Professionalism and Practicing in Federal Court Stephen D. Susman: Incomparable Innovator & Paradigm of Professionalism Barbacoa en los Domingos: Professionalism on a 50th Anniversary A Lawyer’s Ethical Duties in Mediation Cryptocurrency and the Future of Law Firm Payments The Texas Bar Exam: Is It Time for a Change?
lawyer
THE HOUSTON
inside...
Volume 59 – Number 2
September/October 2021
Our graduates are ready. Ready to fight injustice. Ready to defend the voiceless. Ready to practice law. With an advocacy program consistently recognized as the nation’s best, South Texas College of Law Houston produces exceptional trial attorneys who advocate for clients like champions. STCL Houston prepares students from diverse backgrounds to become successful, practice-ready attorneys in business, real estate, tax law, family law, criminal law and more. More than 8,000 South Texas alumni now proudly serve in Greater Houston, with more alums leading across the country and around the globe.
www.stcl.edu/houstonready
I love LawPay! I’m not sure why I waited so long to get it set up. – Law Firm in Ohio Trusted by more than 150,000 professionals, LawPay is a simple, secure solution that allows you to easily accept credit and eCheck payments online, in person, or through your favorite practice management tools. 22% increase in cash flow with online payments Vetted and approved by all 50 state bars, 70+ local and specialty bars, the ABA, and the ALA 62% of bills sent online are paid in 24 hours
YOUR FIRM LOGO HERE
Trust Payment IOLTA Deposit New Case Reference ***
**** **** **** 9995
TOTAL: $1,500.00 POWERED BY
PAY ATTORNEY
Get started at
lawpay.com 877-959-8488 Data based on an average of firm accounts receivables increases using online billing solutions. LawPay is a registered agent of Wells Fargo Bank N.A., Concord, CA and Synovus Bank, Columbus, GA.
contents September/October 2021
Volume 59 Number 2
FEATURES
10
14
and 10 Professionalism Practicing in Federal Court By Hon. Gray H. Miller
D. Susman: 14 Stephen Incomparable Innovator &
Paradigm of Professionalism By Sofia Adrogué and HON. Caroline Baker
17 Professionalism: A Lawyer’s Mandate en los Domingos: 18 Barbacoa Professionalism on a 50th Anniversary
By David T. Lopez
18
24
Advocacy and Zealous 24 Zealous Problem Solving: A Lawyer’s Ethical Duties in Mediation By Michael A. Hawash
and the Future 28 Cryptocurrency of Law Firm Payments By Ali Dhanani and Wes Edwards
Punishment, Compassionate 32 Cruel Release: A Critically Ill Inmate and the Judge Who Heard His Cry By David Gerger and Inmate 80641-379
28
36
Texas Bar Exam: Is It Time 36 The for a Change? Compiled by Nikki Morris
on Serving on the 40 Reflections State Bar of Texas Grievance Committee
By Nicole Voyles
Through Inns 41 Professionalism of Court
The Houston Lawyer
By Kathleen Witkovski
The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.com, e-mail: leo@quantumsur. com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2021. All rights reserved.
2 September/October 2021
thehoustonlawyer.com
contents September/October 2021
Volume 59 Number 2
departments
42
46
Message 6 President’s Professionalism Learned Through
Example, Education, Mentoring By Jennifer A. Hasley
the Editor 8 From Civility and Professionalism By Anietie Akpan
SPOTLIGHT 42 VETERAN • The Honorable DaSean Jones By Anietie Akpan
• E. Derick Mendoza By Tara Shockley
Spotlight 46 Section The Mergers and Acquisitions
47
48
Section
By Greg Heath
Profile in professionalism 47 ADwayne L. Mason
Shareholder Head, Texas IP Litigation, Greenberg Traurig LLP
in professionalism: 48 ALawProfile in the Family • The Beck/Harris Family • The Holmes/Archer Family THE RECORD 52 OFF The Pod: Ruby Powers’ Pandemic
Learning Experiment
By Liz Furlow and Katya Nikitina
52
55
Spotlight 53 Committee The Professionalism Committee:
Developing the Bar through Mentorship and Education By Michael Reeder and Seepan V. Parseghian
trends 54 legal Will Non-Compete Reform
Come to Texas? By Zach Wolfe
reviews 55 Media Tips Lawyers Wish You Knew:
Going It Alone at the Courthouse Reviewed by Benjamin K. Sanchez
The Houston Lawyer
56 Litigation MarketPlace
4 September/October 2021
thehoustonlawyer.com
Passion to Fight. Experience to Win. At Williams Hart we combine the extensive resources needed to take a case to trial with the experience of our award-winning lawyers. We have won some of the most challenging cases in America and are proud to fight for justice.
Nationally Recognized Resources to Go the Distance
whlaw.com
Four Decades of Experience
713-429-0043
P roven Results
8441 Gulf Fwy #600 Houston, TX 77017
president’s message By Jennifer A. Hasley Hasley Scarano, L.L.P.
Professionalism Learned Through Example, Education, Mentoring
The Houston Lawyer
I
am proud that we have dedicated this month’s issue of The Houston Lawyer to professionalism, one of the three focus areas for my presidential year. Over time, I have come to learn that professionalism means very different things to different people, and I would like to share my thoughts on one important aspect of professionalism. Most lawyers view professionalism based on those people who influenced their lives. It starts with basic principles of right and wrong that were instilled in us by our parents, grandparents and others close to us. Then, through general education, we are all taught to follow basic rules guided by instructions from our teachers and religious leaders, and through interactions with our peers. Later, each of us made a decision to attend law school; however, the basis of that decision is not always premised upon an altruistic desire to help others, a view that licensure is a privilege, or an appreciation that one’s conduct must at all times conform with upholding the values of a noble profession. But at some point, most lawyers adopt these core beliefs and develop a sense of professionalism. I have had the opportunity to think about professionalism from several perspectives: (1) as an aspiring lawyer; (2) as an attorney member of the Office of the Chief Disciplinary Counsel responsible for prosecuting violations of the Texas rules; (3) as a defense attorney who sees the broad spectrum of grievances and malpractice cases that involve unfounded claims, practical mistakes, and flagrant ethical violations; and (4) as a bar leader committed to promoting professionalism and making it a priority in our CLE programming, pro bono activities, and community outreach. From these perspectives, I have come to believe that mentorship is one of the most important components of personal and professional development. I joined the HBA as a young lawyer having heard that membership was for those who care about their reputation and seeing that those lawyers who I most admired and respected were all members. I used all of the benefits of membership by networking at events, attending educational programs, and volunteering for committees. I was brimming with excitement over being a lawyer, but knew that I had much to learn. I was proud to be part of this group of extraordinary lawyers, some of whom had national acclaim for high profile cases, and stood 6 September/October 2021
thehoustonlawyer.com
in awe of those who seemed to have it all figured out. I carefully watched and learned from senior members focusing on how to walk, talk, and act like a lawyer. I always appreciated the kindness shown to me by those lawyers and judges who would introduce themselves, invite me into a conversation, and take the time to explain the importance of each rule, action, decision, etc. There is no better way to teach professionalism than by example. As I gained experience myself, I tried to do the same for the lawyers who followed, knowing how important mentorship is to young lawyers and to the maintenance of professionalism within our profession. With each passing year, I have proudly watched my fellow young HBA members grow older and evolve into mentors, leaders, and judges, taking the place of those who came before us. For over 150 years, the HBA has been defined by the presence of HBA members in the local community. HBA lawyers have been committed to upholding the rule of law, promoting collegiality among lawyers and with the judiciary, providing pro bono legal services, and serving others through outreach efforts and philanthropic activities. Beginning in the first quarter of 2020, the COVID pandemic took us physically out of our usual place in the community. Through the strength of our members and staff, we adapted and effectively carried out many of our objectives through virtual platforms and our regular communications. Similarly, our three Houston-area law schools adapted with virtual classes and kept their law students on track for graduation and in line for the bar examination. In early October, the Texas Bar released the latest group of bar passers, and these newly licensed lawyers are being sent our way. We as members of the Houston Bar Association must help this new group of young lawyers succeed. To do this, we need to get back together again in person, as quickly as is safely possible. This is more critical than ever. Most of these new licensees have had limited or no interaction with their classmates, now their colleagues; missed opportunities for mentorship and training; and have never set foot inside of a courtroom. Instead, their formative training was done through a computer screen. While most are focused on finding or keeping job offers, it is incumbent on us as lawyers to provide meaningful opportunities to these lawyers to learn not just how to practice law, but how to do so with civility,
respect, and excellence. Professionalism is learned through example, education and mentoring. While we have learned much that we can use during COVID, the HBA is not a virtual bar and cannot succeed as one long term. We need that personal mentoring in professionalism that is best provided by in person example. The HBA is one of the best metro bars in the country. We are committed to our next generation of lawyers as they start their journey. Consistent with our theme for this bar year, we are “Stronger Together.”
thehoustonlawyer.com
September/October 2021
7
from the editor By Anietie Akpan METRO
Associate Editors
Anna M. Archer U.S. District Court
Brooksie Bonvillain Boutet Shipley Snell Montgomery
Kimberly Chojnacki Baker Donelson
Elizabeth Furlow Baker Botts
The Houston Lawyer
Carly Milner Foglar Brar O’Neil Gray
Andrew Pearce BoyarMiller
Civility and Professionalism
O
ver the past two years, the sweeping impact of this pandemic has transformed our profession in innumerable ways. It forced us to critically evaluate our inclusion and diversity practices. We reached a tech adoption tipping point, causing our courts, law offices, and schools to embrace dynamic digital transformation. And while many of us were thrilled at the idea of working from home in sweatpants, many members of our judiciary grew concerned that this new casual practice of law was contributing to a discernable erosion of decorum. Yes, we are duty bound to act professionally to the bench, but that duty also extends to each other, to our clients, and to the greater community. But what does it mean to be a professional in our industry? For the answer to this question, we must take a close look at the word civility. “Professionalism” and “civility” are often presented as complementary goods that operate handin-hand. I suppose this is true, but I prefer to see these two words as synonymous, rather than symbiotic. Instead of viewing civility as a component of professionalism, we must equate civility with professionalism. It’s not enough to just be civil for reputational gain or career damage avoidance—it’s about being kind, collaborative and collegial. Moreover, research conclusively bears out that leading with civility makes us better professionals, as civil lawyers are more effective and achieve better outcomes. When we base the foundation of our professional identity on civility, we do our best work and make the biggest impact to the public with whom we have an explicit contract to regulate social transactions and secure justice. I am very proud of the work of our Editorial Board— especially Emilio Longoria and Heath DeJean, who served as Guest Editors for this issue—in cultivating a wide spectrum of articles that speak to the many facets of what professionalism means (and how it continues to evolve) in the courtroom, the mediation room, the law office, and in acts of pro bono service: First, the Honorable Gray H. Miller, Senior U.S. District Judge for the Southern District of Texas, provides a comprehensive checklist of professionalism dos and
8 September/October 2021
thehoustonlawyer.com
don’ts when practicing in the federal court. The Honorable Caroline Baker and Sofia Adrogué present a beautiful tribute to the late great Stephen D. Susman, the peerless Texas trial attorney whose innovative approach to practicing law has served as the blueprint of professionalism for so many of us. Legal legend David T. López shares personal reflections on the significance and development of professionalism over his illustrious fifty-year career. Michael A. Hawash discusses the unique ethical issues which arise in alternative dispute resolution. In addressing the modernization of law firm practice management, Ali Dhanani and Wes Edwards explore the rising trend of law firms accepting cryptocurrency as payment for legal services. David Gerger contributes a personal essay on why pro bono work is an important hallmark of professionalism. Nikki Morris provides a written roundtable “discussion” between recent law graduates, seasoned attorneys, and members of the judiciary, to discuss recent changes to the Bar Exam and how those changes will impact professionalism among Texas lawyers in the future. We close with vignettes written by Nicole Voyles and Kathleen Witkovski, who share their experiences participating in professionalism-based organizations, the State Bar of Texas’ Grievance Committee and Inns of Court, respectfully. Finally, in continuing with our Veteran Spotlight Series, this issue will feature the Honorable DaSean Jones (180th Criminal Court) and E. Derick Mendoza (Linebarger Goggan Blair & Sampson, LLP), two communityminded veterans who served together as officers in the U.S. Army Reserve Judge Advocate General Corps. Things are evolving in our industry every day! More law firms are integrating wellness programs into their employment benefit packages. Others have introduced billable hour requirements dedicated to diversity and inclusion projects. Gen Z attorneys have begun entering the legal workforce. The rejuvenation of civility is also at a critical juncture in the evolution of the legal profession. Our profession, in short, is at a crossroads: which path will you take? Please continue to stay safe and to be kind to one another. And, as always, thank you for reading The Houston Lawyer.
BOARD OF DIRECTORS President
Secretary
President-Elect
Treasurer
First Vice President
Past President
Jennifer A. Hasley
Greg Moore
Chris Popov
Diana Gomez
Daniella Landers
Bill Kroger
Second Vice President
David Harrell
DIRECTORS (2020-2022)
Kaylan Dunn Robert Painter
Collin Cox Pamela Medina
Have Your Client’s Disability Benefits Been Denied?
We can help.
Chanler Langham Greg Ulmer
We specialize in representing disabled workers and veterans who have been denied their disability benefits. We fight to overturn claim denials for:
DIRECTORS (2021-2023) Yvonne Y. Ho Colin Pogge
• Long-Term Disability Insurance
• Social Security Disability Insurance
editorial staff
• Veterans Disability
Editor in Chief
Anietie Akpan Associate Editors
Anna Archer Kimberly A. Chojnacki Carly Milner
Editorial Board
Natasha Breaux Heath DeJean K. Hodge Jennifer R. Jenkins Emilio Longoria Kylie Loya Nikki Morris Katya Nikitina Ruby Powers Benjamin K. Sanchez Anuj A. Shah Kyle Steingreaber Mahsa Tajipour Hon. Joe Villarreal Nicolette J. Zulli
Call our office today to discuss partnering on any of these claims. Referral fees are paid in appropriate cases.
Brooksie Bonvillain Boutet Elizabeth Furlow Andrew Pearce
Elizabeth M. Bruman Elizabeth P. Furlow Dasha Trey Holm Kristen Lee David T. Lopez Tim McInturf Avishay Moshenberg George Oggero Timothy B. Riley Juliana Serrano Jennifer Smith Tara Taheri Emma P. Tennant Michael J. Wynne
Marc Whitehead, Esq. Board Certified – Personal Injury Trial Law Texas Board of Legal Specialization Board Certified – Social Security Disability Law National Board of Trial Advocacy
888.699.8210 | DisabilityDenials.com
Board Certified - Social Security Disability Law National Board of Trial Advocacy
Managing Editor
Tara Shockley
HBA office staff Executive Director.......................... Mindy G. Davidson Associate Executive Director ........ Tara Shockley Controller ....................................... Angela Crenwelge Director of Education................. Ashley G. Steininger Education Assistant.................. Christina Treviño Receptionist and Education Assistant ..................... Alli Hessel Director of Projects................... Bonnie Simmons Projects Assistant and HR Coordinator........................ Amanda McLeroy Communications Assistant / Web Manager.......................... Carly Wood Director of Membership and Technology Services................. Ron Riojas Membership Assistant .............. Ashleigh Keith Database Assistant .................. Leo Skelly
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 2021
9
By Hon. Gray H. Miller
Professionalism and Practicing in Federal Court
I
n my opinion, professionalism in the practice of law means lawyers who know the facts and the law of their case, are familiar with and follow the rules, and are civil and courteous to all. This article will provide tips for the professional practice of law in federal court.1 Knowing the Facts and Law of the Case When I was a young lawyer, we were trained that the first thing you did in any case was to research the jury charge that would be given in the case and put a copy of that charge in the file. That way, you knew what needed to be proved in the case. In my experience, lawyers who know the law and what facts are important in a case do not waste time arguing over things that do not matter. Knowing the Rules In practicing in federal court, it is important that you be familiar with and follow the Federal Rules of Civil Procedure (or the Federal Rules of Criminal Procedure in criminal cases) and the Federal
Rules of Evidence. In addition to the Federal Rules, you also need to be familiar with the district’s local rules, which can be found on the court’s website,2 and any court procedures of the judge in whose court your case is pending. These can also be found on the court’s website.3 1. The Local Rules The Local Rules of the Southern District of Texas have a lot of information you need to know, such as when objections to exhibits must be made. Under Local Rule 46, “[o]bjections to admissibility of exhibits must be made at least 7 days before trial by notifying the Court in writing of the disputes, with copies of the disputed exhibit and authority.”4 Some judges have modified this rule with their specific procedures. Another Local Rule that is good to know is Local Rule 44, which provides that objections to authentication of a document must be made seven days after the exhibit is listed and made available. Failure to object in advance of trial concedes authenticity.5 Local Rule 7 deals with motion practice that you should read and follow. Here are a few of the highlights: a. Certificate of Conference. Every motion except motions to dismiss and motions for summary judgment must contain a certificate of conference stating that the parties have conferred and cannot agree about the disposition of the matter.6 Do not say I tried to confer and did not hear back, and do not say the other side agreed with the filing of the motion or worse, the parties conferred without any indication as to whether the respondent agreed to the relief requested. Recently, I received a motion with a puzzling “Certificate of Non-Conference.” b. Unopposed/Joint Motions. If the motion is unopposed, that must be in the caption, and it will usually (but not always) be granted.7 c. Proposed Orders. Also, each motion needs to be accompanied by a
proposed order granting the relief requested. Responses need to be accompanied by a proposed order denying the relief requested in the motion. d. Oral Hearings. Most motions will be decided without an oral hearing. If you believe an oral hearing would be helpful, you can ask for one—but do not expect to get a hearing on every motion you file. Since most motions do not warrant having a hearing on the motion, briefing is very important. If you do get an oral hearing, you can assume that the judge has read everything you have filed and may have questions for you. Do not just read your brief. 2. Judge’s Procedures The Judge’s procedures also have a lot of useful information. For example, many judges in the Southern District have a “Young Lawyer Rule” that provides special consideration for oral hearings for lawyers who have been practicing less than seven years and prepared or substantially contributed to the motion or response and will argue at the hearing. Citing this rule in your request for an oral hearing may get you a hearing on your motion, and it will also provide younger lawyers experience arguing in federal court. Additionally, judges may have different procedures for discovery disputes. In my procedures, a pre-motion conference is required before a motion can be filed.8 So, if a motion to compel is filed, I know the lawyer has not read my procedures. Practice Tips 1. Exhibits I try to pre-admit as many exhibits as I can as the first order of business at trial, but some may require authentication or a foundation to be laid by a witness. Make sure all of your exhibits are pre-marked with an exhibit sticker with the case number and the exhibit number. If additional exhibits are offered during trial, it is up to you to keep up with the numbers
and to mark your own exhibits; do not ask the case manager or court reporter to do it for you. Do not show an exhibit to the jury—on the Elmo or via computer—until it has been admitted. If some part is redacted, make sure the copy you show the jury has also been redacted. During trial—or any court appearance—treat everyone courteously and professionally. This includes the court staff, your own staff, associates, legal assistants, technology personnel, and witnesses. The jury is watching you all the time, and if you are rude or abusive, they will notice. Also, all the microphones in the courtroom are live and they go back to chambers—so do not say anything while you are sitting at the counsel table before a hearing or trial that you do not want the judge and his or her staff to hear. Check out the courtroom technology before trial and make sure you (or someone on your team) knows how to operate it. You can arrange with the case manager to come into the courtroom a week before trial and try out the technology. It is a good idea to have a back-up plan in case the technology does not work. Posterboard and markers should be a standard part of your trial preparation. 2. Objections During trial, pick your objections—do not make every objection that might be legally permissible. And do not make compound objections such as “misstates prior testimony, leading, lacks foundation, irrelevant.” That will be denied every time. It is not the judge’s job to sort through a compound objection to find the one objection that may be good. A leading objection might be a good objection—and be sustained—but consider whether it will just reinforce the testimony. Sometimes, it is better to not object. And objections that a question “misstates prior testimony” will usually result in the judge overruling and stating that the jury will recall the testimony. If you make an objection that the an-
swer to your question is non-responsive, wait for a ruling—this is not a deposition. Then, if the objection was sustained, follow up with a motion to strike. When you make an objection, stand and state your objection succinctly: “Objection, leading” or “objection, improper foundation” or “objection, hearsay.” Do not make speaking objections and attempt to influence the jury (or coach the witness). And do not argue with opposing counsel—speak only to the judge. Once the objection has been ruled on, do not argue with the judge. 3. Magistrate Judges Magistrate judges are the best kept secret of the federal courts. Magistrate judges are Article I judges; their position was established by statute. They are appointed for a term of eight years, and in our district, they are paired with specific district judges. Magistrate judges handle all the initial appearances in criminal cases and also work on civil cases assigned to them by the district judges. They can handle pretrial, case management, Rule 16 conferences, and discovery disputes. Absent the parties’ consent, they cannot decide dispositive motions, but can make a report and recommendation to the district judge. The parties then have an opportunity to object.9 With the consent of the parties, magistrate judges can try civil jury cases and can usually give the parties a firm trial date, since they do not try criminal cases.10 With the current backlog of criminal cases needing a trial because of COVID-19, I have recommended that the lawyers in civil cases awaiting trial consent to trial before my magistrate judge. All of our magistrate judges are ready, willing, and eager to try civil cases and most have backgrounds as partners in major law firms. Jurors are selected from the same pool that the district judges use and the losing party has the right to appeal to the Fifth Circuit.11 I cannot say enough good things about our magistrate judges. If your opponent suggests consenting to trial before a magistrate judge, do not au-
thehoustonlawyer.com
September/October 2021
11
tomatically assume that because she or he wants it, it is bad for your client. This is an alternative that really is a win for everyone. The parties get a firm trial date, it relieves the district judge’s trial docket, and the magistrate judges will give you a great trial. Try it, and you will not be disappointed.
with opposing counsel, your client, and witnesses. In short, you must be honest with everyone. Your reputation is your most important asset. If a judge discovers that you have not been totally honest, your credibility with that judge may never be restored.
