comes when the lawyer recognizes that it’s time to close up shop and move on to the next phase. It seems a shame to just finish the few pending matters, try to return files to clients, and turn out the lights. Could the practice have a value? Could it be sold? Is there a buyer?

The lawyer remembers that the American Bar Association has a rule that allows a lawyer to sell the practice, but after diligent search in the Texas Disciplinary Rules of Professional Conduct (“DR”), a rule like that is nowhere to be found. Further research reveals that all of the states have such a rule except for Texas, Alabama, and Louisiana.

Looking back over the years, the lawyer remembers the problem of trying to buy a practice, the thrill when it was located,

and the pride when the senior lawyer introduced the new “junior partner” to the clients, the judges and the fellow lawyers.

It did not take long for the senior lawyer to decide to move on and to pass the baton. The letters to the clients proclaimed the good news and, with a few exceptions, most of them stayed on. The “retirement” payments to that senior lawyer sure seemed like payments to purchase the practice but one day those were no more.

This formerly new, but now senior, lawyer never brought in another lawyer and now does not have time for that time-tested “charade.” A quick sale is the answer, but how?

As will be seen, some of the Disciplinary Rules tend to complicate matters involving clients, leave many open issues for the lawyer’s family, and raise serious potential problems for lawyers who are involved in winding down or disposing of their practices. This involves a delicate balance that is hard to achieve.

As in every other aspect of the practice of law, the overriding and primary consideration must be to protect the client’s best interests and to do so as promptly, efficiently, and inexpensively as reasonably possible.

The Regulatory Framework Not only must a lawyer navigate the Disciplinary Rules, but the lawyer must also be aware of, and comply with, the Texas Rules of Disciplinary Procedure (the “Procedure Rules”). These are the Black Letter Rules.

DR 8.04(a)(10) clearly provides that a lawyer commits misconduct by failing to comply with Rule 13.01 of the Procedure Rules relating to an attorney’s cessation of practice. Rule 13.01 applies to pending matters and requires written notice be given to current clients and others having a need to be informed of the cessation of practice. A lawyer planning retirement can wind down the practice by completing ongoing matters and refusing to accept new projects, thereby reducing the workload until there are no pending matters or just a few for which the required

notice can be handled easily.

Once a lawyer has established an attorney-client relationship, open communication with the client by that lawyer is not only authorized, but is actively encouraged. There is no prohibition against a lawyer contacting current and former clients to recommend another lawyer.

However, there are many restrictions on non-affiliated lawyers who want to “take over” a lawyer’s entire practice or only selected matters. These include barratry [a penal code violation in addition to being a violation of DR 8.04(a)(9)], certain in-person or telephone contacts [DR 7.03(a)], certain written “solicitations” [DR 7.05(a)], and even compliance with the advertising rules [DR 7.04 and 7.05].

Almost all attorneys licensed to practice law in Texas are required to maintain a separate client trust account into which funds of clients must be deposited. The all-inclusiveness is eye popping. The Rules require the lawyer to maintain and preserve, for a period of five years after final disposition of the underlying matter, the records of such accounts, including checkbooks, canceled checks, check stubs, check registers, bank statements, vouchers, deposit slips, ledgers, journals, closing statements, accountings, and other statements of receipts and disbursements with regard to client trust funds clearly reflecting the dates, amounts, sources and disbursements of the funds or other property.

Sale of a Law Practice The overriding concern that inhibits the outright sale of a law practice is protection of the clients’ confidences, rights, and property. The major issues are confidentiality, solicitation, and fee sharing with non-lawyers.

Every lawyer’s files contain confidential information from clients which neither the lawyer nor the lawyer’s heirs or personal representatives may properly disclose without the client’s express permission. Confidential information includes both privileged information as well as unprivileged client information,

and both types are confidential in nature.

DR 1.05(a) states that a lawyer shall not knowingly reveal confidential information of a client or a former client to anyone else, other than the client, the client’s representatives, or the members, associates, or employees of the lawyer’s law firm.

An attorney is an agent of the client, and the client is the principal. An agent may not disclose or use information relating to the principal when such information is obtained during the course of the agent’s employment. The protections afforded to a principal under agency law exceed even those which arise solely from an attorney-client privilege.

If all of that is taken literally, then how in the world could two lawyers determine if a conflict of interest might exist, much less determine how to describe, value, or sell a practice in light of such restrictions?

DR 5.04 provides that a lawyer shall not share or promise to share legal fees with a non-lawyer. There is a limited exception that permits a lawyer who undertakes to complete unfinished legal business of a deceased lawyer to pay to the estate of that deceased lawyer a proportionate share of the total compensation which fairly represents the services rendered by the deceased lawyer.

Our hypothetical lawyer acquired the practice of the senior lawyer pursuant to the “charade” rather than by an outright purchase. Years later this same lawyer does not have a guided route to make an outright sale and now must repeat the “charade” from the perspective of the seller. Once again, all signs point to the “charade” rather than to an outright sale.

The ABA has a rule

that allows a lawyer to sell a practice,

but there is no such rule in the Texas

Disciplinary Rules of Professional Conduct.

Solicitation The debate rages on with respect to barratry, ambulance chasers, runners, and the like. Solicitation is not only grounds for discipline and the loss of a lawyer’s license, it also can involve criminal prosecution.

Fee Sharing DR 1.04(f) emphasizes that the division of fees between lawyers not in the same firm shall not be made unless the division is in proportion to the professional services performed by each lawyer. The principal reason for imposing the limitation was to eliminate “naked referrals.”

However, DR 1.04(g) permits payments to a former partner or associate pursuant to a separation or retirement agreement.

DR 5.04 is in addition to DR 1.04(f) and presents another obstacle that must be navigated in order to sell a law practice.

Other Issues Abound Listing the name of a deceased attorney in the yellow pages of the telephone directory was a “no no” in a 1958 Ethics Opinion but would this restriction harm, rather than protect clients who are searching for their documents previously entrusted to a now-deceased solo practitioner?

DR 7.01(a) provides that a lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of lawyers in the firm. But if otherwise lawful, a firm now may continue to include the name of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession.

Other Arguments against Permitting Sale of Law Practice 1. Clients are not commodities that can be bought and sold.

2. Clients have no control over the se-

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lection of the buyer.

3. Sellers would be motivated to point clients to the buyer that pays the highest referral fees rather than to the best lawyers.

4. Buyers would pay less attention to files where they had to split fees.

5. If a value can be placed on goodwill, it would be an additional asset subject to death taxes.

Arguments in Favor of Permitting Sale of Law Practice 1. Although clients cannot be bought and sold, it is the potential opportunity to handle their affairs that is valuable. All elements of client autonomy survive the sale. The client can terminate the relationship at any time and is not bound by the agreements between buyer and seller.

2. Buyer, seller, and client all have mutually beneficial interests. The buyer wants an ongoing stream of income from an established client base and referral source. The seller wants to

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benefit from a reputation built over a lifetime of serving clients and to be paid for the value of current matters and the infrastructure for delivering legal services. The client wants solutions to problems and issues, consistent advice and counsel, and the convenience of not having to shop for another lawyer.

3. Clients benefit because someone with a vested interest takes over the practice. Who is more motivated to help the clients than someone who has paid for the privilege of serving them?

4. When one lawyer takes over the practice of another lawyer, the selling lawyer (or the estate or heirs) should be able to obtain compensation for the reasonable value of the practice just as partners withdrawing from law firms may do.

5. Negotiations between the buyer and seller relating to specific representation of identifiable clients no more violate confidentiality than do dis-

thehoustonlawyer.com

cussions concerning firm mergers, lateral hires, admission of new partners, or the hiring of new associates.

6. Sale to a lawyer who was not pre-approved by the clients is no different for clients of a solo than for clients of a law firm that has hired new associates or admitted new partners who were not pre-approved by the clients.

Objectives of the Parties Seller Wants. Seller wants to be assured that the clients have access to quality legal services, that the risk of malpractice is minimized, that seller receives a fair price for the opportunity being afforded to the buyer, and that the seller is paid.

Buyer Wants. The buyer wants a readymade opportunity, an established clientele, the existing telephone number, perhaps an office building or favorable lease, and the ability to pay for it all when, as, and if fees are collected.

Value is the Potential. Valuation of the practice presents many challenges. The computer, library, and other tangible as-

sets are rapidly depreciating value. The potential for keeping the practice alive provides the value.

ABA Model Rule 1.17 Authorizes Sale ABA Model Rule 1.17 (the “Model Rule”) permits the sale of a practice, expressly including its goodwill. The Model Rule also applies to the sale of a law practice of a deceased, disabled, or disappeared lawyer. There has been almost universal adoption of the Model Rule. Currently, 47 states have adopted the Model Rule or some variation. The three holdouts are Alabama, Louisiana, and, unfortunately, Texas.

Most states have adopted the Model Rule and its comments verbatim, but many have added additional restrictions, consumer protection provisions, or provisions that spell out in greater detail the duties of the buyer and seller.

Without a Texas rule is a sale permitted because it is not specifically prohibited?

Even if not prohibited, there are many hurdles to jump through and serious ethical issues.

What if this is the offer that can’t be refused? Selling a practice could be an option if the lawyer has the time to find and negotiate with a buyer. While the valuation and negotiation processes can be complex, the three paramount issues are price, payout, and workout.

Valuation, although difficult, determines the price. This could be the subject of its own article.

The payout is when the seller receives the total proceeds. Typically, only a portion of the price is paid up front. The rest of the payout may depend on how the price is calculated and whether it is dependent on collection of fees from clients.

Most sellers want all cash up front but most buyers want to pay only on the basis of when, as, and if collected.

Professional Corporation Lawyers who practice in a professional corporation can have certain tax and economic benefits but lawyers are the only permitted shareholders of record. Note,

however, that if the stock is community property, then the non-lawyer spouse owns half but cannot be a shareholder of record.

Upon the death of a lawyer who is the sole shareholder, neither the non-lawyer spouse nor the non-lawyer executor is an eligible shareholder, and since there is no shareholder licensed to practice law, the professional corporation can no longer provide legal services. The Texas Business Organizations Code (“BOC”) requires an unlicensed person to promptly relinquish all financial interest in the professional corporation.

As explained earlier, the lawyer must run a gauntlet through the Disciplinary Rules in order to sell the practice while the legislature has cleared a path for the non-lawyer who is required to relinquish the financial interest. The BOC authorizes that non-lawyer to act as a managerial official “for the purpose of winding up the affairs of the entity, including selling the outstanding ownership interests and other assets of the entity.”

Strangely, the non-lawyer has statutory authority to sell the practice but the lawyer does not have even the safe harbor equivalent of the Model Rule for guidance.

Conclusion The lawyers who wrote the Model Rule recognized the problem and provided a solution. In Texas, the General Practice, Solo and Small Firm Section with the State Bar has formally proposed a Texas version of the Model Rule and awaits action by the Board of Directors. One in twelve American lawyers is a Texas lawyer. It is time for Texas to join the majority and adopt a workable and practical rule for the benefit of not only the lawyers, and their families, but also for the benefit of the clients that Texas lawyers are privileged to serve.

James E. Brill has been the principal author of Texas Probate System since 1972, was the leader of Solos Supporting Solos for 20 years, and was recognized as an Outstanding 50 Year Lawyer by the Texas Bar Foundation

COTROPIA MEDIATIONS Taking Steps to Settle Cases

Two Sneakers @ a Time!

Carla Cotropia  Mediating all types of cases Mills Shirley LLP since 1999.

