The Long Road to Veterans’ Law Substance Abuse and Mental Health Challenges Facing Houston Veterans Veterans in Our Law Schools: Giving and Receiving Service Harris County Veterans’ Court Continues Mission to Help Veterans HBA Legal Initiative Serves Veterans of All Eras
lawyer
THE HOUSTON
inside...
Volume 52 – Number 2
September/October 2014
Navigating Legal Issues for Military Veterans
Student veterans in Houston law schools
strength
leadership
Reno Hartfiel Karen Highfield Jimmy Erwin
distinction
713.238.9191 | 712 Main St., Suite 2000E | Houston, TX 77002 | www.chicagotitlecommercial.com
1921 Converse Street Montrose Roof Terrace with Downtown Views
C ONVERSE P ARK
Free-Standing Homes Private Driveways
conversepark.com
From the $590’s
FARB HOMES
1222 Summer Street Sawyer Heights Roof Terrace with Spectacular Views
SUMMER SKYLINE
Free-Standing Homes
summerskyline.com
From the $440’s
Fenced in Yard Space Development Group
1512 Yale Street Heights Large Decks with Outstanding Views Private Yards with Front Units Sleek Finishes Throughout heightsplace.com
From the $590’s 1614 Rosewood Street Museum District Roof Terrace with Downtown Views Privately Fenced Yards
ROSEWOO D
Free-Standing Homes
S T R E E T E S TA T E S
rosewoodstreetestates.com
From the $480’s 5303 Weslayan Street West University Place Roof Terrace Features a Fireplace Privately Fenced Yards Free-Standing Homes
westucourt.com
From the $730’s
713-868-7226 5023 Washington Avenue www.UrbanLiving.com www.urban Inc, TREC Broker #476135
NMLS: 137773
CI T Y
contents Volume 52 Number 2
September/October 2014
12
18
FEATURES Long Road to 12 The Veterans’ Law By Robert B. Goss
Abuse and Mental 18 Substance Health Challenges Facing Houston Veterans
By Aaron M. Reimer and Benjamin Ritz
in Our Law Schools: 22 Veterans Giving and Receiving Service By The Hon. Josefina M. Rendon
30
32
County Veterans’ Court 26 Harris Continues Mission to Help Veterans By Raymond L. Panneton
Criminal Lawyer’s Thoughts on 30 ARepresenting the Returning Veteran By J. Gordon Dees
Legal Initiative 32 HBA Serves Veterans of All Eras
By Tara Shockley and Nicole Bakare
The Houston Lawyer
Cover photo: A number of veterans who have served their country are enrolled in Houston’s law schools. Future lawyers featured here are [front row, from left]: Daniel Silguero, South Texas College of Law, Navy; Jessica Ireton, University of Houston Law Center, Marines; Shundrelle Armstrong, Thurgood Marshall School of Law, Army; Craig Robinson, University of Houston Law Center, Air Force; Sekeia Wyatt, Thurgood Marshall School of Law, Navy; Bill Pritchett, South Texas College of Law, Navy; [second row, from left]: Rob French, University of Houston Law Center, Army; Kyle O’Farrell, University of Houston Law Center, Navy; Laymond Wilburn, Thurgood Marshall School of Law, Air Force; Elpatrick Russo, Thurgood Marshall School of Law, Marines. Photo by Anthony Rathbun Photography.
The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonTHLy by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association, 2014. All rights reserved.
2
September/October 2014
thehoustonlawyer.com
contents Volume 52 Number 2
September/October 2014
10
34
departments Message 6 President’s Protecting Our Rights and
Our Children
By M. carter crow the Editor 10 From Appreciating Our Veterans By Robert Painter
Managing Internet Risks & Benefits
Internet Risks & Benefits 34 Managing Using Google and Social Media
to Help Clients Find, Like and Contact You – Part I By Taunya Painter
36
38
Lawyers Who Made a 36 Houston Difference
Colbert Coldwell
By The Hon. Mark Davidson
P. Donaldson 38 Michael Vice President, General Counsel and Corporate A Profile in Professionalism
Secretary, EOG Resources, Inc. THE RECORD 40 OFF Linda Marshall:
The Beauty of Words By Polly Graham
SPOTLIGHT 41 COMMITTEE Campaign for the Homeless
40
41
Committee Impacting Houston One Coat, One Suit, One Diaper at a Time By Matthew J. Heberlein
Trends 42 Legal The Texas Supreme Court Revises
the Definition and Remedies of Shareholder Oppression By Jill Yaziji
Texas Supreme Court Deals A Blow To Mesothelioma Plaintiffs By Upholding Current Causation Standard Established For Asbestosis By Jason D. Goff Reviews 44 Media The Judge The Houston Lawyer
Reviewed by The Hon. Jeff Work
Last Plane Out of Saigon Reviewed by Matthew D. Walker
45 Litigation MarketPlace 4
September/October 2014
thehoustonlawyer.com
REMEMBERING OUR FRIEND AND COLLEAGUE
Thomas Taliaferro Hutcheson OCTOBER 14, 1948 - AUGUST 29, 2014
president’s message
By M. carter crow Norton Rose Fulbright
Protecting Our Rights and Our Children
L
new ways to victimize the most vulnerable or take down the most ike most lawyers, I appreciate the rapid-fire developpopular? I think there is much to be done. ment of technology that has allowed us to practice in During my year as president of the Houston Bar Association, a global arena, in ways we never dreamed even two deI am going to explore how we, as lawyers and as parents, can cades ago. Technology has no doubt helped us as lawhelp better educate our members and the public about Internet yers to assist our clients in ways unimagined when I safety and the dangers that unmonitored acstarted the practice of law just over 20 years ago. cess holds for our children. I’ve created a task At the same time, my most important role During my year force of lawyers and judges —most of them parin life is that of father to three children, two of as president of the ents, too—that is going to study the programs whom are teens and a third not far behind. Nothing can grab the heart of a parent like something Houston Bar Association, in place in our schools and determine how we can put our legal expertise to work to help mitithat troubles one of our children. When I hear I am going to explore gate this problem. The task force members are that that there are kids in their schools who are respected members of the legal profession and being bullied, harassed and humiliated through how we, as lawyers their communities. They are people who can get the same technology that allows us to accomthings done. and as parents, can plish so much, I am deeply disturbed. We are just getting started. I have met with the The Greater Houston Metropolitan Area enhelp better educate U.S. Attorney in our district to discuss our concompasses 25 different school districts. Most cerns and the best way to move forward. Our bar of those school districts have adopted some our members and staff has put together a comprehensive resource type of Internet safety programming, much of the public about guide on the laws, school district programs, it in conjunction with the Texas School Safety articles and websites available to parents and Center, a research center based at Texas State Internet safety educators. Our task force had its first meeting, University that is tasked by Chapter 37 of the and the dangers and they are committed to working hard on this Texas Education Code with key school safety issue to come up with a specific plan of action initiatives and mandates. The 82nd Texas legthat unmonitored for our association, whether it is advocating for islature passed four bills that deal with bullyaccess holds for more effective legislation, spending more time in ing and harassment, including cyberbullying. our schools or working with our educators. The Children’s Internet Protection Act was our children. As a member of the profession that upholds enacted by Congress in 2000 to address conour basic freedoms, I fully support the First Amendment rights of cerns with children’s access to obscene and harmful content all U.S. citizens. As a father, I want to make sure we can protect over the Internet. I have no doubt that most states and a maour children and make them understand the life-altering ramifijority of school districts have put programs in place to address cations of misusing those rights. this issue. If you have ideas, suggestions or thoughts you would like to But is it enough? Can the speed of our legislatures and educashare with me, please feel free to contact me through the Houston tion systems begin to keep pace with the advances in technolBar Association. ogy available to our kids –the new apps, the new chat rooms, the
“
The Houston Lawyer
”
6
September/October 2014
thehoustonlawyer.com
Defending Texans Since 1994 Former Assistant United States Attorney Former Assistant District Attorney Founding Member of the National College of DUI Defense of Counsel Williams Kherkher LLP Law Office of Ned Barnett
Gulf Freeway Office: 8441 Gulf Freeway, Suite 600 • Houston, Texas 77017
713-222-6767 • www.nedbarnettlaw.com Board Certified in Criminal Law by the Texas Board of Legal Specialization thehoustonlawyer.com
September/October 2014
7
from the editor
By Robert Painter Painter Law Firm PLLC
Appreciating Our Veterans
Associate Editors
Angela L. Dixon Attorney at Law
Farrah Martinez Harris County District Clerk’s Office
Jill Yaziji Yaziji Law Firm
The Houston Lawyer
Polly Graham Haynes and Boone, LLP
Taunya Painter Painter Law Firm PLLC
10
W
hen I think of patriotism, images of men and women serving America in uniform come to mind. I think of the chill that went down my spine as I listened to the Army Band playing the Army song as I graduated from the officer’s basic course at Fort Sam Houston, in 1994. I think of all the brave people I have met in uniform and the incredible stories I have heard from so many veterans over the years. I think of sacrifice and love of country. In his first inaugural address, President Ronald Reagan said, “Freedom and the dignity of the individual have been more available and assured here than in any other place on Earth. The price for this freedom at times has been high, but we have never been unwilling to pay that price.” President Reagan had a way with words and was certainly right on this point. The freedoms and lives that we enjoy every day are only possible because of the sacrifices of our veterans, as well as those currently serving in our armed forces. It makes me think—do we appreciate our veterans and servicemembers like we should? On another occasion, President Reagan observed that, “...all we can ever do for our heroes is remember them and remember what they did, and memo-
September/October 2014
thehoustonlawyer.com
ries are transmitted through words.” This issue of The Houston Lawyer remembers veterans with two special words in mind: thank you. By discussing veterans, we become better informed about their needs and unique legal issues, and can recognize opportunities to show our gratitude by offering them a helping hand. This issue is full of articles that I believe will give you some ideas of what you can do. There are certainly pro bono opportunities, such as the Houston Bar Association’s acclaimed Veterans Legal Initiative, which Tara Shockley and Nicole Bakare profile in this issue. Attorneys can also counsel clients on benefits available to veterans, such as the GI Bill and student benefits, which Judge Josefina Rendon discusses in her article. Veterans’ issues may come up in other ways in our practices. Also in this issue, Robert Goss covers veterans’ law and the byzantine system for handling benefits disputes. Aaron Reimer and Benjamin Ritz address the serious issue of substance abuse and mental health challenges facing veterans. Raymond Panneton writes on Harris County’s pioneering veterans’ court program. And Gordon Dees gives some advice on representing returning veterans in criminal matters.
BOARD OF DIRECTORS President
Secretary
M. Carter Crow
Alistair B. Dawson
President-Elect
Treasurer
Laura Gibson
Neil D. Kelly
First Vice President
Past President
Benny Agosto, Jr.
David A. Chaumette
Second Vice President
Todd M. Frankfort
DIRECTORS (2013-2015)
Hon. David O. Fraga Bill Kroger
Richard Burleson Warren W. Harris
Jennifer A. Hasley Daniella D. Landers
DIRECTORS (2014-2016) Diana Perez Gomez Greg Ulmer
editorial staff Editor in Chief
Robert Painter Associate Editors
Angela Dixon Farrah Martinez Jill Yaziji
Polly Graham Taunya Painter
Nicole Bakare Kimberly Chojnacki Sammy Ford Jason Goff Amy Hargis Matthew Heberlein Jason McLaurin Judy Ney Jeff Oldham Aaron Reimer Matthew Walker Hon. Jeff Work
Editorial Board
Yvette Cano Jonathan Day Kelly Fritsch John Gray Al Harrison Preston Hutson Chance McMillan Angie Olalde Raymond Panneton Hon. Josefina Rendon Zach Wolfe
Managing Editor
Tara Shockley
HBA office staff Executive Director
Director of Projects
Receptionist/ Resource Secretary
Project Assistant
Kay Sim
Bonnie Simmons Rachel Mosley
Lucia Valdez
Ashley G. Steininger
Membership and Technology Services Director
Continuing Legal Education Assistant
Membership Assistant
Director of Education
Ron Riojas
Dozie Oheri
Ariana Ochoa
Communications Director
Communications Assistant /Web Manager
Tara Shockley
Amy Verbout
Advertising sales Design & production QUANTUM/SUR
12818 Willow Centre, Ste. B, Houston, TX 77066 281.955.2449 • www.quantumsur.com Publisher
Leonel E. Mejía Production Manager
Marta M. Mejía Advertising
Mary Chavoustie
thehoustonlawyer.com
September/October 2014
11
By Robert B. Goss
The Long Road to Veterans’ Law “Veterans are put on fake wait lists and dozens die at VA Medical Centers.” 1 “There is no such thing as veterans’ law, and if there is, anybody can do it.” 2
T
hese two seemingly unrelated statements capture some of the challenges facing veterans seeking to obtain federal benefits—challenges that have made their way in the news recently. Absent a recognized, dedicated cadre of legal representatives skilled in the protection of veterans’ interests, veterans can fall prey to long delays in the allocation of benefits earned in defense of our country. This article provides an overview of veterans’ law, discussing the history of Veterans Administration (“VA”) law, types of VA benefits available to disabled veterans, the obstacles that veterans may encounter in obtaining benefits and the labyrinthine legal requirements that veterans’ advocates must be prepared to navigate.