Dos and Don’ts My law clerks and I have compiled a list of Dos and Don’ts for federal court. Here are some of the highlights, with examples from actual cases:
2. Pre-Trial a. Case Manager. Never call the judge’s case manager to ask her or him for legal advice. She or he is not the lawyer—you are. b. Motions to Dismiss. Do not file a motion to dismiss in every case. We had a recent case where the defendant filed a motion to dismiss under Rules 12(b)(1) through 12(b)(6). It is a very rare case where dismissal would be warranted under Rule 12(b) (1) through (6), and this was not such a case, as I pointed out in my order denying the motion to dismiss. The lawyer wasted a lot of time preparing the motion, and we wasted a lot of time on the order. Don’t waste the court’s time or your client’s money. c. “Emergencies.” Do not call something an “emergency” if it isn’t. Unless it involves injunctive relief of some sort (i.e. something being destroyed or someone being executed) it probably is not an emergency. There is no such thing as an “emergency motion to extend the discovery deadline.” d. Be brief. Less really is more. e. Citing Cases. Only cite a case for its actual holding. Federal judges have very good law clerks who will research and confirm every case you cite and find the ones you did not cite. f. Creative Briefs. In motions, don’t ask rhetorical questions, quote poetry or plays, include irrelevant photos or make up cute headings (e.g. “Top Ten Reasons Why the Motion Should Be Granted”). It distracts from your arguments. On the other hand, charts or other graphics that
1. Civility a. Be Prepared. Have your exhibits and notes ready to go. Do not make the judge and jury wait on you while you try to find something. This is especially true to begin each day and after breaks and lunch; you need to be ready to go. b. Don’t Make Excuses. Do not make excuses if you are unprepared. Also, do not blame your associate, legal assistant, or anyone else. You are the attorney in charge, and you are responsible. c. Attire. Make sure everyone is dressed appropriately and not chewing gum. d. Cell Phones. Make sure that all cell phones—yours, your clients, and your witness’s—are off. And make sure nobody has an incriminating ring tone. In the trial of a Medicare fraud case, the defendant’s cell phone rang. The ring tone was the theme song from the movie “The Sting”—a movie about fraudsters! e. Be Courteous. Never engage in name calling or disrespectful behavior towards opposing counsel. This is especially true in briefs you file with the court, including motions for sanctions. f. Be Honest with the Court. Ben Franklin once said, “Honesty is the best policy.” I would modify that to say, “Honesty is the only policy.” You must be honest with the court, 12 September/October 2021
thehoustonlawyer.com
help the court understand the facts can be very useful. g. Motions for Reconsideration. Do not file a motion for reconsideration just because you do not like the result. Instead, reserve these motions for when you think the judge has made a mistake. When filing, do not insult the judge. One attorney filed a motion for reconsideration and said he had been practicing for over twenty years and the court’s decision was the worst decision he had ever seen. He accused the court of not knowing the law. I denied the motion and was affirmed by the Fifth Circuit. h. Settlements. If the case settles prior to a hearing, notify the case manager. Don’t just fail to show up. 3. Trial a. Be brief. While this is good advice for motions, it is especially important at trial. I talk to juries after trial and the number one complaint I get from jurors after trial is “the lawyers were too repetitive.” b. Impeachment. Know how to impeach a witness. It is a simple procedure, but hardly anyone knows how to do it properly. This results in the opposing side not objecting when impeachment is done improperly. c. Character Witnesses. Bad character witnesses are worse than not having any. We had one character witness whose ankle monitor went off during his testimony. His explanation of why he was on parole made him a less than stellar character witness. d. Objections. 1. Do not object during final argument that your opponent is being “argumentative.” 2. Do not object to an exhibit on your opponent’s exhibit list if the same exhibit is on your exhibit list. e. Expert Testimony. Do not try to have the plaintiff testify about his or her doctor’s diagnosis—you need the doctor for that. In a recent trial, the plaintiff missed the expert designa-
tion deadline and consequently did not have a medical expert. Counsel argued that the plaintiff could testify about what the doctor told him— classic hearsay—under Federal Rule of Evidence 803(4). This rule is about statements made for medical diagnosis or treatment, and it allows the doctor to testify about what the patient told the doctor. Conclusion The entire list of “Dos and Don’ts” all relate to being professional and can be summarized into five rules that are easy to remember: 1. Read and follow the rules. 2. Be prepared. 3. Be brief. 4. Be honest. 5. Be courteous and treat everyone with respect. Justice Anthony Kennedy has said, “civility is the hallmark of a true professional.”12 In my experience, civility is a
sign of strength, not weakness. Hon. Gray H. Miller is a senior United States District Court Judge for the Southern District of Texas. He is also a sustaining life fellow of the Houston Bar Foundation.
Endnotes
1. Much of the substance of this article is drawn from speeches I have given over the years about practicing in federal court. I would like to acknowledge my career law clerk, Anna Archer, and my other law clerks who have contributed to the list of tips provided in those speeches and this article. 2. The Local Rules for the Southern District of Texas can be found at https://www.txs.uscourts.gov/sites/txs/ files/LR%20May%202020%20Reprint.pdf. 3. District & Magistrate Judge’s Procedures (& Schedules), S.D. Tex., https://www.txs.uscourts.gov/page/ district-magistrate-judges-procedures-schedules (last visited May 13, 2021). 4. S.D. TEX. LOC. R. 46. 5. S.D. TEX. LOC. R. 44. 6. S.D. TEX. LOC. R. 7.1(D). 7. S.D. TEX. LOC. R. 7.2. 8. Senior Judge Miller’s Court Procedures can be found at https://www.txs.uscourts.gov/sites/txs/files/Miller%20 Court%20Procedures%20May%2012%202021.pdf. 9. 28 U.S.C. § 636(b). 10. 28 U.S.C. § 636(c). 11. 28 U.S.C. § 636(c)(3). 12. Justice Anthony Kennedy, Speech at Annual American Bar Association Meeting (Summer 1997).
Most insurance companies think with their wallet. We also use out heart. TLIE cares about its members. We support organizations that help them succeed and thrive. The BEST liability coverage for the BEST people.
#DoGoodHTown FIND OUT MORE:
TLIE.ORG or
(512) 480-9074
2_38x4_88in_TLIE Ad Campaign 2020_HoustonLawyer_120120 B&W.indd 12/1/20 11:57 4 AM
thehoustonlawyer.com
September/October 2021
13
By Sofia Adrogué and Hon. Caroline Baker
Stephen D. Susman:
Incomparable Innovator & Paradigm of Professionalism
Epic/Warrior/Legendary/Trailblazer & Trial Legend/ Visionary & Innovator/Fearless/Peerless Texas Pioneer/ Egalitarian/Entrepreneur/Charismatic & Fun/ Larger than Life with a Heart of Gold/Hope Diamond/ Not a Man of Half-Measures/Outsized Influence/ Advocate of High Risk, High Reward/Susman Godfrey’s Founding Partner/Big Daddy/Not “Mr. Susman”/ Institution-Builder/Not a Cult Leader/Professor/ Friend/ Son/Father/Grandfather/Papa/ Champion of the Civil Jury System 1 Sofia Adrogué had the luxury of meeting Steve thirty years ago, working for and learning from him at Susman Godfrey, trying a case with him in federal court in Puerto Rico, having the honor of preparing with him as he participated in the Trial of Hamlet in federal court, and, most impactfully and unforgettably, benefitting from his encouragement and guidance in her role as she envisioned and serves as the Editor, ALM’s TEXAS BUSINESS LITIGATION, 14 September/October 2021
with fellow Co-Editor, Hon. Caroline Baker. Hon. Caroline Baker has had the honor and privilege of serving as a Judicial Advisor to the Civil Jury Project at NYU School of Law and working with Steve to fully develop another brainchild of his—the Young Lawyers in the Courtroom Program, which was designed to provide young lawyers meaningful and substantive speaking opportunities in the courtroom. Thankfully, Steve was able to see this invaluable pro-
thehoustonlawyer.com
gram come to fruition. The Young Lawyers in the Courtroom Program, in conjunction with the Houston Young Lawyers Association and with the full support of the Houston Bar Association, was implemented in the Harris County district courts in 2018.2 The Fifth Edition of our TEXAS BUSINESS LITIGATION3 treatise is dedicated to the late Stephen D. Susman. There are no words to describe the loss for many, personally and professionally. We sought to capture his irrepressible spirit and commensurate professionalism via an amalgamation of descriptive words for truly a sui generis fellow lawyer. His legacy and imprimatur are palpable and everlasting. I. Commercial Litigation in the 21st Century—the Aftermath of the “Vanishing Trial” In paradigmatic Susman form, the legendary trial lawyer dedicated countless hours and commensurate resources to address why jury trials are vanishing. He sought to give fellow lawyers, the judiciary, and the community at large a roadmap to keep jury trials from becoming extinct,4 aware of the numbers taking a precipitous decline across state and federal courts nationwide. In point of fact, during the last fiscal year, in Texas state courts, 0.11% or less of the cases were disposed of by jury trial.5 Aware that litigation in the 21st century remains the subject of vigorous substantive debate and commensurate study, Steve envisioned, lead, and funded the Civil Jury Project in 2015 at NYU School of Law, a “collaborative effort between law students, lawyers, judges and political bodies across the nation” to “examine the factors leading to decline in civil jury trials and educate the legal community and the public on methods to revitalizing the dying system.”6 To date, the Civil Jury Project has engaged over 331 judicial advisors, seventy-one judicial advisors emeritus, seventy-three academic advisors, and forty-five jury consultant advisors who focus on educating the public on their
right to a jury trial, informing the public uncertainty of pretrial rulings and a and jury trials.”11 of jury trials’ alarming decline, and adI truly believe that Trial Agreements jury trial.12 vocating for the utilization of tools to reare worthy of full discussion among duce the costs of trial such as time limexperienced trial lawyers and judges II. Training Young Lawyers in an Era of its and jury innovations (including juror well in advance of pretrial. My atFewer Jury Trials questions, early instructions to the Another example of Steve’s indeljury, and interim arguments). ible impact was his teaching and Steve’s commitment to addresstraining of young lawyers, mening commercial litigation trial toring and sponsoring them even work in the 21st century, as well before doing so was en vogue. as the aftermath of the vanishing Professionalism and civility were trial, was not new. To promote efpart and parcel of that mentorficiency and professionalism, he ship. State-of-the-art programs developed a set of pretrial agreelike the Young Lawyers in the ments that his namesake firm, Courtroom Program perfectly Susman Godfrey, proposed to opdemonstrate that, as always, what 7 posing counsel. Steve’s initial inSteve promoted, he delivered—he walked his talk: spiration merits repetition. Steve with his wife, Ellen, and son Harry, a partner at Susman In this time of ‘vanishing’ trials, Because I was blessed by being Godfrey LLP. I feel like an old dinosaur huntinvolved only in complex comer. There is no need to teach mercial cases and with good those skills to youngsters if opposing counsel, I was able to there are no dinosaurs around. develop a set of Pretrial AgreeThat said, I do think there are ments that my firm has been many opportunities for young proposing to opposing counsel lawyers to practice their litigafor over a decade.... The key to tion skills by participating in the efficacy of such a Pretrial mock trials. We also have a rule Agreement has always been to at our firm that any lawyer that attempt to reach agreement on works on a case is entitled to as many of these items as posstand-up time at the trial. We sible before discovery begins. Steve founded the Civil Jury Project in 2015 at NYU Law School. can only teach by sharing the Once you are in the heat of limited trial experiences that battle, what appears to be good we have. Jurors love to see a for one side is often deemed to young lawyer get opportunities be bad for the other; therefore, to question witnesses.13 it is hard to reach agreement at 8 that point. Steve advanced the much debated and scrutinized “roadmap for reSteve’s Pretrial Agreements were form”14 for our 21st century civil so effective at achieving collegiality and order, that the project conjustice system. As his colleagues tinued to evolve, resulting in the so poignantly noted at the Civil development of a set of trial agreeJury Project at NYU School of Law, ments9 (which are accessible via a Steve with law partners Neal Manne and Lee Godfrey “[Steve] crisscrossed the country at his own expense to talk to trial attitude is to take whatever agreements working website appropriately named, torneys, trial judges, and most imporI can get—the idea being that any “Trial By Agreement”).10 The objective tantly, jurors.”15 He “advanced jury insuch agreements advance the ball and of “Trial by Agreement” aligns with make pretrial and trial more profesSteve’s principled, competitive, profesnovations” and “was a champion of and sional and efficient, not to mention sional and pragmatic approach to litia cheerleader for”…‘the purest, fairest, making trial more understandable to gation by way of “reduc[ing] expense, most inclusive and robust expression the jury. Trial by Agreement is a way stress and many of the uncertainties of direct democracy that the world has of reducing expense, stress and the that are associated with pretrial rulings ever seen.’”16 thehoustonlawyer.com
September/October 2021
15
III. Moving from the Physical Courtroom to a Courtroom in Cyberspace Cognizant of the COVID-19 enigmatic times, the April 2020 Newsletter of the Civil Jury Project at NYU School of Law commenced with Steve’s strikingly prophetic observations, noting that “[t]he COVID-19 pandemic has accelerated courts’ turning to technology in order to deliver justice. It will have far reaching effects for all of us—and for our justice system.”17 Steve also appropriately remarked that the list of considerations of “moving from the physical courtroom to a courtroom in cyberspace is long,”18 including the following brilliant Susmanesque inquiries: (i) constitutional concerns of having jurors deliberate remotely; (ii) would this decrease or increase costs for an already burdened system?; and (iii) would a virtual trial deliver the same quality of justice? Steve vehemently believed that juries are the views of the community and sacrosanct; thus, he invited his team, including the Civil Jury Project’s Judicial Director, the Honorable Mark A. Drummond, to survey and analyze how a virtual trial would work. As a result, the Civil Jury Project, armed with several hundred judicial and academic advisors and Steve’s gravitas, turned the focus to best practices for virtual jury trials. To be clear, a virtual trial for Steve, Judge Drummond, and the Civil Jury Project, like for all of us, is not the same as being in trial in person. Steve created his legacy being present in the courtrooms; now, the mission is to anticipate what is next and determine how best to move efficiently and safely through this global pandemic and beyond. Undoubtedly, we will be training young lawyers to communicate and advocate, at least in some measure, virtually rather than in person. How is professionalism learned and exemplified in such environments? Such questions abound in this hybrid world. Yet, we have no other option. Pres16 September/October 2021
ervation of the right to jury trial is the key. Regardless of how individual states decide to tackle the challenges of this new world, it is clear that proactive communication and consistent reassurance will be necessary to maintain public confidence and maximize participation in the jury process. Here’s to authentic, empathetic, realistic, belligerent optimism as we seek to navigate, innovate, and litigate in this “new normal” emulating the joie de vivre of Steve. Speaking about Susman Godfrey’s democratic structure and culture as well as his professional legacy, Steve’s words are immensely moving and spot on: “I want them to say, He was very fair. He was very honest. He loved to play...And he was very proud of doing things the right way. The moral way. The ethical way. And I have been. I have been.”19 Here’s to our Super Sus, our Sui Generis Stephen D. Susman. He epitomized Carpe Diem. Veni, Vidi, Vici! May he rest in peace. Sofia Adrogué is a seasoned trial partner with Diamond McCarthy LLP, a 10-year Texas Super Lawyer and Latino Leaders U.S. “25 Most Influential Hispanic Lawyers” and “Most Powerful Women in Law.” She serves as the Editor of the TEXAS BUSINESS LITIGATION treatise and has published and/or spoken on over 250 occasions. She has received over 40 awards and has been recognized for her public service by the City of Houston with a proclamation of July 10, 2004 & December 18, 2018, as “Sofia Adrogué Day.” Hon. Caroline Baker served the citizens of Harris County as a judge for 21 years before retiring at the end of 2018 as a senior judge. Board Certified in Personal Injury Trial Law and a member of the American Board of Trial Advocates, Judge Baker was consistently rated “Outstanding” in the Houston Bar Association Judicial Polls and received the 2017 “Trial Judge of the Year” Award from the Texas
thehoustonlawyer.com
Association of Civil Trial and Appellate Specialists, as well as the Mexican American Bar Association of Texas 2018 Service Award for “Outstanding Public Service in the Community as a District Court Judge.”
Endnotes
1. Sofia Adrogué, The Sui Generis “Super Sus”—Stephen D. Susman, THE ADVOCATE (State Bar Litigation Section Report, Austin, Tex.), Winter 2020 at 45. 2. See, e.g., Young Lawyers in the Courtroom Program, CIVIL JURY PROJECT AT NYU SCHOOL OF LAW, https:// civiljuryproject.law.nyu.edu/young-lawyers-in-thecourtroom-program/ (last visited Oct. 8, 2021). 3. SOFIA ADROGUÉ & HON. CAROLINE BAKER, TEXAS BUSINESS LITIGATION (ALM 5th ed. 2021). 4. SOFIA ADROGUÉ & HON. CAROLINE BAKER, TEXAS BUSINESS LITIGATION (ALM 4th ed.2019). 5. See JURY TRIALS DURING THE COVID-19 PANDEMIC: OBSERVATIONS AND RECOMMENDATIONS, OFFICE OF COURT ADMIN. (2020), available at https:// www.txcourts.gov/media/1449660/jury-report-toscotx-final.pdf. 6. Benchmark Litigation Names Three Susman Godfrey Attorneys to Top 100 Trial Lawyers of 2016, SUSMAN GODFREY (Nov. 10, 2015), https://www.susmangodfrey. com/news-awards/sg-news/benchmark-litigationnames-three-susman-godfrey-attorneys-to-top100-trial-lawyers-of-2016/; see Leadership, CIVIL JURY PROJECT AT NYU SCHOOL OF LAW, https://civiljuryproject.law.nyu.edu/about/directors/ (last visited Oct. 8, 2021). 7. ADROGUÉ & BAKER, supra note 4. 8. Stephen D. Susman, Category Archives: Pretrial Agreements, TRIAL BY AGREEMENT: AGREEMENTS FOR OPPOSING COUNSEL, https://trialbyagreement.com/ category/pretrial-agreements/ (last visited Oct. 8, 2021); see Sofia Adrogué & Hon. Caroline Baker, Litigation in the 21st Century: The Jury Trial, The Training & The Experts—Musings & Teachings from David J. Beck, Lisa Blue, Melanie Gray & Stephen D. Susman, THE ADVOCATE (State Bar Litigation Section Report, Austin, Tex.), Fall 2011 at 16. 9. Stephen D. Susman, Trial Agreements Made Easy, TRIAL BY AGREEMENT: AGREEMENTS FOR OPPOSING COUNSEL (June 8, 2011), https://trialbyagreement. com/agreements/trial-agreements-made-easy/. 10. TRIAL BY AGREEMENT: AGREEMENTS FOR OPPOSING COUNSEL, https://trialbyagreement.com/ (last visited Oct. 8, 2021). 11. About Trial Agreements, TRIAL BY AGREEMENT: AGREEMENTS FOR OPPOSING COUNSEL, https:// trialbyagreement.com/about/about-trial-agreements/ (last visited Oct. 8, 2021). 12. Sofia Adrogué & Hon. Caroline Baker, Litigation in the 21st Century: The Jury Trial, The Training & The Experts—Musings & Teachings from David J. Beck, Lisa Blue, Melanie Gray & Stephen D. Susman, THE ADVOCATE (State Bar Litigation Section Report, Austin, Tex.), Fall 2011 at 16. 13. Id. 14. ADROGUÉ & BAKER, supra note 4. 15. Hon. Mark A. Drummond, Opening Statement, JURY MATTERS (Civil Jury Project, New York, N.Y.), Aug. 2020. 16. Id. 17. Opening Statement, JURY MATTERS (Civil Jury Project, New York, N.Y.), Apr. 2020. 18. Id. 19. Brandon Lowery, Trial Icon Susman Wasn’t Done Winning, Laughing, Teaching, LAW360 (July 15, 2020, 10:14 PM), https://www.law360.com/articles/1267356/trialicon-susman-wasn-t-done-winning-laughing-teaching.
