Jillian Beck, Lindsay Stafford Mader, Patricia Busa McConnico, and Amy Starnes 2016-08-25 00:45:27
Opportunity for Access Frank Stevenson seeks to have a united bar work together on employing attorneys and increasing access to legal services. After being sworn in by Texas Supreme Court Justice Phil Johnson and thanking his family, friends, and colleagues, State Bar of Texas President Frank Stevenson introduced his presidential initiatives. These include addressing statistics indicating that almost 40 percent of last year’s U.S. law graduates have jobs that don’t require a J.D., that only one in five low-income Americans with a legal need ever finds civil legal help, and that more than 20,000 cases involving a pro se party were filed last year in Tarrant County alone. “That’s not just their problem,” Stevenson said, “that’s our problem.” Stevenson, a transactional lawyer in Dallas, told the crowd gathered in Fort Worth that Texas lawyers will need to band together to fix these issues. “We’re tempted to identify ourselves first and foremost by our differences,” he said. “But do these distinctions matter to anyone but ourselves, and does this ardent differentiation sometimes make us appear less a united bar and more just an amalgam of organized appetites? This is a challenging time to be a lawyer, and the challenges confronting us confront us as a profession.” Stevenson encouraged the Texas bar to lead the nation in identifying changes to the profession that will expand legal access and, at the same time, expand employment opportunities for underemployed or unemployed lawyers. He will focus his attention on helping the State Bar create the Texas Opportunity & Justice Incubator, which will provide office space, training, and a learning lab for a select group of new attorneys; modernize and enhance access to lawyers for modest-means Americans; and identify new methods to deliver legal services—“but by lawyers and not by someone or something else.” Throughout his inaugural speech, Stevenson stressed the importance of uniting as a team. “This will require work, but more importantly,” he said, “this will require work together.” Ignite SBOT This fast-paced format—speakers go through 20 slides and speak for five minutes on a topic of their choice— fuels innovative thinking, as evidenced by the array of themes at this year’s session. Speakers covered everything from Shakespeare quotes every lawyer should know (think Hamlet) to the five p’s in “opportunity” and the fight against human trafficking. C. Barrett Thomas, immediate past president of the Texas Young Lawyers Association, closed with a presentation on the And Justice For All project, which seeks to prevent wrongful convictions. “One life in prison wrongfully is one too many,” he said. Texas Supreme Court Update The Texas Supreme Court’s pledge to again clear its docket can be attributed to the court’s stability, which panelists believe is due to the guidance of Chief Justice Nathan L. Hecht, the longest-serving justice on the court. Lynne Liberato, a partner in Haynes and Boone in Houston and a former State Bar president, kicked off the session, noting that Justice Don R. Willett was in attendance. Warren W. Harris, a partner in Bracewell in Houston, and David Keltner, a partner in Kelly Hart & Hallman in Fort Worth, discussed a reduction in disposition time (down to 173 days), recent cases, dissents, and the fact that the Texas Supreme Court is the most cited supreme court other than the U.S. Supreme Court. Time and a Half employee handbooks to ensure they are in compliance with recent regulatory changes, said Vianei Lopez Braun of Shannon, Gracey, Ratliff & Miller, as she discussed emerging topics in employment law, including the U.S. Department of Labor’s recent rule changes to overtime compensation (see Client Page, p. 662). She noted that as exempt and nonexempt job classifications are reviewed, legal professionals and employers should keep in mind that employees may need retraining and further education on company policies to comply with the new standards. Write This Way Weird fonts are bad, Dallas attorney Chad Baruch declared as he presented slide after slide of real examples of what not to do in legal writing. He suggested using white space but said not to underline words. Other simple rules included avoiding all capital letters and superfluous terms, such as shall, wherefore, and hereby. At one point he posted a slide illustrating two spaces after a period and the simple declaration: “Stop doing this!” His presentation drove home the point that a poorly written contract is not only confusing but can also lead to a legal debate over the contract’s intent. Pick Your Battles Whether a problematic moment during a case is of your making or not, Fort Worth attorney Gary L. Nickelson said in this session that it’s best to approach the situation with honesty and integrity and take a direct route to repairing it. He suggested forgiving minor oversights of opposing counsel because “what comes around goes around.” “Judges and juries don’t like a lawyer who objects to everything that comes in,” Nickelson said. A judge may be more likely to listen to your pleas if you’ve not objected to every item. For Vets Capt. Patrick Robinson, a special assistant U.S. attorney at Fort Hood, established the first veterans treatment