Official Publication of the San Antonio Bar Association
honors
TEXAS BAR FOUNDATION Chief Justice Sandee Bryan Marion
January–February 2021
POWERING
PAYMENTS Trust Payment IOLTA Deposit Amount
$ 1,500.00 Reference
NEW CASE Card Number
**** **** **** 4242
FOR THE
LEGAL INDUSTRY The easiest way to accept credit, debit, and eCheck payments
The ability to accept payments online has become vital for all firms. When you need to get it right, trust LawPay's proven solution. As the industry standard in legal payments, LawPay is the only payment solution vetted and approved by all 50 state bar associations, 60+ local and specialty bars, the ABA, and the ALA. Developed specifically for the legal industry to ensure trust account compliance and deliver the most secure, PCI-compliant technology, LawPay is proud to be the preferred, long-term payment partner for more than 50,000 law firms.
Proud Member Benefit Provider
ACCEPT MORE PAYMENTS WITH LAWPAY 888-907-9757 | lawpay.com/saba
contents ON THE COVER 8 Texas Bar Foundation Honors Chief Justice Sandee Bryan Marion
By Sara Dysart Cover photo by DaVeck Studios
FEATURES 12 Proposed Texas Disciplinary Rules and Texas Rules of Disciplinary Procedure: What They Are and What They Do
By Claude E. Ducloux
16 A rbitration Clauses in Attorney-Client Agreements: Some Practical Advice
By Aric J. Garza
23 Charles Manson Fifty Years Later Part I: The Murders
By Mark J. Phillips and Aryn Z. Phillips
9 Chief Justice Sandee Bryan Marion photographed by Natalee Marion
DEPARTMENTS
BAR BUSINESS
5 Feedback
19 G lass Everywhere: Reflections on Waiting for Our First Female Vice President
6 ReflexiÓnes
By Ashley Senary Dahlberg and Bexar County Women’s Bar Association
27 Fourth Court Update
By Justice Rebeca C. Martinez and Nadeen Abou-Hossa
28 Federal Court Update
By Soledad Valenciano, Melanie Fry, and Charles Carter
January–February 2021
|
San Antonio Lawyer 3
™
Official Publication of the San Antonio Bar Association San Antonio Lawyer is published bimonthly. Copyright ©2021 San Antonio Bar Association. All rights reserved. Republication of San Antonio Lawyer content, in whole or in part, is prohibited without the express written permission of the San Antonio Bar Association. Please contact Editor in Chief Sara Murray regarding republication permission. Views expressed in San Antonio Lawyer are those of the authors and do not necessarily reflect the views of the San Antonio Bar Association. Publication of an advertisement does not imply endorsement of any product or service. San Antonio Lawyer, the San Antonio Bar Association, and the Publisher reserve the right to edit all materials and assume no responsibility for accuracy, errors, or omissions. San Antonio Lawyer and the Publisher do not knowingly accept false or misleading advertisements or editorials, and do not assume any responsibility should such advertising or editorials appear. Contributions to San Antonio Lawyer are welcome, but the right is reserved to select materials to be published. Please send all correspondence to info@sabar.org.
Advertising Inquiries:
Archives of San Antonio Lawyer are available at sabar.org. Monarch Media & Consulting, Inc.
Send address changes to the San Antonio Bar Association.
Mediation Booking: DonPhilbin.com Scheduling Assistance: (210) 212-7100
Chellie Thompson 512.293.9277 chellie@monarchmediainc.com EDITORS
BOARD OF EDITORS Sara Murray, Chair Pat H. Autry, Vice-Chair
Editor in Chief Departments Editor Publication Design and Production: Sara&Murray Monarch Media Consulting, Inc. Articles Editor Natalie Wilson
Leslie Sara Hyman
Editor in Chief Emeritus Hon. Barbara Nellermoe
PUBLISHING PARTNER Monarch Media & Consulting, Inc. 512.293.9277 | monarchmediainc.com Design Direction Andrea Exter
Design Sabrina Blackwell
Barry Beer Amy E. Bitter Ryan V. Cox Paul Curl Shannon Greenan Stephen H. Gordon Leslie Sara Hyman Rob Killen Thomas Lillibridge Rob Loree
Ex Officio David Evans Chellie Thompson
Advertising Sales Chellie Thompson
“His grasp of the forces that drive a successful mediation is always spot on.”
Lauren Miller Curt Moy Harry Munsinger Hon. Barbara Nellermoe Steve Peirce Donald R. Philbin Clay Robison Regina Stone-Harris ileta! Sumner Natalie Wilson
For information on advertising in San Antonio Lawyer:
Call 512.293.9277 Chellie Thompson, Monarch Media & Consulting, Inc. chellie@monarchmediainc.com
“A real thinker and innovator” “One of the smartest, most talented mediators I know” “Lots of really innovative and clever ideas for helping people close” “Works hard to ensure the parties are aware of the risks”
100 Dolorosa, Suite 500, San Antonio, Texas 78205 210.227.8822 | sabar.org
OFFICERS / DIRECTORS President David M. Evans President-Elect Dawn Finlayson Treasurer Lawrence Morales, II Secretary Donna McElroy Immediate Past President Thomas A. Crosley
4 San Antonio Lawyer | sabar.org
Directors Steve Chiscano Grant McFarland Patricia "Patty" Rouse Vargas Jaime Vasquez Charla Davies Charlie Deacon Loraine Efron Nick Guinn Executive Director June Moynihan
STATE BAR / FOUNDATION State Bar of Texas Directors Marc E. Gravely Santos Vargas
San Antonio Bar Foundation Chair David Evans
LOCAL BAR ASSOCIATIONS Association of Corporate Counsel South/Central TX Bexar County Women’s Bar Association Christian Legal Society Defense Counsel of San Antonio Federal Bar Association—San Antonio Mexican-American Bar Association—San Antonio San Antonio Black Lawyers Association San Antonio Criminal Defense Lawyers Association San Antonio Trial Lawyers Association San Antonio Young Lawyers Association TEX-ABOTA, American Board of Trial Advocates—San Antonio William S. Sessions Inn of Court
feedback History of Trusts, History of Inheritance: Part III By Harry L. Munsinger, J.D., Ph.D., San Antonio Lawyer, September-October 2020, p. 19
Thomas H. Veitch, The Home, a Novel. By Frank Southers, San Antonio Lawyer, September-October 2020, p. 29
Dear Sara, As a longstanding member of the Publications Committee, I have had the pleasure of reading each issue of San Antonio Lawyer from cover to cover multiple times. I especially appreciate articles that place the law in context. As it happens, shortly after reading Harry Munsinger’s article about the History of Trusts, I was reading They Were Her Property: White Women As Slave Owners in the American South, by Stephanie E. JonesRogers, Ph.D. Dr. Jones-Rogers devotes an entire chapter to examining the ways in which married slave-owning women avoided the law of coverture so they could retain enslaved people as their sole and separate property. She found that many of these slave-owning women employed trusts to accomplish that goal, and that southern courts frequently used their equitable powers to enforce such trusts, especially when the husband was likely to lose or diminish the value of his wife’s enslaved people. Such a practice was strikingly similar to the manner in which English courts relied on equitable powers to avoid property laws that seemed unfair, impinged on property values, or otherwise hindered the free disposition of property, as described by Mr. Munsinger. Serendipitous moments like this make me incredibly grateful for the opportunity to work on this magazine and for the authors who contribute to it.
Dear Ms. Murray: Please accept my sincere gratitude for publishing Thomas Veitch’s well-written and on-target review of The Home, a Novel in the SeptemberOctober issue of San Antonio Lawyer magazine. And by copy of this letter, I’m also forever grateful to Thomas Veitch for his unsolicited and poignant review of this story in the novel with its life-changing messages. I’ve taken his criticism to heart for my writing improvement. Please allow me to urge you and the staff of San Antonio Lawyer magazine to continue educating with scholarly articles and with vivid remembrances of San Antonio lawyers who made a difference, either on the bench or in the courtroom. The magazine keeps me in touch with San Antonio and Texas. With best wishes, Frank R. Southers Frank R. Southers, Author Carmel, CA
Sincerely, Natalie Wilson, Articles Editor
TEXAS CHAPTER MEMBERS IN SAN ANTONIO
John BOYCE
Roger BRESNAHAN
Roberto RIOS
George BRIN
Wade SHELTON
Joseph CASSEB
Thomas SMITH
Don PHILBIN
Hon. John SPECIA, Jr.
Dan POZZA
Hon. Phylis SPEEDLIN
Check preferred available dates & schedule online in seconds - for FREE
Visit our TX Chapter at www.TexasNeutrals.org Visit our National Database of over 900 litigator-rated neutrals at www.NADN.org
January–February 2021
|
San Antonio Lawyer 5
ReflexiÓnes Bright Spots of 2020 By David Evans, San Antonio Bar Association President
A
recurring meme on the internet featured the year 2020 asking no one in particular to hold its beer while it showed us all how things could always get worse. At the risk of daring 2021 to humble me even further, I visited with our ever-cheery Executive Director June Moynihan to focus this President’s Message on several positive SABA developments that we can expect in the coming year as we bid adieu to the dumpster fire that was 2020.
Lawyer Referral Service Intake Fully Automated The Lawyer Referral Service has seen tremendous growth and reach since its founding in 1966. Steady at the LRS helm for almost that entire time was Sylvia Hernandez, who retired in December with our tremendous thanks for a job so well and faithfully done. We now look forward to the leadership of Outreach Attorney Whitney Thomas, who will manage the LRS and the community resource portal that helps prospective clients find the right attorney for their legal issue. We will announce developments on that front as they occur, and we anticipate even more growth in the years to come for this wonderful program to which Sylvia devoted her professional life.
New Bar Offices – Designed With COVID Safety Protocols We look forward to moving into new office space across the street from the old courthouse in the old Federal Reserve building. While a firm move-in date is still a moving target, state of the art surfaces and UV light air purifier systems will keep visitors safe once we move in. When complete, the space will make the lives of lawyers practicing regularly at the courthouse easier and serve as a hub for the legal community and volunteer lawyers. We are thankful to past President Bobby Barrera for leading the effort to secure these new digs, and I look forward to joining President-Elect Dawn Finlayson with a ribbon cutting at some point in the coming year. [Light Padre Pio votive candle.]
6 San Antonio Lawyer | sabar.org
David Evans photo by Nathan Baerreis
Technology Keeps Bexar County Lawyers Moving Forward Virtual Jury Trials
You may have tuned in to the SABA Town Hall on December 8, when we visited with Judges Arteaga and Jiménez, along with San Antonio attorneys Ron Sprague, Kelly Kelly, Wesley Williams, and Tabor Dorsey about their respective experiences with the first virtual jury trials held in Bexar County. Whether or not virtual jury trials will continue to be held once the effects of the pandemic subside, it is exciting to see our judiciary and members of the bar come together to navigate these uncharted waters and share their experiences with all of us.
Bexar County to Launch New Case Management Tool
Bexar County entered into a five-year, $20-million agreement with Tyler Technologies, Inc. and has been onboarding the new Odyssey case management system since March 2020. This is the same system used by Harris County and is presently installed or onboarding in twenty of the largest counties in Texas. Odyssey is primarily back-office case management software for judges and clerks. The civil court module will launch in April 2021. According to Tyler Technologies, the new system will reduce the time needed to move a document to the court’s portal after submission to the clerk; streamline the hearing notification process; and and make information entered during a court proceeding immediately available at the clerk’s office. Counsel (not the public) will also have the ability to access electronic case files and documents.
Bexar County Clerk Lucy Adame-Clark is extremely excited about how much easier she anticipates things will become once these solutions are integrated. She says there are also prototypes for Bexar to have “kiosks at the courthouse that will allow attorneys to check on the status of their cases easily and efficiently.” And a last little shout out to the Bexar County Clerk’s Office, which was recently recognized by the Texas Association of Counties with the 2020 County Best Practices Award for the Records on the Run initiative. Records on the Run, a first of its kind mobile satellite County Clerk’s office, allows county residents to record, register, buy, or request copies of vital documents such as military discharge papers, real property records, marriage licenses, and more, by visiting the office, which rotates locations throughout Bexar County. You can view the Records on the Run locations and dates on the county website, or follow the Bexar County Clerk’s Office Facebook page (facebook.com/ countyclerkbc). And while you are there, congratulate the County Clerk’s Office for the award! Until next we visit, onward and upward and keep the faith.