History of Veteran Affairs (VA) Law Historical3 Interestingly, the paucity of attorneys dedicated to representing veterans can be traced to the post-Civil War era. In an effort to curb profiteering, Congress placed severe restrictions upon fees available to attorneys who assisted veterans in the application of benefits. Although initially well-conceived, these limitations ostensibly remained in effect until 2006, effectively restricting attorneys to fees of $10-$15. Absent any financial incentives, most attorneys simply avoided aiding veterans applying for VA benefits. Unfortunately, many, including this author, believe that this 19th Century mindset still permeates both the VA and Veteran Service Organizations (“VSOs”), the two groups that jointly operate the VA system. Plymouth Colony to 1917 This joint influence of the VA and VSOs claims a lineage to the Pilgrims at Plymouth Colony in 1636, when the Plymouth colony passed a resolution ordering its colonists to care for all wounded veterans locally.4 Interestingly, this system, modeled on the care given by Pilgrims to veterans of the Indian wars, remained
in effect for nearly 300 years, leaving responsibility for the care and treatment of disabled veterans with state and local governments. The major change regarding veterans’ care moving away from the local and state governments began after the Civil War and at the start of the 20th century. Over the years, the federal government slowly began to create facilities for veterans. The World Wars In 1917, as the United States entered the Great War, Congress created the Veterans Bureau, endowing it with the mission of caring for disabled World War I veterans. By 1930, the VA replaced the Veterans Bureau. Over time, the VA adopted a two-prong benefits system: (1) heath care; and (2) benefits to veterans. With the establishment of the VA, Congress created a federal department with the duty to care for our nation’s veterans. The VA was put to the test immediately after World War II. Veterans not only received health and compensation benefits, but other benefits including education, home loan guarantees and pensions for non-service-connected disabilities. After World War II, most Americans supported veterans through numerous programs, enabling disabled and ablebodied veterans and their families to use benefits earned through military service following their military discharge. Over the ensuing decades, the VA essentially operated in a vacuum, with little judicial review or supervision. Throughout this period, if the VA denied a veteran benefits, those decisions were seldom overturned. Veterans Judicial Review Act (“VJRA”) In 1988, Congress passed and President Ronald Reagan signed the VJRA, introducing judicial oversight to VA proceedings for the first time. The VJRA legislation created the U.S. Court of Appeals for Veterans’ Claims (“CAVC”) and authorized veterans to hire attorneys to represent them before the CAVC within
one year of receiving a denial of their claim from the Board of Veterans Appeals (BVA). Importantly, because the VJRA provided payment to attorneys through the Equal Access for Justice Act (EAJA), attorneys began to represent veterans appealing the denial of benefits. Veterans Claims Assistance Act (“VCAA”) Over time, the benefits process became more of an adversarial, rather than collegial exercise. Frequently, when the VA denied an application for benefits, it would justify its decision with language that “the veteran failed to” obtain the requested records, which shifted the requirement to obtain evidence back upon the veteran. With an aim toward restoring collegiality, in 2000, Congress passed the VCAA, requiring the VA to expend “reasonable efforts” to help veterans obtain necessary benefits. Rather than opposing veterans seeking benefits, the VCAA now required VA employees to assist veterans by obtaining necessary governmental and medical records supporting benefits. Over time, the CAVC systematically developed jurisprudence over the submission and granting of veterans’ claims. As the number of opinions grew, so did the law’s complexity. This increased complexity served to make both the VA and Board unresponsive to veterans in the claim review process. Public Law 109-461: The Veterans Benefits & Health Care & Information Technology Act Despite better representation at the appellate level, fee limitations continued to inhibit attorney involvement at earlier stages. This changed in 2006, with the enactment of Public Law 109-461, which gave veterans the right to employ attorneys to assist with the filing of their claims. With this law, Congress eliminated Civil War era restrictions on fees available to attorneys assisting veterans and allowed VA claimants to hire and
pay an attorney to represent them, if: 1. The regional office denied the claim; 2. The claimant filed a notice of disagreement (“NOD”); 3. The NOD was filed on or after June 20, 2007; and 4. The representation for which the claimant is paying is on the claim(s) that were subject to the NOD. Importantly, however, under the 2006 act, only those attorneys/agents accredited by the VA General Counsel can represent veterans. Types of Veterans’ Benefits Available The following list outlines the major benefits available to veterans. VA benefits available: 1. Service-connected disability; 2. Pension; 3. Vocational rehabilitation and training; 4. Federal Tort Claim Act (“FTCA”) and 38 C.F.R. § 1151 benefits; and 5. Family member benefits that include: a. Dependency and Indemnity Compensation (“DIC”); b. Death benefits based upon service-connected conditions; c. Aid and attendance—permanently housebound; d. Education assistance for spouse and children. 6. Educational assistance; 7. Health care. Upon the denial of these benefits, veterans may seek legal counsel from accredited attorneys/agents. Within the list, categories 1-6 are evaluated by the Veterans Benefits Administration, while health care is governed by the Veterans Health Administration. Although both are part of the VA, these two agencies often act independently. Most veterans seek either medical treatment for a service-connected disability or to obtain compensation for that disability. Often, a question arises
thehoustonlawyer.com
September/October 2014
13
concerning whether a given disability arose in connection with the veteran’s service. Veterans are entitled to benefits for any injury sustained while in the line of duty. Sometimes, though, service members keep injuries quiet while they are on active duty in the military. They are young, healthy and think the problem will go away. Additionally, silence often serves to protect a military career if that service member is afraid of being grounded or discharged. Upon separation from the service, a veteran has one year to file a claim. Any injury reported during that one-year time period is presumed to have resulted from duty. If the veteran fails to report an injury within 365 days of separation, it becomes the veteran’s burden to connect the disability to active duty service. This is where attorneys excel and can be a tremendous benefit to veterans, by developing evidence showing the present disability is a result of the in-service disease, injury or event.
Problems Perhaps the most critical problem facing veterans is the incredible backlog faced by the Decision Review Officers (“DROs”). Most DROs face dockets of over 3,000 cases, and are expected to somehow review and decide as many as five to six cases every day. These time constraints prevent DROs from being able to review files in detail, and instead many veterans’ advocates, including this author, believe that DROs are left to look for and rely upon previously-written case evaluations. Reviewing claims in this manner not only fosters errors, but once an error is created, that error is often repeated throughout the pendency of that file. Moreover, the author’s experience is that VA officials give more weight to VA evaluations than those performed by private treating doctors.
Procedures to Assist Veterans Accreditation
THE POWER OF LEGAL EDUCATION AND THE LL.M. DEGREE The University of Houston Law Center is home to renowned LL.M. specialty programs with two (Health Law and Intellectual Property) ranked in the Top Ten according to U.S. News & World Report. Choose from the following: • Energy, Environment, and Natural Resources • Health Law • Intellectual Property & Information Law • International Law • Tax Law Now accepting applications for spring and fall 2015 semesters
Apply now at
law.uh.edu/llm
UH is an EEO/AA institution.
14
September/October 2014
thehoustonlawyer.com
Any attorney seeking to represent a veteran must be accredited, including those attorneys representing a veteran on a pro bono basis. The
VA believes this accreditation process essential to protect veterans, and generally will not accept submissions from unaccredited counsel. The VA will, however, allow unaccredited counsel to begin a representation, so long as the counsel completes the accreditation process before the decision is made. If you are interested in becoming accredited, organizations such as the State Bar of Texas’s Military and Veterans Law Section5 and the National Organization of Veteran Advocates6 provide starting points.
Conclusion One should not go away from this article with the impression that VA personnel lack the requisite compassion to serve the needs of our nation’s veterans. The laws are changing and the demands on the system, and VA employees, are significant. Important appellate decisions have yet to be incorporated into the decision-making paradigm of the typical review officer, who lacks both the knowledge and training to apply those decisions effectively. Veterans desperately need assistance if they are to successfully navigate the bureaucracy. Opportunities abound for enterprising attorneys with a desire to help veterans. The need is significant and offers a chance to make a meaning-
ful difference within the legal community and in the lives of veterans. Robert Goss is a retired U.S. Air Force Command Pilot, and founder of the Law Office of Robert B. Goss, P.C., where he mainly handles Veterans Administration disability appeals at all levels. He is the immediate past chair of the Military and Veterans Law Section of the State Bar of Texas and a member of the Board of Directors of the National Organization of Veteran Advocates. Endnotes 1. Scott Bronstein and Drew Griffin, CNN Investigations, A fatal wait: Veterans languish and die on a VA hospital’s secret list, See CNN at http://www.cnn.com/2014/04/23/ health/veterans-dying-health-care-delays, published April 23, 2013. 2. June 2013, State Bar of Texas Military Law e-mails opposing adding “and veterans” to the Military and Veterans Law Section, formerly Military Law Section. Email was 1 of many from a small group opposed to this change. 3. See VA History in Brief at http://www.va.gov/opa/publications/archives/docs/history_in_brief.pdf. 4. See also VA History at http://www.va.gov/about_va/vahistory.asp. 5. See http://www.texasmilitaryandveteranslaw.com. 6. See https://vetadvocates.org.
LAKE CONROE AREA
7 REGENCY POINT
OFFERED AT $335,000
®
®
FOR MORE INFORMATION:
KATHRYN NELSON WHEREVER LIFE TAKES YOU, CALL ON US
CRS, GRI, ABR, CHMS
281-923-9394 knelson@heritagetexas.com
VERDICT The jury is back. TLIE was voted best in Texas. Texas Lawyers’ Insurance Exchange has been voted best professional liability insurance company in Texas four years in a row by Texas Lawyer magazine. TLIE is also a Preferred Provider of the State Bar of Texas and has returned $32,800,000 to its policyholders. With all of these accolades as well as being in the business for over 35 years, doesn’t TLIE make the BEST all around choice for you?
a
512.480.9074 / 1.800.252.9332
INFO@TLIE.ORG / WWW.TLIE.ORG
No judge, no jury, no apel late court Y O U determine t he value of your case. thehoustonlawyer.com
September/October 2014
15
By Aaron M. Reimer and Benjamin Ritz
Substance V Abuse and Mental Health Challenges Facing Houston Veterans
eterans are suffering nationally from a mental-health and substance-abuse epidemic. Congress recently passed a $16.3 billion bill to provide veterans more and better access to doctors.1 Now signed into law by President Barack Obama, the law provides $10 billion in emergency spending to enable veterans who cannot get prompt appointments at VA hospitals and clinics or live more than 40 miles from one of them to obtain care from a private doctor. The legislation includes $5 billion to hire more VA doctors, nurses and other medical staff and $1.3 billion for opening 27 new VA clinics across the country. The bill is welcomed news as evidence of a national awareness of a long-growing problem. Locally, the City of Houston, in conjunction with the Houston Veterans Affairs Office and Hospital, has promoted efforts for treating post-traumatic stress disorder (PTSD), and addressing homelessness and employment issues for veterans. Bryan McDonel, 35, is among the thousands of veterans who struggle with prescription drug addiction.2 Prior to his second tour in Iraq, McDonel underwent back surgery after a heavy-equipment injury to his back. His National Guard unit “needed his expertise with satellites and radios” and, although he missed some training, he was described as “fit to deploy.” He survived his second tour in Iraq by taking six Vicodin per day, as prescribed by his doctor, who continued prescribing opiates when McDonel returned home. However, McDonel did not understand his dependency upon the prescription drugs until his third tour in Afghanistan, when he ran out of his pills during a two-week assignment to Kandahar Airfield and developed symptoms of withdrawal. The medic prescribed Percocet for him, and McDonel eventually returned home, this time with an extremely high tolerance to opiates. “[I] would take as many [pills] as I needed to
stop hurting, and I could function again normally,” says McDonel. He found what he considered to be a dream job working as an instructor with the Arkansas National Guard, but after failing a routine drug test, he was told he would likely be less-than-honorably discharged from the military, so he resigned his position. Subsequently, McDonel and his wife divorced. Without a job, he lost his house and moved in with his parents. However, after he stole from his parents to buy drugs, he was forced to leave and live in his car. McDonel, a veteran with awards including a Bronze Star, had, like many others, become an addict. I. National Statistics Veterans and their caretakers have long been concerned with mental health and substance abuse. For them, war does not end when they return home. To the contrary, as with McDonel, the hardest battles may not begin until then. “Returning service members commonly suffer from PTSD, depression, substance abuse disorder, postconcussive symptoms from a [traumatic brain injury], insomnia, pain, and aggressive behavior.” 3 Often these symptoms are comorbid—meaning they co-occur—and there is minimal research on the treatment of PTSD with one (or more) of the concurrent problems. A variety of treatments are offered to veterans. Effective evidence-based psychotherapeutic and pharmacological treatments are available.4 Cognitive-behavioral therapy (CBT) has been designated the treatment of choice in all PTSD practice guidelines published to date.5 Services range from “physical or vocational rehabilitation, financial assistance, social support, relationship assistance, or spiritual counsel.”6 The recent prolonged wars in Iraq (Operation Iraqi Freedom: 2003–2011/ Operation New Dawn: 2010–2011) and Afghanistan (Operation Enduring Freedom: 2001–present) have strained military personnel, with some service members, like McDonel, facing long and multiple deployments, combat exposure,
and physical injuries, resulting in increased diagnoses of PTSD,7 traumatic brain injuries8 and prescription drug abuse.9 Narcotics are often prescribed for pain, and substance abuse tripled between 2005, and 2008.10 This year about 650,000 veterans are being treated with narcotics. The number of homeless female veterans has also been dramatically increasing,11 and they face greater substance and sexual abuse problems, often combined with child and elder-care needs. 12 Active military women are slightly more likely than active military men to use illicit drugs.13 Further, a 2010 survey showed a dramatic increase in female veterans, along with a reported increase in military sexual trauma.14 In addition, female veterans face barriers to housing when they must also care for children or elderly.15 The small fraction of facilities that can house both the veteran and their dependents may place restrictions on the ages, gender or number of children per family, requiring some children to reside in other facilities.16 When the parent is concerned about their children’s basic needs, it is harder for them to get and maintain employment.17 II. Houston-Area Statistics According to the Public Affairs Office of the Houston VA Medical Center, Houston is fairly representative when it comes to veterans and their problems.18 With its robust economy, strong job market, relatively affordable cost of living and diverse population, Houston is a military-friendly place and a good place for veterans to settle after being discharged from service. The Michael E. Debakey VA Medical Center is the second-largest military building after the Pentagon, with nine outpatient clinics including in-depth and evidence-based PTSD programs which last six weeks. These programs are vital, as an estimated one-third of returning veterans seek help for adjustment issues, even if they do not have mental health or substance abuse problems. Without access to services, returning