court on a U.S. military installation. The supported population of Fort Hood, located near Killeen, is about 400,000, Robinson said, explaining that there was a need. “These courts have a strong responsibility to reduce the crime rates [of the areas] in which they are established,” he said at the event hosted by the Military and Veterans Law Section. “It is our responsibility to stand for those who have stood for us.” Data Rules Lisa Zolidis, privacy counsel at Dell, explained to session attendees that while the United States considers the protection of personal information—often obtained by online companies like Google— to be a matter of property ownership regulated by the states, the European Union sees it as a fundamental, uniform individual right. U.S. companies wishing to transfer data to Europe must have contractual clauses to bring their policies up to speed with the EU’s General Data Protection Regulation, which will apply to all member states in May 2018. Ending the Stigma Almost four years ago, San Antonio teacher Deborah Rich Herczeg lost her husband, Charles “Chip” Rich III, a Bexar County prosecutor, to suicide. Herczeg shared the sobering statistic that for every 100,000 lawyers, 70 will die by suicide. “It is both deeply disturbing and comforting that my husband’s death wasn’t an unusual event,” she said. “If so many attorneys are struggling, why can’t we identify those most at risk before they harm themselves?” Texas Lawyers’ Assistance Program Director Bree Buchanan (above) led this poignant Early Morning Ethics panel on the prevalence of lawyer suicide and how the legal community can play a part in getting attorneys who suffer from mental health issues the help they need. Tracy Reyes Franklin, a Guadalupe County assistant district attorney and mental health professional, stressed the importance of reducing the stigma surrounding the discussion of suicide. Caught on Tape If an officer wearing a body camera steps inside a house with the device turned on, should a member of the public be able to file an open records request to view the camera’s recording, including the footage of what and who was in the house? Questions dealing with such privacy concerns were discussed at a session on law enforcement officers using body cameras. Virtual Reality In an age where almost everything is done electronically, is there really a need for a traditional office? The panelists at the Adaptable Lawyer Track’s Virtual Law Firm think not. Wei Wei Jeang, a member in Grable Martin Fulton in Dallas who has worked with many big firms in Texas, said the biggest attraction for her was setting her own billing rate. “We get paid on billing. We get paid on recruiting,” Jeang said. “My commute is 10 feet from my bedroom.” Rocky Dhir, president and CEO of Atlas Legal Research in Dallas, said that clients don’t care where you are located. It is the work that matters. Still, some of the attendees were skeptical. One suggested it would be difficult to stay focused on work matters while in the comfort of your own house. Julie Innmon, managing partner in FisherBroyles in Dallas, said she has been telecommuting for more than a decade and has it down to a science. She enjoys her flexible schedule, which allows her to spend time with family and practice law. “Electronic filing is a game changer,” Innmon said. “You can litigate from home.” While the panelists agreed that a virtual office might not be for everyone, they did say it has changed the way they approach their practices. “When you get rid of the walls,” Innmon said, “there is no ceiling.” Church and State Panelists discussed the intersection of ethics, morality, and the law, arguing that while attorneys may believe the law is and should be separate from religion, in truth, laws are inspired by deeply held beliefs, which are often derived from religious concepts. Baylor Law School Dean Bradley J.B. Toben said humans drive laws in a particular direction based upon their ethics and morals and explained how he teaches law students that they can often find comparisons between religious parables and legal narratives. Panelists also pointed out that lawyers should be aware of their own moral and religious biases in order to be mindful not to impose them on others, especially their clients. The Ethics of Reality TV Behind the glitz and glam of reality TV, legal ethics dilemmas can pop up, as pointed out by The Amazing Race winner and lawyer Victor Jih and The Voice finalist Luke Wade (above right) at an Entertainment and Sports Law Section discussion moderated by Fort Worth attorney Joel Timmer (above left). Jih and Wade shared their experiences with reviewing, or choosing not to review, legal contracts. St. Mary’s University School of Law Assistant Professor David Grenardo discussed the inherent conflict-of-interest problems that can arise when lawyers for TV shows represent multiple contestants or the show itself. A Good Reputation Judges Roy B. Ferguson and David A. Canales told a packed room of lawyers about what to do and what not to do to be effective yet ethical advocates. Canales, judge of the 73rd Civil District Court, said he often listens to opposing sides’ arguments if they are legitimate. Ferguson, judge of the 394th Judicial District Court, noted that clients will notice that arguing wastes time, so attorneys should choose