Dallas Bar Association
HEADNOTES one from becoming homeless, and impress people in our community with their professionalism. Ashley, Bradley, Anne Marie and Reed and all DVAP volunteers are part of a team of people working hard in Dallas to provide legal aid, and access to our justice system, to the poor. DVAP’s 15 staff members are also a part of this team. They manage 12 legal clinics a month throughout our city, review over 300 new cases they receive every month, prepare these cases for placement with volunteers or in one of its pro se programs, and then find a volunteer attorney to represent them. DVAP staff is simultaneously recruiting new volunteers, hosting CLE programs to train volunteers, and mentoring volunteers on their pro bono cases. DVAP staff also coordinates several pro se clinics for its clients. None of this would be possible without the bighearted support of DVAP’s donors, who provide the resources to make everything happen. These are donors like Andy Payne and Jim Mitchell, partners with the law firm of Payne Mitchell Law Group, who have donated $25,000 to the 2015 Equal Access to Justice Campaign, benefitting the Dallas Volunteer Attorney Program. Payne Mitchell’s gift continues their tradition of helping DVAP clients. Payne Mitchell
Alicia Hernandez is the director of the Dallas Volunteer Attorney Program and the DBA director of community services. She can be reached at ahernandez@dallasbar.org.
$600,000+
$550,000 $500,000
To Give: www.dvapcampaign.org.
Andy Payne and Jim Mitchell
gn pai am
Years ago when I first started working in pro bono, a volunteer attorney commented to me that one of the best things about pro bono are “the hugs.” She said something to the effect of “my paying clients never give me hugs, and I just love those hugs.” While we all need the paying clients, there is something pure and simple about these hugs; they are natural and heartfelt. Over the years, pro bono lawyers have received other simple gestures of gratitude—broad smiles and tears, the greeting card that goes in a safe place, a tin of cookies, or homemade tamales, just to name a few. These are modest acts made all the more meaningful because they are done with tremendous appreciation by people who have nothing else to give. Pro bono clients also share their gratitude through words praise and thanks for their volunteer attorneys. Here are a few. Ashlie Alaman’s client provided this enthusiastic comment. “I want to sincerely thank DVAP and Ashlie for taking my case! Ashlie is one of the greatest people I have ever met.” Bradley Smyer’s client said, “Mr. Smyer exceeded all my expectations. I am truly grateful for all the work and time he put into settling this issue. Thank you.” Anne Marie Bui Tedford’s client wrote, “I didn’t really know what to expect when meeting with the volunteer group. My daughter and I were so impressed with the professionalism, compassion and willingness to help with my needs. My husband was a proud veteran and would be grateful this program was available for me during this difficult time—both emotionally and financially.” Reed Allmand represented a client who said, “I have been so blessed to have your help. I would be on the streets without you.” Year after year, pro bono volunteers do what Ashley, Bradley, Anne Marie and Reed have done. They show kindness to widows, save some-
Law Group, a personal injury law firm that specializes in products liability, commercial vehicles, medical malpractice, aviation, negligence, whistleblower and business torts, has donated more than $150,000 to DVAP in the last eight years. Payne Mitchell Law Group also continues to be one of the largest contributors to legal aid to the poor in North Texas. “We are very thankful to have the continued support of Jim and Andy for the Campaign. Their efforts to provide equal access to justice for their clients and for the public at large have been inspiring!” said Robert Tobey, a partner with the law firm of Johnston Tobey and Co-Chair of the 2015 Equal Access to Justice Campaign. “Over the years I have witnessed firsthand Jim and Andy’s commitment to equal access for justice, both in their professional practice and in their longstanding commitment to the EAJ campaign,” added Laura Geisler, a partner with Geisler Law Firm and Co-Chair of the Campaign. “They understand the importance of giving back and we are grateful for their continued generosity.” So, the next time you see Andy Payne and Jim Mitchell, shake their hand, pat them on the back and thank them for their commitment to legal aid to the poor. Or, maybe even, give them a hug. The Dallas Volunteer Attorney Program is a joint pro bono program of the Dallas Bar Association and Legal Aid of NorthWest Texas. The Dallas Bar Association and Legal Aid of NorthWest Texas co-sponsor the Equal Access to Justice Campaign, which benefits the Dallas Volunteer Attorney Program. For more information on the Campaign or the Dallas Volunteer Attorney Program, please contact Alicia Hernandez at (214) 220 HN 7499 or ahernandez@dallasbar.org.
Equ al A c
by Alicia Hernandez
C �ce Jus
Payne Mitchell Law Group: Making Things Happen!
ces s to
Focus Health Law/Employee Benefits
November 2014 Volume 39 Number 11
$450,000
$400,000 $350,000 $300,000 $250,000 $200,000 $150,000 $100,000 $50,0000
THANK YOU TO OUR MAJOR DONORS | Equal Access to Justice Campaign Kicks Off The Dallas Bar Association and Legal Aid of NorthWest Texas kicked off their annual Equal Access to Justice Campaign benefitting the Dallas Volunteer Attorney Program. A number of Dallas firms, corporations and friends have committed major support. Please join us in recognizing and thanking the following for their generous gifts to the Campaign*:
PLATINUM ($10,000) Jerry C. Alexander Deans & Lyons, LLP Exxon Mobil Corporation Godwin Lewis PC Haynes and Boone Foundation Jackson Walker L.L.P. KoonsFuller, PC Mike McKool, Jr. Robert L. Tobey The Hartnett Law Firm Vinson & Elkins LLP
PRESIDENT’S COUNCIL ($30,000) Crain Lewis, LLP CHAIRMAN’S COUNCIL ($25,000) Anonymous Connatser Family Law Hon. Deborah Hankinson Payne Mitchell Law Group L.L.P.
*Donors as of press time.
GOLD ($5,000+) Anderson Tobin, PLLC Carrington, Coleman, Sloman & Blumenthal, L.L.P. Ms. Cheryl A. Engelmann Hasseena J. Enu Fish & Richardson Greenberg Traurig, LLP Mark & Laurie Johansen Randy Johnston McKool Smith Bobby M. Rubarts Lewis Sifford Sommerman & Quesada The Mike and Barbara Lynn Philanthropic Fund Waters, Kraus & Paul, LLP
Law firms, corporations and individuals wishing to make a pledge will be prominently recognized beginning at the $5,000 level each month through January. To donate, contact Alicia Hernandez, ahernandez@dallasbar.org. For more information about the Campaign see www.dallasbar.org/dvapcampaign.
Inside 5 Issues to Consider When Drafting Healthcare Transactions 10 Pro Bono Awards 15 No Presumption Favoring Employer Stock Investments 17 Understanding “Business Associates Agreements”
DBA MEMBER REMINDER – RENEW ONLINE TODAY!
You may renew your 2015 DBA Dues online NOW! Go to the DBA website and under the Membership tab, click on Renew Online. Or you may send in your payment with your 2015 DBA DUES STATEMENT, which will be mailed to your office or home in late October! 2015 DBA DUES must be paid by December 31, 2014 to continue receiving ALL your member benefits. Thank you for your support of the Dallas Bar Association!
2 He a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2014
Calendar November Events NOVEMBER 7-BELO Noon
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs. DAYL Lawyers Promoting Diversity Committee
FRIDAY CLINICS
“Texas Homestead Law and Bankruptcy,” Hon. Harlin Hale. (MCLE 1.00)* RSVP to kzack@dallasbar.org.
6:00 p.m. Home Project Committee
NOVEMBER 14-NORTH DALLAS** Noon
WEDNESDAY, NOVEMBER 12
“The Worst Lawyer in the History of Texas? The Cautionary Tale of Thomas Corea,” Jacob Harris. (Ethics 1.00)* Sponsored by the CLE and Legal Ethics Committees. At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor The Dallas Bar Foundation. RSVP to kzack@dallasbar.org.
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group
“Secret Lives of Lawyers: How Addictive Behaviors Impact the Legal Practice,” Will Alexander, Mike Lee and Stephanie Setliff. (Ethics 1.00)* RSVP to kzack@dallasbar.org. Sponsored by the CLE and Peer Assistance Committees
Tax Law Section “Practical Approaches to IRS Penalties,” David Coffin, David Gair and Audrey Morris. (MCLE 1.00)*
TUESDAY, NOVEMBER 4 Corporate Counsel Section “Crisis Management.” (MCLE 1.00)*
Morris Harrell Professionalism Committee
Employee Benefits/Executive Compensation Law Section “New Fiduciary Regulations and Other DOL Developments,” Sarah Fry and Meredith VanderWilt. (MCLE 1.00)* Solo & Small Firm Section “Not Just a Toy: iPads, The New Law Firm Model,” Tad Thomas, Esq. (MCLE 3.00)*
Public Forum Committee
5:30 p.m. Bankruptcy & Commercial Law Section “Structured Dismissals: What They Is, and What They Ain’t,” Monica Blacker, Michael Cooley and Vickie Driver.” (MCLE 1.00)*
THURSDAY, NOVEMBER 6
Noon
Noon
Construction Law Section “Texas Construction Law Case Update,” Andrea Hight. (MCLE 1.00)*
Judiciary Committee “Improve Your Practice in Federal Courts— Tips from Current and Former Federal Judges,” Hon. Royal Furgeson, Hon. Jeff Kaplan and Hon. Russ Nelms. (MCLE 1.00)*
Family Law Section Board Meeting
Lawyer Referral Service Committee
St. Thomas More Society
Friday Clinic at Belo “Texas Homestead Law and Bankruptcy,” Hon. Harlin Hale. (MCLE 1.00)* RSVP to kzack@ dallasbar.org.
Alternative Dispute Resolution Section “The New AAA Construction Arbitration Rules,” Harry Hernandez. (MCLE 1.00)*
Family Law Section “Business Law Issues to Consider for a Divorcing Couple’s Closely Held Business,” Aaron Tobin. (MCLE 1.00)* Legal Ethics Committee “The Do’s and Don’ts of the Grievance Process,” Griffin Collie, Robert Hinton, Nancy Thursby and Kent Krause, moderator. (Ethics 1.00)*
Dallas Asian American Bar Association
DAYL Lunch & Learn CLE. For more information, contact cherieh@dayl.com.
DVAP New Lawyers Luncheon. For more information, contact reed-brownc@lanwt.org.
Real Property Law Section “Doubletree’s Real-World Lessons,” J. Edwin Martin. (MCLE 1.00)*
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
Magna Carta Discussion Group “The Magna Carta and Due Process in American Law,” Hon. Barbara M. G. Lynn. (MCLE 1.00)*
5:30 p.m. Labor & Employment Law Section “Annual Employment Law Update,” Mark Shank and Hal Gillespie. (MCLE 1.50)* Cost: $20 per person at the door.
Peer Assistance Committee
THURSDAY, NOVEMBER 13
TUESDAY, NOVEMBER 11
Noon
9:00 a.m. Pictorial Directory Photographer at Belo Noon
6:00 p.m. DAYL Board of Directors Meeting
Noon
FRIDAY, NOVEMBER 7
MONDAY, NOVEMBER 10
WEDNESDAY, NOVEMBER 5
Noon
3:30 p.m. DBA Annual Meeting
Noon
Noon
Noon
Antitrust & Trade Regulation Section Topic Not Yet Available
International Law Section “Foreign Licensed Lawyers Practicing in Texas,” Larry Pascal. (MCLE 1.00)*
Community Involvement Committee
Dallas Bar Foundation Board Meeting
DAYL Elder Law Committee
11:30 a.m. House Committee Walk Through
MONDAY, NOVEMBER 3 Noon
TUESDAY, NOVEMBER 18
9:00 a.m. Pictorial Directory Photographer at Belo
NOVEMBER 21-BELO Noon
DAYL Young Partners Committee
Childers and Marc D. Katz. (MCLE 1.00)*
How the Civil Rights Act Changed Dallas, Part IV “Civil Rights: Back to the Future?,” Prof. Edwin Dorn. (MCLE 1.00)*
Business Litigation Section “The Nixon Tapes: 1971-1972,” Douglas Brinkley. (MCLE 1.00)*.
