Changes in the Litigation Landscape: New Laws from the 2011 General Session Legal Ethics: Year in Review The Ethical Challenges Facing In-House Counsel Will You Be My Friend? Ethical Issues in Social Networking The Ethical Minefield of E-Discovery
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THE HOUSTON
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Volume 49 – Number 3
November/December 2011
Professionalism and Ethics: More Than Just Words
contents Volume 49 Number 3
November/December 2011
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FEATURES in the Litigation 10 Changes Landscape: New Laws from the 2011 General Session By Patrice Pujol and Sharon M. Garner
Ethics: 16 Legal Year in Review By Shayne Newell
Ethical Challenges 20 The Facing In-House Counsel By Y. Nicole Montgomery
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You Be My Friend? 26 Will Ethical Issues in Social Networking
By Scott A. Durfee
Ethical Minefield 32 The of E-Discovery By Gary Wiener
The Houston Lawyer
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The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002-6715. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1300 First City Tower, 1001 Fannin, 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. ŠThe Houston Bar Association, 2011. All rights reserved.
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Join the Houston Bar Association’s 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, corporate legal departments, law schools and government agencies with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Adair & Myers PLLC Ahmad, Zavitsanos & Anaipakos, P.C. Ajamie LLP Allen Boone Humphries Robinson LLP Andrews Myers, P.C. Bair Hilty, P.C. Baker Williams Matthiesen LLP The Bale Law Firm, PLLC Barker Lyman, P.C. Barrett Daffin Frappier Turner & Engel, LLP Bateman/Pugh, PLLC Bell, Ryniker & Letourneau, P.C. Berg & Androphy Bingham, Mann & House Blank Rome LLP Brewer & Pritchard PC Buck Keenan LLP Burck, Lapidus, Jackson & Chase, P.C. Bush & Ramirez, L.L.C. Butler I Hailey Caddell & Chapman Cage Hill & Niehaus, L.L.P. Campbell & Riggs, P.C. Chernosky Smith Ressling & Smith PLLC Christian Smith & Jewell, L.L.P. Conley Rose P.C. Connelly • Baker • Wotring LLP Cozen O’Connor Crady, Jewett & McCulley, LLP David Black & Associates De Lange Hudspeth McConnell & Tibbets LLP Devlin Naylor & Turbyfill PLLC Diamond McCarthy LLP Dinkins Kelly Lenox Lamb & Walker, L.L.P. Dobrowski L.L.P. Dow Golub Remels & Beverly, LLP Doyle Restrepo Harvin & Robbins, L.L.P. Drucker, Rutledge & Smith, L.L.P. Ebanks Horne Rota Moos LLP Edison, McDowell & Hetherington LLP Ellis, Carstarphen, Dougherty & Griggs P.C. Ewing & Jones, PLLC Fernelius Alvarez PLLC Fibich Hampton Leebron Briggs Josephson, LLP Fisher, Boyd, Brown & Huguenard, LLP Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins, P.C. Fleming & Associates L.L.P. Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Fullenweider Wilhite PC Funderburk & Funderburk, L.L.P. Galloway Johnson Tompkins Burr & Smith Germer Gertz, L.L.P. Givens & Johnston PLLC Goldstein & Lipski, PLLC Gordon & Rees LLP Greer, Herz & Adams, L.L.P. Hagans Burdine Montgomery & Rustay, P.C.
Harris, Hilburn & Sherer Harrison, Bettis, Staff, McFarland & Weems, L.L.P. Hays McConn Rice & Pickering, P.C. Hicks Thomas LLP Hirsch & Westheimer, P.C. Hogan Lovells US LLP Holm I Bambace LLP Hunton & Williams LLP Jackson Gilmour & Dobbs, PC Jackson Lewis LLP Jenkins Kamin, L.L.P. Johnson DeLuca Kurisky & Gould, P.C. Johnson Radcliffe Petrov & Bobbitt PLLC Johnson, Trent, West & Taylor, L.L.P. Jones, Walker, Waechter, Piotvent, Carrere & Denegree, L.L.P. Joyce, McFarland + McFarland LLP Kane Russell Coleman & Logan PC Kelly, Sutter & Kendrick, P.C. Kroger | Burrus LeBlanc Bland P.L.L.C. Legge Farrow Kimmitt McGrath & Brown, L.L.P. Linebarger Goggan Blair & Sampson LLP Liskow & Lewis Lorance & Thompson, PC MacIntyre & McCulloch, LLP McGinnis Lochridge & Kilgore LLP McLeod Alexander Powel & Apffel PC MehaffyWeber PC Miller Scamardi & Carraba Mills Shirley L.L.P. Morris Lendais Hollrah & Snowden Munsch Hardt Kopf & Harr, P.C. Murray | Lobb PLLC Myers Doyle Nathan Sommers Jacobs Ogden, Gibson, Broocks, Longoria & Hall, LLP Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Okin Adams & Kilmer LLP Olson & Olson LLP Pagel Davis & Hill PC Perdue Brandon Fielder Collins & Mott Perdue Kidd & Vickery Phelps Dunbar LLP Phillips, Akers & Womac, PC Pillsbury Winthrop Shaw Pittman LLP Ramey, Chandler, McKinley & Zito Ramsey & Murray PC Roach & Newton, L.L.P. Roberts Markel Weinberg PC Ross, Banks, May, Cron & Cavin, P.C. Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Rymer, Moore, Jackson & Echols, P.C. Schiffer Odom Hicks & Johnson PLLC Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Junell, Greenberg & Oathout, LLP Schwartz, Page & Harding L.L.P. Shannon Martin Finkelstein & Alvarado, P.C. Shepherd, Scott, Clawater & Houston, L.L.P.
Shipley Snell Montgomery LLP Short Carter Morris, LLP Singleton Cooksey LLP Smith Murdaugh Little & Bonham, L.L.P. Smyser Kaplan & Veselka, L.L.P. Sprott, Rigby, Newsom, Robbins & Lunceford, P.C. Steele Sturm P.L.L.C. Stevenson & Murray Strong Pipkin Bissell & Ledyard, L.L.P. Stuart & Associates P.C. Tekell, Book, Allen & Morris, L.L.P. Thompson & Horton LLP Thompson, Coe, Cousins & Irons, LLP Tucker, Taunton, Snyder & Slade, P.C. Ware, Jackson, Lee & Chambers, L.L.P. Watt Beckworth Thompson & Henneman, LLP Weycer Kaplan Pulaski & Zuber, P.C. White Mackillop & Gallant P.C. Williams, Birnberg & Andersen, L.L.P. Williams Kherkher Hart Boundas LLP Williams Morgan & Amerson, P.C. Willingham, Fultz & Cougill, LLP Wilson, Cribbs & Goren, P.C. Wilson, Elser, Moskowitz, Edelman & Dicker Wong, Cabello, Lutsch, Rutherford & Brucculeri, P.C. Wright Abshire, Attorneys, PC Wright & Close, L.L.P. Yetter Coleman LLP Ytterberg Deery Knull LLP Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. Zukowski, Bresenhan & Sinex, L.L.P.
Firms of 25-49 Attorneys Adams & Reese LLP Akin Gump Strauss Hauer & Feld LLP Baker & McKenzie LLP Beck Redden & Secrest, L.L.P. Beirne, Maynard & Parsons, L.L.P. Chamberlain Hrdlicka White Williams & Aughtry Coats I Rose Cokinos Bosien & Young Gibbs & Bruns LLP Hoover Slovacek LLP Jones Day Littler Mendelson, PC Seyfarth Shaw LLP
Firms of 50-100 Attorneys Baker Hostetler LLP Gardere Wynne Sewell LLP Jackson Walker L.L.P. Martin, Disiere, Jefferson & Wisdom, L.L.P. Morgan, Lewis & Bockius LLP Porter Hedges LLP Thompson & Knight LLP Winstead PC
Firms of 100+ Attorneys Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski L.L.P. Haynes and Boone LLP Locke Lord LLP Vinson & Elkins LLP
Corporate Legal Departments Anadarko Petroleum Corporation AT&T Texas BP CenterPoint Energy El Paso Corporation Kellogg Brown & Root Inc LyondellBasell MAXXAM Inc Newfield Exploration Company Petrobras America Inc. Plains Exploration & Production Co. Pride International Inc. Rice University Sysco Corporation Texas Children’s Hospital Total E&P USA Inc. University of Houston System
Law School Faculty South Texas College of Law Thurgood Marshall School of Law University of Houston Law Center
Government Agencies City of Houston Legal Department Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County Texas
contents Volume 49 Number 3
November/December 2011
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departments Message 6 President’s A Legacy of Professionalism By Denise Scofield the Editor 8 From Professionalism 101 By Tamara Stiner Toomer
37 Placement Service Profile in Professionalism 38 ADaniella Landers Partner, Sutherland Asbill & Brennan LLP
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Spotlight 39 Committee The Professionalism Committee By Julie Barry Record 40 OffJimtheBerry:
Using Golf to Model Core Values By Julie Barry
Reviews 41 Media David & Lee Roy:
A Vietnam Story
Reviewed by Polly Graham
The ABA Spanish Legal Phrasebook Reviewed by Julie Barry Trends 43 Legal Extreme Appellate Savings:
Four Tips for Making Every Dollar Count on Appeal By Christina Crozier
The Houston Lawyer
44 Litigation MarketPlace
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2011 Harvest Party Underwriters The Houston Bar Association and the Houston Bar Foundation would like to thank all those who underwrote the 62nd Harvest Party. The generosity of our underwriters directly improves the lives of people in our community who could not otherwise afford or obtain access to justice. $25,000 Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski L.L.P. Locke Lord LLP Vinson & Elkins LLP Williams, Kherkher, Hart & Boundas, LLP $10,000 Akin Gump Strauss Hauer & Feld LLP Beirne, Maynard & Parsons, LLP Jones Day King & Spalding LLP Morgan, Lewis & Bockius LLP Shell Oil Company $7,500 Beck, Redden & Secrest, L.L.P. Exxon Mobil Corporation $5,000 Amegy Baker Hostetler LLP BP America Inc. Burleson LLP Caddell & Chapman ConocoPhillips Company De la Rosa & Chaumette DLA Piper ENSCO Fibich Hampton Leebron Briggs Josephson, LLP Gardere Wynne Sewell LLP Gibbs & Bruns LLP Haynes and Boone, L.L.P. Hewlett Packard Company HBA Litigation Section LyondellBasell Industries Navigant Consulting Schirrmeister Diaz-Arrastia Brem LLP Susman Godfrey L.L.P. Sutherland Asbill & Brennan LLP Thompson & Knight LLP Weil, Gotshal & Manges LLP Winstead PC Winston & Strawn LLP $4,000 HBA Family Law Section $2,500 Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Ajamie LLP Anadarko Petroleum Corporation Arnold & Knobloch, LLP BHP Billiton Legal Blank Rome LLP
CenterPoint Energy, Inc. Chamberlain, Hrdlicka, White, Williams & Aughtry Christian, Smith & Jewell, LLP Citgo Petroleum Coats | Rose Cokinos, Bosien & Young, P.C. Connelly•Baker•Wotring LLP Dewey & LeBoeuf LLP Energy Transfer Partners L.P. Energy XXI EOG Resources, Inc. Fisher, Boyd, Brown & Huguenard, LLP FTI Consulting, Inc. Greenberg Traurig LLP Hogan Lovells US LLP Insperity, Inc. Latham & Watkins LLP Legge, Farrow, Kimmitt, McGrath & Brown L.L.P. Martin, Disiere, Jefferson & Wisdom, L.L.P. McGuire Woods LLP Noble Energy, Inc. Pillsbury Winthrop Shaw Pittman LLP Plains All American Pipeline, L.P. Plains Exploration & Production Company Rosetta Resources Inc. Rusty Hardin & Associates, P.C. Schwartz Junell Greenberg & Oathout, LLP Sedgwick LLP Sirius Solutions Skadden, Arps, Slate, Meagher & Flom LLP StoneTurn Group Strasburger & Price, LLP Tekell, Book, Allen & Morris, L.L.P. The Lanier Law Firm $2,000 HBA Federal Practice Section $1,500 Benny Agosto, Jr. HBA Juvenile Law Section $1,000 3B Studio, Inc. Ahmad, Zavitsanos & Anaipakos, P.C. Alistair Dawson Allen Boone Humphries Robinson LLP Bank of Texas, N.A. Berg & Androphy BMC Software, Inc. Brent Benoit Campbell Harrison & Dagley L.L.P. Daniel Herink Denise Scofield Dobrowski L.L.P. Donovan & Watkins Duane Morris LLP Ebanks Horne Rota Moos LLP Epstein Becker & Green, P.C. Frank, Elmore, Lievens Chesney & Turet, L.L.P. Fullenweider Wilhite PC Germer Gertz, L.L.P. Godwin Ronquillo PC Gordon Arata McCollam Duplantis & Eagan, LLC
Hagans Burdine Montgomery Rustay, P.C. Hasley Scarano, L.L.P. HBA ADR Section HBA Appellate Law Section HBA Construction Law Section HBA Corporate Counsel Section HBA International Law Section HBA Labor & Employment Law Section HBA Oil, Gas & Mineral Law Section HBA Real Estate Law Section Hicks Thomas LLP Hirsch & Westheimer, P.C. Hughes Watters Askanase LLP Jackson Walker L.L.P. Jenkins & Kamin, L.L.P. Jim Adler & Associates, P.C. Johnson, Trent, West & Taylor, L.L.P. JPMorgan Chase Kroll Ontrack Lighthouse Legal Copy Linebarger Goggan Blair & Sampson LLP Liskow & Lewis, A PLC Looper Reed & McGraw, P.C. Lumen Legal M.A. Mills P.C. MacIntyre & McCulloch, LLP MehaffyWeber, P.C. MetroNational Michael Perrin Munsch Hardt Kopf & Harr, P.C. Nathan Sommers Jacobs Novak Druce + Quigg LLP Ogden, Gibson, Broocks, Longoria & Hall, LLP Olson & Olson, LLP Porter Hedges LLP Providus Reynolds, Frizzell, Black, Doyle, Allen & Oldham LLP Roach & Newton, LLP Royston, Rayzor, Vickery & Williams, L.L.P. Schiffer Odom Hicks & Johnson PLLC Shannon, Martin, Finkelstein & Alvarado, P.C. Shepherd, Scott, Clawater & Houston, L.L.P. Short Carter Morris Siegmyer, Oshman & Bissinger, LLP Smyser Kaplan & Veselka, L.L.P. South Texas College of Law Sprott, Rigby, Newsom, Robbins & Lunceford, P.C. Strong Pipkin Bissell & Ledyard, L.L.P. Sysco Thomas M. Roche Total Petrochemicals USA, Inc. UBS Wealth Management/Mark Elias & Dan Carter Ware, Jackson, Lee & Chambers, L.L.P. Welsh & Chapoton LLP Westlake Chemical Corporation Wilson, Elser, Moskowitz, Edelman & Dicker LLP Wright & Close, LLP Yetter Coleman LLP Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. $500 HBA Health Law Section Mark Kelly
president’s message
By Denise Scofield Morgan, Lewis & Bockius LLP
A Legacy of Professionalism
The Houston Lawyer
I
n each issue, The Houston Lawyer inWe are fortunate to practice in a legal cludes a “Profile in Professionalism,” community in which it is difficult to pick an article in which a selected member from whom you would like to hear about of Houston’s bench or bar contemplates the meaning of professionalism. Not only what professionalism means to him or is Houston home to many of the most her. One of the most meaningful priviskilled lawyers in the country, but, by and leges of serving as large, we also enjoy “We are fortunate to practice HBA president is the a high degree of colopportunity to select legiality and respect in a legal community in those six lawyers and among our peers and which it is difficult to pick judges who will be colleagues, even in the featured authors the most hotly confrom whom you would like of the professionaltested disputes. Colto hear about the meaning ism profiles in a given legiality and respect of professionalism. Not only bar year. I spent quite for one another are a bit of time thinking among the hallmarks is Houston home to many about who to choose of professionalism. of the most skilled lawyers this year; I wanted A few years ago, my in the country, but, by and to be sure to select firm hosted a couple persons who repreof litigators from a large, we also enjoy a high sent various practices large national firm degree of collegiality and and backgrounds and out of Chicago as who share the same we prepared jointly respect among our peers fundamental comfor trial on behalf and colleagues, even mitment to profesof co-defendants. in the most hotly contested sional excellence, On many occasions, service, and integour guests marveled disputes.” rity. For inspiration, at the professional I thumbed through issues of The Houston courtesies shown them both by lawyers Lawyer dating back years to see who has within my firm and those lawyers from been profiled in the past. I read the pieces other Houston firms who represented authored by John Eddie Williams, Judge other parties in the litigation. They reDavid Hittner, Jim Sales, Joe Jamail, Ileana marked that we all seem to know, or Blanco, Randy Sorrels, Judge Frank Rynd, at least know of, each other and how difTracie Renfroe, Kelly Frels and others – a ferent that was from their experience back veritable who’s who of Houston’s finest home. lawyers and judges. I thought about who In fact, while our bar association is I have practiced with, against, and in front comprised of over 11,000 members, it of, and I realized that narrowing the list to feels much smaller to me. I know that six would be very hard. participating in the social and professional
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activities offered by the HBA and other local bar associations fosters that sense of smallness – of community, collegiality, and respect. Nowhere is that more apparent than at the Harvest Party each fall. Demonstrating the true spirit of professionalism, nearly 1,100 of our members and guests came together again this year to raise funds to provide access to justice to indigent Houstonians. Over the course of the year, the HBA offers many other opportunities for our members to come together, including continuing education programs, legal clinics, the bench-bar conference, mentor-protégé events, and the annual dinner, to name just a few. By spending time together and building relationships with one another, we help to ensure that the legacy of professionalism that exists within our community will continue. As I was surveying the previous professionalism profiles for inspiration about who to select this year, I was particularly struck by the article authored by Texas Supreme Court Justice Eva Guzman back when she served on the Fourteenth Court of Appeals in 2005. Justice Guzman wrote, “Our commitment to professionalism must be the driving force in our day to day activities, and must encompass not only a strict adherence to professional responsibility standards, but also an unwavering devotion to civility, honesty, integrity, fairness and public service.” I know you will agree that the lawyers and judges who have been selected to write about professionalism this bar year exemplify those qualities identified by Justice Guzman.
