THL_SepOct22

Collectives: How the Biggest Thing in NIL Has Exposed the NCAA’s Rulemaking Ethical Considerations for Attorney Advertising Social Media 101 for Attorneys

Across Real Life, the Metaverse, and the Blockchain, Theft Will Not Prevail as the Legal Community Encompasses New Technology

A Changing Landscape of Handgun Legislation: The Texas Firearm Carry Act of 2021

Social Media 101 for Attorneys

NIL Collectives: How the Biggest Thing in NIL Has Exposed the NCAA’s Rulemaking

By Joseph Blake

Ethical Considerations for Attorney Advertising

By al harrison

Social Media 101 for Attorneys How to Use Social Media as a Practicing Lawyer

By raffi Melkonian

A Social Media Heart-To-Heart

By Jefferson fisher

Expanding the Network: How We Launched our Social Media Presence to Connect With the Community By sara V.C. GoldBerG

Across Real Life, the Metaverse, and the Blockchain, Theft Will Not Prevail as the Legal Community Encompasses New Technology

By raChel Greene

A Changing Landscape of Handgun Legislation: The Texas Firearm Carry Act of 2021

By sandra Guerra ThoMpson

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., 2022. All rights reserved.

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presidenT’s MessaGe Elevating Civil Discourse

By ChrisTopher V. popoV

froM The ediTor When Worlds Collide

By Brooksie BonVillain BouTeT

YounG lawYer spoTliGhT VALERy PIEDRA

a profile in professionalisM MONICA KARUTURI executive Vice president, Centerpoint energy

off The reCord Judge Christine Weems: How a Passion for Theater Grew Into a Production Company

By CarlY Milner

seCTion spoTliGhT Entertainment and Sports Law Section: Promoting Houston’s Expertise in This Niche Field

By alexis whiTaker

CoMMiTTee spoTliGhT Law & the Media Committee: Fostering Healthy Dialogue Through Engaging New Series

By MaGGie MarTin

leGal Trends Monroe Guaranty v. BITCO: Texas Supreme Court (Finally) Recognizes Exception to the Eight-Corners Rule

By J. sTephen BarriCk, CourTneY e. erVin, and sTaCie osBorn

Avoid a Perry Mason Moment: Snap Back Properly

By lauren Veillon

Media reViews The Staircase reviewed by andrew fleTCher

Getting Away with Bloody Murder: J.B. Brockman, the Best Criminal Lawyer in Texas reviewed by rYan kenT

liTiGaTion MarkeTplaCe

Williams Hart & Boundas proudly announces four new partners. We are thrilled to have attorneys Sejal Brahmbhatt, Sean McCarthy, Brian Abramson, and Cesar Tavares as firm partners.

For nearly 40 years, we have been at the forefront of helping everyday, hardworking folks regardless of changes in the law or the world around us. We feel it is our duty to answer the call of thousands of injured people across the country and to foster a new generation of fearless leaders in our field.

These extraordinary attorneys are nationally recognized for their contributions to the pursuit of justice. They have demonstrated exceptional skill in the courtroom and consistent leadership in the firm. Their unwavering commitment to going above and beyond for our clients and community reflects our firm’s mission to help those in need.

As we look forward to a new chapter in the story of Williams Hart & Boundas, we believe this powerful team of attorneys will continue to forge our legacy on a foundation of only the highest ethical standards.

Williams Hart & Boundas has served tens of thousands of clients since our founding in 1983. Our passion to fight for injured people is paired with decades of experience and the resources to take even the most complicated cases to trial. We are proud to serve our community with excellence.

By Christopher V. p opo V Vinson & elkins LLp

Elevating Civil Discourse

We have a problem with civil discourse in this country, and it’s having a crippling effect on the rule law. There are precious few places for civic-minded people to go for meaningful discussion of the most important legal issues of our day.

Political debates have become shouting matches. They are not opportunities to win over hearts and minds; they are platforms for rallying the base.

At their best, commercial news outlets provide us with super ficial headlines. At their worst, they entrench us in our biases with calculated talking points and hateful attitudes.

That needs to change. The disappearance of civil discourse is dangerous, and the dangers go far beyond political division. In the absence of meaningful discussion and debate, political violence is on the rise. Just in the last couple years, judges and political leaders on both sides of the aisle received death threats. We’ve seen shootings and physi cal assaults of elected officials. And let us never forget the vio lent attack on our nation’s capital on January 6.

If we are to find our way back to the ideals of participatory democracy, where the peaceful transition of power is routine, we have to embrace and elevate civil discourse.

Lawyers have a role in leading us back to those ideals. We are professionals, who are trained in evidence-based argu ment, educated on our system of government, and held to ethical standards that require us to be honest and courteous in our dealings. If lawyers don’t demand orderly discussion

and conflict resolution, who will?

Your HBA is doing its part to elevate civil discourse in the legal community. This year, we launched our President’s Speaker Series, which assembles panels of experts to lead civil discussions over the most impor tant legal issues of the day. The focus of this series is less on vo cational education, and more on civic engagement. The first two sessions in this series covered litigation and legislation around voting rights, and the evolution of laws affecting amateurism in collegiate sports. They were won derful discussions lead by true experts. No shouting. No leveling of accusations on the motives of the opposition. Just thoughtful, informative discussions on the current state of the law and the issues that are likely to arise.

In the months to come, we will be discussing the evolution of abortion law, legislation and case law around gun rights, and the regulation of speech over large technology platforms. We will cover those topics with preci sions, reverence for the law, and respect for opposing viewpoints.

I hope to see you at these events. They are enriching and refreshing. They empower our members to set the standard for political discourse. They are platforms that leave room for thoughtful disagreement, but only from the foundation of a fact-based understanding of the actual laws that govern. And importantly, they’re fun. It turns out that you can break bread and raise a glass with a colleague with whom you dis agree, learn something, and spread the gospel of civic dis course all while getting a few hours of CLE credit. Hard to ask for more from your bar association.

The HBA President’s Speaker Series features leading legal scholars on the most pressing issues of the day, including these experts who discussed name, image, and likeness (NIL) case law and voting legislation.

assoCiaTe ediTors

By Brooksie Bon V i LL ain Boutet shipley snell Montgomery LLp

When Worlds Collide

With an undergraduate degree in jour nalism, I always welcome the oppor tunity for media and the law to col lide. Starting out in my freshman year of college, I thought that I wanted to double major in journalism and biology to work to ward becoming a broadcast journalist with a medical background—or even degree (like Dr. Sanjay Gupta). However, I quickly learned that biology for majors was not for me and decided to focus on broadcast jour nalism. But when it came time to declare a concentration, I chose political commu nication, or what I like to describe as the practical version of political science. I then realized that the life of a political consul tant—jumping from campaign to cam paign—was a bit too nomadic for me and found myself applying to law school after taking an undergraduate course taught by one of the law professors across campus.

I never changed my major during this process, and for that I am thankful. A journalism degree required intensive writ ing courses and critical thinking, two cru cial skills in the study and practice of law. While the life of a litigator isn’t always as predictable as I might like it to be, I use the skills that I learned in undergraduate daily.

Outside of my own life, we often find media and the law on a collision course. The current affairs of our nation lend themselves to near-constant media cover age of political events that intersect with the law. And media is now more pervasive than ever with news outlets offering handy apps that can push notifica tions of our own choosing to our phones and social media, offering both traditional news coverage and user-generated content, which may or may not have been vetted by any editorial process whatsoever.

This intersection is an opportunity to elevate civil discourse. Ensuring that we are having educated dis cussions about current events, consuming informa

tion that is accurate, thinking critically. Is the content from a reliable source? Have we sought out different viewpoints? Are we simply parroting soundbites with out taking the time to delve into the deeper story?

The Houston Lawyer is a medium for us to elevate civil discourse locally Anietie Akpan and Sydney Hu ber guest edited this issue, which means that they took the laboring oar in securing our content. The topic of media and the law is incredibly broad, and Houston is home to a vibrant sports and entertainment industry that is often front and center in our local news.

‘‘

With a focus on entertainment, we have an article on NCAA changes on name, image, and likeness. On a more serious note, developments in our gun laws— which have been all over even the nation al news—are covered from an academic perspective. And, with technology as an ever-present part of our daily lives and practices, we look at the effect of block chain developments on the legal sector, including for service of process. There is also practical advice for attorneys using social media for advertisement.

Be sure to listen to season three, epi sode two of our podcast hosted by Anna Archer, who speaks with some local legal talent on how they serve the sports and entertainment sectors.

On a final note, I want to recognize Charles Har old Lloyd, who passed away on July 17. Mr. Lloyd co-founded the magazine with Quinnan Hodges in 1963 and served as the publication’s second editor in chief. From its inception, The Houston Lawyer has strived to feature the most pressing issues of the day in a thoughtful way. As I consider the articles within this issue, as well as the issues in the coming year, I recognize it is because of Mr. Lloyd’s vision, and the vision of Mr. Hodges, that we are able to present these impactful pieces to our membership today.

Thank you for reading The Houston Lawyer

from the editor

Elizabeth Furlow Malpass Baker Botts

Nikki Morris

BakerHostetler

Andrew Pearce

BoyarMiller

Ryan Kent

Harris County District Attorney’s Office

Carly Milner

Foglar Brar O’Neil & Gray

Anna M. Archer U.S. District Court

The current affairs of our nation lend themselves to near-constant media coverage of political events that intersect with the law.”

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Anietie Akpan Jaclyn Barbosa

Natasha Breaux Dasha K. Hodge

Sydney Huber Lee LaFleur

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Tim McInturf Lane Morrison

Avi Moshenberg Sara Prasatik

Braden Riley Bryce Romero

Jennifer Smith Kyle Steingreaber

Rachael Thompson Lauren Veillon Mark Yablon

By Joseph Blake

How the Biggest Thing in NIL Has Exposed the NCAA’s Rulemaking

Sherman Act.

In O’Bannon, the Ninth Circuit held that the NCAA engaged in anticompetitive be havior and violated federal antitrust laws by not allowing players to share revenues generated by the use of their NILs.4 Thus, the Ninth Circuit required the NCAA to permit member schools to offer additional scholarship grants to student-athletes up to the full cost of attendance.5 However, the Ninth Circuit left intact NCAA prohibitions on payments to student-athletes that were “unrelated to educational expenses,” ac cepting at that time the NCAA’s argument that such payments would undermine its concept of amateurism.6 The NCAA’s ama teurism defense is the idea that consumer demand within collegiate sports is driven, in part, by players being student-athletes who are not paid for their performance.7 This concept was more thoroughly ad dressed, and weakened, in Alston v. NCAA.

“E

xpect the unexpected” is perhaps the best way to explain the nature of the name, im age, and likeness (“NIL”) era of collegiate sports. The first year of NIL has been full of innovative developments, some of which have stirred controversy within the National Collegiate Athletic Association (“NCAA”) and its member in stitutions. Among the most talked-about devel opments over the first year of NIL has been the creation of “NIL collectives”—groups that help to facilitate NIL deals for student-athletes at a particular institution.1 The NCAA recently imposed new guidelines (“Guidelines”) target ing collectives for what it views as “pay-forplay” in the form of NIL deals.2 However, the Guidelines failed to account for another change in the NIL landscape—player-led NIL collectives. This article shows how the NCAA’s idleness and re actionary approach to new developments in collegiate sports has caused it to create inconsistent rules that make the organization appear incompetent and weak.