veterans experience difficulty adjusting to civilian life and, like McDonel, may find themselves homeless. In 2007, Mayor Bill White, Harris County Judge Ed Emmett and the Harris County Veteran’s Services Office addressed veteran homelessness and employment issues through the Returning Veteran Initiative.19 In 2012, Mayor Annise Parker continued these efforts by successfully housing 101 homeless veterans in 100 days through the Housing Houston’s Heroes program.20 “There is no excuse for our returning heroes to be living on the streets upon returning home,” said Mayor Parker. “They risked their lives to protect us. Now it is our turn to make sure they have roofs over their heads and access to other assistance they may need. The success of this program is proof of what can be accomplished when the public and private sectors work together.” At the time, 2,000 veterans were estimated to be homeless in the Greater Houston area. Generally, veterans are estimated to be one-third of the homeless population.21 III. Houston-Area Service Providers In addition to affordable housing, Housing Houston’s Heroes also provided access to social services and job assistance.22 In December 2012, the City of Houston completed a veteran affairs guide listing federal, state, county, non-profit and faith-based services available to Houston veterans.23 The guide includes information regarding mental health and housing resources for veterans.24 Houston also developed a homeless guide for veterans.25 A homeless outreach team is also available by dialing 21126 or 311.27 Military service comes at a high cost of personal sacrifice. As attorneys, we owe it to our veterans to stay informed about the substance abuse and mental health programs that are available to veterans who need them. Aaron M. Reimer is an associate attorney at Jenkins & Kamin, LLP, a boutique family law firm, where he handles complex property issues in divorce litigation and pre- and post-marital
thehoustonlawyer.com
September/October 2014
19
agreements, as well as contested custody litigation. Benjamin Ritz is a law clerk at Jenkins & Kamin, LLP, and is currently a student at South Texas College of Law. Endnotes 1. Matthew Daly, Senate OK’s $16b Spending Bill to Improve VA Health System, BOSTON GLOBE (Aug. 1, 2014), available at http://www.bostonglobe.com/news/nation/2014/08/01/ senate-gives-final-approval-bill-improve-health-system/ Vrx1S0CPIfw6smZyQp2VXM/story.html. 2. Quil Lawrence, A Growing Number Of Veterans Struggles To Quit Powerful Painkillers, NPR (Jul. 10, 2014 5:39 PM ET), available at http://www.npr.org/blogs/ health/2014/07/10/329904066/veterans-face-another-battle-fighting-prescription-drug-addiction. 3. Laurie B. Slone & Matthew J. Friedman, Addressing PostDeployment Needs, PSYCHIATRIC TIMES (Jul. 14, 2011), available at http://www.psychiatrictimes.com/addressingpostdeployment-needs. 4. Forbes D Et Al., A Guide to Guidelines for the Treatment of PTSD and Related Conditions, 23 J TRAUMA STRESS 537–552 (2010); Management of Traumatic Stress Disorder and Acute Stress Reaction, U.S. DEP’T OF VETERANS AFFS. (2010), available at http://www.healthquality.va.gov/ guidelines/MH/ptsd/. 5. Slone, supra n. 3. 6. Id. 7. Smith T. C et al., New Onset and Persistent Symptoms of Post-Traumatic Stress Disorder Self Reported After Deployment and Combat Exposures: Prospective Population Based US Military Cohort Study, 336 BRIT. MED. J. 366, 373 (Feb. 14, 2008) available at http://www.bmj.com/content/ 336/7640/366 (indicating PTSD results from the higher combat exposure). 8. Bruce Capehart & Dale Bass, Traumatic Brain Injury
Among Veterans Returning from Afghanistan and Iraq, PSYCHIATRIC TIMES (July 13, 2011), available at http:// www.psychiatrictimes.com/military-mental-health/ traumatic-brain-injury-among-veterans-returningafghanistan-and-iraq (increased survival from face, head, and neck injuries due to protective equipment and vehicle armor have increased the frequency of traumatic brain injury). 9. FRANCES M. BARLAS ET AL., ICF INTERNATIONAL, 2011 HEALTH RELATED BEHAVIORS SURVEY OF ACTIVE DUTY MILITARY PERSONNEL ES-14–15, 230, 253 tbl.6.10 (Feb. 2013) available at http://www.murray. senate.gov/public/_cache/files/889efd07-2475-40ee-b3b0508947957a0f/final-2011-hrb-active-duty-survey-report. pdf. 10. Lawrence, supra n. 4. 11. Balshem H, Christensen V, Tuepker A, et al. A Critical Review of the Literature Regarding Homelessness Among Veterans, U.S. DEP’T OF VETERANS AFFS. 3, 22–23 (Apr. 2011), available at http://www.hsrd.research.va.gov/ publications/esp/homelessness.pdf (“[W]hile females comprise only 6.8 percent of the total Veteran population, they made up 7.5 percent of homeless veterans.”). But see The U.S. Dep’t of Hous. and Urban Dev., The 2013 Annual Homeless Assessment Report (AHAR) to Congress, HUD EXCHANGE 39 ex.5.2 (2013), available at https://www. hudexchange.info/resources/documents/ahar-2013-part1. pdf (demonstrating that the female veteran population in 2013 was 7.7 percent). 12. Gil Kerlikowske, The Threat to Returning Veterans: Substance Abuse, 1 ONDCP UPDATE 2, 2 (Feb. 2010), available at http://www.whitehouse.gov/sites/default/files/ondcp/ newsletters/ondcp_update_february_2010.pdf. 13. Barlas, supra note 21, at 120, 132 tbl.4.2.7 (“[S]timulant users were more often in the Army (4.4%), female (4.2%), and married with a spouse not present (4.1%)”); ONDCP, Study Shows Increased Misuse of Prescription Drugs in Military, 1 ONDCP UPDATE 2, 2 fig.2 (Feb. 2010), available at http:// www.whitehouse.gov/sites/default/files/ondcp/newsletters/
ondcp_update_february_2010.pdf. 14. Balshem, supra note 24, at 33–34 (“Experience with sexual assault has been linked to PTSD, depression, alcohol and drug abuse, disrupted social networks, and employment difficulties, all factors known to increase one’s risk for homelessness.”). 15. Inst. for Veterans and Mil. Fam., Lessons Learned from the U.S. Department of Labor Grantees: Homeless Female Veterans and Homeless Veterans with Families, NVTAC 7 (October 2013), available at http://vets.syr.edu/wp-content/ uploads/2013/11/NVTAC.Issue-Brief.FINAL_.Electronic. pdf. 16. Id. at 9, 15–16. 17. Id. at 15–16. 18. Interview with Maureen Dyman, Communications Director, Public Affairs Office for Michael E. Debakey VA Medical Center, in Houston, TX (Aug. 8, 2014). 19. Returning Veteran Initiative, CITY OF HOUSTON, available at http://www.houstontx.gov/vetaffairs/rvi.html (last visited September 5, 2014). 20. Press Release, Mayor’s Office, Mayor Annise Parker Announces Houston Meets Challenge to House Homeless Military Vets (Sept. 14, 2014), available at http://www. houstontx.gov/mayor/press/20120914.html. 21. Office of Veterans Affairs, CITY OF HOUSTON (Apr. 2009), available at www.houstontx.gov/vetaffairs/mayor 2009april.ppt. 22. See Press Release, Mayor’s Office, supra n. 36. 23. Returning Veteran’s Guide to Community Resources, CITY OF HOUSTON (Dec. 2012), available at http://www.houstontx. gov/vetaffairs/vetaffairsguide.pdf. 24. Id. at 7-20, 54-58. 25. For Veterans Facing Homelessness in Houston, CITY OF HOUSTON (Oct. 25, 2012), available at http://www.houstontx.gov/vetaffairs/homelessvetdirectory.pdf. 26. Id. 27. Houston Outreach Team, HOUSTON POLICE DEPARTMENT MENTAL HEALTH DIVISION (Jan. 6, 2014), available at http://www.houstoncit.org/test/.
With 15+ years of determined results before trial and appellate courts, Ford+Bergner LLP vigorously pursues complex estate, trust and guardianship litigation matters from offices in Houston and Dallas. Estate, Trust and Guardianship Litigation
Orange prints PMS 151.5 or 0.62.100.0 Process Coated and Uncoated Gray prints PMS xxxxxxxx or 48.36.24.66 Process Coated/ 85.55.55.65 Uncoated
C e l e b r at i n g 1 5 Y e a r s o f D e t e r m i n e D r e s u lt s f o r o u r C l i e n t s Houston Houston Lawyer2014 Jogger Ad Fall 2014.indd 1 20 Ford+Bergner September/October thehoustonlawyer.com
•
w w w. f o r d b e r g n e r . c o m
•
dallas 8/11/14 5:21 PM
alternative dispute resolution MEDIATION, ARBITRATION, SPECIAL JUDGE
(Chap.151, CPRC)
Dan Downey
• Former District Judge • Board Certified Civil Trial Law — Texas Board of Legal Specialization • Adjunct Professor of Law
ADR That Preserves Your Right of Appeal —Chap. 151, CPRC A faster, cheaper and more predictable ADR alternative to arbitration. Read more at dandowney.com (Publications)
Details at:
dandowney.com • 713.907.9700 1-800.792.4444 • 5009 Caroline Suite 100B, Houston, TX 77004
thehoustonlawyer.com
September/October 2014
21
By Hon. Josefina M. Rendon
Veterans in Our Law Schools:
Giving and Receiving Service I Texas Army National Guardsmen Lt. Patrick Gurski and Army Capt. Ryan Reiger were students at South Texas College of Law when they were deployed to Afghanistan. They took this photo with their school banner before heading off to separate areas of operation. Marine veteran Bernie Adalpe was president of the Hispanic Law Student Association at Thurgood Marshall School of Law.
Marine veteran Steven Herrera is sworn in as an attorney by the Hon. Josefina Rendon. 22
September/October 2014
n 2012, Lieutenant Patrick Gurski and Captain Ryan Rieger were students at South Texas College of Law (“STCL”) when, rather suddenly, both were deployed to Afghanistan. Gurski and Rieger are both Texas Army National Guardsmen, but had never met until their mobilization training at Camp Swift in Bastrop, Texas. They became instant friends. Just after their arrival in Afghanistan, and before heading to their separate areas of operation, Gurski and Rieger decided to take a picture together. In it, as a symbol of their newly established camaraderie, they proudly displayed their law school pennant that Rieger had brought with him. They saw each other only once more during their deployment. After their deployment to Afghanistan, they were both awarded the Bronze Star for their service. They are two of many great examples of veterans in our Houston law schools who have both served our country and received some well-deserved benefits in return. The GI Bill and Other Veteran Student Benefits The Servicemen’s Readjustment Act of
thehoustonlawyer.com
1944,1 better known as the GI Bill, is one of the most significant pieces of veterans legislation ever passed. Very controversial at the time, the bill was narrowly passed by Congress and signed into law in 1944 by President Franklin D. Roosevelt. The bill gave authority to the Veterans Administration (“VA”) to assist World War II veterans to obtain education and training, as well as unemployment compensation and loan guaranty for homes, farms or businesses. By the time the original GI Bill ended, in 1956, 7.8 million of 16 million World War II veterans had participated in an education or training program. At one time, in 1947, 49 percent of admitted college students were veterans.2 Currently, there are two GI Bills in effect, as well as other miscellaneous pieces of legislation that provide benefits to members of the military in active duty, selected reserve and national guard, as well as to the families of these individuals. In 1984, the original GI Bill was “revamped,” under the leadership of Mississippi Congressman Gillespie Montgomery, and dubbed the “Montgomery GI Bill” or MGIB. In 2009, the Post-9/11 GI Bill was passed, enhancing educational benefits previously offered. Each is administrated differently, depending on eligibility and duty status.3 The benefits of each GI Bill differ considerably, though some veterans are eligible under both. Here is a quick summary of the two GI Bills and related legislation. The Montgomery GI Bill4 applies to those who entered active duty after June 30, 1985, and contributed to an education fund. It includes some Vietnam veterans, reservists and National Guard members. Under the MGIB, soldiers had to sign up during their enlistment and pay a $1,200 contribution during their first year of service. A veteran who has served at least two years can receive up to 36 monthly payments and remain eligible up to 10 years from the date of discharge. The Post-9/11 GI Bill,5 in contrast, applies to those who served on or after September 11, 2001, and it offers greater benefits. Soldiers do not need to sign up
for or pay into the program. The minimum service required for eligibility is 90 days (qualifying service members for 40 percent benefits) and up to three years or more (qualifying them for 100 percent benefits). It pays tuition and fees directly to the institution up to the most expensive public, in-state undergraduate program rate. It also provides a monthly housing allowance and a stipend for books and supplies. Furthermore, it applies to more people than the MGIB, specifically enlisted and officer personnel and selected reserve personnel. Veterans remain eligible for 15 years after discharge. The Reserve Educational Assistance Program (REAP/Chapter 1607)6 is available to reservists or National Guard members who were activated under federal authority for a contingency operation and served 90 or more continuous days after September 11, 2001. The reservist must make an irrevocable choice between REAP and other VA educational benefits, with some exceptions. Yellow Ribbon Program7 is a program in which a university signs a contract with the VA committing to subsidize fees, expenses or tuition exceeding the most expensive undergraduate state tuition rate. The VA matches the university’s commitment up to 50 percent. This program is geared to non-resident veteran students in private or public schools. The program also allows veterans to finish what was left of their GI Bill benefits in a graduatelevel institution. The Hazlewood Act8 is a State of Texas benefit that provides qualified veterans and dependents with education benefits of up to 150 hours of tuition exemption at public institutions of higher education in Texas, not including living expenses, books or supply fees. Other Veteran Law Students In addition to Lieutenant Patrick Gurski and Captain Ryan Rieger, our Houston law schools have great examples of deserving veteran law students who use some of these benefits. Steven Herrera went to University of
Houston Law Center (“UHLC”) under the Post 9/11 GI Bill and previously to college in Hawaii under the MGIB. As a Marine, he was deployed three times to the Philippines in support of Operation Enduring Freedom, and he was an Intelligence Instructor of Marines—Signals Intelligence/Ground Electronic Warfare Operator. While at UHLC he became president of the Hispanic Law Student Association. He has interned for the Supreme Court of Texas, the U.S. Court of Appeals for the Fifth Circuit, the Harris County District Attorney’s Office and this author’s district court. He is a gentle man and a soldier with an obvious semper fi pride. It was a pleasure when, in 2013, this author swore him in as a newly licensed Texas attorney. Bernie Aldape, III served in the U.S. Marine Corps Reserve from 2003-2009, including a tour in Iraq during Operation Iraqi Freedom II. While in Iraq, he served as team leader in a security platoon providing security for personnel and supply routes. While at Thurgood Marshall School of Law at Texas Southern University (“TMSL”), he utilized the Post 9/11 GI Bill and the Hazlewood Act, without which he believes he could not have finished law school. The GI Bill provided tuition assistance as well as a monthly stipend. As a student, he interned for Senator Rodney Ellis and was president of the Hispanic Law Student Association. Joshua Vincent is currently the president of the Veteran Law Student Association at STCL. He became a U.S. Marine two weeks after graduating from high school in 2004. He was assigned first to a special security detail in Washington State and later to the 2nd Battalion, 4th Marines in California, where he was deployed to Afghanistan. While en route to Afghanistan, though, his orders suddenly changed to a humanitarian mission in Burma. On his last year as a Marine, he taught Martial Arts for the 5th regiment. Though he liked his experience in the Marines, he regrets that he never saw combat. Honorably discharged in 2009, he became a college freshman two months later at the University of Houston.