10 Ways the HBA serves you. • Meet your MCLE requirements through 80+ hours of FREE CLE and 120+ hours of discounted online CLE programming each year • Support your profession and community • Professional networking opportunities. • Get to know the local judiciary • Pro Bono opportunities • Stay current on legal issues, educational programs and events through HBA publications • Learn to lead through committee participation • Gain the right tools for your practice through Section membership • Opportunities to participate in over 35 community programs • Partnership discounts at local venues and vendors
www.hba.org
Enhance your practice Try the HBA advantage. thehoustonlawyer.com
November/December 2011
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from the editor
By Tamara Stiner Toomer McGuireWoods LLP
Associate Editors
Julie Barry Attorney at Law
Keri Brown Baker Botts L.L.P.
Angela L. Dixon Attorney at Law
The Houston Lawyer
Robert W. Painter Painter Law Firm PLLC
Don Rogers Harris County District Attorney’s Office
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Professionalism 101
W
hat exactly is professionalism? Many articles have been written and speeches given on this topic, but do we really understand what it means to carry out our duties as attorneys in a professional manner? There are the ABA Model Rules of Professional Conduct and the Texas Disciplinary Rules of Professional Conduct to use as our guide; and, of course, our gut will usually give us a sense of what is right and wrong. Still, it is not always clear what to do when faced with situations that are considered “grey” areas. Because professionalism can at times be murky, I thought I’d share a tip that I recently received and have found quite helpful. We have all been there. You’re at a hearing and the judge asks you a question, but the law isn’t exactly on your side. A senior partner asks you to conduct research on some ambiguous topic that you don’t understand, but you want to maintain the appearance that you’re on top of things. Opposing counsel is not the most (let’s say) courteous person, but you must figure out a way to work with him to keep the relationship from deteriorating to best serve your client. I’m sure you could come up with your own list of scenarios where you’re not sure what to do and whether your course of action will be compatible with the values and ideals of the legal profession. So what do you do in such situations? Do you argue your position to the court and completely ignore any unfavorable law? Do you lick the end of your finger and hold it up in the air hoping that the direction of the wind will determine the answer you come up with to the senior partner’s obscure research question? Do you match with equal force opposing counsel’s “sunny disposition” in hopes that seeing himself in the proverbial mirror will deter such future bad behavior? Of course not. I think we can all agree that such courses of action would not adhere to any rule of professional conduct. But then what does? The simple answer: Pancake Bunny, a/k/a Oolong. Sending a picture of Pancake Bunny is your solution in any situation where it is not so clear what direction to take to stay on the road of professionalism. What better
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way to signal the judge that you have terrible law against you, but that she should grant your motion anyway? How else can you respectfully tell the senior partner that you have no idea what he is asking for and frankly neither does he? Is there really any other diplomatic way to deal with a rambunctious adversary who is one condescending comment away from getting his hat handed to him? In conclusion, when in doubt, Pancake Bunny will help you navigate the murky waters of professionalism. Always keep a copy of Pancake Bunny nearby because you never know when a questionable situation may arise. I hope this column has provided you with some valuable guidance. For different perspectives (and possibly a more accurate discussion) on certain aspects of professionalism, check out the articles written by Nicole Montgomery, Scott Durfee, and Gary Wiener. While not the quick and dirty answer to questions of professionalism as Pancake Bunny, these articles analyze ethical issues that confront attorneys in various areas of the practice of law. Also in this issue of THL are great year-in-review articles by Patrice Pujol, Sharon Garner, and Shayne Newell summarizing new laws passed by the Texas Legislature and recounting ethical issues that arose in 2011. Last, but certainly not least, are THL’s recurring columns that highlight dynamic HBA members and committees, trends in the law, and different forms of media that we think might interest our readers. This is all I have for now. I hope you enjoy reading this issue. Until next time... Editor’s Note:
Special thanks to Katherine S. who introduced me to the concept of Pancake Bunny and added much needed levity to long working sessions. For more information on Oolong, visit http:// en.wikipedia.org/wiki/Oolong_(rabbit) or Google “Pancake Bunny.”
BOARD OF DIRECTORS President
Secretary
Denise Scofield
Alistair B. Dawson
President-Elect
Treasurer
Brent Benoit
David A. Chaumette
First Vice President
Past President
Laura Gibson
T. Mark Kelly
Second Vice President
M. Carter Crow
DIRECTORS (2010-2012)
Benny Agosto, Jr. Warren W. Harris
Todd M. Frankfort John Spiller
Hon. David O. Fraga Neil D. Kelly
DIRECTORS (2011-2013) Jennifer Hasley Daniella D. Landers
editorial staff Editor in Chief
Tamara Stiner Toomer Associate Editors
Julie Barry Angela L. Dixon Don Rogers
Keri D. Brown Robert W. Painter
Sharon D. Cammack Don D. Ford III Sammy Ford IV Polly Graham John S. Gray Al Harrison Farrah Martinez Judy L. Ney Edward J. (Nick) Nicholas Caroline C. Pace Benjamin K. Sanchez Joy E. Sanders Hannah Sibiski Gary A. Wiener N. Jill Yaziji
Editorial Board
Managing Editor
Tara Shockley
HBA office staff Membership and Technology Services Director
Executive Director
Kay Sim
Ronald Riojas
Administrative Assistant
Ashley G. Steininger
Membership Assistant
Ariana Ochoa
Administrative Assistant
Bonnie Simmons
Committees & Events Director
Receptionist/Resource Secretary
Claire Nelson
Lucia Valdez
Committees & Events Assistant
Director of Education
Lucy Fisher
Brian Edwards
Continuing Legal Education Assistant
Communications Director
Tara Shockley
Amelia Burt Community Education Assistant
Communications/ Web Designer
Natasha Williams
Brooke Eshleman
Advertising sales Design & production QUANTUM/SUR
12818 Willow Centre, Ste. B, Houston, TX 77066 281.955.2449 • www.quantumsur.com Publisher
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November/December 2011
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Changes in the Litigation Landscape:
New Laws from the 2011 General Session
By Patrice Pujol and Sharon M. Garner
T
his year’s Texas legislative sessions brought about many changes to the litigation landscape. Key among these are tort reform and the resulting changes in the rules of civil and appellate procedure, new protocols for certain areas of criminal law, and the streamlining of procedures in the handling of a decedent’s estate. All of these changes are discussed below. TEXAS TORT REFORM – HOUSE BILL 274 Perhaps the most discussed bill—both during its various mutations in the legislative process and after its passage into law—is House Bill 274 (“HB 274”), the Legislature’s latest effort at tort reform.1 HB 274 originally included sweeping “loser pays” fee-shifting provisions that eventually failed to attract sufficient support.2 As passed, HB 274 contains five subparts, four of which create new avenues of dismissal, expedited actions, appeal, and cost-shifting. The fifth subpart modifies the practice of designating responsible third parties. All of these new provisions became effective on September 1, 2011.3 • Early Dismissal of Actions Article 1 of HB 274 requires the Texas Supreme Court to “adopt rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence.”4 The new rules are expected to allow a trial court to scrutinize a plaintiff’s claims at the outset of litigation—in a procedure similar to a Federal Rule 12(b)(6) motion to dismiss—rather than during or after significant discovery.5 However, these motions will not be permitted in cases under the Family Code.6 At present, the Texas Supreme Court Advisory Committee is working on the proposed rules.7 The deadline for releasing the proposed rules is March 1, 2012, but the committee is expected to discuss and refine these proposals dur-
ing meetings leading up to the deadline.8 Additionally, the new statute requires a trial court to award attorneys’ fees and costs to any party, plaintiff or defendant, who prevails on such a motion to dismiss.9 This requirement—a remnant of the “loser pays” concept contained in the initial version of HB 274—will not apply to cases brought by or against the state, governmental entities, or public officials.10 Regardless, because an award of attorneys’ fees is otherwise available to the successful party, proponents believe this provision will help deter groundless lawsuits and inappropriate motions to dismiss.11 • Expedited Civil Actions In another rule-making initiative, Article 2 of HB 274 requires the Texas Supreme Court to “adopt rules to promote the prompt, efficient, and costeffective resolution of civil actions” in which the total costs, “whether actual or exemplary, a penalty, attorney’s fees, expenses, costs, interest, or any other type of damage of any kind, does not exceed $100,000.”12 The new rules must not conflict with the provisions of the Medical Liability Act, the Family Code, the Property Code, or the Tax Code.13 The Texas Supreme Court has appointed a task force to advise the Court regarding these rules. The task force’s recommendations, which should be made to the Court by February 1, 2012,14 should “address the need for lowering discovery costs in these actions and the procedure for ensuring that these actions will be expedited in the civil justice system.15 • Interlocutory Appeal of Controlling Question of Law Article 3 of HB 274 permits a trial court or the parties to immediately appeal a written order on a controlling question of law “on which there is a substantial ground for difference of opinion” or
that may “materially advance the ultimate termination of the litigation.”16 Essentially, the new statute removes the previous requirement that all parties agree to such an appeal.17 Moreover, although the appeal does not stay the underlying proceedings, the trial court can stay those proceedings or the parties can agree to a stay.18 No later than 15 days after the trial court signs the order that will be the subject of the appeal, the appealing party should file its application for interlocutory appeal that explains why the appeal is warranted.19 The rules applying to accelerated appeals will govern this appeal.20 Additionally, the Texas Supreme Court has proposed new Texas Rule of Appellate Procedure 28.3 to clarify the specific requirements of this appeal.21 The date on which the appellate court enters the order accepting the appeal starts the time applicable to filing the notice of appeal.22 • Allocation of Litigation Costs HB 274 amends the manner in which a party may make an “offer of settlement” under Chapter 42 of the Civil Practice and Remedies Code.23 Under the previous law, a defendant could recover only court costs, reasonable fees for two expert witnesses and reasonable attorney fees.24 In addition, the amount of recovered litigation costs was determined using a complicated formula that depended on the amount of damages awarded to the plaintiff.25 But under the new statute—and the Texas Supreme Court’s proposed amendments to Texas Rule of Civil Procedure 167—the amount of recoverable litigation costs now includes reasonable deposition costs.26 In addition, a formula is no longer used.27 Now, the awarded litigation costs may not exceed “the total amount that the claimant recovers or would recover before adding an award of litigation costs... in favor of the claimant or subtracting as an offset an award of litigation costs... in favor of the defen-
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dant.”28 Finally, an offer of settlement made pursuant to section 42.003 need not be filed with the court.29 • Designation of Responsible Third Parties The last substantive change brought by HB 274 repeals section 33.004(e) of the Civil Practice and Remedies Code.30 This former statute allowed plaintiffs to join designated responsible third parties (“RTPs”) as new defendants regardless of the applicable statute of limitations.31 Under the new statute, a defendant may not designate a person as an RTP after the statute of limitations expires if the defendant failed to comply with an obligation, if any, to timely disclose that the person may be designated as an RTP under the Texas Rules of Civil Procedure.32 In other words, if the defendant is under an obligation to disclose the RTP to the plaintiff—for instance, in its answers to requests for disclosure—then the defendant must move to designate that RTP before the statute of
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limitations expires. Otherwise, if there is no obligation, then a defendant may designate an RTP any time before the deadline under section 33.004(a) (at least 60 days before trial).33 NEW CRIMINAL LEGISLATION Several important efforts at streamlining and reforming areas of criminal law and practice also emerged from the 2011 legislative session. First, legislators approved the merger of the Texas Youth Commission (“TYC”) and the Texas Juvenile Probation Commission into a new state agency, the Texas Juvenile Justice Department.34 Under Senate Bill 653, lawmakers expanded community-based programs as an alternative to large, state-run facilities for youth offenders.35 The new agency will have a 13-member board appointed by the Governor and is intended to establish a unified state juvenile justice agency that works in partnership with local county government, the courts, and communities to promote public safety and to create a system that produces positive outcomes