Workplace Harassment Investigations
Karen Pozza Mediations, PLLC
With 20 years of experience as a civil district court judge, Retired Senior Judge Karen Pozza can help you resolve your case.
Book today at www.KarenPozzaMediations.com
January–February 2021
|
San Antonio Lawyer 7
T
honors
TEXAS BAR FOUNDATION Chief Justice Sandee Bryan Marion By Sara Dysart
Photo by DaVeck Studios, San Antonio Texas. Opposite page: photo by Natalee Marion.
8 San Antonio Lawyer | sabar.org
he Texas Bar Foundation honored then-Fourth Court Chief Justice Sandee Bryan Marion with the 2020 Samuel Pessara Outstanding Jurist Award. With the cancellation of the Texas Bar Foundation Dinner in June, Stephen Benesh, Chair of the Fellows, and Andrea Stone, Executive Director, presented this award to Chief Justice Marion at the Texas Center for the Judiciary Annual Conference on Texas Bar Foundation Day in September 2020. Chief Justice Marion’s acceptance remarks are reflective of the traits that made her so deserving of this award. Included in her comments was a message she received from District Judge Larry Noll at her swearing-in ceremony as an appellate judge—“Always remember that the practice of law is hard for most lawyers.” Attorneys, staff, and law students who crossed paths with Chief Justice Marion were always treated in a manner that made the practice of law a little less hard that day. Bexar County attorneys know Sandee Bryan Marion as practitioner, Probate Judge, Justice, and Chief Justice. Whether you worked with or opposite Sandee Marion as a practitioner or appeared before her in court, you have your own version of her professionalism and empathy. Chief Justice and Mayor Phil Hardberger, Chief Justice Catherine Stone, Probate Judge Polly Jackson Spencer, and Justice Beth Watkins share their experiences of Chief Justice Marion’s professionalism and empathy. A Reliable Antidote to Every Lawyer Joke Ever Told Chief Justice Phil Hardberger knew then-Judge Marion in the community and was aware of her excellent reputation as a Probate Judge when she was appointed to the Fourth Court of Appeals, where he served as Chief Justice. He immediately recognized Justice Marion as being fair-minded, pleasant, skilled in the law, and hard-working: “Justice Marion went immediately to work. She spent a minimum amount of time in socializing, and a maximum amount of time in working. When she walked into her chambers, it was all work.” He remembered on more than one occasion “walking by her chambers in the dwindling light of a dying day, the Court . . . quiet with the departure of the judges, lawyers, and clerks, and seeing her surrounded by law books, cases, and statements of fact.” Justice Marion’s hard work is reflected in opinions in which she “extends dignity and empathy to every lawyer or litigant who
comes before her. She is kind, not sarcastic; accommodating, not imperialistic. She makes sense of the weakest argument and rewards the strongest.” Perhaps indicative of Judge Noll’s reminder about the difficulty of practicing law, “she does not scold a lawyer in front of his or her client; but treats them as equal servants of the law, which is high enough of a calling.” “The years have gone by,” Chief Justice Hardberger continued, “but Justice Marion has kept and nourished those many qualities that made her an outstanding jurist and a model Chief Justice. Her inner light, an unquenchable search for truth, and her willingness to put in a long day for the sake of justice are a reliable antidote to every lawyer joke ever told.” The Efficient Work of the Court Continued Chief Justice Stone recalled that under thenJudge Marion and Judge Polly Jackson Spencer “the Bexar County Probate Courts became a model of efficiency and compassionate service to the public.” Like Hardberger, Stone noted that “Justice Marion joined the Fourth Court of Appeals and hit the ground running with oral arguments and well-written opinions. She was always current with her docket.” After Stone retired from the Court in 2014, Justice Marion succeeded her as Chief Justice. Because “she was always so active in furthering the Court’s service,” Stone recalled,”the transition was seamless, and the efficient work of the Court continued.” Chief Justice Stone also commended Chief Justice Marion’s service to the community and to the judiciary. “In 2017 she was elected as the Chair of the Council of Chief Justices and led the appellate judges through the demanding task of presenting the appellate courts’ needs to the legislature. She also somehow found the time to serve on the Supreme Court Task Force addressing child protection rules.” Chief Justice Marion’s dedication to public service was on full display in one of her last additional assignments, in which she “answered Chief Justice Hecht’s call for assistance and served as the trial judge in a very high-profile case in Tarrant County involving the continuation of life support for a terminally ill young child. Her willingness to take on such an intellectually and emotionally demanding case is the mark of this fine jurist.” Judicial Opponents Became Friends Judge Polly Jackson Spencer has a special friendship with Sandee Marion. They became friends during the 1990 election cycle when
for the sake of justice
“Her inner light, an unquenchable search for truth, and her willingness to put in a long day for the sake of justice are a reliable antidote to every lawyer joke ever told.” they ran against each other. Their race was lauded for the decent and gracious way it was conducted. Judge Spencer won in 1990, and Marion was elected in 1992 to serve as the judge of the other Bexar County Probate Court. The two judges became colleagues, and their friendship flourished. Judge Spencer introduced Justice Marion in 2008 when she was honored as the St. Mary’s University School of Law Distinguished Law Graduate. Justice Marion repaid the favor when Judge Spencer received the same honor in 2010. Judge Spencer noted Justice Marion’s role as Chair of the Council of Chief Justices: “While this is quite an honor, it is also quite a bit of work, a mantle which she humbly accepted and a task which she diligently fulfilled to the end of her term as such.” Judge Spencer also commented on Chief Justice Marion’s legal expertise: While she “never shares specifics about cases she is working on, she will often tell me about reading the law and sometimes agonizing over decisions she must make.” Judge Spencer echoed the impact of Chief Justice Marion’s diligence and her thoughtful opinions: “We have served on committees together such as the Pattern Jury Charge committee, and I and others have pointed to opinions she has written which have clarified or presented the law in ways that have advanced practitioners’ understanding of various subtle points of law.”
Just Put on Your Heels and Go To Work Having known Sandee Marion as a law student, briefing attorney, practitioner, and colleague, Justice Beth Watkins has a unique perspective of Chief Justice Marion. When Justice Watkins was a law student, Marion was a Probate Judge with a school-aged daughter, Natalee. “Despite the demands on [her] time, law students always knew they could count on Judge Marion—whether to make a daytime presentation to a group on campus about her experience on the bench or to judge an advocacy competition in the evening,” Watkins recalled. “Law students find her so approachable that, after bar exam results come out, there’s always a line of newly minted lawyers waiting for her to swear them in. With grace, good humor, and patience, she modeled to law students the very best of what the judiciary could be.” After graduation from law school Watkins served as a briefing attorney for Justice Catherine Stone. Justice Marion had joined the court a few months prior. Watkins reminisced about the shared suite that made up the chambers of Justice Stone and Justice Marion, with their respective briefing attorneys “stationed in small cubicles just outside their doors.” From that vantage point, Watkins “had a front-row seat as Justice Marion brought the lessons she learned as a probate judge to the Court of Appeals. She was the same patient, kind, and generous January–February 2021
|
San Antonio Lawyer 9
a shared passion
To me, my mother has always been a diligent, dedicated lawyer. Within days of my birth, she was walking up the stairs in the old Kendall County Courthouse to attend a hearing that the opposing parties and the judge were unwilling to reschedule. I can still recall attending numerous events with her as she campaigned for Probate Court No. 2., including one memorable occasion when I ran smack into then-gubernatorial candidate George W. Bush. Throughout my life, my mother has demonstrated how to be a public servant by combining a sense of duty with shrewd judgment, social consciousness with civic mindedness, and above all, engaging with the community. As a judge, my mom doubled down. She showed me that to be a judicial officer is to be a lifelong student of the law as well as a public servant. It was a lesson well-learned, and I followed her into the profession as she had followed her father before her. Now, our relationship has evolved to include esoteric discussions of the law that probably drive my stepfather up the wall more than he lets on. But, as she has shown me over the years, she is passionate about the law. It is a passion we now share. —Natalee B. Marion, Associate Counsel, The University of Texas at San Antonio
Judge Sandee Bryan Marion graduating from St. Mary’s University School of Law.
Judge Marion with her daughter Natalee Marion, upon the occasion of her installation as Judge of Bexar County Probate Court No. 2 in 1992.
Natalee Marion with her mother on the occasion of her installation as Chief Justice of the Fourth Court of Appeals in 2014.
Chief Justice Marion with her daughter, Natalee Marion.
Sandee Bryan Marion graduated from the University of Texas at Austin with honors and received her law degree from St. Mary’s University School of Law. She entered private practice in 1980, obtained Board Certification in Family Law in 1988, and was elected to Bexar County Probate Court Number 2 in 1992. In 2002, she was appointed to the Fourth Court of Appeals. Following two elections to the appellate bench, she was elected Chief Justice in 2014. In 2017, her fellow chief justices honored her by naming her Chief of the Council of Chief Justices of the State of Texas. Chief Justice Marion retired from the appellate bench on December 31, 2020, to pursue many more meaningful chapters of her legal career.
Fourth Court of Appeals as of December 2020.
In 1987, the Texas Bar Foundation created the Outstanding Jurist Award to honor an active Federal or State Judge who exhibits an exceptional reputation for competency, efficiency, and integrity. In 1995, the estate of Mrs. Samuel Pessarra funded an endowment for the Outstanding Jurist Award in honor of her late husband. The award was renamed the Samuel Pessarra Outstanding Jurist Award in 1995. As the recipient of this award, Chief Justice Marion designated St. Mary’s University School of Law to receive a $1,000 scholarship donation from the Texas Bar Foundation. Photos courtesy of Chief Justice Sandee Bryan Marion.
10 San Antonio Lawyer | sabar.org
Chief Justice Marion received the 2020 Samuel Pessarra Outstanding Jurist Award.
Chief Justice Marion with Judge Polly Jackson Spencer.
