Jillian Beck, Patricia Busa McConnico, Eric Quitugua, and Amy Starnes 2017-08-23 16:09:18
Civic Duty Tom Vick wants to improve technologies, provide access to justice for middle- and low-income Texans, and restore respect for the courts and justice system. “I pledge to you my best effort to ensure our bar is the best in the land, that it meets its mission in educating and protecting the public, administering justice, ensuring justice for all, fostering ethical conduct, and in doing so, being mindful of taking care of ourselves and taking care of each other. Our future— and the future of our profession—depends on it,” said Weatherford attorney Tom Vick, who was sworn in as the 2017-2018 State Bar of Texas president at the General Session Luncheon on June 23. Vick has a strong history of civic duty, having been elected mayor at the age of 27 and also having served on the school board and numerous civic organizations. In his first speech at the helm, he emphasized the need to restore respect for the courts and justice system and to improve the public’s confidence. “We can stem this tide, and together we must,” Vick said. “We all took an oath to defend our constitution and our laws. That oath binds us all day, every day— not just during business hours or when it is convenient.” He suggested solving the problem by supporting programs that provide middle- and low-income Texans with access to the justice system, such as the Texas Opportunity & Justice Incubator and veterans initiatives, and by being an advocate for the legal system at every opportunity, including writing letters to the editor, speaking at civic clubs and schools, and taking active roles in the community. “If we do not do these things and do not stand up for what is right, we cannot expect those outside the legal community to stand for these principles,” Vick said. The State Bar of Texas will continue to be a national leader, he said, adding that the bar will work together with lawyers to increase access to justice, improve technologies to enable attorneys to work smarter and more efficiently, and to remove impediments between lawyers and the clients they serve. “I want you to be proud to be a Texas lawyer, and I want you to be inspired to do great legal work every day.” The History of Affirmative Action The first program of the Diversity Forum, which was sponsored by the African-American Lawyers, Asian Pacific Interest, Hispanic Issues, LGBT Law, Native American Law, and Women and the Law sections, focused on the history of affirmative action, including related caselaw and changing attitudes toward the practice. The panel featured moderator John V. Treviño Jr. of Southlake, University of Texas School of Law Professor Sanford Levinson, Mexican American Legal Defense and Educational Fund Southwest Regional Counsel Marisa Bono, and Austin attorney Rudolph “Rudy” Metayer. Levinson provided a breakdown of U.S. Supreme Court cases related to affirmative action, pointing out that such decisions are not just not unanimous, they’re “wildly not unanimous.” Trends in Open Government State Rep. Giovanni Capriglione, vice chair of the House Committee on Government Transparency and Operation, lamented how little his committee was able to accomplish during the 85th legislative session. Capriglione and representatives from the Texas Municipal League and Texas Association of Broadcasters reviewed the legislative year during a panel discussion hosted by the State Bar of Texas Public Affairs Committee and Government Law Section. The failure to move forward on several bills related to open records issues prompted Houston Chronicle columnist Lisa Falkenberg to remark that open government was once a point of pride for the Lone Star State. “Texas had one of the strongest public records acts in the country,” she said. “It’s slowly being eroded.” Social Graces What happens when someone says something negative about you in an online forum? Our first response is a human one, John Browning, an attorney with Passman & Jones, said at a panel titled “They Said WHAT About Me? The Ethics of Responding to Negative Online Reviews and Social Media.” We want to lash out and destroy our opponent, he said, but don’t do that. “Instead, we should fight anger with kindness.” He asked the crowd what a normal response would be if the complaint had been filed in another format, by phone call or letter. He suggested responding online with a polite invitation to discuss the matter in person or by phone and being mindful of not disclosing any confidential information. He suggested thinking of the situation as a marketing opportunity, a time to show your responsiveness and your strength of character. “Whatever response you employ is going to be read by many people, potential clients,” he said. “And how you respond could affect what they think of you.” Employment Rights and Social Media Twitter and Facebook make the search for new employees easy and immediately accessible. But while social media is a valuable tool in verifying application information, finding out about a potential hire’s religious beliefs or health issues, for example, could lead to possible discrimination claims down the line if the employer uses that information in its decision process, according to attorneys on an Asian Pacific Interest Section panel