With GI Bill benefits, Joshua said “I was able to utilize all my time on concentrating on being a good student without the worry of having to work on the side.” Because he used all of his GI Bill benefits in college, he does not qualify for such services in law school. “But,” he says, “I’m at a great law school and can’t complain.” The Law Schools Houston’s three laws schools are actively committed to providing assistance to veterans. Both UHLC and TMSL are committed to veterans’ programs through their main campuses. For example, their main campuses have signed their commitment to “The 8 Keys to Veterans’ Success,” a voluntary initiative through the Departments of Education and Veterans Affairs that specifies eight concrete steps for universities to help veterans as they pursue their education and employment. The first “key” is creating a culture of connectedness to promote the well-being and success of veterans.9 Through its veteran’s program website, UH shows that it is both an approved training facility and a military-friendly institution, with two campus offices providing services to veterans: Veterans Services and the Office of Registration and Academic Records, which coordinate services to more than 1,600 veterans and dependents.10 Similarly, Texas Southern University offers veteran-specific information on its website.11 STCL also has information on veterans’ benefits available on its website.12 It has also agreed to participate in the Yellow Ribbon Program by contributing up to $5,000 per year towards the tuition of each eligible veteran. When it comes to STCL, Lt. Gurski and Cpt. Rieger will vouch for its commitment. Before deployment just before finals, Gurski remembers his concerns. He reached out to STCL registrar Mandi Gibson and Associate Deans Bruce McGovern and John Worley with a list of numerous questions and concerns. “Whatever the issue, both of these Deans either found out my answer immediately or made sure
thehoustonlawyer.com
September/October 2014
23
that someone got in touch with me to get me that decision,” Gurski remembers. “Of all the things you worry about when you are deploying, for me, school was never one of them. South Texas was not only understanding, but went above and beyond my expectations to take care of their student-soldiers.” Near the end of his tour, Gurski realized he should start registering for classes and getting financial aid and the GI Bill. By the time he checked, he was almost a month late for registration. He remembers using a cell phone at midnight to call the registrar. She told him not to worry and to just tell her which classes he wanted. She would ensure he got them. In addition, he remembers receiving a care package with a large poster signed by his classmates. Gurski’s friend Rieger shares the same gratitude. The registrar’s office ensured that he could re-enroll after deployment and complete his last semester. STCL’s Angela Darwin helped him sign up for the Post-911 GI Bill. While he was still
deployed, STCL’s Julie Sams and Associate Dean McGovern and Dean Emeritus Jim Alfini helped him apply for judicial clerkship positions. Within two weeks of returning to Texas, he was offered a law clerk position with Texas Supreme Court Justice Phil Johnson. “Much credit is owed to South Texas College of Law and the great people at the law school,” he says, “for not only giving me the chance to succeed, but also for their continuous support and help throughout my time there.” STCL’s Dean Donald Guter is, no doubt, one of the major reasons why the school is so committed to veterans. Dean Guter served in the U.S. Navy for 32 years, retiring in 2002 as a Rear Admiral, Judge Advocate General’s Corps (“JAG”). He rose through the JAG ranks serving as trial counsel, legislative counsel and special counsel to the Chief of Naval Operations, and he ultimately became the 37th Judge Advocate General of the Navy (2000-2002). Dean Guter is quick to point out, though, that the pro-veteran
culture already existed at STCL before he came. It is obvious that our three local law schools share the sentiment recently espoused by U.S. Secretary of Education Arne Duncan: “As we approach the 70th anniversary of the GI Bill, we commemorate one of the most successful pieces of legislation in American history. Passed at the height of World War II, the landmark measure enabled millions of America’s Greatest Generation to obtain unprecedented access to college and training. In the years since, the law has appropriately been a way for our country to say, ‘thank you for a job well done,’ to our returning service men and women.”13 Though not a veteran, Hon. Josefina M. Rendon is the sister of eight veterans, some of whom served during World War II and Vietnam. Her oldest brother was a Lt. Colonel with the Army Air Corps. She has been a member of the American GI Forum for several years and was treasurer of the Houston Foundation for Vietnam Veterans. For nearly four years, she
BRILLIANT
SPONSORSHIP OPPORTUNITIES AVAILABLE
BrilliantEntertainment.com ANNUAL SPONSOR
24
September/October 2014
thehoustonlawyer.com
713-974-1335
mediated and taught negotiation classes for the Air Force, Army, and Navy. She is a member of The Houston Lawyer editorial board. Endnotes
1. Pub.L. 78-346, 58 Stat. 284m, available at http://www. ourdocuments.gov/doc_large_image.php?doc=76). 2. http://www.benefits.va.gov/gibill/history.asp. 3. http://www.military.com/education/gi-bill/learn-to-useyour-gi-bill.html. 4. 38 U.S.C. §3001, et seq.; 10 U.S.C. § 1606. 5. 38 U.S.C. § 3301, et seq. 6. 10 U.S.C. § 1607 . 7. 38 U.S.C. § 3317. 8. 40 TEX. ADMIN. CODE § 461.10 et seq. See also http://www. tvc.texas.gov/Hazlewood-Act.aspx. 9. See Memo written jointly by A.A. Hickey (Under-Secretary for Benefits, U.S. Department of Veterans Affairs) & T. Mitchell (Under-Secretary of Education, U.S. Department of Education), July 16, 2014, available at http://www2.ed.gov/ documents/military/letter-july-16-2014.pdf). See also http:// www.whitehouse.gov/blog/2013/08/13/8-keys-successsupporting-veterans-military-and-military-familiescampus; http://www.ed.gov/veterans-and-military-families/ 8-keys-success-sites; http://www.cvent.com/events/8-keysto-veteran-s-success/event-summary-9d85142eae7e4227 86691f9a4e0f3c50.aspx?RefID=8%20Keys%20to%20 Success. 10. http://www.uh.edu/veterans/ 11. http://em.tsu.edu/registrar/veteran.php?submenu=cs; http:// archive.tsu.edu/pages/2429.asp 12. https://www.stcl.edu/registrar/. 13. Statement by U.S. Secretary of Education Arne Duncan on the 70th Anniversary of the GI Bill, June 20, 2014, available at http://www.ed.gov/news/press-releases/statement-ussecretary-education-arne-duncan-70th-anniversary-gi-bill (emphasis added).
HOUSTON LAW REVIEW PRESENTS
THE 19th ANNUAL
FRANKEL LECTURE Marriage Equality as a Testing Ground for Original Meaning Featuring William Eskridge, Jr. John A. Garver Professor of Jurisprudence at Yale Law School
Friday October 31, 2014, 8:30-10:30 a.m. Hilton University of Houston 4800 Calhoun Rd., Houston, TX 77004 Continental Breakfast Provided Two Hours MCLE Credit To RSVP, email symposium@houstonlawreview.org
UH is an EEO/AA institution.
thehoustonlawyer.com
September/October 2014
25
By Raymond L. Panneton
Harris County I Veterans’ Court Continues Mission to Help Veterans
n 2009, Judge Marc Carter, presiding judge of the 228th Criminal District Court and a United States Army veteran, along with Senator Rodney Ellis, Representative Alan Vaught and several other community partners, established a program in Harris County that sought to directly address and help veterans who have committed first-time felonies and misdemeanors. The resulting program, known as the Harris County Veterans’ Court Program, was the first of its kind in Texas. This special court serves as a model for Texas, and the country as a whole, providing a modern method to address underlying mental health conditions in veterans designed to reduce recidivism. Judge Carter’s program began with Marine Sergeant Marty Gonzalez, an Iraq war veteran who was shot twice and involved in two bombing attacks. As a result of his service, Gonzalez was awarded, among other things, three Purple Hearts and two Bronze Stars. Unfortunately, in addition to his commendation and awards, Gonzalez also brought back many unseen things from Iraq, including post-traumatic stress disorder (“PTSD”), a traumatic brain injury and a broken back. Gonzalez’s PTSD got progressively worse as he attempted reintegration into civilian life, and as a coping mechanism, Gonzalez began abusing painkillers. One night, after taking too many painkillers, Gonzalez and his child were involved in a motor vehicle accident, landing Gonzalez in Judge Carter’s court. Upon reflection on Gonzalez’s situation, Judge Carter stated that the situation “upset me because I knew there was no justice for this young man if I let his story be written that way.” Gonzalez underwent Judge Carter’s program and came out a better man. When the time came, Judge Carter asked Gonzalez to testify before the legislature in an attempt to get a veterans’ court officially established in Harris
26
September/October 2014
thehoustonlawyer.com
County.1 In May 2009, the Texas Legislature passed Senate Bill 1940, which permitted counties in Texas to establish veterans’ courts.2 The Harris County Veterans’ Court was officially established on Veterans Day in 2009, and in the first 18 months of the program, Harris County was able to obtain nearly $600,000 of benefits from the U.S. Department of Veterans Affairs (“VA”) that otherwise would have not been available.3 In a 2012 interview with CBS News’ 60 Minutes, Judge Carter elaborated on the necessity of having a tailored program for veterans in Harris County. “You have to put them in a program that’s going to help them, that’s going to make them be successful. If you just put them out there on probation they are going to fail. If you put them on probation that is tailored to deal with their problems, PTSD and drug use, then they’ll be successful. They won’t have to go to prison.”4 In addition to Judge Carter’s veterans program, the Harris County Commissioner’s Court has voted to create a misdemeanor veterans’ court in Harris County. On September 23, 2014, the Commissioners Court unanimously voted to establish a misdemeanor program in Harris County Court at Law No. 14, under the supervision of Judge Mike Fields. “A lot of men and women coming back from deployment have given everything they can to our country, and are suffering the repercussions of a high stress (tour of duty). They need our help now,” stated Judge Fields when asked about his reasoning for wanting to establish a veterans program in his court.5 “We are hoping to reach veterans at their time of need,” explained Judge Fields. Judge Fields also hopes that his program can take a holistic approach to dealing with veterans’ problems. “If we do not address PTSD problems early enough, the domestic violence and substance abuse manifestations of PTSD can create a generational stronghold.” Judge Fields is cognizant of the fact that the damage of war does not just begin and end with the soldier.
Judge Carter, when asked about Judge or be currently serving in the armed Fields’ program, opined that the new forces.7 Additionally, the veteran must program will greatly benefit veterans be suffering from a service-connected by preventing them from ever being mental illness or disorder that contribcharged with a felony offense by addressuted to the criminal conduct at issue in ing potential problems early. “Bringing the case.8 This criterion could be met, for in [the program] at a example, by a veteran misdemeanor level is with PTSD, who is Judge Carter’s huge.”6 abusing alcohol, and program began with who is subsequently The Veterans’ Court arrested for driving is a hybrid drug and Marine Sergeant Marty under the influence. mental health court Gonzalez, an Iraq war Once a veteran is that seeks to treat veteran who was shot referred to Veterans’ the underlying menCourt, he or she is tal health condition. twice and involved in given the choice of Judge Carter and othtwo bombing attacks. either going through er community leaders the traditional crimisaw a need for such As a result of his service, nal justice system, or a program in Harris Gonzalez was awarded, going through Judge County because of among other things, Carter or Judge Fields’ the growing number program. Judge Cartof criminal charges three Purple Hearts er’s program goes bebeing brought against and two Bronze Stars. yond traditional proveterans stemming bation requirements, from substance abuse Unfortunately, in addition and carries a manor mental illness. As to his commendation datory minimum of the duration of the and awards, Gonzalez six months of mental wars in Iraq and Afhealth treatment and ghanistan extended, also brought back supervision. When so grew the number many unseen things a veteran chooses of veteran violators to go through Judge in Harris County. from Iraq... Carter’s program, the Through the tradiexpectations are clear. “It’s tougher for tional criminal justice system, veterans them. They make a commitment to me are not given adequate treatment for and that is, ‘I’m going to do what it takes. their underlying mental health issues. I’m going to go to all the programs and The Veterans’ Court program seeks to treatment programs.’ And my promise link these veterans to the mental health to them is, ‘I will be patient and I will resources they are entitled to through give you time to change back to the perthe VA. son you were.’”9 The program addresses After veterans are arrested, they can petition for inclusion into the Veterans’ the core mental illnesses associated with Court program if they are a first time ofthese offenders, such as PTSD and subfender. There is no mechanism for guarstance abuse. The program seeks to reanteed admittance into the program. duce jail time, costs and recidivism rates, Participation in the program will be while improving mental health and redetermined based on the nature of the integration into civilian life. Before the offense, past criminal history and the veteran begins his or her recommended offender’s status as a veteran. To qualprogram, defense counsel and the prosify, an applicant must be a veteran and ecutor will negotiate a plea deal that can have an honorable discharge or general include reduction, consolidation or disdischarge under honorable conditions, Continue on page 29
“
”
thehoustonlawyer.com
September/October 2014
27