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for youth, families, and communities.36 Another effort at reform, House Bill 215, amends the Code of Criminal Procedure by adding Article 38.20, which mandates the Bill Blackwood Law Enforcement Management Institute of Texas (“Institute”) to develop and disseminate a model policy and training materials on the proper way to conduct a photographic or live lineup.37 This legislation is aimed at reducing the number of erroneous identifications, an issue that has garnered nationwide attention and that the United States Supreme Court is addressing in its November 2011 term.38 The legislation also mandates law enforcement to adopt techniques that are proven to reduce false identifications.39 The Institute is required to develop these new protocols by December 31, 2011, and law enforcement should implement them by September 1, 2012.40 Other noteworthy developments in the area of criminal law include: • House Bill 417 on Compensating the Wrongfully Convicted – This legislation broadens and clarifies the
criteria for seeking compensation for wrongful imprisonment, including requiring the Texas Department of Criminal Justice to provide specific information to the potential claimant.41 Because the procedure allows the wrongfully convicted person to seek compensation without the assistance of a third party, the new legislation also prohibits someone, including an attorney, from charging or collecting a fee for seeking the compensation on another’s behalf unless the fee is based on a reasonable hourly rate.42 • House Bill 1199 on New DWI Penalties – This legislation increases the punishment for a driving while intoxicated (“DWI”) offense that leaves a person in a persistent vegetative state (as opposed to an offense that causes serious bodily injury).43 Under the new law, a DWI offense that leaves a person in a persistent vegetative state is a second-degree felony punishable by up to 20 years
in prison.44 Additionally, a DWI defendant whose blood-alcohol level is 0.15 percent or higher now faces up to one year of jail time if convicted; the previous punishment was a maximum jail term of up to 180 days.45 • House Bill 1573 on DNA Testing – This legislation amends Article 64.01 of the Code of Criminal Procedure by permitting a convicted person to file a verified motion for forensic DNA testing of biological materials that were not tested previously by the state, or that were tested previously but can be subjected to testing with newer testing techniques that may yield more accurate and probative results.46 NEW ESTATE PLANNING & PROBATE LEGISLATION Senate Bill 1198 provides broad changes to the law relating to a decedent’s estate. Some of the more significant changes include amendments to the following sec-
tions of the Probate Code: • Amended Section 59 now allows combining the execution of the will and the self-proving affidavit so that the testator and witnesses sign only once.47 Section 59 also provides the specific language to include in the will to accomplish the one-signature method.48 • Amended Section 128A now provides a simplified method for providing notices to beneficiaries. Whereas personal representatives of the testate decedent were previously required to send notices via certified mail to all of the beneficiaries named in the will, notices now are unnecessary as to (1) a beneficiary who is receiving property valued at $2,000 or less or who has received all gifts to which he or she is entitled within 60 days of the order admitting the will to probate, or (2) a person whose interest arises on the occurrence of a contingency that has not occurred.49 In addition, notices
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need not include a copy of the will and the order admitting it to probate. Instead, the notices may contain only a summary of the testamentary gifts to the beneficiary, as well as certain probate docket information.50
and purposes, including the operations of a common carrier pipeline.57 Senate Bill 18 also enacts new limitations on easements and sets forth the new procedures required to initiate eminent domain proceedings.58 Senate Bill 1353 expands the scope of professionals now protected from claims • New Section 145A allows the benunder the Texas Deceptive Trades Practiceficiaries of an estate to give the indees Act to include real estate brokers and pendent administrator the authority salespeople.59 This is an expansion of the to sell the real property of the estate by signing a consent form before the same protection granted to other profesadministrator is appointed.51 Signing sionals in 1995 that failed to include realtors.60 However, this new legislation does the consent before the appointment ensures that the not protect realtors power of sale from claims based on “Senate Bill 1353 will be included (1) an express misexpands the scope in the appointrepresentation of a 52 of professionals now ing order. This material fact or unconscionable action consent may be protected from claims or course of action given in cases under the Texas that cannot be charwhere there is acterized as advice, no will or where Deceptive Trades judgment, or opinthe will is silent Practices Act to 53 ion; or (2) a failure to on this power. disclose information include real estate that violates section • Amended Secbrokers and 17.46(b)(24) of the tion 250 now DTPA.61 permits invensalespeople.” tories to be kept In the area of famprivate under certain circumstances.54 ily law, new legislation now permits a purported father to challenge an alleged Specifically, if at the time the invenmistaken paternity. Under Senate Bill 785, tory is due, there are no unpaid debts, a man who has either signed an acknowlexcept for secured debts, taxes and edgement of paternity or is adjudicated administration expenses, then indeto be the father of a child without obtainpendent executors and independent ing genetic testing may petition a court to administrators may file an affidavit in have the parent-child relationship termilieu of the inventory, thereby keeping nated.62 If, however, a man is the child’s the inventory private and disclosed only to estate beneficiaries.55 adoptive father, he is the intended father under a court-approved gestational agreement, or the child was conceived by asOTHER LEGISLATIVE INITIATIVES sisted reproduction that was consented New legislation also revamped certain to by the man, then he is precluded from areas of property law and family law. In challenging paternity.63 the area of eminent domain, Senate Bill 18 amends Chapter 2206 of the Government In addition, House Bill 3833 amends the Code to prohibit a government agency or Family Code to create the Uniform Colprivate entity from taking private property laborative Family Law Act (“CFLA”).64 through the use of eminent domain if the The collaborative law process is a type taking is not for a public use.56 Carved out of alternative dispute resolution that enables couples to collaboratively dissolve of this prohibition, however, is the taking their marriage through a settlement-type of private property for certain projects 14
November/December 2011
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procedure that best meets the needs of the parties, including their children.65 Essentially, the CLFA clarifies and conforms the collaborative process into uniform protocols and procedures.66 Sharon Garner is a litigation attorney in the Houston office of Forman Perry Watkins Krutz & Tardy, LLP. She represents clients throughout the United States specializing in toxic tort litigation. Patrice Pujol is a litigation and appellate attorney in the Houston office of Forman Perry Watkins Krutz & Tardy, LLP. She serves as secretary of the Stonewall Law Association of Greater Houston, and is a former editor in chief of The Houston Lawyer. Endnotes
Act of May 25, 2011, 82nd Leg., R.S., H.B. 274. Mike Ward, Unexpected Deal Reached on “Loser Pays” Lawsuit Legislation, AUSTIN AM. STATESMAN, May 21, 2011, at http:// www.statesman.com/news/texas-politics/ unexpected-deal-reached-on-loser-pays-lawsuitlegislation-1490178.html. 3. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274, §§ 6.01, 6.02. 4. Id. at § 1.01; see TEX. GOV’T CODE § 22.004(g) (Vernon Supp. 2011). 5. House Research Org., Bill Analysis, Tex. H.B. 274, 82nd Leg., R.S. (2011) at 3-5, at http:// www.hro.house.state.tx.us/pdf/ba82r/hb0274. pdf#navpanes=0; Tr. of Meeting of Sup. Ct. Advisory Comm. at 21467:8-12 (May 13, 2011), at http://www.supreme.courts.state.tx.us/rules/ scac/2011/051311-trans.pdf. 6. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274, § 1.01; see TEX. GOV’T CODE § 22.004(g) (Vernon Supp. 2011). 7. Telephone interview with Marisa Secco, Texas Supreme Court Rules Attorney (Oct. 17, 2011). 8. Id. 9. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274, § 1.02; see TEX. CIV. PRAC. & REM. CODE § 30.021 (Vernon Supp. 2011). 10. Id. 11. House Research Organization, Bill Analysis, Tex. H.B. 274, 82nd Leg., R.S. (2011) at 5, at http:// www.hro.house.state.tx.us/pdf/ba82r/hb0274. pdf#navpanes=0. 12. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274, § 2.01; see TEX. GOV’T CODE § 22.004(h) (Vernon Supp. 2011). 13. Id. 14. Id. 15. Am. Appointment of Task Force for Rules in Expedited Actions, Misc. Docket No. 11-9201 (Oct. 5, 2011), at ¶ 2. 16. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274, § 3.01; see TEX. CIV. PRAC. & REM. CODE § 51.014(d) (Vernon Supp. 2011). 17. Id. 18. TEX. CIV. PRAC. & REM. CODE § 51.014(e) (Vernon Supp. 2011). 19. Id. at § 51.014(f). 20. Id. 21. Am. Order Adopting R. 168 of the Tex. R. of Civ. P. & Amendments to R. 28 of the Tex. R. App. P., 1.
2.
Misc. Docket No. 11-9183 (Sept. 9, 2011). CIV. PRAC. & REM. CODE § 51.014(f) (Vernon Supp. 2011). 23. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274, §§ 4.01-4.04; see TEX. CIV. PRAC. & REM. CODE §§ 42.001 (5), (6), 42.002(b), (d), (e), 42.003(b), 42.004(d) (Vernon Supp. 2011). 24. TEX. CIV. PRAC. & REM. CODE § 42.001(5) (Vernon Supp. 2011). 25. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274, § 4.04. 26. Id. at § 4.01; see TEX. CIV. PRAC. & REM. CODE § 42.001(5) (Vernon Supp. 2011). See also Order Adopting Am. Tex. R. Civ. P. 167, Misc. Docket No. 11-9175 (Aug. 31, 2011). 27. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274, § 4.04. 28. TEX. CIV. PRAC. & REM. CODE § 42.004(d) (Vernon Supp. 2011). 29. Id. at § 42.003(b). 30. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274, § 5.02. 31. Id. at § 5.01; see TEX. CIV. PRAC. & REM. CODE § 33.004(d) (Vernon Supp. 2011). 32. TEX. CIV. PRAC. & REM. CODE § 33.004(d) (Vernon Supp. 2011). 33. Id. 34. Act of May 5, 2011, 82nd Leg., R.S., S.B. 653, § 201.002. 35. Senate Comm. on Gov’t Organization, Bill Analysis, Tex. S.B. 653, 82nd Leg., R.S. (2011) at 1, at http:// www.legis.state.tx.us/tlodocs/82R/analysis/pdf/ SB00653F.pdf#navpanes=0. 36. Id. 37. Act of May 18, 2011, 82nd Leg., R.S., H.B. 215, § 1. 38. Erica Goode and John Schwartz, Police Lineups Start to Face Fact: Eyes Can Lie, N.Y. TIMES, Aug. 28, 2011, at http://www.nytimes.com/2011/08/29/ us/29witness.html?ref=us; Adam Liptak, 34 Years Later, Supreme Court Will Revisit Eyewitness IDs, N.Y. TIMES, at http://www.nytimes. com/2011/08/23/us/23bar.html?ref=memory. The U.S. Supreme Court case is No. 10-8974, Perry v. New Hampshire; for more information, go to the Supreme Court’s website at www.supremecourt.gov. 39. House Research Organization, Bill Analysis, Tex. H.B. 215, 82nd Leg., R.S. (2011) at 1-2, at http:// www.hro.house.state.tx.us/pdf/ba82r/hb0215. pdf#navpanes=0. 40. Act of May 18, 2011, 82nd Leg., R.S., H.B. 215, § 2(a), (b). 41. Act of May 21, 2011, 82nd Leg., R.S., H.B. 417, §§ 2, 3, 8; see TEX. CIV. PRAC. & REM. CODE §§ 103.001, 103.002 (Vernon Supp. 2011); Tex. Gov’t Code § 501.091(a) (Vernon Supp. 2011). 42. Act of May 21, 2011, 82nd Leg., R.S., H.B. 417, §§ 5, 7; see TEX. CIV. PRAC. & REM. CODE §§ 103.051, 103.101 (Vernon Supp. 2011). 43. Act of May 27, 2011, 82nd Leg., R.S., H.B. 1199, § 2. This legislation is known as the Abdallah Khader Act, named for a two-year-old Fort Worth boy who, in February 2009, was crushed in his baby seat after his parents’ car was rear-ended by a seventime-convicted drunk driver. See Jim Douglas, Abdallah case highlights battle for tougher DWI laws, at http://www.wfaa.com/news/crime/Abdallah-casehighlight-battle-for-tougher-DWI-laws-91962694. html. See Tex. Penal Code § 49.04(d) (Vernon Supp. 2011). 44. Act of May 27, 2011, 82nd Leg., R.S., H.B. 1199, § 3, see Tex. Penal Code § 49.04(b-4) (Vernon Supp. 2011). 45. Id. at § 2; see Tex. Penal Code § 49.04(d) (Vernon Supp. 2011). 46. Act of May 21, 2011, 82nd Leg., R.S., H.B. 1573, § 5; see Tex. Code Crim. P. art 64.01. 47. Act of May 29, 2011, 82nd Leg., R.S., S.B. 1198, § 1.12; see Tex. Prob. Code § 59 (Vernon Supp. 2011). 48. Act of May 29, 2011, 82nd Leg., R.S., S.B. 1198, § 1.12(a-1); see Tex. Prob. Code § 59(a-1) (Vernon Supp. 2011). 22. TEX.
49. Act
of May 29, 2011, 82nd Leg., R.S., S.B. 1198, § 1.18; see Tex. Prob. Code § 128A (Vernon Supp. 2011). 50. Id. 51. Act of May 29, 2011, 82nd Leg., R.S., S.B. 1198, § 1.22; see Tex. Prob. Code §§ 145A, 145B, 145C (Vernon Supp. 2011). 52. Id. 53. Id. 54. Act of May 29, 2011, 82nd Leg., R.S., S.B. 1198, § 1.28; see Tex. Prob. Code § 250 (Vernon Supp. 2011). 55. Id. 56. Act of May 6, 2011, 82nd Leg., R.S., S.B. 18, § 2; see Tex. Gov’t Code § 2206 (Vernon Supp. 2011). 57. Id. 58. Id. 59. Act of May 17, 2011, 82nd Leg., R.S., S.B. 1353, §
1; see Tex. Bus. & Com. Code § 17.49(i) (Vernon Supp. 2011). 60. Senate Comm. on Bus. & Commerce, Bill Analysis, Tex. S.B. 1353, 82nd Leg., R.S. (2011) at 1, at http:// www.legis.state.tx.us/tlodocs/82R/analysis/pdf/ SB01353F.pdf#navpanes=0. 61. See n.59, supra. 62. Act of April 14, 2011, 82nd Leg., R.S., S.B. 785, § 2; see Tex. Fam. Code § 161.005. 63. Id. 64. Act of April 14, 2011, 82nd Leg., R.S., H.B. 3833, § 1; see Tex. Fam. Code Title 1-A, Ch. 15. 65. Id.; House Comm. on Judiciary & Civ. Jurisprudence, Bill Analysis, Tex. H.B. 3833, 82nd Leg., R.S. (2011) at 1, at http://www.legis. state.tx.us/tlodocs/82R/analysis/pdf/HB03833H. pdf#navpanes=0. 66. See n.64, supra.
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November/December 2011
15
By Shayne Newell
Legal Ethics:
Year in Review “On my oath I will support the constitutions of the United States and of this state and will honestly demean myself in the practice of law and will discharge my duty to my client to the best of my ability.” 1
E
ach Texas lawyer must swear this oath upon induction into the Texas State Bar. The oath seems clear and concise, but the details of how to ethically discharge these duties are sometimes less obvious. This article provides a brief overview of ethics-related topics that affected Texas lawyers in the past year, including discussion of the defeated amendments to the Texas Disciplinary Rules of Professional Conduct (the “Texas Rules”) and an overview of Texas and ABA ethics opinions released in 2011.