3 Riverway, Suite 100 Houston, TX 77056 (713) 225-0547 ccotropia@millsshirley.com www.cotropiaworkshops.com thehoustonlawyer.com

November/December 2015

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By Taunya Painter and Jill Yaziji

Advice for Starting a Boutique Practice W

hether you are a new attorney or want a change mid-career, setting up your own boutique law firm can have a lot of upsides. You may be attracted to the boutique concept because you can be your own boss and have an income that reflects your business ideas, work ethic and ingenuity. However, an often overlooked benefit in setting up a boutique is the ability to reduce workplace stress. A boutique firm will specialize in one or a few related legal areas, and refer unrelated matters to other attorneys. It allows you to develop a niche, and to offer a high-quality, clientfocused legal service and often do so costeffectively for clients.

With the objective of inspiring and helping attorneys start a new law practice–and reap the benefits of a boutique

while also avoiding the pitfalls–we asked three attorneys who started their own boutique firms to lend their perspective on what makes their practices reputable, profitable and enjoyable. We selected these areas of practice: immigration, estate planning and probate, and worker’s compensation. We asked each attorney to discuss various subjects, hoping to give those who are considering their own boutique practice enough input to make an informed decision. Our subjects ranged from the most basic information regarding CLE and Certification and whether there are forms available to aid the new practitioner, to the more complex issues of how to finance the practice, structure attorney time, and get clients. Here are their perspectives.

Immigration & Nationality Boutique Law Practice: Magali Suárez Candler The author is principal of Suárez Candler Law, PLLC, and is board certified in immigration and nationality law by the Board of Legal Specialization.

She is always available to mentor and advise new practitioners.

CLE and Certification. The American Immigration Lawyers Association (AILA) gives members access to its legal database, the “Infonet,” which includes daily updates and access to many legal resources, its publications, and CLEs. Membership is not inexpensive, but well worth the cost. AILA’s local chapter includes attorneys in Texas, Oklahoma and New Mexico and offers excellent CLEs, which give more access to local experienced practitioners willing to mentor, and which are usually more affordable than the national CLEs. Also, the State Bar of Texas and the

University of Texas have affordable Immigration and Nationality Law CLEs every year, which often include an entire day or session devoted to new practitioners, and then an advanced day or two after that.

To be board certified in Immigration and Nationality Law, an attorney must practice in this area for at least 5 years, demonstrate a wide range of experience, and must pass a test that covers all areas of the immigration practice, including inadmissibility and deportability, removal proceedings, immigration consequences of criminal offenses, and family-based and employment-based visas, among others.

Generally, in removal work and Form I-9 work, hourly fees are recommended, because the complexity and amount of time it takes varies greatly. However, some areas that are relatively straightforward and quick can be flat fee such as family-based petitions and employmentbased non-immigrant visa petitions.

By contrast, cases involving waivers of inadmissibility, for example, may take substantially longer, especially when relying on the family members meeting with licensed therapists who would provide expert witness assessments or testimony, and where extensive documentation or sworn statements are required.

Forms and Resources. Great sources of practical information are the Department of Homeland Security’s USCIS (U.S. Citizenship and Immigration Services), CBP (Customs and Border Protection) and ICE (Immigration and Customs Enforcement) memoranda and field office manuals, the Department of Justice’s EOIR’s (Executive Office for Immigration Review) Practice Manual and memoranda, and federal case law, among others.

There are various immigration form databases and tracking programs that may be helpful to your practice. However, immigration practice is far more complex than filling out forms. For example, there are many mistakes you or your staff could make that seem innocuous but that could have permanent and life-altering impacts for the client, such as being removed from the United States, separated from family, and ineligible for any relief in the future.

Notaries, or “notarios,” who are practicing without a law license and simply “filling out forms” have caused disastrous results to families of foreign nationals that employed their services.

Getting Clients. The best advertising is word of mouth from satisfied clients.

Many immigrant communities are closeknit. But to get into these networks in the first place often depends on referrals from other attorneys who do not practice immigration law or from non-profit agencies, such as Catholic Charities and the Tahirih Justice Center. By volunteering at the non-profits, a new practitioner will get referrals and build a practice. Speaking engagements and community events in immigrant areas also usually result in referrals.

Case Expenses and Billing. Some immigration work lends itself to hourly fees, and some lends itself to “flat fees.” Either way, keep track of the attorney and the legal assistant’s time in order to determine what different types of cases are profitable.

Support Staff. I recommend investing in a competent, detail-oriented, bilingual legal assistant or paralegal, who can communicate with clients on non-legal issues and help fill out forms that the attorney would then review carefully. However, the attorney should handle the initial strategy for each case, draft legal arguments, answer complicated questions on application forms, finalize clients’ sworn statements, advise criminal defense counsel on the immigration consequences of certain pleas, represent individuals in removal proceedings, and help employers who are being investigated by ICE in Form I-9 Audits— which are cases that can result in criminal sanctions.

Technical Areas. Immigration lawyers practice before the Department of Home-

land Security, the Department of Justice, the Department of State, federal courts, and even the Department of Labor, and must become familiar with the Immigration and Nationality Act (INA or 8 U.S.C.), and the regulations, including the 8 C.F.R., 22 C.F.R., etc., as well as agency policy memoranda and practice manuals.

Problem Solving. I recommend beginning your practice with a mentor available to you, and that you reach out to other AILA members for advice on tricky and challenging procedural and substantive issues. These practitioners volunteer their time and expertise in brainstorming and problem solving.

Other Tips. A high-volume (aka, “immigration mill”) practice is not recommended, because this lends itself to potential malpractice. It is better to take on fewer cases and charge reasonable fees. Your clients will appreciate you for it.

Estate Planning and Probate: Jana Fay Bacarisse The author is principal of the Law Office of Jana Fay Bacarisse, dedicated to the practice of Probate, Estate Planning and Guardianship law.

CLEs and Certifications. Ideally, a boutique firm will concentrate in these distinctive, yet overlapping areas: estate planning, probate, and guardianship. Elder Law, including Medicaid planning, is an overlapping area but requires additional specialized knowledge.

For those starting out in estate planning, the Texas Bar offers: Building Blocks of Wills, Estates and Probate and the annual Estate Planning and Probate Drafting Course. UTLaw also offers the Stanley

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THE POWER OF AN LL.M. DEGREE The University of Houston Law Center is home to renowned LL.M. specialty programs with two (Health Law and Intellectual Property) ranked in the Top Ten according to U.S. News & World Report.

• Energy, Environment and Natural Resources- There is no better place to study the interrelated areas of energy, environment and natural resources law than UH Law Center located in the energy capital of the world.

• Health Law- The Health Law & Policy Institute emphasizes interdisciplinary studies in all areas of health law and policy, and benefits from UH’s association with the Texas Medical Center, the world’s largest medical complex.

• Intellectual Property & Information Law- The Law Center’s top-rated IPIL program is on the cutting edge as these disciplines rapidly evolve in the global economy.

• International Law- Growing interdependence places a premium on lawyers who understand the intricacies of public and private international law. Houston holds a commanding presence in the global marketplace, and our LL.M. program capitalizes on the city’s substantial connections.

• Tax Law- The LL.M. tax program provides the enhanced knowledge and practical skills needed to meet the challenge of successfully dealing with ever-changing tax laws.

Now accepting applications for the fall 2016 semester For more information contact llm@uh.edu or visit law.uh.edu/llm UH is an EEO/AA institution

M. Johanson Estate Planning Workshop.

For more experienced attorneys, the Texas Bar offers a summer course: Advanced Estate Planning and Probate. This is also available on video broadcasts at other cities on later dates. The Houston Bar Association Probate, Trusts and Estates Section also holds a monthly meeting on useful topics. In addition, several of the Harris County Probate Courts provide practical CLE programs.

For CLE in the other areas, UTLaw CLE offers the Estate Planning, Guardianship and Elder Law Course, in August in Galveston. UTLaw CLE offers in February a program called Changes and Trends Affecting Special Needs Trusts: a Guide for Attorneys, Financial Advisors and Trust Officers.

Attorneys handling guardianship matters as an Attorney Ad Litem or as an attorney for an applicant must receive a guardianship certification. As of September 1, 2015, there are additional requirements for the certification, which will be part of most upcoming CLEs offered on Guardianship. The Houston Bar Association offers a CLE on the new updated requirements. Some financial institutions may require attorneys to be board certified in Probate and Estate Planning by the Texas Board of Legal Specialization to receive referrals for estate planning for clients.

Forms and Resources. The primary resource is the Texas Estates Code. Johanson’s Texas Estate Code Annotated is one publication of the Estates Code that provides updates, decisions and annotations. It includes related statutes, including the Texas Trust Code, Family Code, Finance Code, Health and Safety Code, Human Resources Code, Insurance Code, Local Government Code and Property Code. Prodocs by Thomson Reuters and FlexDraft by Barney Jones are both services that provide forms for preparation of Wills, POAs, trusts and other matters in probate and guardianship.

Finally, Westlaw or Lexis can be useful, especially for contested matters. The Texas State Bar also provides online legal research for members through its website.

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Case Time, Expense and Billing. The time invested for estate planning will depend on the complexity of the estate and the family structure of your client. For example, estate planning for blended families is more complex and there are additional considerations for larger estates, subject to Federal Estate tax. For estate administration, the amount of time will vary dramatically based on whether the Decedent had a valid Will or died intestate, the number of beneficiaries and if they get along, whether there will be a Will contest, estate creditor issues, the number of assets in an estate and whether estate tax returns are required. For a very basic probate with a valid Will, a modest estate and no family conflict where a probate is needed to transfer title to property, you may spend five to ten hours on one case.

However, most cases are not that simple.

The investment in an estate planning or probate matter will be the investment in your education and resources and the attorney’s time. If a probate matter becomes highly contested, the case investment will

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rise to the level of normal litigated matters, including discovery, depositions, experts and all other litigation expenses.

The fees for estate planning can be hourly or flat rate. For large estates with complex variables, many firms charge hourly. For moderate and small estates, some boutiques will offer flat rates, depending on the type of Will, trust, or other documents needed. A flat rate is favorable to many clients because they know the cost in advance. At the consultation phase, which may be complimentary, the attorney should learn enough information to advise the client on what the estate plan should be, the fees charged, and the estimated time to finalize the process, and an estimate of any other projected costs.

Projected costs in an heirship matter will include the Attorney Ad Litem fee, which must be paid by the client. There will be filing fees in probate matters, as well.

Probate and estate administration matters are typically billed hourly, because the time involved to finalize a matter is

difficult to determine in advance. It is advisable to ask for an up-front retainer to cover filing fees and the attorney time for preparation of initial pleadings, including a fee agreement with an estimate of fees.

The benefit of a small firm is the ability to offer flexibility in fee arrangements.

Some boutiques are able to give the flexibility of a flat rate (or hourly rate with a cap) for very simple probate matters where the estate is small.

For court appointments, the probate courts publish the standards for attorney’s fees. In guardianship matters and dependent administrations, fees are required to be approved by the Court if the fees are paid from estate or guardianship estate funds. For court appointed cases, the attorney will usually receive payment after the conclusion of the case, for service as an Attorney Ad Litem. In cases where an attorney is serving as an Administrator, invoices may be submitted to the Court for approval throughout the estate administration.

Guardianship Ad Litem in the Probate Courts Certification Video Now available for viewing in the HBA Office!

Approved for 4.25 MCLE credit including .75 hour of ethics. $70.00 for HBA members, $140 for non-members. *Meets the new certification requirements Call 713-759-1133 to schedule a viewing. *Your ad litem certification may be void. Effective Sept 1, the law now requires a 4-hour certification course, of which one hour shall be alternatives to guardianship. In addition all applicant’s attorneys must also be certified.

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Getting Clients. Referrals come from a solid personal and professional network: insurance agents, CPAs, financial planners, other attorneys, former clients, as well as family and friends. As a new practitioner, you should volunteer to speak about estate planning and probate to church and civic groups, professional organizations, and retirement homes. Also, get to know the Professional Care Managers where your clients may be receiving elder care.