Government Law Section “Enforcement of Judgments against Local Government – A Practical Guide to Collecting from Local Sovereigns,” P. Michael Jung. (MCLE 1.00)*
Mergers & Acquisitions Law Section “Investment Banker Engagement Letters,” John McKnight and Matt Stockstill. (MCLE 1.00)* Entertainment Committee
DBA Family Holiday Party
CLE Committee
Law in the Schools and Community Committee
Publications Committee
DAYL Lawyers Serving Children
Christian Lawyers Fellowship
Energy Law Section Topic Not Yet Available
Health Law Section “Updates to the National Practitioner Data Bank Guidebook,” Alexis Angell and Sherri Alexander. (MCLE 1.00)*
Law Day Committee
Pro Bono Activities Committee
Non-Profit Law Study Group
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
THURSDAY, NOVEMBER 20 Noon
Appellate Law Section “Birth Control, Beards, Facebook, and Cell Phones: A Review of the U.S. Supreme Court’s 2013 Term and a Preview of 2014,” Jason P. Steed. (MCLE 1.00)*
Criminal Law Section
Ribbon cutting ceremony for the attorney lounge at George Allen Courthouse. Sponsored by the Courthouse Committee and Family Law Section.
DBA Community Service Fund Board Meeting
DAYL Animal Welfare Committee
Dallas Gay & Lesbian Bar Association
Christian Legal Society
FRIDAY, NOVEMBER 21
5:30 p.m. DBA New Member Reception. Honoring our New DBA Members and Newly Licensed Attorneys. For more information, contact Kim Watson at kwatson@dallasbar.org. or (214) 220-7414.
DAYL CLE Committee
6:00 p.m. J.L. Turner Legal Association
FRIDAY, NOVEMBER 14
RSVP to Rhonda Thornton at rthornton@dallasbar.org or (214) 220-7403.
Noon
3:30 p.m. DBA Board of Directors Meeting
Enjoy pictures with Santa, toy trains, clown, magician, face-painting, tap dancing by Class Act, sing-alongs and more!
TO BE DONATED TO CHARITY.
WEDNESDAY, NOVEMBER 19
Friday Clinic at Belo “Secret Lives of Lawyers: How Addictive Behaviors Impact the Legal Practice,” Will Alexander, Mike Lee and Stephanie Setliff. (Ethics 1.00)* RSVP to kzack@dallasbar.org. Sponsored by the CLE and Peer Assistance Committees.
Monday, December 15 6:00 to 8:00 p.m. at the Belo Mansion
BRING AN UNWRAPPED TOY
6:00 p.m. Dallas Hispanic Bar Association
Noon
Noon
PLEASE
South Dallas Clinic “The New Probate Pattern Jury Charges and the New Estates Code,” Larry Flournoy. (MCLE 1.00)* At UNT Dallas, 7400 University Hills Blvd, Room #138. Park in lot in front of 7400 University Hills Blvd. RSVP to kzack@ dallasbar.org.
4:00 p.m. DAYL Swearing In Ceremony
Friday Clinic-North Dallas** “The Worst Lawyer in the History of Texas? The Cautionary Tale of Thomas Corea,” Jacob Harris. (Ethics 1.00)* Sponsored by the CLE and Legal Ethics Committees. At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor The Dallas Bar Foundation. RSVP to kzack@dallasbar.org. Trial Skills Section “Reptile and Rules of the Road: Strategy & Admissibility Issues for Plaintiffs and Defendants” Prof. Gerald R. Powell and Prof. James Wren. (MCLE 1.00)*. Transition to Law Practice Committee “The Beginning Lawyer’s Opportunities in and Responsibilities to the World Beyond the Office.” (MCLE 1.00)* Federal Bar Association “Winding Up the First Decade Under BAPCPA,” Hon. Harlin Hale, Juliane Parker, Corky Sherman and Marc Taubenfeld. (MCLE 1.00)*
MONDAY, NOVEMBER 17 Noon
Labor & Employment Law Section “Texas Uniform Trade Secret Act,” Jonathan
MONDAY, NOVEMBER 24 Noon
Computer Law Section “Current Issues in U.S. Privacy Law,” Bart Huffman. (MCLE 1.00)*
Securities Section “The Corporate/Securities Attorney as a “Moving” Target: Ethical and Liability Concerns,” Marc I. Steinberg. (Ethics 1.00)*
Tort & Insurance Practice Section “Update on Recent Developments from the Texas Supreme Court,” Justice Debra Lehrmann. (MCLE 1.00)*
DAYL Solo & Small Firm Committee
TUESDAY, NOVEMBER 25 Noon
Probate, Trust & Estate Law Section “Environmental Liabilities in the Context of Estate Planning and Administration,” Howard L. Gilberg. (MCLE 1.00)*
Courthouse Committee
American Immigration Lawyers Association
WEDNESDAY, NOVEMBER 26 Noon
Municipal Justice Bar Association
THURSDAY, NOVEMBER 27 DBA Offices Closed in Observance of Thanksgiving Holiday
FRIDAY, NOVEMBER 28
DBA Offices Closed in Observance of Thanksgiving Holiday
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.
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D al l as Bar A ssoci ati on l Headnotes 3
At PayneMitchell, we believe our clients have suffered enough without having to worry about the costs of fair legal representation. We commit to cases when we truly believe that the time and effort of going to trial or negotiating a settlement is worthwhile. That’s why we handle both personal injury and business litigation on a contingency fee basis. And because we have complete confidence in every case we represent, we’re able to combine passionate advocacy with compassionate support and understanding for the challenges our clients face. We measure success not only by achieving the best possible results for each client, but also by the positive changes in products, processes and practices we influence that result in a safer, better community for all. To learn more about why it pays to talk to PayneMitchell Law Group, contact us today.
phone: 21 4 .252.18 8 8 • f a x : 21 4 .252.18 8 9 • pay nemitchell .com Av i AT i o n • P ro du c T s L i A b iL i T y • M edi c A L M A L P r Ac T i c e • n eGL i G en c e coM M erc i A L v eHi c L e s • W H is T L eb LoW er / Qu i TA M • b usine ss To rT s
connecT WiTH us on
4 He a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2014
Headnotes
President's Column
Ensuring Equal Access to Justice. Scott M. McElhaney
In my last column, I wrote about some of the existing “gaps” in legal education and legal services and how the UNT Dallas College of Law intends to address some of those gaps. One of the glaring holes in our current system, though, has little to do with legal education. The “justice gap” that arises when there are people in need of legal service who cannot afford to hire a lawyer is a striking, and growing, feature of our society. The Legal Services Corporation reports that more than 60 million Americans qualify for its services—34 percent more than in 2005—but 80 percent of the legal needs of the poor go unmet. Here in Dallas, more than 600,000 people have an income low enough to qualify for pro bono legal services. If our country is to stay true to its goal of being a society that offers both “liberty and justice for all,” then we must do more to address the increasing inability of many of our neighbors to obtain legal representation when they need it. Having access to legal representation can save families from being evicted from apartments based on false allegations of wrongdoing, prevent or remedy wrongful termination from employment, allow victims of abusive partners to obtain restraining orders, enable parents to reunite with children who have become pawns in custody battles, and protect elderly neighbors from disreputable repair shops that demand many times what they had contracted to pay. The justice gap is something that all lawyers have a responsibility to address. The introduction to the Texas Disciplinary Rules of Professional Conduct puts it well when it explains that lawyers “should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes people who are not poor, cannot afford adequate legal assistance.” Lawyers should “therefore devote professional time and civic influence in their behalf” because the “basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer.” Every lawyer should “find time to participate in or otherwise support the provision of legal services to the disadvantaged.” To help narrow the justice gap and live up to the aspirational commands of the profession, we can provide pro bono legal services ourselves. Working for a pro bono client can be one of the most rewarding experiences of a lawyer’s career. That’s why pro bono work is often called “billable hours for your soul.” The need for more pro bono volunteers is great, though. As former DBA president Paul Stafford has noted, “I have heard it said that there are ‘…too many lawyers…’; but I have not yet heard it said that there are too many lawyers willing and able to assist those in our community who are in greatest need.” Several groups in Dallas help the poor with a variety of needs, and working for any of those groups is worthwhile. But the joint venture of the DBA and Legal Aid of Northwest Texas known as the Dallas Volunteer Attorney Program makes it easy to do pro bono work. Through its staff of dedicated attorneys and paralegals—and the help of scores of volunteers—DVAP holds clinics across Dallas, including clinics in East Dallas (at Grace United Methodist Church), South Dallas (at the Martin Luther King, Jr. Center), West Dallas (at the Wesley-Rankin Community Center), Garland (at the Salvation Army – Downtown Garland), as well as at the Friendship West Baptist Church, the Triangle Neighbor-
2014 New DBA Members and Newly Licensed Attorneys Are Invited To Celebrate At the
Dallas Bar Association
FALL FIESTA Thursday, November 13, 2014 5:30 — 8:00 p.m. The Belo Mansion It’s FREE! Complimentary Food & Beverages, Music, Vendors and Raffle Drawings. RSVP to Kim Watson, membership@dallasbar.org (214) 220-7414 Law Firm Wishing to be Listed as a Sponsor, Send Request to kwatson@dallasbar.org
hood (at St. Phillips Community Center), and at the Veterans Resource Center. It is easy to volunteer at these clinics. Information about how to help is available at http://dallasvolunteerattorneyprogram.org. Volunteer DVAP attorneys donated over 12,000 hours of their time and closed well over 5,000 cases last year, but more help is needed. An ABA study has found that the average amount of pro bono service provided by attorneys was 56.5 hours per year. If those of us who have not found time to volunteer at a legal clinic or take one of the DVAP cases that go unclaimed were to do so and come close to lawyers’ average pro bono time commitment, our country and our profession would be much the better for it. We can also support the efforts of groups who provide pro bono legal services in other ways. Since 1997, the DBA and LANWT have teamed up to raise funds to support DVAP. Over its lifetime, the aptly-named Equal Access to Justice Campaign has raised over eight million dollars to fund the program and enable DVAP to expand its services. However, the admirable sums the EAJ Campaign raises are not enough to fully pay for the staff and other costs associated with running the program, and DVAP has to rely on other grants as well. The importance of the Equal Access to Justice Campaign cannot be overstated. This year, the Campaign is being led by Laura Benitez Geisler, of the Geisler Law Firm, and Robert Tobey, of Johnston ♦ Tobey, P.C. Both bring a remarkable level of commitment and energy to the effort. They have enlisted two Honorary Co-Chairs: Jack Balagia, Vice-President and General Counsel of Exxon Mobil Corporation, and Stacy Doré, Vice President and General Counsel of Energy Future Holdings Corp., to assist them in reaching out to the corporate community for support for the Campaign. Laura and Robert are also leading divisions that focus on different sets of potential givers, and they are arranging phone banks to reach out to Bar members as well. The number of us who give to the EAJ Campaign, however, remains somewhat small—less than 5 percent of our membership. Fortunately, that number appears to be growing. During North Texas Giving Day this past September, the Campaign received 233 gifts totaling more than $105,000 dollars. During last year’s Giving Day, we only collected about $57,000. Last year, under the leadership of Shonn Brown and Aaron Tobin, the EAJ Campaign raised over $922,000, which was a truly remarkable sum. This year the Campaign has already received leadership gifts of $30,000 from Crain Lewis, LLP, and $25,000 each from Connatser Family Law, Payne Mitchell Law Group, the Honorable Deborah G. Hankinson, and an anonymous donor. With this start and the continued hard work of Laura and Robert, I suspect that this year’s Campaign will meet or even surpass last year’s record-breaking total. But we should remember that our ability to raise money for DVAP is only part of the job. Meeting the civil legal needs of Dallas’ poor will take our time as well as our money. So please think about making a contribution to the Equal Access to Justice Campaign this year. And also think about volunteering at a DVAP clinic or taking a DVAP case. Doing these things is the only way to start to close the justice gap that still exists in this HN country.