wisely and uphold the words of the Texas Lawyer’s Creed. Both judges encouraged attorneys to put more thought into discovery requests and to not “railroad” pro se litigants. They also explained that information—including emails and social media—cannot be deleted or modified beginning at the initial consultation (not beginning later at the time of filing). Ferguson and Canales lastly offered advice on protecting the profession by telling the lawyers in the audience to carefully consider their actions and words when around clients. “The greatest threat to our reputation,” Ferguson said, “is us.” Authenticating Pierre Grosdidier, an associate of Haynes and Boone in Houston, touched on many facets of electronic evidence, including the idea that evidence is now intangible and made up of codes in zeros and ones. Electronic evidence is admissible, he said. “The issue today is authentication.” Issues in authentication range from cellphone text messages, particularly relevant in divorce and custody matters and criminal proceedings, to metadata, which is really data about data and is important in trade secret theft cases. Grosdidier suggested a few things to help with authentication, including asking for file type, insisting on full native text (a file’s original text, not separated), and requesting received and sent emails in Greenwich Time, which helps when people are traveling. Managing In-House and Outside Counsel Navigating the relationship between in-house and outside counsel can be challenging at times, but Haynes and Boone partner Anne Johnson and Krissy Turner, senior legal counsel and executive director for corporate communications at AT&T, provided tips for effective management at a panel from the Business Law and Corporate Counsel sections. With more pressure on in-house counsel to reduce costs for their organizations, Both Johnson and Turner stressed the importance of outside counsel pitching specialized services to potential client corporations. The Best That We Can Be The importance of leadership and “showing up” in life and in sports was the focus of remarks from former NFL player Ken Reeves (above), who spoke at the Bench Bar Breakfast. Reeves, now vice president of human resources at Freese and Nichols, shared advice he received from his parents while growing up as a talented athlete and college student. “As we strive to be our best, let us always be thankful,” Reeves said. Texas Supreme Court Chief Justice Nathan L. Hecht gave a brief report on the state of the judiciary in Texas, touching on the July 1 deadline for mandatory e-filing in civil matters in all counties across the state, the increase in legal aid for veterans and sexual assault survivors, and a Supreme Court task force that is reviewing legal education and bar admission in Texas at the request of all 10 law school deans. Litigation Legal Legends Revered litigators including Broadus Spivey, UNT Dallas College of Law Dean Royal Furgeson Jr., George E. Chandler, and former Texas Supreme Court Justice Ruby Kless Sondock, the first woman to serve in a regular session of the state’s high court, talked shop, shared stories, and gave advice to a standing room-only crowd. They were quick to answer questions and provide some practical guidance for those interested in trying cases in the courtroom, including how to handle that first trial. Furgeson recommended not experimenting in the courtroom (he had some wire burn once) and suggested going to court to listen to a great lawyer try a case. Sondock said to remember that you are probably better than you think you are. “Realtors have location, location, location. We have preparation, preparation, preparation,” she said. “Cases are not won in the courtroom, they are won in the office.” Back to School One year after the Texas Legislature passed House Bill 2398, some school and court officials have found the implementation of truancy reform to be a long learning process. One of the main areas of concern voiced by Jackie Miller Jr., justice of the peace for Precinct 2 in Ellis County, was that by the time a student’s attendance record can be sent to the truant conduct prosecutor, there’s little time left in the semester for counseling or tutoring programs. The Birth of the Texas Identity Answering poignant questions from Dallas attorney Talmage Boston, bestselling author S.C. Gwynne (above) went deeper into the stories behind his 2011 Pulitzer Prize finalist, Empire of the Summer Moon: Quanah Parker and the Rise and Fall of the Comanches, the Most Powerful Indian Tribe in American History. The audience of lawyers listened intently as Gwynne talked about the Comanches’ masterful utilization of the horse, which he said changed them from a tribe “of no consequence” to fierce warriors on horseback who forced the Jack Hays-led group of Texas Rangers to adapt to the natives’ style of warfare. It was partly the tribe’s remarkably enduring territory and toughness and Texans’ unique fortitude that helped form the state’s gritty identity. “Comanches had never encountered anything like Texans in terms of stubbornness and willingness to go beyond any protection,” Gwynne said. Life After Obergefell After dedicating its day of CLE to the victims of the Orlando nightclub shooting, the LGBT Law Section discussed issues that have come up since the U.S. Supreme Court’s landmark