A firm website and online presence is essential, and listing in directories is also good. Providing a “free initial consultation” often lends you a competitive advantage. Moreover, requesting an appointment as an attorney ad litem with the Probate Courts which have jurisdiction of probate and guardianship matters, highlights your profile. If chosen, you can learn the basics of probate, get to know the probate court staff and judges, and observe the work of other probate attorneys, and proceedings during the heirship and guardianship dockets.

Support Staff. If you need to keep your overhead low, hiring staff is not necessary when you first start. However, for estate planning, secretarial assistance is helpful in copying documents and sending documents to clients. Also, in estate administration matters, a paralegal can bill time to your client for tasks such as notices, affidavits and filings. Probate and estate administration requires unique knowledge and training.

Technical Areas. Areas that typically require a special expertise are tax-planned estates, which require tax code expertise, and litigating contested wills, which requires litigation experience.

Problem Solving. If you are a new attorney, you should seek the co-counsel or mentorship of another attorney to review your documents, especially in estate planning matters. Some boutique firms focus on contested matters. If you do not have litigation experience and have a highly

contested probate matter, you might consider bringing in a litigator as co-counsel.

If questions arise in your practice, your friends in the professional groups should be able to help. Here are some: Disability and Elder Law Attorneys Association (“DELAA”) www.facebook.com/groups/ DELAA/ meets monthly for a lunch and CLE; Attorneys in Tax and Probate (“ATP”) also has a monthly meeting with CLE and lunch; Houston Estate Planning and Financial Forum (“HEFF”) http:// www.houstonheff.org/ is a group of attorneys and other professionals in financial and estate planning and has a monthly networking lunch. National Academy of Elder Law Attorneys (“NAELA”) www. naela.org, which also focuses on Medicaid planning, meets annually.

Other Tips. Increasingly, clients may have a family member’s Will which was drafted by the client using an online service.

Unfortunately, there have been many instances where the family incurs more

expenses because of issues with the Will.

Potential clients may want to go the low cost route of do it yourself estate planning online. As a professional, you are providing more than a set of documents, but the personalized consultation necessary to ensure the needs of your clients are met without any future problems.

Workers’ Compensation Boutique Law Practice: Michael L. Sprain The author is president of Sprain Law Firm, and is board certified in Workers’ Compensation law by the Texas Board of Legal Specialization.

CLEs and Certifications: The best CLE is

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sponsored by the State Bar of Texas every August in Austin, called: The Advanced Workers’ Compensation Course. It is two days of expert advice, networking, and socializing with other attorneys. Also, it is good to be board certified by the Texas Board of Legal Specialization.

Forms and Resources. Workers’ Compensation claims are primarily adjudicated in the administrative courts, and all the forms are free and can be downloaded from the Texas Department of Insurance, Division of Workers’ Compensation’s website at www.tdi.texs.gov. Also, new practitioners should purchase either the Texas Workers’ Compensation Handbook, by Albert Betts, Jr. and Stuart D. Colburn, or the Texas Workers’ Compensation Manual, by Roy J. Leatherberry, IV, for advice and information.

Case Expenses and Billing. There is very little expense in handling an individual case. There are no filing fees in bringing a claim. Pursuant to statute, medical providers must provide medical records at no cost. Also, most doctors will testify at hearing via telephone for free or at greatly reduced prices, likely because unless the claimant prevails, the healthcare provider cannot treat the patient or get paid. Attorney time can vary widely from case to case. Hearings are an everyday occurrence, which means a lot of travel time.

Benefit Review Conferences are typically forty-five minutes, and Contested Case Hearings are scheduled for two hours.

However, it is possible for a hearing to last multiple days. Generally, most of the attorney’s time is spent preparing for the hearings: obtaining medical records, getting causation reports from healthcare providers, getting statements from witnesses and preparing clients to testify.

Attorney billing is regulated by statute.

Most claims are limited to attorney time at $150.00 per hour, and paralegal or assistant time at $50.00 per hour. These rates have not changed since 1991. Attorney’s fees are generally paid out of the Claimant’s benefits at no greater than 25 20

November/December 2015

percent of the weekly check. Payment in workers’ compensation claims can begin almost immediately if the Claimant is receiving benefits. Once you submit your fees to the Texas Department of Insurance, Division of Workers’ Compensation and get them approved, the insurance carrier will begin to deduct up to 25 percent from your client’s benefits until the bill is paid. If benefits are not being paid due to a dispute, hearings will have to be requested to resolve the dispute, and this can often take 3-6 months.

“

and ask to attend a few hearings with him of her. That way, the new attorney can get an overview of the process in action, including the technical areas. But, it is also an opportunity to get introduced to the typical decorum of the process, as well as the players -- to the opposing attorneys, hearing officers, benefit review officers, and other key division personnel.

The workers’ compensation community is a relatively small group, and it pays to know your way around.

If you do not have staff when you first start handling claims, you will learn each step in the claims process very well. If you do hire staff, it is good to get a paralegal with workers’ compensation experience.

Getting Clients. New practitioners should first focus on networking with other attorneys that do not handle workers’ compensation claims. Also, introduce yourself to doctors that treat workers’ compensation claimants. Many times doctors will refer clients to the lawyer when a dispute arises in the claim.

An internet presence is good, but watch the expense because it may not generate the returns desired on a case by case basis.

I recommend joining the Texas Workers’ Compensation Section of the State Bar of Texas. For a $25 yearly fee, you will obtain access to other attorneys in the field as well as a newsletter with current information affecting workers’ compensation claims and appeals panel updates.

Support Staff. If you do not have staff when you first start handling claims, you will learn each step in the claims process very well. If you do hire staff, it is good to get a paralegal with workers’ compensation experience. The experienced paralegal will know what forms are needed as well as when and how to file them.

Technical Areas. A new practitioner should contact an experienced attorney

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Problem Solving. The workers’ compensation field is a close-knit community. If you call an experienced workers’ compensation attorney you will typically get advice on how to handle your claim. You can also call the Texas Department of Insurance, Division of Workers’ Compensation at 1-800-252-7031, and ask for customer service. The Division cannot provide legal advice, but will be able to assist with general questions.

”

Other Tips. Read the Texas Labor Code and the Adopted Rules prior to taking on a claim. Also, a new practitioner should read current Appeals Panel decisions on the Texas Department of Insurance, Division of Workers’ Compensation website.

This will help you to understand what is currently being litigated and how the Appeals Panel interprets the Texas Labor Code and Adopted Rules.

Taunya Painter is is a business lawyer and a member of the Painter Law Firm PLLC. She is an Associate Editor of The Houston Lawyer. Jill Yaziji is the principal of Yaziji Law Firm, a civil litigation law firm. She is an Associate Editor of The Houston Lawyer.

Join the HBA 100 Club!

The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys

Horne Rota Moos LLP

Sprott Newsom Quattlebaum Messenger

Gardere Wynne Sewell LLP

Abraham Watkins Nichols Sorrels

Holm I Bambace LLP

Strong Pipkin Bissell & Ledyard LLP

Greenberg Traurig

Agosto and Friend

Hunton & Williams LLP

Stuart PC

Jackson Walker LLP

Adair & Myers PLLC

Irelan McDaniel

Sutton McAughan Deaver, PLLC

Martin Disiere Jefferson & Wisdom LLP

Ajamie LLP

Jackson Gilmour & Dobbs PC

Tekell, Book, Allen, and Morris, L.L.P.

Morgan Lewis & Bockius LLP

Bair Hilty, P.C.

Jackson Lewis LLP

Thompson & Horton LLP

Porter Hedges LLP

Baker Williams Matthiesen LLP

Jenkins Kamin, LLP

Thompson Coe Cousins & Irons LLP

Thompson & Knight LLP

Baker • Wotring LLP

Johnson DeLuca Kurisky & Gould, P.C.

Taunton, Snyder & Slade, P.C.

Winstead PC

The Bale Law Firm, PLLC

Johnson Trent West & Taylor LLP

The Ward Law Firm

Barrett Daffin Frappier Turner & Engel, LLP

Jones Walker LLP

Ware, Jackson, Lee, O’Neill, Smith

Firms of 100+ Attorneys

Berg & Androphy

Kane Russell Coleman & Logan PC

& Barrow, LLP

Andrews Kurth LLP

Bingham, Mann, & House

Kelly, Sutter & Kendrick, P.C.

Watt Thompson & Henneman LLP

Baker Botts L.L.P.

BoyarMiller

KoonsFuller, P.C.

Weinstein Tippetts & Little LLP

Bracewell & Giuliani LLP

Buck Keenan LLP

Kroger I Burrus

Weycer Kaplan Pulaski & Zuber PC

Norton Rose Fulbright US LLP

Bush & Ramirez PC

LeClairRyan

Williams Birnberg & Andersen LLP

Haynes and Boone LLP

Cage Hill & Niehaus LLP

Legge Farrow Kimmitt McGrath & Brown, L.L.P.

Williams Kherkher Hart Boundas, LLP

Locke Lord LLP

Campbell & Riggs, P.C.

Linebarger Goggan Blair & Sampson LLP

Willingham, Fultz & Cougill, LLP

Vinson & Elkins LLP

Chernosky Smith Ressling & Smith PLLC

Liskow & Lewis

Wilson Cribbs & Goren PC

Christian Smith & Jewell LLP

Lorance & Thompson PC

Wilson Elser Moskowitz

Corporate Legal Departments

Cokinos Bosien & Young

MacIntyre, McCulloch, Stanfield & Young, LLP

Edelman & Dicker

Anadarko Petroleum Corporation

Cooper Jackson & Boanerges, PC

McGinnis Lochridge

Wright Abshire, Attorneys, PC

AT&T Texas

Cozen O’Connor

McGuireWoods LLP

Wright & Close LLP

BP

Crady, Jewett & McCulley, LLP

MehaffyWeber PC

Ytterberg Deery Knull LLP

CenterPoint Energy

Crinion Davis & Richardson LLP

Morris Lendais Hollrah & Snowden

Zimmerman Axelrad Meyer Stern

El Paso Corporation

De Lange Hudspeth McConnell & Tibbets LLP

Nathan Sommers Jacobs PC

& Wise PC

Kellogg Brown & Root, Inc.

Dentons US LLP

Ogden Gibson Broocks Longoria & Hall, LLP

Zimmerman, Lavine & Zimmermann P.C.

LyondellBasell Industries

Dobrowski, Larkin & Johnson LLP

Ogletree Deakins Nash Smoak & Stewart, P.C.

Zukowski Bresenhan, Sinex & Petry LLP

MAXXAM, Inc.

Dow Golub Remels & Beverly LLP

Pagel Davis & Hill PC

Doyle Restrepo Harvin & Robbins LLP

Parrott Sims & McInnis, PLLC

Firms of 25-49 Attorneys

Plains All American Pipeline L.P.

Ewing & Jones, PLLC

Perdue Brandon Fielder Collins & Mott

Adams and Reese LLP

Rice University

Faubus Keller & Burford LLP

Perdue & Kidd L.L.P.

Ahmad, Zavitsanos, Anaipakos,

S & B Engineers and Constructors, Ltd.

Fernelius Alvarez & Simon PLLC

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Alavi & Mensing P.C.

Sysco Corporation

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

Andrews Myers, P.C.

Texas Children’s Hospital

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Reynolds Frizzell LLP

Akin Gump Strauss Hauer & Feld LLP

Total E&P USA, Inc.

Fizer Beck Webster Bentley & Scroggins PC

Roach & Newton, L.L.P.

Beck Redden LLP

University of Houston System

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

Ross Banks May Cron & Cavin PC

Beirne Maynard & Parsons, L.L.P.