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 Ajamie LLP Andrews Myers, P.C. Bair Hilty, P.C. Baker Williams Matthiesen LLP The Bale Law Firm, PLLC Barrett Daffin Frappier Turner & Engel, LLP Bateman | Pugh | Chambers, PLLC Berg & Androphy Bingham, Mann & House Blank Rome LLP Brewer & Pritchard PC Buck Keenan LLP Bush & Ramirez, P.L.L.C. Butler | Hailey Caddell & Chapman Cage Hill & Niehaus, L.L.P. Campbell Harrison & Dagley LLP Campbell & Riggs, P.C. Chernosky Smith Ressling & Smith PLLC Christian Smith & Jewell, L.L.P. Connelly • Baker • Wotring LLP Cozen O’Connor Crady, Jewett & McCulley, LLP Crinion Davis & Richardson LLP De Lange Hudspeth McConnell & Tibbets LLP Devlin Naylor & Turbyfill PLLC Dinkins Kelly Lenox Lamb & Walker, L.L.P. Dobrowski, Larkin & Johnson LLP Dow Golub Remels & Beverly, LLP Doyle Restrepo Harvin & Robbins, L.L.P. Ebanks Horne Rota Moos LLP Edison, McDowell & Hetherington LLP Ellis, Carstarphen, Dougherty & Griggs P.C. Ewing & Jones, PLLC Faubus Keller & Burford LLP Fernelius Alvarez PLLC Fibich Leebron Briggs Josephson, LLP Fisher, Boyd & Huguenard, LLP Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins, P.C. Fleming, Nolen & Jez, L.L.P. Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Fullenweider Wilhite PC Funderburk Funderburk Courtois, LLP Galloway Johnson Tompkins Burr & Smith Germer PLLC Givens & Johnston PLLC Godwin Lewis, P.C. Goldstein Law PLLC Gordon & Rees LLP Greer, Herz & Adams, L.L.P. Hagans Burdine Montgomery & Rustay, P.C. Harberg Huvard Jacobs Wadler LLP Harris, Hilburn & Sherer Hartline Dacus Barger Dreyer LLP Henke Law Firm, LLP Hicks Thomas LLP
Hirsch & Westheimer, P.C. Holm | Bambace LLP Hunton & Williams LLP Jackson Gilmour & Dobbs, PC Jackson Lewis LLP Jenkins Kamin, L.L.P. Johnson DeLuca Kurisky & Gould, P.C. Johnson, Trent, West & Taylor, L.L.P. Jones Walker LLP Joyce, McFarland + McFarland LLP Kane Russell Coleman & Logan PC Kelly, Sutter & Kendrick, P.C. KoonsFuller, PC Kroger | Burrus Lapidus Knudsen PC LeBlanc Bland P.L.L.C. LeClairRyan Legge Farrow Kimmitt McGrath & Brown, L.L.P. Linebarger Goggan Blair & Sampson LLP Liskow & Lewis Lorance & Thompson, PC MacIntyre, McCulloch, Stanfield & Young LLP McGinnis Lochridge & Kilgore LLP McGuireWoods LLP McLeod Alexander Powel & Apffel PC MehaffyWeber PC Miller Scamardi & Carraba Mills Shirley L.L.P. Morris Lendais Hollrah & Snowden Murray | Lobb PLLC Nathan Sommers Jacobs Ogden, Gibson, Broocks, Longoria & Hall, LLP Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Pagel Davis & Hill PC Parrott Sims & McInnis, PLLC Perdue Brandon Fielder Collins & Mott Perdue & Kidd LLP Phelps Dunbar LLP Phillips, Akers & Womac, PC Pillsbury Winthrop Shaw Pittman LLP Radcliffe Bobbitt Adams Polley PLLC Ramey, Chandler, McKinley & Zito Reynolds Frizzell LLP 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 PLLC Smith Adams Law Feehan LLP
Smith Murdaugh Little & Bonham, L.L.P. Smyser Kaplan & Veselka, L.L.P. Sprott Newsom Lunceford Quattlebaum Messenger, P.C. Stevenson & Murray Strong Pipkin Bissell & Ledyard, L.L.P. Stuart & Associates P.C. Sutton McAughan Deaver, PLLC Tekell, Book, Allen & Morris, L.L.P. Thompson & Horton LLP Thompson, Coe, Cousins & Irons, LLP Taunton, Snyder & Slade, P.C. Tucker Vaughan Gardner & Barnes, P.C. The Ward Law Firm Ware, Jackson, Lee & Chambers, L.L.P. Watt Beckworth Thompson & Henneman, LLP Weinstein Tippetts & Little LLP Weycer Kaplan Pulaski & Zuber, P.C. Williams, Birnberg & Andersen, L.L.P. Williams Kherkher Hart Boundas LLP Williams Morgan P.C. Willingham, Fultz & Cougill, LLP Wilson, Cribbs & Goren, P.C. Wilson, Elser, Moskowitz, Edelman & Dicker Wright Abshire, Attorneys, PC Wright & Close, L.L.P. Yetter Coleman LLP Ytterberg Deery Knull LLP Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. Zimmermann, Lavine, Zimmermann, & Sampson, P.C. Zukowski, Bresenhan, Sinex & Petry LLP Firms of 25-49 Attorneys Adams & Reese LLP Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Akin Gump Strauss Hauer & Feld LLP Beck I Redden LLP Beirne, Maynard & Parsons, L.L.P. BoyarMiller Chamberlain Hrdlicka White Williams & Aughtry Coats I Rose Cokinos Bosien & Young Gibbs & Bruns LLP Greenberg Traurig, LLP Jones Day Littler Mendelson, PC Munsch Hardt Kopf & Harr, P.C. Olson & Olson LLP 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 Norton Rose Fulbright Haynes and Boone LLP Locke Lord LLP Vinson & Elkins LLP Corporate Legal Departments AT&T Texas BP CenterPoint Energy El Paso Corporation Kellogg Brown & Root Inc LyondellBasell Industries MAXXAM Inc Newfield Exploration Company Petrobras America Inc. Plains Exploration & Production Co. Pride International Inc. Rice University S & B Engineers and Constructors, Ltd 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
missal of the charges, pending successful completion of the program. Veterans in the program go to courtordered therapy three to four times a week that will address addiction and PTSD related issues. The therapy happens in both a group and individual setting with psychiatrists from the VA. Every two weeks, the veterans will appear before Judge Carter and provide progress updates. If it is apparent that a veteran is not taking the program seriously or not committed to success, he or she will be removed from the program and sent through the regular probation system. While the veteran is completing treatment, a Veterans Justice Outreach Specialist will act as liaison between the veteran and law enforcement officials. The specialist will help the veteran to avoid jail and a criminal record by ensuring that the veteran follows the program, and obtains the necessary treatment. Based on the successful pioneering experience in Harris County, eight additional counties have introduced veterans’ courts, to serve veterans and the public: Bexar, Dallas, Denton, El Paso, Guadalupe, Nueces, Tarrant and Travis. Raymond L. Panneton practices medical device and pharmaceutical litigation with the Talaska Law Firm, PLLC. He is a member of The Houston Lawyer editorial board. Endnotes 1. John Donnelly, Helping, not punishing vets who lose their way (Nov. 23, 2012), available at http://www.myfoxhouston.com/story/20009022/2012/11/05/helping-notpunishing-vets-who-lose-their-way 2. Leila Levinson, After the Parade; Courts Ease Homecoming for Troubled Vets (Jan. 3, 2012), available at http://www.texasobserver.org/after-the-paradecourts-ease-homecoming-for-troubled-vets/ 3. Jordan Antonio Rodriguez and Carol Wang, Primer to Veterans’ Courts in Harris County Texas, available at http://www.texascivilrightsproject.org/docs/vets/veteran_court_primer.pdf 4. Coming Home: Justice for our Veterans available at http:// www.cbsnews.com/news/coming-home-justice-for-ourveterans/2/ 5. Barned-Smith, St. John. New Misdemeanor Court to Help Combat Veterans. Houston Chronicle, available at http://www.houstonchronicle.com/news/houstonte x a s / hou ston /a r t icle / New-m i s deme a norcourt-to-help-combat-veterans-5776111.php. Last accessed 9/24/2014. 6. Id. 7. Rodriguez and Wang, supra n. 3 8. Id. 9. Supra n 4.
Up to100% Financing for Attorneys Cadence Mortgage recognizes the needs of customers just beginning their professional careers by offering this Early Professionals loan program. Our Early Professionals program is designed specifically for Attorneys, Dentists, Doctors, Architects, CPAs, Engineers and PHD level Professors. • • • • • •
Must be in professional career (5 years or less from graduation) 5/1 ARM and Fixed Rate programs available Loan Amounts up to $1,000,000 Up to 100% LTV Owner Occupied Purchases No Mortgage Insurance Requirement
For additional information contact:
Drew Steinmeyer Mortgage Lending Manager NMLS# 266665 Office: 713-334-3118 Cell: 713-962-3305 drew.steinmeyer@cadencebank.com
Visit Me Online drewsteinmeyer.cadencebank.com MORTGAGE All loans are subject to credit approval. Restrictions apply. Consult a Cadence Bank Mortgage Lender for complete details. Cadence Mortgage is a Division of Cadence Bank, N.A.
Houston Lawyer Ad B&W - Sept-14.indd 1
thehoustonlawyer.com
EQUAL HOUSING
LENDER
9/9/2014 2014 10:01:28 AM 29 September/October
By J. Gordon Dees
A Criminal Lawyer’s Thoughts on Representing the Returning Veteran 30
September/October 2014
thehoustonlawyer.com
T
he 1946 award-winning motion picture “The Best Years of Our Lives” poignantly, yet realistically, recounts the experiences of three United States servicemen upon their return to their homes in the same mid-western city at the end of World War II. All three men have been in combat and the film explores the difficulties they encounter in readjusting to civilian life. In the movie, Frederic March plays a returning infantry sergeant who resumes his pre-war position as a bank loan officer. Dana Andrews plays a decorated Army Air Force Captain who despite his wartime heroism must settle for his old job as a drug store soda jerk. Non-professional actor Harold Russell turns in a surprisingly sensitive performance as a young sailor whose hands have been amputated because of burns suffered when his ship sunk and now must use mechanical hooks. (Russell, a United States Army veteran, actually lost both of his hands when an explosive device he was handling accidentally went off during training). The infantry sergeant played by March returns to a loving, supportive family and comfortable lifestyle. But his desire to help returning veterans get back on their feet after the war by approving unsecured loans based, in part, on faith in a veteran’s character is at odds with the bank’s conservative lending philosophy. On the other hand, the Air Force captain played by Andrews returns to a selfish and unfaithful wife who seems to have married an officer’s uniform rather than a man and cannot accept the thought
of being married to a lowly soda jerk. It is she, played by Virginia Mayo, who ironically makes the only allusion to the film’s title when she tells her husband that she gave up the best years of her life while he was in the service. But perhaps the most heart-breaking but ultimately life-affirming story line in this movie revolves around the young disabled sailor who, prior to the war was a high school quarterback, and now is anguished over how his family and especially his fiancée will react to his disability. Fortunately, there appears to be a happy ending, or perhaps a new beginning, for each of the three returning servicemen. After some painful experiences of readjustment, the end of the movie leaves the viewer with the realization that despite the happy endings, each veteran’s period of readjustment is far from over. Despite their differences in background, wartime service and experiences upon coming home, each protagonist in “The Best Years of Our Lives” returns deeply wounded; the young sailor severely physically, but all three deeply wounded emotionally and spiritually. I recommend this movie not just because it is a great film and one of my favorites, but also because at this point in our nation’s history it has special relevance. Not since the Vietnam War have we experienced such a large number of returning combat veterans, many of whom have been deployed to Iraq or Afghanistan for several tours of duty. Sadly, when they do come home, either after completing their period of service or due to a medical discharge, many return to find few employment opportunities, limited or no family support, and often inadequate veteran health care and counseling services. These young men and women who have known the horror of war and sacrificed so much deserve much better and we, as lawyers, should be keenly aware of the impact their combat service may have on their ability to readjust to civilian life.
Of course, all lawyers should be sensitive to the special issues that may be presented in representing the former combat veteran but, as a criminal defense lawyer, I have found that there are certain things you must learn about your client who is a recent combat veteran. The following are some suggested areas of inquiry and investigation that I believe are crucial in adequately representing a recent combat veteran who has been accused of a crime: 1. Know your client’s branch of the military, his or her rank, and the number, location and length of deployments. 2. Know whether your client received any specialized training in the service. 3. Know whether your client was physically wounded and the nature of the injury and the medical treatment including medications. Given the nature of the wars in Iraq and Afghanistan and the constant use of Improvised Explosive Devices (“IEDs”), brain injury has become quite common and may or may not have been readily diagnosed. 4. Know whether your client was subject to any kind of disciplinary action while in the service. 5. Know the nature of your client’s military discharge. 6. Know whether your client has received a diagnosis of Post-Traumatic Stress Disorder (“PTSD”) or some other psychological disorder attributable to military service. 7. Know whether your client has received or is currently receiving any medical or psychological treatment related to military service. 8. Know what medications your client has been prescribed as part of treatment for any physical injuries or psychological conditions connected to military service. (This inquiry is especially important in representing the combat veteran
charged with a drug offense as an addiction may have grown out of legitimate drug therapy.) It is also important to keep in mind that your veteran client has been expertly trained in the use of firearms and other weapons while in the service. The carrying and use of an often highcaliber firearm would have become second nature to him or her. Not only would the client have been trained in the proper use of the weapon but also would have been prepared to fire it at any moment of danger. Although your client’s regular use of firearms in the military may not provide a defense, it certainly may play a part in mitigating your client’s guilt especially in a case involving the carrying, display or use of a weapon. A client who has been recently discharged from combat service in the military is making the often difficult transition from an environment of giving and taking orders with a specific job to do under stressful and dangerous conditions, but with a strong sense of purpose, to an unstructured environment full of temptations and a society often indifferent to his or her special needs. This period of adjustment to civilian life may make veterans, especially the younger ones, vulnerable to negative influences which can lead to drug or alcohol abuse and criminal activity. Finally, it is always important to communicate to your client that you understand the special problems the combat veteran faces and your gratitude for his or her service to our country. Although it is often difficult in many serious cases, it is important to do whatever you can to give these young veterans hope in the belief that perhaps the best years of their lives are still ahead. J. Gordon Dees is a practicing criminal defense attorney, a former Chief Felony Prosecutor with the Harris County District Attorney’s Office and the current chair of the Criminal Law & Procedure Section of the Houston Bar Association.