Professionalism: ALawyer’s Mandate
In 1989, the Houston Bar Association adopted its own statement to encourage members to observe traditional standards of professionalism. “Professionalism: A Lawyer’s Mandate” was developed by a Special Committee on Professionalism and adopted by the Houston Bar Association Board of Directors. The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession’s broader duty to the legal system. I. Relations with Clients A lawyer owes to a client undivided allegiance, the full application of the lawyer’s learning, skill, and industry, and the employment of all appropriate legal means to protect and enforce the client’s legitimate rights, claims, and objectives. In the discharge of this duty, a lawyer should not be deterred by any real or imagined fear of judicial disfavor or public unpopularity, nor be influenced directly or indirectly by any considerations or self-interest. 1. Representing my client in a professional manner is my first obligation. 2. I will be loyal and committed to my client’s cause, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice to the client. 3. I will endeavor to achieve my client’s lawful objectives in business transactions and in litigation as expeditiously and economically as possible. 4. When appropriate, I will counsel my client with respect to mediation, arbitration, and other alternative methods of resolving disputes. 5. I will advise my client against pursuing litigation (or any other course of action) that is without merit and against insisting on tactics which are intended primarily to delay resolution of a matter or to harass or drain the financial resources of the opposing party. 6. A client has no right to demand that I abuse the opposite party or counsel or indulge in other offensive conduct. I will always treat adverse parties and witnesses with fairness and due consideration. II. Relations with Other Lawyers A lawyer owes to opposing counsel courtesy, candor, and cooperation in all respects not inconsistent with a client’s interest and scrupulous observance of all mutual agreements and understandings. Ill feelings between clients should not influence a lawyer’s conduct, attitude, or demeanor toward opposing lawyers. 1. I will be courteous, civil, and prompt in oral and written communications. 2. In litigation proceedings, I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided a legitimate interest of my client will not be adversely affected. 3. I will not serve motions and pleadings at such a time or in such a manner as will unfairly limit the other party’s opportunity to respond.
4. I will attempt to resolve by agreement my objections to matters contained in pleadings and recovery and responses. 5. When scheduled hearings or depositions are cancelled, I will notify opposing counsel, and, if appropriate, the court (or other tribunal) as soon as practicable. 6. In business transactions, I will not quarrel over matters of form or style, but will concentrate on matters of substance. 7. I will identify for other counsel or parties all changes I have made in documents submitted to me for review. III. Conduct in Court A lawyer owes to the judiciary respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack. A judge has a reciprocal responsibility to maintain the dignity and independence of the Court and to treat the lawyer with courtesy and respect as an officer of the Court. 1. I will conduct myself in Court in a professional manner and demonstrate my respect for the Court and the law. 2. I will treat opposing counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility. 3. I will advise my client of the behavior expected of him or her. 4. I will be punctual so that preliminary matters may be disposed of in order to start the trial, hearing, or conference on time. IV. Administration of Justice & Discovery A lawyer owes to the administration of justice personal dignity, professional integrity, and independence. A lawyer should adhere to the highest principles of professionalism in all dealings with others, regardless of the desires of a client. 1. Ordinarily, I will not give notice of a disposition or hearing until an effort has been made to schedule it by agreement. 2. In oral depositions and other discovery proceedings, I will treat opposing counsel, opposing parties, and any other present, with courtesy and civility. 3. I will refrain from excessive and abusive discovery, and I will comply with all reasonable discovery requests. 4. I will submit proposed orders to the Court promptly and will send copies to opposing counsel before or contemporaneously with submission to the court. 5. If the matter does not merit the filing of a motion or an agreed order, I will not unnecessarily involve the court or its staff with correspondence or with copies of correspondence to opposing counsel. Unanimously adopted the 16th day of February, 1989, by the Board of Directors of the Houston Bar Association, on recommendation of the Special Committee on Professionalism, to encourage all lawyers to observe these traditional standards of professionalism to which the Houston Bar Association wholeheartedly subscribes. thehoustonlawyer.com
September/October 2021
17
By David T. Lopez
Barbacoa en los Domingos:
Professionalism on a 50th Anniversary
L
ooking back more than fifty years to trace the significance and development of professionalism can be satisfying, but not particularly easy. Professionalism has to be more than rules set forth in an aspirational mandate because it defines not only the individual, but also how our profession is viewed. It is both a conscience and an external perception. To define it, we might as well look to what Justice Potter Stewart said about obscenity in Jaco-
David Lopez as a young lawyer (top) and David today. 18
September/October 2021
thehoustonlawyer.com
bellis v. Ohio:1 you know it when you see it. And not always does one get a chance to look, or to learn what it looks like to someone else. On the 50th year of my professing a commitment to law and justice, I can focus on how I got to that commitment and how I adhered to or deviated from it. But the story would not be complete without weighing what we as a profession have done, and still might do, to accentuate the virtue of our calling. Let me set forth first some of my personal recollections, and their relation to professional conduct, then express what my experience suggests we need to do together. Personal Reflections on Fifty Years of Practicing Law On a circuitous journey to the profession, I arrived in Austin from Laredo in 1959 on a Greyhound bus. I could not find The University of Texas because no one seemed to know about Guadalupe Street. Born to parents who did not reach high school, I was seeking a law degree, but I was not enough of a Tejano to pronounce Guadalupe as “Wadaloop.” With two years at a community college and savings in the low three figures, my aspiration was dashed. I soon realized that even if I could manage to pay for two more years for a bachelor’s degree, I still would have three more in law school. I reluctantly signed up for a journalism degree, since I had been working as a newspaper reporter. In my senior year, the entire staff of the Texas Ranger humor magazine was fired for sneaking in an illustration repetitive of what now could be considered common usage, but was seen then as well within Justice Stewart’s definition of obscenity.2 I was at the time the managing editor of the Daily Texan student newspaper, and in trying to save the Texas Ranger magazine, I applied to take over as editor. That experience led to having a wealthy activist recruit me to establish a radical student magazine in Mexico. From having subsisted significantly on
mail packages from the bakery-owner father of my roommate, I went to taking time from classes, having a comfortable stipend, traveling to Mexico, and even having a part-time paid assistant at the University. When the Mexican government offered to generously subsidize the project, I politely declined, and then I found that the paper needed to publish the magazine would no longer be available. The professional decision to insist on journalism independence was fatal to the project. The travel away from classes resulted in some “incompletes,” but I nevertheless was awarded a bachelor of journalism degree while at the same time being placed on what deferentially was called “enforced withdrawal.” Back at the Laredo newspaper, I reported on border labor issues and caught the eye of a state labor official. On his recommendation, I was chosen to direct the press and public relations for the Americas branch in Mexico City of the worldwide federation of international trade unions. However, trying to adhere to professional standards in a post replete with political intrigue led me to resign in less than two years. I returned to the United States as a field representative of the national labor organization, AFL-CIO. I can recall that adhering to professional conduct enabled me to resume my quest for a profession in the law. I directed a strike at an El Paso manufacturing plant and met a lawyer who was influential in the Mexican American Legal Defense and Educational Fund (“MALDEF”). MALDEF awarded me its first scholarship and paid for my tuition and books at South Texas College of Law Houston. I enrolled in evening classes at South Texas and kept my day job as a labor organizer. It was arduous, but workable, even when I was assigned to a monthslong project in San Antonio and had to commute back and forth for a semester. An anonymous, kindly record keeper kept me from being expelled by South Texas for excessive absences.
The burden, however, had the effect of forcing dedication to studying, and I graduated at the top of my class. Having to strive to achieve admittance to a profession certainly promoted an appreciation of professionalism. Our profession at the time had different and separate entrances, however. After graduating first in my class, I still did not get a job offer, and had to opt for a solo practice. That substantial progress continues to be made to open access to
effective participation is a well-appreciated enhancement. After a few weeks of increasing trepidation, I got my first gig and my first fee. It was $5, a rate I had seen announced as the minimum at the office of an established Latino lawyer. My elder lady client, who admitted to running a red light, and I went to face the judge. The police officer who issued the ticket did not appear. With slight prodding from the judge, I moved to dismiss and won
thehoustonlawyer.com
September/October 2021
19
lic school, I learned that he was skilled my first case. perhaps not so much. Due to the politics at cooking barbacoa, a weekend delicacy I thanked the judge and escorted my of the time, the position required considof pit-cooked cow’s head. He said that client toward the exit. Among several erable time away from my practice, and he increased the yield, and the profit, by persons waiting to be called, there was a the public reaction was mixed, due to an wrapping the heads with skirt steak, the young man sitting with a cast on his lowongoing battle over school desegregation. beef cut for fajitas. er leg, holding a pair of crutches. My cliMy professionalism was tested as the first ent leaned over and said, “That’s him.” Latino and only lawyer on the board. Surprised, I replied, “What? Who?” There were a number of thinly veiled She replied, “The boy on the motorhints on how I could benefit from adcycle that I hit with my car.” We kept vocating and voting on procurement walking and went out unrecognized. contracts and other matters. I turned Professionalism, I learned, at times is all of them down and concentrated on produced spontaneously. After further providing professional views on issues consideration, I concluded that profesbefore the board. sionalism also recommends that full My first law office was in a two-story information be obtained early from a house in a racially transitioning upclient. per middle-income neighborhood near There was more need for profesHermann Park. It was shared with sional reflection on my next, and better Judge Andrew Jefferson swears in Dr. Herman Barnett, another South Texas graduate and a paying, case, a divorce. My client had Jeannie Kamrath, and David Lopez to the HISD School Board. representative of the Service EmployAt his suggestion, I spent two weeks been abandoned by her husband in the ees Union. Students from all law schools considering how a weekend sideline sixth month of her first pregnancy. She were welcomed. One was instrumental could supplement the modest income I had resigned herself to not ever seeing in what became an important part of my was getting from my practice. I got to the her spouse again and had arranged other practice. He recommended me to a lady extent of ordering a prominent sign to prospects. To obtain an uncontested diwho had a complaint against the U.S. place below my shingle. It read “Barbavorce, when our case was called, I had Equal Employment Opportunity Comcoa En Los Domingos.” After pondering her walk to the bench behind me, thus mission (“E.E.O.C.”). what impression that combination might covering her visible state. After the unThe claim was that the E.E.O.C., have on the profession, I disappointed contested divorce was granted, I left first charged with assisting individuals claimmy client by abandoning the idea. My cliand had her walk directly behind me. The ing employment discrimination, was itent impatiently gave up on hearing from client was free for her new relationship, self biased in its employment policies. Esthe authorities, moved, and he now is doand the judge was able to expeditiously sentially, the lady claimed that as a white ing well, providing weekend barbacoa in dispose of the case. Professionalism, at woman, she was discriminated against a Texas city that must remain unnamed. times, requires improvisation. because the E.E.O.C. was favoring Black Sometimes professionalism can get in the Cash was trickling, instead of flowing, women since in its employment statisway. and I began accepting immigration castics, it could get double consideration on Advertising was not allowed for lawes, competing with many notaries pubsex and race. Reviewing her story, I conyers at the time, and in my quest for a lic who deceptively were rendering little cluded that she had a valid complaint, steady income, I heard that a way to behelp. Poor immigrants from Mexico and even though it was not consistent with come known in the community was to Guatemala were deluded into considermy own views. Professionalism trumped run for office. I attended a community ing them “notarios,” a position of experipersonal politics. meeting in the East End, at which parenced legal professionals who have govI had requested an injunction, and ents were decrying the lack of Latino ernment appointments in Latin America. Judge Woodrow Seals scheduled a hearrepresentation on the Houston school A blemish on our profession remains to ing for the next day. I gave my client inboard. My intent was just to try to get this day. structions and said I would meet her at information, but I ended up being the Fees were low and sometimes paythe courthouse. After we conferred, the Latino candidate on a three-candidate ment had to be in kind, such as a used air government’s lawyer and I proceeded to slate of an organization named Citizens conditioner and a church pew for which the judge’s conference room. We found for Good Schools. I never found a use. In the course of that my client already was there. She had The campaign and what followed is representing an undocumented Mexican her three children with her, and they another story. I learned that running for laborer who had been detained while trywere openly crying. Opposing counsel office was a good idea, but getting elected ing to enroll his young children in pubwas outraged, thinking I was trying to 20 September/October 2021
thehoustonlawyer.com
A Texas Plaintiff’s Medical Malpractice Team Like No Other
L-R: Tom Omondi, MSN RN, JD Alexandra Farias-Sorrels Randall O. Sorrels Sara Hashmi, PharmD, JD Brian Tew, MD, JD
A medical doctor – and a lawyer. A nurse/CEO – and a lawyer. A pharmacist – and a lawyer. Sorrels Law is the only law firm in Texas with three lawyers who have also been a medical doctor, a hospital CEO (and nurse) and a pharmacist. Along with a former State Bar of Texas President and former Supreme Court of Texas briefing attorney, this boutique personal injury/medical malpractice/business litigation firm has become a go-to firm for patients across Texas who are injured as the result of the negligence of a healthcare provider. Tom Omondi, MSN RN, JD became a registered nurse first, obtained an MBA, and then became a CEO of a hospital. Tom then went to law school and is now a plaintiff’s personal injury lawyer handling primarily medical malpractice cases. Alex Farias-Sorrels served as a briefing clerk at the Supreme Court of Texas before joining Morgan, Lewis & Bockius, LLP handling commercial litigation on the plaintiff’s side and products liability cases on the defense side. Now, Alex is a plaintiff’s lawyer handling both commercial litigation and personal injury cases. Randy Sorrels began his career representing healthcare providers at Fulbright & Jaworksi, LLP and has been a plaintiff’s lawyer for the last 31 years. He has been named the “Lawyer of the Year” in Medical Malpractice Litigation for Plaintiffs in 2013, 2016, and 2019, and the “Lawyer of the Year” in Personal Injury Litigation for Houston for 2022 by Best Lawyers. Sara Hashmi, PharmD, JD was a practicing pharmacist and pharmacy manager before going to law school. After graduation, Sara became a medical malpractice defense lawyer and is now a plaintiff’s personal injury lawyer handling primarily medical malpractice cases. Brian Tew, MD, JD practiced medicine in the emergency room setting, family practice setting and long-term care setting before becoming a medical malpractice defense lawyer, and now a plaintiff’s medical malpractice lawyer.
Medical malpractice cases in Texas present unique challenges for lawyers, but the medical professionals and lawyers at Sorrels Law stand ready to take on those challenges. Call us to co-counsel or joint venture cases. We pay referral fees. Or just call us to talk about your medical malpractice or personal injury case.
5300 Memorial Drive, Suite 270 Houston, TX 77007
(713) 496-1100
www.SorrelsLaw.com
provoke the judge’s well-known empathy, and he reacted angrily until brief minutes later the judge arrived and granted an injunction. My professional judgment was that I should not ask my client why she brought her children. I could not fully credit myself with another “W.” The injunction was dismissed, my client was livid, and she decided that she could do better with a different lawyer. Her alternative representative was much more accommodating and prolific than I could have managed. After an unsuccessful appeal at all available levels, a new suit was filed. I was joined as a defendant, together with all attorneys who had appeared for the E.E.O.C., Judge Seals, all judges of the Fifth Circuit Court of Appeals, and all nine justices of the U.S. Supreme Court. My professionalism lesson was to ensure that future clients appreciated the limits to relief available, and to defer inquiry as to who my client believed would hear the case. Judge Seals, with no consideration, I am sure, of the suit I had brought to him, summoned me to ask a favor, he said. While it is not listed in “Professionalism: A Lawyer’s Mandate,” I stand by the principle that one does not deny a favor to a federal judge. As a consequence, I agreed to be appointed as lawyer for a class consisting of all Latino inmates of the Texas Department of Corrections in a case challenging the racial segregation of prison cells. This resulted in years of traveling to Huntsville for depositions and client conferences, hundreds of letters, and stacks of documents. As trial neared, I telephoned the Justice Department in Washington about reviewing discovery in the case. I was told I would need to use a microfiche reader and the room in which discovery was being kept was more than half full of boxes with microfiches. Sometimes, professionalism demands too much. While I was considering how to clear my schedule for a month or two, the case was settled. I was awarded fees from the State of Texas, a bit more than what I had 22
September/October 2021
spent over the years on gas for travel. Additional consideration was my having the opportunity to receive and answer hundreds of letters from “pen pals.” I professionally responded to all of them, and even agreed to represent a few inmates in their claims. As my practice progressed, I represented hundreds of individuals with claims against their employers, and I defended some employers from employee claims. I represented workers against their unions and locals against international unions, and civil rights claimants against governmental bodies. Professionalism, I believe, does not permit differentiating based on a preferred side. There are many more stories about aspects of professionalism that I could share, and would very willingly do so while sharing some liquid refreshment. There would be scores of instances in which professionalism was exercised on particular occasions. There are also, however, a number of instances in which I firmly believe professionalism needs to be more thoroughly considered as it impacts our profession generally. Reflections on Professionalism in Our Profession Professionalism demands that we work to attract others and ease their ability to join. We have progressed in informing students about our profession, but the rising costs of the required education are daunting. The case method has proven its efficacy, but professionally, we should question whether there is enough done to mitigate the tendency to view conflicts as necessarily adversarial. Overemphasis on the substance of imprecise rules and laws merits historical reflection on how we meld our common law and equity traditions. When a judge in a trial or appellate court declaims that there might be an unjust result, but the Court is compelled nevertheless to order it, public regard of our profession is lessened. Mr. Justice Story quoted Sir William Blackstone to say that equity is in-
thehoustonlawyer.com
tended to give a more specific relief, more adapted to the circumstances of the case, than can be obtained by the generalities of the common law.3 Procedures should be simplified to permit a more reasonable access to trial. Unfettered discovery has been estimated to represent 80% of the cost of some litigated cases.4 Of all the materials obtained by discovery, no more than 2% is utilized, according to various reports. While civil law jurisdictions increasingly consider permitting discovery, it would be professionally enhancing to minimize discovery to the recognized essential. The expense, time, and uncertainty of resolving a case in court is leading, perhaps inexorably, toward resolution through private means. Expedited resolution can be encouraged, as it is being promoted in some courts.5 Ours is a profession with a long history and tradition, and my fifty years of practice is but a brief episode. Even in that short time, however, I have noted that the reputation of our profession has unnecessarily diminished. However, there appears to be at least the possibility, if not the actuality, of improvement. Our attention to professionalism, individually and together, can bring it about. David T. Lopez, now a solo arbitrator and mediator, received in 2007 the Ronald D. Secrest Outstanding Trial Lawyer Award from the Texas Bar Foundation. He is a member of The Houston Lawyer editorial board.
Endnotes
1. Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). 2. Texas Ranger was a humor magazine published by Texas Student Publications, Inc., from 1923 through 1972. See Texas Ranger, UNDERGROUND COMIX JOINT, https://comixjoint.com/texasranger.html (last visited Oct. 8, 2021). 3. JOSEPH STORY, COMMENTARIES ON EQUITY JURISPRUDENCE (The Lawbook Exchange 2006) (1884). 4. Beisner, John H., Discovering a Better Way: The Need for Effective Civil Litigation Reform, 60 DUKE L.J. 547 (2010). 5. See Michael A. Hawash, Zealous Advocacy and Zealous Problem Solving: A Lawyer’s Ethical Duties in Mediation, 59 HOUS. LAW. 2 (2021), of this issue for more discussion on the intersection of ADR and professionalism.