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

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

Blank Rome LLP

Law School Faculty

Fullenweider Wilhite PC

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Edison, McDowell &

South Texas College of Law

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Hetherington LLP

Thurgood Marshall School of Law

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Schiffer Odom Hicks & Johnson PLLC

Gibbs & Bruns LLP

University of Houston Law Center

Germer PLLC

Schirrmeister Diaz-Arrastia Brem LLP

Littler Mendelson PC

Givens & Johnston PLLC

Schwartz Page & Harding LLP

Roberts Markel Weinberg

Government Agencies

Godwin PC

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

Butler Hailey PC

City of Houston Legal Department

Gordon & Rees LLP

Shannon, Martin, Finkelstein,

Seyfarth Shaw LLP

Harris County Attorney’s Office

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

Alvarado & Dunne, P.C.

Yetter Coleman LLP

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Short Carter Morris

Firms of 50-100 Attorneys

Relations Office

Hawash Meade Gaston Neese & Cicack LLP

Singleton Cooksey LLP

BakerHostetler

Metropolitan Transit Authority of

Henke & Williams

Smith Adams Law Feehan LLP

Chamberlain Hrdlicka White

Harris County Texas

Hicks Thomas LLP

Smith Murdaugh Little & Bonham LLP

Williams & Aughtry

Port of Houston Authority of

Hirsch & Westheimer PC

Smyser Kaplan & Veselka LLP

Coats | Rose

Harris County, Texas

Newfield Exploration Company

Harris County Domestic

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November/December 2015

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By Bruce Oakley

Growing a Small Office of a Large Firm

W

hen I became our office’s managing partner in early 2014, we were the small outpost of a 2500-lawyer global firm.

Hogan Lovells had been present in the Houston market for eight years at this point, and our global management was ready to begin the task of growing our Houston presence into a full-service office. Once we decided to expand, we faced several challenges. First, we needed to identify lawyers who are market leading practitioners, with the expertise and relationships to expand both the depth and breadth of our capabilities.

There is simply no substitute for quality, and we were determined not to dilute the quality of legal services our clients had come to expect from us. Second, we believed it was critical to identify lawyers who would fit well in our forwardthinking, client-focused culture. At its core, the provision of legal services is a customer service business. We are always mindful of that and take great pride in creating valuable solutions for our clients by fostering enduring partnerships with them, in which we focus intensely on their industries and deliver unique insight into the problems they face. Finding like-minded professionals was at the heart of our search. It was also critical to identify lawyers who share our citizenship values. Embracing diversity is important at every level of the law firm as is the need to demonstrate exemplary citizenship both locally and globally.

Due Diligence is Critical This is a universal challenge and should be a concern regardless of the size and scope of a firm. Whenever any attorney decides to form a partnership or invite new partners into their office, there is risk for cultural or interpersonal mismatch. Naturally, the smaller the practice, the more disruptive a single outlier can be. We were mindful of this dynamic, especially when we thought about our growth in terms of the pro-

portion of new attorneys to attorneys already present in our office. We realized that if any of the new partners became outliers, it could have a similarly drastic effect, and we were not willing to sacrifice our culture for the sake of growth.

As with any contemplated transaction, due diligence was critical. We therefore began the process of growing our office by spending almost a year searching for partners who were the right fit for us and our platform.

Though conducting our search in a timely manner was an important factor, we knew that we needed to remain disciplined and not let our short-term aspirations affect our process. In both our oil-driven Houston market and the broader national economy, booms and busts are a natural occurrence, and large lawsuits could settle any day just as high-profile purchases and sales could easily be scuttled. However, one of the few certainties in the legal profession is that, over time, quality work and quality relationships follow quality lawyers. Our goal, therefore, was to identify lawyers we could entrust with a stake in our business during both the high times of growth and tighter times of corporate austerity. The “who” mattered far more than the “when.”

Our other priority was finding attorneys whose practices were complementary to ours, but not redundant. The critical inquiry is asking whether your practices would make just as much sense separate as they would together.

Instead, our search focused on candidates who could cast their previous experiences and industry expertise as distinctly practical for current and potential clients. Having a law firm full of qualified and seasoned attorneys is a solid first step, but it’s not always enough to land the client or provide them with the best legal service. To trust that you truly can resolve their issues, clients want to know that you understand the specifics of their industry, their facts, or their liabilities. It

may mean little to nothing to them how many attorneys your office has who practice in the same field, when oftentimes they are more concerned that you have one or two lawyers who practice at the intersection of their specific legal needs.

arbitration practice in London; a leading Spanish speaking litigator who links nicely with our firm’s Mexico offices as well as our other offices in Latin America; and, an energy litigator with significant trial experience in Texas and First, throughout the U.S. Finding Unique Roles Although their expewe needed to for Partners rience is much more For our office, the stravast overall, what was identify lawyers tegic key is our dual important was that— focus on energy and in many ways—they who are market cross-border transacbroadened and deepleading tions and disputes. Evened our expertise in ery one of our attorneys a cohesive and complepractitioners, focuses their practice mentary manner. on these two often overThis principle of diwith the expertise lapping areas. We knew versification is applithat, to draw the best cable and beneficial in and relationships attorneys away from any legal field so long the historic appeal of as there is enough comto expand both indigenous Texas firms monality between the and boutiques, it was practices to justify their the depth and essential for us to highcollaboration.

Take, light the office’s shared for instance, immigrabreadth of our capabilities and its intion firms with both tegration into the fabric family-sponsored and capabilities. There of our firm. Therefore, investment-based visa is simply no we searched for attorexperts, or employment neys whose practices fit defense boutiques with substitute for under the energy and both FLSA class action international umbrelexperts and singlequality and we las, but then further diplaintiff discrimination versified our offerings. trial veterans. Comwere determined This strategy allowed us pared to immigration or to emphasize to potenemployment firms that not to dilute the tial partners that their are full of generalists in role in our practice their field, the firm with quality of legal would be unique, but a team of specialists the fit would be organic. with diverse practices services our clients Although not comwould have a broader plete, our search is payaudience in terms of had come to expect ing off. We ultimately potential clients, on from us. landed an intellectual top of being able to ofproperty partner with fer clients more tailored deep expertise in the energy industry service. both in the U.S. and abroad; an interNext, after identifying and recruiting national arbitration partner with dual those partners who fit within our culqualifications to practice in England ture and strategic platform, we shifted and the United States, fitting nicely our focus to their assimilation into our with our market leading international office and their integration into our

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firm. Transitioning into a new workplace inevitably comes with growing pains and so, during that phase of temporary discomfort, it was our priority that the new partners had the flexibility and support to become fully integrated.

The Importance of Non-attorney Professionals This process started, first and foremost, with our non-attorney professionals.

Their efforts often began with early

mornings and ended in late afternoons as they assisted in every aspect of the arrival—from unpacking boxes to running conflicts checks. The underlying goal was to minimize the administrative and logistical demands of joining a new firm in order to enable the partners to truly engage in their roles as leaders and owners of the business. Namely, they were able to maintain their managerial role over client matters they brought with them, while directing the remainder of

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their time towards meeting partners from other offices and developing new business opportunities.

Of course, there is no special formula on how to replicate our dedicated professional support. I can, however, offer two commonsense yet important tips: First, never underestimate the power of grace and gratitude. A sense of ownership is important from the top down and, when our non-attorney professionals were going above and beyond our expectations, it was important to acknowledge their contributions. It is their firm, too.

Their team-first attitude and investment in the firm was as central to the integration process as the attorneys’ efforts, and it should be acknowledged accordingly.

After all, their everyday efforts help us perform at our best and we should never overlook their contributions to the firm’s growth and the integration process.

Second, bringing new partners into the firm means bringing their practice into the firm as well. While their practice can sometimes be staffed by current support and associates, it often means that the partner will need to bring or hire assistance. It’s important to have the conversation about the scope of assistant, paralegal, or associate support the new partner expects because these expectations may impact your firm’s cost and capacity calculation.

Ultimately, we have doubled the number of attorneys in our office in a year, including four new lateral partners, three of whom are women. The integration process is well on its way, and it remains important to remember that the general lessons about culture and timing mentioned above apply, at all times, to the professionals and partners alike.

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Bruce Oakley is the managing partner of the Houston office of Hogan Lovells US LLP. He focuses on the litigation and arbitration of complex international disputes, primarily on behalf of clients in the energy industry. He is a former State District Judge.

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By Robert H. Ford

Transitioning from a Large Firm to a Small Office

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tarting your own law practice. We’ve all probably thought about it at one time or another, with varying degrees of seriousness. Some of you have probably pondered the idea as you received emails or professional announcements from friends and colleagues announcing their own departure from the safety and security of their current firms, in-house departments, or government jobs, to try their hand. Others may have secretly chatted about it with close friends and confidants with longing in their eyes as they all huddled around the firm coffee pot, drained from another all-nighter. And, for others, still, “hanging out your own shingle” was the whole reason you applied to law school in the first place, and it remains the dream unrealized— the final, missing piece to true professional fulfillment as a lawyer.

Whatever prompts you to consider taking the plunge, there is little denying that deciding to start your own law practice—either on your own or accompanied by a small “band of brothers”— is just that: a plunge. It is nothing short of a leap of faith into a vast unknown.

At the beginning of this year, I, along with my four law partners, took this plunge, and thankfully, our heads remain above water. As I look back on the first year of this exhilarating (and, at times, mildly terrifying) experience, I have gained some perspective. What follows are my humble musings on why—separate and apart from the benevolence of a higher power—our firm is still standing, and how yours can too.

Fail to Plan, Plan to Fail.

Yes, it’s a cliché. But, then again, most clichés are repeated because they have some measure of truth to them, and this one is no exception.

As a general rule, you can’t roll out of bed one day and start a successful law firm. You may want to, but you can’t. To assure yourself even a fighting chance, you must plan, and plan well.

You need to go to a coffee shop, sit down with a pen, a pad, and a latte, and weigh the pros and cons, as well as the magnitude, of what you’re considering. For me, this process initially took on the form of an inquiry-based selfassessment in which I asked myself all of the hard questions—the questions that yielded answers I didn’t like, and scarier still, questions that yielded no answers at all.

“Why am I considering leaving this firm to help start a new one?”

“Am I really yearning for something more than what my current job is giving me, or is this just a classic case of the ‘grass is greener’?”

“Is this the right group of people to try this with?”

“Where am I going to get clients from?” (Also known as, “How am I going to feed my family?”)

“Am I too young and inexperienced to do something like this?”

After asking yourself these existential questions in private, you and your group need to come together to begin discussing the logistics: “Where will we office, or do we even need a brick-and-mortar office at all?”

“What clients and matters are we confident will follow us, and will that be enough to keep the lights on and the doors open?” (This is, perhaps, one of the biggest gambles you will make.

The ethical rules preclude you and your group from soliciting your current firm’s clients, so you will have “to wait and see” whether the clients elect to follow you to your new shop.)

“What do we project our overhead will be?”

“Should we look into a line of credit?”

“How long should we expect to go without income as we pay for start-up expenses and wait for the first invoices to be paid?”

“What about the costs associated with computer systems (leasing vs. buying), software, malpractice insurance, Westlaw and O’Connor’s subscriptions, stationery, and designing a website?”