South Dallas Clinic At UNT Dallas, 7400 University Hills Blvd, Room #138. Park in lot in front of 7400 University Hills Blvd. (cafeteria available ) “The New Probate Pattern Jury Charges and the New Estates Code”
Speaker: Larry Flournoy Jordan, Houser & Flournoy, LLP
Thursday, November 13, Noon MCLE 1.00 RSVP kzack@dallasbar.org Sponsor: The Dallas Bar Foundation
Published by: DALLAS BAR ASSOCIATION 2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Scott M. McElhaney President-Elect: Bradley C. Weber First Vice President: Jerry C. Alexander Second Vice President: Rob Crain Secretary-Treasurer: Audrey Moorehead Immediate Past President: Sally L. Crawford Directors: Tatiana Alexander (President, J.L. Turner Legal Association), A. Shonn Brown (At-Large), Wm. Frank Carroll, Laura Benitez Geisler (Vice Chair), Hon. Martin Hoffman, Hon. David Horan (Judicial At-Large), Michael K. Hurst (Chair), Krisi Kastl, Michele Wong Krause, Meyling Ly (President, Dallas Association of Young Lawyers), Karen McCloud, Courtney Barksdale Perez (At-Large), Sakina Rasheed (President, Dallas Asian American Bar Association), Mary Scott, Scott Stolley, Diane M. Sumoski, Robert L. Tobey, Aaron Tobin and Elisabeth A. Wilson (President, Dallas Hispanic Bar Association) Advisory Directors: Jonathan Childers (President-Elect, Dallas Association of Young Lawyers), Monica Lira (President-Elect, Dallas Hispanic Bar Association), Bill Richmond (PresidentElect, Dallas Asian American Bar Association) and Ebony Rivon (President-Elect, J.L. Turner Legal Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Lawrence Boyd, Wm. Frank Carroll, E. Leon Carter, John Jansonius and Florentino A. Ramirez HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Display Advertising: Deni Ackerman, Tina DeRobertis, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Dawn Fowler and Jared Slade Vice-Chairs: Paul Clevenger and Meghan Hausler Members: Timothy Ackermann, Vincent Allen, Natalie Arbaugh, Benjamin Barmore, Joi-lee Beachler, Martha Beard-Duncan, Lisa Blackburn, Jason Bloom, Eric Blue, Leigh Bradford, Bobby Braxton, Kandice Bridges, Kelsey Brock, Sara Ann Brown, John G. Browning, Casey Burgess, Eliot Burriss, Stacie Cargill, Nancy Carroll, Lance Caughfield, Julie Chandler, Joel Crouch, Walter Dean, Lea Dearing, David Dodds, Adam Dougherty, Brandon Duck, Christopher Elam, Alexander Farr, J. Martin Futrell, Jenny Givens, Jennifer Gjesvold, Andrew Gould, James Gourley, Nadia Haghighatian, Susan Halpern, William Hammel, Jordan Harrison, Jeremy Hawpe, John Herring, Zachary Hilton, Kelli Hinson, Tyler Hokanson, Alison Hollender, Mary Louise Hopson, Mandy Jenkins, Soji John, Amanda Kelley, Cynthia Jon-Ubabuco, Yoon-Joo Jung, Tiffany Kamuche, Nicholas Kennedy, Adam Kielich, Michelle Koledi, Matthew Kolodoski, Susan Kravik, Norman Lofgren, Sixuan Lu, Margaret Lyle, Ashley Mason, Andrew Mayo, Jennifer McCollum, Christina McCracken, R. Sean McDonald, Scott McElhaney, Elizabeth “Jodi” McShan, John McShane, Michael Merrick, Christopher Meuse, Aaron Michelsohn, Wendy Mills, Constance Mims, Ethan Minshull, Paige Montgomery, Caitlin Morgan, Hon. Jim Moseley, Terah Moxley, Derek Neilson, Nick Nelson, Christopher Norcross, David Parham, Murali Pasupulati, Seth Phillips, Keith Pillers, Amiee Pingenot, Kirk Pittard, Irina Plumlee, Laura Anne Pohli, Ellen Pryor, Gabriel Reyes, Edward Rice, Morgan Richards, David Ritter, Carl Roberts, Richard Salgado, Joshua Sandler, Brandon Schwarzentraub, Calvin Scott, Ifeyinwa “Ify” Seales, Isabel Segarra, Micah Skidmore, Crystal Smith, Phillip Smith, Bradley Smyer, Yon Sohn, Thad Spalding, Timothy Springer, Jacob Stasny, Cori Steinmann, John Stevenson, Scott Stolley, Brian Stork, Amy Stowe, Billye Summers, Kristopher Tate, SaKinna Thomas, Pryce Tucker, Brent Turman, Peter S. Vogel, Whitney Warren, Bradley C. Weber, Suzanne Westerheim, Elisabeth Wilson and Andrew Wirmani DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Director: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Marcela Mejia, Viridiana Mejia Law-Related Education & Programs Coordinator: Kimberlynn Taylor Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Tina Douglas, Tar Sha Hickmon, Andrew Musquiz, Carmen Perales Program Assistant: Patsy Quinn Copyright Dallas Bar Association 2014. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
N ove mb e r 2 0 14
Focus
D al l as Bar A ssoci ati on l Headnotes 5
Health Law & Employee Benefits/Executive Compensation Law
Selected Issues to Consider When Drafting Healthcare Transactions by Elise Schuller and Jonathan Nowlin
The ever-changing landscape of healthcare is complex, both for practitioners and those who advise them. Attorneys involved in healthcare transactions will encounter general corporate law issues, but they should also be aware of the unique legal and regulatory framework that permeates the healthcare industry. Thus, attorneys should consider this framework’s applicability and impact when drafting documents for a healthcare transaction. This has become increasingly important because the government has ramped up its investigation into, and prosecution of, providers who run afoul of this framework, and in some cases, the attorneys who assist them. Below are a select few items to consider. Anti-Kickback Statute and Stark Law. The federal Anti-Kickback Statute (AKS) prohibits the intentional solicitation, offer, payment or receipt of remuneration for the referral of services paid for by a state or federal healthcare program, including Medicare and Medicaid. The Texas counterpart (Texas Statute) tracks the language of the AKS, but it applies to all payors, not just Medicare and Medicaid. Both laws have specific “safe harbors,” which, if met, protect an arrangement from liability under these laws. Failure of an arrangement to fall within a safe harbor does not automatically render the arrangement unlawful, because both the AKS and the Texas Statute require a showing of intent. Instead, it means the arrangement could be challenged by the government, which will consider all of the facts surrounding the arrangement. Thus, if an arrange-
ment implicates the AKS or Texas Statute, parties should strive to meet as many elements of an applicable safe harbor as possible, and the documentation should reflect the same. The Stark Law is a federal law that prohibits a physician who, directly or through an immediate family member, has a financial relationship with an entity from referring Medicare or Medicaid beneficiaries to that entity for the furnishing of certain “designated health services” (DHS). Similar to the AKS, the Stark Law has enumerated exceptions that, if met, shield an otherwise illegal arrangement from liability. However, unlike the AKS, the Stark Law is a strict liability statute, meaning that an arrangement that implicates the Stark Law must satisfy an exception, and the documentation should evidence such compliance. Although the AKS safe harbors and Stark Law exceptions are not identical, a number of them share similar elements. One important mutual element is that the aggregate remuneration paid over the term of the arrangement is consistent with fair market value in arms-length transactions and is not determined in a manner that takes into account the volume or value of any referrals or business otherwise generated between the parties to the arrangement. Violations of the AKS or Stark Law carry civil and, with respect to the AKS, criminal penalties, and can also result in violation of other laws such as the False Claims Act. Excluded Provider. The Office of Inspector General has the authority to exclude healthcare providers from participation in federal and state healthcare programs. These healthcare programs in
turn cannot pay for any item or service furnished by the excluded provider. In addition, providers who contract with excluded providers may be subject to civil penalties. Accordingly, a party to a healthcare transaction should ensure that the other party is not an excluded individual or entity, both to avoid the penalty for contracting with the excluded provider, as well as to avoid, in certain acquisitions, the ownership of an excluded provider. The transaction documentation should include representations and warranties that (1) the other party is not excluded from participation in any federal or state healthcare program; (2) no basis for exclusion exists; and (3) the party has not employed or contracted with another individual or entity who the party knows or should know is excluded. CHOW. Some transactions involve a “change of ownership” (CHOW) for Medicare purposes (for example, the acquisition of stock or the assets of cer-
tain types of providers, such as hospitals), in which case the Medicare provider agreement (and usually the provider number) is automatically assigned. Such assignment results in the inheritance of Medicare and Medicaid liabilities of the selling provider. The buyer and seller must notify the Centers for Medicare and Medicaid Services (CMS) of the CHOW within thirty days following the change. However, even if a transaction does not constitute a CHOW, certain filings with CMS may still be required to reflect resulting changes to the Medicare-enrolled provider. The transaction documentation should state that the parties will cooperate in the execution and filing of documents required by CMS, and any and all other filings required in relation to the change of ownership of HN the provider. Elise Schuller and Jonathan Nowlin are associates at Gray Reed & McGraw, P.C. They can be reached at eschuller@grayreed.com and jnowlin@grayreed.com, respectively
Secret Lives of Lawyers: How Addictive Behaviors Impact the Legal Practice Friday, November 21, Noon, at Belo Speakers: Will Alexander, CaronTexas Mike Lee, Attorney Stephanie Setliff, MD, UT Southwestern
Ethics 1.00 RSVP to kzack@dallasbar.org. Sponsored by the CLE and Peer Assistance Committees.
Holmes Diggs & Eames PLLC i s c e l e b r a t i n g i t s 2 0 t h y e a r. We are one of the largest law fi r m s i n Te x a s d e v o t e d t o family law. Our attorneys offer a wealth of experience in every aspect of family law.
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6 H e a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2014
Emeritus Members The Dallas Bar Association honors members who have contributed to the legal profession for 50 or more years. All 50 year members are invited to attend the DBA Annual Meeting on Friday, November 7, 2014, at 3:30 p.m. to be recognized. To RSVP, please contact Mary Ellen Johnson at 214-220-7474 or mjohnson@dallasbar.org.
Licensed in 1939 Lawrence W. Anderson Bernard Hirsh Licensed in 1941 Royal H. Brin, Jr. Licensed in 1942 William F. Alexander Claude D. Bell, Jr. Frank Ripy McWhorter Licensed in 1946 James R. Alexander Robert E. Rain, Jr. Jean L. White Licensed in 1947 Joseph W. Geary George Hopkins John F. Wilson Licensed in 1948 George Ashley Thomas T. Barnhouse H. Gene Emery Florence K. Fletcher Lionel E. Gilly Paul Harkey Joel T. Williams, Jr. Licensed in 1949 Jack E. Brady William N. Hamilton Harold L. Hitchins Cecil G. Magee B. Thomas McElroy Hon. Ted Z. Robertson Licensed in 1950 George C. Anson Albert L. Bartley, Jr. Harold B. Berman D. Louise Boucher Hon. Dean M. Gandy Charles C. Garner Henry Gilchrist Wayne Hancock William C. Herndon H. Louis Morrison, Jr. A.W. Patterson, Jr. Ralph W. Pulley, Jr. F.W. Reese Robert G. Vial Licensed in 1951 Ramsey Clark M. Wayne Cummings James E. Day, Jr.