By Michael A. Hawash
Zealous Advocacy and Zealous Problem Solving:
A Lawyer’s Ethical Duties in Mediation
I
n Houston and throughout Texas, mediation is by far the most predominant method of alternative dispute resolution (“ADR”). In many Harris County courts, mediation is a prerequisite for getting to trial, especially when a jury is requested. But as mediation has become more ubiquitous, the rules and ethical standards for mediators have also grown. Even so, less attention has been paid to the standards of professionalism that lawyers representing clients in mediation should follow. Clients would be far better served if lawyers had a better understanding of professionalism in mediation, as well as in the courtroom. The basic ethical duties owed by a lawyer engaged in mediation can be distilled to these five responsibilities: (1) keeping a client informed about the case, including settlement and ADR options; (2) competent representation before and during the mediation; (3) protecting confidentiality; (4) avoiding conflicts of interest; and (5) avoiding the unauthorized practice of law. The Role of the Lawyer in Mediation Although the Texas Disciplinary Rules of Professional Conduct do not specifically address the role of a lawyer in mediation,
it is important that lawyers in mediation distinguish themselves from lawyers in adversarial litigation. In particular, it is an unfortunate truism that lawyers in litigation often view the duty to be zealous advocates as outweighing their responsibility to help their clients achieve their goals. Such an attitude is especially harmful in mediation, where a lawyer is entrusted with many functions, including not just advocacy, but case evaluation, risk-analysis, counseling, and negotiation. Thus, a mediator must be not only a zealous advocate but a zealous problem solver. I. Keeping the Client Informed: Client Counseling Regarding Litigation, Mediation, Early Dispute Resolution, and Other Forms of ADR The Texas Lawyer’s Creed has an aspirational rule mandating that attorneys advise clients about mediation. But the Texas Disciplinary Rules of Professional Conduct are silent on the topic. As such, there is no specific disciplinary rule in Texas that requires lawyers to inform their clients about mediation or other ADR options. Nevertheless, lawyers do have a contextual duty within the Texas Disciplinary Rules of Professional Conduct to inform their clients about possible ways to resolve their dispute, which would include mediation and, possibly, other forms of ADR. Informed consent is the basis for most client counseling. Texas Disciplinary Rules of Professional Conduct Rule 1.03(b) requires a lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Additionally, Rule 3.02 requires lawyers to “not take a position that unreasonably increases the costs or other burdens of the case or that unreasonably delays resolution of the matter.” Lawyers should take the above disciplinary rules to heart when determining whether to discuss ADR options, including mediation, with a client. Obviously,
whether mediation is in a client’s best interest will vary from case to case. As a general matter, however, most clients will benefit from a thoughtful problemsolving approach to litigation rather than a blind fight to the finish. Also, as new forms of dynamic mediation, such as Early Dispute Resolution (“EDR”), gain more widespread acceptance, the wisdom of mediating sooner rather than later increases exponentially. The fundamental question all lawyers need to ask is this: “What serves my clients’ interests best?” Much of the time, what serves clients best is an early, economical, and fair resolution of their dispute. Mediation and EDR provide a structured process to do just that. II. Competent Representation in Mediation Competent representation in mediation begins well before the mediation even starts. Texas Disciplinary Rules of Professional Conduct Rule 1.01(a) states “a lawyer shall not accept or continue employment in a legal matter which the law-
yer knows or should know is beyond the lawyer’s competence.” Competent representation requires a lawyer to be able to inform and prepare the client for mediation; choose a qualified mediator (or object to an unqualified mediator if court-appointed); prepare mediation submittals; and develop a mediation negotiation strategy that fits the client’s overall goals and objectives. Effective client preparation includes informing the client about the mediation process, what it entails, and what the client’s role will be. For example, many lawyers ask their clients to be quiet in mediation, particularly during a general caucus. However, letting the client speak at mediation may be an effective settlement tool, with the appropriate client, by giving the other side a glimpse of how persuasive the client will be as a witness. Choosing the right mediator is also part of competent representation. Different mediators have different strengths and weaknesses. Does the mediator have a background that fits the case? Does the mediator have a reputation for using eval-
uative, facilitative, or other techniques to bring about resolution? Will gender, age, diversity, or other factors impact the mediator’s ability to establish trust with the client? The lawyer should consider all of these issues. A. Client Counseling Regarding Settlement in Mediation Most mediations will result in settlement proposals being exchanged by the parties. The evaluation of settlement proposals triggers a host of ethical duties. Texas Disciplinary Rules of Professional Conduct Rule 1.02(a)(2) specifically addresses settlement offers and generally requires a lawyer to abide by a client’s decisions on “whether to accept an offer of settlement.” Accordingly, Rule 1.02(a)(2) and Rule 1.03(b) work in conjunction with one another, using the principle of informed consent to require clients to be educated about their choices, including the terms of any proposed settlement offer and the possible consequences of rejecting an offer.
thehoustonlawyer.com
September/October 2021
25
come as a surprise to some lawyers that “confidential information” under Texas Disciplinary Rules of Professional Conduct Rule 1.05(a) includes both “privileged information” and “unprivileged client information.” In other words, not only is attorney-client information covered, but also all information relating to the client or furnished by the client and acquired by the lawyer during the representation. As a general matter, Rule 1.05 prohibits the disclosure of confidential information unless certain conditions are met, priIII. Protecting Confidentiality in marily regarding client consent. The reMediation strictions on disseminating unprivileged Confidentiality is one of the hallmarks of client information are somewhat looser. mediation. The expectation of confidenFor example, under Rule tiality encourages otherwise 1.05(d)(2)(i) a lawyer can tight-lipped parties to engage disclose unprivileged inin full and open discussions formation if necessary to to identify interests, engage Lawyers are carry out the representain risk-analysis, and propose expected to be tion effectively. However, solutions. Lawyers should be aware zealous advocates, the line between what is of three aspects of confibut zealous advo- privileged and what is unprivileged may not always dentiality that relate to mecates in mediation be easy to discern, espediation. The first relates to state-specific requirements may differ from cially during heated negofor confidentiality in the mezealous advocacy in tiations. Prior to any disclosure, diation process; the second litigation, with the lawyers should be clear relates to the scope of conessential question with their clients on what fidential client information; and the third relates to the being ‘what is information is going to be shared with the mediator disclosure of confidential inin the client’s best and what information is formation in mediation and interest?’” going to be shared with informed consent. the opposing party. A lawThe Texas Legislature enyer may be inclined to share confidential acted Texas Civil Practice and Remedies information in the hope that such a revCode Section 154.073, which makes most elation will lead to a settlement. But Rule communications within the context of 1.05 makes it clear that before disclosmediation confidential, not subject to ing such information, the lawyer must disclosure, and not useable in a judicial typically obtain informed consent. This proceeding. There are exceptions, but includes getting client consent before they are limited. Without this confidentisharing confidential information with the ality statute, it is unlikely that mediation mediator, regardless of whether the mewould be as effective a settlement tool as diator agrees to keep such information it is today. confidential from the opposing party. Although mediation is, for the most part, a confidential process where disA. Candor in the Mediation Process closure is encouraged, lawyers should be A related issue is the truthfulness of cognizant that they are dealing with their the information communicated both clients’ confidential information. It may Rule 1.02(a) makes it clear that the client—and not the lawyer—is the decision maker. Obviously, a lawyer may assist the process by giving advice, making recommendations, and pointing out the ramifications of refusing a settlement offer. Nevertheless, the client controls whether the case settles as well as whether negotiations should continue, and so lawyers must recognize that both in mediation and otherwise.
‘‘
26 September/October 2021
thehoustonlawyer.com
to the mediator and opposing parties during mediation. In Texas, there is no statutory duty for the parties to negotiate in good faith. Nevertheless, there has been a great deal of debate over whether mediation should be conducted in a safe harbor (where a higher duty of candor is expected) or whether negotiation inherently involves some level of deception. In a 2006 ethics opinion, the American Bar Association (“ABA”) specifically addressed the issue and stated that ABA Model Rule 4.1 (which is materially the same as Texas Disciplinary Rules of Professional Conduct Rule 4.1) applies during a caucused mediation. Both the Model Rule and Texas Rule 4.1 state “in the course of representing a client[,] a lawyer shall not knowingly make a false statement of material fact or law to a third person.” The ABA was careful to state that opinions and comments about a client’s negotiation goals or willingness to compromise were permitted “puffing.” However, the requirement that statements of material fact or law be truthful applies in mediation just as it would in any other forum. IV. Avoiding Conflicts of Interest It is axiomatic that a lawyer must not represent a client if the representation involves a conflict of interest, and Texas Disciplinary Rules of Professional Conduct Rules 1.06 through 1.09 go into great detail regarding prohibited representations and transactions with current and former clients as well as serving as an intermediary between clients. However, conflicts of interest in mediation can arise from the application of a State Bar Rule that many lawyers are unfamiliar with. Specifically, Texas Disciplinary Rules of Professional Conduct Rule 1.11 states that a lawyer is generally prohibited from representing anyone in connection with a matter upon which the lawyer has personally and substantially participated as an “adjudicatory official.” Whereas mediators often emphasize in their opening remarks that it is not their role to “adju-
dicate” any issues of fact or law, the Texas Disciplinary Rules of Professional Conduct defines an “Adjudicatory Official” as a person who serves on a “Tribunal” and a “Tribunal” is defined to include “mediators.” The last decade has seen a proliferation of part-time mediators, especially those with specialized knowledge or competence and concentrating in a specific area of law. Many part-time mediators also continue to act as traditional lawyers for clients. Since a mediator is an “Adjudicatory Official” under the Rules, attorney-mediators need to be wary of representing parties in matters in which they have been mediators and vice versa. Although no reported case in Texas has evaluated a disqualification under this definition, attorney-mediators should be aware of the possibility. V. Avoiding the Unauthorized Practice of Law Texas Disciplinary Rules of Professional Conduct Rule 5.05 states “a lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.” It is not uncommon for an attorney to represent a client in an out-of-state mediation. In response to the growing number of attorneys representing clients in states where the lawyer may not be licensed, the ABA adopted Model Rule 5.5(c), which gives some protection to lawyers in good standing to practice on a temporary basis, specifically including mediations in states where they may not be licensed, and then only if certain conditions are met. Texas has not yet adopted ABA Model Rule 5.5(c), so out-of-state attorneys should be wary of representing parties in Texas mediations where the rules for practicing law in Texas have not been met. Likewise, since lawyer discipline is a creature of state law, Texas lawyers representing clients in states other than Texas should determine whether the forum state has adopted ABA Model Rule 5.5(c) before agreeing to mediate in a state where the lawyer may be unauthor-
ized to practice. Conclusion Mediation offers parties an exceptional opportunity to find a resolution to even the most complex disputes. Lawyers are expected to be zealous advocates, but zealous advocacy in mediation may differ from zealous advocacy in litigation, with the essential question being “what is in the client’s best interest?” Ethical duties require a lawyer to inform a client about ADR options such as mediation. Additionally, lawyers must provide competent representation before and during the mediation, especially regarding negotiation strategy and the evaluation of settlement offers. Confidentiality of privileged and nonprivileged client information must be maintained and disclosed through informed consent. Although conflicts of interest are relatively rare when all parties to a mediation are represented by separate counsel, there are some conflicts peculiar to mediation that may bar cer-
tain lawyers from participating in mediations in which they served as mediators and vice versa. When mediating in a foreign forum, a lawyer should make sure to comply with local rules and avoid the unauthorized practice of law. To the extent these ethical duties are followed, client interests will be well-served, and the stage will be set to implement a resolution that considers the client’s aims and objectives. Michael A. Hawash is the founder of Hawash Houston Mediation where he routinely serves as a mediator, arbitrator, and EDR neutral. He serves on the Mediation and Early Dispute Resolution Committees of the American Bar Association and is a trustee of the EDR Institute, a nonprofit corporation organized to promote the fair, effective, and ethical use of early dispute resolution principles and to educate lawyers, judges, neutrals, businesses, and the general public about EDR’s benefits. He can be reached at Michael@HoustonMediation.com.
thehoustonlawyer.com
September/October 2021
27
By Ali Dhanani and Wes Edwards
Cryptocurrency and the Future of Law Firm Payments
R
oni Ghose, Global Head of Banks Research for Citigroup Inc., once said, “Money is entering a format war.”1 But when Mr. Ghose stated this, he did not realize that money—the lifeblood of the global economy—has always been in a format war. From bartering, metals to coins and paper to credit cards, money has facilitated trade for millennia. There is now, however, a new “combatant” in the currency war: cryptocurrency. Since its introduction earlier this century, cryptocurrency (or “crypto”) has become a global phenomenon and an often-misunderstood buzzword heard in the news. Every day, crypto grows more accepted as a form of payment; is it time for law firms to embrace this new frontier and adopt cryptocurrency as payment for its services? Though the legal profession has been built on history and tradition, law firms should prepare to embrace the transformative changes that cryptocurrency (and other forms of blockchain technology) have similarly brought to other industries.
28 September/October 2021
It is significant to note that law firms have various practical, ethical, and risk management obligations to clients they serve that are well beyond a traditional seller and buyer of goods. Such pragmatic difficulties and current regulatory climate therefore suggest that law firms must conduct serious evaluation before adopting cryptocurrency as a form of payment. This article will explore how to overcome some of these challenges, as well as provide a model for accepting such payments. History of Currency With the dawn of the new millennium came the greatest change in the history of money: the transition from physical to digital. Due to advances in computer technology and the internet, most of the world’s currencies are exchanged and exist as digital currency.2 It is estimated that only 8% of the world’s current currency is physical.3 Digital currencies were revolutionized in 2008 when an individual using the pseudonym “Satoshi Nakamoto,” released a white paper detailing the first cryptocurrency—a
thehoustonlawyer.com
decentralized, digital currency—called “Bitcoin”.4 Bitcoins—or BTC—provide an avenue for peer-to-peer transactions utilizing a public ledger, known as a blockchain. Because Bitcoins are transacted on the blockchain, there is no need for a single administrator or intermediaries; instead, Bitcoins are “mined” by solving complex equations or verifying the accuracy of previous transactions.5 The first cryptocurrency transactions were simply between miners trading coins back and forth, but the first real economic transaction took place on May 22, 2010 when a man paid for two pizzas ($25 value) with 10,000 Bitcoins.6 Since becoming synonymous with the first official BTC transaction, May 22nd has been nationally recognized as Bitcoin Pizza Day. BTC’s introduction inspired people around the world to modify and adapt the blockchain code to fit their own uses and develop many new forms of blockchains with their own associated coins, like Ethereum, Litecoin, and Dogecoin.7 Issues with Accepting Virtual Currency Adoption of cryptocurrency does not appear to be at the forefront of law firm stakeholders for good reason. Regulatory issues surrounding the use of cryptocurrency continue to be refined by various governments across the globe. Moreover, for large law firms that typically work on a global basis, practical issues such as client due diligence, know your customer, source of funds, and particularly the fluctuating nature of virtual currency counsels against accepting virtual currency as a form of payment at this time. Indeed, Rule 1.8 of the Model Rules of Professional Responsibility states that a “lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client” but for the listed exceptions.8 Texas has a similar, but less stringent rule.9 However, given that most large law firms operate in multiple states, law firms would typically impose more stringent considerations on their interactions and follow the Model Rules of Professional Conduct as promulgated by the American Bar Associa-
tion. In view of these considerations, large law firms should be very careful and considerate if considering accepting this form of payment. How Would a Law Firm Accept Virtual Currency? While mainstream adoption of cryptocurrency as a form of payment has been slow, the technology to accept virtual currency for businesses has been well established for several years. Before accepting crypto payments, a law firm must set up a crypto wallet, which is the crypto analog to a realworld bank account. Crypto wallets are a safe, accessible medium used to store the owner’s public and private keys required to receive and send cryptocurrencies.10 Wallets also provide the owner’s unique, authorization signature for each transaction.11 Non-custodial programs and physical hardware devices are two types of digital wallet mediums; however, due to security, fiduciary, and ethical concerns law firms should only use hosted wallets.12 Similar to how bank accounts keep your money in checking or savings accounts, in a hosted wallet, a third-party custodian receives and holds its customers’ crypto in segregated accounts.13 The most reliable hosted wallet services use segregated coldstorage to protect and back up customers’ crypto. They must comply with applicable state banking laws by providing insurance for all accounts and conducting regular financial and security audits by outside firms and state regulators.14 Some examples of reliable hosted wallet services include: Coinbase Custody,15 Gemini Custody,16 BitGo,17 and Bitcoin Suisse Vault,18 among many others.19 When setting up crypto payments, law firms should also consider which type of crypto each custodian can process and— more importantly—how they will match transactions and provide accurate invoices and accounting. All the hosted wallets listed above accept many types of cryptocurrencies. The solutions for keeping track of invoices and accounting are just as numerous. First, law firms could set up a crypto wallet for each of its clients, giving each of
them its own designated key. This would allow a firm to send an invoice to each client so they can send their crypto payments only to their designated crypto wallet. In addition to individual client wallets, a firm can utilize transaction accounting solutions such as crypto subledgers or a fullscale accounting solution.20 A full-scale accounting solution is an in-depth auditing solution more intended for digital native companies; however, crypto subledgers are designed to work in tandem with “a traditional accounting solution, such as Quickbooks or Intacct and are intended for companies looking to use crypto to supplement traditional business operations.21 Furthermore, law firms will be able to track payments through their preferred crypto wallet host’s auditing capabilities by tracking the sender’s key for each payment. Law Firms Can Benefit by Supplementing Traditional Currencies with Crypto a. Flexibility Accepting crypto payments will provide law firms with the flexibility to maximize
their operations in the 21st century. Since its 2008 introduction, economic activity and participation in the crypto space has grown exponentially. Crypto and cryptorelated companies received more funding in the first quarter of 2021—nearly $2.6 billion—than in all of 2020, with some even considering going public.22 Some estimates place the total value of the world’s crypto market above $2 trillion.23 Furthermore, companies around the planet—like Microsoft, Whole Foods, Home Depot, Tesla, and Starbucks—have begun accepting crypto payments,24 and they will want to pay for services using their crypto assets. In May 2021, Elon Musk vowed to fund SpaceX’s mission to the moon with funding from the memeinspired Dogecoin; even going so far as tweeting he would put a “literal Dogecoin” on the moon.25 Certain law firms have already begun accepting crypto payments in recent years.26 b. Ease As discussed above, accepting crypto
thehoustonlawyer.com
September/October 2021
29
payments is as easy as picking a reliable hosted wallet, setting up accounts, and informing clients or potential clients that the law firm will accept crypto payments. The custodian service will provide public and private keys for each crypto wallet which can be sent to the clients as a QR code or as a blockchain string. Another ease-of-use feature of crypto payments is that they often have lower processing fees than credit cards. Credit card payment processing fees range between 2.0% and 3.5%, but crypto fees are often a fraction of that cost, generally ranging between 0.5% and 1.0%.27 Additionally, clients can negotiate with many custodial services for flat transaction fees. c. Smart Legal Contracts Another advantage of accepting crypto payments is its use in distributed ledger technology, better known as smart legal contracts. Attorneys spend an estimated 48% of their time on administrative tasks, but smart legal contracts can streamline and automate these non-billable tasks.28 When a law firm and a client enter into a smart legal contract, both sides will have access to a shared digital ledger which will show the firms’ activities for that client and the client’s payment for those activities.29 This means when a firm accomplishes an activity or a certain date is reached, whatever the contract term, then the smart contract will trigger the client’s crypto wallet to make a payment directly to the firm’s crypto wallet. This will enhance firm efficiencies and productivity because it reduces the amount of administrative tasks lawyers will need to perform, and it allows for more transparency and visibility for the client. d. Effective Advertising Tool Accepting cryptocurrency as a payment method can serve to signal to clients that the law firm can not only advise on this field, but also understands the business side of blockchain. Staying up to date on technological advances demonstrates that the client can grow and adapt to new ideas. 30 September/October 2021