jurist.” Justice Watkins described Justice Marion’s approach as “earnest,” noting that Justice Marion never pre-judged “a case, a party, or an issue within a case.” Justice Marion was curious, and questioned “every angle of an opinion, its result, and how it would impact future litigants.” Yet she never lost sight of the fact that real people were affected by the court’s opinions. Justice Watkins remembered watching Justice Marion “agonize over cases where a party’s rights had been lost by a lawyer’s failure to object or to properly raise an argument.” Justice Marion was also cognizant of the impact that the jurists had on younger lawyers. “Time after time, she would discuss cases at length with briefing attorneys,” Justice Watkins continued, “recent law graduates like me who certainly added no value to her decisionmaking process—to help the next generation of lawyers understand the effect of the opinion.” Echoing the sentiments of Marion’s other colleagues, Watkins commended Chief Justice Marion’s indefatigable work ethic. Justice Watkins observed that Justice Marion “took her preparation extraordinarily seriously, to the point where she was prepared not only on cases that had been assigned to her to author, and cases where she was on the panel, but also on all the other cases on the Court’s docket.” On one occasion, at the very last minute, another justice was unable to attend a complicated 9:00 a.m. oral argument. Justice Marion was already at the courthouse and was able to step in so that the argument could proceed. Justice Watkins noted that Justice Marion “didn’t make a big deal of it. As I have heard her say many times since then, you just put on your heels and go to work.” Watkins recalls appearing as a practicing appellate attorney before Justice Marion: “As an appellate advocate, I came to realize how break-the-mold unique she is. During oral argument, some justices on this Court would immediately begin intense questioning, inundating the advocate before she even had a chance to settle her nerves. Not Justice Marion. She recognized how precious the twenty minutes of a party’s time before the Court are, and for years, I watched her masterfully ensure that each advocate has an opportunity to make her critical arguments. If one justice interrupts an argument with a question, Justice Marion is always there to guide the advocate back to that line of argument. What’s truly remarkable is how genuine she is—she phrases her questions and comments so thoughtfully that you feel like you might be the best advocate to ever stand at the Fourth Court’s podium. And everyone in the courtroom feels that, regardless of the outcome. When I lost a case with Justice
Marion on the panel, I knew the Court had fully considered all aspects of the issue, and even if I didn’t like the result, I trusted that the Court reached the right result. Her presence on the Court elevate[d] its decision-making process, the quality of its opinions, and the jurisprudence of the State.” When Justice Watkins joined the Fourth Court of Appeals, Chief Justice Marion welcomed her back to the Court with open arms and graciously brought her up to speed. “Chief Justice Marion was on the panel for my first oral argument behind the bench, and I confessed to her that I was more than a little nervous. She admitted that even after eighteen years on the appellate bench, she still gets nervous before each oral argument.” True to form, Chief Justice Marion’s nerves are inspired by her reverence for the tremendous power that the judiciary wields. “She knows what is at stake for the parties, and she wants to provide a thoughtful dialog and ensure that they have the best experience possible.” More Than a Legal Scholar and Jurist Chief Justice Marion is much more than a legal scholar and jurist. She is a community leader and supporter. Chief Justice Marion “believes in hard work and trying to get it right,” Judge Polly Jackson Spencer recalled, but she also “believes in giving back to the community. She is interested in and cares about other people. She visits when they are ill. She cheers their accomplishments and grieves with them over their losses.” Chief Justice Marion’s dedication to community service has been recognized by many organizations. Judge Spencer enumerated some of those accolades and accomplishments, including Marion’s election as the first female president of the Rotary Club of San Antonio, one of the largest Rotary clubs in the world; her recognition as the Distinguished Law Alumna of St. Mary’s Law School; and her service as president of the Law Alumni Association. Additionally, Chief
Justice Marion was elected to the San Antonio Women’s Hall of Fame and has been honored as Woman of the Year by many organizations. Judge Spencer shared some other interesting peeks into the life of Sandee Bryan Marion. She was a varsity cheerleader, a most coveted position, according to Spencer—I fully concur! Another enduring claim to fame was performing for San Antonio’s Queen of Fiesta as a young girl. Chief Justice Marion is fluent in Spanish, having earned an undergraduate degree from UT in Spanish, participating in a Spanish immersion program sponsored by Rice University, and studying Spanish in Mexico. She also appeared on the KENS 5 TV 6 a.m. news for six years as legal advisor, while practicing law as a partner with Sawtelle, Goode, Davidson, & Troilo and raising her daughter, Natalee. Abundant Professionalism and Empathy I have known Chief Justice Marion since we were students at St. Mary’s University School of Law. To this day, I can see her working with another classmate, Frank Ruttenberg, as they held leadership positions in the Student Bar Association. As president of the SBA, Sandee Marion was a recognized leader in law school. Chief Justice Marion’s commitment to others is exemplified by her participation and support of community activities. She attends many community events; often purchasing a single ticket and joining others who support the many causes which she supports. Think of the impact when someone chats with this warm, gracious woman and realizes that he or she is visiting with the Chief Justice of the Fourth Court of Appeals (now retired Chief Justice). I am sure most individuals realize Chief Justice Marion’s judicial position long after their meeting because she will spend her time asking about them and their families and interests. Continued on page 22
210-271-2999
www.WhatsOnThePhone.com The Proof is in the Data 8209 Roughrider Dr., Suite 100A, Windcrest, TX 78239 Licensed Texas Private Investigator (A15633)
January–February 2021
|
San Antonio Lawyer 11
Proposed Texas Disciplinary Rules and Texas Rules of Disciplinary Procedure:
What They Are and What They Do
M
By Claude E. Ducloux
y first job as a lawyer in 1978, long before email, cellphones, or computers, was as an assistant General Counsel to the State Bar. For almost three years, my time was divided between Texas Disciplinary Rules (that is, learning and administering them for Grievance Committees), and learning how to try lawsuits for the State Bar, which were all prosecuted in the accused lawyer’s hometown district court. Since then, I have stayed immersed in disciplinary rules and procedures, handling hundreds of complaints, and advising lawyers and firms about how these rules and procedures are interpreted and applied. To my good fortune, I was appointed by the Supreme Court of Texas to the Committee on Disciplinary Rules and Referenda (“CDRR”) upon its creation by the most recent State Bar legislative renewal. Since January 1, 2018, I have worked enthusiastically with others to modernize the Disciplinary Rules and the Rules of Disciplinary Procedure, which have long suffered from obsolete applications and an unmet need for change. Texas lawyers now are going to decide if the CDRR’s three years of hard work has paid off. The first step toward ratifying the proposed new rules was the Supreme Court’s September 29, 2020, order which will allow Texas lawyers to vote on each proposed change separately in a February 2021 Rules Referendum. Before that happens, let me give you some context for the changes, and my own perspective on this important work and how we went about it.
12 San Antonio Lawyer | sabar.org
Our Committee Work First and foremost, this was the single hardest-working committee of my forty-three-year career. Every member of the CDRR took our charge very seriously. The specter of previous referenda failures was definitely a motivator for me. We met monthly (not quarterly). I made sure I never missed a meeting, and between meetings, subcommittees exchanged untold numbers of emails discussing ideas, new texts, and proposed improvements at full speed. Our Chair, Lewis Kinard, was the model of support, decorum, and even-handedness: a calm and thoughtful leader. Likewise, Professor Vincent R. Johnson, was our walking Hornbook of Disciplinary Rule knowledge. If I contributed anything, it was four decades of practicing law, working with grievance committees, and understanding how our present rules worked (and did not) for clients or lawyers, or both, and how they should be improved.
Objectivity and Perspectives The makeup of the CDRR, with lawyers and non-lawyers, brought in multiple perspectives and opinions on efficacy and comprehension of any proposed changes. As I said, my focus always was to review any proposed rule changes objectively, from the perspective of a real practicing attorney with a busy general practice. Do I understand the rule? Does this proposed change make sense for the profession and the public? Does it unnecessarily complicate my law practice? And, finally, can I teach others what the rule means and how it applies?
Input from Lawyers The CDRR also benefited from extremely thoughtful input from Texas lawyers, who submitted hundreds of public comments during the process. I could never do justice to all the input, but some real heroes who took a great deal of time to provide insight, advice, and recommendations include Professor Bob Schuwerk, Dickie Hile, Zac Wolfe, Chuck Herring, and Jason Panzer. The committee considered hundreds of proposed edits and implemented many of them in improving the rules throughout the process. Our staff counsel, Brad Johnson, has also been recommended for sainthood.
Modernizing: A Worthy Goal Moving these rules into modern law practice continues to be a priority—communications are faster and more frequent than forty years ago. Online messaging has completely changed how we (and society) look at advertising. So, we concentrated on honesty, applicability, and consumer protection in modernizing the rules—not on bureaucracy or minutiae. Language was modernized wherever applicable. Thus, a term like “internet-based” was revised to “online” to match modern parlance. We were also motivated to improve the Rules of Disciplinary Procedure for three overarching reasons. First, to fix some rules that often created more confusion than assistance. Second, to clarify the rules regarding reciprocal discipline, being mindful that several federal areas of practice operate their own disciplinary systems. But the third, and increasingly important, reason was to address the impending retirement of tens of thousands of attorneys in Texas and nationwide, all too often with little or no planning, and the chaos that often results for that lawyer’s family and community. This militated toward improving the Rules of Disciplinary Procedure to allow for the appointment of custodian attorneys who could help a lawyer retire or close down a practice, and yet be covered by the same protections as a court-appointed custodian, thus giving lawyers more options for assistance in that endeavor.
Summary of Proposed Amendments Below is the official Summary of the Rules, which explains the eight proposals, known as Ballot Items A through H. Following each summary, I have added my commentary as Claude’s Comments. Let’s get started:
Ballot Item A: Scope and Objectives of Representation; Clients with Diminished Capacity The proposal deletes Rule 1.02(g) of the Texas Disciplinary Rules of Professional Conduct and adds Proposed Rule 1.16 of the Texas Disciplinary Rules of Professional Conduct. Proposed Rule 1.16 is intended to provide improved guidance when a lawyer represents a client with diminished capacity. Among its provisions, Proposed Rule 1.16 permits a lawyer to take reasonably necessary protective action when the lawyer reasonably believes that a client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the client’s own interest. Proposed Rule 1.16 provides a non-exhaustive list of actions a lawyer may be authorized to take, including informal consultations that may be prohibited under the current Rules. Claude’s Comments: As our population ages, and many of our citizens work longer than they anticipated, the danger of encountering clients with decreased mental facility is increasing. Lawyers need a rule like this, guiding us and equipping us with
additional tools to handle situations that put the client or the client’s estate at risk. This could include necessary consultations with medical providers or even family members which might otherwise breach the lawyer’s duty of confidentiality. This is an important change that is needed and will ultimately benefit clients.
Ballot Item B: Confidentiality of Information – Exception to Permit Disclosure to Secure Legal Ethics Advice Proposed Rule 1.05(c)(9) of the Texas Disciplinary Rules of Professional Conduct specifically clarifies that a lawyer is permitted to disclose confidential information to secure legal advice about the lawyer’s compliance with the Texas Disciplinary Rules of Professional Conduct. Claude’s Comments: This rule is close to the heart of all lawyers who provide ethics advice. In effect, this is not an actual change in a rule, but a confirmation that if you need to consult with ethics counsel (and almost every lawyer will have that need at some point during an active career) you are not breaking the confidentiality rules in securing that advice. This is a “no-brainer” improvement.
Ballot Item C: Confidentiality of Information – Exception to Permit Disclosure to Prevent Client Death by Suicide Proposed Rule 1.05(c)(10) of the Texas Disciplinary Rules of Professional Conduct permits a lawyer to disclose confidential information when the lawyer has reason to believe it is necessary to do so in order to prevent a client from dying by suicide. Claude’s Comments: We all know that there are certain exceptions to our duty to keep client confidences and unprivileged information. Those exceptions in DR 1.05 have generally involved the lawyer’s good faith belief that a crime or fraud is occurring or shall occur, or when the lawyer believes a failure to disclose will result in serious bodily injury to someone. In these days of mounting mental health issues, Texas is adopting the position that you may also reveal your good faith belief that your client is in danger of dying by suicide. REST ASSURED, however, that decision to reveal is yours under this provision. If you choose not to do so, that decision cannot be held against you.
Ballot Item D: Conflict of Interest Exceptions for Nonprofit and Limited Pro Bono Legal Services In order to facilitate the provision of pro bono legal services, Proposed Rule 6.05 of the Texas Disciplinary Rules of Professional Conduct creates narrow exceptions to certain conflict of interest rules when a lawyer provides limited advice and brief assistance on a pro bono basis. For purposes of Proposed Rule 6.05, “‘limited pro bono legal services’ means legal services that are: (1) provided through a pro bono or assisted pro se program sponsored by a court, bar association, accredited law school, or nonprofit legal services program; (2) short-term services such as legal advice or other brief assistance with pro se documents or transactions, provided either in person or by phone, hotline, internet, or video conferencing; and (3) provided without any expectation of extended representation of the limited assistance client or of receiving any legal fees in that matter.” This provision, in various forms, January–February 2021
|
San Antonio Lawyer 13
has previously been adopted by forty-eight other states and the District of Columbia. Claude’s Comments: During my career I have spent many nights giving advice at pro bono clinics. Such volunteerism is widely needed and gives me great personal satisfaction. But if you are in a big firm (or even a small one), you may be hesitant to discuss any legal matter at all, thinking that providing such limited advice might conflict out other lawyers, or even your entire firm. Well, have no fear. This rule addresses that issue, and gives guidance and protocols to observe, so that your pro bono services can remain within the rules. You still retain the duty - if you know of a clear existing conflict of interest at the inception of service – to refrain from providing those services. But this is a very helpful rule to the future of Texas lawyers, and this is not a new idea. As stated above, similar rules are already in effect in forty other states and Washington, DC. So far, Texas is the outlier.
Ballot Item E: Information About Legal Services (Lawyer Advertising and Solicitation) This comprehensive proposal amends Part VII of the Texas Disciplinary Rules of Professional Conduct by simplifying and modernizing lawyer advertising and solicitation rules. The proposal reduces Part VII from seven rules to six rules (numbered 7.01 to 7.06). Among other changes, the proposal: (1) permits a lawyer to practice law under a trade name that is not false or misleading; (2) defines “advertisement” and “solicitation communication”; (3) simplifies disclaimer and filing requirements; (4) adds exemptions to certain solicitation restrictions for communications directed to lawyers, persons with whom the lawyer has a close personal or prior business or professional relationship, and persons known by the lawyer to be experienced users of the type of legal services involved for business matters; (5) expands exemptions to filing requirements; and (6) expressly addresses social media communications. The proposal maintains the prohibition on false or misleading communications about the qualifications or services of a lawyer or law firm. Claude’s Comments: We spent at least eighteen months working on these advertising and solicitation rules. During that time, we considered everyone’s comments and did our best to provide the lawyers of Texas with solid understandable improvements. However, I want to suggest that everyone look at the comments of Professor Vincent Johnson, who will be comprehensively outlining the context and reasons for these changes in the February 2021 issue of the Texas Bar Journal. In short, the proposed rules continue to focus on the prevention of false or misleading communications, as well as improper influence in direct solicitations, but do so in a simplified manner that is designed to make compliance easier for lawyers. An additional detailed summary of these and other proposed changes is available at texasbar.com/rulesvote.