“Do we want to set up our firm as an (In our case, many of these questions LLP, PLLC, or P.C., and what are the tax proved much easier to answer because consequences of each?” we were blessed to have in our midst “How are we going to divvy up ownthe huge safety net of a senior partner ership interests in the firm?” who brought along both the business Your best resources and savvy to sustain us for answering these for the immediate fuWhatever nitty gritty questions ture.) will be folks that have Have you prepared fiprompts you to already done what you nancially—both in your and your clan are now personal lives and as consider taking trying to do. So, talk a firm—to be able to to successful solos and live without income for the plunge, there is small firms in your what may well be an exnetwork, and ask them tended period of time? little denying that these questions and Are the economic conothers. Also ask them ditions in your market deciding to start about the mistakes they ripe for the entry of a made and what they new firm? your own law would do differently If, after answering if they could press the these questions, you practice—either reset button and do it and your group are all over again. Have not left with warm and on your own or lunch with the inforfuzzies, then the timing mation technology venprobably is not right. accompanied by dors whose cold calls That said, as my law a small ‘band you used to blow off, partner, Murray Fogler, and ask them about all is fond of saying, “the of brothers’— of the costs associated perfect is the enemy with starting up a new of the good.” Nowhere is just that: firm. In other words, reis this truer than with search with your feet. respect to timing. If a plunge.

Leave nothing to you and your group are chance, and your chances waiting for the “perfect” will be vastly improved. time, then you’re going to be waiting for a long time—perhaps in perpetuity. In Timing Is Everything. deciding whether to start a law firm— Timing must be a key consideration in as with many opportunities in life, genyour decision to take the plunge. And, erally—the truth of the matter is that to a great degree, the timing will largethere is no “perfect” time. There is only ly depend on how you and your group the right time. have answered some of the questions above. For instance, do you and your Have Confidence in Yourselves colleagues feel like you have enough and Your Abilities. experience in the practice to strike out Finally, you and your group must be on your own? (If not, do you at least confident in who you are, both as enhave a trusted cadre of mentors whom trepreneurs and as lawyers—because if you can call upon in a crunch?) you’re taking the plunge, then you are Do you (or one or two of your colabout to become both. About two years leagues) have the ever-coveted “book ago, at an Inn of Court meeting, I heard of business” that will ensure your longDaniel Horowitz, a local trial lawyer in term sustainability and success?

Houston, speak on a panel. Daniel said

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something that has stuck with me ever since. He pulled his Texas Bar Card out of his wallet, held it up for everyone to see, and matter-of-factly declared: “the same day you got this bar card, you also got a license to open up your own business.”

At the end of the day, you and your group are not thinking about opening up a lemonade stand. You are thinking about opening up a law firm. And, if you’re thinking about opening up a law firm, you necessarily believe that what you have to offer is more uniquely valuable than lemonade, pork bellies, or some other fungible commodity. You necessarily believe that what you have to offer is something that your current and future clients need and what no other lawyer in town can give them: your uniquely superior counsel and legal acumen.

If you approach the plunge with this outlook, you will largely save yourself from the crippling fear-of-failure that most often deters lawyers from realiz-

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ing their dreams of starting their own firm. Now, don’t get me wrong. Your firm may in fact flop, and you may fall flat on your face in the process. But, that failure will not be the end of your journey. As Henry Ford put it, “[o]ne who fears failure limits his activities.

Failure is only the opportunity to more intelligently begin again.”

Rob Ford is a partner with the Houston litigation boutique of Fogler, Brar, Ford, O’Neil & Gray LLP. He is a trial lawyer representing both plaintiffs and defendants in an array of civil matters, including commercial disputes, construction cases, and energy litigation.

Houston Lawyers Who Made a Difference

E. E. Townes

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By The Hon. Mark Davidson

areers in the legal profession can help people in ways that can last for decades. One of the best examples of a lawyer who left a legacy that is varied, long-lasting and widespread is Edgar E. Townes, Sr. Townes was a lawyer who became involved in the oil industry when it was in its infancy in Texas. When his friend and client Ross Sterling decided to incorporate a business, he drew up the articles of incorporation and other initial corporate documents for Humble Oil and Refining Company. He would become the General Counsel and Vice President of Humble Oil, which today is known as Exxon. In that role, he directed teams that would develop hundreds of ideas to further oil exploration, and would help obtain the patents for those inventions. It is no exaggeration to say that the role of the State of Texas in energy production would not be what it has been and is today but for Townes.

The role of the industry in the history of

Courtesy of South Texas College of Law Archives, Fred Parks Law Library, South Texas College of Law/Houston.

the 20th Century made our way of life possible.

Townes also made an extremely significant contribution to the legal profession of our city. In 1923, a group of Houston lawyers thought that Houston needed a law school that would allow students who needed to earn a living during the day to have an opportunity

to receive a degree by attending night classes. Townes led the effort to create what became South Texas College of Law, and served as its dean from 1933 until 1960. He would guide the school through the financial challenges of the Depression, the shrinking student body during World War II, the explosion of students after the war, and the growth of the school that matched the growth of the city that was its home in the 1950s. He found outstanding judges and lawyers willing to teach at the school whose wisdom was imparted to their students and continues to guide the profession today.

To our nation, city and state, Townes’s legal acumen in energy law helped make his era part of “The American Century.” To the thousands of alumni of South Texas College of Law, his work has made their professional careers possible. To all that benefited from those accomplishments, E.E. Townes made a difference.

The Hon. Mark Davidson is an MDL judge and judge (retired) of the 11th District Court. His column for The Houston Lawyer focuses on Houston attorneys who have had significant impact on the law, the legal profession and those served by the law.

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By Stacey E. Burke

How to Make the Best Digital Marketing Choices

tion is your law firm website. Every other aspect of your digital brand will revolve around it, so it better be good. You should spend the money necessary to create a solid web presence, including professional photographs and a logo design with specific colors that will drive the rest of your digital aesthetic.

n today’s increasingly competitive legal industry, lawyers must recognize that marketing and business development are integral components to business success. Every law firm should establish, claim, and maintain a consistent digital brand that corresponds to its offline, real world practice style. The opportunities within the digital landscape are endless, leaving everyone from the solo practitioner to the bustling mid-sized boutique wondering how to find the time to learn enough about these opportunities to make informed decisions and hold vendors accountable.

While some law firms hire in-house marketing coordinators, others outsource everything to agencies specializing in legal marketing. No matter what decision your law firm makes, you need to take ownership and control over your own online presence so that no matter where you happen to move throughout your career, you can leverage your digital brand to bolster your practice. Acquiring and retaining consistent business for your law firm is necessary to be the best lawyer you can be.

1. Website When learning about a business or firm, most go straight to online search engines to locate the website and customer reviews. Potential new clients, referral sources, opposing counsel, insurance adjusters, judges, and more will all look at your law firm’s website to get a feel for who you are. Do you want to put a cheap and ugly digital face forward or do you want your website to serve as a gorgeous online brochure touting your best attributes?

Whether you are using your law firm website primarily as a reference point or as a lead generation mechanism, it is the most worthwhile investment you can make towards establishing your entity’s credibility. A few pieces of advice: (1) own your own domain name (www. yourlawfirm.com), (2) focus on the points of differentiation that make your law firm stand out from the competition, (3) keep your target audience in mind when designing and writing your content, and (4) always be sure to include the core pages that search engines look for, including “about us,” “lawyers,” “practice areas,” and “contact us.”

Good quality content lives at the core of all successful digital marketing strategies and your content will live primarily on your law firm website. Make sure that you understand how to write for both people and for search engines, ensuring that your audience can find your content online and, once they do, that they understand what you are saying.

The Five Basic Building Blocks of Digital Legal Marketing There are five main components to a solid digital marketing strategy. The founda-

2. Directories The Internet contains thousands of citations, directories, and other digital listings with both lawyer and law firm infor-

I

mation. These listings can include Avvo, Super Lawyers, Best Lawyers, Google My Business, Manta, and Martindale-Hubbell, just to name a few. When someone uses a search engine to find information about you or your law firm, the user generally only scrolls through the first few pages of search results. Digital citations will appear on the early pages of organic search results, so you should make sure that you claim them, build them out, and keep track of the login credentials.

Since these directory listings exist, you should use them to your advantage and be present in a meaningful way. While the importance and relevance of some listings varies by practice area, the best approach is to seek out all of your correct, incorrect, and duplicate listings on the most important sites. Then, remove duplicates, fix any name and/or contact information variations, and enhance the listings with as much information as possible. Your ultimate goal is to get listed in the top sources in your city and your practice areas.

3. Paid Search Advertising Search engine marketing is an umbrella that covers a variety of strategies, the most well-known of which is paid search advertising (also known as PPC or payper-click). Google’s primary original advertising platform, AdWords, has been around since 2000, when advertisers paid a monthly fee for Google to manage their ad campaigns. Since that time, AdWords has become self-service, and many lawyers have tried it out for themselves.

Google is not the only game in town.

Yahoo! and Bing collaboratively created the second-largest search engine advertising option, Bing Ads. Bing Ads is a service that provides pay-per-click advertising on both the Bing and Yahoo! search engines. While Google does control the vast majority of paid search advertising opportunities and the lion’s share of the digital audience, a law firm can become dominant more quickly, cheaply, and easily on the smaller but still effective Bing/ Yahoo! network.

Search engine advertising options have

expanded far beyond the text-based ads that appear above and to the right of organic search results. Some of Google’s newest features include various forms of remarketing, ad extensions, and the Google Display Network.

4. Search Engine Optimization Search engine optimization is one of the most important, yet one of the most commonly misunderstood, digital marketing phrases. Search engine optimization (SEO) is generally defined as improving a website’s ranking in organic, natural search results.

SEO starts with how your website is built. A poorly built website often cannot be optimized well. A number of website design and development factors can influence SEO, including page headings, page formatting, page load speed, the keyword ratio of your content, and metadata.

Various paid and free tools exist that reveal SEO-related data points, such as external backlinks, page rank quality, broken links, server errors, schema markup, and rank tracking. Whether or not SEO strategies will be effective depends upon a variety of factors including the level of competition for your target keyword phrases, geographic parameters, and the budget you must spend to have an impact.

5. Social Media Some marketing companies say social media is a waste of time and produces no measurable return on investment. While success on social networks does require an investment of time, the time will be worth it if you spend it wisely. Also, the success metrics for social media marketing are very different than those for other digital techniques like PPC. With social media, while link clicks are still extremely important, you must also measure key performance indicators for engagement.

The top three channels lawyers should use, in order, are LinkedIn, Facebook, and YouTube. Once you create these profiles, you must check them regularly for client communications and you should share and engage on them regularly to

increase both your digital credibility and your potential reach. The design and branding of your social channels should be consistent with your website and other digital properties, i.e. use the same professional photo from your website on your LinkedIn profile.

LinkedIn is primarily for professional networking, and every lawyer should have a profile and every law firm should have a company page. Every law firm should have a Facebook Page, but just one page not many pages. YouTube is linked to a master Google account and that account should be the Google My Business account referenced above under item two. YouTube is the second most used search engine in the world, so failing to be present keeps your law firm from reaching a lot of online traffic. Video puts a human face to your law firm brand. Posting client video testimonials, media coverage, and even your television advertisements to your firm’s YouTube channel all provide value. Additionally, each of these three social networks has its own advertising platform.

Lawyers Must Market Themselves to Survive, So Do It Well The legal services marketplace is more competitive than ever; and, if you do not take steps to both preserve existing valuable relationships and develop new ones, you will regret it! Make sure to have clearly defined goals, to measure your progress toward those goals, and to account for every marketing dollar you spend. Remember: if you are not actively hunting for new potential business, your law firm is missing opportunities to market its services in a meaningful way.

Stacey E. Burke is the owner of Stacey E. Burke, PC, a business consulting practice that works with law firms across the country on digital marketing, law firm branding, business development, and legal technology. Prior to her consulting career, she practiced personal injury litigation with Schechter, McElwee, Shaffer & Harris LLP of Houston, Texas and Watts Guerra LLP of San Antonio, Texas. www.StaceyEBurke.com.