The Origins of NIL

The current NIL landscape evolved from multiple legal develop ments over the past several years. In particular, two Northern District of California antitrust cases— O’Bannon v. NCAA and Alston v. NCAA—played a central role in creating the NCAA’s interim NIL rules.3 In both cases, plaintiff classes of studentathletes successfully invalidated NCAA rules relating to player compensation as price-fixing in violation of Section 1 of the

In Alston, after the Ninth Circuit affirmed the trial court’s ruling, the NCAA appealed to the Supreme Court based on a circuit split between the Ninth, Seventh, and other circuits over whether NCAA rules charac terized as maintaining “amateurism” are subject to antitrust scrutiny.8 The Court clarified that NCAA rules are subject to antitrust challenges and affirmed that the NCAA and member conferences violated the Sherman Antitrust Act by prohibiting student-athletes from receiving addition al education-related compensation from their schools. The NCAA argued that the success of collegiate sports depends upon such restrictions to maintain its concept of amateurism, which distinguishes collegiate sports from professional sports.9 But the Court said the NCAA failed to provide any economic analysis showing that educationrelated benefits for student-athletes would hurt consumer demand.10 Notably, Justice Kavanaugh wrote a concurrence, further questioning the relevance of amateurism to antitrust concerns and leaving the door open to more antitrust challenges to NCAA rules, including those relating to player compensation.11

During the pendency of Alston, many states passed laws mandating that schools

in their states allow their student-athletes to receive compensation for their NILs.12 Justice Kavanaugh’s concurrence and the impending effective dates for these state laws put significant pressure on the NCAA to adjust its NIL policy. With no reprieve from the Supreme Court, the NCAA pub lished a new interim NIL policy allowing student-athletes to receive compensation for their NILs on July 1, 2021—just nine days after Alston was issued.13 While these rules allow student-athletes to be paid for using their NIL, NCAA rules still prohibit any “pay-for-play” NIL deals14 or “improp er” recruiting inducements.15

NIL Collectives

After July 1, 2021, businesses nationwide jumped at the opportunity to partner with student-athletes. It did not take long for fans of college sports to join the fray and create a new, more innovative model for NIL compensation: NIL collectives.

According to the website On3NIL, an NIL collective is a group of donors, alumni, boosters, or local businesses who pool re sources to provide NIL opportunities for student-athletes at a specific school.16 As of September 2022, there are over 150 NIL collectives across the country.17 The most common NIL collectives are marketplace collectives, donor-driven collectives, and dual collectives. Marketplace collectives fa cilitate deals between student-athletes and businesses with donations typically used to support logistics. Donor-driven collec tives pool together funds from alumni and fans to create paid opportunities for ath letes. Dual collectives are a hybrid of the first two collectives.

But the newest, and perhaps most in novative, collective is the player-led collec tive. Similar to the donor-driven collective model, fans can donate various amounts of money to the collective in exchange for team members’ exclusive digital content and in-person experiences. The difference between this collective model and the oth ers is that player-led collectives are typi cally managed by student-athletes while third parties provide the technology plat forms necessary to operate the collective.18

The best examples are collectives backed by technology company YOKE. As of Sep tember 2022, there are nearly 50 playerled collectives that use YOKE to launch their own paywalled communities.119 The YOKE platform enables student-athletes to learn entrepreneurial skills and to manage their own business.20 According to YOKE co-founder Mick Assaf, “…each NIL Club [is] a startup business that is run by college athletes.”21 For the time being, the YOKE collectives exclusively benefit members of a university’s football team, and the collec tives provide equitable treatment for all par ticipating players by splitting the profits be tween them equally. Players may also vote on the funding model for these collectives. Some teams sell year-long “Access Passes” to fans for exclusive access to players, while others offer subscriptions where members can contribute money each month.22

The Controversy With Collectives

In March 2022, it was reported that a fivestar football recruit in the class of 2023 signed an NIL agreement with a collective

supporting the University of Tennessee that will allegedly pay him over $2 million per year.23 The NCAA is reportedly in panic over such lucrative deals.

To prevent what is perceived as improper recruiting inducements and “pay-for-play,” the NCAA issued new Guidelines less than a year after its NIL policy change. The three-page Guidelines were issued May 2022 to constrain actions of collec tives.24 The Guidelines state that boosters supporting collegiate institutions may not (1) communicate with any prospective stu dent-athletes or their families for a recruit ing purpose or (2) offer any financial aid or other benefits to a prospective studentathlete. While the Guidelines reference boosters instead of collectives, the NCAA appears to equate the two.25

Despite the Guidelines, collectives have not been deterred. If anything, some collec tives are calling the NCAA’s bluff. On July 18, 2022, the Matador Club, a collective sup porting Texas Tech University, announced that it will sign each member of the Texas Tech football team to one-year, $25,000

contracts in exchange for the athletes par ticipating in charitable events.26 Level 13 Agency, another collective, matched that effort by signing each member of the Texas Tech women’s basketball team to one-year contracts for $25,000 per year to engage in undisclosed NIL activities.27 Meanwhile, supporters of Sothern Methodist Univer sity have upped the stakes. New Boulevard Collective signed each member of the SMU football and men’s basketball teams to oneyear NIL deals worth $36,000 to each play er.28 The message is clear: the NCAA may talk a big game, but it carries a little stick.

What Player-Led Collectives Have Revealed About the NCAA

Player-led collectives have revealed an is sue with NCAA rulemaking: NCAA rules are inconsistent with NIL developments, particularly the player-led NIL collectives. This issue stems directly from the NCAA’s definition of “boosters.”

A booster, as defined in the Guidelines and NCAA Bylaws, is, in part, …an in dividual, independent agency, corpo rate entity (e.g., apparel or equipment manufacturer) or other organization who is known (or who should have been known) by a member of the institution’s executive or athletics administration to have participated in or to be a member of an agency or organization promoting the institution’s intercollegiate athletics program or to assist or to have assisted in providing benefits to enrolled studentathletes or their family members.29

Student-athletes could fit within this def inition. Therefore, a literal interpretation of the Guidelines means that student-athletes operating player-led NIL collectives are boosters that can be prohibited from having conversations related to recruitment with prospective student-athletes.30 If the Guide lines were to be enforced this way, it would hinder a university’s ability to recruit new talent since current student-athletes typi cally speak to prospective student-athletes about their school and athletic program as part of the recruiting process.

If the NCAA investigates a traditional

collective for violations, that collective could argue that the NCAA must also in vestigate every student-athlete involved in operating a player-led NIL collective. Be cause the NCAA would not do the latter, its Guidelines may not be viewed as a legiti mate constraint.

The big picture is about more than just NIL collectives. The NCAA’s overregulation and reactionary tendencies have caused it to not only lag behind in implementing ideas to help collegiate sports evolve, but its actions—or inactions—also have caused the NCAA to draft inconsistent rules that lead to unintended, negative consequences for the very student-athletes it is supposed to help. It is likely that the NCAA’s rules would be more consistent with the evolu tion of NIL if the organization allowed NIL compensation after the O’Bannon decision and implemented reasonable bylaws re garding NIL. Instead, the NCAA waited several years to allow NIL compensation and continues to rely on Congress to pass a national NIL bill, which will not happen anytime soon.31 Earlier NCAA action would have given it more time to prepare for new innovations regarding NILs. Perhaps new developments will prompt the NCAA to be more progressive and proactive. Doing so will enable the NCAA to gain back its former respect and reputation in the eyes of the public

Blake is an antitrust and sports litigation attorney at Winston & Strawn LLP.

endnotes

1. Pete Nakos, What Are NIL Collectives and How Do They Operate?, ON3NIL (July 6, 2022), https://www. on3.com/nil/news/what-are-nil-collectives-andhow-do-they-operate/ [hereinafter Nakos, NIL Col lectives].

2. National Collegiate Athletic Association, Interim Name, Image and Likeness Policy Guidance Regard ing Third Party Involvement, NAT’L COLLEGIATE ATHLETIC ASS’N (May 6, 2022), https://ncaaorg. s3.amazonaws.com/ncaa/NIL/May2022NIL_ Guidance.pdf [hereinafter Guidelines].

3. Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141 (2021); O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049 (9th Cir. 2015).

4. O’Bannon, 802 F.3d at 1079.

5. Id. at 1075−76.

6. Id. at 1076−79.

7. Id. at 1054−55.

8. Alston, 141 S. Ct. at 2166.

9. Id. at 2152.

10. Id. at 2165.

11. Id. at 2167−69.

12. Gregory A. Marino, The NCAA Declares Indepen dence from NIL Restrictions, FOLEY & LARDNER LLP (Aug. 20, 2021), https://www.foley.com/en/ insights/publications/2021/08/ncaa-declares-inde pendence-nil-restrictions.

13. National Collegiate Athletic Association, NCAA In terim NIL Policy, NAT’L COLLEGIATE ATHLETIC ASS’N (July 1, 2021), https://ncaaorg.s3.amazonaws. com/ncaa/NIL/NIL_InterimPolicy.pdf [hereinafter NCAA, Interim NIL Policy].

14. Id. “Pay-for-play” is a term used to describe a pay ment arrangement where a player is paid in ex change for their athletic performance or participa tion on an athletic team. See NCAA Bylaws § 12.1.2 (2022), https://web3.ncaa.org/lsdbi/reports/getRe port/90008.

15. NCAA, Interim NIL Policy, supra note 14. An “im proper recruiting inducement” is an incentive of fered to a student-athlete to sway their decision to attend a specific college or university. Katie Lever, NIL Opportunity or Inducement?, 2ADAYS (Mar. 15, 2022), https://www.2adays.com/blog/nilopportunity-or-inducement/.

16. See Nakos, NIL Collectives, supra note 1.

17. NIL Collectives, ON3NIL, https://www.on3.com/nil/ collectives/?page=1 (last visited on Sept. 6, 2022).

18. See Pete Nakos, YOKE Adjusting Collective’s Goals Through Machine Learning, ON3NIL (Sept. 5, 2022), https://www.on3.com/nil/news/yoke-player-collec tives-nil-clubs-mick-assaf-louisville-derby-city-nilclub-machine-learning/ [hereinafter Nakos, YOKE Adjusting].

19. NIL Collectives, supra note 19.

20. Nakos, YOKE Adjusting, supra note 25.

21. Id

22. Andy Wittry, How YOKE, the Players’ Lounge, Fan PassU Created NIL Communities, ON3NIL (Aug. 3, 2022), https://www.on3.com/nil/news/how-yokethe-players-lounge-fanpassu-are-creating-nil-com munities/.

23. Stewart Mandel, Five-Star Recruit in Class of 2023 Signs Agreement with Collective That Could Pay Him More Than $8 Million, THE ATHLETIC (Mar. 11, 2022), https://theathletic.com/3178558/2022/03/11/ five-star-recruit-in-class-of-2023-signs-agreementwith-collective-that-could-pay-him-more-than8-million/.

24. Guidelines, supra note 2.

25. See, e.g., Mandel, supra note 31 (showing that boost ers typically operate NIL collectives).

26. Don Williams, Matador Club Offers $25K Con tracts to 100 Texas Tech Football Players, LUBBOCK AVALANCHE-J. (July 18, 2022), https://www. lubbockonline.com/story/sports/college/red-raid ers/2022/07/18/matador-club-offers-25k-contractsto-100-tech-football-players/65375501007/.

27. Mechelle Voepel, Texas Tech Women’s Basketball Players to Receive $25K NIL Deals, ESPN (July 29, 2022), https://www.espn.com/womens-collegebasketball/story/_/id/34314841/texas-tech-womenbasketball-players-receive-25k-nil-deals.

28. Pete Nakos, New Boulevard Collective to Pay SMU Athletes $3.5 Million Annually Through NIL , ON3NIL (Aug. 8, 2022), https://www.on3.com/nil/news/ smu-mustangs-football-basketball-boulevard-col lective-nil-3-5-million-36-annually-chris-kleinert/.

29. Guidelines, supra note 2; see also NCAA Bylaws § 13.02.15(a), (d).

30. See NCAA Bylaws § 13.02.15(a), (d); Guidelines, supra note 2.

31. Game Changer: Understanding the NCAA’s New NIL Policy, VINSON & ELKINS (Feb. 21, 2022), https:// www.velaw.com/insights/game-changer-under standing-the-ncaas-new-nil-policy/

Joseph

By al harrison

Ethical Considerations for Attorney Advertising

Attorney advertising is a big business. According to the American Tort Reform Asso ciation (ATRA), an organiza tion that bills itself as “antiattorney advertising,” in 2021 more than 15 million ads for legal services aired on local television broadcast networks in 210 media markets throughout the U.S., totaling expenditures of approximately $971.6 million. ATRA estimates attor ney advertising expenditures in Texas amounted to $132,268,302 in 2021, plac ing Texas second only to Florida.