Potential Concerns for Law Firms Accepting Cryptocurrencies Many of the concerns surrounding cryptocurrency stems from the uncertainty of an early adopter a. Price Fluctuations One of the leading concerns with accepting cryptocurrency payments—in all industries, not just law firms—is the concern for market volatility as evidenced by crypto’s unprecedented price fluctuations. In 2017, the price of Bitcoin rose to nearly $20,000, a year-over-year increase of over 2,000%. But by late 2018, it had fallen back to $3,000.30 Likewise, BTC hit an all-time high of $65,000 in April 2021 and has recently settled between just under $30,000 and $42,000.31 As a new commodity, the price of crypto can be affected by any number of factors, like “an influx of short-term investors, growing popularity of memecoins like Dogecoin, and even Elon Musk’s Twitter account.”32 The recent development and government recognition of some forms of cryptocurrency may allay these concerns. Over the last few years, stablecoins—cryptocurrency backed by an underlying asset such as a national currency or a precious metal—have been introduced to combat market volatility.33 Tether and USDC are two widely-used stablecoins backed one-to-one to the U.S. dollar, meaning their value only fluctuates with that of the dollar. Companies such as Visa, BlackRock, and Mastercard accept USDC. In mid-2021, El Salvador became the first country to recognize Bitcoin as legal currency,34 and while most countries have not gone that far, most do recognize the legality of using crypto to settle debts.35 The U.S. Supreme Court has even weighed in on crypto, when Justice Stephen Breyer suggested that “perhaps one day employees will be paid in Bitcoin or some other type of cryptocurrency.”36 With more government recognition and further development of stablecoins, the crypto market will become less volatile to price fluctuations. b. Transaction Times and Transaction Costs Another major concern law firms may have
thehoustonlawyer.com
before accepting crypto is transaction time and costs. In 1974, the American Bar Association released a formal opinion stating law firms could accept credit and debit card payments for services; however, most firms still prefer the use of checks over cards.37 Many lawyers do not like accepting credit cards because of their high processing fees (2.0–3.0%). Crypto processing fees, however, are much lower, generally 0.5–1.0%. Moreover, transaction costs for law firms will be low as the company mining the crypto—not the law firm—would be responsible for verifying the transaction. Likewise, processing time will reduce as more people mine. On average, a crypto transaction takes between eleven and twelve minutes to be confirmed. Compare that to the average wire domestic or international transfer which generally takes several hours to one to five business days. But no matter where someone is in the world, vast amounts of crypto can be safely transferred in a matter of minutes. Credit and debit cards are ubiquitous to Gen Z and Millennials, and as these younger generations transition into firm leadership roles, the shift to crypto payments will certainly follow.38 Cryptocurrency is just another shift to online payments for this generation, as they have grown up with the invention of bitcoin followed by its introduction into mainstream media. c. Ethical Issues Lawyers must always consider the ethics behind every client interaction—especially those relating to payments. Very few bar associations (Nebraska, North Carolina, DC, and NYC) have addressed cryptocurrency payments, but for those that have, unreasonable fees, attorney-client business transactions, and client confidentiality tend to be their principal concerns.39 To avoid unreasonable fees, the State Bar of Nebraska, for example, recommends notifying clients that the lawyer will immediately convert the crypto to U.S. dollars at objective market rates immediately upon receipt.40 As crypto blockchains contain a record of who has held a particular coin, law-
yers must also consider client confidentiality (i.e., client identity and where they obtained their crypto) when accepting crypto payments. Some bar associations also stress that a crypto transaction could be considered an attorney-client business transaction; lawyers would therefore be obligated to ensure said transactions were “fair and reasonable.”41 Finally, accepting crypto in escrow or as advance payments can be considered holding client property; lawyers would be expected to exercise their professional judgement in safeguarding these client assets. Conclusion Ultimately, there are significant pragmatic and ethical issues that need to be addressed before the mass adoption of virtual currency at law firms can occur. Broadly speaking, with additional clarity on regulatory issues and further adoption, the progression to virtual currency will likely occur during the course of most of our professional careers. This generally follows the recent evolution of law practice reflected in the digital transformation of our industry in terms of research, filing, and collaboration and even remote depositions and trial during the COVID-19 pandemic. Nonetheless, each law firm must weigh the benefits and the concerns of accepting cryptocurrency payments. While barriers exist with the adoption of any new technology, the challenges outlined in this article should be seriously considered if evaluating virtual currency as a payment option for legal services. One thing is certain—lawyers will be tasked to provide guidance on such issues for companies and they should be prepared to do so. Ali Dhanani is a partner in Baker Botts’ Intellectual Property Litigation group. He is a sought-after speaker and writer and advises companies on blockchain-based development strategies, including in the healthcare and energy industries, to assist them with navigating the current legal landscape and build their intellectual property. Wes Edwards is a third-year student at the University of Georgia School of Law, and he
will join Baker Botts L.L.P. as an associate upon graduation. As a former engineer, he is interested in intellectual property protection and transactions, particularly related to energy and technology. Endnotes
1. Lawrence Wintermeyer, Crypto and Blockchain Startups Set Their Sights on the Global Payment Industry, FORBES (May 27, 2021, 5:10 PM), https://www.forbes.com/ sites/lawrencewintermeyer/2021/05/27/crypto-andblockchain-startups-set-their-sights-on-the-globalpayment-industry/?sh=5c260d8730d0. 2. Ed Grabianowski, How Currency Works, HOWSTUFFWORKS, https://money.howstuffworks.com/currency. htm (last visited Oct. 8, 2021). 3. Sue Chang, Here’s All the Money in the World, In One Chart, MARKETWATCH (Nov. 28, 2017, 5:17 PM), https://www.marketwatch.com/story/this-is-howmuch-money-exists-in-the-entire-world-in-onechart-2015-12-18. 4. Coryanne Hicks, The History of Bitcoin, U.S. NEWS (Sept. 1, 2020, 3:10 PM), https://money.usnews.com/ investing/articles/the-history-of-bitcoin. 5. Id. 6. Id. 7. Id. Countless derivatives, such as non-fungible tokens (“NFTs”), have been created by further modifying the blockchain codes of coins like Ethereum and BTC Cash. 8. MODEL RULES OF PROF’L CONDUCT R. 1.8(a). 9. See TEX. DISCIPLINARY RULES OF PROF’L CONDUCT R. 1.08(a). 10. Kevin Voigt, Bitcoin Wallet: How to Choose the Right One for Your Cryptocurrency, NERDWALLET (Mar. 30, 2021), https://www.nerdwallet.com/article/investing/ best-bitcoin-cryptocurrency-wallet. 11. Id. 12. See id. (describing different types of wallet programs (“hot” storage) and physical devices (“cold” storage)). 13. How to Set Up a Crypto Wallet, COINBASE, www. coinbase.com/learn/tips-and-tutorials/how-to-set-upa-crypto-wallet (last visited Jul. 13, 2021). 14. See, e.g., Crypto Asset Custody for Institutions, COINBASE, https://custody.coinbase.com/ (last visited Oct. 8, 2021). 15. Id. 16. Gemini Custody, GEMINI, www.gemini.com/custody (last visited Oct. 8, 2021). 17. Qualified Custody, BITGO, https://www.bitgo.com/ services/custody/qualified-custody (last visited Oct. 8, 2021). 18. Custody, BITCOIN SUISSE, https://www.bitcoinsuisse. com/vault (last visited Oct. 8, 2021). 19. See Crypto Custodians Guide, SOURCEFORGE, https:// sourceforge.net/software/crypto-custodians/, for a list and guides on the most reliable custodian crypto wallets. 20. Noah Buxton & Jeremy Nau, Evaluating Crypto Accounting Solutions, ARMANINO: WHITEPAGES (Mar. 25, 2019), https://www.armaninollp.com/white-papers/evaluating-crypto-accounting-solutions/. 21. Id. 22. Olga Kharif, Crypto Firms Got More Funding Last Quarter Than In All of 2020, BLOOMBERG (Apr. 1, 2021, 3:49 PM), https://www.bloomberg.com/news/ articles/2021-04-01/crypto-firms-got-more-fundinglast-quarter-than-in-all-of-2020 (“Coinbase Global Inc. . . . is planning a direct listing[.]”). 23. Pippa Stevens, Cryptocurrencies Are Close to Reaching a Big Milestone Versus Gold by One Wall Street Firms Count, CNBC (May 18, 2021, 12:51 PM), https://www. cnbc.com/2021/05/18/cryptocurrencies-are-close-toreaching-a-big-milestone-versus-gold-by-one-wall-
street-firms-count.html. 24. See Zahra Tayeb, More Companies, Including PayPal and Xbox, Are Accepting Bitcoin and Other Cryptocurrencies as Payment. Others Are Weighing Up Their Options, BUS. INSIDER (May 7, 2021, 11:52 AM), https://www. businessinsider.com/more-companies-acceptingbitcoin-cryptocurrency-paypal-starbucks-2021-4; see also Andrew Lisa, 10 Major Companies That Accept Bitcoin, GOBANKINGRATES (June 12, 2021), https:// www.gobankingrates.com/money/business/10-majorcompanies-that-accept-bitcoin/. 25. Cryptocurrency: Musk’s SpaceX to Launch Dogecoin Moon Mission, BBC NEWS (May 10, 2021), https:// www.bbc.com/news/business-57052811. 26. Philip Rosenstein, Quinn Emanuel Begins Accepting Bitcoin Fee Payments, LAW360 (Nov. 5, 2019, 7:18 PM), https://www.law360.com/articles/1217120/quinnemanuel-begins-accepting-bitcoin-fee-payments. 27. Coinbase Pricing and Fees Disclosures, COINBASE, https://help.coinbase.com/en/coinbase/trading-andfunding/pricing-and-fees/fees (last visited Oct. 8, 2021). 28. What Are The Benefits of Blockchain In The Legal Industry?, CONSENSYS, https://consensys.net/blockchainuse-cases/law/ (last visited Oct. 8, 2021) (citing 2018 Legal Trends Report, CLIO, https://www.clio.com/resources/legal-trends/2018-report/). 29. Id.. 30. Charles Bovaird, Bitcoin Price Volatility Reached Its Highest in a Year During May, FORBES (June 2, 2021, 8:00 AM), https://www.forbes.com/sites/ cbovaird/2021/06/02/bitcoin-price-volatility-reachedits-highest-in-a-year-during-may/?sh=641a2bd039e7. 31. Kendall Little, Bitcoin Dropped Below $30,000. Here’s What Investors Can Learn from the Continued Volatility, TIME, June 29, 2021, https://time.com/nextadvisor/ investing/cryptocurrency/bitcoin-drop-below-30kevidence-of-volatility-for-investors/. 32. Id. 33. Paulina Likos, What Are Stablecoins and How Can I Invest In Them?, U.S. NEWS (May 21, 2021, 3:09 PM), https://money.usnews.com/investing/cryptocurrency/ articles/what-are-stablecoins-and-how-can-i-investin-them. 34. Nelson Renteria et. al., In a World First, El Salvador Makes Bitcoin Legal Tender, REUTERS (June 9, 2021, 11:24 PM), https://www.reuters.com/world/americas/el-salvador-approves-first-law-bitcoin-legal-tender-2021-06-09/. 35. See generally Countries Where Bitcoin is Banned or Legal in 2021, CRYPTONEWS, https://cryptonews.com/ guides/countries-in-which-bitcoin-is-banned-or-legal. htm (last visited Oct. 8, 2021). 36. See Wisconsin Central Ltd. v. United States, No. 17–530, slip op. at 3 (U.S. June 21, 2018) (Breyer, J., dissenting) (“Moreover, what we view as money has changed over time.”). 37. Joshua Lenon, The Ethics of Law Firms Accepting Credit Cards, CLIO, https://www.clio.com/blog/law-firmsaccepting-credit-cards/ (last updated Jan. 25, 2021). 38. Udo Mueller, Generation Z: Driving the Adoption of Online Cash, PAYSAFE (Nov. 4, 2019) https://www.paysafe.com/us-en/paysafe-insights/generation-z-drivingthe-adoption-of-online-cash/. 39. Robert A. Schwinger, Lawyers Accepting Virtual Currency: New Money, Old Rules, N.Y.L.J. (Sept. 28, 2020, 12:00 PM), https://www.law.com/newyorklawjournal/ 2020/09/28/lawyers-accepting-virtual-currency-newmoney-old-rules/. 40. Debra Cassens Weiss, Lawyers Can Accept Payment in Bitcoin, Nebraska Ethics Opinion Says, A.B.A., Sept. 18, 2017, https://www.abajournal.com/news/article/lawyers_ can_accept_payment_in_bitcoin_nebraska_ethics_ opinion_says. 41. E.g., N.Y City Bar Ass’n, Formal Op. 2019-5 (2019) (New York), N.C. State Bar, Formal Op. 5 (2019), Herrick K. Lidstone, Jr., Accepting Cryptocurrency as Payment for Legal Fees: Ethical and Practical Considerations, Bus. Law Section (Colorado Bar Ass’n, Denver, CO), Oct. 2018 (Colorado).
thehoustonlawyer.com
September/October 2021
31
By David Gerger and Inmate 80641-379
A Critically Ill Inmate and the Judge Who Heard His Cry:
Cruel Punishment, Compassionate Release
F
ederal judges often sentence defendants with medical problems to serve time in prison. They might need specific medications, ongoing therapy, or have an overdue need for surgery. Judges tell these concerned men and women that the prison will have the resources and facilities to provide for their care. We all want to believe that is true. The U.S. Bureau of Prisons (“BOP”) indeed employs nurses, doctors and other medical staff and runs six medical facilities for inmates, but prisoners have long complained about their treatment. A new law called the First Step Act, is shedding some light on the BOP’s medical competency—or lack thereof. Consider the case of Inmate 80641-379, who I will refer to as “Richard” in this article. On March 13, 2019, he was one of the first releases—if not the very first— under the new law. Richard developed cancer while in prison and his release was a joyous event for the family. I was looking forward to a celebration. But when I saw him the next day, I was shocked. I knew that the prison had neglected his medical treatment for five months since he reported a tiny mass in his neck, but that did not prepare me for what I saw. Richard is a 74-year-old medical doctor. He was twenty-two months into a five-year sentence for health care fraud. He entered prison in excellent health for his age. In October 2018, he noticed a two-centimeter mass in his neck and reported it to his jailers. At that point, the condition was easily treatable. However, it took months for him to see a local doctor for a biopsy. The biopsy confirmed what was then obvious to the eye: a malignant, metastatic melanoma. But he received no treatment. Before 2019, a prisoner with a life-threatening illness could ask the prison administration for an early release. Richard tried that without success, which was not surprising: BOP is notoriously stingy
in granting “compassionate releases.”1 The Department of Justice’s (“DOJ”) own Inspector General found that “BOP’s compassionate release program is poorly managed,” denying release to eligible inmates, with “terminally ill inmates dying before their requests for compassionate release were decided.”2 The First Step Act however, made a historic change. Now, a prisoner can ask their sentencing judge for release if BOP refuses (or ignores the request).3 The court may grant release if it finds “extraordinary and compelling reasons” that are consistent with the purposes of punishment and policies of the U.S. Sentencing Commission. The law lists three non-exclusive examples of “extraordinary and compelling reasons”: (1) terminal illness (or the inmate cannot care for himself because of an irrecoverable is-
sue); (2) a serious deterioration in health due to old age; and (3) incapacitation of the inmate’s spouse or partner, or death or incapacitation of the caregiver of the inmate’s minor children.4 A “terminal illness” is “a serious and advanced illness with an end of life trajectory,” but a probability of death within a specific time period is not required.5 Other extraordinary circumstances can also warrant release.
on March 8, 2019, asserting that his cancer was deadly and that the BOP was illequipped to treat it (even if it had tried to). Without the court option, Richard would die in prison, untreated. Instead, we now had an independent judge and fair-minded prosecutor. The motion was granted. The new law worked.
The ability to go to court has made all the difference. I filed Richard’s motion for compassionate release
thehoustonlawyer.com
September/October 2021
33
In prison, a prisoner is not entitled to the doctor of his choice. Nor to schedule appointments or medicines or surgeries, even for life threatening illnesses. A prisoner is at the mercy of his jailer. That’s why anyone who cares about criminal justice should see a picture of Richard’s neck. And consider this: Richard was a non-violent first offender housed in a low-security prison where he had frequent contact with guards, counselors, administrators, wardens, nurses, and other staff as his cancer visibly grew and grew and grew, untreated. The cancer was real. But the criminal justice system—like any organized social system—operates on a set of aspirations: Justice is blind; People get what they deserve; Prisons provide care for their inmates. These aspirations are often unrealized. Notably, BOP does not even claim to provide adequate or appropriate or reasonable care for the communities in which its prisons are located. Rather BOP only claims to provide “essential [] services... consistent with a correctional environment,” whatever that means.6 Under this standard, Richard received a delayed biopsy and no cancer treatment. Richard is not alone. Since his groundbreaking release, other prisoners have been able to come forward with their own stories. And medical care was inadequate even before the coronavirus pandemic: with COVID-19, the prisons were overrun. Why should we care about felons in prison? Never mind that the legal system suffers all the frailty and arbitrariness and errors of any human endeavor. Or that some inmates are wrongly convicted, or are good people who did something bad, or are serving long sentences for non-violent first offenses. Or that “there but for the grace of God go I.” We should care because an evolved society is judged by how it treats its weakest members, not its heroes. And because compassion uplifts the giver as well as the receiver. In that light, Richard’s case shows off the very worst and the very best of 34 September/October 2021
our criminal justice system: a prison’s neglect of a helpless inmate and a judge who heard his cry. Word spread in the Bureau of Prisons about Richard’s ruling. When the coronavirus pandemic hit in 2020, petitions from inmates in distress skyrocketed. Legal groups such as the National Association of Criminal Defense Lawyers organized counsel to help the helpless. The success of a motion for “compassionate release” depended in large part on the “compassion” of the judge hearing the case. Senior U.S. District Judge Thad Heartfield of the Eastern District of Texas in Beaumont once kept his chambers open over the July 4th holiday to release a dying prisoner to spend his last weeks with his family. Senior U.S. District Judge Nancy Atlas of the Southern District in Houston freed a man she had sentenced sixteen years earlier under a (now repealed) mandatory life sentence. Judges rarely receive any public notice—much less praise—for their rulings (although these judges earned the respect and admiration of discerning members of the Bar). The “reward” for showing compassion is simply to become... a judge who shows compassion. This notion raises one of the central objectives of the Houston Bar Association this bar year: emphasizing the value of pro bono work. There certainly is enough “need” for it in criminal law: most people accused of a federal crime cannot afford to hire a lawyer. But the need is everywhere—for the young and the old, in immigration, housing, family law. Pro bono service is even needed in securities law. Consider the case of a young accountant at Dynegy Corporation who was convicted of securities fraud and was to be sentenced based on the “loss” that his conduct “caused.”7 The DOJ hired the prestigious Brattle Group consulting firm to argue for a definition of loss that was overly broad and would lead to a 24-year “sentencing guideline.” The DOJ was wrong, but the young accountant had no funds to fight it.
thehoustonlawyer.com
Enter Joseph Grundfest – former Commissioner of the U.S. Securities and Exchange Commission, co-founder of a major investment firm, tenured professor at Stanford University and one of the world’s leading experts on securities fraud. He had followed the case and called to volunteer. He brought economists from Cornerstone Research to do the analysis, all without charge. Why? Professor Grundfest gets paid a lot of money in his professional work, but here was an opportunity to put all that to work pro bono. Professor Bala Dharan, an expert on securities fraud at Rice University, also joined the pro bono team. Together, they showed the fallacies of the DOJ/Brattle Group model and the court ruled—in a then-novel and now-leading case—that “loss causation” applies to criminal securities fraud. The Grundfest/Dharan effort was a feel-good pro bono moment that won the case, stopped an excessive sentence, and advanced the law. That doesn’t always happen—in fact, it hardly ever happens. Bad things happen to good people, good things happen to bad people. Our pro bono work won’t change that. But the work has its own “reward”: the “reward” for helping people... is to become a person who helps other people. My fellow authors contributing to this issue of The Houston Lawyer may write about a lawyer’s duty to the profession and community, or the responsibility that comes with privilege and freedom. Those points are critical and true. Add to those this simple one: “The punishment for evil is to be an evil man; While the reward for doin’ good is just to do the good you can.”8 David Gerger is a lawyer at Gerger Hennessy & McFarlane in Houston. In addition to his representation of “Richard,” he represented Dynegy’s Jamie Olis and recruited Professors Grundfest and Dharan to the case. “Richard” practiced medicine for many years in Houston, Texas. Thanks to U.S.
District Judge Kenneth Hoyt, Richard is still alive. Endnotes
1. See Casey N. Ferri, A Stuck Safety Valve: The Inadequacy of Compassionate Release for Elderly Inmates, 43 STETSON L. REV. 197, 219–25 (2013); see generally THE ANSWER IS NO: TOO LITTLE COMPASSIONATE RELEASE IN US FEDERAL PRISONS, HUMAN RIGHTS WATCH & FAMILIES AGAINST MANDATORY MINIMUMS (2012), available at https://lccn.loc.gov/2013478284 (retrieved Aug. 4, 2021). 2. FEDERAL BUREAU OF PRISONS’ COMPASSIONATE RELEASE PROGRAM, U.S. DEP’T OF JUSTICE, OFFICE OF THE INSPECTOR GEN., EVALUATION AND INSPECTIONS DIV. 53 (2013), available at https://oig.justice.gov/ reports/2013/e1306.pdf. 3. See 18 U.S.C.A. § 3582(c)(1)(A) (West 2018). 4. See U.S.S.G. § 1B1.13, Application Note 1(A)-(C) (West 2020). 5. Id. 6. PRIVACY IMPACT ASSESSMENT FOR THE BUREAU ELEC. MED. RECORDS INITIATIVE, FED. BUREAU OF PRISONS 6 (2013), available at bop.gov/foia/docs/bemr.pdf. 7. See Laurie P. Cohen, Court Throws Out 24-Year Sentence in Fraud Case, WALL ST. J., Nov. 2, 2005, https://www. wsj.com/articles/SB113088955647085725 (describing the case of Jamie Olis, an accounting executive at Dynegy, whose 24-year sentence was reduced to six years after the Fifth Circuit Court of Appeals ruled the calculation of shareholder losses used to arrive at Olis’ sentence was overstated). 8. These are lyrics from the song, Conroe 1990, which was written by “David” about the freeing of Clarence Brandley—who was wrongly convicted of murder in 1981—from Texas’ Death Row.
DAMAGES Personal injury Wrongful termination Intellectual property Commercial damages/lost profits Business valuations
When you need a number call our number
281.846.6132
W W W . T H O M A S R O N E Y L L C . C O M
thehoustonlawyer.com
September/October 2021
35
Compiled by Nikki Morris
The Texas Bar Exam:
Is It Time for a Change?