Texas Disciplinary Rules of Professional Conduct As most Texas lawyers are aware, in late 2010, there was rigorous debate surrounding some of the proposed amendments to the Texas Rules. The details of the proposed amendments are beyond the scope of this article, but the proposals covered a wide array of topics, including a proposed amended definition of “confidential information,” a ban on sexual relations with clients, removal of the “substantial relationship” test for current client conflicts, and changes to the rules on representation of multiple clients in the same matter.2 In early 2011, the proposed amendments were divided into six sections, and each section was put to a vote. On February 17, 2011, the State Bar of Texas announced that Texas lawyers had voted down the proposed amendments. Approximately 38,000 Texas lawyers voted in the referendum, with approximately 80% voting against the proposed changes.3 As a result, no changes were made to the existing Texas Rules. Texas Ethics Opinions During 2011, the Professional Ethics Committee for the State Bar of Texas (the “Committee”) released seven opinions on a variety of topics, some relating to specific circumstances and others with
broader application.4 Those opinions are discussed briefly here. 1. Opinion 604 – Communication with Members of a Board of a State Agency In January 2011, the Committee addressed the question of whether a lawyer may communicate privately with the members of a board of a state agency about the agency’s consideration of a regulation that would require the lawyer’s client to apply for and obtain a permit and, if the regulation is adopted, about the client’s planned permit application.5 The Committee examined the provisions of Texas Rule 3.05 and concluded that it is inapplicable to ex parte communications when the board of a state agency is considering whether to act in a legislative capacity (e.g., whether to pass a proposed regulation).6 If the regulation is adopted, however, Texas Rule 3.05 does apply and prohibits a lawyer from communicating privately with members of the state agency’s board for the purpose of influencing that body’s decision on a client’s permit application.7 Additionally, Texas Rule 8.04(a)(1) prohibits a client or other non-lawyer representative from engaging in such communication.8 This opinion clarifies the Committee’s previous statements on this issue in Opinion 587.9 2. Opinion 607 – Disclosure of Information Regarding Clients in Connection with Lateral Hiring In Opinion No. 607, the Committee addressed the long-standing issue of whether a lawyer may disclose to another law firm information relating to the lawyer’s prior work for clients so that the law firm can determine whether the employment of that lawyer would create conflicts of interest for the firm.10 When a lawyer changes law firms or enters private practice following government service, the hiring law firm must conduct a conflicts check on the lawyer’s clients to determine if hiring the lawyer would create any conflicts of interest with the firm’s existing clients. This is true re-
gardless of whether the lawyer’s clients intend to “follow” the lawyer to the new firm. Neither the ABA Model Rules nor the Texas Rules contain any explicit discussion of whether and to what extent a lawyer may disclose this client information to the new firm without violating his or her duty of confidentiality. ABA Formal Ethics Opinion 09-455 concluded that limited disclosure of client information to the hiring firm is permissible, but that such disclosure should not be made until reasonably necessary.11 The ABA opinion noted that what constitutes “reasonably necessary” may vary widely depending upon the firm’s internal processes and the seniority level of the lateral lawyer.12 The new Texas opinion imposes additional restrictions on the disclosure of client information in the lateral hiring context. Texas Rule 1.05 generally prohibits a lawyer from disclosing client confidential information other than for the benefit of the client.13 However, when a lawyer moves from one law firm to another, a certain amount of disclosure will be necessary to permit both the lawyer and the hiring law firm to comply with the requirements of Texas Rule 1.09 regarding former client conflicts. Thus, the Committee concluded that “in the circumstances considered, limited disclosure concerning a lawyer’s clients and prior legal work is necessary to comply with applicable Texas Disciplinary Rules and is therefore permitted by Rule 1.05(c) (4).”14 Such a disclosure should be made, however, only when the following four requirements are met: 1. All other material issues regarding the law firm’s employment of the lawyer have been favorably resolved; 2. The lawyer provides the information pursuant to a legally enforceable agreement, preferably in writing, that the law firm will keep the information confidential and use it solely for purposes of making the hiring decision and compliance with Texas Rules 1.09 or 1.10, as
applicable; 3. The lawyer provides only the information that is necessary for the law firm to determine its compliance with Texas Rules 1.09 or 1.10, as applicable; and 4. The lawyer does not disclose any client information that would, in the lawyer’s reasonable judgment, create a significant risk of adverse effect on the material interests of the client.15 The opinion states that it is “generally consistent” with ABA Formal Ethics Opinion 09-455.16 However, the ABA opinion affords substantially more leeway in the timing of the disclosure and does not require a legally enforceable agreement between the lawyer and hiring law firm.17 The Texas opinion appears to ignore the practical reality of law firm business; namely, that conflicts can readily derail a lawyer’s lateral move and often are show-stoppers that reasonably ought to be addressed before discussions of financial terms make any sense. Indeed, both the transferring lawyer and the law firm probably need to confirm there are no conflicts before engaging in any discussions that would thereby create a material limitations conflict under Texas Rule 1.06(b). Texas lawyers should take note of this opinion and consider what impact it may have on their current hiring procedures. 3. Opinion 610 – Acquisition of Security Interest in the Subject Matter of Litigation to Secure Lawyer’s Fee With Respect To That Litigation In August 2011, the Committee considered whether a lawyer may acquire a proprietary interest in the subject matter of litigation that the lawyer is handling in order to secure payment of the lawyer’s fee with respect to the litigation.18 In the circumstances presented to the Committee, the proposed security interest was created by the terms of the contract between the attorney and the client, which did not meet either of the excep-
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November/December 2011
17
tions set out in Texas Rule 1.08(h).19 Because it was created by contract, the security interest was not “a lien granted by law to secure the lawyer’s fees or expenses.”20 And, while it is permissible to contract for a contingent fee, the Committee distinguished between the contingent fee itself and a separate security interest in a litigation matter, which is not an essential part of a contingent fee arrangement under Texas Rule 1.04.21 Thus, the Committee concluded that Texas Rule 1.08(h) prohibits a lawyer from entering into a contingent fee agreement for a litigation matter that grants the lawyer a security interest in the cause of action that is the subject of the litigation.22 4. Other Opinions In addition, the Committee issued opinions relating to whether a law firm may keep its name following the departure of a name partner,23 holding unearned fees in a trust account where the lawyer believes the funds may have been obtained
improperly,24 representation of a client in a child custody dispute by a legal services lawyer where other lawyers in the same organization have duties to adverse parties,25 and sharing of office space between a non-lawyer insurance adjuster and a lawyer employed by an insurance company.26 ABA Formal Ethics Opinions The pervasiveness of email communication today presents additional opportunities for lawyers to make missteps in protecting the confidentiality of client information. Two of the four American Bar Association ethics opinions released in 2011 dealt with email communication. To that end, the ABA concluded that a lawyer who communicates with a client via email ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device where there is a significant risk that a third party may gain access to the device or email account.27 In another opinion, the ABA opined
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that when an employer’s outside counsel receives copies of an employee’s private communications with his or her own counsel, which the employer rightfully accessed in the employee’s business email or workplace computer, the ABA Model Rules do not require the employer’s lawyer to notify opposing counsel of the receipt of those communications.28 The opinion noted, however, that court decisions, the applicable rules of civil procedure, or other law may impose a duty to notify, which, if not followed, may subject the lawyer to discipline.29 The two remaining opinions address the old-fashioned issues of changing fee arrangements during a representation and advising clients regarding direct contact with represented persons. With regard to fee arrangements, the ABA concluded that modification of an existing fee arrangement during a representation is permissible under the Model Rules if (a) the lawyer can show that the modification was reasonable under the circumstances and (b) the modification is communicated to and accepted by the client.30 Many law firms, of course, raise their hourly billing rates periodically. These increases are permissible if this practice is communicated to and accepted by the client at the outset of the representation and the increase is reasonable under the circumstances.31 Regardless of what modifications are made, the fee must continue to be reasonable under Model Rule 1.5(a).32 In ABA Formal Ethics Opinion 11-461, the ABA addressed the issue of whether a lawyer may advise a client regarding the substance of a proposed communication between the client and someone the lawyer knows to be represented by counsel.33 This situation might arise, for example, where deal negotiations are at an impasse and the client wants to talk to his business counterpart on the other side to see if they can work out a solution without the involvement of lawyers. If the client seeks the lawyer’s advice about his communication with the other side, lawyers must be careful in this situation not to violate Model Rule 8.4(a), which prohibits a
lawyer from assisting another in acts that would violate the ethics rules.34 The ABA concluded that a lawyer may advise a client in this situation so long as the advice does not violate the underlying purpose of Model Rule 4.2, which is to protect persons who have chosen to be represented by a lawyer from overreaching or interference by other lawyers participating in the matter and from the uncounselled disclosure of information relating to the representation.35 Thus, the lawyer may need to counsel the client to advise the other party to consult with counsel before entering into obligations, making admissions or disclosing information.36 Conclusion While there was no overarching theme to developments that occurred in the area of legal ethics during 2011, several of the issues are widely applicable to lawyers regardless of practice area or firm size. As we seek to discharge our duty to represent our clients to the best of our abilities, we must remain mindful of our ethical duties and how they impact the ways in which we “honestly demean [ourselves] in the practice of law.”
include explicit permission for lawyers to disclose confidential information as part of the hiring process. 13. Texas Disciplinary Rules Prof’l Conduct 1.05(b). 14. Texas Comm. on Prof’l Ethics, Op. 607, 74 Tex. B.J. 770 (2011). 15. I.d 16. I.d 17. ABA Comm. on Prof’l Ethics & Grievances, Formal Op. 455 (2009). 18. Texas Comm. on Prof’l Ethics, Op. 610, 74 Tex. B.J. 857 (2011). 19. I.d 20. I.d 21. I.d 22. I.d 23. Texas Comm. on Prof’l Ethics, Op. 605, 74 Tex. B.J. 418 (2011). 24. Texas Comm. on Prof’l Ethics, Op. 606, 74 Tex. B.J. 660 (2011). 25. Texas Comm. on Prof’l Ethics, Op. 608, 74 Tex. B.J. 772 (2011).
26. Texas Comm. on Prof’l Ethics, Op. 609, 74 Tex. B.J.
856 (2011).
27. ABA Comm. on Prof’l Ethics & Grievances, Formal
Op. 459 (2011).
28. ABA Comm. on Prof’l Ethics & Grievances, Formal
Op. 460 (2011).
29. I.d 30. ABA Comm. on Prof’l Ethics & Grievances, Formal
Op. 458 (2011).
31. I.d 32. I.d 33. ABA Comm. on Prof’l Ethics & Grievances, Formal
Op. 461 (2011). ABA Model Rule 4.2 prohibits communication between a lawyer and a person that the lawyer knows to be represented by counsel, unless that person’s counsel has consented to the communication. 34. Model Rules of Prof’l Conduct R. 8.4(a) (2011). 35. ABA Comm. on Prof’l Ethics & Grievances, Formal Op. 461 (2011). 36. I.d
CONTRARY TO POPULAR BELIEF
LAWYERS
HAVE BRAINS TOO
Shayne Newell is Assistant General Counsel at Baker Botts L.L.P. in Houston, where she advises lawyers firmwide on issues relating to legal ethics, conflicts of interest, compliance, and risk management. Endnotes
Tex. Gov. Code § 82.037. See 73 Tex. B.J. 900 (2010). See http://www.texasbar.com/Content/ NavigationMenu/ForLawyers/ GrievanceInfoandEthicsHelpline/ ReferendumTotal2011WEB.pdf 4. The opinions are available from the University of Houston Texas Ethics Reporter website (http://www. law.uh.edu/Libraries/ethics/) and are also published in the Texas Bar Journal. 5. Texas Comm. on Prof’l Ethics, Op. 604, 74 Tex. B.J. 154 (2011). 6. I.d 7. I.d 8. I.d; see also Texas Disciplinary Rules Prof’l Conduct 8.04(a)(1), reprinted in Tex. Gov. Code Ann., tit. 2, subtit. G, app. A (West 2005). 9. Texas Comm. on Prof’l Ethics, Op. 587 (2009). 10. Texas Comm. on Prof’l Ethics, Op. 607, 74 Tex. B.J. 770 (2011). 11. ABA Comm. on Prof’l Ethics & Grievances, Formal Op. 455 (2009). 12. I.d The ABA Commission on Ethics 20/20 has proposed an amendment to Model Rule 1.6 that would 1. 2. 3.