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I New

By Warren W. Harris, Prof. Lonny Hoffman and Christopher V. Popov

Program to Celebrate Twentieth Anniversary of HBA Mentoring

n January 2016, the Professionalism Committee will substantially revise the HBA’s mentoring program. This new mentoring program is one of the presidential initiatives of this year’s HBA president, Laura Gibson. “The HBA has had a successful mentorship program since it was established in 1996. With the practice changing so dramatically and many recent law school graduates starting their own firms, providing guidance to our young lawyers has never been more important in preserving professionalism,” says Gibson.

The HBA launched its mentoring program in 1996 under the leadership of Justice Eugene A. Cook, who is often called the “Father of Professionalism” in Texas.

It is no accident that the program was established under the Professionalism Committee, since one of its main purposes was to promote professionalism in the practice of law. Twenty years later, substantial changes are being made to the mentoring program, but encouraging professionalism will remain one of the primary goals.

The mentoring program matches experienced attorneys with new lawyers recently admitted to the Texas bar. The practice of law is hard enough, but without guidance and input from others, it can be even more daunting. By facilitating these supportive relationships, the mentoring program aims to offer guidance to new lawyers as they start their careers. Through this guidance the program hopes to raise the competency and professionalism of the local bar.

The revised mentoring program will focus on promoting skills training, career development, and professionalism through positive mentoring relationships. The mentoring relationship also will be used to increase the new lawyer’s knowledge of legal customs and encourage involvement in the bar.

Mentors and mentees will be expected to meet regularly over the course of the year. The Professionalism Committee will provide programming specifically for the mentoring program that both

mentors and mentees can attend. For example, the January 20, 2016 kick-off breakfast for the new program will feature Kevin Dubose speaking on the topic of “Practicing Professionally is Not Just About Being Nice—It’s a Winning Strategy.” The Professionalism Committee also will work with the HBA sections in developing programming for mentors and mentees.

“In recognition of the significant demands on lawyers’ time, this year I asked the committee to create more organized activities where the content is provided by the committee to ensure that there will be periodic interactions during the year,” says Gibson. “It is my hope that by doing so, the relationships that develop will provide value not only to the mentees but also to the mentors.”

Though the program is open to others, priority in the mentoring program will be given to mentees who are licensed three years or less. Mentees must be licensed to practice law and must be a member of the HBA (keep in mind that first-year lawyers receive free membership in the HBA their first year).

The Professionalism Committee also hopes to expand the number of mentors and mentees participating in the program, with the goal of doubling the number of participants from last year. To achieve that goal, we need HBA members to agree to serve as mentors.

The Professionalism Committee seeks experienced lawyers to listen, provide guidance, and model ethical, professional behavior for new lawyers. Mentors should be licensed for five or more years and have a reputation for competence and ethical and professional conduct. Several of our new mentors are featured in this article. For more information about volunteering to be a mentor, please see box on page 25.

To be sure we are facilitating positive mentoring relationships, the Professionalism Committee is also developing a new system for monitoring the mentorship matches. Additionally, the committee will ask mentors and men-

tees to evaluate the mentoring program so that we can continue to refine and improve the program in the future.

We hope that all HBA members will participate in the new mentoring program.

Warren W. Harris is a partner at Bracewell & Giuliani LLP where he heads the appellate group. He is Secretary of the HBA. Prof. Lonny Hoffman is the Law Foundation Professor at the University of Houston Law Center where he teaches procedural law on federal and state courts.

Christopher V. Popov is a partner at Vinson Elkins LLP where he practices commercial and business litigation. He is a Director of the HBA. Harris, Hoffman and Popov are the co-chairs of the HBA Professionalism Committee.

Attorneys who are participating in the HBA’s new Mentoring Program share their insight on the importance of mentoring for young lawyers.

Teddy Adams “No one can navigate the practice of law alone. Without the people to help me learn how to deal with not only the substantive issues that we all face in practice but also with the political conundrums, I know that I would not have been able to accomplish much as a lawyer.”

to relate to a jury, and assist in the development of evidentiary arguments, cross-examination, and other trial techniques. In this age of the vanishing jury trial, the young lawyer must develop his or her skills through any means available, and mentoring can be an important component of that training.”

David J. Beck is co-founder and partner at Beck Redden LLP. He was named the 2015 Trial Lawyer of the Year by TEX-ABOTA. Beck is a former president of the American College of Trial Lawyers, former chair of the board of trustees of the Center for American and International Law, former chair of the Texas Supreme Court Historical Society and former president of the University of Texas Law School Foundation. He served as president of the State Bar of Texas in 2006-2007.

Winn Carter

Teddy Adams is a partner at Norton Rose Fulbright US LLP. He handles personal injury, mass tort, and commercial cases.

Adams is board certified in personal injury trial law.

“I have been fortunate to have had many mentors throughout my career who have had a significant impact on my development as a lawyer and as a professional. I dare say that I would not have enjoyed the success and fulfillment that I have received in my practice without my mentors’ commitment to my personal and professional development. I am convinced that it is our obligation as professionals to pay mentorship forward.”

David J. Beck “Particularly for a young trial lawyer, mentoring can be indispensible. For example, a mentor can teach one how

Winn Carter is a board certified (Civil Trial/Personal Injury Trial) trial lawyer with more than 30 years of experience litigating challenging, high-stakes corporate lawsuits. He has tried more than 100

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33

cases to verdict. As a trial partner, first with Norton Rose Fulbright, and now with Morgan, Lewis & Bockius LLP, Carter has worked with and mentored many young lawyers as they progress in their careers.

of lawyers in different practice areas. As one of the lead attorneys representing Enron in its historic chapter 11 case, she coordinated the multitude of attorneys and firms required to successfully resolve the myriad of issues presented by its financial collapse.

Melanie Gray ‘I remember vividly being a young lawyer and clueless about how to be a professional and take control of my own career advancement. I was extremely lucky to have a senior mentor and sponsor who is responsible for so much of my success. I feel obligated to pass that along!

Melanie Gray is a complex commercial litigation partner in Winston & Strawn’s Houston office with special expertise in complex commercial and bankruptcy litigation. She is known for efficiently managing diverse teams

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Rusty Hardin “There is nothing more important to the continuity of the legal profession in the State of Texas than the development of young lawyers. Spending time with young lawyers, understanding their concerns, and sharing insights regarding the practice of law has been a very rewarding experience for me.”

Rusty Hardin has more than 40 years of litigation experience since beginning his career as an assistant district attorney for Harris

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County in 1975. Since establishing Rusty Hardin & Associates in 1996, he has tried over 70 jury trials with clients as varied as Arthur Andersen; Dow Jones; the J. Howard Marshall II estate; Exxon Mobil Corporation; Rice University; Las Vegas Sands; and a lengthy roster of professional athletes.

He also served as chief trial counsel for Independent Counsel Robert Fiske and his successor Kenneth Starr in the Whitewater investigation.

Lynne Liberato “None of us are born knowing how to succeed. Few things nudge us down the path to success more effectively than a strong mentor-protégé relationship.”

Lynne Liberato is a partner and executive committee member at Haynes

and Boone LLP. The first woman president of the HBA, Liberato was later elected president of the State Bar of Texas. She has been active in the United Way of Greater Houston, where she was the first practicing lawyer to serve as community campaign chair.

Liberato was also the chair of its board of trustees and named Volunteer of the Year. She is a board certified appellate lawyer, and counts among her greatest honors arguing to the U.S. Supreme Court.

Ann Barnett Stern “Mentors have made all the difference in my life. A good mentor can dramatically accelerate development by providing direct access to real-time, real-world counsel, and by creating a safe place to learn and grow. The best mentors care about you both personally and professionally, investing time to listen and advise, encourage and challenge. Mentor-mentee relationships can be powerful and transformative experiences.”

MENTORS NEEDED The Professionalism Committee is looking for mentors for the new mentoring program.

Mentors must meet the following requirements: • Licensed in Texas for at least five years; • Have a reputation for competence and ethical and professional conduct; • Be a member of the HBA; • Commit to meeting with your assigned mentee for one hour per month; and

• Never have been suspended or disbarred from the practice of law in any jurisdiction, never have voluntarily surrendered your license to dispose of a disciplinary proceeding, not have been sanctioned in any jurisdiction in the preceding ten years, and not currently have a disciplinary proceeding pending.

To volunteer as a mentor, contact Ron Riojas at ronr@hba.org or 713.759.1133.

s erforming Art P e th r fo ty Socie

Season • !

2015-2016 S T F I G G R E AT E K A M ENON M • TICKETS O N E H THE P E C N E I R EXPE

Stern is president and CEO of Houston Endowment, a private philanthropic institution which works with leaders across the community to improve quality of life for the people of greater Houston. With assets of over $1.7 billion, the Foundation makes grants to nonprofit organizations total- SOCIETY FOR THE PERFORMING ARTS Bringing the World’s Best to Houston tions, LLC. ing approximately $85 million each year Man Produc spahouston.org 2015 Blue dsey Best © Lin : oto Ph s in five areas: Arts & Culture, Education, nes Hall Environment, Health and Human ry 15-17 l Jo a u n Ja y, a 72 d Services. Houston Endowment has Friday - Sun 713.227.47 a rich legacy of addressing some of .632.8113 ore call 713 m r o 5 1 f o Houston’s most compelling needs, and Groups today continues efforts to create a vibrant community where all have the THE HUMPHREYS FOUNDATION opportunity to thrive.

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At the Bar

Teaching the Importance of Jury Service Cleaning Up Kuhlman Gully

The HBA Lawyers Against Waste Committee sponsored a clean-up at Kuhlman Gully in Gragg Park on November 14. There were 76 volunteers who picked up trash, cleared items from the gully, and helped build a kayaking trail down this Houston bayou.

On September 24, the HBA Speakers Bureau kicked off the 10th anniversary of its program that teaches high school seniors about the jury system and the importance of exercising their right to serve on a jury. Judge Robert Schaffer hosted the event in his 152nd District Courtroom. Randy Sorrels, former HBA president who started the jury service program, along with attorney Thomas Locke, took students from Incarnate Word High School through a mock voir dire. Joining them to talk about jury service were, front row from left, Speakers Bureau Co-chair Lavonne Hopkins, HBA President Laura Gibson, Harris County District Clerk Chris Daniel, and Speakers Bureau Co-chair Demetri Economou.

Doctors, Lawyers Team Up for IDEA Program

Attorneys and members of the medical profession teamed up to teach 5th graders about the legal and medical consequences of drugs and alcohol on growing minds and bodies during the IDEA program, held October 27 in 16 elementary schools throughout Houston.

Pictured here are the teams of Dr. Christina Smith and Sammy Ford of Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, and Dr. Amarillis Vega and Joel Fine, attorney at law.

Celebrating Pro Bono Week The Houston Lawyer

Houston’s corporate general counsels showed their support for pro bono legal services by attending an October 26 breakfast and legal clinic at the Houston Area Women’s Center to commemorate National Pro Bono Week, Oct. 25-31. Houston City Councilmember Oliver Pennington presented a proclamation to HBA President Laura Gibson, and Harris County Commissioners Court also proclaimed it “Make Justice Happen Day in Houston.”

The HBA and its Houston Volunteer Lawyers planned a number of events and legal clinics to increase awareness of pro bono services and to recognize volunteers.

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Veterans Week Activities Serve Those Who Serve

The HBA and its Houston Volunteer Lawyers sponsored legal clinics and information booths to increase awareness among veterans of the services available through the Veterans Legal Initiative. Pictured here are Andrew Lehmann, attorney in charge of the VLI, along with HVL attorney Lisa Windsor at a booth on November 11 at the citywide celebration, Houston Salutes American Heroes.

A Profile

in pro f e s s io n ali s m

Travis J. Sales Partner, Baker Botts L.L.P.

Jim Sales, and Wayne Fisher, Ralph Carrigan, Richard Josephson, Ron Krist, Bob Malinak, and others. As I enter my 28th year of practicing law, truisms I heard from them as a young lawyer seem even truer today.