Obergefell v. Hodges decision legalizing same-sex marriage, including community property, prenups, and postnups. Employment and education law discussions included sex discrimination issues. Prosecuting Notario Fraud “Notarios” in Mexico often do have some legal training, but in the United States, they are no more than notary publics, if that, and often charge clients thousands of dollars for legal services that they can’t complete. Though notario fraud is a crime under two penal statutes, Leland de la Garza, chairman of the Texas Supreme Court Unauthorized Practice of Law Committee, said victims have little money to pursue legal action. Even though district attorneys and the Texas Attorney General’s Office are increasingly prosecuting these crimes, the complaining witnesses often back out of the cases. He recommended directing notario fraud complaints to txuplc.org and finding witnesses by visiting local consulates. The Hispanic Issues Section is working on a toolkit for private practitioners who want to help prosecute notario crime and is encouraging attorneys to volunteer for the UPLC, which investigates the unauthorized practice of law, including notario complaints. Revisiting History In 1925, the first all-woman Supreme Court convened in Texas. More than 90 years later at Annual Meeting, the historic panel was reenacted, thanks to the Texas Supreme Court Historical Society. Many watched as Texas Supreme Court Justice Eva Guzman, Hon. Jennifer Walker Elrod of the U.S. Court of Appeals for the 5th Circuit, and Texas Supreme Court Justice Debra H. Lehrmann (above from left) portrayed the 1925 female justices Hattie L. Henenberg, Ruth V. Brazzil, and Hortense Sparks Ward, respectively, and historical society fellow David Keltner and former society president Douglas Alexander argued the case Johnson v. Darr. Pulling from research of the actual briefs in the case, the participants acted out the oral argument with no scripts. Social Media—Friend or Foe? Noting the ubiquitous nature of social media at a panel for the General Practice, Solo and Small Firm Section, Houston attorney Al Harrison posed the question, How much damage has your client already done online? Harrison emphasized the need for attorneys to warn their clients about recklessly disseminating information pertaining to their cases on social media. And when and if damage is done, Harrison cited New York and Pennsylvania ethics rulings stating that attorneys can advise their clients to remove the content from public view—provided the conduct does not constitute spoliation or is otherwise illegal—as long as they preserve the data in the event that it becomes relevant to their cases or subject to discovery. Social media is also a useful tool for networking, Harrison said, but attorneys should take care not to present their social media content as legal advice. Not Your Mama’s Voir Dire Jury and trial consultant Robert B. Hirschhorn of Cathy E. Bennett & Associates recommended a few tools that attorneys should add to their voir dire arsenal, including some basic verbal and nonverbal communication tips. He said potential jurors are more willing to expose their leanings and biases if counsel appear open to their points of view, so attorneys should avoid crossing their arms over their chests, which makes them appear closed off. If a person admits to a bias, don’t be judgmental, he said. Just thank them, then ask of the whole panel: “Who else believes the same way?” Hirschhorn uses scaled voir dire questions where potential jurors rank statements on a questionnaire about the case. Adding up the numbers can quickly identify the potential jurors who may be more favorable to your client, he said, which can be particularly handy if you are pinched for time in front of the judge. Immigration Issues Panelists Natalia Drelichman, director of legal programs and team development for American Gateways, and Marisol L. Perez, of De Mott, McChesney, Curtright & Armendariz, educated attorneys about forms of immigration relief available to crime survivors. “There are lots of people who need these resources and not enough of us practitioners to help them all,” Perez said. The panelists explained the properties and requirements of U visas and T visas (the latter apply more strictly to victims of human trafficking). Drelichman and Perez reminded attorneys that while sex trafficking gets a lot of attention, labor trafficking is more common. Potential workers may be promised one thing when they depart their countries but arrive in the United States to find they can’t leave, aren’t paid, or the situation isn’t what was promised. Drelichman and Perez noted that victims of trafficking might not realize they are victims of a crime and that’s why it’s important for attorneys to be able to spot elements of fraud, force, or coercion when talking to immigrant clients. Media Coverage The presence of Texas’s Tweeter Laureate and Texas Supreme Court Justice Don Willett, who attended this session cellphone in hand, drove home the panel’s discussion of how to define media in the digital age. As a panelist suggested, the justice—with his 56,000-plus Twitter followers—could very well be viewed as a member of the media. Panelists Ross Ramsey of the Texas Tribune, Robert T. Sherwin of Texas Tech University School of Law, Steve Bresnen of Bresnen