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The Ethical Challenges Facing In-House Counsel
By Y. Nicole Montgomery
T
he complexities of ethical considerations for many inhouse counsel are similar to the predicament described by Charles Dickens in A Tale of Two Cities: “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness...”1 Often, in-house counsel find themselves in a conflicting dual role between business partner and corporate watch dog, constantly on the lookout for unethical or questionable behavior. Finding the right balance is not easy. How often are in-house counsel told to “rush this one,” “just sign it” or risk facing the wrath of pushy and aggressive senior managers or the occasional rogue CEO? In-house counsel must develop an awareness of when the line has been crossed versus when the client is standing dead center on the line. Such breach can expose them to disciplinary action and potentially cause the loss of their bar license. Of the many ethical challenges encountered by in-house counsel daily, this article discusses (1) the potential danger of handling investigations in-house, (2) waiver of the attorney-client privilege when in-house counsel become part of the business decision making process, (3) identifying the client while taking direction from an organization’s employee, and (4) handling confidential information. A Sobering Reminder On May 10, 2011, Lauren Stevens, a former GlaxoSmithKline in-house counsel, was acquitted by the U.S. District Court Judge for the District of Maryland of charges that she obstructed a federal investigation by the Food and Drug Administration (FDA). It is difficult to think
that Ms. Stevens ever imagined that one pliance and employment matters. There day she would have to choose between is a great ethical challenge for in-house representing her client zealously or riskcounsel when conducting these investiing federal prosecution. The FDA alleged gations. Although Ms. Stevens’ acquittal that Ms. Stevens obstructed an official may be comforting to in-house counsel, proceeding (i.e., an FDA inquiry into it still is a sobering reminder that lawher company’s promotional program), yers do not get a free pass if they commit concealed documents and made false crimes or assist their clients in doing so.4 statements to the FDA. In granting the acquittal, the court focused on Ms. SteWaiver of Attorney-Client Privilege vens’ role as an attorney whose consulIn-house counsel do not set out to comtation with outside counsel determined mit crimes or assist their clients in dowhat documents and ing so. In fact, most statements to prolaw school graduates “Often, in-house counsel vide to the FDA. Adand law firm lawyers find themselves in ditionally, the court seek in-house posidetermined that Ms. tions for economic a conflicting dual role Stevens’ responses stability during turbetween business partner were in accordance bulent job markets, and corporate watch dog, with the “Safe Harto enhance work2 bor” rule that prolife balance, or for constantly on the lookout an opportunity for tects an attorney for unethical or more involvement who zealously reprewith business issents her client.3 questionable behavior. sues. However, the Ms. Stevens may Finding the right balance involvement of inhave been able to house counsel with avoid this situation if is not easy. How often business decisions is she worked with outare in-house counsel both a blessing and a side counsel to hancurse.5 The benefit of dle the investigation, told to ‘rush this one,’ instead of conductin-house counsel in‘just sign it’ or risk facing ing the investigation volvement is the abilthe wrath of pushy and in-house. Using outity to build more coside counsel helps hesive business unit aggressive senior more clearly define teams within the managers...” the attorney-client organization, while relationship because there is a danger of a clear separation between the orgathat the attorney-client privilege may nization and legal representation, thus be waived because the in-house counsel reducing the likelihood that in-house becomes part of the business decision counsel is seen as part of the management making process. When in-house counsel team during the company’s response to become linked with their business colthe investigation. In-house counsel are leagues, the advice can easily shift from requested to investigate a variety of matters for an organization, including com-
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legal to business and increase the likelicorporate client prevents in-house counhood that managers will view in-house sel from disclosing confidential comcounsel less as an attorney and more as munications between the corporation’s 6 a team member. At representatives and its attorneys when times, this change “During those times the communications in the interpersonal when the organization’s are made to obtain relationship is adinterests are adverse legal services.8 Yet, vantageous for inhouse counsel, as the attorney-client to those of an it enables them to privilege does not employee, the in-house learn more about the apply when the attorcounsel should clearly business deal from ney has performed its inception, which non-legal work and inform the employee that can help prevent mainstead becomes part the attorney represents the jor problems at the of the business deciorganization, not the final hour of a deal. sion process of the U n q u e s t i o n a b l y, organization. This is employee, and that there lawyers add value particularly cumberis a potential conflict to business deals some for in-house with their analyticounsel who work of interest.” cal skills, the ability closely with the busito evaluate potential risk, find solutions, ness team. Some believe that lawyers and see many sides of an issue.7 Howshould actively participate in the key business decisions of the organization to ever, maintaining the attorney-client help avoid compliance issues and other privilege is also valuable to the organilegal issues. This approach is primarily zation. The attorney-client privilege for a
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emphasized because it is difficult to predict when legal issues will arise in a matter, and thus everyone benefits from frequent and easy communication with all of the business partners.9 However, it is important for in-house counsel to focus on the legal issues that arise during business matters or, at minimum, be aware of the potential impact on the organization’s attorney-client privilege. Who is the Client? Likewise, the ethical lines blur for inhouse counsel when representation of and a close professional relationship with the business partner advocating a particular decision is coupled with a need to please senior managers or the CEO, or when a decision affects the organization’s bottom line. This ethical challenge is perhaps highlighted most when determining the identity of the client in order to apply the attorney-client privilege. For in-house counsel, the client is the corporation or entity for whom they are employed and represent. The client
is not the individual employees or senior managers whose interests may appear to be in conflict with those of the corporation or entity. During those times when the organization’s interests are adverse to those of an employee, the in-house counsel should clearly inform the employee that the attorney represents the organization, not the employee, and that there is a potential conflict of interest. The attorney should encourage the employee to obtain independent representation.10 In-house counsel may consider having the employee sign a document acknowledging that they fully understand that the in-house counsel does not represent them and that they should obtain their own legal representation. Rule 1.12 of the Texas Disciplinary Rules of Professional Conduct require a lawyer representing an entity to act as necessary in the best interest of the organization, despite that the lawyer may report to or accept direction from “duly authorized constituents” of the organization.11 Although the in-house counsel takes
direction and receives information from employees of the company, the in-house counsel has a responsibility to follow the organization’s policies and rules when individual employees take action that is contrary to those procedures. The issue of whether in-house counsel have the independence to tell senior management, the CEO, or the board of directors something they do not want to hear is not always easy for in-house counsel to address, particularly when considering their unique position as a fulltime employee of the organization. Senior managers sometimes have difficulty understanding that an in-house counsel is not “their” lawyer, but rather represents the organization’s interests. Furthermore, in-house counsel are required to take appropriate action when “an officer, employee, or other person associated with the organization has committed or intends to commit a violation of a legal obligation to the organization or a violation of law which reasonably might be imputed to the organization, the violation
is likely to result in substantial injury to the organization; and the violation is related to a matter within the scope of the lawyer’s representation of the organization.”12 This ethical responsibility conflicts considerably with the reality that employees of the organization hire in-house counsel, review their performance, and can potentially fire them— especially considering that their employment may be the only stream of income for many in-house counsel. Handling Confidential Information In addition to the struggle to maintain independence, in-house counsel must also carefully consider when they reasonably believe that an employee’s actions are not in the best legal interest of the organization. Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct requires attorneys to keep confidential any privileged and unprivileged client information and gives limited exceptions.13 In those situations when an in-house counsel develops a reasonable belief that se-
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nior management is taking actions that are not in the best legal interest of the organization, the counsel has the ability to raise the issue to the CEO or board of directors. However, there are few allowances for the in-house counsel to reveal the confidential information when the situation escalates and the in-house counsel reasonably believes the actions of the CEO or board of directors are not in the best legal interest of the organization. The in-house counsel must believe that revealing the information is necessary to prevent the client from committing a criminal or fraudulent act or to rectify the consequences of the client’s criminal or fraudulent act committed through the benefit of lawyer’s services.14 Preserving the client’s confidential information is critical to the fiduciary relationship between the lawyer and the client; it promotes free discussion so that the lawyer is fully informed and the client obtains the full benefit of the legal system.15 An additional, but more difficult option is withdrawing from
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representation if the counsel is unable to convince senior management or the governing body to refrain from the questionable action.
Harris County, handling primarily transactional matters. She is a former Assistant City Attorney with the City of Houston. Endnotes
Conclusion Unquestionably, in-house counsel face many ethical challenges in their legal practice. Although most in-house legal departments report directly to the CEO, senior management should not be allowed to circumvent the authority of the in-house legal department. In-house counsel should educate the CEO and senior management regarding these ethical challenges and ensure that all parties involved carefully and promptly consider challenges as they arise. Otherwise, inhouse counsel risk the development of a corporate culture in which in-house counsel are discouraged from discussing and possibly finding resolutions for these real and tangible ethical issues. Y. Nicole Montgomery is senior counsel for the Metropolitan Transit Authority of
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CHARLES DICKENS, A TALE OF TWO CITIES (1859). 18 U.S.C. §1515 (c) (2010). (This chapter does not prohibit or punish the providing of lawful, bona fide, legal representation services in connection with or anticipation of an official proceeding.) 3. W. Brown, P. Burton, & M. Madigan, http://www. orrick.com/fileupload/3663.pdf (last visited October 31, 2011). 4. I.d 5. Steven Andersen, Tough Calls, Inside Counsel, May 2009 at 51. 6. I.d 7. Al Driver, Helping Guide the Corporation to Do the Right Thing: Editor interviews Thomas J. Sabatino, Jr., Executive Vice President and General Counsel, Schering-Plough Corporation. The Metropolitan Corporate Counsel, June 2007 at 64. 8. Nguyen v. Excel Corp, 197 F.3d 200, 206 (5th Cir. 1999). 9. Al Driver, Helping Guide the Corporation to Do the Right Thing: Editor interviews Thomas J. Sabatino, Jr., Executive Vice President and General Counsel, Schering-Plough Corporation. The Metropolitan Corporate Counsel, June 2007 at 51. 10. Tex. Disciplinary R. Prof’l Conduct 1.12 cmt. 4. 11. I.d 1.12(a). 12. I.d 1.12(b). 13. I.d 1.05. 14. I.d 1.05(c)(7)-(8). 15. I.d 1.05 cmt. 1. 1.
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Morgan, Lewis & Bockius LLP Porter Hedges, L.L.P. Strasburger & Price, L.L.P. Susman Godfrey LLP Weil, Gotshal & Manges Winstead PC Small Firm Champions Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Beck, Redden & Secrest, L.L.P. Gibbs & Bruns LLP Hays, McConn, Rice & Pickering, P.C. Hughes Watters Askanase LLP Johnson DeLuca Kurisky Gould PC Kroger | Burrus Schwartz, Junell, Greenberg & Oathout, L.L.P Sutherland Asbill & Brennan LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Yetter Coleman LLP Boutique Firm Champions Blank Rome LLP Coane & Associates Connelly • Baker • Wotring LLP Edison, McDowell & Hetherington LLP Fullenweider Wilhite PC Funderburk & Funderburk, L.L.P. Hicks Thomas LLP Jenkins & Kamin, L.L.P. Ogden, Gibson, Broocks, Longoria & Hall, L.L.P. Squire, Sanders & Dempsey L.L.P. Strong Pipkin Bissell & Ledyard, L.L.P. Wilson, Cribbs & Goren, P.C.
Solo Champions Law Office of O. Elaine Archie Basilio & Associates, PLLC Peter J. Bennett Law Office of J. Thomas Black, P.C. Law Office of Fran Brochstein Law Office of David Hsu Law Office of Robbie Gail Charette De la Rosa & Chaumette Law Office of Papa M. Dieye The Ericksen Law Firm Frye & Cantu, PLLC Fuqua & Associates Terry L. Hart Law Office of James and Stagg, PLLC Katine & Nechman L.L.P. The Keaton Law Firm, PLLC Law Office of Maria S. Lowry Martin R. G. Marasigan Law Offices The Law Office of Evangeline Mitchell, PLLC Morley & Morley, P.C. Bertrand C. Moser Pilgrim Law Office Robert E. Price W. Thomas (Tommy) Proctor Law Offices of Judy Ritts Cindi L. Robison Scardino & Fazel Shortt & Nguyen, P.C. Jeff Skarda Teal & Associates Tindall & England, P.C. Diane C. Treich Norma Levine Trusch
Will You Be My Friend? Ethical Issues in Social Networking
By Scott A. Durfee • In July 2011, Jonathan Hudson sent a friend request to Courtney Downing on Facebook. Their relationship? Hudson was a juror in a civil car wreck case and Downing was the defendant. After Downing reported the contact, Hudson was removed from the jury and held in contempt. Afterward, his lawyer explained: “He seemed to be a very nice kid who made a silly mistake. It is a reflection of the times. Most everyone has smartphones now. They can hop on at almost any time. And there’s a lot of down time in jury duty, so what most people do is hop on their phone. But the rules are there for a reason.” Hudson was less sanguine, expressing his dismay at the contempt finding, as one might expect, on his Facebook account.1 • On September 9, 2008, North Carolina Judge B. Carlton Terry, Jr. Facebook friended Charles Schieck, an attorney handling a child custody case in Judge Terry’s court that day. That night, Schieck posted the question, “How do I prove a negative?” on his Facebook account. Judge Terry responded, commenting on the merits of the case. Schieck then posted: “I have a wise judge.” Judge Terry was later publicly reprimanded.2 • In December 2009, during the corruption trial of former Baltimore Mayor Sheila Dixon, Maryland Circuit Court Judge Dennis Sweeney learned that five jurors had become Facebook friends with each other. Sweeney called a hearing on the matter. After that, he said, a young male juror posted on his Facebook page, “F--- the Judge.” Judge Sweeney said he asked the juror about the offensive comment and was told: “Hey Judge, that’s just Facebook stuff.” 3
I
t is no secret that social media – a term that encompasses everything from blogs, microblogs, social networks, and media sharing platforms – has integrated itself into the often stubbornly anachronistic practice of law in this country. Lawyers tell war stories online, judges befriend supporters on their Facebook pages, and jurors tweet about their jury service. Sometimes, these activities take place while a trial is ongoing, giving readers an insider’s perspective about the deliberative process and the individual participants. This has prompted much concern about whether new ethical rules need to be enacted to address these technological developments. Care should be taken, however, to recognize what has actually changed. These new social media platforms have not created new categories of content that are not addressed in the existing ethical rules. The rules already address improper communications, relationships, and other interactions. Instead, what have changed are three things: the rapidity of these communications, the scale of social interactions, and the ease of using these platforms. Messages that once may have taken days to receive are now received instantaneously; the content of a personal conversation between friends that may have taken weeks to circulate by word of mouth gossip is now circulated at the speed of light. A lawyer’s disdain for a jury verdict that may have been shared with three or four close friends may now be shared with three or four thousand blog readers or Facebook friends: Doing so is just a few keystrokes and a mouse click away. In some cases, the effect of this new ubiquity has been to disconnect users from generally understood and accepted standards of conduct. Consider Jonathan Hudson’s case, described above. In the absence of Facebook, it is highly unlikely that Hudson would ever have considered approaching the civil defendant in person during trial and trying to start a friendship. In the virtual world
of Facebook, however, Hudson felt no qualms about approaching her and seeking her online friendship. What accounts for this disconnect? It likely is because Hudson defined online “friendship” differently than many of us define real-world friendship, not as a signifier of affection or commitment, but simply as a benign link allowing him to access information about someone interesting to him. He probably put no more thought into asking for her friendship than he would have into asking for Charlie Sheen’s. This explains why he did not understand that he had done something wrong – he likely (and incorrectly) thought he could still fairly judge this person’s case even as her “friend.” This disconnect between the virtual world and the real world is not unusual: a 2010 Reuters Legal analysis found that, since 1999, at least 90 verdicts have been the subject of challenges because of alleged Internet-related juror misconduct, and more than half of the cases occurred between 2008 and 2010. The study found that judges granted new trials or overturned verdicts in 28 criminal and civil cases – 21 since January 2009, and in three-quarters of the cases in which judges declined to declare mistrials, they nevertheless found Internet-related misconduct on the part of jurors.4 In response to these concerns, many states and federal circuits have promulgated model jury instructions to instruct jurors on the limitations of social media use during trial.5 In Texas, Rule of Civil Procedure 284 mandates that judges instruct the jury as follows: Immediately after jurors are selected for a case, the court must instruct them to turn off their phones and other electronic devices and not to communicate with anyone through any electronic device while they are in the courtroom or while they are deliberating. The court must also instruct them that, while they are serving as jurors, they must not post any information about the case on the Internet or search for any information outside
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of the courtroom, including on the Internet, to try to learn more about the case. If jurors are permitted to separate before they are released from jury duty, either during the trial or after the case is submitted to them, the court must instruct them that it is their duty not to communicate with, or permit themselves to be addressed by, any other person about any subject relating to the case.6 The mandates of Rule 284 have been integrated into the instructions given jurors at the beginning of voir dire, after jury selection, and immediately prior to deliberations.7 For example, the instructions now give a trial judge the option of specifically prohibiting the use of social media (the bracketed language is currently optional): 3. Do not discuss this case with anyone, even your spouse or a friend, either in person or by any other means [including by phone, text message, email message, chat room, blog, or
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social networking websites such as Facebook, Twitter, or Myspace]. Do not allow anyone to discuss the case with you or in your hearing. If anyone tries to discuss the case with you or in your hearing, tell me immediately. We do not want you to be influenced by something other than the evidence admitted in court.8 No similar rule or instruction for jurors has been promulgated for Texas criminal courts or for courts in the Fifth Circuit.9 There should be. There should also be some guidance for the judiciary. From the unique position of being both disinterested arbiters and elected politicians, Texas judges have to walk the razor’s edge of maintaining the distance necessary to preserve the impression of impartiality while also communicating with constituents and supporters. They also have to avoid the same disconnect between activities in the social media universe and in the real world. Consider Judge Terry’s conduct.