Zack E. Mason Joseph W. McKnight John L. Roach Hon. Thomas B. Thorpe H.E. Walker, Jr. J. Ralph Wood, Jr. Licensed in 1952 John R. Anthony, Jr. Robert F. Ashley John H. Chiles James E. Coleman, Jr. Vester T. Hughes, Jr. Jerry N. Jordan Graham R.E. Koch Joseph M. Stuhl William (Bill) H. Tinsley James A. Williams Richard S. Woods Licensed in 1953 Joe Don Denton Roy W. Howell, Jr. Hon. James W. Mast William R. McGarvey Licensed in 1954 Frederick H. Benners Cooper Blankenship Paul M. Brewer Hon. Ben F. Ellis Charles W. Hall John M. Hamilton Harold F. Kleinman J. Redwine Patterson Benjamin E. Pickering Hon. Robert E. Price Allen P. Schoolfield Maxel (Bud) Silverberg James C. Tubb John R. Wright Licensed in 1955 Hon. Ted M. Akin Dennis G. Brewer, Sr. Charles D. Cabaniss Eugenio Cazorla Thomas N. Griffith Jess T. Hay Lawrence P. Hochberg Jack Pew, Jr. Anthony G. Riddlesperger Forrest Smith Robb Stewart Lee D. Vendig Licensed in 1956 Benjamin R. Collier John L. Estes
Frank Finn Merle R. Flagg Richard A. Freling Joseph J. French, Jr. Roger A. Hansen Frank S. La Barba, Jr. Marvin L. Levin Wilmer D. Masterson Elton M. Montgomery Hobert Price, Jr. Frank Tupper Smith, Jr. Sidney Stahl Claude R. Wilson, Jr. Gerry N. Wren Licensed in 1957 Barton E. Bernstein William F. Bowles Bill H. Brister Don T. Cates Frank W. Elliott Jerry C. Gilmore V. Rock Grundman Ivan Irwin, Jr. Tom James William C. Koons Edward J. Lynch Bernard C. McGuire Kenneth J. Mighell Harold E. Moore Neil J. O’Brien William D. Powell Ronald Roberts Merlyn D. Sampels J. Richard Sanderson Clay C. Scott, Jr. Carl A. Skibell Jason B. Sowell, Jr. Hon. Milton Sturman Robert H. Thomas Louis J. Weber, Jr. Licensed in 1958 Burt Berry Walton P. Bondies, Jr. R.W. Calloway Leland W. Carter Robert C. Cox Robert Edwin Davis Hon. John M. Duhe F. Lynn Estep, Jr. Robert (Jim) Foreman Ben A. Goff John W. Hicks Jr. Bill C. Hunter Jerry Lastelick John E. Lawhon John T. McCully John H. McElhaney
Robert H. Power William T. Satterwhite Harry R. Shawver, Jr. Dan W. Stansbury Jack R. Wahlquist Emory L. White, Jr. Barney T. Young Norman A. Zable Licensed in 1959 Tom A. Blakeley, Jr. Allen Butler Durwood D. Crawford Marshall J. Doke, Jr. Robert A. Fanning A.D. “Gus” Fields Frederick W. Fraley, III Larry L. Gollaher James J. Hartnett Jack W. Hawkins Norman P. Hines, Jr. Herbert L. Hooks Richard A. Lempert George David Neal Donald F. Padgett Burton H. Patterson Paul L. Salzberger Edwin M. Sigel Joe A. Stalcup Charles M. Supple Robert C. Taylor Licensed in 1960 E. Karl Anderson Anthony Atwell Paul E. Ave Lester V. Baum P. Oswin Chrisman Edward A. Copley David S. Curtis Alan D. Feld Paul L. Fourt Lawrence W. Jackson Leo J. Jordan, Sr. John L. Lancaster, III Joe H. Loving Jr. Hon. Robert B. Maloney Tom D. Matthews, Jr. Hon. Pat McDowell Hon. Robert C. McGuire Hon. Don Metcalfe Robert L. Meyers, III Robert F. Middleton Hon. Robert O’Donnell Jerome L. Prager William M. Ravkind Cecil A. Ray, Jr. Rust E. Reid James B. Sales Malcolm L. Shaw C. Freeman Stallings, Jr. Donald A. Swanson, Jr. Arthur I. Ungerman William D. White, Jr.
Licensed in 1961 Arch A. Beasley, Jr. John F. Boyle, Jr. William T. Burke, Jr. Roy C. Coffee, Jr. Jim E. Cowles Adair Dyer, Jr. Albert B. Fenton John A. Gilliam David G. Glickman Jay Rodney Kline Larry M. Lesh Warren C. Lyon Clark J. Matthews, II Donald C. McLeaish Stan McMurry John W. Payne Paul W. Phy Virgil E. Rogers James T. Rudd Miles L. Schulze Wade C. Smith Simeon R. Trotter Paul B. Underkofler Fred D. Ward Christopher M. Weil Ben B. West Fletcher L. Yarbrough Licensed in 1962 Frederick P. Ahrens Reyburn U. Anderson Bernard B. Athey, Jr. Bruce Baldwin Charles G. Barnett John H. Boswell Joseph T. Cain George C. Chapman George C. Dixie Robert E. Edwards Raymond J. Elliott Christie S. Flanagan Houston E. Holmes, Jr. A. Holt Irby Jimmy D. Ivy Tim K. Kirk Hon. Don Koons Hon. William F. Kortemier, II David R. Latchford O. Fred Lohmeyer Donald J. Malouf Lawrence R. Maxwell, Jr. Hon. John P. McCall Frank E. McLain William H. McRae Curtis W. Meadows, Jr. William C. Roberts, Jr. Norman R. Rogers John Q. Stilwell, JD, PhD Mark A. Troy James A. Walters
Licensed in 1963 Douglas Adkins Joseph E. Ashmore, Jr. Buford P. Berry Jerry W. Biesel Kenneth E. Blassingame John Willard Clark, Jr. George W. Coleman A.B. Conant, Jr. William (Bill) P. Davis James A. Donohoe Lawrence B. Gibbs Major Cyrus Ginsberg Jay L. Gueck R, Brooks Hamilton William M. Hayner Ronald M. Holley Joe T. Hood Bernard P. Malone P. Mike McCullough Robert H. Mow, Jr. Walter E. (Rip) Parker Harry M. Roberts, Jr. Michael E. Rohde Edward V. Smith, III G. Dennis Sullivan Roy J. True J. Glenn Turner, Jr. Robert W. Turner Bill R. Womble Licensed in 1964 James F. Bowen Charles Lee Caperton Ernest Conner Dale F. Crowder James W. Deatherage Jim F. Evans Ernest E. Figari Lawrence Fischman John M. Gillis Kenneth R. Glaser Charles (Mickey) M. Hunt Darrell E. Jordan William D. Jordan Paul E. Lokey Donald J. Lucas John H. Marks Douglas D. Mulder Thomas W. Oliver Charles W. Spencer Joe H. Staley Peter M. Tart Maridell Templeton Hon. Howard Tygrett Jim A. Watson John H. Withers
Find Fox – in Dallas David & Goodman, P.C. is now part of Fox Rothschild 600 attorneys | 20 offices nationwide
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10/9/12 10:39 AM
Nov e mb e r 2 0 1 4
Focus
D al l as Bar A ssoci ati on l Headnotes 7
Health Law & Employee Benefits/Executive Compensation Law
Five Things Every Lawyer Should Know About Health Care Laws By Bradley M. Smyer and Keri L. Tonn
Health care laws apply to more than just hospitals and physicians. They increasingly extend to clients who are not in traditional health care settings. In this article, we briefly introduce five basic health law concepts that could affect almost any legal practice. 1. Health Care Laws Create Unique Business Restrictions. Health care laws create unique restrictions on corporate structures and business relationships. For example, the federal Physician Self-Referral Act, or “Stark Law,” prohibits government reimbursement for services ordered or performed by a health care provider with an impermissible financial arrangement. Impermissible arrangements can arise in a variety of routine transactions, including employment arrangements and office space or equipment leases. Health care laws can even dictate the corporate structure of health care entities. For instance, the Texas corporate practice of medicine doctrine limits non-physician ownership in certain health care entities and may prohibit physician employment by other entities. If your client affiliates with a health care provider, consider how health care laws may govern issues as fundamental as corporate structure to arrangements as routine as real estate leases. 2. Health Care Laws Require Strict Information Security Requirements. Health care laws require unique information security requirements that can affect transactions, litigation, and dayto-day business operations. For example, the Health Insurance Portability and Accountability Act (HIPAA) limits the use and disclosure of Protected Health
Information (PHI). PHI is information that: (1) identifies an individual or may be used to identify an individual; and (2) relates to the past, present, or future provision of health care to the individual, physical or mental health condition of the individual, or payment for the individual’s health care. If you or a client access PHI, consider the agreements (Business Associate Agreements, for example) and administrative, technical, and physical safeguards necessary to protect that PHI. 3. Health Care Laws Complicate Relationships with Current and Former Employees. Intense government regulation of health care-related businesses can complicate employment relationships. For example, the federal False Claims Act and the Texas Medicaid Fraud Prevention Act allow persons with knowledge of alleged violations of health care laws, including current and former employees, to file whistleblower suits against companies and individuals. Even unsuccessful whistleblower suits can be costly to defend. These pressures increase the need for carefully structured corporate compliance policies and well-orchestrated internal investigations and remedial measures. If your client does business with the government, or simply provides goods or services to an entity that does business with the government, consider your client’s current policies and practices to prevent and defend against whistleblower suits. 4. Health Care Laws Prohibit Otherwise Permissible Incentives and Rewards. Health care laws can impose significant limitations on otherwise permissible business practices. For example, under the federal Anti-Kickback Statute (AKS), it is a felony to knowingly and willfully
offer, pay, solicit, or receive any “remuneration” in exchange for purchases or referrals of any good, facility, service, or item that may be reimbursed by a federal health care program. “Remuneration” can be anything of value. This can prevent clients from asking for or even offering customary business gratuities, such as sports tickets and meals. Other health care laws impose similar restrictions on gifts to patients and business associates. If you represent a health care provider, or anyone that provides goods or services to a health care provider, carefully consider restrictions on possible incentives and inducements. 5. Health Care Laws Can Impose Heavy Penalties. Health care laws can impose substantial administrative, civil, and criminal penalties. For example, a single AKS violation may result in: (1) permanent exclusion from participation in any federal health care program; (2) penalties of up to $50,000 plus an assessment of up to three times “the total amount of remuner-
ation offered, paid, solicited, or received,” regardless of whether any “remuneration” actually changed hands; or (3) conviction with a maximum fine of $25,000, imprisonment up to five years, or both. Many other health care laws also impose serious administrative, civil, and criminal penalties. Given the risks of non-compliance, health care issues deserve considerable attention. The health care industry is rapidly evolving. Health care laws affect a growing number of clients in a variety of industries. As health care continues to expand, health care laws will reach even more individuals, businesses, and law practices. Although health law issues often involve complex laws that require expert legal diagnosis and treatment, all lawyers should be able to spot and triage potential health law issues that could affect their HN clients. Bradley M. Smyer is an associate at DLA Piper LLP and may be reached at brad.smyer@dlapiper.com. Keri L. Tonn is an attorney at DLA Piper LLP and may be reached at keri.tonn@dlapiper.com.
Courtroom Technology Boot Camp Speaker: Judge Martin Hoffman Friday, December 5, at Noon | MCLE 1.00 Noon in Judge Hoffman’s Courtroom 68th District Court, George Allen Courthouse
Free. Limited to the first 60 registrants. RSVP to ahernandez@dallasbar.org. Sponsored by the DBA Courthouse Committee
J. B. Friedman, Jr. Partner
Practicing Employee Benefits, ERISA and Executive Compensation Law
755 E. Mulberry Ave. Suite 200 San Antonio, TX 78212
OFFICE: 210.702.3954 CELL: 210.885.9010
WWW.WIFILAWGROUP.COM JFRIEDMAN@WIFILAWGROUP.COM
Our Mission Statement: To Empower Businesses. We were founded in 2011 by partners with a passion for creating a new business model. Our seven attorneys have combined experience of over 100 years in this boutique practice area with large regional, national and international firms. We exist because our founding partners decided to offer our clients a new business model more suited to their needs. The same technology and innovation that is driving our clients’ businesses is driving our business. Resources once available only to large law firms are now readily available to any firm, regardless of size. The legacy cost structure pushing up others’ hourly rates does not impact our firm. Our attorneys thrive in a setting that stresses a diverse, collaborative effort. THIS is why we exist.