That integrity means doing the right thing when no one is looking. That it takes years to build a good reputation but only a day to wreck it. That you’ll never regret taking the high road. That your word is your bond. And that lawyers are uniquely privileged to have a license to help others with legal problems.

In that regard, providing pro bono legal service to those in need is the foundation of our professionalism. Recently, helping a sick veteran at the VA Hospital with his last will and testament reinforced that to me. I am proud to be part of a generous and professional group that helps people solve problems. I am proud to be a Houston lawyer.

The Houston Lawyer

A

s lawyers, we face the constant question of whether the practice of law is a profession or a business. In today’s competitive legal market, the pressure to produce to the bottom line drives many to believe the old adage of “the law is a noble profession” no longer applies. That need not and ought not be the case. Indeed, professionalism and successful business results should be and most commonly are complementary, not mutually exclusive.

While there are exceptions, clients expect their lawyers to be zealous advocates, but to do things the right way, to be honest, and to give back to the community.

Gaining clients’ trust and admiration is good business.

I have been blessed to have wonderful role models in the practice of law and in life. Lawyers who exemplify the “noble lawyer.” Lawyers like my father,

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OFF THE RECORD

The Hon. Nile Copeland and

His Fountain Pen Collection

By The Hon. Josefina Rendón

“To sit at one’s table on a sunny morning, with four clear hours of uninterruptible security, plenty of nice white paper, and a pen— that is true happiness.”

–Winston Churchill

years, his graduation gift sat “treasured but unused,” he said. He did not know anything about fountain pens until a bit over eight years ago when he ventured into Dromgoole’s looking for ink. That was where he was introduced to the “pen” community. ike Winston Churchill, Houston Municipal Judge Nile When asked about his favorite pen, Judge Copeland cannot pick Copeland shares a love for just one because he has many favorites. pens; not just any kind of pen, However, two manufacturers stand out: but fountain pens. In fact, most Danitrio, which makes Japanese hand Saturdays you are likely to painted pieces of art, and David Oscarsee Judge Copeland at the hangout for son, who makes Faberge egg style interHouston’s premier fountain pen lovers, pretations on pens. “David’s pens are full Dromgoole’s Fine Writing Instruments of symbolism and sentiment and are just and Stationery (known to locals as simstunning,” he says. ply, Dromgoole’s). With him, having cofJudge Copeland says that his collecfee and chatting about fountain pens or tion of about 20 pens is relatively small. current events, you will find people of all Besides his original Waterman, he has professional walks of life who share the Oscarsons, Viscontis, Mont Blancs, same passion.

Danitrio and a 1930’s Pelican. But his Surprisingly to some, this is a rather collection is growing, as his wish list inpopular hobby. Within the Houston cludes: “the newest Oscarson’s Fleming Judge Nile Copeland’s pen collection began with a graduation legal community, you will find Judge gift from his mother. Judge Copeland is hard pressed to name and the JFK by Mont Blanc.”

Copeland as well as Federal Immigra- a favorite pen, but says that a few manufacturers stand out.

For a fountain pen aficionado, the ink tion Judge Richard Walton, and attorneys Ben Hall, Jim Mulder, is almost as important as the pen, and Judge Copeland has over Jay Paxton, Jim Levine, James Kennedy, Steven Watkins, Kent one hundred bottles of ink, a small collection compared to othSchaffer, Norm Silverman, Neil Davis and many others. Many ers. “The hard part is finding the color you love,” he says. “I prephysicians also frequent the down-to-earth establishment close to fer red inks but not just red, I like dark reds. My favorite ink is Houston’s Medical Center. In the past, a well-known collector and Mont Blanc’s Alfred Hitchcock blood red.” Why so many? “It’s like Droomgoole’s customer was heart surgeon Dr. Michael DeBakey. a mood for an artist… today you may like a light blue, tomorrow a Nowadays you will often see Dr. Stephen Pustilnik, a pathologist grey; the day after, you may feel like a wonderful bright blue. You also known as “the Pen Doctor,” who can adjust pens’ nibs to fit choose the color that you are going to paint with today.” users’ writing styles.

Judge Copeland adds that, “as an attorney, fountain pens force It is not just socializing and sharing the love of pens with othme to pause and realize the importance of the documents that we ers that makes Judge Copeland’s hobby so enjoyable. “For some, sign and take more pride in our own signature.” He adds, “It seems it’s the smell of the ink. For others, it’s the connection with hissilly to think I would find enjoyment in writing by using a fountain tory,” says Judge Copeland. His love of fountain pens comes from pen. Fountain pens are messy, expensive, and obsolete. Yet they what he perceives as “the tactile ‘scratch’ of nib across paper and represent civility, refinement, patience, attention to detail, and style. how writing with a fountain pen forces you to slow down ever so John Hancock’s signature is the essence of American style.” slightly.”

Judge Copeland’s love for fountain pens began with a graduaThe Hon. Josefina Rendón is a mediator and Associate Municipal tion present from his mother. It was a Waterman, a classic luxury Judge in Houston. A former Civil District Judge and 1976 graduate of fountain pen created by one of our country’s first pen manufacturthe University of Houston Law Center, she is a member of The Housers that has been in the business since 1884, in New York City. For ton Lawyer editorial board.

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November/December 2015

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LEGAL TRENDS

Texas Supreme Court Protects Arbitration Provisions in Attorney-Client Employment Contracts

By Kimberly A. Chojnacki

The Houston Lawyer

I

n Royston, Rayzor, Vickery, & Williams, LLP v. Francisco “Frank” Lopez, Nos. 131026, 14-0109, slip op. (Tex. 2015) the Supreme Court addressed the enforceability of an arbitration provision in an attorney-client employment contract. Frank Lopez hired Royston to represent him in a divorce proceeding. Lopez and Royston entered an employment contract with an arbitration provision that excluded “any claims made by the firm for the recovery of its fees and expenses.” After a mediated settlement, Lopez sued Royston, claiming the firm induced him to accept the settlement. The trial court denied Royston’s motion to compel arbitration and Royston appealed.

The court of appeals affirmed the trial court, concluding that the arbitration provision was so one-sided that it was substantively unconscionable and unenforceable.

Royston filed an interlocutory appeal challenging the denial under the Texas Arbitration Act and an original proceeding for relief under common law.

The Court considered and rejected three bases for holding the arbitration provision

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unenforceable: unconscionability, public policy, and illusory.

In considering unconscionability, the Court reaffirmed myriad aspects of arbitration provisions under Texas law. First, regardless of whether substantively or procedurally unconscionable (or both), the burden rests on the party opposing arbitration to prove unconscionability. Second, arbitration provisions in attorney-client employment contracts are not presumptively unconscionable; even prospective clients bear the burden to prove a defense to the provision and are “deemed to know and understand its contents and [be] bound by its terms.” Third, challenges to arbitration provisions must be based on the arbitration provision alone. And finally, specifically excluding certain disputes—even only one party’s claims—from an arbitration provision does not make it “so one-sided as to be unconscionable.” In light of these axioms, the Court rejected Lopez’s unconscionability argument.

At the outset, the Court acknowledged that arbitration provisions in the attorneyclient context implicate competing public policies: “the policy of holding attorneys to the highest level of ethical conduct and the policy of encouraging and enforcing arbitration agreements.” Nevertheless, the Court rejected Lopez’s assertion that an opinion of the Professional Ethics Committee—advising that attorneys should thoroughly explain the pros and cons of an arbitration provision in a fee agreement—shifted the burden to Royston to show it adequately informed Lopez accordingly. The Court noted that neither the Disciplinary Rules nor opinions of the Professional Ethics Committee are binding, although they do inform the scope of an attorney’s obligations. As the Court explained, the sanctity of the freedom of contract places the onus on each contracting party to determine its terms.

Absent “compelling reasons,” a Texas court should be loathe to change those terms. And given the Texas legislature’s specific intent to treat arbitration provisions the same as

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other contracts, the Court did not find any such “compelling reasons” to treat arbitration provisions in attorney-client employment agreements any differently.

Finally, the Court briefly noted that the arbitration provision was not illusory merely because it excluded potential claims that only one party—Royston—would have. As the Court explained, even in such a “onesided” arbitration provision, Royston still was required to arbitrate every other claim it may have against Lopez. Because Royston could not legitimately avoid this promise, the provision was not illusory.

The Court reversed the judgment of the court of appeals and remanded the case to the trial court.

Kimberly A. Chojnacki is an associate of Dow Golub Remels & Beverly, LLP and practices commercial litigation. She is a member of The Houston Lawyer editorial board.

Upcoming Changes to the Federal Rules of Civil Procedure

By Heaven Chee

I

n April, the U.S. Supreme Court submitted proposed amendments to the Federal Rules of Civil Procedure.1 Absent Congressional action to reject or modify these proposed amendments, they become effective on December 1, 2015 for all newly filed actions, and will likewise apply to currently pending actions to the extent that their retroactive application is

LEGAL TRENDS

“just and practicable.”

Amended Rules 4, 16, 26, and 34 will arguably affect the most significant changes in day-to-day litigation practice. But, if their implementation is as successful as the Rules Committee envisioned, these Rules should greatly benefit parties by alleviating the costs and delays associated with litigation.

The amended Rules’ efficiency gains result from both accelerated early litigation deadlines and stricter requirements that parties clearly articulate, or at least contemplate, their discovery requests and responses.

Accelerating Early Stages of Litigation Amended Rule 4(m) shortens the time period plaintiffs have to serve defendants from 120 days to 90 days. Combined with the amended Rule 16, which shortens the windows courts have to issue a scheduling order after any defendant has been served to 90 days (from 120 days) or after any defendant has entered an appearance to 60 days (from 90 days), these Rules have the potential to significantly reduce any lulls in early litigation. The amendments require plaintiffs to prosecute their claims more intentionally and encourage courts to begin case management sooner. But notably, courts retain the discretion to extend time for service to “an appropriate period” or to delay the issuance of a scheduling order if “the judge finds good cause for delay.”

Additionally, under Rule 26(d)(2), parties are now permitted to serve early Requests for Production before the court holds the Rule 26(f) conference, provided that 21 days have passed since the defendant was served. The Advisory Committee Notes indicate that these early request exchanges should enable parties to use the Rule 26(f) conference as both a scheduling and a preemptive discovery dispute hearing, as the Rule will “facilitate focused discussion during the Rule 26(f) conference.”

Refining the Scope of Discovery Requests and Objections In order to clarify the parties’ duties and

documents or information. Parties should limitations during discovery, Amended instead cooperate to weigh the benefits Rule 26 eliminates the notorious phrase and burdens of discovery “reasonably calculated to and should consider comlead to the discovery of In drafting the promise solutions, such as admissible evidence.” Inshifting discovery costs to change, the Advisory stead, the new Rule 26(b) the requesting party. On (1) reads: Committee observed the other hand, if a conflict “Parties may obtain arises, parties should be discovery regarding any that the former prepared to articulate their nonprivileged matter that insistence on or resistance is relevant to any party’s language has been to the requests based on claim or defense and proused ‘incorrectly’ to these proportionality facportional to the needs of tors. the case...” expand the scope In that same vein, In drafting the change, amended Rule 34(b)(2) the Advisory Committee of discovery beyond (B) now bars the asserobserved that the former its intended limitations. tion of any boilerplate language has been used objection in responses to “incorrectly” to expand Eliminating the Requests for Production the scope of discovery beyond its intended limioften-misused language by requiring the objecting party to state “with tations. Eliminating the makes unambiguous specificity the grounds for often-misused language objecting.” Further, under makes unambiguous parparties’ long-standing amended Rule 34(b)(2) ties’ long-standing duty to (C), parties resisting dis“guard against redundant duty to ‘guard against covery will be obligated to or disproportionate discovredundant or disclose whether they are ery.” The Committee Notes withholding any responcontemplate that parties disproportionate sive materials based on and the court will share “a objections. The disclosure collective responsibility to discovery.’ should be sufficient to put consider the proportionalthe requesting party on notice of responity of all discovery” based on six factors: sive, withheld documents “to facilitate an 1. The importance of the issues at stake informed discussion of the objection.” A in the action; formal privilege log-like disclosure is not 2. The amount in controversy; required.