Ballot Item F: Reporting Professional Misconduct and Reciprocal Discipline for Federal Court or Federal Agency Discipline The proposal amends Rule 8.03 of the Texas Disciplinary Rules of Professional Conduct and Rules 1.06 and 9.01 of the Texas Rules of Disciplinary Procedure by extending existing self14 San Antonio Lawyer | sabar.org
reporting and reciprocal-discipline provisions to cover certain professional discipline by a federal court or federal agency. The proposal specifically limits “‘discipline’ by a federal court or federal agency” to mean a public reprimand, suspension, or disbarment. The proposal clarifies that the term does not include a letter of “warning” or “admonishment” or a similar advisory by a federal court or federal agency. The provisions also do not apply to mere procedural disqualification in a particular case. Claude’s Comments: Many lawyers are not aware that several wide areas of federal practice, such as Patent Law and Immigration Law, operate their own grievance systems. This rule provides that a Texas lawyer who has been disciplined in one of these non-state systems owes the same duty to report that discipline as owed when disciplined by a state system. I know from handling many complaints at the EOIR (The Executive Office for Immigration Review at the U.S. Justice Department), that it handles disciplinary actions involving Immigration lawyers. Often minor infractions can be handled with warning letters or admonishments. The CDRR worked hard on this rule to ensure that the type of discipline that would trigger this reporting had to be related to professional misconduct, meaning public reprimand, suspension, or disbarment. Minor infractions, such as failure to timely pay annual fees or bar dues, or letters of admonishment or warning, or disqualification as counsel are certainly NOT reportable acts. This rule was actually requested by, and its development was discussed with the Chief Disciplinary Counsel’s office, as an improvement to the existing rule.
Ballot Item G: Assignment of Judges in Disciplinary Complaints and Related Provisions These proposed rule changes simplify the assignment of judges, as well as address inconsistencies between current Rule 3.02 of the Texas Rules of Disciplinary Procedure and other statutes and rules already in place, whenever a respondent attorney in a disciplinary case chooses to have the matter heard by a district court. The proposal amends Rules 3.01, 3.02, and 3.03 of the Texas Rules of Disciplinary Procedure by: (1) transferring judicial assignment duties from the Supreme Court of Texas to the Presiding Judges of the Administrative Judicial Regions when a respondent in a disciplinary complaint elects to proceed in district court; (2) relaxing geographic restrictions on judicial assignments in disciplinary complaints; and (3) clarifying and updating various procedures involved in the assignment of judges in disciplinary complaints. Claude’s Comments: This, again, is a change to a Rule of Disciplinary Procedure, rather than disciplinary conduct. When the Chief Disciplinary Counsel finds “just cause” to proceed with a Disciplinary Action, the respondent lawyer must choose to have the matter heard by a panel or to have the matter filed in district court in the Respondent’s county of principal practice. In those few cases where the Respondent chooses to proceed in court, the existing Rule of Disciplinary Procedure has the Supreme Court sending an order to a district judge assigning him or her to hear the case. It may not surprise you to know that, often, the district judge with a busy hometown docket is less than thrilled to be summoned hundreds of miles away to hear a disciplinary case. The purpose of
this rule change is to make that process easier and more relevant. This allows the Presiding Judge of the Respondent’s Administrative Judicial District to carefully choose an appropriate judge for the case and softens the geographical requirements so that a nearer judge who is appropriate for the case can be appointed. Also, the rules for objecting or recusal follow Texas law more consistently. The existing rule conflicts with established rules for such processes.
Ballot Item H: Voluntary Appointment of Custodian Attorney for Cessation of Practice Proposed Rule 13.04 of the Texas Rules of Disciplinary Procedure authorizes a lawyer to voluntarily designate a custodian attorney to assist with the designating attorney’s cessation of practice and provides limited liability protection for the custodian attorney. Claude’s Comments: For many years, the Disciplinary Rules of Procedure have included (what I call) “emergency provisions” in Rules 13.01, 13.02, and 13.03 for a court to appoint one or more custodians (similar to what we’d call a “conservator”) to assume jurisdiction over an attorney’s practice when that attorney is unable (for a number of reasons outlined in Rule 13.02) to continue the practice. The benefit of that custodianship is that the appointee(s) are protected from claims except for “intentional misconduct or gross negligence.” The theory is that a custodian undertaking the often harried, messy, and thankless job of closing down a practice should not be worried about being sued for those efforts, short of gross negligence. It is a very good and useful tool. So, why not give lawyers an additional voluntary option to create those custodianships and save on court time and costs? Under this new Rule, an attorney can voluntarily create the same custodianship, and the custodian accepting that duty has the same protections as the court-appointed kind. Remember, the custodian’s purpose has to be to close down the practice, and if he/she assumes the representation of a client or clients going forward, those protections will not apply to such ongoing representations. But the rule gives great flexibility to the process of helping lawyers retire or cease practice and is a great tool for the future. Please review all the rules. I hope this article and all the information you read will give you some good perspectives, and . . . reasons to vote YES! Claude Ducloux is a past President of the Austin Bar Association, past Chair of the Texas Bar Foundation, Board of Legal Specialization, and College of the State Bar. These comments by Claude E. Ducloux, a Member of the Supreme Court Committee on Disciplinary Rules and Referenda, are not the official comments of that Committee.
January–February 2021
|
San Antonio Lawyer 15
ARBITRATION CLAUSES IN ATTORNEY-CLIENT AGREEMENTS: SOME PRACTICAL ADVICE By Aric J. Garza
I
t is general knowledge in the legal community that a wide variety of consumer and commercial contracts include alternative dispute resolution (ADR) clauses. Most contain a non-binding mediation provision. Many attorney-client agreements do so as well. In many commercial and consumer transactions, arbitration— the process whereby parties contractually agree to a binding, non-appealable, private adjudication of their disputes using a mutually selected arbitrator—is the default form of ADR if mediation fails to produce a resolution. But arbitration is perceived by many to be an expensive, unfair, and generally inefficient means of adjudicating disputes. It is easy to see why: litigation-type discovery can be limited, arbitrator decisions are binding, and appeals are not permitted.1 Further, the process of vacating an arbitrator’s award (called “vacatur”) is extremely difficult and quite rare.2 Attorneys seem especially reluctant to execute attorney-client agreements that contain arbitration clauses. Many take comfort in the knowledge that, if negotiation and/or mediation fails to yield a settlement agreement, they know the “lay of the land” when it comes to maneuvering courtrooms, judges, motions, hearings, and the like. But COVID-19 and its
16 San Antonio Lawyer | sabar.org
resulting effects on a variety of non-emergency civil cases—including delayed settings, impact on strategies relating to motion practice, longer wait periods for jury trial settings— have forced attorneys to rethink the means of final adjudication of all types of disputes. Thus, many lawyers tasked with drafting commercial and consumer contracts in general are rethinking dispute resolution clauses with more consideration to quicker, cost-effective ways of adjudicating disputes if mediation fails. It may be time for attorneys to reconsider arbitration clauses in their own agreements with clients for the same reasons. Attorneys have long used ADR clauses in their client engagement agreements to resolve potential attorney-client disputes, most of which arise out of the performance, interpretation, and/or enforcement of the agreement and include malpractice claims and fee disputes.3 The typical ADR provision requires the attorney/law firm and client to engage in informal dispute resolution followed by mandatory, non-binding mediation. Many attorneys, though, do not choose binding arbitration as the final means of adjudicating their disputes. Most of the reasons cited—nonfamiliarity with the process, lack of knowledge about the arbitrator, the inability to appeal the decision (award), and the very limited
bases upon which to vacate an award—make adjudication by arbitration a not-so-palatable clause to include in a client agreement. When drafting engagement agreements, many dispute resolution clauses end with mediation and implicitly provide for final adjudication through litigation by judge or jury. However, litigation involving one’s client is an unsavory option, especially because the privilege protecting attorneyclient communications can be waived in the process.4 Thus, many lawyers are justifiably wary of litigation. Typically, many consumer and commercial agreements do not contain thoroughly drafted arbitration clauses. In many instances, attorneys merely insert a reference to arbitration as the means of adjudicating the dispute should informal negotiation and/or mediation fail. Otherwise well-crafted, thorough agreements fail to provide for the rules to be used, include cost-shifting provisions, make venue explicit, address arbitrability, and so on. An attorney who decides to use an arbitration clause in his or her engagement agreements should not make this mistake. A well-crafted and thoroughly detailed provision can address many of the issues attorneys have with arbitration as the means of adjudicating their disputes. With an ADR clause that
includes arbitration, the attorney and client can fairly, ethically, and comprehensively adjudicate claims in a cost-effective, expedient and efficient manner. Additionally, despite popular belief to the contrary (many times based on anecdotal evidence), statistical reports and surveys show that parties to arbitration save time and money.5 Undeniably, the issues associated with using arbitrations to adjudicate client disputes are vast, complicated, and fraught with ethical challenges. Here are just a few of the complications involved: (1) attorneys often have leverage over clients in negotiating the terms of engagement agreements, especially because persons who seek legal services often have exigent needs; (2) attorneyclient agreements are generally complicated, and clients are relying on the advice of an attorney when entering into an agreement with an attorney; (3) many consumers of legal services lack an understanding of the substantial difference between mediation, arbitration, and litigation; and (4) there is a concern that attorneys may use arbitration clauses to prospectively limit their liability from malpractice. Binding arbitration clauses are permissible in attorney-client engagement agreements under the Texas Disciplinary Rules of Professional Conduct (TDRPC). Texas Ethics Opinion No. 586 provides that it would not be unfair to a typical client who is willing to agree to arbitration to require the binding arbitration of fee disputes and malpractice claims, “provided that (1) the client is aware of the significant advantages and disadvantages of arbitration and has sufficient information to permit the client to make an informed decision about whether to agree to the arbitration provision, and (2) the arbitration provision does not limit the lawyer’s liability for malpractice.”6 Opinion 586 cited the Formal Opinion 02-425 (2002) from the American Bar Association Standing Committee on Ethics and Professional Responsibility, which specifies that “arbitration provisions do not prospectively limit a lawyer’s liability, but instead establish a procedure for resolving such claims.” 7 Many presuppose that arbitration is used as a means of limiting liability or binding the hands of a client seeking relief for breach of the agreement. Professional ethics committees and courts have disagreed.8 Of course, the application of the arbitration clause depends on the basis of the disagreement. Arbitration clauses can and frequently do encompass prospective fee disputes and malpractice claims. Grievances cannot be encompassed
But COVID-19 and its resulting effects on a variety of nonemergency civil cases—including delayed settings, impact on strategies relating to motion practice, longer wait periods for jury trial settings—have forced attorneys to rethink the means of final adjudication of all types of disputes. Thus, many lawyers tasked with drafting commercial and consumer contracts in general are rethinking dispute resolution clauses with more consideration to quicker, cost-effective ways of adjudicating disputes if mediation fails. It may be time for attorneys to reconsider arbitration clauses in their own agreements with clients for the same reasons.
due to the quasi-criminal nature of many grievable offenses.9 Overall, when drafting an arbitration clause, it is advisable to adequately consider your goals, just as you would when carefully drafting a contract for a client. What are your goals and interests? How do you ensure that the arbitration clause will be interpreted as you intend? How can you ensure that it is enforceable in light of expected actions by parties resisting enforceability? How can it be made to read in a logical and cogent manner, and with regard to the possible array of interpretations by a judge, jury, or arbitrator? Specifically, the careful drafter of an arbitration clause should consider costs of arbitration, the length of time to get to a final adjudication, the publicity concerning disputes, and enforceability (especially when considering foreign judgments). Additionally, consideration should be given to the choice of law and rules governing the process of adjudication. Many organizations are available to administer the arbitration, including the American Arbitration Association (by far the largest), JAMS, International Institute for Conflict Prevention & Resolution (CPR Institute). If they prefer, the parties may even agree to select an ad hoc (private) arbitrator. It is worth noting that COVID-19 has become a catalyst for arbitrators to develop online/ remote dispute resolution processes, mostly via Zoom. As far as the mechanics of the arbitration are concerned, attorneys should consider whether to include a provision curtailing or paring down discovery—often the biggest
cost in litigation outside of the trial itself. Additionally, in contrast to the familiar American Rule concerning attorney’s fees (sans a statutory or contractual basis for fee-shifting, each party generally pays its own attorney fees), an arbitrator could award attorney’s fees to the prevailing party if such a clause is contained in the arbitration agreement. Another noteworthy aspect of arbitration is that the parties can include a process by which an arbitrator is chosen. Are you in a dispute with a client concerning a construction matter? It would be best to get an arbitrator with experience in construction matters. Does the dispute concern a trademark or an employment misclassification claim? Arbitrators specialized in one of those areas would likely be able to ascertain the issues and grasp the facts quickly. The parties might even adopt special rules governing specific types of disputes. Much to the surprise of many experienced attorneys, arbitrators do have the authority to provide injunctive relief, if specified in the arbitration clause. Finally, the expediency of arbitration is especially important because it can contain costs and help the parties get to a final adjudication (and move on with life) quicker than a trial in the era of COVID-19. How? It is easy to insert a provision that the final hearing is to be held within ninety days of the initial preliminary hearing on the matter. If an attorney wants arbitration as the ultimate means of dispute resolution concerning his or her client, rather than fullout litigation, here are some practical pointers:
January–February 2021
|
San Antonio Lawyer 17
12 PRACTICAL POINTERS
1.