Dallas • San Antonio • Austin www.wifilawgroup.com
8 He a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2014
Scope, Needs for Northern District’s Pro Se Panel Continue to Grow by Hon. Jane Boyle and Hon. Irma C. Ramirez
During the past several years, the judges of the Northern District of Texas have seen an ongoing increase in parties, usually plaintiffs, representing themselves in a wide range of civil cases. While each case presents its own set of circumstances, the common thread is that the majority of these litigants simply cannot afford to retain counsel. As judges, it is our collective responsibility to consider the merits of every case, including pro se cases, and to apply the applicable standards of judicial review in accepting or dismissing a claim. While many pro se claims are dismissed prior to service for failure to state a claim, we regularly are presented with potentially meritorious claims or triable factual dis-
putes. In each case, we recognize the distinct ability to promote access to justice through the appointment of qualified attorneys for pro bono representation. In order to encourage attorneys to volunteer their time to represent these litigants, the Northern District established the Pro Bono Civil Panel. It provides a structure for effectively tracking these cases and ensuring that panel participants are being approached and appointed for service in a fair and impartial manner. Currently, there are 23 local law firms and more than 20 individual attorneys that serve on our panel. These lawyers are pursuing cases that most often involve allegations of civil rights violations, although we have also appointed counsel in employment discrimination and copyright infringement cases. From the perspective of the firms
New Buffet Prices Effective January 1 Over the past eight years, the buffet prices have not increased, but Culinaire’s expenses and costs of operation have increased significantly. In order to maintain the quality and level of service our members have come to expect from the Belo facility, the time has come to make a slight adjustment to the buffet prices. Beginning January 1, 2015, the full buffet (including a dessert) will increase to $14.95 and the soup and salad (including a dessert) will increase to $10.75. These prices are inclusive of tax and 15% service charge. By comparison, the Tower Club buffet is $16.95, plus $5.95 for dessert, plus tax and plus 21% service charge. Thank you for understanding and we hope that you will continue to enjoy our lunch buffet as a benefit of membership in the Dallas Bar Association.
involved, there is an added benefit of expanding opportunities for young lawyers to gain valuable trial experience. A senior lawyer within each firm serves as a contact for the panel and assigns younger attorneys based on ability and availability for this important service. In some instances, we have seen associates from different firms come together and cooperatively represent clients, often demonstrating competence and preparedness equal to any highly experienced trial team. By participating in this program, these associates are giving back to their community and gaining real-world trial experiences, such as presenting an oral argument to a panel of three Fifth Circuit judges for a prisoners’ rights case, and handling a three-day bench trial for a Hague Convention child abduction case. These attorneys have told us what these experiences have meant to them. As the Pro Bono program has grown and become more structured, we also have recognized the need to more formally honor the attorneys who accept, promote and embrace this effort with both personal commitment and their leadership of others. As a result, the North District judiciary this year inaugurated the Pro Bono Award of Merit as part of the annual Federal Bar Association event. Michael Stockham, of Thompson & Knight, is a worthy recipient of this award for 2014. Since the inception of the panel, he has volunteered to take several cases. He brings an intellectual approach to the law, balanced with a deep understanding of the needs of the indigent, and the proven ability to effectively motivate and mentor younger attorneys. Michael is a former law clerk of our colleague, the Honorable Barbara M.G. Lynn, who has this to say about his service and the program: “Our Court is very appreciative of the lawyers who so serve, and particu-
larly of Michael for his professionalism and dedication, which is in the wonderful tradition of the Dallas Bar. Indigent parties with claims that have survived screening can benefit immeasurably by having a lawyer to pursue their claims, and the Court benefits significantly by having well-qualified counsel to pursue such claims in accordance with our Federal Rules. Lawyers volunteering to handle such matters receive experience that is unique and invaluable, including not only opportunities for trial and hearings, but also the opportunity to work with a client and fashion a strategy for best presenting the client’s case.” Our court recognizes the need to actively manage this program, and it responded in 2011 by establishing docketing events and official forms in assigning lawyers to pro se cases. These tools allow us to generate regular reports on each case and to monitor the involvement of individual attorneys and firms. The panel’s rules state that unless a member requests otherwise, no attorney should be called upon to handle more than two cases per year. The data trends reveal the need to deepen the pool of volunteer lawyers willing to serve in the program to avoid any issues with conflicts or reliance on particular firms or individuals. If you or your firm might be interested in participating, we encourage you to visit the Northern District website and to review the information, forms and reimbursement details of the Pro Bono Civil Panel. We can assure you that your willingness to serve is valued, and that we are committed to helping make your experience in the program rewarding, both pro HN fessionally and personally. U.S. District Judge Jane Boyle has served on the Court since 2004. U.S. Magistrate Judge Irma C. Ramirez was appointed to the federal bench in 2002. The Northern District Pro Bono Panel can be reached at txndml_probono@txnd.uscourts.gov.
MARK YOUR CALENDARS CLIENT: Communities Foundation of Texas JOB#: CFOT-14-011 Brand Campaign TRIM: 5"w x 7.75"h LIVE: 5"w x 7.75"h BLEED: n/a COLOR: CMYK PUB: Headnotes CONTACT: Jessica D. Smith, Headnotes Editor Communications/Media Director (214) 220-7477 jsmith@dallasbar.org
To mark the 50th anniversary of the Civil Rights Act of 1964, the DBA presents the final presentation of a series of programs.
RELEASE: 10/16/14 INSERTION: not specified
Professor of Public Affairs, LBJ School of Public Affairs
DAN SMITH Fund Holder, Communities Foundation of Texas
“Civil Rights: Back to the Future?”
T URNIN G LOS S i nto L EG AC Y Dan and Joellyn Smith established the Smith Family Fund at Communities Foundation of Texas as a way to pay their prosperity forward. After Joellyn lost her battle with breast cancer, Dan approached us for guidance on how to honor her memory. Together we created the Joellyn Smith Fund for Breast Cancer Support and matched him with the
Professor Edwin Dorn
Deep in the heart of giving
Tuesday, November 11, 2014 12:00 p.m. to 1:00 p.m. Belo Mansion
Bridge Breast Network, which fit Dan’s vision to provide practical support to low-income uninsured women.
Start your charitable fund today.
Joellyn Smith made philanthropy a priority in her life.
Call 214-750-4226 , email
Thanks to her loving family and support from Communities
giving@cftexas.org or visit
Foundation of Texas, she is still giving back today.
CFOT-14-011 Headnotes_DSmith_01mg.indd 1
www.CFTexas.org/GivingFund.
10/16/14 5:40 PM
No Admission Fee – $30 Nonmember CLE Fee MCLE: 1.00 – Pending
Nov e mb e r 2 0 1 4
Focus
D al l as Bar A ssoci ati on l Headnotes 9
Health Law & Employee Benefits/Executive Compensation Law
Windsor Brings Federal Tax and Benefits to Same-Sex Spouses by James Deets
In United States v. Windsor, 133 S. Ct. 2675 (2013), the U.S. Supreme Court found Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. Section 3 of DOMA provided that, for purposes of interpreting federal law, “marriage” meant only a legal union between one man and one woman as husband and wife and “spouse” referred only to a person of the opposite sex who was a husband or wife. Because of DOMA, persons of the same sex were prohibited from being recognized as spouses for any purpose under federal law, even if they were legally married. In the employee benefit plan context, this resulted in disparate treatment for same-sex spouses as compared to opposite-sex spouses. For example, same-sex spouses did not have the same protections that are afforded oppositesex spouses under the laws applicable to qualified retirement plans (which include 401(k) as well as cash balance and traditional defined benefit pension plans). Furthermore, other benefits that would be nontaxable when provided to opposite-sex spouses would result in taxable income to the employee if they were provided to the employee’s same-sex spouse. Since Section 3 of DOMA has been held unconstitutional, same-sex couples who are legally married are now recognized as spouses under federal law, and will be treated the same as opposite-sex spouses for employee benefit purposes, as well as many other purposes. The IRS held in Revenue Ruling
2013-17 that for purposes of applying the Windsor decision, same-sex spouses will be treated as spouses for federal tax purposes if they were legally married under the laws of any state or foreign jurisdiction, even if they reside in a state where same-sex marriage is not recognized or is prohibited. This is commonly referred to as the “place of celebration” doctrine and has been adopted by most, but not all, federal agencies. Because of Windsor, employers must change the way they administer benefits provided to same-sex spouses of employees. This impacts certain requirements applicable to qualified retirement plans, including spousal consent, qualified joint and survivor annuities, qualified preretirement survivor annuities, default beneficiaries, required minimum distributions, rollovers and qualified domestic relations orders. The ruling will also impact the tax treatment of health and welfare benefits provided to same-sex spouses of employees and the same-sex spouse’s eligibility for benefits under HRAs, FSAs, HSAs, as well as eligibility for COBRA coverage and FMLA leave. IRS guidance has clarified many issues relating to benefits provided to same-sex couples who are legally married. More specifically: • Employers were required to stop imputing income for benefits provided to same-sex spouses effective as of September 26, 2013. • Qualified retirement plans are required to be administered consistent with Windsor no later than June 26, 2013—the date of the Windsor decision. Furthermore, they are required to
DALLAS MEMBERS
be administered based upon the “place of celebration” doctrine no later than September 26, 2013.
Plan Amendments
Whether a plan must be amended based upon the Windsor decision depends on the terms of the plan itself. If a plan does not provide a definition of “spouse” that would exclude same-sex couples from being treated as spouses under the plan, then generally, no plan amendment would be required. However, if a plan contained such a definition, then it would need to be amended so that same-sex spouses would be treated as spouses to the same extent as opposite-sex spouses. Additionally, although not required, a qualified retirement plan may be operated consistent with Windsor for periods before June 26, 2013. However, a plan amendment would be required. The IRS, in Notice 2014-19, has designated December 31, 2014 as the deadline for adopting any amendments to qualified retirement plans related to the Windsor decision, although plans are required to be administered consis-
tent with the decision according to the deadlines mentioned above.
Other Issues
Employers who offer benefits to employees’ same-sex domestic partners will need to reevaluate their administrative procedures so that the treatment of legally married same-sex couples for benefit and tax purposes is brought into line with those applicable to opposite-sex spouses. The tax treatment of unmarried same-sex domestic partners will remain unchanged, thereby mandating that employers who offer benefits to same-sex partners determine whether the employee and his or her partner are, or are not, legally married. As mentioned above, the IRS is not requiring that plans be administered consistent with Windsor prior to June 26, 2013. However, lawsuits regarding same-sex spousal rights with respect to periods preceding that date are already HN pending.
James Deets is a Director with Compensation & Benefit Solutions, LLC. He may be reached at jamesdeets@compandbensolutions.com.
Professionalism Tip I will identify for other counsel or parties all changes I have made in documents submitted for review. I will attempt to prepare documents which correctly reflect the agreement of the parties. Find the complete Creed online at http://txbf.org/texas-lawyers-creed/. Excerpt from the Texas Lawyers Creed
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chris@nolland.com
Will Pryor (469) 374-0222
Mel Wolovits (214) 528-1411
wpryor@willpryor.com
mel@mediatenegotiate.com
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10 H e a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2014
Weil, Gotshal & Manges Recognized with Access to Justice Award Sandy Fusco Named Pro Bono Lawyer of the Year Staff report
Each year, the Dallas Volunteer Attorney Program (DVAP), a joint project of the Dallas Bar Association and Legal Aid of Northwest Texas, honors the lawyers, judges and other legal professionals who donate pro bono services. At the Annual Pro Bono Awards Reception on October 29, the Dallas office of Weil, Gotshal & Manges LLP was recognized with the Lisa Blue and Fred Baron Access to Justice Award for their outstanding commitment to pro bono work. For the past nine years, Weil has provided an attorney to the Dallas Volunteer Attorney Program through their Lend-A-Lawyer pro-
gram. Through this program, a Weil attorney devotes three months to full-time, on-site, pro bono representation of indigent clients at DVAP, while the firm continues to pay the attorney’s salary and benefits. Associates at Weil apply for the prestigious positon and are selected by the firm’s Dallas office Pro Bono Committee and the Dallas office’s Managing Partner Glenn West. In addition, the firm provided 1,161 hours of pro bono services to
DVAP clients within the past year. According to Weil’s website, their commitment to pro bono work is “deeply ingrained in our culture. We believe that it is our obligation to volunteer our skills to those who would otherwise face severe challenges
I’ve Passed the Bar, Now What? Handling Your First Criminal Case Speaker: Susan Anderson Tuesday, December 2, 5:30-7:30 p.m. at Belo MCLE 2.00
as victims of injustice or abuse without legal representation. As economic difficulties exacerbate the problem of unequal access to quality legal representation, the need is as great as ever, and we continue to respond to it.” Their commitment to pro bono work is firm-wide. “The importance Weil places on providing these services to the community is demonstrated by our goal of having all lawyers at the firm perform 50 hours of Sandy Fusco pro bono work each year. Toward that end, every partner is expected to work on a pro bono matter every year, and every new attorney—including lateral partners—is required to take on a pro bono matter.” With such ambitious pro bono goals, it is easy to see why this year’s Pro Bono Lawyer of the Year is also from the firm of Weil, Gotshal & Manges LLP. Sandy Fusco, this year’s winner, is a Litigation Associate at the firm. While at DVAP, she assisted with the repre-
sentation of clients in a variety of pro bono legal services including probate, guardianship, adoption and consumer cases. In 2013, Sandy performed 713.5 hours of pro bono legal service, 529 hours and 15 cases of which were through the Lend-A-Lawyer Program. Apart from her Lend-A-Lawyer work, she also provided an additional 184 hours of pro bono service through DVAP Legal Clinics on behalf of indi-
gent clients. Ms. Fusco is a graduate of Stanford Law School, while as a student, she interned for the Honorable S. James Otero of the Central District of California, and was the recipient of the Hilmer Oehlmann Jr. Award for Excellence in Legal Writing. Prior to law school, she served eight years active duty as a Naval Flight Officer. DVAP congratulates Weil, Gotshal & HN Manges and Sandy Fusco!
NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/dallas-lawyer-referral-service or call (214) 220-7499.
RSVP to reed-brownc@lanwt.org. Sponsored by DVAP and J.L. Turner Legal Association
•2014 Pro Bono Awards• Lisa Blue and Fred Baron Access to Justice Award Weil, Gotshal & Manges, LLP Lawyer of the Year Sandy Fusco, Weil, Gotshal & Manges, LLP Gold Award for Pro Bono Service Baker Botts, L.L.P. Bracewell & Giuliani LLP Locke Lord LLP Squire Patton Boggs LLP Silver Award for Pro Bono Service Andrews Kurth LLP The Bassett Firm Haynes and Boone, LLP Jones Day Bronze Award for Pro Bono Service Carrington, Coleman, Sloman & Blumenthal, L.L.P. Cozen O’Connor Norton Rose Fulbright LLP Thompson & Knight LLP
Ken Fuller Outstanding Mentor Attorney Walton Bondies, Jr., Attorney at Law
Outstanding Clinic Attorney Volunteers West Dallas Clinic Pamela St. John, AT&T Services, Inc. Garland Clinic Robert Nunnally, Wisener Nunnally Gold LLP South Dallas Clinic Valencia Carter, Attorney at Law East Dallas Clinic Jarrett Reed, Norton Rose Fulbright, LLP Outstanding Veterans Clinic Attorney Glenwood Hill, Bracewell & Giuliani LLP
Hartman Judicial Pro Bono Service Award Hon. David Lopez, 256th District Court
Lois Bacon Special Services Award Reed Allmand, Allmand Law Firm
Outstanding Small Firm Pro Bono Lawyers Alisa Richman, Law Office of Alisa Richman
Pro Bono Court Reporter of the Year Glenda Finkley, 256th Judicial District Court
Pro Bono Coordinator of the Year Basheer Ghorayeb, Jones Day
Outstanding Court Personnel Twyla Weatherford, 302nd District Court
Pro Bono Appreciation Award Scott McElhaney, Jackson Walker, L.L.P.
Outstanding Support Volunteer Ayo Olagbaju, Social Security Administration
Outstanding Clinic Sponsor MedAssets
Outstanding Corporate Attorney Ashlie Alaman, Luminant Energy
DVAP’s Finest
Natalie Smeltzer
Natalie practices corporate law in the Dallas office of Weil, Gotshal & Manges LLP, focusing on mergers and acquisitions and private equity transactions. Since beginning her law practice, Natalie has volunteered at the West Dallas Legal Clinic and served as a volunteer attorney for DVAP clients. Currently, Natalie is the Weil, Gotshal & Manges DVAP Lend-a-Lawyer. For a period of three months, she is working full-time on a variety of pro bono matters for DVAP’s indigent clients, including adoption, probate, estate planning, landlordtenant, divorce and custody matters. She is thrilled with the opportunity to work daily with the DVAP team and provide assistance to so many individuals in need of representation. Thank you for all you do, Natalie!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
Nov e mb e r 2 0 1 4
Focus
Dal l as Bar A ssoci ati on l Headnotes 11
Health Law & Employee Benefits/Executive Compensation Law
Access to Health Care: An Overview of EMTALA by Wendi Campbell Rogaliner and Seth Bills
In 2012, presidential hopeful Mitt Romney told a national audience on 60 Minutes that in the United States, “[w]e do provide care for people who don’t have insurance. If someone has a heart attack, they don’t sit in their apartment and die. We pick them up in an ambulance, and take them to the hospital, and give them care.” Mr. Romney was describing statutorily mandated emergency care required by the federal Emergency Medical Treatment and Active Labor Act (EMTALA). EMTALA was enacted in 1986 following several nationally publicized “patient dumping” incidents, including an uninsured stabbing victim in California who died after waiting days for surgical intervention while hospital after hospital refused to care for him. EMTALA mandates that Medicareparticipating hospitals with emergency departments screen and stabilize patients who come to the hospital seeking evaluation or treatment of what may be an emergency medical condition, regardless of the patient’s ability to pay. Initially, it is important to note that EMTALA applies only to hospitals that participate in the Medicare program. In recent years, it has become more common for private hospitals (particularly those that are physician-owned) to opt out of the Medicare program. These hospitals are not required to comply with EMTALA, though they may be subject to similar emergency services standards by virtue of state law, depending upon their licensure category.
For the vast majority of hospitals, however, Medicare participation remains critical, and EMTALA compliance is mandatory. EMTALA requires (1) a medical screening examination, and (2) stabilizing treatment (if an emergency medical condition exists) for all persons who present to a Medicare-participating hospital seeking evaluation or treatment for what may be an emergency medical condition. EMTALA’s reach is broad; it protects all persons, not just U.S. citizens or those covered by Medicare. The required screening examination must be “appropriate” based upon the patient’s clinical presentation. Patients must be treated consistently with respect to screening and stabilization efforts. Thus, hospitals are not permitted to skip expensive tests on uninsured patients if those tests are part of the screening process for insured patients with the same clinical presentation. The screening exam is intended to detect the presence or absence of an emergency medical condition (EMC). EMC, which is defined broadly, includes severe pain, active labor and any condition which, without immediate medical attention, could reasonably be expected to place the health (or bodily organ or function) of the person or an unborn child in jeopardy. If the screening exam detects an EMC, the hospital must provide stabilizing treatment within the hospital’s capability. The hospital’s “capability” includes the expertise available on the hospital’s medical staff, which is why EMTALA requires hospitals to have call schedules and requires on-
call physician specialists to appear in the emergency department to attend to emergency patients, if necessary. Individual physicians face liability exposure, including fines of up to $50,000 per incident (not typically covered by malpractice insurance) and potential exclusion from the Medicare program for failing to meet call obligations when their assistance is required in the emergency department. If a hospital lacks the capability or capacity to provide stabilizing treatment required by the patient, the hospital must transfer the patient to a hospital that does have such capabilities. A Medicare-participating hospital which is on the receiving end of such a transfer request (and has specialized capability to stabilize the patient) is obligated under EMTALA to accept the patient. Patients are not entitled to receive non-emergency care under EMTALA. EMTALA obligations end when a physician (or other qualified medical professional) determines that an emergency medical condition does not exist or has been resolved. Thus, serious
medical conditions such as diabetes, high blood pressure, and even cancer will not entitle a patient to treatment under EMTALA, unless and until such condition escalates to cause an immediate danger to life or limb. Even then, EMTALA-mandated treatment will be limited to stabilization of the emergency, not chronic or curative treatment for the underlying disease. Responsibility for EMTALA enforcement is split between two agencies: the Center for Medicare and Medicaid Services and the Office of the Inspector General. Penalties can include fines of up to $50,000 per violation, termination of the applicable Medicare agreement, and exclusion from Medicare/Medicaid participation. As a final note, it is important to mention that health care mandated by EMTALA is not free. Hospitals can and do charge patients for care rendered in HN the emergency room. Wendi Campbell Rogaliner and Seth Bills are healthcare attorneys at the Rogaliner Law Firm. They can be reached at wendi@rogalinerlaw.com and seth@rogalinerlaw.com, respectively.
THE DO’S AND DON’TS OF THE GRIEVANCE PROCESS Wednesday, November 12, Noon, at Belo
Speakers: Griffin Collie, Robert Hinton, Nancy Thursby and Kent Krause, moderator Ethics 1.00 Sponsored by the Legal Ethics Committee.
12 H e a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2014
Thank you to the Carter work project volunteers! We appreciate all members of the Dallas Legal Community, along with our sister bar associations: DAABA, DAYL, DAPA, DGLBA, DHBA, DTLA, DWLA and JLTLA, who donated and participated in the DFW Jimmy & Rosalynn Carter Work Project. The week-long builds were a success—50 homes in Dallas built or repaired! We couldn’t have done it without you! A special thank you to the DBA Carter Work Project Task Force, led by DBA Past President Al Ellis, whose efforts were tireless and numerous! And a big THANK YOU to our donors: Gold donors ($5,000+): Baron and Blue Foundation; Baron & Budd, P.C.; Wendy and Mark Castellana; Dallas Bar Foundation; DBA Home Project Committee; Fears & Nachawati Law Firm;
Haynes and Boone, LLP; Payne Mitchell Law Group; Sayles | Werbner; Sifford, Anderson & Co., P.C.; Sommerman & Quesada, LLP; Turley Law Firm Silver donors ($1,000-$4,999): Sam Boyd; Scott Chase & Debra Witter; Jim E. Cowles; Dallas Trial Lawyers Association; Dallas Women Lawyers Association; Lisa & Robin Doss; Sara Evans; Godwin Lewis PC; Hernandez Law Firm; LexisNexis; John McPowell; Rosanne & Rex Mills; Rosenthal Weiner LLP; Waters & Kraus, LLP; and the following DBA Sections: Bankruptcy & Commercial Law; Business Litigation; Corporate Counsel; Energy Law; Intellectual Property Law; Probate Trusts & Estates Law; Real Property Law; Solo & Small Firm; Tort & Insurance Practice
Volunteers are still needed to help finish the homes started during this project. Dates and contacts: • Nov 1: TYLA (Aaron Capps - acapps@griffithdavison. com; Greg McAllister - gmcallister@littler.com); • Nov 8: DAYL (Cherie Harris - cherieh@dayl.com; Greg McAllister - gmcallister@littler.com); • Nov 15: UNT Law (Cheryl Wattley - cheryl.wattley@ untsystem.edu; Greg McAllister - gmcallister@littler. com); and • Nov 22: Greg McAllister - gmcallister@littler.com
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Focus
D al l as Bar A ssoci ati on l Headnotes 13
Health Law & Employee Benefits/Executive Compensation Law
Hooked by HIPAA: Law Firm Liability by W. Brenda Tso
Healthcare entities and their business associates are required to comply with the Health Insurance Portability and Accountability Act (HIPAA) Privacy and Security Rules, which protect individually identifiable health information. In 2013, the HIPAA Final Omnibus Rule (Omnibus Rule) was issued, greatly expanding HIPAA’s scope. Generally, compliance with the Omnibus Rule was required by September 23, 2013. Most importantly, the Omnibus Rule now applies directly to law firms that qualify as a business associate. A law firm that receives, maintains, or discloses protected health information in the provision of legal services is statutorily a business associate. In other words, if your law firm deals with personal medical records in the course of representing clients, it is probably a business associate. Previously, law firms were only contractually liable to healthcare covered entities under a business associate agreement. As a business associate, law firms must comply with some aspects of HIPAA’s Privacy Rule and all aspects of HIPAA’s Secu-
rity Rule. Failure to do so may result in civil monetary penalties imposed by the U.S. Department of Health and Human Services (DHHS). Law firms should ensure a valid business associate agreement is in place with each healthcare covered entity or business associate from which it receives protected health information. In turn, if the law firm passes that protected health information on to subcontractors (such as copy services, expert witnesses, etc.), the law firm must enter into a valid business associate agreement with each downstream subcontractor. All business associate agreements must conform to the contractual requirements and elements listed in 45 C.F.R. § 504(e). Business associate law firms must also comply with HIPAA’s Security Rule regarding electronic protected health information. In drafting the regulations, DHHS was well aware that business associates can different greatly in size and, as a result, in security capability. 78 F.R. § 5589. The regulations take this into consideration by setting a flexible approach that requires covered entities and business associates to “reasonably and appropriately implement the standards.” 45 C.F.R. § 164.306(b)(1). Law firms thus
DAYL Charity Ball Saturday, November 15, 2014 7:00 p.m. at 30165 Trinity Groves Benefiting EPIC and Dallas Habitat for Humanity Tickets available at www.daylcharityball.com.