3. The parties’ relative access to relevant information; Heaven Chee is an associate in Hogan 4. The parties’ resources; Lovells US LLP’s Litigation, Arbitration, and 5. The importance of the discovery in Employment Section and a member of The resolving the issues; and Houston Lawyer editorial board.

6. Whether the burden or expense of the proposed discovery outweighs its Endnote likely benefit.2 1. 575 U.S. Though this column focuses on changes With both self-policing and active case to Rules 4, 16, 26, and 34, the Supreme Court also management necessary to implement the approved and proposed amendments to Rules 1, 30, 31, 33, 37, 55, and 84.

Rule meaningfully, the Committee warns 2. With the exception of “the parties’ relative access parties against asserting boilerplate proto the relevant information,” these factors were previously enumerated in former Rule 26(b)(2). portionality objections in order to withhold

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Media Reviews

From the Trenches: Strategies and Tips from 21 of the Nation’s Top Trial Lawyers Edited by John S. Worden ABA Publishing, Solo, Small Firm and General Practice Division, 2015 Reviewed by Taunya Painter

The Houston Lawyer

Y

es, you can begin an opening statement to a jury this way: “The parties, Mr. Smith and Mrs. Jones, signed a contract on May 18, 2010, and now, Mr. Smith won’t live up to his side of the bargain.” However, a better way, even for a simple contract dispute, is to start with a story: “Three years ago this month, Mr. Smith flew to Houston to meet with Mrs. Jones about business.

Mr. Smith told Mrs. Jones his company could provide her company with uniforms for her 400 Houstonbased employees. They sealed a one-year deal over lunch at Irma’s in downtown, just a few blocks from here. That evening, when Mr. Smith was on his way to the airport to go back home, he got an email from Mrs. Jones congratulating him on the deal and looking forward to doing business with him. Today, three years later, Mr. Smith denies that the contract ever existed.”

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This is just a small sampling of advice you will get from the new book, “From the Trenches,” published by the American Bar Association’s Solo, Small Firm and General Practice Division. The editor, John S. Worden, brings together advice of 21 of the nation’s top trial lawyers and judges.

The contributing authors provide tested and proven advice on the fundamentals of trial tactics, such as how to develop a narrative and to weave in stories to capture the jurors’ attention. But the book has so much more to offer, covering virtually every aspect of trial.

One chapter is devoted to the power of trial visuals. The author, W. Scott O’Connell, declares, “The one with the best pictures wins!” By that statement, though, he starts a thorough explanation with many visual examples of how to persuade jurors on all levels–the character and credibility of your witnesses, the logic and reason of your arguments, and the emotional appeal of your client’s story.

O’Connell touches on how people’s use of technology and videos impacts their decision-making and suggests that jurors will be more apt to listen and be influenced by multi-media. It does not, however, have to be super sophisticated and expensive. He offers pages of visuals with simple changes that can enhance greatly the character and power of the visual. One such example is a map showing the property of the plaintiff and the property of the defendant, with some disputed property in between. In black and white, it is busy and confusing, but color changes everything. While adding the color does not resolve the dispute, it immediately frames the dispute in ways not accomplished with words or with black and white. O’Connell goes through visuals that he used in actual complex commercial cases he tried. Time after time, it is easy to see how he took complex

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financial concepts and used the visuals first to educate his jurors, and sometimes to persuade.

A particularly interesting chapter is the last one, “Feeding Lions during Closing Argument.” The “lions” as it turns out are the leaders in the jury. The author of the chapter, John Jerry Glas, identifies them as the ones that will persuade, lead, and convince others once the jury deliberation door has been shut. Our system encourages them. It says that to answer “yes,” they must serve up a certain number of votes.

So based on this system, Glas advises against a general regurgitation of your case and against a summary of your arguments.

He says to talk to the lions–feed them what they need to convince their fellow jurors.

For exhibits, tell the lions which visuals are most important, and clearly mark them so the jurors know how to get them.

Do not force them to comb through stacks of three ring binders. Glas even suggests making a folder labeled “closing argument exhibits” that you give to the clerk, if the judge will allow it. Also, arm them with easy timelines and checklists. By writing them down as you speak, you are encouraging them also to write them down. Help them visualize in their minds the elements of the case and if the burden of proof was met. Glas, in his chapter of the book, provides trial lawyers with just the right amount and cuts of meat to feed the lions.

The conclusion of the book is particularly instructive: “It has become fashionable for lawyers at cocktail parties to boldly declare that trials are ‘over’ by the end of voir dire or opening statement. That nothing you say or do during the [presentation of your case or] your closing argument will change the outcome of the trial.

Do not listen to them. They are not your friends.”

Taunya Painter is a business lawyer and a member of the Painter Law Firm PLLC. She is an Associate Editor of The Houston Lawyer.

Media Reviews

From Law School to Lawyer

By Jonathan D. McDowell ABA Publishing, Solo, Small Firm and General Practice Division, 2015 Reviewed by Al Harrison

I

n his book From Law School To Lawyer, Jonathan D. McDowell has delivered a handy Rosetta stone not only for former law students who’ve just passed the bar exam, but also for new lawyers five years or less from obtaining their law license. As a young lawyer with a few years’ experience, McDowell empathetically and comprehensively describes the legal landscape for new lawyers subsumed into “tools, procedures and steps” inherent in growing a meaningful law practice. Key concepts revealed to readers walking through this effective elucidation of the nature of becoming a legal professional might be characterized as “preparation” and “expectation.” The approach to sharing his experience and discoveries is to commence each chapter with the prefix, “What to Do When.”

For instance, in the first chapter, entitled “What to Do When ... You Are Starting Your Firm,” the author advises new lawyers to focus upon three practice principles or “themes”: (1) being humble; (2) acquiring knowledge; and (3) taking a leap of faith. These themes underlie the “why” and, indeed, enable understanding of the teachings and recommendations that permeate the book’s 200 pages. And, in the author’s words, “[a]t every turn in your life and

law practice, whether as a solo practitioner or [as] the litigation department chair of the biggest firm in the world, your success largely depends upon” application of these three principles.

Having laid this fundamental foundation for establishing a law practice and concomitant reputation as a lawyer, he then moves to more concrete advice in the next three chapters. Chapter 2 is entitled “What to Do When ...

You Are Writing Your Business Plan” and presents a threefold focus: business overview, services to clients, and marketing plan. The next two chapters concentrate upon an essential aspect of law practice: clients. Chapter 3 is entitled “What to Do When ... You Don’t Have Clients” and Chapter 4 is entitled “What to Do When ... You Meet Your First Client.” The author’s clear message is that it’s all about the clients.

To promote effective person-to-person networking, the author suggests routine use of the “5-Question Rule.”

When contemplating what to contribute to a conversation at least five questions should preferably be based upon statements or comments already made by another person involved in the conversation. The author’s theory for invoking this networking approach is “We humans like talking about ourselves and subconsciously like people better who get us to talk about things we know. It makes us feel good to blather on about ourselves and we’ll enjoy the conversation.” Before parting company, it is recommended to exchange business cards and to follow up with a brief note or email shortly thereafter.

After addressing start-up issues including challenges associated with obtaining initial clientele, the book focuses upon actual law practice issues such as preparing and commencing the first lawsuit (Chapter 5), filing a federal pleading (Chapter 6) and a case being removed from state court to federal

court (Chapter 7), engaging in discovery (Chapter 8), preparing for mediation (Chapter 9), and preparing for appeal (Chapter 10).

Chapter 11, indicative of the author’s insight into and anticipation of “slings and arrows” seemingly unavoidable in early law practice, is devoted to “What to Do When...You Hate Practicing Law.” At first blush, this chapter title is an attention-grabber, albeit rather shocking. It is not intended to diminish a new lawyer’s excitement and enthusiasm for his or her forthcoming law practice, but actually is intended to be an early warning if the practice of law has become characterized with depression rather than satisfaction. Because of constant pressure to perform to clients’ satisfaction, the author notes that the legal profession has a relatively high incidence of depression, with 15-20% suffering alcoholism or substance abuse.

Recognizing that every lawyer’s path will be different, a constructive, if not essential, approach is to “Don’t Worry, Be Happy.” That is, when an attorney is feeling “down” much more frequently than feeling “up,” then the author’s advice is to promptly attempt self-help by striving to convert Negative Self-Talk into Positive Self-Talk. Examples of this critical self-help strategy implemented by the Mayo Clinic are tabulated, for convenience, with the objective of preventing depression-related problems from undermining an attorney’s lifestyle and possibly becoming life-threatening.

From Law Student to Lawyer should prove to be an invaluable guide and a virtual mentor for newly-minted attorneys.

Al Harrison is a patent attorney practicing intellectual property law with Harrison Law Office, P.C. and has been a long-time member of The Houston Lawyer Editorial Board.

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Give of Yourself by Giving The Gift of Justice From page 6

instead of time. Lest that you think that your pocketbooks are lighter due to challenges in the profession or the downturn in the oil and gas market, please remember that lawyers are very fortunate to be highly compensated when compared to the rest of the population.

In 2013, US News & World Report showed that lawyers earned an average annual salary of just under $132,000, which is substantially more than any other occupation in the social services category.

In 1982, the HBA established the Houston Bar Foundation (HBF) as its charitable arm. With a pledge of $2,500, which can be paid 10% per year over ten years or in lump sum if preferred, you can become a Fellow of the Houston Bar Foundation. Donations to the Foundation are tax deductible. The Foundation has accumulated an endowment which, along with annual Fellow receipts and the proceeds of the annual Harvest Celebration, is used to fund the pro bono activities of the HVL. The demand for pro bono services in Houston is significant. We estimate that there are more than 500,000 people in Houston who are eligible for immigration relief. The HVL also works with the Texas Children’s Medical Legal Partnership to provide legal services to families of children obtaining treatment through Texas Children’s Hospital. Legal services for veterans are provided through the Veterans Legal Initiative established under Travis Sales’ presidency. Other programs serve people with HIV/AIDS and disabilities, and self-help clinics are provided for those who want to represent themselves in certain family matters. And there is always a need for more attorneys to handle family matters for low-income families.

The Houston Bar Foundation will be launching its Fellows campaign in January. If you are interested in becoming a Fellow, please call Kay Sim, Executive Director of the HBA and HBF, at 713-759-1133.

Sylvia Mayer

Attorney, Mediator & Arbitrator

The Houston Lawyer

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6 6 0 X Sept. 29, 2015

Bi-monthly 6 Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, Harris County, TX 77002-2592 Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, Harris County, Texas 77002-2592

$12.00 Tara Shockley 713-759-1133

Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, Harris County, Texas 77002-2592 There is no staff editor for this publication Tara Shockley, Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, Harris County, Texas 77002-2592

Houston Bar Association

1111 Bagby St., FLB 200, Houston, TX 77002-2592 x

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The Houston Lawyer

July-August 2015

Attorneys who are members of the associations

10,800 10,600

630 619

8,925 8,837

0 0

0 0

9,555 9,456

192 185

765 757

0 0

0 0 957 942 10,512 10,398 288 202 10,800 10,600 90.89% 90.94%

0 0 9,555 9,456 10,512 10,398 90.89% 90.94%

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Nov-Dec 2015 09/29/2015

713.893.0339 smayer@smayerlaw.com thehoustonlawyer.com

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