about social media. The discussion also explored topics such as the interplay between government interest and an employee’s freedom of speech and speech as a matter of public concern. Another focus was Section 7 of the National Labor Relations Act, which protects employees’ right to form, join, or assist labor organizations. Its cousin, Section 8, prohibits employers from discouraging employees to exercise their Section 7 rights. Carter Scholer associate Janet Landry Smith said when dealing with social media, employers shouldn’t rush to create blanket policies that could infringe on Section 7 rights. Attitude Adjustment Do you wake up Monday morning dreading the day? Many attorneys don’t enjoy what they do, said Dirk Jordan, an adjunct professor at the University of Texas School of Law and an attorney with the Jordan Law Firm. But we are in control of our attitude, he said. “It doesn’t matter what you have, it is what you do with it,” he said. “You can choose to be happy or content. You can choose to be kind.” He said lawyers need to be more civil to one another and stop beating themselves up—lawyers are not perfect. He said the key is to realize that the practice of law is not equal to your life and to learn how to separate the two. “I don’t have a guide for you. It is an individual journey.” Law and Water Dallas attorney James “Sandy” McCorquodale discussed the development of the Dakota Access Pipeline, which begins in North Dakota and travels more than 1,000 miles to Illinois. Lake Oahe became a point of legal contention when the U.S. Army began looking at a route for the pipeline underneath the site, which is a source of drinking water and irrigation for the Standing Rock Sioux Tribe. Real-World Security Threats “What’s happening now in our world, we have more and more incidents of terrorism, as you see with the news every day. We’ve got to be much more cognizant—we all can do something about it,” said Larry Wansley, director of security for the Dallas Cowboys and formerly with American Airlines. Wansley and John Chaussee, director of federal airport security for Southwest Airlines, led an Aviation Law Section panel on airport security. Both panelists emphasized the importance of people staying aware of their surroundings and the practice of “see something, say something.” Chaussee discussed how airlines, and specifically Southwest, use risk-based security, meaning they employ their security assets by prioritizing the greatest-level threats. Texas Legal Legends Celebrated litigators UNT Dallas College of Law Dean Royal Furgeson Jr., George E. Chandler, H. Ron White, and former Texas Supreme Court Justice Ruby Kless Sondock, the first woman to serve in a regular session of the state’s high court, swapped war stories, gave advice for balancing workloads with pro bono opportunities, praised their mentors, and shared memorable moments with a packed crowd. They also doled out some words of wisdom, including these from Furgeson: “There is nothing more powerful than authenticity. Just be yourself.” Michael Morton Act Update What have been the challenges and results following the Michael Morton Act’s implementation in 2014? That’s what a Criminal Justice Section panel set out to answer from the prosecution and defense perspectives. Panelists, including Dallas County Criminal Court No. 10 Judge Rob Canas, Rockwall County Criminal District Attorney Kenda Culpepper, Fort Worth defense attorney Christy Jack, and 226th Criminal District Court Judge Sid Harle, discussed how issues related to the law have played out in appellate courts and challenges regarding timely disclosure of discovery for both sides of the docket. THERE’S AN APP FOR THAT “The future is now in terms of technology,” Chief Judge Carl E. Stewart of the U.S. Court of Appeals for the 5th Circuit said to a captivated audience as the keynote speaker at the Bar Leaders Recognition Luncheon. “My law clerks, when I am explaining things to them, are quick to interrupt me and say, ‘Judge, there’s an app for that.’” Stewart focused on the prevalence of technological advances in the legal profession. But first the jurist described his career trajectory that led him to the federal bench—beginning as a young practitioner in the Judge Advocate General’s Corps helping men and women in the burn ward at Fort Sam Houston in San Antonio. “It was a growing up moment for me, realizing what being a lawyer was all about: helping people in need.” Stewart talked about his current court’s efforts to promote the well being of lawyers and judges, addressing aging, cognitive issues, substance abuse, and mental health, and commended the work of lawyers’ and judges’ assistance programs across the country. He left attendees with a lasting message: embrace technology but hold true to the integrity of their craft. “And so as you gather this week and conclude this meeting, I hope that you will grasp the wonders of technology, but as lawyers who took an oath, I hope you will never substitute an app for those virtues that are inextricably a part of being a lawyer or a judge.” To see a list of local bar association award winners, go to texasbar.com/annualmeetingawards. The Witness Venerable Houston trial lawyer Rusty Hardin told a standing-room-only crowd in a Litigation Section panel “Direct and Cross Examination