Park Place Dallas Ticket to Drive Raffle ...Winner receives 2015 Mercedes-Benz GLA-Class
Runner-Up Receives:
Fairmont Choice Travel Package (Three-night stay with airfare for 2) Raffle tickets are $100 each — or 6 tickets for $500. Proceeds benefit the Dallas Volunteer Attorney Program, which provides legal services to the less fortunate in our community. No more than 1,500 tickets will be sold. Purchase raffle tickets online at
www.dallasbar.org/dvap/raffle.asp or at the DBA offices at the Belo Mansion (2101 Ross Avenue, Dallas, TX 75201). Drawing will be held at the DBA Inaugural Ball on January 17, 2015. The winner need not be present to win. The winner is responsible for all taxes, title and licensing. Prize is non-transferable. No cash option is available.
have some flexibility in deciding the level of safeguarding they require: a solo practitioner may not require the massive software security encryption a big firm might. However, HIPAA’s Security Rule is not flexible on the required documentation and maintenance of policies and procedures addressing implemented security measures. Business associate law firms are further required to conduct risk analyses, have regular reviews of information system activity, and have a designated security official. Requirements also address common physical and technical safeguards such as access to rooms with protected health information and electronic passwords. Essentially, law firms should have written documentation of compliance efforts such as policies and procedures, staff training, and incident investigation reports. Business associates are also responsible for complying with stringent breach notification rules when unsecured protected
health information is disclosed without authorization. This includes situations such as lost laptops and hacked computer systems. Protected health information in the hands of a law firm likely also qualifies as confidential client information subject to the Texas Disciplinary Rule of Professional Conduct 1.05. Should there be a data breach involving protected health information, a law firm further opens itself up to malpractice claims, disciplinary action, and damages under other state laws. Attorneys have an ethical obligation to competently and reasonably safeguard client information. Lack of technological savvy is unlikely to hold weight with the State Bar of Texas, the DHHS, the client/healthcare covered entity, and the patient whose health information has HN been breached. Brenda Tso is a healthcare associate attorney at Khouri Law Firm. She can be reached at btso@khourilaw.com.
BECOME INVOLVED IN HIGH SCHOOL MOCK TRIAL
Help Organize Events & Awards
Become an advocate for mock trial
Tournament tabulators
Develop and oversee the mock trial events/awards for students. Help recruit compe��on volunteers and conduct trainings to educa�on schools, students and teacher coaches on mock trial. Work behind the scenes at the compe��on to help tabulate scores for the high school mock trial compe��on.
Mock Trial Compe��on Dates: January 24‐31, February 7 and March 5‐7, 2015 See website for details: www.dallasbar.org.mocktrial To volunteer, or for more informa�on: ktaylor@dallasbar.org | (214) 220‐7484.
Texas Tech University School of Law's Regional Externship Program allows third-year students to gain full-time, participative legal experience in DFW
14 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
Novem ber 2014
Hi Pal! Remembering Blackie Holmes by Al Ellis
It was 1972 when I first became a young trial lawyer and was privileged to have Robert P. Woodruff, an outstanding trial lawyer and professional in his own right, as my first mentor. Through Mr. Woodruff, I was able to connect with some of the finest trial lawyers in our legal community: Carlisle DeHay, Morris Harrell, Judge Bobby Hill, Hon. L.A. Bedford, Jr., Aldefa Callejo, Louise Raggio, Jim Coleman, Judge Barefoot Sanders, Jim Cowles and Louis Weber, Jr., to name a few. Of course, one of the best was Blackie Holmes. Since Blackie’s death on October 8, 2014, much has been said and written about this great trial lawyer and the many awards and accolades he received during his 54-year career. This tribute will focus on Blackie Holmes, the human being, the friend and the ultimate professional. If there is one word which correctly describes Blackie Holmes, it is RESPECT. Blackie had respect for just about everyone with whom he came in contact. Martin Luther King, Jr. said, “All labor that uplifts humanity has dignity and importance.� Dr. King’s statement could easily have come from Blackie.
While Blackie represented defendants in the manner in which he practiced law. large and small in his civil trial practice, Blackie Holmes was the living epitome of he was never disrespectful to the indi- the lawyers creed. Drawing upon aspirational creeds vidual plaintiff who was suing his client whether he believed the plaintiff’s claim developed by a few other associations, but primarily relying upon the to be valid or not. As Mayor way he practiced law, Blackie of University Park, he demand the DBA Task Force onstrated respect for all the developed the Dallas Bar citizens and employees of the Association Lawyers Creed City, no matter their stature and Guidelines for Profesin the community. He had sionalism. In 1989, Blackie the highest respect for our was appointed to the Texas justice system, most imporSupreme Court Task Force tantly, for every citizen’s right with the same mission and to a trial by jury. He respected co-authored the Texas Lawthe decision of the jury in his yers Creed. cases—win, lose or draw. He In the last few months was the ultimate professional. of his life, Blackie took the In the early 80s, our protime to write special handfession began to experience written notes to some of his the “take no prisoners� con- Blackie Holmes duct of the so-called “Rambo litigators.� In friends and colleagues. Once again dem1987, DBA President George Chapman onstrating his respect and love for his appointed Blackie as Chair of a Task Force fellow man, Blackie wrote, “Friends will on Professionalism with the ultimate goal pass on, but their remembrance will live. of developing the Dallas Lawyers Creed. Thanks for everything. With warmest Putting Blackie in charge of this Task Force regards and the love of a friend.� Classic was pure genius and the ultimate common sense decision. Blackie Holmes did not need a formal written creed to guide him
The DBA Directory Photographer will available to take photos for the 2015
Don’t miss your opportunity to
Directory on:
Tuesday, November 11, 9 a.m. - 3 p.m. at Belo
ď€
Thursday, November 13, 9 a.m. - 3 p.m. at Belo
Al Ellis is past president of the DBA and is Of Counsel at Sommerman & Quesada, L.L.P. He can be reached at al@textrial.com.
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Blackie Holmes!! In its order promulgating the Texas Lawyers Creed, the Texas Supreme Court and the Texas Criminal Court of Appeals stated: “We must always be mindful that the practice of law is a profession. As members of a learned art, we pursue a common calling in the spirit of public service. We have a proud tradition. Throughout the history of our nation, the members of our citizenry have looked to the ranks of our profession for leadership and guidance. Let us now as a profession each rededicate ourselves to practice law so that we can restore public confidence in our profession, faithfully serve our clients, and fulfill our responsibility to the legal system.� This statement, more than anything, reflects the personality, the attitude, and the ultimate professionalism of James H. “Blackie� Holmes. So long, pal. You set the bar high for us to follow. We will do our best to follow your †HN example. Rest in peace friend.
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Nov e mb e r 2 0 1 4
Focus
Dal l as Bar A ssoci ati on l Headnotes 15
Health Law & Employee Benefits/Executive Compensation Law
No Presumption Favoring Employer Stock Investments by Lori Thayer Oliphant
On June 25, 2014, the United States Supreme Court issued a unanimous decision striking down a long-standing presumption in favor of holding employer stock in retirement plans. Fifth Third Bancorp et. al. v. Dudenhoeffer et. al., 134 S.Ct. 2459 (2014). While the holding shocked many employers, it does not signal the end of such investments in retirement plans. Instead, the Court established new pleading standards that will change how retirement plan fiduciaries defend their investment decisions. Fifth Third Bancorp maintained a 401(k) plan in which its employees were able to direct the investment of their account balances among available investment alternatives, including an employee stock ownership plan, or ESOP. The ESOP was primarily invested in the stock of Fifth Third Bancorp. The respondents were participants who had directed the investment of a portion of their plan account balances into the ESOP. Between July 2007 and September 2009, the value of the employer stock fell by 74 percent. The respondents filed a claim alleging that plan fiduciaries had breached their duties of prudence by retaining the employer stock investment alternative under the plan, by failing to refrain from making new investments in employer stock during this period
and by failing to disclose nonpublic information regarding the company. The participants sought to hold the fiduciaries personally liable for the losses incurred with respect to the stock investments in the plan. Under the Employee Retirement Income Security Act of 1974 (ERISA), each fiduciary of a retirement plan is required to discharge his or her duties in a prudent manner and solely in the interests of the participants and beneficiaries. Generally, a plan fiduciary is also required to diversify the plan’s assets to prevent large losses. However, a specific exception is provided from the diversification requirement and the prudence requirement (to the extent that it also requires diversification) for certain retirement plans that are invested in employer stock, such as the Fifth Third Bancorp plan. In determining whether a fiduciary has breached the requirement of prudence under ERISA, many courts have relied on a judicial doctrine, often referred to as the “Moench presumption.” The presumption arose in the Third Circuit Court of Appeals nearly 20 years ago. See Moench v. Roberston, 62 F.3d 553, 571 (1995). Under the Moench presumption, the decision of a plan fiduciary to invest in employer stock is presumed prudent, unless the employer’s viability as a going concern is in question. A conflict existed between the circuit
courts on whether the Moench presumption is applied at the pleading stage or as a defense in the substantive case. Notably, the circuit courts agreed that the Moench presumption existed; they only disagreed as to which stage of litigation it applied. In a surprising twist, the Court concluded that the Moench presumption did not exist at all. It was not supported by the statutory language under ERISA and was not the appropriate method to promote the use of ESOPs. Nonetheless, the Court replaced the presumption with strict pleading requirements. The Dudenhoeffer case has been remanded to the Sixth Circuit Court of Appeals to determine whether those pleadings satisfy these standards. Specifically, allegations that the fiduciary should have discerned solely from public information that the stock price was misvalued are implausible, absent special circumstances. The Court declined to define what would constitute “special circumstances” for these purposes. With respect to claims based on non-
public information, the Court acknowledged that a fiduciary is never required to violate applicable securities laws or corporate disclosure laws. Further, the participant must allege an alternative action that a plan fiduciary would have taken, that would not have violated applicable laws and would not have done more harm than good to the price of the stock. These pleading requirements may provide similar opportunities for plan fiduciaries to have meritless claims dismissed, despite the elimination of the Moench presumption. Unfortunately, the Court left many questions unanswered. The scope of the pleading requirements, along with available defenses by fiduciaries, will likely be developed in the lower courts. Furthermore, it is unclear how Dudenhoeffer will affect private employers. Plan fiduciaries should be ready to respond quickly to new developments through their HN ongoing fiduciary processes. Lori Thayer Oliphant is a Shareholder in Winstead’s Employee Benefits Practice Group. She can be reached at loliphant@winstead.com.
SIGN-UP NOW TO E-MENTOR A HIGH SCHOOL STUDENT BY EMAIL! E-Mentoring is an impactful way to maximize success of students. Share your skills and knowledge and make a difference in the life of a DISD high school student by mentoring them via e-mail. The program now offers bi-weekly e-mail topics designed to help structure and encourage meaningful discussion. Get Involved! Sign up at www.dallasbar.org/ementoring. Returning mentors must sign up every year.
Join Us for the Ribbon Cutting of the Updated Attorney’s Lounge At the George Allen Courthouse, 2nd Floor Thursday, November 20, Noon Sponsored by the DBA Courthouse Committee and Family Law Section
Texas
Written Discovery: Drafting and Responding under the Procedural Rules Discovery is the largest cost in most civil actions—as much as 90% in complex cases! It also can be the most frustrating part of trial.
The key is properly drafting, and responding to, written discovery.
Chapter Topics: • Discovery’s Purpose and Discovery-Control Plans and Limitations • Signing Written-Discovery Requests, Responses, and Objections • Permissible Discovery; Forms, Sequence, and Scope of Discovery • Written Discovery Responses, Objections, Privilege Assertions • Requests for Disclosure • Obtaining Documents and Tangible Things from Nonparties • Sanctions • And Much More!