thehoustonlawyer.com
September/October 2014
31
By Tara Shockley and Nicole Bakare
HBA Legal Initiative Serves Veterans of All Eras
T
ed Roggen joined ROTC while he was a journalism student at Louisiana State University. After graduation in 1941, not long before Pearl Harbor, he reported for military duty in Louisiana. Roggen was with the 36th Infantry when it landed at Salerno, Italy on September 9, 1943. Under siege from a German panzer unit, his commander surrendered to save over 300 men who were captured that day. Roggen spent the next World War II veteran Ted Roggen and his wife, Sydney, got 21 months as a prisoner help from the Veterans Legal Initiative to revise their wills. of war in Szubin, Poland, about 200 miles from Warsaw. Among his fellow POWs were John T. Jones, Jr., the nephew of Houston entrepreneur Jesse H. Jones, the man responsible for much of the country’s industrial expansion during the war as head of the Reconstruction Finance Hunter Shurtleff, president of the Brazos County Bar Corporation; Amon CartAssociation, gives legal advice at the first VLI clinic held in er, Jr., of the Fort Worth January in the Bryan/College station area. entrepreneurs and philanthropists; and John Waters, the son in law of Gen. George Patton. Roggen said the Germans never realized who they were. While their captors didn’t beat or torture the officers, Roggen said their food situation was dire. At the beginning of their David Stasney counseling a veteran at the Veterans Legal internment, they received Initiative clinic in Bryan/College Station. packages from the Red Cross that provided some additional food. Toward the end of the war, however, those stopped. Roggen weighed 180 pounds when he was captured. He weighed 106 pounds when he was released. After Roggen was discharged in 1945, with the rank of captain, he returned to Houston, his hometown, to start his own advertising and public relations firm. His
clients included the original Ninfa’s Restaurant on Navigation, the Pappas restaurants and Antone’s Po-Boys. At 96, Roggen still works and still drives. But when he needed legal services, he needed help. A friend who is a nurse at the Michael E. DeBakey VA Medical Center told Roggen about the Houston Bar Association’s Veterans Legal Initiative and the legal clinics held there every Friday afternoon. Roggen and his wife of 53 years, Sydney, a cancer survivor, needed to have their wills revised and decided to visit the legal clinic. The Roggens sat down with volunteer attorneys, who listened to their legal needs and helped them fill out the required forms. Once it was determined that the couple qualified for pro bono legal services, their case was assigned to volunteers with the University of Houston’s legal clinic, one of many organizations, law firms, corporations and individual attorneys who volunteer for the VLI. “I can’t begin to tell you the attention we received. It was outstanding,” said Roggen. “I think it’s wonderful what they do to help veterans. Many don’t have resources, just don’t have the funds.” Roggen is among nearly 9,600 veterans who have been served, since 2008, through the Veteran’s Legal Initiative (VLI), a coalition of the Houston Bar Association, Houston Bar Foundation, Jefferson County Bar Foundation, Fort Bend Lawyers Care, Baylor Law School and Austin Bar Association. The program is funded through grants from the Texas Access to Justice Foundation, Houston Bar Foundation and other service providers, and operated through the HBA’s Houston Volunteer Lawyers (HVL). The program offers both Friday afternoon clinics at the DeBakey VA Medical Center and Saturday morning clinics on selected dates throughout a 17-county area. Counties included in the VLI service area are: Bell, Brazoria, Chambers, Fort Bend, Galveston, Grimes, Hardin, Harris, Jefferson, Liberty, McLennan, Montgomery, Orange, San Jacinto, Travis, Walker and Waller. In 2014, the VLI held its first clinics in Brazos County, with as-
sistance from the Earl Graham American cent increase in the number of veterans’ Legion Post and the Texas A&M Veteran cases assigned to volunteers through the Resource & Support Center. Saturday legal advice clinics during this Attorneys volunteer their time to staff bar year. the clinics to give legal advice, answer Veteran attendance at the Friday clinlegal questions and assist with intake for ics is also growing—and there is always ongoing pro bono legal representation. a need for more volunteer attorneys. “It’s While any veteran, regardless of income, such an easy way to give back to our comcan receive advice and counsel at the clinmunity,” says Taylor Lamb, an associate ics, veterans do need to meet financial at Gray, Reed & McGraw, P.C., in Housguidelines for free onton. Often attorneys For a list of resources for going legal representathink they are too veterans and attorneys, visit tion. The guidelines busy to volunteer, but differ slightly accordthe clinics are a “great the Veterans Legal Initiative ing to the sponsoring gateway into pro page at hba.org. program and take into bono work,” counters consideration family size, assets and exLamb, because they “provide a platform penses. for people to meet clients face to face and What can veterans expect at a Legal to provide basic assistance to veterans in Advice Clinic? The veteran will sign in the form of legal intake into the HVLP and fill out an application for legal servicprogram.” es. Once the form is completed, the vetMoreover, there’s no requirement that eran will meet with a volunteer attorney an attorney volunteering at the clinic later who will listen to the veteran’s story, anaccept a pro bono case, making it a perswer legal questions and provide legal adfect volunteer opportunity for the attorney vice to the extent possible. If the attorney with only a few hours to spare. Although believes the veteran needs ongoing legal Lamb’s expertise is in corporate transacrepresentation, and the veteran qualifies tions, she has volunteered at the clinic for service, he or she will be referred to several times and, with help from HVL, a volunteer attorney who will handle the taken on more than one pro bono family case pro bono. law case. According to Lamb, “volunteerVeterans can get help with family law ing at the Veterans’ Clinic often provides issues, wills and probate, consumer/ people with the personal connection and credit problems, landlord tenant issues, extra confidence to take a pro bono case.” tax questions, disability and veterans The Houston Bar Association has develbenefits and many other legal issues. The oped a web page that includes an attorney program has built strong relationships volunteer form and lists upcoming free lewith the Texas Veterans Commission gal advice clinics, as well as many other (TVC), the local VA office and organizaresources for veterans, at http://www.hba. tions such as American Legion and VFW org/services/veterans-legal-initiative/. To posts. A representative from the TVC is volunteer at one of the veterans’ legal clinpresent at every Saturday clinic to answer ics, including the weekly Friday afternoon benefits questions, and most clinics are clinic at the DeBakey VA Medical Center, held at either VA outpatient clinics or one contact Andrew Lehman at 713-228of the posts. 0735, or e-mail him at andrew.lehmann@ “I would encourage as many vets as hvlp.org. possible to seek services from the program,” Roggen said. “The attention and Tara Shockley is the communications director care given me were outstanding.” for the Houston Bar Association and managing The need for legal services for veterans editor of The Houston Lawyer. Nicole Bakare continues to grow. The VLI saw a 37 perpractices with Cozen O’Connor and is a member cent increase in attendance and a 48 perof The Houston Lawyer editorial board. thehoustonlawyer.com
September/October 2014
33
By Taunya Painter
Managing Internet Risks & Benefits
W
hether it’s social media sites or apps, there’s always something new, and by now, we all know the importance of online engagement. In the last issue, we covered going online, at a minimum, to protect your reputation from damage. This next 2-part column can help you engage online efficiently to get business. For most attorneys, the primary goal in investing time online is simple: we want clients. If you agree, then, your online presence must help people: (1) find you, (2) like you and (3) contact you. These steps are increasingly intuitive to the public because it is how most people, especially those in large cities, look for any number of things…a concert, a new restaurant, a pharmacy, a daycare and even a lawyer. Part 1 of 2 (Sept/Oct issue) focuses on helping clients find you based on the most common way someone will search for a lawyer – a Google search. Part 2 of 2 (Nov/Dec issue) will continue the discussion of helping clients find you through social media and directories, and also covers helping them like you and contact you. This first step is the hardest.A lawyer has to land near the top of a Google search to be found on the search engine. Here are suggestions to do that, incorporating Google’s 2013 algorithm changes:
Buy a domain name. Choose something that is easy to remember and share (use short, memorable, search-worthy words spelled correctly). For a solo practitioner, this may be your name. A firm can buy multiple domain name variations of what comes before and after the “dot” and do a redirect to one site; this prevents someone else from buying a variation and potential clients getting sent to their site. If you have multiple partners, your domain name can get laborious to recite and is likely to change if someone leaves. One option is for each partner to buy her own domain name (e.g., jillsmithlaw. com; jillsmith.com; jillsmith.net) and then redirect those to a main firm page (e.g., houstonfamilylaw.com).If Jill Smith leaves, she can delink and take her domain name with her, and the firm she leaves is not affected. Finally, make sure to put plenty of reminders to re-register your domain 34
September/October 2014
name so that someone else doesn’t hijack it. Set up a user and mobile-friendly firm site. An important factor for Google’s recent ranking criteria is to be mobile friendly. Avoid java script and pop ups. Google bots will rank a mobileoptimized site higher than one that is not. Also, be cautious about setting up separate sites – one for desktop and one for mobile. Use Google’s publication on “Building Smartphone-Optimized Websites” to create something that works for your firm on all formats. Post blogs or articles. Content is still king! Regardless of whether you call your content a blog or article, the following are the important elements: Be an author. Your content has to be original, or Google will ignore you. If you are going to use research and quote sources, write what you know before consulting them. You can follow experts and media sources, and repost their content, which may be of interest to clients and others, but Google won’t care much. Use what you learn from experts and case research. In a recent case, for instance, we learned that African-American women as compared with Caucasian women are at twice the risk of having a stroke yet significantly less likely to receive the stroke treatment medication TPA. This is all excellent information to discuss in an article. Focus content on specific vs. generic. Pick a specific topic and title (e.g., “what to do when you think you’ve had a stroke but the hospital ER discharges you” vs. “stroke and the law”). Also, write about the specific experiences that your clients may have. For instance, talk about: (1) actions leading up to a problem; (2) the problem or event itself; (3) the results or consequences; and (4) the legal steps to fix it. As lawyers, we tend to write about steps 2 and 4, while the client may Google elements of 1 and 3 and tack on the phrase “Houston lawyer.” Try to use active or action words (“hiring a DUI lawyer” vs. “the legal process for DUI court”).Finally, use latent semantic indexing (LSI) words that relate to your topic. For instance, in the stroke article you may use variations of words like “stroke,” “heart attack,” “heart disease,” “mini stroke,” “hemorrhagic,” and/or “ischemic.” Use of the words should be
thehoustonlawyer.com
natural, such as explaining the technical differences in the words or how different conditions have varying symptoms and treatments. Potential clients may use LSI keywords interchangeably, but be careful not to mention keywords just to use them. Be thorough. Some of your articles should show that you are an expert. For these, shoot for a minimum of 1,500 words; that way, you have a chance to make it into the Google “In Depth Articles” feature, which was launched in 2013. To be included there or in the Google “Scholar” feature, you must comply with the technical parameters, which can be found on their page. Write for the clients you want. Google wants to pigeon hole you; let it. If you are a real estate lawyer but you blog non-stop about divorce probono cases, Google thinks you are a divorce lawyer. You will be doing referrals instead of intakes. Run off the prospective clients you don’t want. For instance, if you do employment law representing the employer, you may use the same search terms as a lawyer for employees. Make sure your text is specific enough that readers get the point. Write often. Avoid the deluge-drought approach. Make a template for your content to speed up your process. Another idea is to write a bunch of articles at one time, and then stage their release over months. A friend of mine wrote an e-book, uploaded it to his site, and then had a posting drought. He should have cut it up into 20+ topical articles (like “real estate series: how to negotiate a lease as a lessee/tenant small business owner,” “real estate series: things to watch out for in a lessor/landlord form lease,” etc.). Google loves continuous activity. Make your URL, title tag, and heading tags search and click worthy. Google bots search and rank URL and title words. Use words descriptive of the article. For your URL, don’t use words that describe only the path of where your document is saved; also, connect the words with underscores not dashes. For your title, avoid the urge to be witty at the expense of descriptive; save your wit and charm for the article content itself. Also, the heading tag should accurately summarize the article content. It is what the reader will use to determine link click worthiness. Add a visual. With every article, add a customized photo or video with a solid searchable title. Articles with images or videos get 2-3 times more views. Stock photos of beautiful people or generic things you found on the web won’t do the job here. Use hyperlinks. Use back-forward hyperlinks to other full text sources of information. If you want to reference a document, upload it to Google Docs, and link to it. Make videos. Making videos can be expensive and time-con-
suming, but the upsides are astounding. Google owns YouTube and ranks video content high. Having video improves your chance of getting to the top of a Google search by 50 percent. Videos are twice as likely to be clicked and shared as plain text in social media. Link back videos. Save your videos to YouTube, and link them back to your site using your URL. Get the content picked up in a Google search. Voice is not in the Google bot algorithm, but you can get it found and ranked by including a summary or transcript below the video. Also include your name and firm name. Be authentic. Actors don’t usually nail it on “Take One,” so expect some retakes. Video, done correctly, can be the purest form of authentic. A potential client will come in for their first meeting, and they think they already met us because they watched a video. Also, client testimonials can be much more authentic in video than in a prepared quote. Be creative. You can do educational or testimonial videos. You don’t have to be the only star. Consider using clips of proceedings, news clips, and client stories. Consider props, whiteboards, and interviews. The key to high “likes” and “shares” is emotion. If there is an opportunity to have a strong emotional element, make sure you nail it. Include the word “video” in the title. Many people don’t go to YouTube. They simply Google a topic and tack on the word “video” or “picture” at the end of the description (e.g., “VIDEO: five precautions to take if you are admitted to a hospital for surgery during the holidays.”). Keep them short. We have shortening attention spans. Experts say shoot for two to three minutes. You should be able to cover a topic in that time. Alternatively, if it’s less than one minute, it looks like you don’t have anything substantive to say. Taunya Painter is a member of Painter Law Firm PLLC, where she specializes in business, contract and international law. She is an associate editor for The Houston Lawyer.
thehoustonlawyer.com
September/October 2014
35
Houston Lawyers Who Made a Difference
Col b ert Coldwel l By The Hon. Mark Davidson
T
he Civil War - the bitterest fight in our nation’s history ended in 1865. The victorious Union Army had placed most of the southern states under martial law. The currency that had flooded the Confederacy for the last four years was worthless, and the “wealth” many southerners had accumulated over the years, human beings held in bondage, had been freed. The freed slaves were, for the most part, unemployed and illiterate. All officeholders who had been loyal to the Confederacy were removed from office. A group of pro-Union Texans who had been ill-treated by their neighbors, who had thought them traitors, suddenly became the governing class. Both sides of the late rebellion held grudges. A new system of justice had to be re-started. To complicate matters, all attorneys had been dis-
36
September/October 2014
seated many of the freed slaves on jury panels. Newspaper articles of the time express no dissatisfaction by anyone, and give him high praise for his fairness. In a case in which he recused himself, he even appointed former Confederate officer and antebellum Judge Peter Gray to sit for him. In many parts of the South, violence was common. Houston was an exception. During a time of bitterness in the aftermath of war, Judge Colbert Coldwell was a healing force in Houston. He impartially administered justice to the vanquished and victors in tense and troubled times. By any measure, he made a difference.
barred, and anyone who wished to practice had to prove they had remained loyal to the Union or obtain a presidential pardon. Into this challenging and complex situation, Colbert Coldwell was appointed Judge of the Seventh District Court. By all accounts, he restarted the wheels of justice rolling again. He was generous to the defeated, apparently stretching the law to allow good lawyers to practice. A four year hiatus on civil trials durColbert Coldwell The Hon. Mark Davidson ing the war was expeditiously is an MDL judge and judge (retired) of addressed, with dozens of cases going to trial the 11th District Court. His column for in the first month of Reconstruction. Complex The Houston Lawyer focuses on Houston issues of law dealing with loans backed by the attorneys who have had significant impact “collateral” of slaves were determined. on the law, the legal profession and those To the vanquished, the victors and the freedserved by the law. men, he preached hope of reconciliation. He
thehoustonlawyer.com
Pro Bono in Houston...
Rebuilds Families…Helps Veterans . . .Provides Peace of Mind for Seniors
Equal Access Champions
The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has signed a five-year commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers. For more information contact Kay Sim at (713) 759-1133. *Bold type indicates new Equal access Champion.