of the Problem Witness” that he gets a witness on the stand to open up just as he would get a guest in his living room to do so. The key, he said, is to listen. You have to look at the witness, and the jury does too, he said. “If we are not careful, we will have totally removed the human element from the courtroom with all of this hightech equipment.” There has to be interconnection in the courtroom, he continued. And then he told a story from decades ago that he has never forgotten—he was reading the paper when his 4-yearold son asked him a question and then said, “Daddy, listen to me with your eyes.” Texas Supreme Court and Fifth Circuit Update Attendees received an update on significant cases decided by the Texas Supreme Court and the 5th Circuit during their respective terms at an Appellate Section panel. Dallas attorney Kirsten M. Castañeda walked through notable recent 5th Circuit cases, such as EEOC v. BDO USA and Renegade Swish, LLC v. Wright , and how the decisions could affect appellate practice. As of the panel, the Texas Supreme Court was on track to clear its docket by the end of June with only four cases left to be decided, Texas Supreme Court Justice Jeff Boyd reported. The Ethics of Better Call Saul If you act like fictional lawyer Saul Goodman, you get the clients you deserve, theorized Nicole Hyland, a partner in Frankfurt Kurnit Klein & Selz in New York. During an Entertainment and Sports Law Section panel, Hyland deftly used humorous clips from the TV show Better Call Saul to illustrate ethical dilemmas in advertising, social media usage, negotiations, and conflicts of interest. She juxtaposed the outrageous fictional storylines with real incidents. It wasn’t hard, of course, for actual attorneys to spot Goodman’s ethical failings; nevertheless Hyland concluded, “If you still don’t know what to do, call an ethics lawyer.” Adaptable Lawyer Talks Adaptable Lawyer launched a new session format based off the popular TED Talks to much success. Melissa Shultz, a legal writing professor at UNT Dallas College of Law, started off by sharing her story of tragedy and miracles and the thread that kept her going—her ability to practice law. Shultz’s husband, an attorney, suffered severe brain damage in a car accident four years ago, and Shultz has since learned how to adapt to her new life—and improved her husband’s because of her legal knowledge. Other speakers included Shawn Tuma, an attorney with Scheef & Stone in Frisco, on cybersecurity; Mike Maslanka, a professor at UNT Dallas College of Law, on how “poetry gives us mindset transplant” and that anyone can overcome anything if he or she has the right attitude; and J. Chad Parker, a solo practitioner in Tyler, on what he learned from his journey from the defense side to plaintiffs’ law—you have to have a plan. Lawyers in Literature Authors Jay Brandon, Mike Farris, Mark Gimenez, and Kathleen Kent discussed what inspires them to write, how their legal experiences have assisted them, and how they develop their story ideas during an Entertainment and Sports Law Section panel about lawyers in print. Gimenez, the author of nine novels, said his first career was as a tax lawyer, “which is like hitting yourself in the head with a ball-peen hammer all day.” Brandon, who continues to work in the Bexar County District Attorney’s Office, noted he creates characters so he can essentially live other lives. Privacy vs. Transparency Lea A. Ream, of Davidson Troilo Ream & Garza, kept cool in the hot seat during a panel discussion of the effects that the 2015 Texas Supreme Court decision Boeing v. Paxton has had on public records requests in the state. Ream was lead counsel for the Port Authority of San Antonio in the case and ultimately on the winning side to protect corporate documents from public disclosure. State Sen. Kirk Watson praised Ream’s legal prowess but spoke critically of state lawmakers’ unsuccessful attempts to get legislation passed to close loopholes that the decision caused in the Texas Public Information Act. “Boeing can land one of its big ol’ airplanes in the middle of this thing,” Watson said, later adding, “This session was shameful when it comes to public information.” Federal Support for Veterans James Dingivan, an assistant U.S. attorney in the Western District of Texas, gave an overview of the U.S. Department of Justice’s Servicemembers and Veterans Initiative as part of a panel hosted by the Military and Veterans Law Section. The division takes up cases for current and former members of the military and their family members who believe their employment, voting rights, or financial security have been violated or jeopardized. The initiative enforces the Servicemembers Civil Relief Act, the Uniformed Services Employment and Reemployment Rights Act, and the Uniformed and Overseas Citizens Absentee Voting Act. Dingivan reported that the initiative has secured $450 million in monetary relief for more than 115,000 service members since 2010. Tax Legend Tax legend John Porter, a partner in Baker Botts, talked about his early days as an accountant, his decision to go to law school and why he selected Baylor, and how his tax background has played a huge role in his success today. “I could read a balance statement and understand what it meant,” he said. “I wasn’t