In 2017, ATRA President Tom Vick requested that the Advertising Review Committee (ARC), under the leadership of Gene Major, director of the State Bar of Texas Attorney Compliance Division, analyze Part VII of the Texas Disciplin ary Rules of Professional Conduct (“Ad Rules”) with the charge to streamline, modernize, and render the Ad Rules more user-friendly and more amenable to attaining compliance by the Texas Bar at-large. The Committee on Disciplin ary Rules and Referenda, in accordance with its responsibility to propose and draft disciplinary rule changes, final ized a draft approved by the Texas Bar’s board of directors and then tendered it in 2021 to the Texas Supreme Court. The court ordered a referendum, where upon these revised Ad Rules passed and

became effective by court order in July 2021. Simultaneously, under the auspic es of the bar, newly developed software was uploaded and activated as an online portal enabling attorneys via their own “My Bar” webpage to electronically file virtually all requisite compliance infor mation, including paying the necessary submission fee.

Interestingly, the ARC’s foundational ethical pillars for the Ad Rules have re mained constant since the creation of the Ad Rules in 1995: to prohibit law yers’ false, misleading, and deceptive communications. An important dis tinction exists between the Ad Rules’ regulations and attorneys’ requisite fil ings with ARC under Ad Rules 7.04 and 7.05. Nevertheless, prerequisite ethical burdens fall exclusively on the shoulders of each individual attorney, wherein Part VII governs all attorney communications pertaining to legal services, including pervasive social media. Ad Rule 7.01 sets definitional parameters functioning as the cornerstone to be considered for at torney advertisements and solicitation communications.

Thus, the amended Ad Rules de lineate a streamlined reasonableness standard equating to a “Rosetta Stone” for assisting in any compliance deter mination. While recited in the opening paragraph of Ad Rule 7.01, this “reason

ableness” standard is more particularly explained in time-tested Authoritative Comment 6:

A statement or disclaimer required by these Rules must be presented clearly and conspicuously such that it is likely to be noticed and reasonably understood by an ordinary person.

Ad Rule 7.01 recites additional ethical considerations for attorney advertising, including creating unjustified expecta tions for current or potential clients and featuring past successes and concomi tant results. The Texas Supreme Court amended Ad Rule 7.01, Comment 10 re garding past successes and concomitant results, stating that if an attorney knows a past success or past result has been changed or has never been collected, the attorney must disclose the actual dollar amount received by the client. Further more, attorneys need to be attentive to the prohibitions outlined in Ad Rule 7.06 concerning prohibited employment.

While attorney advertising can be, and frequently is, fraught with ethical considerations manifested not only via traditional advertisements, but also via contemporary social media channels, the ARC’s new Ad Rules, coupled with their interpretive comments, provide an effective guide for attorney compli ance.

Al Harrison is a pat ent attorney practic ing intellectual prop erty law in Houston with the firm of Har rison Law Office, P.C and has spoken on issues pertaining to intellectual property, ethics, professional ism, and technology competence. He was a member of The Houston Lawyer edito rial board for several years and served as an associate editor. Al is vice chair of the Texas Bar College; council member of the State Bar Business Law Section; and council member and past chair, receiv ing a Lifetime Achievement Award, of the Computer & Technology Section.

Social Media 101 for Attorneys

How to Use Social Media as a Practicing Lawyer

By raffi Melkonian

We live in a social media age. The question many lawyers I talk to have is whether it’s wise to join the crowd. While there are certainly some reasons to be cau tious, I’d encourage you to dip your toes in the water. But why? A few tips from my experience of using Twitter to interact primarily with ap pellate lawyers might give you some ideas for your own participation in the wild world of social media lawyering.

Networking. Traditional networking is great, whether it’s speaking at CLEs, tak ing colleagues to lunch, or attending bar events. But in-person networking can’t easily extend your network nationally or internationally. Being active and interest ing on social media, by contrast, can intro duce you to lawyers around the country, or even the world. Whether it is finding local counsel or asking for advice when in a foreign jurisdiction, or even making wonderful friends, there is nothing like having a broad network. The #Appella teTwitter community spreads across the United States. Because of social media, I have friends in nearly every jurisdiction I visit. The #AppellateTwitter network even stretches internationally. And that broad reach applies even more to other practice areas that are national or international by nature, whether it be tax or corporate mergers and acquisitions, or anything else.

‘‘

If you are a privacy lawyer, or public defender, or someone working in the crypto space, there are people on Twitter, LinkedIn, and even TikTok talking about those topics and providing up-to-theminute news and analysis.”

with that Fifth Circuit. Can you write about things outside your specialty topic? As I’ve become more comfortable, I’ve expanded my Twitter posts to cover my hobbies, including home cookery. Readers love to see a bit of your personality. The danger lies in trying to be a jack-of-all-trades. Commenting on every political and world issue can lead to writing things online that are ill-considered and sap your reputation as being a careful advocate with good judgment.

Learning. Traditionally, lawyers read law industry periodicals to get caught up with current events in their specialties. But social media can shortcut that pro cess. If you’re interested in appellate law and case updates, follow #AppellateTwit ter. There are also numerous specialists throughout the country who cover their own specialty topics with just as much dedication. If you are a privacy lawyer, or public defender, or someone work ing in the crypto space, there are people on Twitter, LinkedIn, and even TikTok talking about those topics and provid ing up-to-the-minute news and analysis. A properly curated social media feed is perhaps the most efficient way to get the top news of the week.

Enhancing your reputation. Many of us have heard of the trouble lawyers can get into on social media. But used correctly, it’s also an excellent opportuni ty to make your reputation as a smart lawyer with good judgment. My strategy was to pick a specialty topic and write about it in-depth and with skill. In my case, my Twitter account is focused on the Fifth Circuit. I write about the judges’ decisions, the attor neys’ oral arguments, and breaking news about the court. Readers know to come to my page to keep up

Lawyers must always comply with their ethical du ties when writing online. But just as important is ex ercising sound judgment. Write as if your judges and clients are reading. With those caveats, using social media can significantly enhance your life as a lawyer. With a clear strategy, it’s worth the effort to try.

Raffi Melkonian is a partner at Wright, Close & Barger LLP. He tweets about appellate practice at @RMFifthCircuit.

A Social Media Heart-To-Heart

By Jefferson fisher

If you don’t think your law firm needs social media because you don’t personally use social media—good for you, Howard. But over 4.1 billion people on the planet do. In the U.S., that’s at least seven out of every 10 humans. The questions to ask, then, is do seven out of 10 people in your immediate community know who your law firm is and what it does?

I want to reset your thoughts on what social media is and how people use it currently, with full acknowledgement that this article could be outdated by the end of the week. Social media evolves like anything else in technology—rapidly. Facebook has now become your grandparents’ platform. The 16- to 25-year-olds? They don’t even have Facebook. They’re on TikTok or social apps you haven’t even heard of yet. Instagram is moving to more video-centered content to compete with TikTok. LinkedIn is growing to be a more content-focused social network. These apps are constantly changing and competing for your time and attention.

Attention is the asset, and that asset requires not only investment, but intention. Go take a hard look at your law firm’s social media page. How are you using it? Most likely, you’re still using it like a paper flyer taped to a street sign—for announcements and holidays. These types of posts get very little engagement. Why? Because these posts aren’t just competing for attention away from other law firms. They’re competing with every business out there, including Ama zon, Apple, Walmart, and every heavy hitter marketing to your au dience.

If attention is the valued asset, engagement is the market index. The more engaging your content becomes, the more attention you

gain. Who makes up the market index? All your social media fol lowers and those you wish to follow you. Social media algorithms drive viewers to your page, but you must engage viewers to secure a follow. Engagement includes producing video content that actively involves your audience, tagging people and other businesses in your posts to cross-share, and interacting with your audience in the com ments and shares.

Go and pull up the social media accounts for some of your favorite companies. Do you see their page with months of inactivity until another holiday comes? No. They’re engaged at all levels of each re spective platform, whether that be Facebook, Instagram, TikTok, or LinkedIn. They know that engagement is the key. Rather than using their social media pages like flyers on street poles, the major brand pages are akin to sitting in your local coffee shops—engaging with patrons, giving them value, and talking about things that their audi ences want to talk about. The more you meet your target audience where they are, the more you solidify the message of your brand.

Your social media is no longer an 8x11 paper handout. It is a living and breathing representation of your digital existence in the digital world. Your survival in the modern age depends on it.

Jefferson Fisher is a personal injury attorney and content creator near Beaumont, Texas, and managing partner of Fisher Firm. He is known as the go-to local counsel attorney in Southeast Texas.

EXPANdINg THE NETWORk:

How We Launched our Social Media Presence to Connect With the Community

By sara V.C. GoldBerG

My husband Danny and I have our own law firm called Goldberg Law. We are “old souls”—my husband still uses a Blackberry cellphone—and slow to move toward technology (no Siri or Alexa will be welcomed into our home). I have a personal Facebook account but do not post regularly about restaurants, family photos, or personal everyday updates. However, as more clients explained how they found our firm via on

line reviews or somehow landed on our website, I realized that our firm needed to try to expand our social media footprint since people no longer rely on personal references when they choose an attor ney. Much of the public turns to Google searches to assess whether they’ll hire a particular professional.

We started to dabble in video making in 2019, then really launched forward in 2020. The pandemic put our firm on notice

that anything could happen and no busi ness is ever guaranteed. To keep the firm relevant, we turned to social media as a means of reminding people that we are pas sionate about the work we do.

Goldberg Law now regularly posts videos (about every other Tuesday) called Tuesday Tips at Two with the Goldbergs on our You Tube channel and other social media chan nels, along with written updates, fun pho tos, and articles. We produce short videos that sometimes have nothing to do with the law, such as how to make a delicious, sea sonal cocktail. Many of our videos give little tips or updates on the law, often practical (e.g., how to better prepare for an immigra tion case or how to prepare and fight for a first-party insurance claim post-disaster). But we maintain a standard rule: be your self. Because we represent individuals and small business owners, we will never com pete with the big firms. But we can stand out in the crowd through honesty and character.

Under Texas Rule of Disciplinary Con duct 7.05(g), a communication in social media or other media, which does not ex pressly offer legal services and is primar ily informational or educational, is exempt from filing requirements. Our videos are not advertisements, as they’re educational about what is happening in the law and how our viewers might better protect them selves. However, we recognize that expo sure is key to new client outreach.

Some videos have proved more popular than others. Social media is still a work in progress for our team. It’s another job on top of everything else we must juggle in running our small business and life. But, in not taking ourselves too seriously while having a little fun in the process, it has yet to become a drag and is instead a fun way to express our joy in practicing law.

Sara V.C. Goldberg is an immigration attor ney, an associate judge at the City of Houston Municipal Court, and a mom of four kids. She is a partner in the Goldberg Law Office with her husband, Danny Goldberg.

By raChel Greene

Across Real Life, the Metaverse, and the Blockchain, Theft Will Not Prevail as the Legal Community Encompasses New Technology

Ahandbag, wallet, and shoes endure as signals of style, sta tus, and wealth. This article uses them as touchstones in ongoing cases for surveying how criminal and intellectual property enforcement and legal proceedings are generally evolving as metaverse and blockchain technologies mature.

Hermes Jypsiere in Houston, Texas

In the summer of 2020, my red Hermes Jypsiere purse was stolen from my car while I watched my son’s baseball game in a local park. The park did not have security cameras in the parking lots, and there was no electronic record of the theft. It was a purely anonymous crime with no eyewitnesses or identifi able perpetrators.

When I later filed a police report, I ensured that the officer included in the report that the Hermes purse had a unique maintenance number stamped on the inside pocket, which, as the sales man explained to me when I bought the purse, could be used to honor the war ranty but would not be traced back to me as the rightful owner in the Hermes systems. Although the purse has never been returned to me, Hermes still sends me marketing materials, a consistent re minder that some slice of my informa tion permanently rests in its internetbased electronic record keeping system. This crime is easy to articulate, but be cause it is difficult to identify the person who stole the purse and who will ulti mately buy the purse in the secondary market, the likelihood of return and ret ribution is low. However, the existence of the maintenance code could possibly provide a physical and tangible way to track my purse through the secondary market to its new owner someday.

In a similar manner, the use of iden tifying characteristics in blockchain codes could be used—and, in some instances, is already being used—to recover property and solve crimes per taining to digital assets that were once thought to be anonymous and impos sible to recover.