A
nother Texas Bar Exam season has come and gone, and a fresh batch of attorneys is patiently (or perhaps not-so-patiently) awaiting their scores. These students likely spent a grueling summer studying feverishly for a multi-day exam that will decide when and if they are admitted to practice law. This rite of passage is something that is familiar to almost all attorneys across the country as they, too, had to endure the rigors of the bar exam before taking their place at the counsel table. Recent events, however, have called into question the suitability of keeping a tradition that has been in place for decades that many agree does not actually prepare anyone for the practice of law. In my short five years of practice, there has not once been a time when I was required to write a brief based on my memory of the law on a particular subject or go before a judge and answer a tricky multiplechoice question. Yet, this is the task of law school graduates, who, after enduring three
years of the Socratic method, must overcome one more hurdle before they are finally permitted to practice law. For 2020 law school graduates, there were even more hurdles as the COVID-19 pandemic caused even more uncertainty surrounding when and how applicants could sit for the bar. The summer 2020 bar takers had the option of taking an in-person exam in September 2020 or a completely remote version of the exam in October 2020, during which they had the additional stress of being on camera the whole time and fearing that any wayward glance across the room could be mistaken for cheating. These unorthodox conditions added to an already stressful event and called into question whether the traditional bar exam is still relevant, what alternatives the state should consider, and whether the bar exam is an appropriate measure of one’s competency. I sat down with a couple of 2020 graduates and a few more seasoned attorneys to discuss the Texas Bar Exam, possible alternatives, and its impact on professionalism. This is what they had to say. Participants:
Justice Veronica Rivas-Molloy
First Court of Appeals Handwrote Texas Bar Exam in July 2001 in a conference center.
Justice Sarah Beth Landau
First Court of Appeals Handwrote Texas Bar Exam in February 2002 in a conference center.
exam was delayed, it really impacted my motivation to study because I was not sure when or how the bar exam would occur.
Michael Reeder
Partner, Cadwell Clonts & Reeder LLP Handwrote Texas Bar Exam in July 2009 in a conference center.
Alyssa Allen
Associate, Vinson & Elkins Typed Texas Bar Exam in September 2020 in a hotel conference room.
Jo Ann Mazoch
Associate, Baker Hostetler Typed Texas Bar Exam in October 2020 in a hotel room (completely virtual/remote).
The Bar Exam Experience Describe how the COVID-19 pandemic, the 2020 Social Justice Movement, or any other major national cultural events impacted your ability to study and prepare for the bar exam. Alyssa Allen: The pandemic definitely had an impact on my ability to study for and prepare for the bar. There was uncertainty surrounding the entire experience from when, how, and where I would take the bar and study for the bar. I have a small child, and I was not sure whether she would be able to go to school in person. It was really hard to find a quiet place to study at home and the usual coffee shops, library, or other study spaces were not available. Then, when the bar
Jo Ann Mazoch: I assume it made it harder, but I have nothing to compare it to. I do know that once the rumor mill got started that the exam would be canceled, my motivation to study was shot. It also affected me financially because although I had a job lined up, my start date was pushed back and I had not budgeted to not have an income from September to January. Justice Veronica Rivas-Molloy: When I was studying for the exam in June 2001, Tropical Storm Allison hit Houston, bringing a devastating flood to the city. People lost homes and businesses were destroyed. Although it was different than COVID-19, this natural disaster added a lot of stress on students studying for the bar exam at the time. For 2020 bar takers, did you opt to take the bar remotely or in-person? What pros and cons did you weigh before making your decision to choose one over the other? Jo Ann Mazoch: I chose to take the October bar because I was uncertain whether the September bar was going to happen. The October bar was completely virtual and proctored through the camera on my computer. I felt like I had to be very hyper-focused on all my involuntary actions and thinking about where my eyes were going. Alyssa Allen: I took the September bar in person because I wanted to be able to have the paper booklets in front of me. I wasn’t comfortable having to rely solely on my screen for test materials. My understanding from talking to friends is that the virtual option was riddled with issues. You weren’t allowed to get up to use the restroom except for breaks. There were hurricanes coming in and people had fears about losing power. It was a mess.
Traditional Bar Exam: Would you describe the traditional bar exam as an archaic and unnecessary tradition, a useful rite of passage to the practice of law, or something else? And why? Justice Sarah Beth Landau: I am unconvinced it weeds out bad lawyers or identifies good lawyers. It is possible anachronistic gatekeeping. Michael Reeder: The bar exam is an archaic tradition that should be changed. As a bar, we need to determine if lawyers can properly analyze and solve problems, not memorize facts and peculiar laws. Alyssa Allen: I learned a lot by taking the bar, but not necessarily topics I needed to know, and I can only recall so much. There has to be a better way to prepare lawyers. Justice Veronica Rivas-Molloy: I don’t think it is an archaic or unnecessary tradition, but just like everything else, we need to re-evaluate and consider whether the bar exam is still a good practice for licensing new attorneys. We do this in other areas of practice, such as updating our rules of civil procedure and rules of practice. Similarly, we should re-evaluate to determine the success and need for the bar exam in its current form. Jo Ann Mazoch: I find it odd that to be licensed, we have to memorize a bunch of law and regurgitate it. In practice, you would never have to do that, and if you did practice that way, you could lose your license. What, if any, impact has taking the bar exam had on your practice or ability to reach your career goals? Michael Reeder: Beyond being required, the bar exam had no impact on my career. There is little to no substance that I learned for the bar exam that I see in my daily civil litigation practice. Justice Veronica Rivas-Molloy: To some extent preparing for the bar exam ex-
thehoustonlawyer.com
September/October 2021
37
posed me to different areas of the law. Going into law school, I planned to focus on criminal law, but because I knew I had to take the bar exam, I also took classes outside my area of interest. This gave me a broader understanding of the law, which I found beneficial. Alyssa Allen: It was required before I was able to practice and delayed the start of my career. I do not feel like the bar exam did anything to prepare me for my practice area. What, if any, alternative do you feel is preferable to the traditional bar exam? Jo Ann Mazoch: I don’t think the current way we examine people is the best option. The UBE is a good step forward and having more consistency on the exam of what people are taking state to state is helpful. Justice Sarah Beth Landau: I think there should be an apprenticeship option. Michael Reeder: The bar exam should be open book and less time-pressured, where test takers have time to research and analyze problems. Alyssa Allen: I suggest one year of law school and two years of an apprenticeship. There needs to be more practical experience and the ability to start practicing when you graduate. Bar Exam Alternatives Texas recently transferred to the Uniform Bar Exam (UBE). This transfer eliminated the Texas-specific portion of the bar exam and replaced it with a series of lectures available online. How do you feel this transition will impact professionalism among Texas lawyers? Alyssa Allen: I think it’s fine. You will go and learn those things if you’re going to practice Texas law. Jo Ann Mazoch: I don’t think eliminating that aspect of the exam will change how lawyers conduct themselves. To do 38 September/October 2021
well on the exam does not necessarily mean you are absorbing that information. I find myself looking up the Texas Rules of Civil Procedure at least once a week and always double-checking the rules. Justice Sarah Beth Landau: The Texas-specific portion was the bar exam’s greatest claim to relevance, so I am not sure this is a benefit.
isn’t really measuring anything. Justice Veronica Rivas-Molloy: I had not heard of the diploma privilege, but I think it depends on how the program is structured and what courses are required. There needs to be a minimum level of competency and some uniformity across law schools for successful implementation of such a program.
Michael Reeder: Emergency diploma privilege is a fine option if the bar is Michael Reeder: Texas lawyers need confident that any particular law school to be aware of Texas-specific rules and adequately prepares its laws, but the substance does students to be practicing not need to be tested from lawyers. This highlights memory. Texas lawyers need the problem of relying on to know where to find the I don’t think a three-day test to mearight answer and not have it memorized. it is an archaic sure the credentials of a student after three years or unnecessary of school. Several jurisdictions considered employing emergency tradition, but just Justice Sarah Beth Landiploma privilege as an like everything else, dau: I think testing out option for pandemic-affected bar exams. What are your we need to re-eval- diploma privilege during the pandemic would have thoughts on diploma priviuate and consider been humane and comlege, and using mandatory training and mentoring as whether the bar passionate. a permanent alternative exam is still a good What impact, if any, do to the bar exam to ensure practice for licens- you believe admission competence? by diploma privilege will Jo Ann Mazoch: I think the ing new attorneys.” have on professionalism diploma privilege is a little – Justice Veronica Rivas-Molloy among Texas lawyers? extreme. We can all think Alyssa Allen: The bar of one person from a law does not test professionalism. That is school class that we’re glad also has to what the MPRE is for, and I agree we take the bar exam. I think there should should keep the MPRE, but the bar exam be a hurdle but not one as archaic as the should reflect real life. When you look at one currently in place. I like the idea of a the people who get complaints, it is usumore practical means of demonstrating ally not people who just graduated, and that you are ready and capable to pracit is often a communications issue. tice law. But to be licensed just because you went to law school, I don’t agree Jo Ann Mazoch: I can see how it would with that. but I do not think it would be a large impact because the amount of people who Alyssa Allen: I understand the argument would not otherwise be licensed would that we need something, but if law school be small. doesn’t prepare you, then what are we doing in law school? The bar is a gatekeepJustice Sarah Beth Landau: Depending ing mechanism, but the fact is that most on how it is done, mandatory training people pass within the first two tries, so it
thehoustonlawyer.com
‘‘
and mentoring as a condition of entry may actually improve professionalism. Any other thoughts or comments? Alyssa Allen: We need a lawyering skills class or a professionalism class that teaches you things you need to know to practice, like how to approach a boss and how to actually be an attorney. As for the traditional bar exam, when are we going to stop and evaluate—does this make sense anymore? Justice Veronica Rivas-Molloy: For me, the bar exam was just one more test I needed to pass to get through law school. I did not see it as an obstacle to practice or the subject of debate. The discipline and rigor necessary to prepare for the bar exam is not unlike the practice of law. You study, research, work hard, and apply your skills to various legal issues. But there is always room for improvement. In my view, apprenticeship programs are highly valuable, and I can see them as one component of licensure.
Justice Sarah Beth Landau: I think that the pandemic challenged many unexamined ways we previously organized and conducted our lives and livelihoods, including how we credential lawyers. I think it is worth studying whether alternative forms of credentialing (including Texas-law-specific education) could actually improve professionalism and access to justice. Without more information, it is hard to know whether the way we have always done it is the best way or serves as a barrier to entry without any benefit to the level of practice. Michael Reeder: The state bar should have a more active and meaningful role in accrediting Texas law schools so that the bar exam is not used as a measure to determine the competency of its graduates.
Enhance Your Practice Try the HBA advantage.
Nikki Morris is a litigation associate at Baker & Hostetler LLP and a member of The Houston Lawyer editorial board. She sincerely thanks all of the interviewees for providing their comments on this important topic.
www.hba.org
Local Solutions. Global Reach. thehoustonlawyer.com
September/October 2021
39
By Nicole Voyles
Reflections on Serving on the State Bar of Texas Grievance Committee
N
othing causes a practicing attorney to wake up in a panic in the middle of the night more than the fear we have of being sued for malpractice or having a client file a grievance against us. That occurs more often in family law than all other areas of law except for civil cases, which just so happens to be my area of practice. That is why I was excited when the State Bar of Texas designated me as the State Bar Director that was the liaison to the Grievance Committee. I wanted to know how the process worked on both sides. One of my duties was to designate either attorney members or non-attorney (“public”) members to the panel depending on the need. I was surprised at how many people were eager and willing to put in the time and effort to make certain grievances are fairly handled. The district grievance committees are composed of two-thirds lawyer members and one-third public
40 September/October 2021
members. Currently, 357 volunteer grievance committee members serve on seventeen committees throughout Texas. Once I was no longer the District 4 State Bar of Texas Director, I wanted to stay involved in the Grievance Committee as a panel member and asked to be appointed to my district’s grievance committee. My term lasts three years and last year was my first year. In many ways COVID-19 has eliminated some of the work for the job by allowing the committee members to either meet by Zoom or telephone depending on the types of hearings. This has allowed the committee to work more effectively by eliminating the travel time to and from meetings. I would love if the offer to attend by Zoom or phone lasted even after COVID-19 is no longer the concern it is now. My job on the committee requires my appearing one day a month at either investigatory and/or evidentiary hearings and/or a summary disposition panel (“SDP”); the length of these hearings vary
thehoustonlawyer.com
from thirty minutes to up to six hours depending on the cases set to be heard. The preparation for these hearings includes reviewing the hearing packet in detail and being prepared to determine what, if any, disciplinary rules have been violated and how best to handle the case. Being on this committee makes you realize that how efficiently our grievance process is handled, is much due to the amazing State Bar employees that have dedicated their career to assisting the grievance committees. During the 2019-2020 bar year, there were 7,505 grievances filed, so there is a great amount of work to be done. It also makes me cognizant how much our panels of practicing attorneys and public members want to make good decisions on how best to handle the case. They really are committed to making sure both sides feel heard and that their case is resolved with integrity. I believe being on this committee has made me a much better lawyer because I can see what is important to clients in their interactions with their attorney. I have always been quick to respond to clients and opposing counsel, but I have definitely learned even if I can’t provide a full response, I can at least acknowledge I am working on their case and tell them where I am on it. I think many attorneys avoid clients because they simply can’t tell them other cases have blown up and they haven’t had time to do what they promised. I also think it makes me more sensitive to issues opposing counselors have and more willing to offer them the grace and space they need to comply with their responsibilities more effectively. Obviously, the hope at the end of the day is that we never experience the reality of having a grievance filed against us. But know that if it happens, there are people like me making sure your case is diligently handled. Nicole Voyles is a board-certified family lawyer with Laura Dale & Associates P.C. Nicole earned her B.B.A. in Marketing from the University of Texas and her J.D. from Dedman School of Law at Southern Methodist University.
By Kathleen Witkovski
Professionalism Through Inns of Court
A
ttorneys are held to high and assisting with the mentorship and ethical and educational professional development of its memstandards, expected to put bers. The Burta Rhoads Raborn Family their clients’ interests before Law Inn of Court is focused solely on their own, and family law, with members stay up to date on of the Inn ranging from practice areas that are always Pupil members (local law changing. Our obligation to Every relationship students with an interzealously represent our clients est in family law), Associcultivated from ates (typically, lawyers in requires us to be ever-vigilant and constantly improving in the Inn is a new the earlier stages of their our profession. One area of practice), Barristers (Board resource.” Certified family lawyers), improvement that many attorneys under-value is the creand Masters (Fellows of the ation and nurturing of one’s professional American Academy of Matrimonial Lawrelationships with other attorneys in our yers or Board Certified in family law and areas of practice. One of the most rea member of the Judiciary or Professor warding aspects of my practice has been with tenure in family law). The Inn also building professional relationships with has Emeritus members at the “Masters” my colleagues, many of whom have beclassification, who, as determined by the come friends and confidantes. Although Executive Committee, are: (1) unable to I am a member of many organizations, fully participate in the teams as would a the driving force behind the growth of participating Master, and (2) who have those relationships is my participation faithfully fulfilled his or her obligations in the Burta Rhoads Raborn Family Law and duties to the Inn. American Inn of Court. Within the Inn, members are assigned The first American Inns of Court were to diverse teams consisting of every level established in 1980, prompted by Justice of membership and the teams take turns Warren Burger’s vision of adopting the presenting on various family litigation traditional English model of legal aptopics and skills at the monthly meeting. prenticeship to the needs of the AmeriEach presentation is grounded in praccan legal system. The Inns of Court focus ticing those skills with ethics, civility, on improving lawyers’ skills, practicing and professionalism. The structure of the those skills ethically and professionally, Family Law Inn teams ensures that all
‘‘
members have the opportunity to interact with another and to learn from those members with whom you have not met or worked with. There was a distinct shift in my career when I became a member of the Family Law Inn of Court as a younger lawyer. I was able to put faces with the names of colleagues with whom I had not yet practiced. Moreover, I was also able to engage with other family lawyers and judges in a collegial setting where we have the same goal of being better practitioners when we are often otherwise at opposition. Every relationship cultivated from the Inn is a new resource. My membership in the Inn opened the door to more opportunities in the legal community, including leadership roles within the Inn and other organizations. When faced with a challenging case issue, opposing counsel, client, etc., members can feel confident that fellow members will answer their email or pick up their phone call and provide trusted mentorship. Each Inn is named for a local legend and that namesake’s legacy is an important part of the Inn’s identity. The Family Law Inn is dedicated to Burta Rhoads Raborn, a distinguished trial attorney who practiced for over thirty-five years in a time when female trial attorneys were rare. Over the course of her career, Ms. Raborn was recognized with numerous awards and accolades for her professionalism and mentorship and embodied the virtues of the Inns of Court naturally in her practice. Every year, a member of the Inn who had the pleasure of knowing Ms. Raborn shares their story of her mentorship and friendship and welcomes every member to continue down the path she forged to practice at a high level of skill and professionalism to the bench and bar. Kathleen Witkovski is a family law attorney at Murrah & Killough, PLLC, a member of the Burta Rhoads Raborn Inn of Court, and a Board member of the Houston Bar Association Family Law Section.
thehoustonlawyer.com
September/October 2021
41
VETERAN SPOTLIGHT
The Honorable DaSean Jones
“A veteran is someone who has sacrificed repeatedly in ways that most of the population cannot and will never truly understand.”
A
By Anietie Akpan
millennial veteran who continues to serve in the military as an Army Judge Advocate, the Honorable DaSean Jones has seemingly perfected the delicate balance of serving his country, his courtroom, and his family. At his young age, Judge Jones is already a highly decorated twenty-year military veteran who over the course of his career has been decorated with innumerable commendations and awards, including but not limited to the Combat Action Badge, Meritorious Service Medal, the Global War on Terrorism Expeditionary Medal, the Parachutist Badge, and the Bronze Star Medal with one oak leaf cluster. In September 2021, he was selected for promotion to Lieutenant Colonel. As presiding judge of Harris County’s 180th Criminal Court, Judge Jones presides over felony criminal cases. Prior to his election to the bench on November 6, 2018, Judge Jones was a The Hon. DaSean Jones trial lawyer, practicing in the areas of criminal defense, employment, and personal injury. By the time he was elected, he had also served as a member of the U.S. Army for seventeen years, with his early years being spent as a Field Artillery Officer. “I selected the Army because it was the best part of the military,” shared Judge Jones when asked which military branch he served in and why. But it was the valiant service of his father—a non-commissioned officer who served in the Armor (tanks) Branch for over twenty years— that served as Judge Jones’ greatest inspiration to join the U.S. Army: “My dad was my biggest influence,” Judge Jones explained, “I really enjoyed the opportunities I had going with him to work on some occasions while he was stationed at Fort Hood. [He] worked on the M1A1 tank. He would be out training for weeks at a time but did a fairly good job of sharing his work life with me. So, at a young age I was able to play on tanks and simulations. I got hooked.” The important lesson demonstrated by his father of balancing work, life, and family is one that Judge Jones has successfully integrated into managing his judicial and military obligations, as well as taking care of his own young family. Though the dialogue of grappling with worklife balance has been exacerbated by the pandemic, this dialogue usually does not account for the work-life experiences of those in military service. Most work of the military requires the presence of a person; one can’t always phone it in or do it online (as those of us privileged to work remotely this past year have been able to do). The reality is that work-life balance is not the same in military life as in civilian life. “It is 42 September/October 2021
thehoustonlawyer.com
a delicate balance,” explained Judge Jones, “In all honesty it can be like having two full-time jobs.” He shared that last year, his wife–Houstonbased attorney Audia Jones–was set to have her baby shower while he was on duty in another state. Between the supportive efforts of his family, friends, and military unit, he was able to get back in time to attend the celebratory occasion, only to have to immediately head back to duty after only being able to attend for a couple of hours. In addition to balancing his military service with family life, Judge Jones maintains robust involvement with veterans-based community organizations as a Bronze Life Legacy Member of Veterans of Foreign Wars, and as a member of the American Legion. “My core involvement with veterans is more personal,” Judge Jones shared, “I have deployed with many other servicemembers and within our circle[,] we continually check on each other and do our best to pour into each other’s lives.” One particularly important point that Judge Jones explained was the negative societal attitudes and perceptions toward the military community, especially regarding harmful stereotypes about over-drinking: “I will never forget the outrage I felt in court years ago when I was representing a veteran client and the opposing lawyer stated that ‘all veterans drink too much.’ This is a stereotype, and to make life-altering decisions based upon such generalizations is downright sickening. A young person goes and risks their life, endures physical and mental horrors, and the response they get when they return is ‘you all drink too much.’” This sadly reflects a pattern of people in positions of authority who have rooted their opinions in media and entertainment companies’ narrow portrayal of servicemembers. Doing so is a great discourtesy to the gravity of the sacrifices that our military veterans have made. Those sacrifices are something “that most of the population cannot and will never truly understand,” Judge Jones stated. In reflecting on the life lessons acquired through his military service, Judge Jones emphasizes the importance of perseverance (“[S] ometimes there is no second option. There should always be a will to overcome life’s adversities.”) and staying focused (“[O]ne must focus on their goals and design a result-driven pathway. Too often people lose focus and are sidetracked by obstacles that are just part of the journey. Hope for the best, prepare for the worst and follow the rules, do not cut corners personally or professionally.”). Two important virtues that we all should remember to employ as we navigate challenges in our lives. As a father, a husband, a member of the judiciary and the U.S. military, Judge Jones embodies perseverance and focus. With over two de-
VETERAN SPOTLIGHT cades of experience, including combat tours, he represents the best of soldier-citizens with empathetic spirits who demonstrate tireless dedication to their families, communities, and country.