Large Firm Champions Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Locke Lord LLP Norton Rose Fulbright Vinson & Elkins LLP
Corporate Champions
Baker Hughes Incorporated BP America Inc. CenterPoint Energy, Inc. ConocoPhillips Exxon Mobil Corporation Halliburton LyondellBasell Marathon Oil Company Shell Oil Company
Intermediate Firm Champions Beirne, Maynard & Parsons, L.L.P. Gardere Wynne Sewell LLP Haynes and Boone, L.L.P. King & Spalding LLP
Mid-Size Firm Champions Akin Gump Strauss Hauer & Feld LLP Baker Hostetler LLP Chamberlain, Hrdlicka, White, Williams & Aughtry Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Jackson Walker L.L.P. Jones Day Morgan, Lewis & Bockius LLP Porter Hedges LLP Strasburger & Price, L.L.P. Susman Godfrey LLP
Weil, Gotshal & Manges LLP Winstead PC
Solo Champions
Small Firm Champions
Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Beck | Redden LLP Burleson LLP Gibbs & Bruns LLP Hughes Watters Askanase LLP Johnson DeLuca Kurisky & Gould, P.C. Kroger | Burrus LeClairRyan McGuireWoods LLP Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Reed Smith LLP Schwartz, Junell, Greenberg & Oathout, L.L.P Sidley Austin LLP 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 & Courtois, LLP Hicks Thomas LLP Hogan Lovells US LLP Hunton & Williams LLP Jenkins & Kamin, L.L.P. KoonsFuller, P.C. Katten Muchin Rosenman LLP Ogden, Gibson, Broocks, Longoria & Hall, L.L.P. Sutton McAughan Deaver PLLC Strong Pipkin Bissell & Ledyard, L.L.P. Wilson, Cribbs & Goren, P.C.
Brian Albrecht Law Office of Peter J. Bennett Law Office of J. Thomas Black, P.C. Law Office of Robbie Gail Charette Chaumette, PLLC Damani Law Firm Helene Dang Law Office of Papa M. Dieye The Ericksen Law Firm Flowers & Frankfort Frye, Steidley, Oaks & Benavidez, PLLC Fuqua & Associates, P.C. Law Office of James and Stagg, PLLC The Jurek Law Group, PLLC Katine & Nechman L.L.P. Law Office of David S. Hsu Kim Ly Law Firm PLLC Gregory S. Lindley Law Office of Maria S. Lowry Alejandro Macias Martin R.G. Marasigan Law Offices Danielle H. Maya The Law Office of Evangeline Mitchell, PLLC Bertrand C. Moser Patel Ervin Dinn PLLC Law Office of Brent C. Perry, P.C. Pilgrim Law Office Robert E. Price Cindi L. Robison Scardino & Fazel Shortt & Nguyen, P.C. Jeff Skarda Tindall & England, P.C. Travis Torrence Diane C. Treich Norma Levine Trusch Clinton Yu
thehoustonlawyer.com
September/October 2014
37
A Profile
in pro f e s s i o nali s m
Michael P. Donaldson Vice President, General Counsel and Corporate Secretary EOG Resources, Inc.
T
he most gratifying thing about being inhouse counsel is being involved in the execution of the business objectives and strategies of a company. It is more than handling a case or a transaction—you get to see projects from start to finish. You participate in the company’s growth and contribute to its success. I feel blessed to work with a great company and great legal department. I tell the lawyers in our department that we should always remain focused on doing our very best each and every day for those to whom we are providing legal support and advice. We also emphasize the need to be involved in and understand the business of the company.
38
September/October 2014
thehoustonlawyer.com
Getting out from behind your desk and participating in the important work of the company is really the only way to truly and meaningfully have an impact and support the goals and objectives of the organization. We have also found that a strong sense of humility is critical for our company’s continued success. Time and time again, I have seen that those who are not shackled by their own importance can see problems and opportunities more clearly and make better decisions for their clients. I think this is great advice for any lawyer regardless of their area of practice. As a profession, lawyers must constantly focus on the needs of their clients while navigating the legal risks and challenges that their clients may face.
Putting
Autism To Work
nonPareil Institute, a nonprofit 501 (C)(3) corporation not only provides career training for autistic young adults, It gives them and their families hope for their future. With your support, nonPareil Institute can become a reality in Houston, and begin offering services that will enable adults with autism to have fulfilled and meaningful lives. To make a donation or learn more about nonPareil Institute-Houston, please visit www.npitx.org/city/houston.htm or see our Facebook page at facebook.com/nonPareilhouston Email: houston@npitx.org
OFF THE RECORD
Linda Marshall:
By Polly Graham
The Beauty of Words
si·phon·ap·ter·ol·o·gy: a branch of entomology concerned with fleas
Marshall is also a competitor and a perfectionist. Despite an unprecedented number of victories, Marshall’s most vivid memories are of her rare defeats. caou·tchouc: rubber Now, Marshall is being wooed as the new pronouncer for the spelling bee. If you think words like “siphonapterology” are diffihese are just a few of the words in the extensive cult to spell, just imagine having to pronounce them. This task is repertoire of Linda Marshall, a family law practitionot for the faint of heart and yet critical to the contestants. Marner, who has won the Houston Center for Literacy’s shall is also setting her sights on national spelling bees, where Great Grown-Up Spelling Bee so often that she will she can compete against some soon be retired into of the nation’s best spellers. a newly established Hall of Marshall is quick to emphaFame. Marshall participates as size the charitable purpose bea member of the Houston Bar hind the spelling bee, which Association’s Lawyers for Litraises money through entry eracy team. Due in large part fees, like those paid each year to Marshall’s continued particby the Houston Bar Associaipation, the team obtained its tion, to help promote adult lit11th First Place title this year. eracy. Roughly one in five HarMarshall’s gift for spelling is ris county residents lack basic born from her love of language, literacy skills, putting Housa voracious appetite for readton close to the bottom of maing, and a nearly photographic jor metropolitan cities in the memory. She describes words United States. Adult illiteracy as a “treasure trove” that can can also affect the next generareveal layers of history. Indeed, tion. The Houston Center for Marshall can transform even Literacy reports that a child’s common words into cultural early school success correlates lessons. For example, did you with his or her mother’s level know that the word “money” is a reference to the temple Linda Marshall, along with team member Ben Wickert, helped the of education. Few if any of us could rival of the goddess Juno Moneta, HBA win its 11th first place title in the Great Grown-Up Spelling Bee. Marshall’s spelling abilities or her depth of knowledge about where Roman coins were first minted? That is just a drop of Marwords. But all of us can help support a cause close to her heart. shall’s knowledge. To find out more information about the Houston Center for LitMarshall has spent a lifetime as a student of language. Raised eracy, or to donate online, go to http://www.houread.org. as a Catholic, Marshall passed long hours in church by teaching herself to read Latin from the missal. Today she speaks five difPolly Graham is an appellate attorney at Haynes and Boone, ferent languages—English, Spanish and French fluently and she LLP and a member of The Houston Lawyer editorial board. is able to get by in Italian and German. Like most top litigators,
The Houston Lawyer
T
40
September/October 2014
thehoustonlawyer.com
COMMITTEE SPOTLIGHT
Campaign for the Homeless Committee impacting Houston
One Coat, One Suit, One Diaper at a Time
By Matthew J. Heberlein
S
ince 1990, the Campaign for the Homeless Committee has provided much needed coats, suits, clothing, diapers, and support to local organizations serving the homeless population. During that time, it has touched countless lives, and its impact cannot be overstated. In addition to leading the HBA’s annual Campaign for the Homeless fundraising effort, the Committee estimates that it has distributed over 360,000 donated coats, diapers and other articles of clothing for children and adults. In 2013 alone, the Committee collected nearly 9,400 coats and clothing items and nearly 24,800 disposable diapers that were eventually distributed to Coalition for the Homeless of Houston, Casa de Esperanza, Covenant House, Dress for Success, Houston Area Women’s Center, Star of Hope, Catholic Charities, and Salvation Army-Family Residences, to name a few. The Campaign began as a project during the 1990-91 bar year. The Committee was chaired by Charles R. (Reb) Gregg, and the first coat drive collected 2,900 coats and other items. Today, the Committee’s work is far-reaching and directly impacts the lives of the many individuals that rely on the 17 local shelters, missions, and other agencies that make formal requests to the HBA for distributions. Notably, Dress for Success and Career Gear each receive donations from the Committee as part of their ongoing
efforts to provide professional work attire to men and women entering the workforce. Additionally, the Committee provides suits to two Houston veteran shelters, U.S. Vets at Midtown Terrace
Denise Alex, a UH law student during last year’s Clothing Drive and now a newly licensed attorney, and Farrah Martinez of the Campaign for the Homeless Committee sort clothing during the 2013 Campaign for the Homeless Drive.
Last year’s drive collected nearly 24,800 disposable diapers for homeless shelters.
and De George at Union Station. Each of these organizations provides suits to homeless veterans in need of appropriate interview attire and warm clothing. Greg Ulmer, the current Committee Chair, says that the bulk of donations
received come from HBA members and support staff from law firms and corporations throughout Houston. In past years, the Committee has hosted two distinct drives: the coat drive in the Fall and the children’s clothing and diaper drive in the Spring. This year the Committee will host a single major drive from October 6 through October 17. The Committee welcomes donations of warm coats, clothing for all ages and disposable diapers, as well as monetary donations for diapers. Anyone interested in donating to the drive is encouraged to contact the HBA office at 713-759-1133 to make arrangements. The donations may be delivered to the new HBA office at 1111 Bagby, FLB 200, once arranged. Committee members will also pick up donations upon a request by the donating firm or organization. Monetary donations may be made via the Houston Bar Foundation or HBF, payable to the same. Anyone interested in joining the Campaign for the Homeless Committee is also encouraged to contact the HBA office. Committee members are responsible for soliciting and picking-up donations, delivering those items to the HBA office, and sorting donated items. There are currently eleven members on the Committee. Volunteers are also welcome. Matthew J. Heberlein is a tax associate at PricewaterhouseCoopers LLP and a member of The Houston Lawyer editorial board.
thehoustonlawyer.com
September/October 2014
41
LEGAL TRENDS
The Texas Supreme Court Revises the Definition and Remedies of Shareholder Oppression By Jill Yaziji
The Houston Lawyer
O
n June 20, 2014 the Texas Supreme Court issued a landmark decision in Richie v. Rupe, No. 11-0447, a shareholder oppression case arising out of a Texas family dispute. The dispute arose when Plaintiff Rupe, wife and heir of one of the owners of this familyheld business, wanted to sell her shares to an outside investor. Rupe alleged being treated as an outsider and with hostility by the majority shareholders. While the majority shareholders had previously offered to appoint Rupe on the board of directors, she declined. Instead, Rupe sought to sell her shares of the corporation. The board declined purchasing Rupe’s stocks, citing a “financial crisis” with one of the subsidiaries, and Rupe began marketing her shares to potential outside buyers. But when the majority shareholders, again citing business reasons, refused to meet with the prospective buyers of Rupe’s shares, the sale was stymied because the wouldbe purchasers wanted to “talk to executives as part of their due diligence” before
42
September/October 2014
investing their money. A Dallas jury indeed found the majority shareholders’ conduct was oppressive, and the trial court entered a judgment ordering them to buy out Rupe’s interest for a “fair market value” of $7.3 million. The Dallas Court of Appeals affirmed the trial court’s decision, but remanded the case for further consideration of the value of Rupe’s shares. In this much-anticipated decision, six members of the Texas Supreme Court reversed the Dallas Court of Appeals’ decision, rejecting its definition of “shareholder oppression” and changing the remedies available in shareholder disputes in Texas. The Court’s majority opinion defined, or redefined, shareholder oppression by construing the meaning of “oppression” in then-Article 7.05 of the Texas Business Corporations Act, (now-Section 11.404 of the Texas Business Organization Code or Receivership Statute,) and by focusing on the harm to the business entity, not just to the individual shareholder. Since the Receivership Statute does not define the word “oppression,” the Court’s majority had to examine not “only the language of the oppression provision but also the language and context of the entire receivership statute...” “To qualify as the type of ‘oppressive’ actions that justify a rehabilitative receivership,” the majority wrote, the “complained-of actions must create exigent circumstances for the corporation.” The Court’s majority found instructive that the word “oppressive” in the Statute was grouped with actions that are “illegal” and “fraudulent.” Hence, the majority defined shareholder oppression as taking place “when [officers or directors] abuse their authority over the corporation with the intent to harm the interests of one or more of the shareholders, in a manner that does not comport with the honest exercise of their business judgment, and by doing so they create a serious risk of harm to the corporation.”
thehoustonlawyer.com
Given this definition, the Court emphasized the “business judgment” test as capturing the legislative effect of shareholder oppression under the Statute. Hence, neither the “fair dealing” test, nor the “reasonable expectation” test alone, previously relied upon to analyze shareholder oppression, will suffice in determining when an action by corporate officers and directors against a shareholder is oppressive. The Court further rejected the holding in Davis v. Sheerin, 339 S.W.2d 375 (Houston App.—[1st Dist.] 1988), the determinative Texas opinion on shareholder oppression remedies, that a Texas court could, under its general equity power, order a buyout of a shareholder’s stock as a remedy for shareholder oppression. The Court specified that the buyout remedy was not authorized under the Receivership Statute. However, it left open the door for such recovery “under a common-law cause of action for which equitable remedies are otherwise available.” Yet, “Texas law should ensure that remedies exist to appropriately address such harm” when officers and directors of a corporation engage in “squeeze-out” tacks such as denying minority shareholders “access to corporate books and records,” “withholding payment” to them, “termination of…[their] employment,” or “misapplication of corporate funds” for personal gain. And these remedies are available through common-law causes of action, such as breach of contract, breach of fiduciary duty, fraud, misappropriation, unjust enrichment, and so forth. In the wake of Richie v. Rupe, it becomes even more crucial to draft shareholder agreements that expressly specify the rights and expectations of shareholders and the remedies available, such as the right to buyouts, should disputes arise. Jill Yaziji is the principal of Yaziji Law Firm, a Houston civil litigation firm, and an associate editor of The Houston Lawyer.