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Caught up in the culture of Facebook, he engaged in ex parte communications in which he likely would have never engaged during a face-to-face conversation with Schieck. The ease of use overcame his inhibitions, the rapidity of the communication put his message out instantaneously, and the scale of dissemination made the communication extremely public. Judge Terry is not alone in using Facebook. According to an August 2010 survey by the New Media Committee of the Conference of Court Public Information Officers, forty percent of the responding judges reported that they are on social media profile sites; the majority of these judges are on Facebook.10 Many Texas judges and judicial candidates use Facebook for political networking, while others use social networking solely for personal communications in a non-judicial capacity. In some instances, however, social networking may influence the adjudicatory process. For example, Galveston County District Judge Susan Criss has spoken about a case in which she granted a lawyer a one-week continuance because of a death in the lawyer’s family. When the lawyer’s senior partner asked Judge Criss to extend the continuance to a month, she denied the request, telling the lawyer’s partner, “I knew from her bragging on a Facebook account that she had been partying that same week.”11 Although one cannot argue with the end result, one could argue with the means by which Judge Criss got there. Judicial notice only goes so far. The act itself of “friending” also carries some ethical freight. Canon 2(B) of the Texas Code of Judicial Conduct forbids a judge from lending the prestige of judicial office to advance the private interests of others, or to convey (or permit others to convey) the impression that they are in a special position to influence the judge.12 Although the judge may subjectively believe that accepting a friend request (or extending one) is a social or political nicety with-
out substance, the judge’s good-faith belief is only the first step of the inquiry. The conduct must also meet an objective standard of review as to whether the “judge’s impartiality might reasonably be questioned.”13 Objectively, the public exercise of discretion by a judge to friend (or not friend) a lawyer sends a message to the litigants in that judge’s court about how that judge perceives the lawyer. Although a judge’s disclaimer on his or her Facebook account may help clarify the true meaning of a decision to “friend” a lawyer, the label remains objectively meaningful. It appears that no state has outright forbidden the use of social media by the judiciary. Professor Samuel Jones at John Marshall Law School recently observed that “research has not revealed a court decision or ethics opinion that found that a judge violated the Judicial Code by simply joining an ESN site, such as Facebook or Twitter.”14 In fact, New York, Florida, South Carolina, Oklahoma, and Ohio have all issued advisory opinions permitting the use of social networking sites, although Florida and Oklahoma forbid judges from “friending” lawyers who may appear before the judge.15 The common theme in all of these opinions is that judges who use social media should be sensitive to how their online activities are perceived and adhere to the applicable canons of judicial conduct. Here in Texas, the Supreme Court has not provided guidance on the parameters of social media use by judges. It is high time that they do so. The question is ripe: besides the various academics and state ethics advisory committees that have considered the question, the American Bar Association’s Commission on Ethics 20/20 is considering the issue as well, having recently solicited comments on “what, if any guidance it should offer to lawyers who might want to link to judges on a social or professional networking site.”16 The Supreme Court and the Bar should also provide some guidance to lawyers
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about the manner in which “friending” can be used deceptively as a tool for investigation. In 2009, the Philadelphia Bar Association Professional Guidance Committee was asked whether a lawyer could instruct a non-lawyer to friend a witness in litigation for the purpose of accessing the witness’s friend-only Facebook account page.17 In short, the lawyer wanted to use a Trojan Horse to access the target’s secure account. The Philadelphia Bar disapproved: [T]he committee believes that the proposed course of conduct contemplated by the inquirer would violate Rule 8.4(c) [the equivalent to Texas Rule 8.04(a)(3)] because the planned communication by the third party with the witness is deceptive. It omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness.18 The committee gave no weight to the witness’s lack of discrimination in accepting friend requests. It was the deceptiveness of the proposed conduct that was dispositive in their opinion: Even if, by allowing virtually all would-be “friends” onto her Facebook and MySpace pages, the witness is exposing herself to risks like that in this case, excusing the deceit on that basis would be improper. Deception is deception, regardless of the victim’s wariness in her interactions on the Internet and susceptibility to be deceived.19 The committee also concluded that this conduct would violate the ethical rule against making false statements of material fact to others.20 Again, this raises the fascinating disconnect between the virtual world online and the real world. If the attorney sent a real person to befriend the witness and pump her for information, it would be costly and difficult. The witness’s natural defenses would be up and 30
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she would be naturally suspicious of the “friend’s” motives. Running a virtual friend at the witness, however, costs next to nothing and, in the wide-open Facebook culture, has some likelihood of succeeding. The Texas Professional Ethics Committee has not yet addressed the issue of whether this kind of deception is permitted. Ethics Opinion 575, however, suggests that the kind of deceptiveness described in the Philadelphia Bar Association opinion would be similarly disapproved in Texas. In that case, the Committee approved surreptitious taping of telephone calls, but specifically did not approve of a lawyer making a false representation about whether the taping was taking place.21 The same reasoning could apply to false friending in Texas: an attorney could make a friend request to a witness who could choose to friend or not friend the attorney, but the attorney could not ethically use a false identity or an intermediary to deceive the witness. This issue should be taken up and resolved sooner than later. In conclusion, although social networking is a relatively new technological development, the challenges it presents are less about content and more about learning how to make the same wise decisions people have always made, but in a much faster, much more efficient environment. Scott A. Durfee is an assistant district attorney for the Harris County District Attorney’s Office. He is also the co-chair of the Houston Bar Association Law & the Media Committee, and a member of the State Bar’s Texas Disciplinary Rules of Professional Conduct Committee. Endnotes 1.
2.
Eva-Marie Ayala, Tarrant County juror sentenced
to community service for trying to ‘friend’ defendant on Facebook, FORT WORTH STAR-TELEGRAM, Aug. 28, 2011, http://www.star-telegram. com/2011/08/28/3319796/juror-sentenced-tocommunity-service.html#storylink=omni_popula r?storylink=addthis#ixzz1WRRPLufa. Public Reprimand of Terry, N.C. Jud. Stds. Comm. Inquiry No. 8-234 (April 1, 2009), www.aoc.state. nc.us/www/public/coa/jsc/publicreprimands/
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jsc08-234.pdf. Brian Grow, As Jurors Go Online, U.S. Trials Go Off Track, REUTERS LEGAL (December 8, 2010), http://newsandinsight.thomsonreuters.com/ Legal/News/2010/12_-_December/As_jurors_go_ online,_trials_go_off_track/; see also Hon. Dennis Sweeney, Worlds Collide: The Digital Native Enters the Jury Box, 1 REYNOLDS COURTS & MEDIA L.J. 121, 125-127 (Spring 2011) (Judge Sweeney’s account of the “Facebook Five” matter). 4. See Grow, supra, n. 3. 5. Eric P. Robinson, Jury Instructions for the Modern Age, 1 REYNOLDS COURTS & MEDIA L.J. 307 (Summer 2011). 6. TEX. R. CIV. P. 284. 7. See Amendments to Texas Rules of Civil Procedure 281 and 284 and to the Jury Instructions Under Texas Rule of Civil Procedure 226A, Misc. Docket No. 11-9047, www.supreme. courts.state.tx.us/miscdocket/11/11904700.pdf. 8. TEX. R. CIV. P. 226a. 9. See Robinson, supra n.5, at 316, 394. 10. Conference of Court Public Information Officers, New Media and the Courts, at 69 (August 26, 2010), www.ccpio.org/documents/newmediaproject/ New-Media-and-the-Courts-Report.pdf. 11. Miriam Rozen, Social Networks Help Judges Do Their Duty, TEX. LAWYER (Aug. 25, 2009). Judge Criss also related the story of how, when a lawyer posted, “Bond reduction. Joy,” on Facebook, anticipating a favorable bond ruling in a pending criminal case before Judge Criss, she posted, “Joy postponed.” 12. TEX. CODE OF JUDICIAL CONDUCT Canon 2(B). 13. See TEX. CODE OF JUDICIAL CONDUCT Canon 2(A); Caperton v. A.T. Massey Coal Co., Inc., 129 S.Ct. 2252, 2267 (2009) (“Almost every State … has adopted the American Bar Association’s objective standard: ‘A judge shall avoid impropriety and the appearance of impropriety.’”) 14. Samuel V. Jones, Judges, Friends, and Facebook: The Ethics of Prohibition, 24 GEO. J. LEGAL ETHICS 281, 286 (Spring 2011); see also Genelle I. Belmas, That’s What “Friend” is For? Judges, Social Networks and Standards for Recusal, 1 REYNOLDS COURTS & MEDIA L.J. 147, 155-161 (Spring 2011) (surveying state rulings on social media usage). 15. N.Y. Advisory Comm. on Jud. Ethics, Op. 08-176 (2009); Florida Sup. Ct., Jud. Ethics Advisory Comm., Op. 2009-20 (2009); S.C. Advisory Comm. on Stds. of Jud. Conduct, Op. 17-2009 (2009); Ohio Bd. of Comm’rs on Grievances & Discipline, Op. 2010-7 (2010); Okla. Jud. Ethics Advisory Panel, Op. 2011-3 (2011); see also Washington Ethics Advisory Comm. Op. 09-05 (2009) (permitting blogging). 16. See ABA Commission on Ethics 20/20 Working Group on the Implications of New Technologies, For Comment: Issues Paper Concerning Lawyers’ Use of Internet Based Client Development Tools (Sept. 10, 2010), www.legalethicsforum.com/ files/letterhead-client-development-issues-paperfinal-9.20.10.pdf. 17. Philadelphia Bar Assn. Prof’l Guidance Comm., Op. 2009-02 at 1 (2009). 18. I.d at 3. 19. I.d 20. I.d 21. Tex. Prof’l Ethics Comm. Op. No. 575 at 3 (2006). 3.
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31
The Ethical Minefield of E-Discovery
By Gary Wiener
E
very day, potentially thousands of Texas lawyers breach their obligations under the Texas Disciplinary Rules of Professional Conduct (“TDRPC”). In most cases, of course, these ethical lapses are completely unintentional. Thanks to technology, one of the more dangerous areas for these missteps is electronic discovery, or “e-discovery.” You are probably aware that e-discovery refers to the production of non-privileged electronically-stored information (“ESI”) along with legacy paper documents during litigation discovery. Both the Texas1 and Federal2 Rules of Civil Procedure explicitly permit requests for production of ESI – not just emails, word processing docs or spreadsheets, but anything that can be stored electronically. Ethical lapses tend to occur because most attorneys have not learned their ediscovery obligations under the Rules and the case law. E-discovery is not only a problem in federal practice; the Texas Supreme Court has embraced the emerging jurisprudence regarding interpretation of the Federal Rules with respect to e-discovery.3 Only when you know where the biggest ethical pitfalls lie can you avoid them. The various ethical dilemmas that lawyers face in dealing with e-discovery deserve a more thorough treatment than this article can provide, so consider this a general map to help you navigate this ethical minefield. Hazard #1: Competence The TDRPC states unequivocally: “A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence...”4 This is a fundamental ethical tenet of the legal profession. E-discovery is playing a larger role in litigation today, and knowledge of e-discovery rules is an important component in satisfying one’s professional obligations.
Lawyers must become competent in tal role of lawyers in the legal process, e-discovery and the relevant rules, pareach lawyer should strive to become and ticularly where the predominant form of remain proficient and competent in the evidence in litigation is quickly becompractice of law. To maintain the requiing electronic. What if the attorney is site knowledge and skill of a competent not competent in this area? The Texas practitioner, a lawyer should engage in ethical rules provide an out: involve ancontinuing study and education.”8 This other lawyer who is competent to handle applies to e-discovery no less than it does e-discovery.5 to other areas of legal Passpractice. ing responsibility to “Ethical lapses tend to Federal courts will practice support or occur because most attorneys not, and Texas judges IT staff, or handing have not learned their should not, accept it to a service venany longer a lawyer’s dor, is not a solution e-discovery obligations excuse of technologiauthorized under the under the Rules and the cal ignorance. The Rules.6 Commentator response from the Ralph Losey, national case law. E-discovery is bench may well be e-discovery counsel not only a problem that of this Florida for Jackson Lewis, in federal practice; judge: “As an attorLLP, addressed this ney, the Plaintiff is issue: the Texas Supreme Court familiar with the Can a lawsuit be has embraced the emerging rules of discovery fair if only one jurisprudence regarding and should have [unside has an attorderstood] his disney competent to interpretation of the Federal covery obligations... explore the elecRules with respect to His claim that he is tronic depths, to so computer illiteruncover the truth e-discovery.” ate that he could not of what happened? comply with production is frankly ludiIs the process fair if the attorneys on crous.”9 both sides lack the competence to find the facts hidden in the electronic writings? If the attorneys agree not to look Hazard #2: Confidentiality behind the paper curtain and try a case TDRPC 1.05(b) addresses the duty of without knowing the electronic truths, counsel to safeguard the confidentiality of is that a fair trial for anyone? [¶] client information, whether privileged or Attorneys must put aside their perunprivileged.10 An attorney “should keep sonal pecuniary interest and act in the in confidence information relating to repbest interests of the client. If they are resentation of a client except so far as disnot yet competent in e-discovery, or if closure is required or permitted” by the they have limited competence and face Rules or by law.11 a problem beyond their means, they The Texas Rules of Civil Procedure are must retain co-counsel who is able, more forgiving than those of many jurisrather than avoid it or do it negligentdictions regarding the “clawback” of inly. They have an ethical duty to do so, advertently-produced documents that are even though this will lower their fees or subject to privilege, as long as the error is prove embarrassing to their false pride. caught promptly. Under TRCP 193.3(d), The interests of the client must always the mistaken production of privileged 7 come first. information does not waive the privilege claim if the error is caught promptly or within ten days after production, and if Comment 8 to TDRPC 1.01 sums up opposing counsel is notified of the error.12 the obligation nicely: “Because of the vithehoustonlawyer.com
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(A reasonably similar protection is affordcounsel must also periodically remind the ed by Federal Rule of Evidence 502.) client and key custodians (witnesses who The ethical implications arise when possess relevant evidence) of their concounsel decides to over-produce ESI in tinuing obligations to preserve documents order to beat a discovery deadline, and until the litigation has concluded.19 then attempts to claw back documents If some of this evidence goes missing, where the privilege was not discovered the court has the option to award sancuntil after production. Even if the TRCP tions in the form of potentially crippling allows such a clawback, would such a tacpenalties, up to and including dismissal tic be ethical? Other of pleadings, against state bar associations the offending party. It “TDRPC 3.02 states: have analyzed the stands to reason that In the course of litigation, analogous ABA Modif electronic docuel Rules and warned, ments are spoliated a lawyer shall not take “If... the disclosure due to the willful aca position that occurred because tions of counsel20 and counsel failed to reunreasonably increases the court issues sancview the documents tions to penalize one the costs or other to be made available party as the result, burdens of the case to possessing counsel the offending attorwith the thoroughney has not only vioor that unreasonably ness and preparalated TDRPC 3.04, delays resolution tion... or the skill and but, by virtue of the of the matter.” care required under effect of the sanction, [the Rules], the inadhas also failed in his vertence could be an ethical violation.”13 ethical obligation to zealously represent his client. Hazard #3: Evidence Preservation A lawyer’s ethical duties regarding e-disHazard #4: Candor to the Court covery also extend to reasonable efforts to TDRPC 3.03(a) prohibits a lawyer from locate and produce the relevant ESI. Unknowingly making “a false statement of der TDRPC 3.04, a lawyer may not “unmaterial fact or law to a tribunal” or oflawfully obstruct another party’s access fering “evidence that the lawyer knows to to evidence; ...unlawfully alter, destroy be false.”21 An emerging body of case law or conceal a document or other material finds a number of e-discovery situations that a competent lawyer would believe where counsel or their clients have tried has potential or actual evidentiary value; to “hide the ball” and been caught. The or counsel or assist another person to do results have not been pretty. any such act.”14 This is because ESI can One very prominent 2008 case caught be tricky to locate, but easy to overlook, the attention of litigators across the counalter, or delete. try. In Qualcomm v. Broadcom,22 the magThe duty to preserve electronic evidence istrate judge found that Qualcomm intenattaches once a party is sued or when the tionally withheld tens of thousands of key party can reasonably anticipate that it documents, blamed Qualcomm’s outside is likely to be sued in the future.15 This counsel for failure to properly supervise duty applies both to in-house counsel,16 the production, and ordered Qualcomm who may neither intentionally nor neglito pay $8.5 million in sanctions. The gently spoliate (destroy or meaningfully court also referred six of the outside atalter) evidence,17 and outside counsel, torneys to the California bar for investigawho must “make certain that all sources tion of ethical violations.23 of potentially relevant information are Even though the “Qualcomm Six” were identified and placed ‘on hold.’”18 Outside ultimately able to prove that their client 34
July/August 2011
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had misled them as to the existence of the ESI,24 the court made its point loud and clear: attorneys have an ethical obligation to be honest and forthcoming with the court, and to do their best to ensure that their clients do so as well. In this respect, the attorney’s obligations have not really changed, despite the increase in ediscovery: [T]he duties to make a reasonable inquiry and a reasonably diligent effort in responding to discovery requests and not to conceal potentially relevant material compel an attorney to review and produce ESI with the same candor and good faith as with hardcopy documents stored in a rusty old file cabinet or a client’s desk drawer.25 Hazard #5: Failure to Cooperate TDRPC 3.02 states: “In the course of litigation, a lawyer shall not take a position that unreasonably increases the costs or other burdens of the case or that unreasonably delays resolution of the matter.”26 This Rule addresses those situations where a lawyer or the lawyer’s client perceive the client’s interests as served by conduct that delays resolution of the matter or that increases the costs or other burdens of a case. Because such tactics are frequently an appropriate way of achieving the legitimate interests of the client that are at stake in the litigation, only those instances that are unreasonable are prohibited.27 The problem is that many attorneys convince themselves that cooperation with opposing counsel is in direct conflict with their notion of “zealous advocacy,” or might be perceived by the opposition as a sign of weakness. The federal courts have been active in trying to encourage – or require – counsel to work together: It cannot seriously be disputed that compliance with the “spirit and purposes” of [the FRCP] discovery rules requires cooperation by counsel to identify and fulfill legitimate discovery needs, yet avoid seeking discovery the cost and burden of which is dispro-
portionally large to what is at stake in the litigation. Counsel cannot “behave responsively” during discovery unless they do both, which requires cooperation rather than contrariety, communication rather than confrontation.28 One New York federal magistrate minced no words in issuing a “wake-up call” to the bar regarding cooperation between opposing counsel: “Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. ...It is time that the Bar – even those lawyers who did not come of age in the computer era – understand this.”29 Hazard #6: The Ethics of Metadata Metadata, frequently referred to as ESI “data about the data,” poses an ethical dilemma on two fronts: 1. Should metadata be purged or “scrubbed” from an electronic file before it is produced to opposing counsel? 2. Is it fair for opposing counsel to attempt to “mine” the metadata for clues to privileged information that the producing party might have missed?