Anietie Akpan is the Editor-in-Chief of The Houston Lawyer. She is staff counsel for the Metropolitan Transit Authority of Harris County, Texas (METRO).
E. Derick Mendoza
“In my opinion, an effective leader must know how to serve first. The military taught me to make those sacrifices for the good of the organization; your soldiers come before you.”
G
By Tara Shockley
rowing up, Derick Mendoza was inspired by reading about military commanders and heroes, real and fictional, throughout history. But the first person who influenced his decision to later serve in the military was his father. “He has always been very disciplined and tough; he raised my brothers and me in that manner,” Derick said. Derick is a partner at Linebarger Goggan Blair & Sampson LLP, where he focuses on government receivables collection. He has been practicing for 19 years, but his path to the law involved military service along the way, and he has never regretted that decision. When Derick graduated from high school, he thought about joining the United States Marine Corps instead of attending college. While E. Derick Mendoza his father supported the idea, his mother and brothers convinced him to try to put his military aspirations on hold and attend college. “I knew I wanted to be a lawyer, so I decided to go to college, but joining the military was always on my mind,” said Derick. During his second year of law school, a friend told him that the Judge Advocate General Corps (U.S. Army, Air Force, Navy and Marines) was visiting campus to talk to law students about career paths in the military. “I realized this might be fate, and the perfect opportunity to revisit my desire to serve in the Armed Forces, but as a military officer and lawyer,” Derick said. From speaking to each branch, Derick learned the Army provided the most flexible avenue to serve while he finished his third year of law school. Derick decided to first serve as an enlisted soldier in the Army Reserves to gain a better experience of military life and completed his basic training at Fort Benning, Georgia, the summer after his second year of law school, where he served for six years. “I felt it would make me a more effective leader to serve in the enlisted ranks before the possibility of becoming an officer once I completed law school, but I wanted to serve in some capacity regardless of whatever I decided in the future,” he said. After graduating from law school and passing the bar, he focused on his civilian law career, community, and family for a while. “With the state of the world at the time, I decided I would
rather be deployed as an Officer if that was to be my destiny,” Derick said. “I then got commissioned in the U.S. Army Reserve JAG Corp and served roughly 10 years as an officer.” By the time he was honorably discharged, Derick had achieved the rank of Major (O-4). He also attained a Level 3 Certification in Modern Army Combatives, where he served as one of his unit’s instructors. He eventually served as a Judge Advocate Recruiting Officer, where he interviewed and made recommendations for future Judge Advocates. Throughout his career, Derick earned a long list of awards and achievements for his service. He was awarded the Army Achievement Medal and the Army Commendation Medal on multiple occasions, as well as the Outstanding Volunteer Service Medal. He was twice awarded the Meritorious Service Medal. He was the Reserve Officers Association—Texas Chapter Most Outstanding Junior Officer and one of the nation’s top 5 Most Outstanding Junior Officers and a Major General Strom Thurmond Award Candidate in 2011. Leadership, teamwork, and matching personnel with skill sets are all lessons that Derick says he learned in the military and puts into practice in his legal career and law office. “Being an officer and leading a team really helped me develop my leadership skills and most importantly, taught me the value of bringing out the best in others,” he said. It is important to show appreciation and give credit to those who make real contributions. Derick said he also learned the importance of staying healthy and getting good exercise, since “you learn a lot more about your body when you have to maintain fitness standards and train in different conditions.” Although Derick believes serving in the military is a tremendous honor, he realizes that veterans often face difficulties with their health and well-being, including suffering from posttraumatic stress disorder, depression, anxiety, alcohol abuse, and thoughts of suicide. “It’s extremely important that we work to acknowledge and take good care of our veterans that sacrificed so much for us to have a better life,” Derick said. Through his law practice, Derick often interacts with school districts and municipalities, and gets the opportunity to speak to veterans and discuss the positive impact their service has made in our country. He also attends high school fairs to discuss the practice of law and serving in the military. thehoustonlawyer.com
September/October 2021
43
VETERAN SPOTLIGHT Derick acknowledges it was a challenge to balance his career and personal life with military Join the Houston Bar service. As a Reservist, Association’s Military & you are still expected to Veterans Committee maintain the same physical fitness standards as acEstablished by HBA President Jennifer tive duty military, as well Hasley in the 2021-2022 bar year, this as stay trained in the job new committee provides opportunities skills that would apply if for networking and service, promotes a Reservist is deployed or placed on active duty. The collegiality among attorneys who are time commitment is often serving or who have served in all more than one weekend Judge DaSean Jones and Derick Mendoza served together branches of the military, and offers a month and two weeks in the 1st Legal Support Organization (1st LSO)—Houston opportunities to serve other veterans. during the year, and Der- Team. They are pictured here at a training exercise. ick says he “missed a lot of birthdays and holidays in my time.” Co-chairs: “Being a veteran is one of the greatest honors of my life,” Derick Randy Clark, Houston Volunteer Lawyers said. “It’s one of the best feelings to be part of a group with brothers Jonny Havens, Allen & Havens and sisters from different walks of life that at least have one thing in Rick Houghton, Smyser Kaplan & Veselka, L.L.P. common—we volunteered to wear the uniform and give back to a country that has given us so much.” Tara Shockley is the associate executive director of the Houston Bar Association and serves as managing editor of The Houston Lawyer.
44 September/October 2021
thehoustonlawyer.com
To join or find out more, contact Tara Shockley at taras@hba.org or 713-759-1133
thehoustonlawyer.com
September/October 2021
45
SECTION spotlight
T
The Houston Lawyer
By Greg Heath
The Mergers and Acquisitions Section
he Mergers and Acquisitions Section is dedicated to connecting attorneys and educating section members about the latest trends in negotiating and documenting business acquisitions, divestitures, mergers, and related transactions. The Section places a heavy emphasis on education, and hosts a number of events throughout the year, including monthly educational lunches, to make practitioners aware of the cutting-edge issues, best practice trends, and topics of particular interest for M&A attorneys. This year, sessions included a particular emphasis on COVID-19’s effects on M&A markets. Though the Section tentatively intends to host the educational lunches in early 2022, hosting virtual lunches has had its benefits. Meetings typically have between 20-40 attendees, but the ease and convenience of virtual lunches has led to record-setting attendance. Though Section members The M&A Section webpage at HBA.org are typically attorneys in the corporate transactional space, a variety of professionals speak at the Section’s meetings and CLE programs, including non-lawyers such as investment bankers and other service providers in the M&A space, including corporate agents and publishers of surveys on M&A market terms. Over the past year, the Section has had to adjust to the ups and downs of COVID-19’s impact on the market. In March and April 2020, the pandemic had a significant impact on clients. It was very difficult for clients to complete basic elements of a transaction, such as traditional due diligence elements that are typically conducted in-person. Companies eying a merger or acquisition had to learn how to get to know a target operationally and personally on a remote basis. Over the past year, law firms and
46 September/October 2021
thehoustonlawyer.com
companies have become comfortable getting up-to-speed on a target virtually. Now that over a year has passed since COVID-19 initially halted many pending and potential transactions, deal speed has increased significantly. Many aspects of M&A that previously required travel and in-person meetings are now conducted remotely and, in many ways, are becoming more efficient than prior to the pandemic. Recently, the Section has seen a significant acceleration of business, and for many, M&A activity has hit an alltime high. The increased activity is likely a result of the pent-up demand of the slowdown that occurred at the onset of the pandemic, financial buyers looking to put capital to work following a pause in activity, and accessible debt markets with very attractive interest rates. At the same time, sellers have concerns about potential changes in capital gains rates. The combination of these trends has made the perfect storm for transactions, as both buyers and sellers are eager to transact. Unlike early in the pandemic, we have yet to see the Delta variant have a negative impact on M&A markets, and the Section anticipates deal momentum to continue through at least the end of the year. If you are interested in joining the Mergers and Acquisition Section, please visit the HBA’s website at hba.org/mergers for more information. Greg Heath is a corporate partner at Locke Lord LLP and concentrates his practice in mergers, acquisitions, divestitures, joint ventures, corporate restructurings, private equity financing and other general corporate matters.
A Profile
in pro f e s s i o n a l i s m
T
Dwayne L. Mason, Shareholder Head, Texas IP Litigation, Greenberg Traurig LLP
hroughout the course of my career, there are a few things that over the years have shaped me into who I am today. Primarily, my Bible is always close by and I am guided by my faith! Against this backdrop, the culmination of my life experiences has taught me much about what it means to be professional. Professionalism begins with recognizing your individual accountability. As attorneys, it is important that we hold ourselves accountable to the codes of professional conduct, our oath, clients, and community. As a patent attorney, I must consider the rules, duties, and obligations under both the State Bar of Texas and the United States Patent and Trademark Office. We must first become accountable to ourselves, and all we say and do. Whether we are defending a client in the courtroom, mentoring the next generation of legal minds, or speaking to a room of peers, we must do so with conviction and, many times, with self-restraint no matter how “ugly” an opposing party may get. Giving back is an especially vital component of professionalism. This is that much truer for diverse individuals like me who have reached a certain level of professionalism. Recognizing that, as an African American man and lawyer, I have taken every opportunity presented to help others along their journey to professionalism. Next, we must also be accountable for our actions because these indeed can be “louder” than our words. Do the things that you do correlate to what you say? Or do they imply something different? This is important because often how others perceive you becomes your reality. Finally, we must be accountable for our thoughts, because what we think affects what we say and do, and ultimately the person we become and the legacy we leave behind. `Accountability begets professionalism because it allows you to continuously say, do, and think in manner that always puts forth your true and best self.
thehoustonlawyer.com
September/October 2021
47
A Profile in Professionalism:
Law in the Family
A
The Beck/Harris Family
The Houston Lawyer
strong commitment to public service has always been important for the Beck/Harris family. David J. Beck, a founder of Beck Redden LLP and a trial lawyer, is a former State Bar President. He has received the State Bar Litigation Section’s Luther (Luke) H. Soules Award, the American Inns of Court Professionalism Award for the Fifth Circuit, and the HBA’s Justice Eugene A. Cook Professionalism Award. David’s wife, Judy Beck, served in multiple volunteer roles in the HBA Auxiliary. Daughter Lauren Harris is a partner with Porter Hedges LLP where she practices appellate law. She has served as Chair of the HBA Appellate Practice Section, Chair of the International Association of Defense Counsel’s Appellate and Amicus Committees, and has also served on the Board of the Junior League of Houston. Warren Harris is a partner at Bracewell LLP and head of the firm’s appellate group. Warren has served as President of the HBA and the Texas Supreme Court Historical Society and as Chair of the State Bar and HBA Appellate Sections.
sons has made the practice of law a most enjoyable experience for me. In the words of one of Ronnie Milsap’s hit songs, “I wouldn’t have missed it for the world.”
Lauren Harris: The importance of community service was instilled in me at a young age. I watched my parents volunteer through our church, school, and through my father’s law practice and bar association work. My parents routinely involved me and my siblings in those community service opportunities. Most of our family vacations were also bar-related, so I grew up with other kids and family friends who were also taught the same core values. Warren and I have tried to foster that same commitment in our own children as well. Our son William is an Eagle Scout who has engaged in numerous community volunteer projects and received several Presidential Service Awards. Our David J. Beck: As the first person in [Top] David and Judy Beck in Berlin. [Bottom] Warren and Lauren daughter Elizabeth is also working on her final service project for her my family to attend college, you can Harris with children Walker, Elizabeth, Caroline and William. Girl Scout Gold Award and serves as a community service liaison imagine the unbridled joy of raising my right hand, taking the oath, and service project leader at her school. We are proud that all our and becoming a lawyer. Frankly, the practice of law has provided children recognize the importance of volunteerism and are actively me with opportunities and experiences I never would have dreamed engaged in the community. of, much less contemplated. While a new associate at Fulbright & Jaworski, Colonel Leon Jaworski, former Nuremberg and Watergate Warren Harris: I served as a briefing attorney for Texas Supreme Prosecutor, met with several of us and emphatically explained that Court Justice Eugene Cook. I worked with him on the Texas Lawwe, as lawyers, would be accorded certain privileges that few others yer’s Creed, along with Fred Hagans, co-chair of the Court’s Advisoin society had, but as a result we also had extraordinary obligations, ry Committee on Professionalism, and others who wrote the creed. ethical and otherwise, to our clients, to our law firm, to our family, This taught me the importance of professionalism and the need to and to the community in which we lived. The clear implication was maintain public confidence in our profession and the rule of law. I that if we were unwilling to honor all of those obligations, we did have tried to live this in my daily law practice. As HBA President, I not have much of a future with the firm. I was blessed to have excelexpanded professionalism in the bar. At my request, the HBA board lent mentors at Fulbright like Leon Jaworski, Kraft Eidman, Jerry created an award, named in honor of Justice Cook, to recognize lawWalker, and others. They taught me that I would confront all types yers who demonstrate lifelong professionalism. I also believe as proof people in the practice of law, but that regardless of what I thought fessionals we must educate the public, and I enjoy spending time in of someone, it was imperative that I treated them with respect. I also the classroom teaching young people about lawyers and the rule of was taught to always act in a professional manner—not just preach law. Being a lawyer is a privilege and we must all work to be profesit. And that means acting professionally with opposing counsel, as sionals in practice and in our community. well as with the people with whom you work. Following those les48 September/October 2021
thehoustonlawyer.com
Equal Access Champions The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers. Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Akin Gump Strauss Hauer & Feld LLP Baker Botts L.L.P. BakerHostetler LLP Beck Redden LLP Blank Rome LLP Bracewell LLP Law Office of David Hsu Brogden and Associates Travis Bryan Law Group, PLLC Burford Perry, LLP CenterPoint Energy, Inc. Chamberlain Hrdlicka Chevron USA Dentons US LLP The Ericksen Law Firm Eversheds Sutherland US LLP Exxon Mobil Corporation Fleurinord Law PLLC Foley & Lardner LLP Frye and Benavidez, PLLC Fuqua & Associates, P.C. Gibbs & Bruns LLP Gibson, Dunn & Crutcher LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Halliburton Energy Hasley Scarano, L.L.P. Haynes and Boone, L.L.P. Hunton Andrews Kurth LLP Jackson Walker L.L.P. Jenkins & Kamin, L.L.P. The Jurek Law Group, PLLC Katine & Nechman L.L.P. Kean Miller LLP Law Firm of Min Gyu Kim PLLC
King & Spalding LLP Kirkland & Ellis LLP KoonsFuller, P.C. The LaFitte Law Group, PLLC Locke Lord LLP LyondellBasell Industries Martin R.G. Marasigan Law Offices Marathon Oil Company McDowell & Hetherington LLP McGarvey PLLC Morgan, Lewis & Bockius LLP Norton Rose Fulbright US LLP Ogletree, Deakins, Nash, Smoak & Stewart P.C. Rita Pattni, Attorney at Law Porter Hedges LLP Law Office of Robert E. Price Rapp & Krock, PC Reed Smith LLP Royston, Rayzor, Vickery & Williams, LLP Sanchez Law Firm Shell Oil Company Shortt & Nguyen, P.C. Sidley Austin LLP Angela Solice, Attorney at Law Sorrels Law Squire Patton Boggs Diane C. Treich, Attorney at Law Law Office of Norma Levine Trusch Vinson & Elkins LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Law Office of Cindi L. Wiggins, J.D. Wilson, Cribbs, & Goren, P.C. Winstead PC Winston & Strawn LLP Yetter Coleman LLP thehoustonlawyer.com
September/October 2021
49
A Profile in Professionalism:
Law in the Family
The Houston Lawyer
W
The Holmes/Archer Family
complex transactions—staying true to the theme of making a tanhen Patricia Hunt Holmes started law school at the gible and meaningful contribution. She excelled—first at Baker Botts University of Houston, her oldest daughter, Hillary and now at Gibson Dunn, where she co-chairs the capital markets Holmes, was three years old. Three years later, Hillpractice group and is top-ranked ary sat on her lap during the swearing in ceremony nationwide for her capital markets for the State Bar, raising her right hand to take the and corporate practice. In addition, oath of a Texas lawyer, just like her mother. Twenty some years later, she has a passionate commitment Pat stood next to her daughter during her swearing in ceremony for to pro bono work in the commuthe State Bar, once again raising her hand to take the oath. nity. Helping each other in their professional endeavours has been the At the beginning of her first year pattern for the two women. Pat spent her 35-plus year legal career as a at the University of Pennsylvania paralegal and a public finance lawyer Law School, Hillary met one of at Vinson & Elkins. She specialized the few other Texans in the school, in financing capital projects for large Matt Archer. Matt was from a small non-profit organizations like the town in the panhandle of Texas and YMCA and Methodist Hospital. A wore boots and jeans and drove a big few years ago, she retired and began a pickup truck on the narrow cobblenew career as a professional novelist stone streets of Philly. He was also and amateur golfer. In June, Hillary one of the top students at the school. hosted the book launch for Pat’s most When Hillary forgot her wallet one recent novel Crude Ambition, which day, Matt paid for her lunch in the is a story of ambitious people in law school cafeteria, and they have been and oil. together ever since. Although he had As a child, Hillary watched and applanned to take a job after graduation preciated how fulfilling her mother’s with Gibson Dunn’s Dallas office, career was for her, even when it required being at the office for several [Top] Hillary with her mother, Pat Holmes. [Bottom] Hillary and Matt Matt rearranged his plans and went to work at Baker Botts in Houston. days straight. As they drove through hiking with sons Luke and Jack. They dated all through Hillary’s years at Penn and during his first Houston in the family Suburban, her mother would point out hospiyears of practice as a projects lawyer in Saudi Arabia. When Hillary tals and other buildings around Houston that she had financed and graduated and also joined Baker Botts, they worked in different pracsay “Mommy helped build that.” Hillary loved the idea of making a tice areas but only two offices apart. They eventually married, made tangible and meaningful contribution to her community through a lepartner and developed their law practices. Eventually, each of them gal career. She spent several summers in high school, college and law took the exciting opportunity to serve as founding partners of the school interning with the City Attorney, Fulbright & Jaworski, and Houston offices of Orrick Herrington and Gibson Dunn. Throughout Akin Gump, always focusing on public finance. The Fulbright lawtheir 21 years together, mutual respect, compassionate support and a yers would bring Hillary to closings and her mother would inevitably good laugh have been at the core of their relationship. Matt and Hillbe on the other side of the table. Clients loved to make jokes about ary recognize that it takes a true partnership to support two successseeing mother and daughter on opposite sides of the same deal and ful and busy legal careers, while raising happy and grounded children “how much the little girl has grown.” In law school, Hillary interned and still finding time for each other. with the City of Philadelphia Airport, preparing the offering docuHillary and Matt have two boys, Jack (13) and Luke (9). Hillary ments for a bond financing. It seemed like she was destined to become likes to point out to her children that she is grateful she found a career a public finance attorney. The public finance bar is relatively small, that she loves—work she is excited to do every day. Jack currently however, and Pat was not disappointed when Hillary concluded at the wants to be a professional football player or downhill skier and Luke end of law school that it was probably not a great idea for family relais considering a professional golf career or becoming a Lego Master. tions to build her career sitting opposite her mother in deals. She fell Whether the legal dynasty will expand is not known at this time, but in love with capital markets and corporate work, helping companies we can only hope. raise money to develop their business and counselling them through 50 September/October 2021
thehoustonlawyer.com
Join the HBA 100 Club! The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Ajamie LLP Alvarez Stauffer Bremer PLLC Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Berg & Androphy Bradley Arant Boult Cummings LLP Buck Keenan LLP Bush & Ramirez, PLLC Christian Levine Law Group, LLC Coats | Rose Crady, Jewett, McCulley & Houren, LLP De Lange Hudspeth McConnell & Tibbets LLP Dentons US LLP Devlin Naylor & Turbyfill PLLC Dobrowski, Larkin & Stafford, L.L.P. Doyle Restrepo Harvin & Robbins LLP Ewing & Jones, PLLC Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins Fogler, Brar, O’Neil & Gray LLP Frank, Elmore, Lievens, Slaughter & Turet, L.L.P. Funderburk Funderburk Courtois, LLP Germer PLLC Givens & Johnston PLLC Gordon Rees Scully & Mansukhani Henke, Williams & Boll, LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Horne Rota Moos LLP Hughes, Watters & Askanase, L.L.P. Husch Blackwell LLP Irelan McDaniel, PLLC Jackson Lewis P.C. Jenkins & Kamin PC Johnson DeLuca Kurisky & Gould, P.C. Jordan, Lynch & Cancienne PLLC Kane Russell Coleman & Logan PC
Kean | Miller LLP Kilpatrick Townsend & Stockton LLP KoonsFuller, PC Law Feehan Adams LLP Linebarger Goggan Blair & Sampson, LLP Lorance Thompson, P.C. Liskow & Lewis McGinnis Lochridge McGuireWoods LLP McKool Smith MehaffyWeber PC Morris Lendais Hollrah & Snowden Murrah & Killough, PLLC Nathan Sommers Jacobs PC Ogletree Deakins Nash Smoak & Stewart, P.C. Paranjpe Mahadass Ruemke LLP Peckar & Abramson, P.C. Phelps Dunbar LLP Pillsbury Winthrop Shaw Pittman LLP Pipkin Ferguson PLLC Ramey, Chandler, Quinn & Zito, P.C. Rapp & Krock, PC Reynolds Frizzell LLP Roach & Newton, L.L.P. Ross Banks May Cron & Cavin PC Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Page & Harding, L.L.P. Scott, Clawater & Houston, L.L.P. Shannon Martin Finkelstein Alvarado & Dunne, P.C. Shearman & Sterling LLP Shellist | Lazarz | Slobin LLP Shipley Snell Montgomery LLP Smith Murdaugh Little & Bonham LLP Sorrels Law Spencer Fane LLP
Sponsel Miller Greenberg PLLC Strong Pipkin Bissell & Ledyard LLP Stuart PC Taunton Snyder & Parish Taylor Book Allen & Morris Law Firm Thompson & Horton LLP Tindall England PC Tracey & Fox Law Firm Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP West Mermis, PLLC Weycer, Kaplan, Pulaski & Zuber, PC Williams Hart Boundas Easterby LLP Wilson Cribbs & Goren PC Wright Abshire, Attorneys, PC Wright Close & Barger, LLP Ytterberg Deery Knull LLP Zukowski, Bresenhan & Piazza L.L.P. Firms of 25-49 Attorneys Adams and Reese LLP Andrews Myers, P.C. Beck Redden LLP BoyarMiller Cokinos | Young Gibbs & Bruns LLP Hogan Lovells US LLP Littler Mendelson P.C. Martin, Disiere, Jefferson & Wisdom McDowell & Hetherington LLP Yetter Coleman LLP Firms of 50-99 Attorneys Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. BakerHostetler LLP Brown Sims, P.C. Chamberlain Hrdlicka Greenberg Traurig, LLP Haynes and Boone, LLP Jackson Walker L.L.P.