Blockchain Technology

Blockchain technology may help future purse, shoe, and other marketplace par ticipants because of its durability and information-sharing features.1 By tak ing advantage of these properties, in dividual product identifying numbers such as my purse’s maintenance code, when combined with blockchain tech nology, could transform how supply chain analysis is executed and how the market for secondary goods works.

Background about how the technol ogy functions may be helpful. Math ematics is generally conducted in isolation. Individual exercises are inde pendent of one another, each exercise is self-contained, and each is not depen dent or connected with other exercises. However, sometimes more advanced mathematicians, especially cryptogra phers, use nomenclature or code to at tach a historical or informational tail to their current math, such as X = 4 (it was equal to 3, before that it was equal to 2). Thus, blockchain code creators have been able to establish a math system that links historical, sequential math ematical effort to current mathematical activity and embeds data absolutely as the math progresses. That is, the codes’ chains blocks of mathematical activity with embedded data. The chain main tains itself, endures, and never exists in isolation.

The practical implications of the on going chain creation and maintenance protocols are important because they provide opportunities for creating vis ibility and transparency in the block chain process. Because that process requires large computing power and meaningful memory storage, large com puter-based code and massive process ing power are needed. Further, spread ing the calculations and storage across internet-linked computers provides re dundancy and security that is not avail able from one machine. Thus, the chain functions in a decentralized way, via a decentralized ledger. To participate in the math to build new blocks along the blockchain (that is, to become a “min

er”), different blockchain management regimes have different math games to play, computing power requirements, and other identifying features, such as an internet service provider (ISP) address. As blocks are built, tokens are generated that communicate and document the block’s existence. These tokens are stored in electronic wallets. How a wallet is administered via an ISP, name, or other identifier is a source of some technical and political debate, of

ten because some users apply a blender or tool to obscure identity with varying levels of success.2 Further, the naviga tion of blockchain development, main tenance over generations of blockchain, distributed ledgers, and governance of access to identifying obscuring tools are opportunities for the legal profes sion.

The most famous blockchain is Bit coin, which is focused on expanding itself to a fixed blockchain size. The

blockchain is then used to enable finan cial transactions outside of the histori cal monetary system using its tokens, which are referred to as “bitcoin.” Bit coin has a fixed regime for building more blocks in its chain and has gov erning rules, including a fixed number of bitcoins that it will generate before the building phase is extinguished. It is further constrained by what other data it will accept and store within its chain as its chain is built.

Etherium is another blockchainbased financial system among a grow ing, competitive field. Etherium has math, financial, and other code-based tools that rest on top of its blockchain to allow sophisticated transactions, such as directing peer-to-peer finan cial activity, linking to the webpages that store data or images, and execut ing computer code independent of the blockchain code, including unlocking access to remote devices or sharing information. Sometimes, this special ized code that relies on a blockchain framework is called a smart contract.

Etherium is unusual in that it refers to ether—the cur rency for its regime—as a proxy for the “gas” to power the blockchain and embed ded tools.

The data packets that are stored on a blockchain or the tools that rest atop the chain may consist of any variety of information. Written words, design schematics, chemi cal structures and composi tions, legal documents (such as titles, deeds, and wills), song lyrics, musical files, fi nancial instruments, visual arts, website addresses, and anything else that can be re duced to electrons generally may be stored on a block chain. This may be espe cially useful technology for tackling counterfeiting and providing more transpar ency for supply chains. Sec ondary markets for high-profile goods,

‘‘

The most famous blockchain is Bitcoin, which is focused on expanding itself to a fixed blockchain size. The blockchain is then used to enable financial transactions outside of the historical monetary system using its tokens, which are referred to as ‘bitcoin.’”

such as handbags, shoes, wine, and other collec tor’s items, may benefit. Goods that rely on many intermediaries for distri bution to the final user, such as food and drugs, may also benefit.

Tying a data packet to a physical item may in clude using a non-fungi ble token (NFT). As an additional application of NFT technology, some digital artists may gener ate multimedia creations that are tied to a specific blockchain and are also referred to as NFTs. Fi nally, some video game and social media plat forms may incorporate the substance of the art within NFTs, such as an avatar that has an unusu al tattoo, piece of jewelry, clothing item, or accessory.3 Thus, fact-

specific conditions will be important factors for how NFTs are treated in case law and the pending cases surveyed be low.

Hermes Birkin in the Metaverse

In the winter of 2022, Hermes filed suit against Mason Rothschild, a digital art ist, seeking an injunction and other relief for his use of Hermes’ distinc tive Birkin design in his electronic art.4 Rothschild had posted 100 electronic images of faux fur-covered Birkin bags that he marketed as “Metabirkins.” These Metabirkins were sold as NFTs over a blockchain-based platform. Rothschild marketed his wares using his name on Twitter and Instagram and on four NFT platforms with lan guage such as “NOT YOUR MOTHER’S Birkin” and the hashtags “#MetaBirkins GONNA MAKE IT” and “#MINT A METABIRKIN HOLD A METABIRKIN.” He announced in an interview with Yahoo Finance that “there’s not much difference in between having the crazy car or the crazy handbag in real life be

cause it’s kind of just that, that showing of like wealth or that kind of explana tion of success” and “now you’re able to bring that into the metaverse with these iconic NFTs.”5

As of the writing of this article, the case remains ongoing with a November 4 date for final pretrial conference. The outcome may help clarify copyright and trade dress enforcement issues in the metaverse and how NFTs generally interact with other platforms.

Nike Inc. v. StockX LLC

Another ongoing NFT case which links an NFT to physical goods in real life has been brought by Nike against StockX.6 StockX is a clearinghouse and trading platform for consumer goods, much like eBay. However, StockX provides some certainty that it does not sell counterfeit goods by using 11 worldwide authentication locations and other product verification tools and by storing merchandise in its warehouses as a service for investors. Further, it of fers a VaultX electronic service for con

firmation for some goods. This VaultX service includes an NFT that is linked to an individual item. VaultX market ing asserts the indestructible nature of their NFTs and their transparent, im mutable blockchain data storage. The VaultX NFT is not traded independent ly from the good to which it is attached and, thus, VaultX asserts the NFT has no market value independent of the good. StockX sells Nike shoes in the secondary market on its platform and uses the VaultX NFT service to accom pany the shoes as they exist on its plat form. Nike has sued VaultX for creating NFTs using its shoes.

As an additional matter, Nike has an NFT regime for its shoes, marketed as Cryptokicks. Nike’s NFT has no tie to a physical product and is sold over the RTFKT platform. Finally, in addi tion to its trademark and trade dress assets, Nike owns United States Patent Number 10505726 entitled “System and method for providing cryptographically secured digital assets,” but it is not part of the initial pleadings for this matter.7

LCX AG v. John Doe Nos. 1–25

As a final case to consider, LCX AG is a cryptocurrency exchange with geo graphical ties to Lichtenstein. LCX experienced a heist of cryptocurrency valued at about $8 million. With the assistance of CipherTrace—a crypto currency, intelligence, and blockchain security com pany based in the United States—LCX was able to identify some characteris tics about John Doe Nos. 1–25, actors who had elec tronic ties to the stolen cur rency. But the only initial identifying information was the electronic wallet of John Does 1–25 held in the USD Coin cryptocurrency ex change.8

LCX filed in the Supreme Court of the State of New York, New York County. Judge Andrea Masley ordered LCX’s lawyers to serve process via an elec

tronic coin to the electronic wallet in the initial Order to Show Cause and Temporary Restraining Order dated June 2, 2022. The electronic coin con tained a link to a website that included the court’s orders and the plaintiff’s pleadings. Consistent with the service rules of New York, the plaintiff did not need to uncover the identity of the defendants or pro vide proof that the defen dants opened the web site; the plaintiff just had to provide proof that the coin had been delivered to the electronic wallet.

Additional forensics revealed that some of the money rests in a specific stablecoin in a specific blockchain financial ser vices firm. Thus, a June 30, 2022 Order to Show Cause continues to identify John Does as defendants, but also lists “~1.274M

U.S. Dollar Coin, Defendant in rem” and “Circle Internet Financial, LLC, and Centre Consortium, LLC, Garnish ees and Relief Parties.” The June 30 or der identifies the attorneys for at least a portion of the John Does, the U.S. Dol lar Coin, and Circle Internet Financial. An additional order of July 19, 2022 indicates LCX identified additional John Doe activity, including using the mixer Tornado Cash to move ether to a Genesis Global Trading account. Thus, Genesis is now subject to a temporary restraining order.

An August 25, 2022 decision ac cepted the service of process based on placing an electronic coin in John Doe’s wallet.9 The decision also considers the New York framework for evaluating the defense attorney’s role and orders the defendant’s law firm to divulge the identity of its client.

Conclusion

At the time of this writing, both of my sons are taking U.S. history courses in

their respective school grades. In their textbooks, Texas is mentioned repeat edly through the centuries as the wild west of property rights across real prop erty skirmishes, battles, and treaties with distant foreign countries, Native American nations, and regional alli ances. As we conclude the first quarter

century of the 2000s, we’re poised for more property rights history-making as Texas seeks to be the world leader as a cryptocurrency mining industrial hub.10

The Houston opportunities enabled by blockchain technology are not limited to the financial industry. Block chain’s persistent data storage ca pability with un mitigated public availability may have profound commercial im plications on sup ply chain tracing; agricultural pro duction; health research; natural resource and en ergy modeling, monitoring, and production; and verification of goods that are

often subject to counterfeit efforts. As a Houston legal community, we will grapple with the areas where block chain hasn’t sanded its rough edges— with defendant identification and juris diction, intellectual property protection strategies and enforcement across new platform permutations, and crafty criminal exploitation of blockchain’s technical properties. Fortunately, we’re not a community that wilts in the midst of legal challenges. Our regional com mitment to innovation will inspire us to support our clients as we exploit technology fully and keep the would-be thieves at bay.

Rachel Greene

founded Greene IP to help technology frontrunners lead elegant and effective intellectual prop erty strategies. She delights in negotiating agreements with thorny confidentiality, data rights, and

Texas values. Global reach.

This year, the teams at Houston-based firm Briggs & Veselka and its subsidiary, Pathway Forensics, joined Crowe LLP, a public accounting, consulting, and technology firm with offices around the world. Crowe offers a variety of services and solutions for legal departments and law firms.

• Forensic accounting and litigation support

• Business valuation

• Family law forensic accounting

• Digital forensics and incident response services

• Legal management consulting

Explore more on crowe.com.

endnotes

1. See generally PRIMAVERA DE FILIPPI & AARON WRIGHT, BLOCKCHAIN AND THE LAW: THE RULE OF CODE (2018); see also Blockchain, WIKIPEDIA, https://en.wikipedia.org/wiki/ Blockchain (last visited Sept. 9, 2022).

2. See Ian Talley, Islamic State Turns to NFTs to Spread Terror Message, WALL ST. J., (Sept. 6, 2022), https://www.wsj.com/articles/islamic-stateturns-to-nfts-to-spread-terror-message-1 1662292800; Press Release, U.S. Treasury Sanctions Notorious Virtual Currency Mixer Tornado Cash, U.S. DEP’T OF THE TREASURY (Aug. 8, 2022), https://home.treasury.gov/news/press-releases/ jy0916.

3. Marie Ferey, A Legal Dispute in the Metaverse: Hermès v. Mason Rothschild, FORDHAM IN TELL. PROP. MEDIA & ENT. L.J. (Apr. 3, 2022), http://www.fordhamiplj.org/2022/04/03/a-legaldispute-in-the-metaverse-hermes-v-mason-roth schild/.

4. Hermès Int’l v. Rothschild, No. 22-cv-384 (S.D.N.Y. 2022); see generally Felicia J. Boyd, et al., Her mès’ Challenge of ‘MetaBirkin’ NFTs Foretells Future Trademark Litigation Trends, IPWATCH DOG (June 30, 2022), https://www.ipwatchdog. com/2022/06/30/hermes-challenge-metabirkinnfts-foretells-future-trademark-litigationtrends/id=149916/; Isaiah Poritz, Hermès, NFT Artist Clash Over Whether MetaBirkins Is a Trade

mark, BLOOMBERG L. (May 4, 2022), https:// news.bloomberglaw.com/us-law-week/hermesnft-artist-clash-over-whether-metabirkins-is-atrademark.