sult, an attorney may inadvertently reveal her client’s bottom line on a contract negotiation by failing to erase comments on a draft to another party. Is it ethical for counsel to scrub metadata before sending ESI to opposing counsel in discovery? On the one hand, changing or deleting metadata within an electronic file is tantamount to changing the file itself, and therefore amounts to intentional spoliation of the data. On the other, many attorneys have for years tried to avoid the review of metadata by imaging all electronic files into paper or TIFF format – thereby stripping all metadata except for the visible content – and then including an electronic “load file” containing limited metadata so that the receiving counsel can load the files and metadata into their own document review platform. Much of the practice of selective scrubbing should have come to a stop when the Federal Rules of Civil Procedure were amended in December 2006. FRCP 34(b) requires the parties, in the absence of an
agreement to the contrary, to produce ESI as normally kept by the party in the usual course of business.30 This typically requires production of the native ESI files along with their metadata. Similarly, TRCP 196.4 requires the requesting party to specify the form of production sought, and the responding party must produce responsive ESI that “is reasonably available to the responding party in its ordinary course of business.”31 While there certainly is nothing unethical about redacting and logging hidden metadata that may be subject to privilege, a lawyer arguably breaches her ethical duty of competence if her “technophobia” results in privileged metadata ending up in the hands of her more technogicallyadept opponent. Mining the Metadata The magnitude of such a failure expands because jurisdictions cannot agree on whether “mining” or examining the metadata in received ESI productions is ethi-
To Scrub or Not to Scrub? Metadata typically consists of information regarding the creation of and changes to an electronic document. Certain metadata such as the software used to create the file, who created the file, and when the user created the file tends to be relatively benign. More important metadata usually reveals a record of changes made to the content and comments typed in during the revision process, as well as who made the changes and comments. For instance, a Microsoft Word document may contain a complete version history of the document if the application’s “Track Changes” setting had been selected. If counsel is not aware that old versions of the content are being tracked and stored, it would be very easy to miss this metadata during privilege review. As a rethehoustonlawyer.com
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cal. A technologically proficient user who knows what she is looking for and how to find it can unearth a potential treasure trove of useful metadata. For example, the metadata might contain a list of people who collaborated on a document and the date on which it was created and sent. This metadata might then be used to impeach a witness who testifies that he was the sole author of the document and that he created and sent the document on a different date. The Texas Supreme Court Professionalism Committee has not yet spoken to this issue. The national and state bars that have addressed it cannot agree as to whether metadata mining is ethical or unethical, or even whether a bright-line test is appropriate.32 Conclusion There are more potential hazards of which attorneys should be aware, but the upshot is simple: those attorneys who have not educated themselves about e-discovery, or do not work with attorneys who have, are in breach of their ethical obligations under the Texas Disciplinary Rules. Many attorneys might argue that they pay a support staff to tackle just such technological issues, but that argument will not fly any longer. It is the attorneys, not the support staff, who must represent to their clients and to the court that they are competent to han-
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dle matters involving ESI. It is the attorneys, not the support staff, who may have to answer to a grievance committee if they fail to do so. As the use of ESI in litigation increases, your ethical duties to your clients and to the court demand that you learn the language of e-discovery. Gary Wiener (Twitter: @GaryWiener) is an e-discovery instructor and subject matter expert for Autonomy, Inc. He also is a member of The Houston Lawyer Editorial Board. Endnotes
TEX. R. CIV. P. 196.4. FED. R. CIV. P. 34(a) (hereinafter “FRCP”). 3. In re Weekley Homes, L.P., 295 S.W.3d 309, 316-17 (Tex. 2009). 4. TEX. DISCIPLINARY R. PROF’L CONDUCT 1.01(a), reprinted in TEX. GOV’T CODE ANN. tit. 2, subtit. G app. A (Vernon 2005) (hereinafter “TDRPC”). 5. TDRPC 1.01(a)(1). 6. See, e.g., First Amended Complaint, J-M Mfg. Co., Inc. v. McDermott Will & Emery (Case No. BC463832, Cal. Supr. Ct. L.A., July 28, 2011) (available at http://commonscold.typepad.com/files/j-m_mfg_v_ mcdermott_1st_amended_complaint_lasuperiorcourt. pdf) (last visited Nov. 10, 2011). 7. Ralph Losey, “Ethics Interview,” e-Discovery Team, http://e-discoveryteam.com/interviews/ethicsinterview (last visited Nov. 10, 2011). 8. TDRPC 1.01, cmt 8. 9. Martin v. Northwestern Mutual Life Ins. Co., 2006 WL 148991 (M.D. Fla., Jan. 19, 2006). 10. TDRPC 1.05(a). 11. TDRPC Preamble paragraph 3. 12. TEX. R. CIV. P. 193.3(d). 13. Laura Catherine Daniel, The Dubious Origins and Dangers of Clawback and Quick-Peek Agreements: An Argument Against Their Codification in the Federal Rules of Civil Procedure, 47 WM. & MARY L. REV. 663, 681-82 (2005), citing D.C. Bar, Ethics Op. No. 256 (1995) and Ky. Bar Ass’n, Ethics Op. No. E-374 (1995). See also Colo. Bar Ass’n Ethics Comm., Formal Op. 119 (May 17, 2008). 1. 2.
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14. TDRPC 3.04(a). 15. See Silvestri v. GMC, 271 F.3d 583, 591 (4th Cir.
2001); Pension Committee of the Univ. of Montreal Pension Plan v. Banc of Am. Securities, LLC, 685 F. Supp. 2d 456, 466 (S.D.N.Y. 2010). 16. See, e.g., Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (Zubulake IV); Micron Tech., Inc. v. Rambus, Inc., No. 09-1263, 2011 WL 1815975 (Fed. Cir. May 13, 2011). 17. See, e.g., Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 (N.D. Cal. 2008) (sanctioning defendant with adverse inference at trial); Great Am. Ins. Co. of N.Y. v. Lowry Dev., LLC, 2007 WL 4268776 (S.D. Miss. 2007) (reducing the plaintiff’s burden of proof as spoliation sanction against defendant). 18. Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422, 430 (S.D.N.Y. July 2004) (Zubulake V). 19. Id. 20. “As a general rule, in this circuit, the severe sanctions of granting default judgment, striking pleadings, or giving adverse inference instructions may not be imposed unless there is evidence of ‘bad faith.’” Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 614 (S.D. Tex. 2010); but cf. Pension Committee, supra n. 17. 21. TDRPC 3.03(a)(1) and (5). 22. No. 05-CV-1958-RB (BLM), 2008 WL 66932 (S.D. Cal. Jan. 7, 2008) (Major, Mag. J.), vacated on other grounds, No. 05-CV-1958-RB (BLM), Slip. Op. at *4-6 (S.D. Cal. Mar. 5, 2008). 23. Id. at *17-18. 24. See Qualcomm, No. 05-CV-1958-RB (BLM), Slip. Op. at 6 (S.D. Cal., Apr. 2, 2010). 25. David Cross and Ty Carson, Ethics and E-Discovery – ‘Reasonable Inquiry’ in the Wake of Qualcomm v. Broadcom, 9 Digital Discovery & e-Evidence (BNA) No. 01, at 2 (Jan. 1, 2009). 26. TDRPC 3.02. 27. Id., cmt 1. 28. Mancia v. Mayflower Textile Servs. Co., et al., Civil Action No. 1:08-CV-00273-CCB (D. Md. Oct. 15, 2008). 29. William A. Gross Const. Associates, Inc. v. Amer. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. March 19, 2009). 30. FED. R. CIV. P. 34(b)(2)(E)(i). 31. TEX. R. CIV. P. 196.4. 32. See “Metadata Ethics Opinions Around the U.S.,” American Bar Ass’n, http://www.americanbar.org/ groups/departments_offices/legal_technology_ resources/resources/charts_fyis/metadatachart.html (last visited Nov. 10, 2011).
PLACEMENT POLICY
1. In order to place an ad, attorneys and law firms must complete a registration record. Once registration is complete, your position wanted or available will be registered with the placement service for six months. If at the end of the six-month period you have not found or filled your position, it will be your responsibility to re-register with the service in writing. 2. If you are registered, resumes will be sent out under their assigned code numbers. Once a firm has reviewed the resumes, they are to contact the placement office with the numbers they are interested in pursuing. The placement coordinator will then contact the attorney, give him/her some background information on the inquiring firm, and the attorney will then let the coordinator know if he/she wishes personal information to be released to the firm. This process will insure maximum confidentiality and get the information to the firms and attorneys in the most expedient manner. 3. In order to promote the efficiency of the Houston Lawyer Placement Service. PLEASE NOTIFY THE PLACEMENT COORDINATOR OF ANY POSITION FOUND OR FILLED. 4. To reply for a position available, send a letter to HBA, placement coordinator at the Houston Bar Association, 1300 First City Tower, 1001 Fannin Street, Houston, Texas 77002 or e-mail Brooke Eshleman at BrookeE@hba.org. Include the code number and a resume for each position. The resume will be forwarded to the firm or company. Your resume will not be sent to your previous or current employers. PLACEMENT DEADLINES Jan. 1 Jan./Feb. Issue Mar. 1 March/April Issue
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5076 Boutique Civil Litigation law firm specializing in complex business litigation is looking for an associate attorney with 1-3 years litigation experience and excellent research and writing skills. 5080 Houston public pension fund seeking Associate Counsel reporting to CLO. Approx. 4 yrs. experience with pensions, employment, administrative, institutional investing or local government law. Competitive benefit package. Background checks required.
5084 Full time associate position available. 5+ years experience required. Must have commercial and personal injury background. Competitive compensation package.
tization process of commercial loans and the duties and responsibilities of Mortgage Loan Originators/Depositors, Underwriters of REMIC Trusts, Rating Agencies, Trustees, Servicers and Special Servicers. 5094 ESTATE PLANNING Looking for in-house position. – PROBATE ATTORNEY. SUGAR LAND. Board certiIf you need fied attorney, 33 year Houston information area practice serving Harris/ Fort Bend counties, seeking about the associate attorney with adLawyer Placement vanced estate planning and Service, please probate experience.
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placement service
The Houston Bar Association Lawyer Placement Service will assist members by coordinating placement between attorneys and law firms. The service is available to HBA members and provides a convenient process for locating or filling positions.
A Profile in professionalism
L
Daniella LandeRS Partner, Sutherland Asbill & Brennan LLP
The Houston Lawyer
egal professionalism requires an appreciation of the complex role of law and its impact on our society. According to Aristotle, “law is reason free from passion.” Trust me, I understand the intent of Aristotle’s assertion—simply that law is not biased, or at least is not intended to be, and should not be subject to inconsistent, unbridled desires and passions. In that sense, Aristotle is correct, though he did not go far enough. Rather, I think that reason and passion are the two halves of one complete whole, equally yoked in the legal profession. In fact, reason has no endurance in the search for justice, fairness and truth without the motivating force of passion. Reason guides. Passion
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drives. Lawyers are supposed to be the navigators of both simultaneously. Constant challenges to the integrity of our profession amplify the pressures on attorneys, firms, judges and the courts to tackle the gamut of social, economic, civil and criminal issues facing the people in our society. To be most effective, we, as members of the bar, must remain passionate to the enduring values of honesty, diligence, compassion, patience, and respect that have historically made our profession a positive force on all mankind. So, while the law may be considered “reason free from passion” to Aristotle and perhaps others, the truth is that our great legal profession encompasses reason eternally coupled with passion in perfect harmony.