having to learn the substance of what we were dealing with.” When asked if he thought trial lawyers were born that way or if they could learn the skills, he said you can identify people who are naturals but it is another thing to understand the details and then have the ability to be outgoing. He added that he thought the latter point was the least important. “You can be an outstanding trial lawyer but don’t have to be a televangelist to do it.” Data Breach Risks Hackers are going where the valuable data are so they can sell the information on the dark web. That means law firms need to be even more vigilant in their cybersecurity efforts, attorneys on an Intellectual Property Law Section panel on data breaches said. “When retail stores get hit, they lose credibility,” said Greenberg Traurig shareholder Elizabeth C. Rogers. “Lawyers may lose their licenses and ability to protect clients.” Pierre Grosdidier, counsel to Haynes and Boone, discussed data breach cases including Shore v. Johnson & Bell , FTC v. Wyndham Worldwide Corp., and In re LabMD, Inc. The attorney jokingly offered advice on law firms protecting themselves from breaches: “Don’t answer emails from the ‘prince of Nigeria.’” State Bar Board Report The State Bar of Texas successfully launched the Texas Opportunity & Justice Incubator, or TOJI, during the past year to help new lawyers build sustainable practices that serve low-and modest-income Texans. Outgoing President Frank Stevenson, who made TOJI his presidential initiative, reported at the June 21 meeting of the State Bar Board of Directors that while most incubators take more than two years to implement, TOJI launched within 10 months. The Texas Supreme Court recently invited the inaugural cohort to its courtroom, where Justice Phil Johnson praised the continued efforts of Chief Justice Nathan L. Hecht and Justice Eva Guzman, who have been long-time champions of access to justice. Stevenson said that the court’s support affirms the commitment of the State Bar and of the TOJI participants. Stevenson presented a video showcasing the program. The second cohort is expected to start October 2 in Austin, followed by a third in April 2018. Stevenson also reported changes to the lawyer directory on texasbar.com effective June 22. The changes (1) permit a lawyer to indicate on the lawyer’s profile whether he or she charges a flatfee or on a sliding-scale basis, and (2) allow clients to search for lawyers who accept flat or sliding-scale fees by practice area and geographic location. The State Bar’s Legal Access Division launched TexasLegalAnswers.org on June 1 as a free, online legal advice clinic for low-income Texans who need basic legal guidance. The program is based on a successful model from the Tennessee Bar and is part of a nationwide network of the American Bar Association’s Standing Committee on Pro Bono and Public Service. Stevenson also reported that Gov. Greg Abbott signed the State Bar of Texas Sunset bill, SB 302, most of which takes effect September 1. SB 302 continues the State Bar for 12 years and preserves the self-regulation right of Texas lawyers. The Sunset bill also retains the rules referendum vote of bar members, and requires a referendum for any dues increase except one not exceeding 10 percent, no more frequently than every six years. The State Bar has not raised dues in 27 years and no increase is contemplated. Stevenson presented Michelle Hunter with a resolution honoring her service as executive director of the State Bar from October 2008 until her retirement on August 31. Austin attorney Joe K. Longley was sworn in as State Bar president-elect on June 22, and Rehan Alimohammad, of Sugar Land, succeeded Jose “Joe” Escobedo Jr., of McAllen, as chair of the board of directors. Justice Johnson administered the oath of office to new officers and directors. The board added Longley as a member of the Executive Director Search Committee, which has established a timetable for hiring the new executive director at the September 22 board meeting. The board also appointed State Bar Legal Counsel John Sirman as interim executive director, effective September 1, until the new executive director begins work. The board voted to revise Article XIII of the State Bar Rules to establish the Volunteer Attorney Pro Bono Program. Once approved by the Texas Supreme Court, the new rules will allow inactive attorneys to provide pro bono representation under supervision of a legal services provider. The board voted to support a resolution from the ABA Commission on Veterans’ Legal Services and the ABA Standing Committee on Legal Assistance for Military Personnel regarding discharge upgrades for certain military veterans. The resolution “urges the Administration and the Congress to support review of the processes by which military records are corrected, discharge status petitions are considered, and the character of a veteran’s discharge reviewed, in order to enhance the accessibility, availability, and timeliness of such determinations.” Outgoing Texas Young Lawyers Association President Sam Houston reported on TYLA’s many successful public service projects during the year. Escobedo honored Dallas attorney John V. Jansonius with the Outstanding Third-Year Director Award, and Hunter named Texas Lawyers’ Assistance Program