5. Interview by Alexis Christoforous with Mason Rothschild, NFT artist: ‘MetaBirkins’ project aims to create ‘same kind of illusion that it has in real life ’, YAHOO!FINANCE (Dec. 6, 2021), https:// finance.yahoo.com/video/nft-artist-metabirkinsproject-aims-200930209.html.

6. Nike, Inc. v. StockX LLC, No. 1:22-cv-00983-VEC (S.D.N.Y. 2022); see also Oscar Gonzalez, Nike’s Legal Fight With StockX Over Sneakers, NFTs: What to Know, CNET (May 21, 2022), https:// www.cnet.com/personal-finance/crypto/nikeslegal-fight-with-stockx-over-sneakers-and-nftswhat-to-know/.

7. Mark Hunter, Nike Awarded Patent for “Cryp toKicks” Blockchain Platform, FULLYCRYP TO (Dec. 12, 2019), https://fullycrypto. com/nike-awarded-patent-for-cryptokicksblockchain-platform#:~:text=Nike%20 Awarded%20Patent%20for%20%E2% 80%9CCryptoKicks%E2%80%9D%20Block chain%20Platform%20By,the%20sportswear%20 giant%20to%20launch%20its%20own%20cryp tocurrency.

8. LCX AG v. 1.274M U.S. Dollar Coin, Circle Inter net Financial, LLC, Centre Consortium, LLC, and John Doe, No. 22-154644 (N.Y. Sup. Ct. 2022); see also LCX AG v. John Doe Nos. 1–25, HOLLAND & KNIGHT, https://www.hklaw.com/en/generalpages/lcx-ag-v-doe (last accessed Sept. 9, 2022).

9. Similarly, in Texas, Texas Rule of Civil Procedure 106(a)(2) allows service by “other technology.”

10. Jim Flint, Moderator, Bitcoin: Juggernaut? Or Not?, Panel Discussion Before the Fort Bend County Chamber of Commerce (Sept. 8, 2022).

IP ownership and use issues and rel ishes developing and executing patent, copyright, and trade secret strategies to protect technology investments.

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 Volunteers Lawyers.

abraham, Watkins, nichols, agosto, aziz & stogner

akin gump strauss hauer & feld LLp

Baker Botts L.L.p. Bakerhostetler LLp Balch & Bingham LLp Beck redden LLp Blank rome LLp Bracewell LLp Law Office of David Hsu Brogden and associates 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 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 Koonsfuller, p.C. the Lafitte Law group, pLLC Kirkland & ellis LLp 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. painter Law firm pLLC rita pattni, attorney at Law Law Office of Robert E. Price rapp & Krock, pC reed smith LLp royston, rayzor, Vickery & Williams, LLp sanchez Law firm shell oil Company shipley snell montgomery LLp 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

of hANdguN LegIsLAtIoN:

The Texas Firearm Carry Act of 2021

The 18-year-old Uvalde school shooter legally purchased the two semi-automatic AR-15s used in the May 2022 massa cre. Neither federal nor state law prohibited the sale of these weap ons to the teen. A previous federal as sault weapons ban would have prevent ed the sale in the past, but Congress has allowed the law to expire and has not renewed it.

Historically, handguns have been more heavily restricted than long guns like rifles and shotguns. However, the Texas Legislature has worked over the past few legislative sessions to loosen handgun regulations. In 2021, Texas adopted unique legislation that protects the firearms industry by prohibiting any state agency or political subdivi sion from entering into contracts with companies if the companies discrimi nate against any firearm entity (which is broadly defined) or any firearm trade association.1 The 2021 legislative ses sion also ushered in “permitless car ry” (also called “constitutional carry”

by proponents), found in HB 1927 the Texas Firearm Carry Act of 2021, which took effect on September 1, 2021.2

From Prohibiting Handguns in Public to Permitless Carry

For over a century, Texas law prohibited carrying handguns in many public plac es by persons other than peace officers. The law changed in 1995, when thenGovernor George W. Bush signed SB 60, legalizing the carrying of concealed handguns in public.3 This law allowed people to carry concealed handguns, but only after obtaining a license to do so. As of 2016, the “campus carry” law mandates that public (but not private) universities and community colleges must permit concealed handgun license holders to bring handguns on campus.4

In 2016, the legislature moved from a “concealed carry” model to “open carry,” still requiring holstering, but allowing handguns to be visible.5 The prohibition on carrying handguns in side places of worship was removed in 2019.6 For private property and places of religious worship, the laws allow pro prietors to post appropriate signage if they choose to prohibit the carrying of handguns.

While the law generally allows car rying weapons in public, it designates certain types of places as off-limits for weapons. Prior law made it a crime to bring handguns into courts, polling places, racetracks, secured areas of air ports and schools. The recent HB 1927 added a few additional weapons-free lo cations, such as bars, premises of ama teur or professional sporting events, cor rectional facilities, and mental hospitals.

Of greatest significance, HB 1927 eliminates the requirement to obtain a li cense, which requires a gun safety class. Licenses are still available, but the law makes them optional rather than manda tory. Few handgun purchasers are likely to seek licenses in the future as the pro cess is time-consuming and costly.

What is lost by effectively eliminating gun safety training and the license pro cess? Under the old system, people seek

By sandra Guerra ThoMpson

ing licenses were required to attend four to six hours of classroom instruction taught by certified handgun instructors to learn the safe use of the weapon, in cluding the use of restraint holsters or other methods of securely carrying handguns, proper storage practices with an emphasis eliminating ac cidental injuries to children, and lessons on the law re garding the use of deadly force. The licensure law also required physical instruc tion at a firing range. Finally, applicants were required to pass a written examination and a physical demonstra tion of proficiency in the use of a handgun and in safety procedures. Instead of these rigorous gun proficiency requirements, HB 1927 now requires the Department of Public Safety to provide a free online gun safety course that gun owners can choose to take.

Moreover, removing licensure re quirements makes more people eligible to carry handguns in public. State (and federal) firearms law has long disquali fied certain people from possessing firearms, such as people with felony convictions or a Class A misdemeanor domes tic assault conviction, or who are the subject of a protective order, or have been adjudicated to be mentally incompetent. Al though HB 1927 makes no change to those who are disqualified from possess ing firearms, by removing the license requirement, the new law makes it le gal for some categories of people to carry firearms in public who would previously have not been eligible for licenses. By eliminating the license requirement, the following categories of people may now legally carry hand

guns in public: people who are not Texas residents, who have a pending felony or serious misdemeanor charge, who are mentally unsound (except those who are adjudicated as mentally incompetent), who are chemically dependent, delin quent on child support or tax payments, or in default on student loans.

Leniency for the Crime of Unlawfully Carrying a Handgun

The law makes several changes that effectively excuse or minimize pun ishment for people who violate the law in carrying a weapon in a manner prohibited by law. For example, the usual punishment for trespassing on another’s property after receiving no tice that entry is forbidden would be a Class A misdemeanor subject to a fine not to exceed $4,000 and up to one year in jail, or both. However, a person who trespasses by bringing a firearm onto a location after receiving notice that fire arms are prohibited would be guilty of the lesser Class C misdemeanor, which

‘‘

Of greatest significance, HB 1927 eliminates the requirement to obtain a license, which requires a gun safety class.”

is punishable by only a fine. Moreover, the normal $500 fine applicable to all other Class C misdemeanors is reduced by this legislation for handgun trespass ers to only $200.

HB 1927 also creates a unique oppor tunity for people who were convicted of unlawfully carrying weapons in the past to have all records and files relating to their arrests expunged. For all other offenses, expungement only applies for acquittals, pardoned convictions, case dismissals, or an arrest that has not re sulted in charges being filed after cer tain extended periods of time. The new provision allows people who were con victed of unlawfully possessing a fire arm prior to the passage of the bill to get their criminal records expunction. No other type of unpardoned criminal conviction may be expunged under Tex as law.

Conclusion

HB 1927 predates the horrific school shooting in Uvalde, but this was not Texas’ first mass shooting. The killing

of ten people at the high school in Santa Fe, Texas and other prior mass shootings surely informed this most recent Texas legislation. By moving to permitless carry and providing greater leniency for people who violate gun regulations, the new law enables more people to carry handguns, presumably with the goal that law-abid ing gun carriers will deter gun violence by criminals. The relaxation of handgun carrying coincides with the most recent U.S. Supreme Court ruling on the Second Amendment, which places some modest limits on a state’s ability to regulate the public carrying of handguns.7 Nonethe less, state legislatures—and Congress— can restrict the availability of especially lethal devices, like the assault rifle used in Uvalde. Indeed, as recently as October of this year, the Supreme Court refused to consider a challenge to the federal ban on “bump stocks,” devices that modify semiautomatic rifles to fire more rapidly.8 However, it won’t be the last time the Su preme Court—or the Texas State Legis lature—will take up cases and measures surrounding firearm legislation.

is the Newell H. Blakely Professor of Law and former director of the Criminal Justice Institute. She is widely published in the areas of criminal law, evidence, the regulation of forensic evidence, and federal asset forfeiture. She has taught criminal law, evidence, and a variety of other courses.

endnotes

1. Act of June 14, 2021, 87th Leg., R.S., S.B. 19, (codified at TEX. GOV’T CODE § 2274.001(2)).

2. 2 Firearm Carry Act of 2021, 87th Leg., R.S., H.B. 1927 (codified as an amendment to TEX. PENAL CODE § 46.02).

3. Act of May 16, 1995, 74th Leg., R.S., S.B. 60 (codified as an amendment to Penal Code section 46.035).

4. Act of May 31, 2015, 84th Leg., R.S., S.B. 11 (as codi fied TEX. GOV’T CODE § 411.2031).

5. Act of May 31, 2015, 84th Leg., R.S., H.B. 910 (as codified TEX. PENAL CODE §30.07).

6. Act of June 7, 2019, 86th Leg., R.S., S.B. 535 (codified as an amendment to TEX. PENAL CODE § 46.035).

7. New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022).

8. W. Clark Aposhian v. Merrick B. Garland, 21-159, and Gun Owners of America v. Merrick B. Garland, 211215.

Sandra Guerra Thompson

73rd Annual Harvest Celebration

Benefiting Houston Volunteer Lawyers

Monday, November 14, 2022 • 7:00 – 10:00 p.m. • River Oaks Country Club

100% of net proceeds raised for the Harvest Celebration directly benefit pro bono efforts in our community through Houston Volunteer Lawyers

Chris Popov

Diana Gomez

Greg Ulmer

Greg Moore

David Harrell

Daniella Landers

Jennifer A. Hasley

Robert Painter

Keri Brown

Kaylan Dunn

Samantha Torres

Collin Cox

Jeffrey Oldham

Pamela A. Medina

Colin Pogge

Benny Agosto, Jr.

Travis J. Sales

Kelly E. Hanen

Kelly Greenwood Prather

Mindy G. Davidson

Christian A. Garza

Travis Wofford

Polly Fohn

Hillary H. Holmes

Monica Karuturi

Quentin L. Smith

Krisina Zuñiga

Alistair Dawson

Linda Hester

Sejal Brahmbhatt

Richard Whiteley

Emma Doineau

Jamie Leader

Peter Lowy

Cassandra McGarvey

Aaron Reimer

Andrew Yeh

Audrey Moamanee

Chanler Langham

Tony Visage

Hon. Jerry Simoneaux

Jackie Furlow

Anne Chandler

Brittny Mandarino Curry

Tramaine Singleton

Thank you to the underwriters of the 73rd Annual Harvest Celebration

Diamond Sponsors

Baker Botts L.L.P.

Bracewell LLP

Hunton Andrews Kurth LLP

Locke Lord LLP

Norton Rose Fulbright US LLP

Vinson & Elkins LLP

Williams Hart & Boundas, LLP

Ruby Sponsors

Benny Agosto, Jr. and Nikki Agosto AZA Law

Blank Rome LLP Chevron Corporation Litigation Section

Sapphire Sponsors

BakerHostetler LLP

Hon. Harvey Brown

CenterPoint Energy, Inc.