LEGAL TRENDS
Texas Supreme Court Deals A Blow To Mesothelioma Plaintiffs By Upholding Current Causation Standard Established For Asbestosis By Jason D. Goff
I
n Susan Elaine Bostic v. Georgia-Pacific Corporation, — S.W.3d —, 57 Tex. Sup. Ct. J. 1091, (Tex. 2014)1, the Texas Supreme Court addressed causation standards and evidentiary sufficiency in asbestos-disease cases. The Court clarified that the Borg-Warner2 substantial factor standard would apply to mesothelioma cases in the same way it does in asbestosis cases. Substantial factor causation is the legal standard that a plaintiff must meet to show that a quantifiable dose of asbestos fibers, produced by the use of a specific defendant’s product, led to the contraction
of the disease. Nonetheless, there is a key scientific difference between mesothelioma and asbestosis. Mesothelioma can be contracted at relatively minute levels of asbestos exposure; asbestosis is contractible only with heavy exposure. In the Bostic case, Timothy Shawn Bostic (Decedent) was diagnosed with mesothelioma at the age of 40. He died a year after the diagnosis. A lawsuit was filed by the Decedent’s relatives against numerous defendants alleging that various products produced by the defendants exposed Decedent to asbestos fibers and caused him to contract mesothelioma. Plaintiffs’ suit against Georgia-Pacific was based on the allegation that Georgia-Pacific’s drywall joint compound exposed the Decedent to asbestos fibers as a child and teenager— during which time he used the product. In 2006, the case went to trial and a Dallas County jury found Georgia-Pacific liable under negligence and marketing defect theories. The jury assessed 75% of the causation to Georgia-Pacific and 25% to a defendant who settled their case prior to trial. Plaintiffs were awarded $6.8 million in compensatory damages and $4.8 million in punitive damages. Georgia-Pacific appealed and the Dallas Court of Appeals reversed the jury’s decision, finding that the evidence was insufficient to establish that Georgia-Pacific’s product caused Decedent’s disease and death. The case was then appealed to the Texas Supreme Court where one of the key issues was whether it was correct to apply the standard enunciated in Borg-Warner v. Flores. In that case, the Court established that mere evidence of exposure to some respirable asbestos fibers was insufficient to show that a defendant’s product was a substantial factor in the development of asbestosis. This meant not only showing evidence of the frequency, regularity, and proximity of the asbestos exposure, but also “defendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, coupled with
evidence that the dose was a substantial factor in causing the asbestos-related disease.”3 Evidence of the product being a “substantial factor” might consist, for example, of finding asbestos fibers in lung tissue. Plaintiffs argued in Bostic that contrary to the matter at hand in the Borg-Warner asbestosis case, it only takes a minute quantity of asbestos fibers to cause mesothelioma. Therefore, the mere presence of asbestos fibers should be sufficient to show that the product in question caused the Decedent’s mesothelioma. Plaintiffs argued that because the thresholds were so different, the Borg-Warner standard should not apply. The Court disagreed. While the Court noted mesothelioma is potentially contracted with relatively minute quantities of asbestos exposure, the Court determined that the issue is still a matter of thresholds. Only when evidence is presented that the threshold level has been met, can it be concluded that the product or premises in question led to the contraction of the disease in question. The Court found that even the Plaintiffs’ own experts admitted that it would take more than a single asbestos fiber to cause mesothelioma, or any other disease, for that matter. Thus, while the Borg-Warner decision may have left the door open for different treatment of asbestosis and mesothelioma, the Court in Bostic decisively ruled that the same Borg-Warner framework would apply in mesothelioma cases as it does in asbestosis cases. Jason D. Goff is an attorney with Sheehy, Ware and Pappas, where his practice is dedicated to trial work defending clients in civil litigation claims. He is a member of The Houston Lawyer editorial board. Endnote 1. See also 2014 WL 3797159 2. Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007). 3. Id. at 773.
thehoustonlawyer.com
September/October 2014
43
Media Reviews
Last Plane Out of Saigon By Richard Pena and John Hagan The Story Merchant, 2014
The Houston Lawyer
N
Reviewed by Matthew D. Walker ot many books can function as a literal time capsule to the past, but Last Plane Out of Saigon does just that. In the spring of 1971, Richard Pena was a law student at the University of Texas School of Law when he received notice from the draft board that he was to report for active duty for service in Vietnam. He entered the Army on June 14, 1971, and arrived in Vietnam in early May of 1972, serving for almost a year in the 3rd Infantry Hospital in Saigon. While stationed there, Pena kept a journal documenting his experiences in Vietnam and his thoughts on the war. The Vietnam War ended, and he literally was one of the last to leave, returning to the United States in March 1973, and earning for his service the National Defense Service Medal, the Army Commendation Medal and the Vietnam Service Medal. Upon his return, he didn’t obsess on either the glory or the grit of war. Pena quickly moved on with his life, completing law school and starting his legal career. And his journal? It was thrown in a box and packed away, where it remained, untouched, for over 35 years. Last Plane Out of Saigon is the publication of Pena’s journal, penned as a young solider and written in the voice of a 24 year old draftee; it provides a perspective on the Vietnam War beyond that of the typical combat soldier story. Context for Pena’s writing is provided in chapters written by John Hagan, Pena’s law partner. These chapters describe events leading up to and during the war from today’s perspective. The combination of Pena’s reflections as a young soldier and Hagan’s historical descriptions allows the reader to look at the war from the perspective of a participant and a distant observer. What is most striking about Last Plane Out of Saigon is the vocal opposition to the Vietnam War and criticism of the Nixon administration expressed by both writers. The young Richard Pena reveals his opposition to the wartime objectives, often question44
September/October 2014
ing whether any action he is taking is serving a legitimate purpose. One event that sums up the overall mood of the young soldier happens early in the book. He finds himself in a Saigon bar where he meets a Vietnamese woman. He is struck by her beauty and excited when she reciprocates interest in him. He is saddened when he later realizes her interest is nothing more than a grasp at survival. He recalls the words of another soldier: “What does it mean?” This is a recurring sentiment for the young Pena, as he is surrounded by civilians and by soldiers wounded and dying as they grasp at survival. Pena and Hagan both criticize the war without criticizing the American soldiers who fought and served our country. In the end, we see that Richard Pena the young soldier and Richard Pena the 66-year old, accomplished attorney are much the same. The modern day Pena concludes the book with his reflections on his experience during the war and his unique experience of being one of the last soldiers to leave Vietnam. There, he proudly reflects on his service of our country and the sacrifices made by the veterans of the Vietnam War. Matthew D. Walker is a litigation attorney with Litchfield Cavo, LLP, where he handles tort and commercial litigation matters.
Movie:
The Judge Warner Brothers Pictures Directed by David Dobkin Reviewed by The Hon. Jeff Work “The truth? I thought we were talking about a court of law. Come on, you’ve been around long enough to know that a courtroom isn’t a place to look for the truth.” Robert Duval’s character, the bullying civil defense attorney Jerome Facher in the 1998 movie, A Civil Action
I
thehoustonlawyer.com
n the forthcoming movie, The Judge, it is uncertain whether the truth will appear in the fictional courtroom drama and, if so, on which side. The simple fact a movie cast includes Robert Downey, Jr., Robert Duval,
Billy Bob Thornton and Vera Farmiga peaks the interests of many people but, with the legal background, lawyers will especially be curious about the film. The movie premiered nationwide on October 10, 2014. For Oscar nods, it may be difficult to identify the lead actor for this movie. Billy Bob Thornton plays the antagonist in the movie, the district attorney who hopes to make a big political splash by prosecuting a long time judge for murder. Thornton’s portrayal appears to be perfect casting as his character’s words almost hiss with each utterance. Robert Duval has played several legal roles over the years including the “adopted son”-mafia lawyer in The Godfather series. In The Judge, Duval plays the title character, Judge Robert Palmer, who has been on the bench for 42 years. The character’s long-time wife has just died and then, suddenly, as his life is already crashing, Judge Palmer is charged with first degree murder of another individual. The lead, of course, is played by Robert Downey, Jr. It appears his character, big city lawyer Hank Palmer, may be closer to Downey’s own well-documented real life struggles than Iron Man or Sherlock Holmes. After his last stay in rehab in 2003, Downey has beaten his demons and risen to be one of the premier actors in Hollywood. In this movie, Hank Palmer returns to his small-town childhood home for the funeral of his mother only to find he is being called upon to defend his own much-estranged father from murder charges. The director of The Judge is David Dobkin who is also a producer and co-writer for the film. Dobkin is known for the movies Wedding Crashers, The Change-Up, Shanghai Knights and Fred Claus so it would seem that this movie may be a little out of his comfort zone. Nevertheless, with a cast like the one in The Judge, it may be best to give Dobkin the benefit of the doubt especially since Vince Vaughn and Owen Wilson are NOT in this movie. Despite the stellar cast, if you still want to see some more reviews before going to the movie, there should be plenty of opportunity. The Judge was shown at the Toronto Film Festival on September 4, 2014. Regardless, The Judge is a movie this fall for which most lawyers will not want to seek a continuance. The Hon. Jeff Work is a former judge of Harris County State District courts. He practices with the Law Offices of Susan Cartwright/Zurich Insurance Group Staff Counsel, litigating for the Major Claims Unit.
www.legaldocusa.com legaldocusa@aol.com CV, CR, BK documents All Courts & Archives, UCC, Patent, Trademark Asset & Property Search Document Scanning Complete Service of Process
1.800.487.2245 Office Space Great office space at 1601 Westheimer at Mandell, minutes from downtown Houston. Rent includes shared access to two conference rooms, kitchens, internet, cable, phones with VM, all utilities, part-time receptionist. Window offices ranging from $400-$1,000 per month with no long-term commitment. For information, please call Mark Kidd at 713-968-4601 Share offices with family law firms. Two spaces, $750/ month 120.3 sq. ft. each. Great for start-up firm/individual. Referrals and contract work available. Reception area, 3 conference rooms, kitchen, free parking. Fax/ copy/scan machine, internet and phones at minimal cost. Contact Frank Mann at 713-524-6868.
Downtown. Beautiful offices in Bank of America building. 700 Louisiana, 48th floor. Amazing views. Office-sharing with established lawyers. Partner and Associate offices available. Includes receptionist, phone, internet, copiers, postage meter, coffee, etc. Shared reception, conference rooms, kitchen. Available April 1. Visit www. fb4800.com for photos, etc. Call Tyler 713-255-3225.
Galleria area law firm has attorney’s office for lease. Class A building. Downtown GALLERIA AREA view. Conference room. ReST. JAMES PLACE ceptionist. $1000 per month. Attorney-size office with secmgibson@mdgibson.com retarial work station for sublease – AV rated firm, Class A Galleria Area — Available build out. Possibility for re- for sublease to a sole practiferrals. Please send inquiries tioner, a furnished 240 sq. to houstongallerialawfirm@ ft. exterior office (wall of gmail.com windows). Includes use of a conference rom, wifi, phone GREAT LOCATION AND w/vm, receptionist and limGREAT VIEW – Large attor- ited secretarial assistance. ney office space, approx. 290 Call 713-993-9363. sq.ft. available for sublease in Galleria area. Includes a sec- Museum District/Montrose retarial work station, cabinet 4545 Mt. Vernon office space. space, conference room with One office (13x17) available LARGE TV, kitchen, fax ma- $800/month. Use of three chine, 2 copiers, phone system conference rooms, kitchen. with voicemail. $2,000.00/ Receptionist to greet your mo. Additional amenities clients. Many other lawyers are shared with attorneys in in the two-remodeled homes the Suite. Please call John at with 22 offices. mstrother@ 713-781-5932. strotherlawfirm.com MEMORIAL/GALLERIA AREA (VOSS & SAN FELIPE) Small AV rated Litigation Firm with up to 3 offices for sublease with secretarial areas available. Covered parking, access to 2 conference rooms, kitchen, phone system with voicemail, new copier/scanner, fax, internet and secretarial services available. $1,500-$3,500 monthly. Send inquiries to knewman@ombtxlaw.com
CENTRAL HOUSTON PRIVATE OFFICES. Between downtown and Galleria area at I-10 and Shepherd. Internet, phone, utilities, parking included. Perfect for small firms and solos. 713-867-9800. Galleria area suite with great view - offices available for lease. Top floor of Chase Bank building at Richmond and Sage. Approximately thehoustonlawyer.com
200 - 225 square feet per office. Well appointed suite includes conference room, limited library, wet bar, and free parking. Fax, copier, reception/secretary service available at additional cost. $900.00 per month. Dorena 713-961-5555. Lease this house with Victorian charm on sought after Heights Boulevard in the Heart of the Houston Heights. Perfect for boutique law firm. Pattered hardwoods, elegant pocket doors, original stair railings, and many more timeless features. Downstairs open floor plan invites clients into a reception and conference room. Updated kitchen with stainless appliances. Four spacious offices. Onsite parking. Minutes from courthouse and downtown. Easy access to I-10, 610, and 290. Call 832-498-5698.
LITIGATION MARKETPLACE
Legal Document Retrieval & Research
Heights area office sharing — 15 minutes from courthouse. Newly built out space on North Loop near Shepherd with downtown views. Color copier/fax/scanner available on network, internet, full featured phone system, attached covered parking, large offices and room for your files. Kitchen in suite with microwave/pizza oven, coffee, soft drinks & water; deli in building. Business litigator looking for compatible lawyers to share space. Call Teri 713-529-2020.
Professional Services All things driving and sealing/expunging criminal histories. We defend traffic and ordinance violations, remove arrest warrants, solve DPS license issues, obtain occupational licenses, and handle DWI, racing, reckless driving, evading, and hit and run cases. 4 1/2 YELP stars. Robert W. Eutsler 713-464-6461 www.TheTicketAttorney.com
For classifieds ads please contact:
Mary Chavoustie Email: mary@quantumsur.com or call her at: 281.955.2449 ext. 13 September/October 2014
45
The Houston Lawyer
Document Examiner
elevate your lifestyle
RIVA at the Park embodies a new vision of city life in Houston. Centered on the reinvigorated Buffalo Bayou Park, residents enjoy access to outdoor recreation and fitness as easily as they do to signature restaurants, eclectic shops, culture and entertainment venues. The finest design and craftsmanship make for an uncompromised lifestyle day in, day out. Residents will enjoy generously proportioned living spaces, immaculately detailed finishes, premium appliances and fixtures. With the profile of this eastern gateway to River Oaks on the ascent, RIVA will soon be a centerpiece of one of Houston’s most celebrated urban districts.
H o m e s n o w p re - s e l l i n g f ro m t h e $ 7 0 0 ’s .
3 3 3 1 D ' A m i c o S t . | H o u s t o n , T X 7 7 0 1 9 | Te l 8 3 2 . 3 2 0 . 2 0 5 9 | R I VA H O u s T O n . c o m a development oF sims luxury builders
Prices and specifications subject to change without notice. Please note these images are meant to evoke the character and mood of the design and not meant to represent exact features or materials. Please see a sales associate for details.