Associates, and Judge Martin Hoffman of the 68th Judicial District Court in Dallas recalled when the Texas Legislature first addressed requests for access by online-only media organizations and were presented with the concept of bloggers and self-proclaimed citizen journalists who desired the access afforded to traditional media. But restricting or defining media, Sherwin noted, brushes close to a violation of the First Amendment. Bresnen said that rather than attempting to define who or what is media, and therefore who should have access to certain benefits such as the shield law for reporters, it’s better to carve out the activities that legislators think should not receive protection. For example, an entity that raises money to lobby for political causes shouldn’t be able to brand itself as a media outlet in order to gain unfettered access to lawmakers, he said. Discussing Diversity Reflecting on her path to the Texas Supreme Court, Justice Eva Guzman is grateful for the support she received from mentors. “They made all the difference,” Guzman said at a panel on judges’ perspectives on diversity in the legal profession. Guzman, Hon. Peter A. Sakai of the 225th District Court, and Hon Eric. Shepperd of Travis County Court at Law No. 2, along with Hon. Diana Song Quiroga of the U.S. District Court for the Southern District of Texas in Laredo as moderator, emphasized the need for local and minority bar associations to work together to help each other succeed and to give back by mentoring younger attorneys to seek leadership positions in their communities. This Is About You Michael Morton was an ordinary guy, making a living and raising a family, until he landed in a Texas prison for his wife’s murder. Nearly 25 years later, in 2011, he was exonerated. “You should listen to me because I used to be you,” Morton said to a room of lawyers listening with rapt attention at the Bar Leaders Recognition Luncheon. A story of heartbreak, faith, and forgiveness, Morton’s decades-long battle to prove his innocence and subsequent efforts to enact criminal justice reform led to the passage of the Michael Morton Act in 2013. Since being released, Morton said he has noticed that society seems to favor feelings over thinking, and he emphasized the importance of deep, rational thought. “Thinking is what sets us apart from the beasts,” he said. “Thinking, more than feelings, is what really makes us human. It’s what makes this organization possible.” Statistics from the Innocence Project show that the population of wrongfully convicted prisoners is between 2 and 4 percent of all prisoners, but that’s still too high, Morton said. “This isn’t about me, this is about you. If I can go to prison for life—somebody with no criminal history—what do you think your chances are?” To see a list of local bar association award winners, go to texasbar.com/annualmeetingawards. State Bar Board Report The State Bar of Texas raised more than $500,000 for the Sheeran-Crowley Memorial Trust in the past year to help attorneys who can’t afford needed medical treatment for substance abuse, depression, or other mental health issues. Outgoing President Allan K. DuBois announced this fundraising total to applause during the June 15 meeting of the State Bar Board of Directors, which a year ago committed $250,000 for the trust in the 2015-2016 budget. DuBois, a San Antonio solo, focused on increasing awareness of the Texas Lawyers’ Assistance Program and securing funds for the trust, an independent entity that provides financial assistance to attorneys with substance abuse or mental health issues. The campaign included an inspirational video, Courage, Hope, Help—TLAP Is There, which DuBois presented to bar associations and other organizations across the state. DuBois gave Presidential Citations to three attorneys who appear in the video: Darren Bertin of Gatesville, Erica Grigg of Austin, and Tom Keyser of San Antonio. Weatherford attorney Tom Vick was sworn in as State Bar president-elect, and Jose “Joe” Escobedo Jr. of McAllen succeeded David E. Chamberlain of Austin as chair of the board. Texas Supreme Court Justice Phil Johnson administered the oath of office to new officers and directors. Chamberlain honored Susan I. Nelson of Waco with the Outstanding Third-Year Director Award, and State Bar Executive Director Michelle Hunter named senior software developer Scott Hicks the Employee of the Quarter. The board voted to support a resolution from the American Bar Association Standing Committee on the Delivery of Legal Services regarding legal services forms. The resolution “urges courts and other governmental entities, bar associations, non-profit organizations and entrepreneurial entities that make forms for legal services available to individuals through the Internet to provide clear, conspicuous direction on how people can access a lawyer or a lawyer referral service to provide assistance with their legal matters.” The resolution went before the ABA House of Delegates at the 2016 ABA Annual Meeting in August. SWEARING IN Tom Vick (top right), of Weatherford, takes the oath of office and is sworn in as presidentelect. Jose “Joe” Escobedo Jr. (above right), of McAllen, is sworn in as chair of the board of directors by Texas Supreme Court Justice Phil Johnson.
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