Make your ADR clause specific (Will it encompass all disputes or only certain types of disputes?).
2.
Include a separate addendum to the client-services agreement, to be signed and dated by the client, that clearly specifies the pros and cons of arbitration, and provides an opportunity for the client to consult with separate counsel.
3.
Provide for conditions precedent to the arbitration itself, e.g. informal settlement, followed by nonbinding mediation. These provisions generally give disputes a better chance to be resolved.
4.
Clearly and explicitly specify that arbitration effectively serves as a waiver of the client’s right to a jury trial and court-based adjudication.
5.
Specify the parameters of the dispute, e.g. “any and all disputes whatsoever that arise in connection with the performance or interpretation of the agreement.”
18 San Antonio Lawyer | sabar.org
6.
Determine who should decide arbitrability of the dispute itself—the court or the arbitrator. The United States Supreme Court has held that clauses that clearly and unmistakably delegate such authority to the arbitrator are enforceable. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995); see also Henry Schein, Inc. v. Archer & White Sales, Inc., 586
So, is the inclusion of an arbitration clause to address attorney-client disputes right for your practice? The answer depends on a vast array of issues, many mentioned in this brief article. If you ultimately determine that an arbitration clause is right for you, this article might serve as roadmap to maneuver through the many issues that could arise.
U.S. __, 139 S. Ct. 524 (2019).
7.
Decide if the arbitration will be ad hoc (arbitrator and rules to be determined if a dispute arises) or whether the arbitration will be administered by an organization such as AAA, JAMS, or another organization.
8.
Specify the rules to be used, regardless of whether the arbitration is ad hoc or not.
9.
Include provisions regarding cost containment. Notably, consumer arbitrations under the AAA rules do not provide for litigation-type discovery. Instead, the parties are expected to exchange the exhibits they intend to use at the final hearing. Further, motions (including dispositive motions) may only be submitted with leave of the arbitrator.
10. Consider whether the loser pays
attorney’s fees and costs or whether the arbitrator has the discretion to determine all relief, including attorney’s fees and costs.
11. Because disputes with claims under
$75,000 in controversy can be handled by a single arbitrator, and not a panel of three arbitrators, state in the agreement whether such a threshold is applicable to, and appropriate for, the particular engagement.
12. Finally, regardless of the arbitration
clause, understand that many organizations administering arbitrations provide in their rules that if the amount in controversy falls under the jurisdiction of a small claims court, the parties have the right to bypass arbitration altogether. (NOTE: the jurisdictional limits in small claims courts in Texas increased to $20,000 on September 1, 2020.)
Aric J. Garza is an attorney, a mediator, and an arbitrator. He serves on the Employment, Consumer and Commercial Panels of the American Arbitration Association (AAA).
ENDNOTES Connie A. Weiner, Getting the Arbitration that You Want: Appeals? Really? (June 8, 2018), https:// www.americanbar.org/groups/litigation/committees/commercial-business/practice/2018/ getting-the-arbitration-you-want-appealsreally/. 2 Arbitration Award Vacated (August 7, 2017), https://corporate.findlaw.com/litigationdisputes/arbitration-award-vacated; see also 9 U.S.C. § 10 (grounds for rehearing or vacating arbitration award). 3 Brian Jerome, The Attorney, the Client and the Mediator (October 2016), https://www.mediate. com/articles/JeromeB3.cfm. 4 Mike Gregory, Texas Supreme Court Case-Arbitration Clause in Attorney-Client Contract (July 16, 2016) www.gregorymediations.com/Texas Supreme Court Case-Arbitration Clause in Attorney-Client Contract/. 5 American Arbitration Association AAA-ICDR Council, 2019 Annual Report, https://www.adr. org/sites/default/files/document_repository/ AAA_AnnualReport_2019.pdf. 6 See Tex. Ethics Op. No. 586 (2008) (emphasis added). 7 ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 02-425 (2002); Tex. Ethics Op. No. 586 (2008). 8 Jett Hanna, Arbitration Clauses in Fee Agreements (June 2015), https://www.tlie.org/article/arbitration-clauses-in-fee-agreements/. 9 Id. 1
Bar Business
GLASS EVERYWHERE REFLECTIONS ON WAITING FOR OUR FIRST FEMALE VICE PRESIDENT By Ashley Senary Dahlberg
Photo courtesy of Lauren Corriveau.
A
fter the election of Senator Kamala Harris to our second-highest executive office, my social media feeds filled with one viral image: a depiction of Harris, as an adult woman, clad in her signature dark pantsuit, triumphantly striding alongside a depiction of a young Ruby Bridges, in her dress and pigtails. Both familiar images, the two, together, stirred emotions in me: pride, relief, triumph, and more than a touch of bittersweetness. Four years and several days prior to Harris’s ascension, I joyfully arrived at the office in a white pantsuit, bounding around, giddy at what seemed like the imminent election of a woman lawyer to the nation’s highest office.1 Since then, I’d put the pantsuit away. Something about it
bothered me. It seemed . . . misplaced. A relic of a very particular time, and a very specific hope. If a suit can look both overly expectant and dejected all at once, this one did. So much looks different now too, four years since that night in 2016, when so many women like me held their collective breaths. I look different now, too. I’ve birthed another child and spent too many long days and nights in my office chair during the pandemic, working and fretting over the state of most things. Beyond the suit’s literally not fitting, I didn’t feel like looking at the suit, and so I stuffed it into the back of the closet next to the symbolic things – the things we save but know we’ll never wear – that we can’t bear to part with. I tucked it next to my wedding dress (never washed, but
carefully bagged) and a flimsy cap and gown. I also tucked away my long-held sigh. That, I tucked into my chest, hoping it would not suffocate me when I least expected it. It, like the suit, would have to wait for a day I hoped would arrive within my lifetime. Four years and several days later, Harris, a woman lawyer, would finally be named to ascend to the second highest executive office in the land. Her husband, Doug Emhoff, himself a powerful lawyer, was now, too, a trailblazer in his own right. Yet, there she was—and there he was—a seemingly impossible vision-comereality, underneath a sky of dancing drones and bursting fireworks. She’d worn a white pantsuit, and I exhaled slowly. On Saturday morning, on the day the election was called, I’d begun stringing up our Christmas tree with my five-year-old son. I had been looking at the inside of my home (and nowhere else) for so many months, and my bottle of celebratory wine (replaced, since 2016) was still sitting in the fridge. The wait, it seemed, would continue. My breath would stay buried a bit longer. I needed some light, quite literally. When the election was finally called, I was in the middle of the frustrating task of untangling a string of lights as my toddler grew increasingly impatient. I turned the television louder and walked right up to it, looking closely at Harris on my screen. I stood a foot away, in what I know was subconsciously my need to really look and make sure that the woman on my screen was real. I turned my phone’s video camera on and pointed at the television. “Do you see that LADY?” I said to my son. “THAT LADY is going to be the Vice President of the United States.” That week, my son had learned about voting in his virtual kindergarten class. “Do people vote for the Vice President, too?” Yes. Yes, they do. I may have cried a little. The photo of Harris and Bridges was so stirring because it was a reminder that we are not alone and that, together, we can achieve extraordinary, difficult things. Harris herself invoked this idea in several speeches prior to the election; that is, that she does not stand alone before us, but instead is simply the highest and most visible pillar of a community of women, particularly Black and brown women, who for so long have been passed over. As a child, in 1960, Ruby Bridges desegregated the all-white William Frantz Elementary School in New Orleans. Bridges, though depicted as a child
January–February 2021
|
San Antonio Lawyer 19
bar business from another time in the drawing, is alive and well. Bridges is a mere sixty-six years old. Harris, at fifty-six, is only one decade behind. The New York Times reported that, prior to the election, Harris spoke to a majority Black audience in Fort Worth “of being singular in her role but not solitary.” Harris remarked: “Yes, sister, sometimes we may be the only one that looks like us walking in that room. But the thing we all know is we never walk in those rooms alone—we are all in that room together.” Too, that one image of Bridges and Harris, a daughter of a Jamaican father and an Indian mother, reminds us that when Harris began kindergarten, Harris was bused as part of Berkeley’s comprehensive desegregation program to Thousand Oaks Elementary School, a public school in northern Berkeley, which had previously had been 95% white. Harris subsequently graduated from Howard University and the University of California Hastings College of the Law, and she began her legal career in the Alameda County District Attorney’s Office. Harris was elected district attorney of San Francisco in 2003, and she was twice elected Attorney General of California before becoming the junior United States Senator from California in 2017. Like many others, I first took real notice of Harris during her skilled questioning of witnesses in congressional committee hearings. As a lawyer, I focused on the ways in which she skillfully led a witness to her desired endpoint. Refusing to accept an answer that dodged her question and repeating the most salient points of the responses out loud, Harris’s ability to unapologetically command attention and generate the content she desired, was a master class. Regardless of political leanings, it was something. The questioning itself generated more viral content among non-lawyers, likely unaware that years of legal schooling and practice is what had brought Harris to that crescendo. When she was first named President-Elect Biden’s running mate, I posted a video of her judiciary committee questioning under the caption: “Reminder that our nation’s next Vice President is a fierce woman lawyer.” I am a proud member of the Bexar County Women’s Bar (BCWB), which for decades has fostered hope, optimism, camaraderie, and relationship-building among women lawyers in our community. This year, the BCWB, under the leadership of Brittany Weil, has provided our larger community with panels on anti-racism advocacy and systemic challenges to voting among our community’s most vulnerable, 20 San Antonio Lawyer | sabar.org
and has done the hard work of holding space for so many women as we held our collective breaths—not just in our nation’s elections, but in times when we, too, have been passed over. With them, I never walk into the room alone, courtroom or elsewhere. We are all in the room together, and the room is large. We are, as Harris remarked, singular but not solitary. A shley Senary Dahlberg is a litigator at Norton Rose Fulbright US, LLP. She is the 2018 recipient of the Belva Lockwood Outstanding Young Lawyer of the Year Award and a graduate of the inaugural
class of the Bexar County Women’s Bar LEAD Academy. She currently serves on the LEAD Steering Committee. ENDNOTES The white pants suit is a nod to the purple, white, and green colors of the Women’s Suffrage Movement of the early 1900’s. Purple represented the royalty of the suffragettes; white represented purity; and green represented hope. See Nat’l Park Serv., Symbols of the Women’s Suffrage Movement, https://www.nps.gov/ articles/symbols-of-the-women-s-suffrage-movement (last visited Nov. 26, 2020).