thehoustonlawyer.com
Morgan, Lewis & Bockius LLP Susman Godfrey LLP Winstead PC Firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Porter Hedges LLP Vinson & Elkins LLP Corporate Legal Departments CenterPoint Energy EOG Resources, Inc. MAXXAM, Inc. Plains All American Pipeline, L.P. Quantlab Financial, LLC Rice University S & B Engineers and Constructors, Ltd. Law School Faculty South Texas College of Law Houston Thurgood Marshall School of Law University of Houston Law Center Government Agencies Harris County Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County, Texas 1st Court of Appeals 14th Court of Appeals
September/October 2021
51
OFF THE RECORD
The Pod:
Ruby Powers’ Pandemic Learning Experiment
W
The Houston Lawyer
By Liz Furlow and Katya Nikitina
of five kids—three boys and two girls—in the 2nd, 4th, and 5th hen many business and public places closed in regrades. sponse to COVID-19 in March 2020, schools were Powers worked with the other parents to list an opening for the among them. Parents were faced with the difficult teacher position and soon found a qualified candidate online. The choice of how to continue to provide for their chilfamilies also worked together to equitably divide costs and to work dren’s education. Many parents had to juggle childout the detail of payment, payroll, and taxes. As the only self-emcare, remote schooling, and adjusting to working in a new, remote ployed person in the pod—and with environment. experience in the education field— Ruby Powers,1 a Houston imPowers advised on logistics and legal migration attorney, decided to points. She drafted Covid protocols experiment. By the time Summer and teacher employment agreements, 2020 arrived, Powers understood ran background checks on the canthat schools were likely to remain didates and checked references. Soon operating remotely through the enough, the pod was up and running, fall. Over the summer, she began divided into six-week terms. to plan what to do with the fall. The system worked well. Powers The goal was to keep her children recalls that they balanced the chilhealthy and safe—but with a betdren’s individual curricula with other ter vision of how she could achieve Ruby with Rex (10) and Violet (8) Powers forms of learning: on some days, the those goals while keeping her chilkids would quiz each other with flash dren on track. Throughout the cards and play games while the teachsummer, she paid attention to new er floated between the students and ideas that were swirling around supervised. The pod reminded her of alternative educational opportuthe stories she’d heard from her grandnities in the time of COVID-19. parents, who all attended a one-room Words began to circle about “small schoolhouse in rural Missouri. “This schools,” “schools at home,” and was our happy survival and the kids “pods.” liked being together,” she says. “[T]hey “Pod” struck her as funny. What got to be in a little school environment did it mean and what would it look where they got to be with other kids.” like? She researched and learned Celebrating the end of term with a fondue party. While working the pod system, Powers also continued to run her that it was a micro-school in which a small number of kids—even firm remotely. She had managed her firm for 12 years, including those of different ages—could learn together at home. There were one year remotely from Dubai, and during COVID had overseen many considerations to weigh: if she made a pod of her own kids seven full-time employees. She was taking care to make sure COwith kids at different schools, how would they align schedules, culVID concerns were addressed, while also taking care that the firm tures, and teachers? Would everyone agree to follow Covid protomet deadlines, made payroll, and addressed all the many aspects of cols, to be friendly? Powers also had to consider financial points: running a small business. “We started working remotely 100% on how much would this cost, and was it worth the investment? Each March 13, 2020. And I only came back in April of 2021, so I went of these data points had to be considered to find a proper fit. for 13 months without coming into the office.” By August 2020, she had found two other families with preferences that paralleled her own. Collectively, the pod would consist Continued on page 56 52 September/October 2021
thehoustonlawyer.com
Committee spotlight
The Professionalism Committee:
Developing the Bar Through Mentorship and Education
A
By Michael Reeder and Seepan V. Parseghian
s work-from-home, court closures, and Zoom dockets, hearings, and meetings continue to be common practice, the HBA’s Professionalism Committee wants to help foster mentorship relationships that are sorely needed given the lack of in-person events. If you are looking to mentor a junior attorney, or you are in need of a mentor in your practice area, please keep reading and sign up for the HBA Mentor Mentee Program. The Committee was established to improve the quality of the bar, foster civility between members of the legal community, and build public trust in the legal profession. Beyond mentorship, Committee members work on a number of initiatives, including a commemoration of the Texas Day of Civility in the Law, providing CLE ethics and professionalism programming. In response to COVID-19, the Committee transitioned its programming online. One CLE program focused on professionalism in the Zoom world and the new social, professional, and ethical norms of practicing law while working from home. The Texas Day of Civility in the Law, hosted online on April 16, 2021, featured a judicial panel discussion by Hon. Sarah Beth Landau, Hon. Tristan Longino, Claudia Frost, and David Oelman, and a recording is available online for anyone who missed the program. As mentioned, the Committee’s driving effort is its mentorship program, which was established in 1996 and has matched over 1,200 young attorneys with mentors since its inception. The Committee recognized that existing programs focused on connecting law students with attorneys, but there was a need to help practicing junior attorneys, especially those outside of larger law firm practices, find mentors for their careers. Thus, the Mentor-Mentee Program was born, becoming one of the few mentoring programs that addresses the value of connecting newly minted attorneys with experienced lawyers practicing in the same field.
Junior attorneys who have been licensed for fewer than five years are able to specify their own particular interests and preferences, including area of practice, areas of Houston to meet, and the greatest benefit they hope to gain from the program. The Committee recruits mentor attorneys from all practice groups and parts of town so that mentors can be carefully paired with mentees. Attorneys who are members of the HBA, have been practicing for five or more years, and can commit to meeting with an assigned mentee for at least one hour per month are eligible to become mentors. Engaging mentors and mentees in the program has become more difficult with Covid-19, as many prior recruits—both mentees and mentors—often learned of the program by word of mouth. Last year, the Committee was only able to make 19 matches, down from 57 matches from 2019-2020. The need for formal mentorship and connection is now more important than ever, as organic interactions between junior and senior attorneys are less likely to occur without the office and courthouse settings. If you are interested in becoming a mentor or mentee, see the HBA Professionalism Committee website at hba.org/professionalism for sign-up forms and more information. Michael Reeder is a founding partner of the litigation boutique, Cadwell Clonts & Reeder. He has an active trial practice in both federal and state courts across the nation and is passionate about providing pro bono legal services. Seepan V. Parseghian, a trial attorney at Beck Redden LLP, is a 2021-2022 Co-Chair of the HBA Professionalism Committee and Immediate Past Chair of the HBA International Law Section. His practice is focused in commercial litigation and intellectual property disputes, and he has proudly served as pro bono counsel in cases involving international human rights issues. thehoustonlawyer.com
September/October 2021
53
LEGAL TRENDS
Will Non-Compete Reform Come to Texas?
There has also been talk of noncompete reform at the national level. In 2019, the American Constitution Society released an issue brief criticizing By Zach Wolfe the widespread use of non-competes. o, President Biden did not sign “Taken in the aggregate,” the brief aran executive order abolishing gued, “widespread limitations on emnon-competes in America. ployee mobility have demonstrable, More about that later. negative consequences for There has been a nationwages and innovation.” wide trend towards non-comAt the federal level, the pete reform, i.e., legislation ACS brief reported, the Concerns about proposed Workforce Moat the state level intended to scale back the widespread widespread use bility Act of 2019 would use of non-competes for all have banned the use of of non-competes kinds of employees. non-competes, with some seem to cut This was partly a reaction limited exceptions perto a chorus of criticism of the non-competes across the po- mitting overuse of non-competes, eslitical spectrum. for owners or senior expecially for lower-wage workecutives in the sale of a … So don’t be business or dissolution of ers. It reached a crescendo with the infamous Jimmy surprised if non- a partnership. That legJohn’s case. Non-competes compete reform islation did not pass, but for sandwich makers? Really? the concept found its way comes to Texas into President Biden’s July In this economy? in the form of 2021 Executive Order ProIt was too much. And state legislatures have taken action trial court judges moting Competition in the to curb the perceived abuse of American Economy. As setting the bar a non-competes. For example: mentioned, that order did little higher for not abolish non-competes. • In 2016, Alabama passed enforcement.” The relevant language was a new statute governing more limited: non-compete and non-solicitation agreements, including presumpTo address agreements that may tive time limits for restrictive covunduly limit workers’ ability to enants and limitations on restricchange jobs, the Chair of the FTC tions on soliciting employees. is encouraged to consider working • In 2018, Massachusetts passed a with the rest of the Commission to new non-compete law that prohibexercise the FTC’s statutory ruleits enforcing non-competes against making authority . . . to curtail the employees terminated without unfair use of non-compete clauses cause and requirements for paid and other clauses or agreements “garden leave” for employees. that may unfairly limit worker mo• In 2021, Illinois enacted “sweepbility. ing” reforms to its non-compete statute, including a ban on nonTwo key points here: the order only
N
The Houston Lawyer
competes for employees earning less than $75,000 a year.
54 September/October 2021
‘‘
thehoustonlawyer.com
“encourages,” and it seeks to “curtail,” not to abolish. In any case, it remains to be seen what the FTC will do. A modest prediction: look for the FTC to focus on the use of non-competes for lower income workers, as opposed to business owners or highly paid executives. Will this nationwide non-compete reform trend come to Texas? That doesn’t seem to be in the cards, at least not in the short term. Governor Abbott called special sessions this year to address numerous issues, including border security, social media “censorship,” and Critical Race Theory. Non-compete reform was not on the list. But it could happen in the long term. Concerns about widespread use of non-competes seem to cut across the political spectrum. Solid-blue California bars non-competes for at-will employees, but deep-red Oklahoma also frowns on employee non-competes. So it seems possible that non-compete reform could eventually come to the Lone Star State, even assuming Republicans maintain their hold on state government. Plus, Texas judges already have a lot of leeway in enforcing non-competes. The Texas non-compete statute requires “reasonable” limitations, which leaves a lot of room for interpretation, and a trial court’s ruling on a temporary injunction—usually the key event in a non-compete lawsuit—is subject to an abuse of discretion standard on appeal. So don’t be surprised if non-compete reform comes to Texas in the form of trial court judges setting the bar a little higher for enforcement. Zach Wolfe is a trial lawyer and thought leader who focuses his practice on noncompete and trade secret litigation at Zach Wolfe Law Firm. He often writes on this topic at his blog fiveminutelaw.com and is a frequent CLE presenter.
Media Reviews
Tips Lawyers Wish You Knew: Going It Alone at the Courthouse By Ann D. Zeigler Rio Grande Books, 2019 Reviewed by Benjamin K. Sanchez
W
ith the cost of legal representation becoming more out of reach for the general public, many are handling their own cases in court these days. The rise in pro se litigation is exponential with the economic fallout from the COVID pandemic. Who knew in 2019 what 2020 and 2021 would look like, but thankfully there is a book that can help guide pro se litigants on the insand-outs of litigation in America. Ann Zeigler, a Texas attorney for over 30 years and Editor-in-Chief of The Houston Lawyer in the 2009-2010 bar year, published her book, Tips Lawyers Wish You Knew: Going It Alone at the Courthouse, in 2019, just in time to become a valuable resource for the rising tide of pro se litigants. To be clear, Zeigler’s intended audience for this book is the non-attorney pro se litigant. It may also be helpful for your clients who simply want to understand the judicial process better. This book could be a nice resource to give to clients to avoid the questions that inevitably come about what will happen and what comes next in typical litigation. The book is not necessarily meant to be read front to back like a novel. It’s more of a mini-encyclopedia in which various procedures, nomenclature, and ideas
are explained. When a question about a particular topic arises, the reader can review either the table of contents in the front or the index in the back to find where the topic is addressed in the book and then flip to that page. If you give or recommend this book to your client, you’d be wise to follow up with something more particular for your case and court just to be safe, but Zeigler does a good job of laying the groundwork, so you don’t have to do it yourself. Just like a lawyer would do at trial, Zeigler starts her book with an “Opening Statement” and finishes with a “Closing Argument.” In between, she covers key aspects of litigation. Section 1 covers the basics of the U.S. legal system. Section 2 explains how civil lawsuits and trials really work rather than just the ideals set forth in procedural rules. Section 3 explains various situations in which a person might find themselves at the courthouse, such as a witness, juror, after someone’s death, and it also explains specialized courts, such as bankruptcy, tax, administrative proceedings, and appeals. Section 4 is the final section and explains how to get the help you need to not “go it alone” at the courthouse. Zeigler does not limit the explanations and ideas in the book to Texas courts and law, but rather tries to explain U.S.-wide litigation concepts to non-lawyers in broad terms. She accounts for different terminology in different courts. As with any book such as this, Zeigler issues the obligatory “this is not legal advice” disclaimer to begin the first chapter. Overall, Zeigler’s writing style is approachable and understandable by non-attorneys. Even new lawyers
could learn from reading this book or at least having this book ready for a quick review of an unfamiliar topic. Lawyers would not want to rely on this book for in-depth coverage of a particular topic, but it’s a nice refresher when you want to wrap your head around a particular subject. The book is published by Rio Grande Books and can be ordered online at www.riograndebooks.com for $17.95 plus tax and shipping for the paperback edition or only $7.99 for the e-book edition. The e-book edition is reasonably priced and would be a nice welcome gift for your new client!. Benjamin K. Sanchez is a 24-year attorney handling consumer, landlord/ tenant, and real estate disputes. He is a bar leader and national magazine columnist. Additionally, he is certified by John Maxwell and Les Brown as a speaker, trainer and coach. He serves on the editorial board of The Houston Lawyer.
thehoustonlawyer.com
September/October 2021
55
LITIGATION MARKETPLACE
Office Space HOUSTON/ENERGY CORRIDOR I-10 & 1155 Dairy Ashford Established law firm with estate/ trust planning, probate/trust administration, elder law and business practice seeks to lease large 12x15 window office in friendly, beautiful office suite, with reception area. Office easily accommodates credenza, full size desk, two client chairs, two 5-drawer lateral files. Telephone, WiFi, high speed Internet, copiers/ scanners, fax. Kitchen with microwave and coffee. Notary available. Access to conference rooms on scheduled basis. Free covered parking for attorney and clients. Possible overflow work subject to attorney availability, skill and experience. $895/month, quarterly term. Steve 713-553-0732 (cell) steve@mendellawfirm.com. HOUSTON—ONE GREENWAY PLAZA, SUITE 100— Beautiful Class A space available for sublease. Great Multi-Lawyer/Corporate/Professional Suite-1st floor, 15 ft+ ceilings, security, garage/covered parking, digital phone/voicemail-emailed/ fax/high-speed-internet/cable system, 2conferencerooms,fileroom,frontfulltime bilingual receptionist, kitchen area, walk to restaurants-food court/ gyms/Tony’s/Starbucks/Double TreeHilton. At present, five well established law firms lease at this location... being around other attorneys is also a great way to start a new practice. Currently available: 2 large window offices, 1 large interior office, and 2 furnished secretarial spaces, as well as virtual space! Call Lawrence at 713-650-1222 or email: lfd@legaltexas.net.
The Houston Lawyer
23 we’ve remained true to our mission:
56 September/October 2021
From page 52
“There were times I was working in my bedroom and my husband was on the first floor, the kids were on the second floor and a little bit on the third floor.” Before the third term of homeschooling was about to begin, HISD opened up again in early December. The parents in the learning pod debated whether to send their children back to school. In the end, Powers’ family took a leap of faith. Though the pod had served a particular purpose, Powers could tell her children would be happier with more interaction. To this day, Powers stays close with the other families in the pod and has no regrets. “It was just nice to have human interaction during that time of COVID. We really bonded intensely for those six and twelve weeks and I’m really grateful for that experience.”
Position Available
San Antonio/Hill Country AV Rated Nine Lawyer Estate Planning and Probate Law Firm seeking an associate lawyer with substantial probate experience (preferably 5 years or more) to head up the firm’s probate division. The well-established firm has an extensive list of clients and a strong referral base. The firm has a substantial Hill Country practice with a satellite office in Kerrville. The ideal candidate will be a selfstarter with strong communication and organizational skills. He or she should be technically proficient in probate, trust law, with experience in real property law. The position offers competitive compensation commensurate with experience, retirement and health insurance benefits e a diverse with the billable hour Austin, TXbody - We have of 4,600students rentable as well as reasonable square feet of office space WITH a requirements. This is an excellent ity to HUGE obtain an exceptional legal education. RATE DISCOUNT AVAIL- opportunity for someone interested ABLE NOW! Across the street from in living in a wonderful and growollege of Law Houston one ofPUthe most widely diverse student the Capitol. NEWserves ADVANCED ing part of Texas while advancing RIFICATION AIR SYSTEM AND his or her career. Interested canation and maintains close to a 90% ultimate bar passage rate. NEW LED LIGHTING. It has 9-10 didates should submit a resume ntury, South Texas College of Law Houston has educated successful, to private offices, open work areas, ggaedke@caglaw.net. ttorneys from diverse backgrounds, who now serve our community, and a large shared kitchen. Garage d 13 countries around the globe. parking and furniture are available too. Contact Patrick; 915-373-0488 pfinnegan@texcon.org.
OFF THE RECORD
HOUSTON MEMORIAL OFFICE SUITES Legal offices available on Westview Drive between Wirt and Antoine. Shared receptionist, conference room, and break room. Rent includes all utilities, internet, phone, parking, security, cleaning service, and office maintenance. For details contact: jacquesb@marksfirm.com.
www.stcl.edu/hire
thehoustonlawyer.com
Professional Services
Video Mediations Available
classifieds ads:
Liz Furlow is a litigation associate at Baker Botts who focuses her practice on securities litigation, industrial accidents, and commercial disputes. She is an associate editor at The Houston Lawyer Magazine. Katya Nikitina is an associate at Baker Hostetler who focuses her practice on healthcare law and compliance, with an emphasis on breach response and preparedness. She is a member of The Houston Lawyer editorial board.
Since 1923 we’ve remained true to o
Mary Endnotes To provide a diverse body of students w Chavoustie 1. Ruby L. Powers is the founder of Powers
Law Group, P.C., Board Certified in Imopportunity to obtain an exceptional leg mary@quantumsur.com migration and Nationality Law, and an advocate for immigrants and her commu-
or call nity at large. She authored AILA’s Build South Texas College of Law Houston one ofImmigrathe most wi and Manage serves Your Successful tion Law Practice (Without Losing Your bar p bodies in the nation and maintains close to a 90% ultimate Mind) and also provides law practice For nearly a century, South Texas College of Law Houston management consulting services to at- has ext.102 torneys. practice-ready attorneys from diverse backgrounds, who now ser all 50 states, and 13 countries around the globe.
281.955.2449