Chamberlain Hrdlicka

LyondellBasell Industries

Phillips 66 Company Winston & Strawn LLP

Gold Sponsors

Arnold & Porter LLP

Beck Redden LLP

Clouthier Law, PLLC

Greenberg Traurig, LLP Haynes and Boone, LLP

Hewlett Packard Enterprise

Hicks Thomas LLP

King & Spalding LLP

Labor & Employment Section Latham & Watkins LLP

Silver Sponsors

Abraham, Watkins, Nichols, Agosto, Aziz & Stogner

Alternative Dispute Resolution Section

Jane and Doug Bland ConocoPhillips

Energy Law Section

Family Law Section

Foley & Lardner LLP

Gibbs and Bruns LLP

Gibson, Dunn & Crutcher LLP

Tom and Debbie Godbold Halliburton

David and Tammie Harrell

JAMS

Monica Karuturi and Kumaran

Sathyamoorthy Kirkland & Ellis LLP

Liskow

McGuireWoods LLP

Michelman & Robinson, LLP

Morgan, Lewis & Bockius LLP

Pillsbury Winthrop Shaw Pittman LLP

Chris and Annsley Popov

Real Estate Section

Sidley Austin Foundation

Spencer Fane LLP

Quinn Emanuel Urquhart & Sullivan; Karl Stern

Weil , Ghotshal & Manges

Willkie Farr & Gallagher LLP

Yetter Coleman LLP

Bronze Sponsors

Akerman LLP

Amegy Bank Balch & Bingham LLP

Baker Wotring LLP

Bissinger, Oshman, Williams & Strasburger LLP

Bradley Arant Boult Cummings LLP Burford Perry, LLP

Bush Seyferth PLLC

CITGO Petroleum Cokinos Young PC Coné PLLC

Jacquelyn and Collin Cox Crowe LLP

Mindy and Joshua Davidson Dentons US LLP

Diggs & Sadler

Digital Insurance, LLC dba One Digital Dobrowski Stafford LLP

Emma Doineau

Duane Morris LLP

Energy Transfer

Enterprise Products

Eversheds Sutherland US LLP

Federal Practice Section

Fogler Brar O’Neil and Gray LLP

Frost Bank

Frost Brown Todd LLC

FTI Consulting

Kerry Galvin

Christian A. and Janet G. Garza Family

Germer PLLC

Hon. Michael Gomez and Diana Gomez

Gray Reed

Hagans Montgomery Hagans

Jim and Susan Hart

Hartline Barger LLP

Hogan Lovells US LLP

Houston Lawyer Referral Service, Inc.

Jim and Cisselon Nichols Hurd

Jackson Walker

Jim Adler & Associates

Thank you to the HBA, HBF, and HVL board members for their service and support of the 73rd Annual Harvest Celebration!

Jenkins and Kamin, LLP

Jones Day

Kane Russell Coleman Logan PC

Kean Miller

McDowell Hetherington LLP

Hon. David M. and Pamela Medina

Mergers & Acquisitions Section

Greg and Jennifer Moore

Munsch Hardt Kopf & Harr, P.C. Okin Adams Bartlett Curry LLP

Jeff Paine and Brandon HolcombGoldman Sachs

Plains All American Pipeline, L.P. Porter Hedges LLP

Reed Smith LLP

Reynolds Frizzell LLP Service Corporation International Shearman & Sterling

Skadden, Arps, Slate, Meagher & Flom LLP

Smyser, Kaplan & Veselka, L.L.P.

South Texas College of Law Houston

Susman Godfrey L.L.P.

Validity Finance, LLC

Laura and Tony Visage

Vorys, Sater, Seymour and Pease LLP

Westlake Chemical Corp. Wright Close & Barger, LLP

Crystal Sponsors

Barry and Sue Abrams

Hon. Terry Adams Adams and Reese LLP

Sofia Adrogué/Diamond McCarthy LLP

Andrews Myers, PC

Appellate Practice Section B. Riley Advisory Services

Jack and Mary Balagia Bankruptcy Section

Sharon Marie Beausoleil

Brent and Christy Benoit Berg & Androphy

Susan L. Bickley

BoyarMiller Bragg Law PC

Sejal Brahmbhatt

Keri Brown and Ben Womack

Hon. Brett and Erin Busby BWA Video, Inc.

Anne Chandler

Christian Levine Law Group LLC

Commercial & Consumer Law Section

Construction Law Section

Copeland & Rice LLP

Corporate Counsel Section Cozen O’Connor

Criminal Law Section

Brittny Mandarino Curry Eric and Kami D’Olive

David Toy Law Firm

Wendy and Alistair Dawson

Amy Catherine Dinn

DLA Piper LLP (US)

Kaylan and John Dunn

Polly and Stephen Fohn

Fullenweider Wilhite, P.C.

Jackie and John Furlow

Lynn and Stewart W. Gagnon

Roland Garcia

Craig and Penny Glidden

Gordon, Arata, Montgomery, Barnett, McCollam, Duplantis & Eagan, LLC

Hon. Angela Graves-Harrington

Gregor Wynne Arney, PLLC

Hon. Joseph “Tad” Halbach

Kelly E. Hanen

Lauren and Warren Harris

Greg and Jennifer Hasley Hon. Kristen Brauchle Hawkins HBAA Charitable Fund, Inc.

Lindsey and Greg Heath

Hedrick Kring Bailey PLLC

Linda and Tracy Hester

Hicks Davis Wynn, P.C. Hirsch & Westheimer, P.C.

Hogan Thompson LLP

Hillary Holmes and Matthew Archer

Houston Young Lawyers Association

Infinity Reporting Group, LLC

Jackson Lewis P.C.

Jordan Lynch & Cancienne

Juvenile Law Section

Chris Gadoury and Julie Blair K & L Gates LLP

Shae Keefe and Mark Jacobs Keith Law, PLLC

Neil and Dana Kelly

Kilpatrick Townsend & Stockton LLP Daniella D. Landers

Chanler Langham Law Office of Janet Hansen Law Office of Seth Kretzer

James Leader

Elizabeth and Russell Lewis Life Savers Emergency Room Eric and Rhonda Lipper

Peter Lowy and Gabriela Boersner

Gina Lucero and Terry G. Fry Hon. Erin Lunceford and Mike Lunceford

Massey Law Firm PLLC

Mayday Law Office PLLC Tim and Ginnie McConn

Cassandra McGarvey MehaffyWeber PC Hon. Margaret Mirabal Audrey Momanaee Hon. Daryl L. Moore W. Michael and Laurie D. Moreland Hon. Brittanye Morris

Nathan Sommers Jacobs Jeff and Melissa Oldham Olson & Olson, LLP

Robert and Taunya Painter

Charlie Parker

Connie H. Pfeiffer

Colin and Sangita Pogge Kelly and Mike Prather Rapp & Krock PC

Aaron M. Reimer and Amanda Heidemann Reimer

Rose Sanders Law Firm

Karen and Scott Rozzell

Rusty Hardin & Associates, LLP

Hon. Frank Rynd

Travis and Sandy Sales

Shook Hardy & Bacon L.L.P.

Kay Sim Hon. Jerry Simoneaux

Tramaine Singleton

Quentin L. Smith Hon. Susan S. Soussan

Sponsel Miller Greenberg PLLC

Stacy & Baker, PC

Steven C. Howard P.C. Taxation Section

Taylor, Book, Allen & Morris, LLP The Buck Family Fund

The Lanier Law Firm

The Law Office of Daniel D. Horowitz, III, PC

The Springer Law Firm PLLC

Jennifer Tomsen

TONER Home Matters

Travis Torrence and Heath LaPray Samantha Torres and Jimmy Hollowell

Hilary Tyson

Sandy and Greg Ulmer

UnitedHealthcare Roy and Dominique Varner Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP

West Mermis

Richard and Laura Whiteley

Hon. LaShawn A. Williams Winstead PC

Travis and Dr. Lisa Wofford Womble Bond Dickinson (US) LLP Willie and Ingrid Wood

Andrew Yeh

Ytterberg Deery Knull LLP Zabel Freeman Law Firm

Other Sponsors

Animal Law Section

Antitrust & Trade Regulation Section Hon. Julie Countiss

Jennifer Walker Elrod

Entertainment & Sports Law Section Environmental Law Section

Chris Di Ferrante

Mr. and Mrs. Dereck Frederick Hon. Tanya Garrison

David T. Harvin

HBA Staff Health Law Section Hon. Yvonne Y. Ho Hon. James Horwitz

Samantha Jarvis

In Honor of Kennedy Kent Loftin In Honor of Kenneth Tekell and Jack Balagia International Law Section

Camille C. Jenman Law Practice Management Section

Marcum P.C.

Hon. Beau A. Miller Hon. Margaret Poissant

Probate, Trusts & Estate Section Hon. Veronica Rivas-Molloy and David Molloy

Robin Raasch

Jane Langdell Robinson

Anna Robshaw, Greenberg Traurig LLP

S. Mayer Law

Hon. Robert Schaffer

Social Security Section

Hon. Charles Spain and John Adcock

Cooper Sukaly

Hon. Cheryl Elliott Thornton

Brooks Tobin and Jacquelyn Rex Hon. Fran Watson Hon. Ken Wise Krisina Zuñiga and Rick Houghton

In Kind Sponsors

The Houston Lawyer

Young Lawyer Spotlight

Valery Piedra

Tell me a little bit about your background.

Valery: I am Colombian-American. I was raised in a Spanish-speaking household and was taught the impor tance of community early on in life. My mom, Yolanda, was a stay-at-home mom and dedicated her entire life to her children and family. My dad, James, is an engineer and at certain points of our lives had multiple jobs so he could provide for us. My family taught me the importance of perseverance and the power of commu nity—lessons that I carry with me every day.

Where do you work and what is your practice area?

Valery: I work at Jackson Walker LLP in the Corporate & Securities section, where I work on transactions in a variety of industries, including film/tv, sports, and fashion.

Where did you go to school and when did you graduate?

Valery: I went to The University of Texas at Austin for undergrad and graduated with a B.S. in advertising. I worked in advertising/sales during and after my time at UT. I went to law school at South Texas College of Law Houston and graduated in May 2019.

What offerings did South Texas provide for someone who wants to go into entertainment or me dia law?

Valery: South Texas has an entertainment law course and has student organizations dedicated to entertain ment & sports law.

Why entertainment law?

Valery: Entertainment law is such an important and fascinating area of the law. Your job is to help create stories. Whether it is producing a movie, publishing a book, curating art, or protecting designs. Every artist has a story to tell, and it is your job to help make it happen.

Why did you choose to join the HBA as a young lawyer?

Valery: I wanted to learn more about the legal world. I found it fascinating how so many different areas of law in terconnect and always thought it was interesting to learn about other practices. Also, the HBA is a great way to get involved in the Houston community and give back to our beautiful and vibrant city.

What are you involved in within the HBA?

Valery: I am a member of the Corporate Counsel Section, as well as an officer of the Entertainment and Sports Law Section.

What keeps you grounded outside of the practice?

Valery: Yoga and time with my family.

What’s your best piece of advice for young lawyers?

Valery: Stay curious and keep discovering.

Valery Piedra

A Profile

in p R o F ession A lism

Growing up, my mother and father instilled in me the importance giving back. Many of my fond est memories are of our family cooking at a soup kitchen that my father helped expand over the years. The importance of service is foundational for me and has always been a driving force in my educational and career decisions.

Although I began my career in public health, I quickly realized that a law degree could be a force multiplier in helping people thrive and overcome. Because lawyers have a unique skillset that can up lift others, I believe we work in the most impactful profession when we apply our skills for the greater good.

My upbringing, combined with my legal and business career, helped me understand the importance of investing in the communities where we live and work. Businesses that integrate a proactive community strategy into their operations are also more likely to achieve their goals. Finding ways to connect employ ees to this work is paramount. Through volunteerism, a company can enhance its reputation, brand, image, and, most importantly, represent and live its values. Employee volunteerism also builds morale and fosters employee engagement and retention.

At a time when stakeholders expect more in addressing diversity, equity, and inclusion (DEI) and other aspects of environmental, social and governance issues, businesses should embrace their call. My decision to come to and stay at CenterPoint Energy has been largely driven by the company’s commitment to serv ing and representing the communities in which we operate. I am proud that CenterPoint Energy celebrates volunteerism, supports charitable giving, and promotes inclusion and belonging. I am also honored that our legal team is at the forefront in advancing our company’s DEI strategy and providing leadership for the company’s employee resource groups and community service efforts.