1
A Bar Association of Kindred Spirits By Natalie Wilson Candidly, I was not aware of how deeply the election of Kamala Harris affected me until I saw her stride onto the stage in an all-white pantsuit, appearing in public for the first time as the Vice President-Elect of the United States. I had had the TV on all day, hungry for any election updates, much to the annoyance of my children. I was switching laundry from washer to dryer, listening with half an ear, when Harris took the stage, and I burst into tears. Reader, I sobbed. Regardless of political differences, we can celebrate Vice President Harris as a skillful and zealous female attorney, irrevocably linked to the sisters-in-law who preceded her and those who will follow. We are a network of kindred spirits, bound by the visceral knowledge of what it takes to succeed in a demanding profession that is, in many respects, still dominated by (white) men. Nowhere is that sisterhood truer than among the women of the Bexar County Women’s Bar Association. I am constantly inspired by the myriad ways in which the members of the BCWB support and encourage each other. From formal mentoring to business referrals to the LEAD Academy’s groundbreaking professional development course, the women of the BCWB are wholly committed to each other and the success of all women in our profession. The “mothers” of the women’s bar worked tirelessly not only to open doors, but also to ensure they stayed open for other women. Each generation of women who followed has built on those successes, seeking out or creating more opportunities to promote and celebrate each other. We hope you will join our bar association of kindred spirits as we continue the challenging, exhilarating, and necessary work “to improve the status of women in the legal profession by providing its members with diverse opportunities for leadership, mentoring, career development, and involvement in the greater legal community.” White pantsuits are optional—but encouraged. Natalie Wilson is a Shareholder at Langley & Banack, Inc. She is TreasurerElect of the Bexar County Women’s Bar, a graduate of the LEAD Academy, a member of the LEAD Academy Steering Committee, and the 2014 recipient of the Belva Lockwood Outstanding Young Lawyer of the Year Award.
Why the BCWB Is a Special Specialty Bar Association* By ileta! A. Sumner, esq. I had been licensed to practice law in Texas for a whole month in 1993 when I met a member of the Board of Directors for the Bexar County Women’s Bar (BCWB) at a holiday party for a different legal organization. After an hour, she talked me into joining my first bar association. What was unique about this group wasn’t only the projects in which it was involved. It was the people. Three years later, I had a particularly nasty family violence case against a board-certified family law attorney who had a reputation for trying to terrify young attorneys. The night before my hearing, I had a panic attack. Thus, at 1:00 a.m., I called the woman who had been the President of the Women’s Bar when I first joined and explained my dilemma. She walked me through my hearing step by step until 5:00 a.m. Then, unexpectedly, at 9:00 a.m., she showed up at Presiding Court and attended my hearing with me for support. When opposing counsel saw that I had this well-known family lawyer in my corner, he stopped the game playing, and I got everything I had requested in my pleadings! That is one of the most special things about the BCWB. The more senior attorneys really look out for the newbies, take them under their wing, and guide them through this maze of navigating a complicated career and still maintaining a rich home life. When my husband and I adopted our first son, I had no fewer than
fifty calls on my answering machine from members of the BCWB. I kid you not. Many bar associations have successful projects. However, not many of them have members who care so deeply about the members who carry out those projects. Coming from out of state—from out of the country, actually, since my husband had just been stationed in Spain for the United States Air Force right after I graduated from law school and before we moved to Texas—I could not have been more lucky and more thankful to have found such a group of women who weren’t snarky and catty, but were absolutely talented, caring, and special themselves. May this tradition continue . . . . *In the 1990’s, affinity bar associations were known as specialty bars.
i leta! A. Sumner, esq. was President of the San Antonio Black Lawyers Association in 1999 and of the Bexar County Women’s Bar in 2002. She was the creator and original General Counsel of the legal department for the Battered Women’s Shelter in San Antonio. Her full-time employment came to a halt when she contracted viral cardiomyopathy in 2005. However, she currently volunteers with various local public interest organizations.
The Next Generation of Leaders By Riley Daniels Kamala Harris made history as the first Black American, Asian American female Vice President-elect. She will also be the first Black American, Asian American female President of the Senate. This means she will be in a position to advocate and draw attention to concerns of minorities in the country through both the executive and legislative branches. I was moved by her opening remarks: “But while I may be the first woman in this office, I will not be the last.” These words made me proud to be a liaison between the Bexar County Women’s Bar (BCWB) and the St. Mary’s Women’s Law Association because that relationship helps women law students gain access to the tools we need to become the next women in positions of influence. Whether we are receiving mentorship from local female attorneys or attending Zoom Webinars to learn how to be an advocate against racism in the workplace, our members are preparing to become leaders in the legal community and beyond. R iley Daniels is a third-year law student at St. Mary’s University School of Law. She is President of the Women’s Law Association and a Staff Writer for Volume 23 of The Scholar, which is St. Mary’s Law Review on Race and Social Justice.
The leaders of the women’s bar form professional bonds and friendships so strong that they unintentionally coordinate their wardrobes for celebratory events. From left to right: Marissa Helm, Leslie Hyman, Tiffanie Clausewitz, Ashley Dahlberg, and Lisa Alcantar, each a former Officer or Director of the Bexar County Women’s Bar. Photo courtesy of Ashley Dahlberg.
January–February 2021
|
San Antonio Lawyer 21
BCWB:
Decades of Nurturing Leaders By Barbara Hanson Nellermoe The Bexar County Women’s Bar (BCWB) was formed in 1983, the year I was licensed, and I joined the organization a couple of years later. The most extraordinary women served in leadership positions as I was gaining my footing, and the opportunity to connect with such spirited leadership has only increased in the ensuing decades. And if you note the members who go on to other leadership posts and then return to their homing signal, it is here. That should tell you something about this bar association. It endures. Barbara Hanson Nellermoe, served as editor of Equal Times, BCWB President in 1996, and was honored to be named the Belva Lockwood Outstanding Lawyer in 1998. She was elected Judge of the 45th District Court, 2003-2014, and continued as a senior district judge thereafter.
The San Antonio Bar Association is excited and proud to begin a journey of collaboration with local affinity bar associations to bring you thoughtful articles and information about the profession you serve, the community you live in, and the opportunities we all share. If you’re involved in an affinity bar association and would like to contribute to San Antonio Lawyer on behalf of your association, please get in touch! Email June Moynihan at junem@sabar.org.
The Associaaon of AAorney-Mediators San Antonio Chapter www.aaorney-mediators.org/SanAntonioChapter
Experienced, having conducted more than 25,000 mediaaons since 1989 with more than 850 years’ experience pracccing law Commiied to the mediaaon process Devoted to the ethical praccce of law Recommended by judges and aaorneys Covered by the A-A-M group arbitrators and mediators professional liability insurance policy
More Informaaon: Contact the San Antonio Local Chapter: www.aaorney-mediators.org/SanAntonioChapter Don Philbin - don.philbin@adrtoolbox.com
22 San Antonio Lawyer | sabar.org
Dick Alcala John Boyce Leslie Byrd Michael Curry Allan DuBois Stephen Fogle F John Franco Charlie Hanor Reese Harrison Danielle Hargrove Ronnie Hornberger Gary Javore Daniel Kustoff Bill Lemons Dan Naranjo Jamie Paaerson Gale Pete Peterson Don Philbin Ed Pina Rick Reed Wade Shelton Tommy Smith John Specia Phylis Speedlin Lisa Tatum Bill Towns James Upton
Continued from page 11 When I think about and recommend role models for women attorneys, Chief Justice Marion is number one on my list. Many More Meaningful Chapters Ahead The people of Texas, especially Bexar County and the Fourth Judicial District, have benefitted beyond measure from Sandee Bryan Marion’s service and the truly outstanding jurist she has been. Stay tuned—many more meaningful chapters of her legal career remain to be revealed! Sara Dysart is a commercial real estate attorney and is a candidate for 2021 State Bar of Texas President-Elect.
Charles Manson Fifty Years Later Part I: The Murders By Mark J. Phillips and Aryn Z. Phillips
T The year 2020 marked a half century since the sensational trial of Charles Manson for the Tate/LaBianca murders, and the passage of time has not diminished the place the murders and trial occupy in the American psyche. The following is the first of a three-part series regarding the Manson murders, the investigation, and the trial. Charles Manson in 1969. Photo credit: Everett Collection Historical/Alamy Stock Photo.
he summer of 1969 had been blisteringly hot in Los Angeles, the kind that most residents would prefer spending at the beach, laying by the pool, or sitting beneath blasting air-conditioning units. Among those just trying to beat the heat were young Hollywood starlet Sharon Tate who, clad only in a matching bra and panty set, entertained a few friends at her posh home in the hills above Hollywood, and Leno and Rosemary LaBianca, a couple returning home from a day spent at Lake Isabella, a popular vacation spot 150 miles outside the city. Less concerned with the heat were their killers, who invaded their homes and murdered them in the strangest and most gratuitous of ways. They strung their victims together by rope, masked them with pillowcases, stabbed them dozens of times, and scrawled cryptic words in blood on the walls. This cabal of longhaired, barefooted youths, no older than the local college kids, lived on a ranch not far from the city as members of a cult calling themselves the “Family.” They had been sent to kill these innocent strangers by the persuasive, mysterious, and terrifying Charles Manson, whose apprehension and trial in 1970 combined into a milestone event of the Twentieth Century. In 1969, Charles Manson was in his mid-thirties. He was small, only 5’2” and slim, with petite facial features and dark brown hair that he wore long and wild, down to his shoulders. His face would soon become one of the most recognized faces in America. Born November 12, 1934, in Cincinnati, Ohio, to sixteen-year-old Kathleen Maddox, he never knew his biological father; the name Manson was adopted from one of Kathleen’s later husbands. He spent his early years bouncing around different foster facilities and getting into trouble. Paroled and rearrested several times, when January–February 2021
|
San Antonio Lawyer 23
He decided to get the revolution started himself by committing a terrible and upsetting murder in a white neighborhood and make it look as if it had been perpetrated by the black community. Such a crime would spark animosity between the races, ignite the revolution and, as explained by a former Family member, “show blackie how to do it.”
he was finally released in the spring of 1967 Manson was thirty-two years old and had been institutionalized for a total of seventeen years. He had missed the development of the counterculture movement while he was locked up, but he liked what he saw when he was released. He moved north to Berkeley, California, where he sang, played guitar, and panhandled on the streets of the ultra-liberal college town. There he met Mary Brunner, a twenty-three-year-old college-educated assistant librarian at the university. She was lonely and plain looking, but he made her feel special. He moved in with her and lived off of her income, inviting other young girls he met to do the same.1 In April, he began spending the majority of his time in the HaightAshbury district of San Francisco. The neighborhood was widely known to be a hippie refuge and a place where peace-loving people could find acceptance, cheap rent, and an overabundance of music, drugs, and free love, attracting thousands. Many of these arrivals had a real dedication to the hippie philosophies and political goals of peace and acceptance, but many others were simply aimless wanderers or runaway teenagers, naïve and lonely misfits looking to belong. The area was also full of sidewalk preachers and gurus, people sermonizing their various ideas on life to anyone who would listen. Manson quickly became one of them. His unique brand of thinking combined Beatles lyrics, passages from the Bible, and Scientology. Being a talented orator, he explained it all in a charismatic and dramatic fashion. Before long, he had attracted many willing followers, both women and men in their late teens and early twenties, and the Family was born.2 Some were from disadvantaged circumstances, others abandoned paying jobs and supportive parents, but all were lonely, unsatisfied, and troubled, eager to believe and belong. The Haight soon became overcrowded, with hundreds of young people arriving each day, and Manson tired of it. He packed his followers into an old bus and took to the road. For over a year, the group roamed the coastline from Washington to Mexico, spending much of their time in Los Angeles. They camped, rented, squatted, and stayed with various friends and peripheral acquaintances, including Beach Boy 24 San Antonio Lawyer | sabar.org
August 7, 1970—Los Angeles, CA: The three female defendants in the Tate-LaBianca murder trial walk from the jail section to the courtroom as their trial continues from August 6th. The girls are (left to right) Leslie Van Houten, Susan Atkins, and Patricia Krenwinkel. Photo credit: Everett Collection Inc /Alamy Stock Photo.