COMMITTEE SPOTLIGHT
The Professionalism Committee By Julie Barry
T
tices in the same area of law. It also sponsuch as Judge Keith Ellison, who generhe American Bar Association sors bi-annual breakfast gatherings for the ously devoted his time to the task this defines professionalism as mentors and their protégés. The program fall. Students are then divided into small “strict adherence to a core body paired over 1,100 Houston attorneys with breakout sessions, and discuss a set of of values which sets members a mentor since 1997. hypothetical ethical scenarios with local of the profession apart and jusIn addition to its two core programs, attorneys and judges. Approximately 50 tifies their claim to an exclusive right to the Professionalism Committee also sponbreakout leaders recruited by the commitengage in the profession’s activities.” The sors a fall and a spring Houston Bar Association ethics lecture designed for has promulgated its own attorneys with two years interpretation of profesof experience or less. sionalism through its Area judges provide the Lawyer’s Mandate which lectures, and participants states in its preamble that are able to receive CLE “the conduct of a lawyer credit. Last but not least, should be characterized at the committee gives each all times by honesty, canmember of the Harris dor, and fairness. In fulCounty judiciary a framed filling his or her primary copy of HBA’s Mandate on duty to a client, a lawyer Professionalism, provides must be ever mindful of each new HBA member the Profession’s duty to with a copy suitable for the legal system.” framing, and provides a The Professionalism Law students attend a breakout session during the October 28, 2011 Professionalism Day, Committee fulfills HBA’s hosted this year by Thurgood Marshall School of Law. The small group sessions, led by copy of the mandate to commitment to fostering distinguished Houston attorneys and judges, assist students in learning how to deal with every law student enrolled in professional reits mandate. The commit- ethical issues that could arise once they are in practice. sponsibility classes at Houston’s three law tee assist with the conference, tee consists of approximately 22 members schools. The most recent Professionalism Day and many other volunteers. Its co-chairs The Houston Bar Association and the was conducted October 28 on the campus for this year are Jim Winton, a partner Professionalism Committee want to enof Texas Southern University’s Thurgood with Baker Hostetler LLP, and Erin Luncsure that every Houston lawyer begins his Marshall School of Law. Six hypothetical eford, a shareholder with Sprott, Rigby, or her career with the ethical tools to tackethical scenarios were discussed at that Newsom, Robbins & Lunceford, P.C., le any scenario. To find out more about time. “We try to use scenarios that are both of whom have years of experience the Professionalism Committee, please relevant,” explained co-chair, Jim Winand professionalism under their belts. contact Kay Sim, Ashley Steininger, Claire ton, who believes the hypotheticals can The committee promotes professionalNelson, or Brian Edwards at the HBA at provide valuable lessons for attorneys at ism within the legal community through 713-759-1133. every level. its two key programs, Professionalism The Mentor/Protégé Program, which Day and the Mentor/Protégé Program. in its present form was started by Justice Professionalism Day is an annual conJulie Barry, attorney at law, focuses Eugene Cook in 1997, pairs any attorney ference the committee conducts for law on U.S. and international commercial who has three years of experience or less students attending Houston’s three law transactional matters. She is an associate and requests one with a mentor who pracschools. It features a keynote speaker, editor for The Houston Lawyer. thehoustonlawyer.com
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OFF THE RECORD
Jim Berry:
Using Golf to Model Core Values By Julie Barry academic performance from student participants. Because of the measured success of the program and the increasing demand by lthough he was temporarily filling in for another cadother schools in the Houston area, the HGA has made it a future dy, for about 15 minutes, at the age of 13, Jim Berry mission to increase the First Tee program by 275 schools, reachcaddied at the U.S. Open. The daunting responsibility ing an additional 137,500 children, and to add two more green of his task did not go unrecognized by Jim, nor did the grass facilities within the metropolitan area during the next five pride and the confidence that it instilled in him. That years. These are lofty aspirations for the HGA, but this organizawas the point in his life when his passion for golf began to take tion is all about perseverance. off. Since that time, the golf green has When Jim is not spending time faprovided Jim with a lifetime of pleasure, cilitating others in enjoying the sport of and he in turn has made it his mission golf, he manages to play a bit himself. to give back to the sport he loves and He and his golfing buddies play at difbetter his community in the process. ferent courses all over the city, and he As an active member of the Houston notes that the accessibility of so many Golf Association (HGA) and this year’s golf venues in one city is a huge benefit Chairman of the Board of Directors, Jim that Houston has to offer to the lover has devoted countless hours to enabling of the game. Notwithstanding that Jim golf to serve as a character building vehas been playing golf for more than 40 hicle for Houston-area youth. years, he still advocates taking a golf lesThe HGA was founded in 1946 by son every now and then to break those a group of Houstonians who wanted bad habits we all fall into over time. to bring a PGA tour event to the area. Don’t think that Jim spends all of his Since 1974, that event has been the Shell time on the golf course. As a shareholdHouston Open, which has generated er of Chamberlain Hrdlicka, he is board more than $53 million for its charitable causes. Youth development and educa- Jim Berry with a young participant at The First Tee Championship certified in commercial real estate. Jim also boasts extensive experience tion has always been a core HGA objec- Challenge. representing automobile dealerships. He joined the firm fresh tive in supporting multiple charities, but in recent years, with the out of law school and has been there ever since. His colleagues enormous success of its First Tee program, the HGA has added at Chamberlain describe him with enormous respect as an indigreater focus to the development of this particular program. vidual having the utmost integrity. As a lawyer, Jim is known for The First Tee of Greater Houston operates an “in school” prohis sound legal and business judgment, and most of all, for his gram throughout the Houston metropolitan area, which currently honesty and professionalism. reaches 142 schools, serving approximately 70,000 elementaryIn fact, the HGA could not have chosen a better leader to serve aged students. First Tee works through the health fitness proas chairman of an organization dedicated to its purpose of makgrams at its participating schools in teaching children golf skills ing a difference in the Houston community and its youth through and at the same time instilling them with the organization’s Nine golf and charity. Core Values. Through the First Tee program, the HGA also funds For more information about the Houston Golf Association and two green grass facilities at Redstone and Houston Oaks, which how you can volunteer your time, visit www.hga.org. provide First Tee participants with access to golf greens and additional coaching assistance. Enabling students to play on actual Julie Barry, attorney at law, focuses on U.S. and international greens has been fundamental to teaching them sportsmanship commercial transactional matters. She is an associate editor and courtesy. Teachers and school administrators attest to the for The Houston Lawyer. success of the program with stories of improved behavior and
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Media Reviews
David & Lee Roy: A Vietnam Story By David R. Nelson and Randolph B. Schiffer Texas Tech. University Press, 2011 255 pages
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Reviewed by Polly Graham avid & Lee Roy, a book written by Houston lawyer David Nelson, takes its reader on a journey that begins with a bond between two children growing up on the Southern Plains, traverses the battlefields of Vietnam, and ends with one man’s quest to honor a lost friend. It is the poignant story of a young marine, Lee Roy Herron, who heroically gives his life defending his country and his friend, David Nelson, who keeps his memory alive. The book opens with a casket delivered home on a windy March day, but quickly rolls time back to earlier years. In simple prose, Nelson describes growing up with Herron in Lubbock, Texas. The initial chapters are a series of snapshots capturing key moments, both ordinary and extraordinary, that reveal Herron’s competitive, intensely patriotic, and reflective character. As time progresses, the young men enroll at Texas Tech University, where Herron dreams of becoming a marine officer and Nelson hesitantly follows in his path. In the summer of 1966, with the United States involved in the war in Vietnam,
Nelson chronicles his experiences at a marine training camp, where daily life is governed by new and often brutal norms. As 1967 comes to a close, the demands of work and marriage lead the men on separate paths. Herron arrives at basic training in Quantico, Virginia. Nelson enters Southern Methodist School of Law, where he describes the difficulties of legal studies. Throughout the book, Nelson recognizes the sacrifices of a demanding career, including time lost with his eldest daughter and his absence at Herron’s wedding. While Nelson struggles in law school, across the world twenty-four year old Lieutenant Herron, only four months into his tour in Vietnam, takes command of a platoon of marines pinned down by enemy fire in the A Shau Valley. In recognition of his extraordinary valor on that fateful day, the United States Navy awards Herron its highest distinction, the Navy Cross. In the book’s final chapters, Nelson reflects on the highs and lows of his legal career in Houston, candidly admitting that for a brief time he envied Herron for avoiding the continuous challenges of work, family and politics. Eventually, Nelson begins a search to remember and honor Herron. He gathers accounts of Herron’s last moments and travels to Vietnam, where he decides to create a scholarship in Herron’s memory. David & Lee Roy is an elegant and candid account of friendship, loss, and renewal. It will touch the reader and encourage all to make the most of each moment of time. Polly Graham is an associate in the appellate practice group at Haynes and Boone, LLP and is a member of The Houston Lawyer editorial board.
The ABA Spanish Legal Phrasebook By Samantha Snow Ward and Corinne Cooper American Bar Association, 2010 104 pages $34.95 — www.ababooks.org
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Reviewed by Julie Barry s a commercial law practitioner who speaks a fair amount of Spanish but who would like to elevate my abilities to a more professional level, I recently purchased The ABA Spanish Legal Phrasebook, by Samantha Snow Ward and Corinne Cooper. This pocketsize, 104-page resource offers the reader a quick Spanish reference to many legal terms used in everyday practice. The book provides a short section on common legal phrases and then divides into seven sections based on areas of practice, such as criminal law, family law, business law, and immigration. Each section contains terms common to that practice area. For example, the personal injury and medical malpractice section contains translations for phrases such as “degenerative changes,” “collateral source rule” and “claims paid coverage.” The bankruptcy section contains translations for terms such as “dischargeable debt,” “debtor in possession,” and “motion to lift automatic stay.” Because the ABA phrasebook is divided into sections, you must give an educated guess as to which section a particular phrase will fall under in searching the resource. This task is not difficult in
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Media Reviews
most cases, but is something to keep in mind. Additionally, you cannot use this resource to look up Spanish legal phrases for translation into English. As useful as the information is, don’t be fooled into thinking this resource will teach you how to speak Spanish. It is intended to assist professionals who already have a working knowledge of the language. With just a little over 1,000 words and phrases, the phrasebook also does not attempt to give the reader a highly sophisticated vocabulary of legal terms. Some of the phrases are in fact quite basic but are not the types of words you would find in a typical pocket dictionary. For example, I checked some random phrases from the “Business Law” section, such as “audit,” “quorum” and “fiduciary” to see if I could find them in my Barron’s Spanish English Pocket Dictionary. None of these words were in my Barron’s dictionary. Clearly,
other phrases in the ABA phrasebook are more complex, which is the real value of this resource. You can find the Spanish translation for such phrases as “shareholder derivative suit,” “contingency fee agreement,” “liquidated damages” and “temporary restraining order” in the ABA book. The authors of The ABA Spanish Legal Phrasebook have attempted to find a balance in the level of sophistication they have produced in the book. There are a multitude of practicing attorneys who are fluent in Spanish who will have no need for this book. Additionally, there are many attorneys with little knowledge of Spanish who will not find the Phrasebook particularly helpful if they are unable to communicate with their clients in Spanish on the most basic level. The ABA Spanish Legal Phrasebook, however, fills a clear void in reference materials available for Spanish-speaking lawyers
who need a technical legal vocabulary. Both authors of The ABA Spanish Legal Phrasebook are licensed attorneys who have a number of years of experience in their fields and strong backgrounds in Spanish. They both also have published numerous treatises for the ABA and are contributors to the forthcoming ABA publication entitled Letters for SpanishSpeaking Clients. At $34.95, The ABA Spanish Legal Phrasebook is a bit pricey compared to your typical pocket Spanish dictionary (my Barron’s pocket dictionary cost me $8.99). But this resource is well worth purchasing by the professional who is working towards Spanish proficiency. Julie Barry, attorney at law, focuses on U.S. and international commercial transactional matters. She is an associate editor for The Houston Lawyer.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION PUBLIC NOTICE REAPPOINTMENT OF INCUMBENT MAGISTRATE JUDGE STEPHEN W. SMITH The current term of the office of United States Magistrate Judge Stephen W. Smith at Houston, Texas, is due to expire July 21, 2012. The United States District Court is required by law to establish a panel of citizens to consider the reappointment of Magistrate Judge Stephen W. Smith to a new 8 year term. The duties of a Magistrate Judge position include the following: 1. Conducting most preliminary proceedings in criminal cases; 2. Trial and disposition of misdemeanor cases; 3. Conducting various pretrial matters and evidentiary proceedings on delegation from the judges of the district court; and, 4. Trial and disposition of civil cases upon consent of the litigants. The Houston Lawyer
The court invites comments from members of the bar and the public as to whether the panel should recommend the reappointment of Magistrate Judge Stephen W. Smith to the court. Direct comments to: Stephen W. Smith Reappointment Panel; Attention: David J. Bradley, U. S. District Clerk, (under confidential cover), P.O. Box 61010, Houston, Texas 77208. Comments must be received no later than January 20, 2012, 5:00 p.m. 42
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LEGAL TRENDS
Extreme Appellate Savings: Four Tips for Making Every Dollar Count on Appeal
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By Christina Crozier hether your client is an individual, a small business owner, or a general counsel at a large corporation, spending litigation dollars wisely is a high priority in this economy. Now more than ever, part of being a true counselor to clients means caring about their bottom line and helping them to avoid unnecessary spending. After trial and on appeal, there are several things that you can do to save your clients thousands of dollars without cutting corners on quality work product. • Scrutinize costs in the final judgment. Parties often fail to thoroughly comb through the costs sought by a prevailing opponent. Under Texas law, costs generally include the fees and charges required by law to be paid to courts or their officers. Costs do not include the expenses incurred in prosecuting or defending a lawsuit. Examples of unrecoverable costs include fees for photocopies (unless those copies are required by law), expert witnesses, delivery services, travel, binding of documents, and “other expenses in preparation of trial.” By weeding out unrecoverable costs, you can put thousands of dol-
lars back into your clients’ pockets. • Consider whether your client can obtain alternate security. The traditional way to suspend enforcement of a judgment pending an appeal is through a supersedeas bond in the amount of compensatory damages, interest, and costs. But when your client has been hit with a $1 million judgment, ponying up $1 million in cash for a supersedeas bond can be devastating and cost-prohibitive. You can lower the cost of the bond, however, under certain circumstances. First, a supersedeas bond cannot exceed 50 percent of the judgment debtor’s current net worth. For example, if the judgment against your client is for $1 million and your client’s net worth is only $500,000, you can lower the amount of the bond to $250,000. Second, regardless of your client’s net worth, the amount of a supersedeas bond must not cause the judgment debtor “substantial economic harm.” Under the same example, if paying any more than $100,000 in cash would drive your client into bankruptcy, you might secure the judgment with just a $100,000 bond. Third, a supersedeas bond cannot exceed $25 million. In the rare case where a judgment exceeds this amount, you can cap the cost of the bond at $25 million. • Don’t over-designate the record. A large appellate record can cost more than $30,000. The appellant is responsible for designating the contents of both the clerk’s record and the reporter’s record, and the cost of the record will ultimately depend on how big it is. Rather than throw in every conceivable document, take the time to really consider what parts of the record will be necessary to make your appellate arguments. Cut out irrelevant motions, pleadings, and parts of the trial transcript such as voir dire and opening statements. Not only will your clients
save money on the record, but they will also save money on the time that you would otherwise spend digging through a cumbersome record as you prepare your brief. If you later realize that you need a document that you did not designate, you can supplement the record. • Consider whether you really need an oral argument. As satisfying as a good oral argument can be, proper preparation is time-intensive and expensive, and the return on the investment is often minimal. Most judges will tell you that they make their decisions based on the briefs, and you are more likely to lose your case in oral argument than win it. If your case is relatively straightforward and can be adequately addressed by the briefs, it might not be cost-effective to request oral argument. With smart planning and a little extra effort, these tips can reap big financial rewards for your clients. And in today’s economy, every dollar counts. Christina Crozier is an associate in the appellate practice group at Haynes and Boone, LLP. Endnote Sterling Bank v. Willard M L.L.C., 221 S.W.3d 121, 125 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see, e.g., TEX. CIV. PRAC. & REM. CODE § 31.007 (describing permissible costs). 2. Sterling, 221 S.W.3d at 125. 3. TEX. R. CIV. P. 140; Shaikh v. Aerovias de Mexico, 127 S.W.3d 76, 82 (Tex. App.—Houston [1st Dist.] 2003, no pet.). 4. Headington Oil Co. v. White, 287 S.W.3d 204, 212 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). 5. Shenandoah Assocs. v. J & K Props., Inc., 741 S.W.2d 470, 487 (Tex. App.—Dallas 1987, writ denied). 6. TEX. CIV. PRAC. & REM. CODE § 52.006(a). 7. For a detailed discussion of alternate security, see Elaine Carlson, Reshuffling the Deck: Enforcing and Superseding Civil Judgments on Appeal after House Bill 4, 46 S. TEX. L. REV. 1035, 1092-96 (2005). 8. TEX. R. APP. P. 24.2(a)(1)(A); TEX. CIV. PRAC. & REM. CODE § 52.006(b)(1). 9. TEX. R. APP. P. 24.2(b); TEX. CIV. PRAC. & REM. CODE § 52.006(c). 10. TEX. R. APP. P. 24.2(a)(1)(B); TEX. CIV. PRAC. & REM. CODE § 52.006(b)(2). 11. See TEX. R. APP. P. 34.5(a)(13); TEX. R. APP. P. 34.6(b)(1). 12. TEX. R. APP. P. 34.5(c); 34.6(d). 1.
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