For leaders, supporting our communities is more than just goodwill. It is also a strategic tool for driving business performance, enhancing reputation, building stakeholder relationships, engaging employees, de veloping future leaders, and living our values. We must all continue to advocate for deepening and expand ing community investment to work toward a more equitable future for everyone.

MoniCa karuTuri Executive Vice President, CenterPoint Energy

Judge Christine Weems:

By CarlY Milner

How a Passion for Theater Grew Into a Production Company

In college and law school, Judge Christine Weems competed in mock trial at least twice a year. When she wasn’t presenting her case, she took on the role of a witness. After graduating from law school, she missed the fun of acting in mock trials, and, taking a leap, au ditioned for a play called Bar becuing Hamlet about a New York director brought to a small town to produce Ham let. Although she had never acted in a play before, she was cast in the lead part.

Despite her busy life as a junior lawyer, Judge Weems dove into the Houston com munity theater scene and continued acting, not just for the fun of the acting itself, but also for the camaraderie. After acting in ten shows in a row from 2004 to 2005, she decided to take a few months off work to train at a summer acting academy in New York. This led to staying in New York for several years, working as a lawyer while also act ing, including as an extra on shows like 30 Rock and Law and Order

While in New York, Judge Weems got involved in the business side of a theater company. When she and her husband, a playwright, moved back to Houston, they started their own theater company, Cone Man Running, to bring original works to Houston. Cone Man Running’s signature event is Spontaneous Smattering, a 24-hour play festival in which 36 actors commit to performing for one day. The day before the event, playwrights receive the parameters: plays must include a particular word, prop, or other feature. They bring back a script the next day, and the performances begin. To help loosen everyone up, the audience gets a shot at the door. At the end of the event, the audience votes on favorites, awarding traffic cones to plays with the best script, best props, and other superlatives. But Spontaneous Smattering isn’t just fun: Cone Man Running has raised over $15,000 and gathered more than 3,000 canned goods for the Houston Food Bank as part of this event.

Cone Man Running puts on other regular events celebrating creativity and originality, like Five Minute Mile, a five-minute play

festival with a different lineup of plays every night. During the CO VID lockdown, when theaters shut down completely, Judge Weems started War of the Words: Audio Battle, a podcast that pitted play wrights against each other in a bracket-style competition. Each episode featured two short plays on a theme with a sound cue, and the audi ence then voted on which play would advance. To date, the podcast has produced 81 individual plays featuring 31 playwrights and 56 actors from around the world. Cone Man Running is about to start the third season of the show, which will be available (along with all of the previ ous episodes) on the Cone Man Running website.

Most recently, Judge Weems directed Twelve Angry Jurors, a play about jury deliberations in a criminal case. She wanted to cast law yers and judges rather than professional actors in a production and chose a play that would suit first-time actors—one that involved something within their life experience. The cast rehearsed two or three nights a week for about a month and a half, then put on nine performances. One of the performances was “Law Student Night,” where the students had a chance to talk to the judges and lawyers performing in the play after the show—not just about the jury sys tem, but also about the importance of making time for interests outside the law.

For Judge Weems, her involvement in theater is about more than the acting and directing—it’s about the theater community. She en courages lawyers and other first-time actors to audition for plays and will work with their schedules to facilitate their participation.

To find out what Cone Man Running will do next, or to watch past performances, go to conemanrunning.com or find the compa ny’s channel on YouTube.

Carly Milner is a trial lawyer and partner at Fogler, Brar, O’Neil & Gray LLP.

Judge Weems directed Twelve Angry Jurors, a production featuring Houston lawyers and judges which ran August 2022.

Entertainment and Sports Law Section: Promoting Houston’s Expertise in This Niche Field

By ALexIs WhItAker

The Houston Bar Association’s Entertainment and Sports Law (“ESL”) Section is excited to reenergize the world of entertainment and sports within Houston from a lawyer’s lens. The ESL Section’s purpose is to pro mote and enhance the practice of law by all lawyers who specialize, or are interested, in entertainment, arts, media, and sports law. The roughly 60 members of this section include lawyers with clientele ranging from entertain ment and/or sports organizations, actors, mu sical artists, athletes, fashion designers, and so much more. Like so many, the entertainment and sports industries took a big hit as a result of COVID-19. With the impact of the pandemic and a shift in trends, the section intends to highlight the new landscape of en tertainment and sports and further promote the Houston market in an effort to gain international recog nition within this industry.

The section will host various gatherings, including CLEs and social events. CLE discussions will include topics ranging from film and television since the pandemic, the use of non-fungible tokens, the battle of music rights, the rise in social media influencers, and col legiate name, image, and likeness. The first 2022–2023 ESL member event was held September 8 at Trez Bistro & Wine Bar. This kickoff event was open to all current members as a way to reconnect since the pandemic. In addition to CLEs and social events, the section plans to engage in civic activities to provide a mean ingful impact across the city.

The current ESL officers are a diverse group of young and enthusiastic attorneys who bring unique qualities to the sec tion. Hannah Johannes serves as chair of the section. She is

a corporate transactional associate at Frost Brown Todd LLC. Hannah is a 2019 TSU-Thurgood Marshall School of Law graduate and is passionate about helping to facilitate business opportunities and pro tecting the rights of talent in entertainment and sports. Valery Piedra is a corporate and securities associate at Jackson Walker LLP and serves as the section chair-elect. Valery is a 2019 graduate of South Texas College of Law Houston and focuses her practice on entertainment-related mat ters, such as film, television, and fashion law. The section treasurer is Jeremy Sims, who is the founding and manag ing partner of Sims Legal Con sultancy Firm. Jeremy graduated from Texas Southern University Thurgood Marshall School of Law in 2020 and his practice focuses on new-age technology and its role in entertainment through copyright and trademark usage. Finally, I am the section’s secretary. I am an incoming corporate transactional associate at Shearman and Ster ling LLP. I graduated from TSU Thurgood Marshall School of Law in 2022 and am passionate about entertainment law, specifically in film and television, as I interned at Paramount+ with the Nickelodeon network, while in law school. Despite challenging times, the current officers are eager to host CLEs and social events that will showcase the breadth of enter tainment and sports across Houston. Our hope is to continue to grow the presence and legacy of Houston attorneys within this niche practice.

Alexis Whitaker is secretary of the HBA Entertainment and Sports Law Section.

Members of the HBA Entertainment and Sports Law Section held their fall member mixer on September 8, 2022.

By MAggIe MArtIN

Law & the Media Committee: Fostering Healthy Dialogue Through Engaging New Series

Since 1986, the Houston Bar Association has held an annual Law & the Media Seminar to encourage dia logue between the legal and news professions. Work ing closely with the Houston chapter of the Society of Professional Journalists (SPJ), these programs have explored libel, priva cy laws, and other timely topics where journal ism and the legal system often intersect.

2022–2023 HBA President Christopher V. Popov has charged this com mittee—one which has been bringing members first-class programming for over 25 years—with spearheading a new series as part of his fo cus area, “Elevated Civil Dis course.” The goal for the HBA President’s Speaker Series, as President Popov told a packed ballroom at the HBA Annual Dinner in May, is to bring substantive, thoughtful insight to the leading legal stories of the day.

The series debuted at Vinson & Elkins on September 14, featuring highly esteemed legal ex perts to discuss name, image, and likeness (NIL) case law and its impact on college athletics. An incredibly timely topic given the start of college football season, panelists talked about what these changes mean for college programs, the effects on studentathletes, and how these issues intersect with other policies, such as Title IX. The speakers were former NFL player Mickey L. Washington, founder of Washington & Associates, PLLC; Dona Cornell, University of Houston System vice chancellor for legal affairs and general counsel, and UH vice president for legal af fairs and general counsel; Professor Gabriel Feldman, Sher Gar ner Professor of Sports Law and the Paul and Abram B. Barron Professor of Law at Tulane Law School, director of Tulane Law School’s Sports Law Program, and Tulane University’s associate provost for NCAA compliance; and Professor Michael McCann, University of New Hampshire’s founding director of the Sports

and Entertainment Law Institute. The discussion was moder ated by Joseph Duarte, who covers college sports for the Hous ton Chronicle. The program wrapped with audience Q&A. You can see photos of the event on the HBA Law & the Media Committee webpage at hba.org

The next HBA President’s Speaker Series program wasn’t far behind. On October 28, just days before Texas’ No vember 8 midterm elections, speakers delved into recent vot ing legislation in Texas, the le gal challenges stemming from those changes, and what voters need to know. The event was held at South Texas College of Law Houston.

In addition to the commit tee’s law co-chair (HBA Secre tary Daniella Landers, Womble Bond Dickinson (US) LLP) and media co-chair (Chris Tritico, Tritico Rainey, PLLC) who are charged with leading this com mittee, the HBA has partnered with Houston’s law schools to welcome three representatives as co-chairs this year. Those are Dean Leonard M. Baynes of the University of Houston Law Center; Michelle Morris, associate vice president of marketing and communications with South Texas College of Law Houston; and Professor Elsa Ransom with Thurgood Marshall School of Law.

The HBA President’s Speaker Series will continue into 2023 with programming about major decisions from the U.S. Su preme Court. Look out for more details about these events in the months ahead.

Maggie Martin is the marketing and communications director of the Houston Bar Association and managing editor of The Houston Lawyer. She previously served on the marketing and communica tions team at the Greater Houston Partnership and produced for Houston Matters at Houston Public Media.

A panel of legal experts spoke at the first HBA President’s Speaker Series event at Vinson & Elkins on September 14, 2022.

Join the HBA 100 Club!

tthe 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, LLP

Hagans Montgomery Hagans

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 LLP

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

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

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Monroe Guaranty v. BITCO: Texas Supreme Court

(Finally) Recognizes Exception to the Eight-Corners Rule

By J. sTephen BarriCk, CourTneY e. erVin, and sTaCie osBorn

The eight-corners rule is an analytical tool for evaluating whether a liability insurer owes its insured a duty to defend. The rule generally prohibits courts and insurers from considering extrinsic evidence when determining whether the insurer has a duty to defend its insured in a given case. As its name suggests, courts and insurers must consider the allegations within the four corners of the petition in light of the provisions within the four corners of the insurance policy, “without reference to the truth or falsity of such allegations.”1 All doubts must be resolved in favor of the insured.2

In 2004, the Fifth Circuit made an Erie guess that “in the unlikely situation” that the Texas Supreme Court recognized an exception to the strict eight-corners rule, it would do so only where “it is initially impossible to discern whether coverage is potentially implicated and when the extrinsic evidence goes solely to a funda mental issue of coverage which does not overlap with the merits of or engage the truth or falsity of any facts alleged in the underlying case.”3 This became known as the Northfield exception.

For nearly two decades, the Texas Su preme Court had not addressed whether the Northfield exception was valid, de spite multiple opportunities to do so.4

But earlier this year, in Monroe Guar. Ins. Co. v. BITCO Gen. Ins. Corp., 5 the court finally addressed whether it would recog nize the exception when the Fifth Circuit certified the question to the court in the most direct terms possible: “Is the excep tion to the eight-corners rule articulated in Northfield Ins. Co. v. Loving Home Care, Inc., 363 F.3d 523 (5th Cir. 2004), per missible under Texas law?”6

The Texas Supreme Court answered the question “yes,” subject to some refine ments, but stressed that the eight-corners rule remains the initial inquiry to determine wheth er the insurer owes a duty to de fend and that “will resolve coverage determinations in most cases.”7 But the court held that courts and insur ers could consider extrinsic evidence “if the underlying petition states a claim that could trigger the duty to defend,” but “due to a gap in the plaintiff’s plead ing,” the duty to defend cannot be deter mined.8 However, to be admissible, the extrinsic evidence must:

(a) go solely to an issue of coverage, with no overlap with the merits of liability;

(b) not contradict any material facts alleged in the pleading; and (c) conclusively establish the coverage fact to be proved.9

Applying this standard to the facts in BITCO, the Texas Supreme Court held that the extrinsic evidence in that case could not be considered because it over lapped with the merits.10 BITCO involved

a claim for damage to an underground water well and reservoir allegedly caused by the insured’s negligent operations, and the key coverage issue was when the dam age occurred. The parties had stipulated that a key event—the insured’s drill bit getting stuck in the well—had occurred on a certain date, and that stipulation was the extrinsic evidence in question. In concluding that the evidence could not be considered, the court broadly held that evidence of the date of an occurrence in a continuing damage case overlaps with the merits because it essen tially forces the insured to confess to damages at a particular date to invoke coverage.11

At long last, BITCO has defini tively answered the question of whether the Northfield ex ception is viable under Texas law. While BITCO’s modification to Northfield ap pears minimal, there will be an uptick in lawsuits as policyholders and insurers alike seek to understand the outer limits of this exception to the eightcorners rule. The greatest source of ten sion will likely be whether the extrinsic evidence offered overlaps with the mer its. Based on the court’s broad holding on this issue in BITCO, if there is any cred ible argument that coverage and the mer its overlap, then it is unlikely that a court will consider extrinsic evidence.