Dennis Wilson, while Manson tried to make it in the music industry. Eventually. they settled at Spahn Ranch, a decrepit and isolated ranch outside Los Angeles that had, in its former days of glory, been a filming location for movies and television shows. Manson continued to recruit followers along the way, and within months, the Family at Spahn Ranch numbered at least thirty-five. The ranch’s elderly owner, George Spahn, allowed them to stay partly because he was unaware just how many members of the Family were living on his land, but also partly because Manson assigned one of the young girls to take care of him, physically, emotionally, and sexually.3 Life under Manson’s rule was bizarrely unconventional. All Family members were expected to turn over their money and personal property to him, but even so the group needed more to survive. They scattered into the surrounding area to panhandle, steal, and go on “garbage runs,” in which they took unsold food out of supermarket trash cans.4 As expected, Family members were constantly arrested for loitering, robbery, and grand theft auto. Manson gave everyone new names, sometimes more than one, depending on what he felt fit their personalities.5 Meals were communal, and no one was served until Manson was seated.6 Children were separated from their parents and cared for as a group. The Family commonly went on “creepy-crawly” missions, entering random Los Angeles homes and silently crawling around while the occupants were asleep, moving and rearranging small items.7 There were countless rules to follow. Wristwatches, calendars, clocks, and glasses were forbidden. Female members were forbidden to carry money. If Manson walked past someone at the ranch, he would make faces and wild gestures, and that person was required to mimic him until he stopped.8
Sex with random partners was encouraged to increase the unity of the group, and it was not uncommon for Manson to assign two people to, or to forbid two people from, each other. There were orgies that Manson would orchestrate and lead, assigning each person a position and task. For the women, sex with Manson was a privilege. Drugs, particularly marijuana and LSD, were free flowing, although Manson often took less than everyone else when they embarked on communal “trips,” enabling him to retain more control over the situation.9 Violence was constant. Manson acquired a large cache of guns and knives and threatened anyone who disagreed with him. He killed, or at least ordered killed, several people, including Spahn Ranch hand Donald “Shorty” Shea, several defecting Family members, and peripheral hangers on. He shot a drug dealer with whom a deal went awry and left him for dead, though he survived. Manson explained to his followers that fear was beautiful and that the more fear you have, the more awareness you have, thus the more love you have. He claimed that death was beautiful because people feared death.10 The combination of sex, drugs, and fear made Family members not only loyal and submissive to Manson, but somehow made them love and adore him. They never questioned his authority. “Charlie is love, pure love,” one member explained.11 It was clear to anyone who spoke to a Family member that he or she would go to the ends of the earth for Manson, many believing him to be the second incarnation of Jesus Christ.12 Manson preached often and intensely to his avid followers, and his philosophy, while still loosely based on Beatles lyrics and the Bible, had grown and developed over the years. He believed that the world was on the brink of an apocalyptic race war, which he called Helter Skelter. Blacks would win this war, he claimed, and embark on the elimination of the white race. But they were not smart enough to run the world they would inherit, so they would naturally ask for help from him and the Family, who would be hiding out in a “bottomless pit” in the desert. They would hand over the reins of power, and Manson would rule the world.13 This revolution would start, Manson believed, with blacks committing heinous crimes in wealthy white neighborhoods of Los Angeles, but no such crimes were occurring. Manson became anxious, upset by Helter Skelter’s slow progress. He decided to get the revolution started himself by committing a terrible and upsetting murder in a white neighborhood and make it look as if it had been perpetrated by the black community. Such a crime would spark animosity between the races, ignite the revolution and, as explained by a former Family member, “show blackie how to do it.”14 On the night of Friday, August 8, 1969, Manson gathered some of his most loyal followers and instructed them to dress in dark clothing and find their knives. Chosen were twenty-one-year-old former topless dancer Susan Atkins, called Sadie Mae Glutz; twenty-one-year-old Patricia Krenwinkel, called Katie, a dark-haired girl from Los Angeles who left her job as a process clerk for an insurance company to join Manson; and twenty-three-year-old Charles Watson, called Tex, former high school jock, college dropout, and Manson’s right hand man. The final member of the cabal was Linda Kasabian, a twenty-year old who had been on her own since age sixteen and had spent the past few years living in communes and experimenting with drugs. A relative newcomer to the Family, she had only been living with Manson for a month but was included because she was the only member of the Family with a valid driver’s license. The four set out from Spahn Ranch and drove to a home on Cielo Drive in Benedict Canyon, the area above Hollywood and Beverly Hills. The house belonged to Rudi Altobelli and was being rented by
movie director Roman Polanski and his beautiful wife, twenty-six-yearold actress Sharon Tate, then eight months pregnant. The Polanskis had spent much of the summer in Europe, so the house was being tended to by their friend, twenty-five-year-old Abigail Folger, heiress to the Folger coffee fortune, and her boyfriend, thirty-two-year-old Wojiciech “Voytek” Frykowski. Tate had returned from Europe a few days prior and was staying at the house with Folger and Frykowski until Polanski came home. Manson and Watson had been to this house before. Dennis Wilson had once introduced Manson to the house’s previous occupant, Terry Melcher, record producer, son of Doris Day, and boyfriend of Candace Bergen. Melcher had declined to sign a contract with Manson, but Manson chose the house not out of revenge but because he knew it would be isolated.15 The group arrived at the house after midnight, cut the telephone lines, climbed the gate, and slaughtered everyone inside. Afterward, they got back in the car, changed clothes, tossed their bloody garments and weapons over the side of the canyon, and drove back to Spahn Ranch. They left behind a horrific scene. On the front lawn lay the bodies of Frykowski and Folger. Frykowski had been shot twice, hit repeatedly in the head with a blunt object, and stabbed fifty-one times. Folger had been stabbed twenty-eight times, her once white nightgown completely stained with blood. Inside the house was the body of the pregnant Sharon Tate, stabbed sixteen times. With her was the body of Jay Sebring, hair stylist to the stars and Sharon Tate’s close friend. He had been shot once and stabbed seven times. Sharon lay in a fetal position and Jay looked as if he died trying to ward off future blows. Tate and Sebring had been tied together by a rope that had been strung over a ceiling rafter and looped around their necks. A blood-stained towel had been thrown over Sebring’s face. The word “PIG” was written on the front door in blood.16 In the driveway, slumped in the driver’s seat of a white Rambler, was the body of eighteen-year-old Steven Parent, shot four times. Unconnected with Tate or any other victim, Parent had been visiting William Garretson, a young man Altobelli had hired to live in the back house and take care of the property while he was away. The next day, news of the murders spread quickly, but back at Spahn Ranch, Manson was unhappy with how the events of the previous evening had unfolded. He felt that it had been “too messy” and prepared his team to strike again that night. This time, they were joined not only by Manson himself but also by Leslie Van Houten and Steve Grogan. Twenty-year-old Van Houten had gotten hooked on LSD at age fourteen and had lived on a commune until meeting Manson.17 Grogan, an eighteen-year-old known to the Family as “Clem,” had been arrested countless times and diagnosed as mentally ill. Sentenced to a stay at Camarillo State Mental Hospital, he had managed to escape with help from the Family. Together, they drove through Pasadena and east Los Angeles. Manson gave directions and looked for a random home to target, passing over his first few choices because he saw pictures of children in the window or because the houses were too close together.18 Eventually, Manson settled on a home in Los Feliz belonging to Leno and Rosemary LaBianca. Leno, age forty-four, was the president of a local grocery store chain, and his thirty-eight-year-old wife, Rosemary, to whom he had been married for ten years, owned and operated a successful clothing boutique. Manson entered the home alone, tied up the couple, and returned to the car. Watson, Krenwinkel, and Van Houten then entered and slaughtered the LaBiancas. Leno was left in the living room, a pillowcase over his head and a lamp cord wrapped around his neck. His hands had been tied behind his back. He had been stabbed twelve times with a knife and an additional fourteen times with a two-pronged kitchen carving fork, which was left protruding from his abdomen. The word “war” had been carved into his skin. Rosemary’s January–February 2021
|
San Antonio Lawyer 25
Manson preached often and intensely to his avid followers, and his philosophy, while still loosely based on Beatles lyrics and the Bible, had grown and developed over the years. He believed that the world was on the brink of an apocalyptic race war, which he called Helter Skelter.
body was found in their bedroom. She had been stabbed forty-one times in the back and legs and, as with her husband, a pillowcase had been placed over her head and a lamp cord wrapped around her neck. The words “DEATH TO PIGS” and “RISE” were written in blood on the living room walls, and “HEALTER SKELTER” was incorrectly spelled out in blood on the refrigerator door.19 Watson, Krenwinkel and Van Houten hitchhiked back to Spahn Ranch. Manson, on his way home, stopped for milkshakes.20 Next, the investigation. Mark J. Phillips is a shareholder at the law offices of Lewitt Hackman in Encino, California. Aryn Z. Phillips is a graduate of the Harvard School of Public Health and holds a Ph. D. in Public Health from UC Berkeley. They are the co-authors of Trials of the Century (Prometheus 2016).
ENDNOTES Vincent Bugliosi, Helter Skelter (New York: W. W. Norton 1974), 224-26. 2 Jeff Guinn, Manson: The Life and Times of Charles Manson (New York: Simon & Schuster 2013), 95-96. 3 Bugliosi at 226, 237; Guinn at 173. 4 Bugliosi at 238. 5 Id. at 157. 6 Id. at 334. 7 Id. at 238-239. 8 Guinn at 180-81. 9 Bugliosi at 317-18. 10 Id. at 319. 11 Id. at 128. 12 Id. at 315. 1
Bradley Steffens and Craig Staples, The Trial of Charles Manson: California Cult Murders (San Diego: Lucent Books 2002), 50-51. 14 Steffens and Staples at 50; Bugliosi at 332. 15 Bugliosi at 24, 55-60. 16 Id. at 27-61. 17 Murphy at 43. 18 Bugliosi at 356 19 Id. at 68-70. 20 Id. at 358. 13
Trying To Manage Too Much? LeT us heLp. you fiLe iT and we do The resT!
Most insurance companies think with their wallet. We also use our heart.
Nationwide Process Serving Skip Tracing Court Filings Online Repository and much more
TLIE cares about its members. We support organizations that help them succeed and thrive. The BEST liability coverage for the BEST people.
#DoGoodAlamoCity
FIND OUT MORE:
TLIE.ORG or
(512) 480-9074
26 San Antonio Lawyer | sabar.org 2_4x4_9in_TLIE Ad Campaign 2020_SanAntonioLawyer_120120.indd 12/1/20 4 12:02 PM
Office@ProntoProcess.com 210-226-7192 www.ProntoProcess.com
Fourth Court Update
The Governor’s Duty to Appoint a Justice in the Event of a Vacancy By Chief Justice Rebeca C. Martinez and Nadeen Abou-Hossa
A
t the top of the Texas court system are the Texas Supreme Court and the Texas Court of Criminal Appeals. Tex. Const. art. V, § 1. Each of these courts has nine justices who are chosen in partisan elections for staggered six-year terms. Id. § 2(a), (c); id. § 4. Immediately below these highest courts are the state’s fourteen courts of appeals, comprised of three to thirteen justices each. Id. § 6(a). These justices also are elected for six-year terms. Id. § 6(b). In the event of a vacancy, the Governor may appoint a justice to serve the remainder of an unexpired term until the next general election. See id. § 28(a). The section of the Texas Constitution entitled “Vacancy in Judicial Office” states: “A vacancy in the office of Chief Justice, Justice, or Judge of the Supreme Court, the Court of Criminal Appeals, the Court of Appeals, or the District Courts shall be filled by the Governor until the next succeeding General Election for state officers, and at that election the voters shall fill the vacancy for the unexpired term.” Tex. Const. art. V, § 28. However, if a vacancy occurs within seventy-four (74) days of a general election, the appointed justice serves until the next succeeding general election. Tex. Elec. Code § 202.002(b). In 2020, August 21st was the date by which a vacancy had to exist for voters to fill the unexpired term at the November 2020 general election. See id.; Election Advisory No. 2019-17. To be considered for appointment to the Texas Judiciary, an individual must complete an appointment application on the State of Texas Governor’s website.1 Applicants must also submit a resume, photograph, the State Bar and Judicial Conduct Release Form, and a Judicial Questionnaire to the Governor’s Appointment Office.2 Applicants for the Texas Supreme Court, Court of Criminal Appeals, and any Court of Appeals also must submit a writing sample. Id. Supporters of the applicant may send letters of endorsement to the Governor’s Appointment Office. Id. While this is the current system in Texas, the State is examining alternative methods for selecting judicial officers. See H.B. 3040, 86th Leg., Reg. Sess. (Tex. 2019). In 2019, the 86th Texas Legislature created the Texas Commission on Judicial Selection in order to study and review the way that judges, including appellate justices, are selected for office in Texas. Id. The Commission must submit its findings and recommendations to the Governor and Legislature by December 31, 2020. Id. The legislative session begins on January 12, 2021. See Tex. Const. art. III, § 5(a); Tex. Gov’t Code § 301.001.