staff attorney Chris Ritter the Employee of the Quarter. WORDSMITH “Words are our only tools,” said Bryan A. Garner, a professor at Southern Methodist University Dedman School of Law and an acclaimed authority on legal writing who gave the keynote speech at the Bench Bar Breakfast. He said that the legal profession suffers in its public image and a big part of it can be attributed to how attorneys and judges write. He provided the crowd with nine urgent reforms— three for litigators, three for transactional lawyers, and three for judges—that included everything from eliminating the word “shall” and using headings more consistently to stating a legal problem and writing good openers. “If we could upgrade the skill level of American lawyers, Texas lawyers, it would be a big boon to our profession.” Speaking before Garner, Texas Supreme Court Chief Justice Nathan L. Hecht gave a brief report on the state of the judiciary in Texas, touching on the newly launched Joe Jamail Endowment for Veteran Legal Services, an effort to ensure veterans have fair and equal access to the justice system; the Judge Julie Kocurek Judicial and Courthouse Security Act of 2017, a measure to improve judicial and courthouse security across the state; the so-called “Texas PACER System,” which will allow for easy access to cases; and the Texas Supreme Court Advisory Committee, which is considering changes to the pretrial discovery rules in the Texas Rules of Civil Procedure. TEXAS YOUNG LAWYERS ASSOCIATION Baili B. Rhodes was sworn in as 2017-2018 TYLA president during an evening reception that acknowledged the group’s projects, previous officers, new leaders, and outstanding attorneys. To see a list of award winners, go to texasbar.com/annualmeetingawards. TEXAS BAR FOUNDATION Award winners were recognized during the Texas Bar Foundation’s 2017 Annual Dinner on June 23. Front row from left: Sam Saleh, Howard L. Nations, Justice Elizabeth Lang Miers, George E. Chandler, Julius Glickman, and Edward V. Smith III. Back row from left: Robin C. Gibbs, Professor Gerald S. Reamey, Otway B. Denny Jr., Robin Russell, Warren W. Harris, and Cullen M. “Mike” Godfrey. To see a list of award winners, go to texasbar.com/annualmeetingawards. 50-YEAR LAWYERS The State Bar of Texas recognized 526 lawyers for their 50 years of membership, with more than 50 of those honorees attending a celebratory reception that provided them with an opportunity to catch up with colleagues and friends and featured a visit from State Bar President Tom Vick. THE ADDICTED LAWYER “I had two huge Ziplocs and dumped them on my desk like Scarface,” Dallas attorney and recovery advocate Brian Cuban told the packed crowd at the keynote session of the Adaptable Lawyer track. He continued to talk about the night he traded extra tickets to a Mavericks playoff game for $1,000 in cocaine. He eventually got so high and paranoid that he flushed the cocaine down the toilet. He repeated the same scenario the following night. And so is the life of an addict—always searching for that high, that feeling of confidence and love, Cuban said. And then all he felt was shame and guilt. He said that a recent study by the American Bar Association and the Hazelden Betty Ford Foundation found that one in three lawyers are problem drinkers. “I stand here as a no-longer addicted lawyer in a profession where addiction is a huge problem,” he told the group. But help is available, he said, urging the attendees to take advantage of resources such as the Texas Lawyers’ Assistance Program. “From a recovery standpoint, from a risk management standpoint, think about what you can do to let the other lawyer know he is not alone.” JUDICIAL REVIEW At “Marbury v. Madison—Oral Argument Demonstration,” David Coale (above), an attorney with Lynn Pinker Cox & Hurst, played the role of William Marbury and Chad Baruch, a lawyer with Johnston Tobey Baruch, played James Madison to a packed crowd intent on reliving the first time, in 1803, the U.S. Supreme Court applied the principle of judicial review and delivered the unanimous opinion of the court that stated “it is emphatically the province and duty of the judicial department to say what the law is.” THE LAWYER AS LEADER Joseph Jaworski, founder of the American Leadership Forum, encouraged attendees at the General Session Luncheon to come together to help solve the world’s most pressing issues. Recalling a conversation with his mentor, John W. Gardner, Jaworski said the key to keeping civilization together is citizen leaders, such as those at the state, regional, local, or community level. They also include civil society professionals, he said, such as the lawyers and judges in attendance. Jaworski spoke of how his divorce and the Watergate scandal—his father was the special prosecutor—influenced him to leave behind his career as a trial lawyer to create an institute to develop servant leaders, those who serve beyond their own self-interest. He eventually met and enlisted experts from different fields to form what would become the American Leadership Forum in 1980. Jaworski urged attendees to make a deep commitment to a dream and, in the face of high uncertainty, to take the first step. “Cross that threshold,” he said, “and the rest will follow.”
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