J. Stephen Barrick is a trial lawyer and appellate specialist at Hicks Thomas LLP, where his practice focuses on business litigation and appeals. Mr. Barrick is board

certified in civil appellate law by the Texas Board of Legal Specialization and has over 20 years of experience litigating complex business disputes.

Courtney E. Ervin is a trial partner at Hicks Thomas, where she represents clients in the insurance, energy, and private equity industries. She handles a variety of complex business disputes ranging from pre-litigation counseling to trial in state and federal courts and in arbitration.

Stacie Osborn is an associate at Hicks Thomas, where her practice focuses on commercial litigation, primarily in the construction, oil and gas, and insurance industries. Ms. Osborn joined the firm after clerking for the Honorable Ivan L.R. Lemelle in the Eastern District of Louisiana.

endnotes

1. Heyden Newport Chem. Corp. v. S. Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex. 1965).

2. Id. at 26.

3. Northfield Ins. Co. v. Loving Home Care, Inc., 363 F.3d 523, 531 (5th Cir. 2004) (emphasis in the original).

4. See Richards v. State Farm Lloyds, 597 S.W.3d 492, 496–97 (Tex. 2020) (acknowledging other courts’ recognition of the exception to the eight-corners rule stated in Northfield but declining to decide whether to adopt it); Pine Oak Builders, Inc. v. Great Am. Lloyds Ins. Co., 279 S.W.3d 650, 654–55 (Tex. 2009) (same); Zurich Am. Ins. Co. v. Nokia, Inc., 268 S.W.3d 487, 497–98 (Tex. 2008) (same); Guide One Elite Ins. Co. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 308–10 (Tex. 2006) (same).

5. 640 S.W.3d 195 (Tex. 2022).

6. BITCO Gen. Ins. Corp. v. Monroe Guar. Ins. Co., 846 F. App’x 248, 252 (5th Cir. 2021).

7. BITCO, 640 S.W.3d at 201. 8. Id. at 203. 9. Id. at 202. 10. Id. at 204. 11. Id

Avoid a Perry Mason Moment: Snap Back Properly

By lauren Veillon

Late this summer, all eyes were on proceedings in the 261st District Court of Travis County, Texas, where Infowars founder

Alex Jones was the defendant in a defamation lawsuit—one of several pending lawsuits concerning the Sandy Hook tragedy and Jones’ role in the subsequent media coverage. One moment, in particular, likely sent a shiver down the spine of every lawyer tuning in; in fact, Alex Jones himself (albeit perhaps sarcastically) referred to the exchange as plaintiffs’ attorney Mark Bankston’s “Perry Mason moment.” During cross-examination of Jones, Bankston revealed that Jones’ attorney had sent a link containing a large volume of privileged and/or confidential material to the plaintiffs. Texas law provides protection from such inadvertent disclosures under Texas Rule of Civil Procedure 193.3(d). So, what happened? According to Bankston, Jones’ lawyer failed to properly “snap back” the material in accordance with the requirements of the rule.

Texas Rule of Civil Procedure 193.3(d), known as the “snap-back” rule, sets forth the procedure for retriev ing privileged material that is inadver tently disclosed. Under this rule, a party who inadvertently discloses privileged material or information must, within 10 days from the date of discovery that such material or information was pro duced, amend the response to identify the privileged material and the privilege asserted.1 If these remedial steps are taken, privilege is preserved, and the disclosed material must be promptly re turned by the receiver. These remedial steps are important, the Supreme Court of Texas held in Paxton v. City of Dallas, because “inaction under such circum stances is inconsistent with claiming the privilege.”2

In the Alex Jones case, an emergency motion filed the day after the exchange between Bankston and Jones provided Jones’ attorney’s initial response to the notification that he may have inadver tently disclosed privileged information:

...T]here appears to have been a mistake in the file transfer... Please disregard the link and I will work on resending.

Does this statement alone meet the requirements of Rule 193.3(d)? Prob ably not. The rule requires that the producing party amend the response to identify the material that is privileged and state the specific privilege asserted. While this rule provides a fairly simple way to correct mistakes, its procedure must be strictly followed to enjoy the protection it provides.

What about receiving privileged in formation that has been inadvertently disclosed? An October 2016 opinion by the Professional Ethics Committee for the State Bar of Texas discussed the failure of a party to notify an oppos ing party that they have received con fidential information (including privi leged information) from, or belonging to, the opposing party. In the opinion, the ethics committee concluded that the Texas Disciplinary Rules do not di rectly address the failure of a lawyer to notify an opposing party of the receipt of confidential information; therefore, it is not necessarily a violation of the rules to choose not to notify an oppos ing party of receipt of confidential in formation. However, attorneys should carefully consider what other potential consequences may result before choos ing not to disclose receipt of (and, more importantly, use of) any privileged in formation that was inadvertently dis closed.

Lauren Veillon is an associate in the Probate and Fiduciary Litigation Group at Kean Miller LLP and a member of The Houston Lawyer editorial board.

endnotes

1. Texas Rule of Civil Procedure 193.3(d).

2. Paxton v. City of Dallas, 509 S.W.3d 247, 263 (Tex. 2017).

The Staircase

HBO, 2022. Netflix, 2004–18. reviewed by andrew fleTCher

Is a dramatic adaptation of a documentary more restricted, or more open, than one of a fictional work? Viewers are now able to watch both Jean-Xavier de Lestrade’s French documentary The Staircase, which first released episodes in 2004 and concluded in 2018, and HBO Max’s eponymous 2022 miniseries based on the documentary. Upon doing so, the audience will hopefully answer the above question as “both.”

Both works concern the saga of Michael Peterson, an author convicted of murder ing his wife Kathleen in 2003, two years after she was found dead at the bottom of a staircase in their home. What ensued over the next 14 or so years was an appel late process that resulted in the grant of a new trial and ultimately Michael’s Alford plea to manslaughter.

The documentary’s 13 episodes start in the aftermath of Kathleen’s death from multiple perspectives, including the Pe terson family, the district attorney, and the defense team helmed by David Ru dolph. Later episodes jump in time as new developments occurred.

The obvious benefit of the docuseries format is time—both to tell a story and for the viewer to breathe. Despite bracketing in the form of transitions for certain top ics, some viewers may find this slow burn chafing. For this reviewer, that develop ments emerge subtly and at unexpected moments from various people feels true to life; the editing succeeds at this Goldi locks problem and includes just enough footage to maintain this feeling without losing the audience’s attention.

As for Antonio Campos’ eight-episode dramatization of the same subject mat ter, the series openly acknowledges that its retelling adds yet another layer to the murky circumstances surrounding Kath

leen’s death. The first episode even begins by quoting a version of Pontius Pilate’s in famous phrase, “What is truth?”

As one might expect from HBO, the production values are excellent. The cinematography switches from classic shots to shaky-cam, and there are a few grander, sweeping shots for emphasis. But as something of a period piece, HBO’s The Staircase is primarily filmed in tight close-ups, focusing on the characters themselves.

The compression of the story does not, for the most part, affect the pacing, and the only time the plot meanders is when the series attempts to provide sufficient individual characterization and motiva tion for each of the Petersons’ five chil dren. Much of the dramatization of the series plays out through the family dy namics between Michael (Colin Firth, The King’s Speech), Kathleen (Toni Col lette, Knives Out), and those children— as it happens, the products of a blended family. Firth, Collette, Timothy Guinee, and Rosemarie DeWitt deliver the most outstanding of a group of good perfor mances.

But it is Collette’s sympathetic perfor mance as Kathleen—depicted via flash backs showing her complicated relation ship with Michael, including her possible knowledge of his infidelity—and the filmmakers’ emphasis on Michael’s histo ry as a fabulist (in multiple respects) that truly mark the series’ departure from the documentary. Whereas Michael’s culpa bility for his wife’s death remains without a definitive answer at the end of the earli er work, the dramatization all but invites the viewer to draw a conclusion—one de cidedly unfavorable to Michael—even as it appears to take pains to remain neutral by showing several different versions for how Kathleen may have died.

All in all, both treatments of Michael and Kathleen Petersons’ story are worth the viewers’ time—albeit after watching both series, one is left with no more clar

ity as to what happened on that staircase in North Carolina two decades ago

Andrew Fletcher is an assistant district attorney at the Harris County District Attorney’s Office.

Getting Away with Bloody Murder: J.B. Brockman, the Best Criminal Lawyer in Texas

By Mike Vance published by pelican publishing reviewed by rYan kenT

“Iam a lawyer and... I certainly would not do anything that I would not be justified in doing.” These reportedly were the words of Jim Mitchell, a newly minted lawyer from Richmond who shot and killed three people outside Houston’s Grand Central Depot in 1894. It’s a story vividly recounted (among many, many others) in local historian Mike Vance’s latest work, Getting Away with Bloody Murder: J.B. Brockman, the Best Criminal Lawyer in Texas.

Admittedly, the context in which the above quotation was uttered—a triple homicide in which the shooter’s target, a constable from Eagle Lake, and two by standers were killed—was undeniably tragic. Indeed, contemporary Housto nians even took to calling the event “The Triple Tragedy.” But as Vance equips the reader with the full backstory for why a member of the bar may have instigated a gun battle outside a Houston train sta tion, the episode winds up being more farcical than heartbreaking.

Vance fills the pages of Getting Away

with Bloody Murder with similar such tales, from an erstwhile sheriff’s dep uty shooting and killing his friend, a justice of the peace, outside a saloon on Fannin Street after the two had been “drinking for some time” and reminisc ing “as old buddies with a buzz are apt to do,” to the saga surrounding the death of William Marsh Rice, namesake of the university, who may have been poisoned by a lawyer looking to profit from a change to Rice’s will, by Rice’s own valet, by both acting in concert, or maybe none of the above. Death is everywhere you look, and it is Vance’s attention to detail—his thor oughness in presenting the players who feature prominently in these morbid vi gnettes—that saves Getting Away with Bloody Murder from becoming a grim catalog of turn-of-the-century crimes.

But while murder is the star of the Vance’s show, J.B. Brockman himself of ten is relegated to a mere cameo. Not al ways, to be sure, but frequently enough that I found myself wondering when “the best criminal lawyer in Texas” would be making an appearance.

To Vance’s credit, two of the book’s longer chapters are very much about our flawed protagonist. Only a handful of pages after learning that an up-and-com ing Brockman placed a classified ad for a nanny with the specification that she be a “white girl to do work for a small family,” we are told of Brockman’s dogged efforts in representing his client, Starky Collins, a Black man accused of murder, which included arguing against the prevailing practice in Harris County of excluding Black jurors. And when that argument failed and Collins was convicted of man slaughter, Brockman succeeded in hav ing the conviction overturned after the appellate court agreed that the county’s

racist practices in jury se lection were a bridge too far, even in Texas circa 1900.

From these glimpses into Brockman’s person al and professional life, Vance ably presents the reader with a true anti hero: a character we might not always be rooting for, but then neither do we find ourselves rooting

against exactly. And when Vance finally unspools the story of how Brockman’s career was cut short in 1910, it is equal parts shocking and saddening. I won’t spoil too much of the surprise here, but fittingly it involves a former Texas rang er and future chief of Houston’s police department getting away with—what else?—bloody murder

Ryan Kent is an assistant district attorney at the Harris County District Attorney’s Office.

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