Chief Justice Rebeca C. Martinez has served on the Fourth Court of Appeals since January 2013. She was elected Chief Justice in the November 2020 election. Previously, she served for United States Magistrate Judge Eduardo E. de Ases for the Western District of Texas, for Justice Federico G. Hinojosa on the Thirteenth Court of Appeals, and practiced trial law for over twenty years. Nadeen Abou-Hossa is a 2020 graduate of St. Mary’s Law School and is a briefing attorney for Chief Justice Martinez.
ENDNOTES See Applications and Forms, Office of the Texas Governor, http://www.gov. texas.gov/organization/appointments/application (last visited Nov. 9, 2020). 2 See Application Process, Office of the Texas Governor, http://www.gov. texas.gov/organization/appointments/process (last visited Nov. 9, 2020). 1
January–February 2021
|
San Antonio Lawyer 27
Federal Court Update
Western District of Texas Court Summaries By Soledad Valenciano, Melanie Fry, and Charles Carter
If you are aware of a Western District of Texas order that you believe would be of interest to the local bar and should be summarized in this column, please contact Soledad Valenciano (svalenciano@svtxlaw.com, 210-787-4654) or Melanie Fry (mfry@dykema.com, 210-554-5500) with the style and cause number of the case, and the entry date and docket number of the order.
First Amendment; Free Exercise Tap Pilam Coahuiltecan Nation v. Alamo Trust, Inc., SA-19-CV-01084-OLG (Garcia, O., September 23, 2020). During the renovation of the Alamo, human remains were discovered on the site. Plaintiffs are purported descendants of those people and state that one of their core religious beliefs is that a specific ceremony must be performed if a body is moved. Plaintiffs filed this action for injunctive relief to protect their interests amidst the on-going renovation of the Alamo. The court previously dismissed the state and local agencies from the suit on sovereign immunity or standing grounds. The remaining defendants, the CEO of Alamo Trust, Inc. and the Commissioner of the Texas General Land Office—the officials in charge of the “Alamo Plan” renovation—moved to dismiss the remaining claims. Plaintiffs claim that their exclusion from the human remains protocol set by defendants violated their equal protection and free exercise rights. Plaintiffs also claim that they were prohibited from performing a religious memorial ceremony in the Alamo Chapel in violation of their free exercise rights. The court rejected plaintiffs’ equal protection claim because they did not plead how they are treated differently than other purported descendants of the persons whose remains were found, who were also excluded from the human remains protocol. Without questioning the sincerity of plaintiffs’ religious beliefs, the court also 28 San Antonio Lawyer | sabar.org
rejected plaintiffs’ free exercise claim because inclusion in the human remains protocol and permission to enter the Alamo Chapel outside of operating hours (as plaintiffs requested) were not generally available benefits that defendants denied. Accordingly, the court refused to “extract” a benefit from defendants and dismissed the case.
Amount in Controversy; Pre-Suit Demand Letters Southwest Research Inst. v. Cal. Fueling, LLC, SA-20-CV-00986-XR (Rodriguez, X., October 27, 2020). Plaintiff, Southwest Research Institute (“SwRI”), entered into a contract to perform emission testing for Defendant California Fueling. After SwRI completed the testing and issued a final report, the defendant paid SwRI $256,000. Two years later, counsel for the defendant contacted SwRI to demand the money back due to SwRI’s alleged disclosure of biodiesel trade secrets to a competitor. SwRI sued the defendant in Texas state court for declaratory judgment that SwRI did not misappropriate intellectual property as well as other issues related to the resolution of the parties’ prior contract. Following the defendant’s removal of the case to federal court, SwRI moved to remand to state court, arguing that the defendant did not meet its burden to demonstrate the amount in controversy. The defendant relied on evidence regarding the $256,000 payment to support
its amount in controversy argument. SwRI objected to this evidence on Rule 408 grounds because of a discussion of settlement demands in one of the defendant’s supporting affidavits. The court overruled SwRI’s objections and clarified that pre-suit demand letters can be used to determine whether the amount in controversy exceeds $75,000 but that such demands must represent a “reasonable estimation” of the amount in controversy. In doing so, the court determined that the defendant’s demand to return the $256,000 in settlement of its potential IP claims against SwRI was a reasonable estimate of how the defendant valued the claims on which SwRI now seeks a declaration. Accordingly, the court denied SwRI’s motion to remand.
Voting Rights; COVID-19 Response Mi Familia Vota v. Abbott, SA-20-CV00830-JKP (Pulliam, J., October 27, 2020). Plaintiffs generally allege that Texas election procedures preclude people in certain protected classes from voting because the procedures create unsafe conditions in light of COVID-19. The court granted a motion to dismiss on the ground that it did not have Article III power to grant the injunctive relief requested. The Fifth Circuit affirmed in part and reversed in part and remanded for further proceedings, including determination of three issues related to Exemption 8 of Governor
Abbott’s Executive Order GA-29. Exemption 8 exempts anyone who is “voting, assisting a voter, serving as a poll watcher, or actively administering an election” from compliance with the statewide mask mandate. The issues presented by the Fifth Circuit were whether Exemption 8 violates Section 2 of the Voting Rights Act as applied; whether the court could resolve plaintiffs’ alleged injuries by invalidating Exemption 8; and whether invalidating Exemption 8 would “materially or substantially affect the ongoing election.” Following a thorough discussion, the court concluded that plaintiffs held a substantial likelihood of success on their claim that Exemption 8 violates Section 2 of the Voting Rights Act because it imposes a “voting practice or procedure that results in a denial or abridgement” of the right to vote for certain protected classes due to the disproportionate impact that COVID-19 has on those communities. The court also determined that invalidating Exemption 8 would resolve the alleged injury and would not “materially or substantially affect the ongoing election.” Accordingly, the court invalidated Exemption 8 but denied all other requests for injunctive relief. The Fifth Circuit subsequently stayed the court’s order pending appeal.
Discovery Crisp v. Nissan Motor Corp., et al., SA-20CV-00220-XR (Rodriguez, X., October 20, 2020). Husband died in a Nissan Frontier and his wife sued manufacturers alleging the vehicle was unreasonably dangerous because a feasible alternative design would not have resulted in a collapsed cabin. Explaining the contours of Rule 26(b)(1), the court held that because the plaintiff sought documents and information relating to other pickup trucks that were designed within roughly the same time period as the vehicle in question, and not a vehicle that is wholly different in nature, the requests seek information that is similar and therefore relevant. That the plaintiff could not already prove that the designs of other vehicles were safer is not a basis to deny discovery. In overruling defendants’ discovery objections, the court clarified that the scope of permissible discovery would include pickup models that are reasonably similar to the Nissan Frontier such that there exists a reasonable probability that inspection of their designs would aid in the determination of whether a feasible design
alternative existed prior to the collision at issue. Defendants’ proffered affidavit was not helpful because it did not address the issue of whether safer alternative designs exist.
Review of Social Security Administration Decision
Class Certification of Collective Actions; Lusardi Approach
Plaintiff alleged that the administrative law judge who denied his request for social security benefits failed to fully and fairly develop the record in performing a residual-functionalcapacity assessment, and that in the absence of any medical opinion assessing plaintiff’s function limitations, the judge should have sought a medical opinion on the issue. On review, the court found substantial evidence in the record to support the decision and thus found no reversible error. In addition to the records reviewed by the court, plaintiff himself repeatedly denied any decreased functioning during the relevant period of disability. The administrative law judge did not err in failing to discuss the opinion of plaintiff’s doctor; rather, the administrative law judge implicitly acknowledged that opinion when he recognized and discussed issues related to PTSD. Further, the court found that even if the administrative law judge had erred by failing to fully develop the record, there was no prejudice. Here, plaintiff failed to point to evidence that would have led to a finding of greater mental-function deficits.
Ortiz v. Trinidad Drilling, LLC, SA-20-CV-00503-OLC-ESC (Chestney, E., September 14, 2020). Plaintiff, an oil rig manager, alleged he worked 18-hour days under a 14-day on, 14-day off schedule, for a flat day rate with no overtime pay, in East Texas from 2012 to 2019. Plaintiff asked for certification of all oilfield workers employed by the defendants anywhere in the United States from April 23, 2017, through the disposition of the present case who were paid a day rate but no overtime. Unlike Rule 23 class actions, FLSA collective actions work under an “opt-in” method. The district court decides whether and how to give notice for putative plaintiffs to opt into the action. While the Fifth Circuit uses two approaches to guide its decision to certify a collective action, the Lusardi approach and the Shushan approach, here the court, like the majority of courts in the Fifth Circuit, used the Lusardi approach. The two-step Lusardi method includes a notice (i.e., certification) stage and a decertification stage. Plaintiff’s burden at the notice stage is to put forth “substantial allegations that the putative class members were together the victim of a single decision, policy or plan.” Here, the court declined to certify a nationwide class of workers, and instead certified “rig managers working in Texas.” As to the time period to include in the class definition, the court chose three years prior to the date of the certification (i.e., September 14, 2017) through the disposition of the case. This look-back period would allow members to opt in under the three year FLSA statute of limitations applicable to willful violations; however, the court declined to consider the issue of willfulness as that would be a merits decision that is inapplicable during the certification stage of FLSA litigation. The court also tolled the statute of limitations to effect the time period in the class definition.
Herrera v. Saul, SA-19-CV-00888-RBF (Farrer, R., September 25, 2020).
January–February 2021
Soledad Valenciano practices commercial and real estate litigation with Spivey Valenciano, PLLC.
Melanie Fry practices commercial litigation and appellate law with Dykema Gossett PLLC.
Charles Carter practices commercial litigation with Dykema Gossett PLLC.
|
San Antonio Lawyer 29
World Class Counsel. Local Solutions.
Jason Davis
Sarah Santos
(210) 853-5882
|
Mark Murphy
info@dslawpc.com
ad index
|
Santos Vargas
Caroline Newman Small
Patty Rouse Vargas
719 S. Flores Street, San Antonio, Texas 78204
www.dslawpc.com
BEST I N C LASS I N FO REN SI C S
Alexander Dubose & Jefferson . . . . . . . . . . . . . . 7 Broadway Bank. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Davis Santos. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Donald R. Philbin, Jr. P.C. . . . . . . . . . . . . . . . . . . . . 4 Gallant Computer Investigative Services, LLC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Gunn, Lee & Cave, P.C.. . . . . . . . . . . . . . . . . . . . . . 31 Karen Pozza Mediations PLLC. . . . . . . . . . . . . . . 7 LawPay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Manitzas Trueman Consulting Services, Inc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 National Academy of Distinguished Neutrals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 Ned Hodge - Insurance Architect. . . . . . . . . . . 15
BEST-IN-CLASS FORENSIC ACCOUNTING & BUSINESS VALUATIONS
We Testif y. Full Range of Accounting Services. Forensic Accounting & Litigation Support.
Pronto Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Entrepreneurial Business Advisory Services.
Steven Bankler. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Tax Planning & Consulting Services.
Texas Lawyer Insurance Exchange. . . . . . . . . 26 The Association of Attorney-Mediators . . . . 22
Profit From Our Experience.
theKFORDgroup . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Our Partners Bring Over 90 Years of Collective Experience as Certified Public Accountants.
8620 N. New Braunfels, Suite 300, San Antonio, TX 78217 210-340-8351 | Fax 210-340-8359 | theKFORDgroup.com 30 San Antonio Lawyer | sabar.org
You work hard to achieve success. We work hard to take care of you. At Broadway Bank, our local mortgage experts have extensive experience working with professionals like you. The Professional Mortgage program provides the ease and flexibility you need when purchasing your new home. •
15% down payment on loans up to $1,000,000
•
Loan amounts up to $1,500,000
•
No private mortgage insurance
•
Flexible qualifying guidelines
To get pre-qualified, visit broadway.bank/mortgage or contact a local expert at (210) 283-4020. Membership qualifications to Private Banking at Broadway Bank apply. All loans subject to credit approval, verification and collateral evaluation. Rates, terms and conditions are subject to change without notice. Lending area and other restrictions apply. Member FDIC. Rev. 06/20 / #439708248