Call 877.256.2472 to order your copy. ABOUT THE AUTHOR
Robert K. Wise is a founding member of Lillard Wise Szygenda PLLC. After completing his clerkship for the Hon. Paul C. Weick of the U.S. Court of Appeals for the Sixth Circuit, he practiced law in Dallas for more than 30 years. A former equity partner in the international law firm of Hunton & Williams LLP, Wise left Hunton to form Lillard Wise Szygenda, a boutique litigation firm. Wise’s practice centers on trial and appellate litigation. w w w. Te x a s L a w y e r B o o k s . c o m
16 H e a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2014
Tips when Accepting Credit Cards by Tracey Gavin
In the world of merchant accounts, law firms are unique business entities. Unlike a restaurant or retail store, law firms have special considerations when dealing with credit cards and client funds. Whether you are considering accepting credit cards or already offer an electronic payment option, using state-of-the-art technology will ensure you are paid quickly and securely. Some other tips to ensure a successful transition to the modern ways of getting paid as a law firm merchant: Protect your trust and IOLTA accounts. Do not allow your merchant provider access to your trust account. Most merchant agreements will require you to give access to this account in the event of a charge back or fraud. There are merchant services specific to law firms that correctly protect and safeguard your trust accounts. Avoid storing credit card information. If you bill clients on a monthly basis, you will potentially need the ability to recharge their credit cards. Accepting credit cards through a secure web-based solution will allow you to avoid keeping sensitive credit card information within the walls of your office. Modern law firms are quickly moving away from the traditional credit card machines, which sometimes require paper storage of client credit card numbers. This
also limits the liability and risk to your firm of credit card information falling into the wrong hands. Communicate to your clients. Let clients know what your payment expectations are on the front end by including due dates, late fees, and payment options as part of your fee agreement. It is much easier to establish these guidelines while your client is new and eager to get started. More importantly, continue to communicate to your clients what payment options you provide by including credit card logos or adding “Major Credit Cards Accepted” to your invoices and website. Clients will commonly look for an attorney who provides credit card options. Even popular legal websites such as Martindale-Hubbell have specific search criteria to find attorneys who accept credit cards. Use the technology you have. Once you make the decision to accept credit cards, be sure to use the payment option that best suits your needs. Depending on your area of practice—and, more importantly, where you interact with your client—there are different choices to accept payment. For example, there are many options to accept credit cards with smart phones, including iPads and laptops. Let your clients do the work. By taking time to establish payment options on your website, clients can run their own
credit cards. Not only does this provide a convenience to clients, but it frees up the time you otherwise would spend processing credit card payments. This also allows you to avoid ever seeing credit card numbers, eliminating any responsibility to accept, store, shred, or protect credit card numbers. PCI compliance. When you accept credit cards in your office, you also accept the responsibility of protecting cardholder data. Be sure your merchant solution is PCI compliant. PCI-DSS is the payment card industry’s security guidelines for merchants. More information can be found on the PCI Security Standards Council website, www.pcisecuritystandards.org.
About LawPay
The LawPay program, is a custom payment solution designed for attorneys. The LawPay program complies with ABA and state requirements for managing client funds. As a member benefit of the Dallas Bar Association, law firms save up to 20–25 percent off standard credit card fees. If you are currently accepting credit cards, we encourage you to compare your current processor with LawPay. To learn more contact (866) 376-0950 or HN www.LawPay.com/dallasbar.
Tracy Gavin is the Marketing Director for LawPay. She can be reached at tgavin@affinipay.com.
Court of Appeals at Belo
Spanish for Lawyers: Sign Up Now! 10-Week Course Spring 2015 | Cost: $180 January 6-March 10, 2015 For more information, contact Teddi Rivas at trivas@dallasbar.org or (214) 220-7447.
On September 15, justices from the Fifth District Court of Appeals heard a live oral agreement at the Belo Mansion in front of nearly 200 DISD students. DBA President Scott McElhaney (left) is shown with the presiding justices (left to right) Hon. Ada Brown, Hon. Michael O’Neill, Hon. Elizabeth Lang-Miers and Chief Justice Carolyn Wright.
~ In Memoriam ~
Since 1875, the DBA has honored recently deceased members by passing resolutions of condolences. This tradition continues through the work of the DBA Memorial & History Committee. To view the Memorial Resolutions presented to the families of deceased members, visit www.dallasbar.org. Hon. L.A. Bedford (1926-2014), a 1950 graduate of Brooklyn Law School Jay Brandt (1955-2014), a 1980 graduate of Southern Illinois University School of Law Tom Briggs (1943-2013), a 1969 graduate of the University of Texas School of Law Alan Bromberg (1928-2014), a 1952 graduate of Yale Law School Adelfa B. Callejo (1923-2014), a 1951 graduate of Southern Methodist University School of Law Garland Lamar Carnes (1920-2014), a 1948 graduate of Southern Methodist University School of Law Gordon Carpenter (1920-2014), a 1948 graduate of Southern Methodist University School of Law Lynn Carroll (1947-2013), a 1951 graduate of the Texas Wesleyan School of Law Hon. Jeffrey Coen (1951-2014), a 1976 graduate of Southern Methodist University School of Law Kenneth Fuller (1932-2014), a 1962 graduate of Southern Methodist University School of Law
Ray Hutchison (1932-2014), a 1959 graduate of Southern Methodist University School of Law
Jeffrey Raggio (1985-2014), a 2011 graduate of Southern Methodist University School of Law
Jerr y P. Jones (1931-2014), a 1959 graduate of the University of Texas School of Law
David Reed (1949-2013), a 1974 graduate of Southern Methodist University School of Law
William Keller (1924-2013), a 1950 graduate of Southern Methodist University School of Law
Anthony Riddlesperger (1932-2014), a 1954 graduate of Baylor Law School
James Knox (1928-2012), a 1953 graduate of Southern Methodist University School of Law
Richard Roberson (1954-2014), a 1978 graduate of St. Mary’s University School of Law
Kent McMahan (1946-2014), a 1971 graduate of Vanderbilt Law School
Morton Rudberg (1933-2013), a 1957 graduate of the University of Texas School of Law
Michelle Mendez (1961-2014), a 1987 graduate of George Washington University Law School
Robert Charles Ruhlin (1980-2014), a 2006 graduate of Ohio State University College of Law
George Milner (1934-2014), a 1959 graduate of Southern Methodist University School of Law
Michael Schmidt (1966-2014), a 1992 graduate of Oklahoma City University School of Law
Eugene H. Moore, Jr. (1947-2014), a 1972 graduate of the Baylor Law School
James Schnurr (1971-2014), a 1997 graduate of Mississippi College of Law
Robert H. Mow (1938-2014), a 1963 graduate of Southern Methodist University School of Law
Rowland Senter, Jr. (1950-2014), a 1983 graduate of South Texas College of Law
Frank Newman (1922-2013), a 1946 graduate of Yale Law School
Hon. Bill J. Stephens (1924-2014), a 1959 graduate of Southern Methodist University School of Law
Hon. Harr y T. Holland (1925-2014), a 1952 graduate of Southern Methodist University School of Law
William Odeneal, Jr. (1923-2014), a 1950 graduate of Southern Methodist University School of Law
Robert Strauss (1918-2014), a 20194111 graduate of the University of Texas School of Law
James H. (Blackie) Holmes (1935-2014), a 1959 graduate of Southern Methodist University School of Law
George Potts (1921-2014), a 1947 graduate of Southern Methodist University School of Law
Paul Donald Wilmath (1946-2014), a 1970 graduate of Southern Methodist University School of Law
N ove mb e r 2 0 14
Column
Dal l as Bar A ssoci ati on l Headnotes 17
Ethics
Understanding “Business Associates Agreements” by Martin Merritt and Ed Vishnevetsky
To take some of the mystery out of something called a “Business Associates Agreement” (BAA), we need to cover some background information. A medical record contains not one, but three kinds of sensitive information. First is the kind of sensitive, private information about a patient’s health. This is what most people think of when they think of physician-patient confidentiality. A medical chart also contains a second kind of sensitive information—basic financial data, such as social security numbers, credit card data and date of birth. This could be valuable to ordinary identity thieves. Finally, a chart contains diagnosis codes, health insurance plan identification cards and perhaps Medicare numbers. This kind of information is extremely valuable to highly sophisticated thieves who can steal hundreds of thousands of dollars using a single identity. This is why the government is so serious about HIPAA
and patient privacy. A “chain of trust,” occurs when a patient entrusts healthcare providers with personal financial, medical, and insurance information. The patient trusts that the provider knows how to protect medical privacy; but what about the law firm working for the provider, or the accounting firm which comes in contact with protected health information? Absent some vehicle, there is simply no duty to the patient on the part of companies providing services to the provider. BAA is designed to eliminate this problem. The government defines a business associate as “a person or entity, other than a member of the workforce of a covered entity, who performs functions or activities on behalf of, or provides certain services to, a covered entity that involves access by the business associate to protected health information.” In plain English, anytime a medical practice has a need in carrying on the affairs of the practice and allows some business to access to protected health
information (PHI), the provider is required by law to obtain a BAA before PHI can be disclosed. A BAA requires the business associate to become compliant with HIPAA much the same as the original provider. The HIPAA Business Associates Rule obligates the healthcare provider to enter into a BAA or contract with the business associate, before any PHI can be disclosed. The business associate promises to become compliant with HIPAA privacy, security and breach notification, much the same as the original provider. Thus, the provider is liable by direct government regulation; the business associate becomes governmentally regulated by contract. If the business associate refuses, the provider must simply find another business that is willing to agree to become HIPAA compliant. A business associate agrees to become directly liable under the HIPAA rules, and subject to civil and, in some cases, criminal penalties for making uses and disclosures of protected health information that are not authorized by
their contract or required by law. A business associate also becomes directly liable and subject to civil penalties for failing to safeguard electronic protected health information in accordance with the HIPAA Security Rule. As a general rule, law firms working for covered entities, usually a health care provider, must have a BAA between the law firm and the provider, and anyone else downstream in the chain of trust. If a law firm needs to hire an expert consultant who will be provided access to PHI, the law firm must obtain a BAA with the downstream consultant, and so on. You may find an example of a business associates agreement at the U.S. Department of Health and Human Services website by searching “Business HN Associates Agreement.” Martin Merritt serves as Executive Director of the Texas Health Lawyers Association and is a partner at Friedman & Feiger and can be reached at mmerritt@fflawoffice. com. Edward Vishnevetsky is a health care lawyer at Munsch Hardt Kopf & Harr, P.C. and can be reached at evishnevetsky@munsch.com.
DBA Peer Assistance Committee: How Lawyers Can Help by Joseph J. Wielebinski
The DBA has many committees that allow members to directly participate in a number of worthwhile endeavors and give back to our community and profession. Often overlooked is a committee that has taken a relatively low profile, but which plays a significant role in protecting the members of our legal community. The Peer Assistance Committee is designed to assist any lawyer having difficulty, or who is incapable of, practicing law due to drug or alcohol abuse, depression, or any other mental and psychological problems. Throughout the year, the Peer Assistance Committee hosts a number of educational programs to educate our members about these challenges. Its programs offer MCLE, usually in the form of ethics credits, and often involve speakers from outside the legal practice, including doctors, career counselors, nutritionists and other experts dedicated to identifying, treating and preventing these challenges from ruin-
ing lives and destroying careers. If you are asking yourself how large or pervasive this problem is, consider this: The Texas Lawyers Assistance Program (TLAP) notes that suicide is the third leading cause of death among lawyers and that the rate of death by suicide for lawyers is two to six times that of the general population. On November 21 at noon, all members are invited to attend “Secret Lives of Lawyers: How Addictive Behaviors Impact the Legal Practice.” Participation as a member of the Peer Assistance Committee goes beyond the development of CLE programs for the calendar year. Many of the members also are involved in other programs that are designed to help fellow attorneys, such as Lawyers Helping Lawyers and the State Bar’s Texas Lawyers Assistance Program. In 2015, Brian Farlow will Chair the Peer Assistance Committee. Brian is a major in the U.S. Army Reserves and was recognized recently by the State Bar of Texas for his article, “Battling Suicides and Depression: How
PRIMA FACIE The evidence speaks for itself. TLIE is the best in Texas. Texas Lawyers’ Insurance Exchange has been voted best professional liability insurance company in Texas four years in a row by Texas Lawyer magazine. TLIE is also a Preferred Provider of the State Bar of Texas and has returned $32,800,000 to its policyholders. With all of these accolades as well as being in the business for over 35 years, doesn’t TLIE make the BEST all around choice for you?
512.480.9074 / 1.800.252.9332
INFO@TLIE.ORG / WWW.TLIE.ORG
Lawyers Can Help.” The outstanding article focused on another profession similarly threatened by depression and suicide: the U.S. military. While many DBA members may be reluctant to join the Peer Assistance Committee because they are not personally affected or because of a concern that involvement means you have a problem. This is a misperception. Committee members want to help
address a serious and growing problem within our profession by offering outstanding CLE programs and learning ways in which to direct those in need to help. Please consider joining the Peer Assistance Committee in 2015 by contacting kzack@dallasbar.org HN Joseph J. Wielebinski is a shareholder at Munsch Hardt Kopf & Harr, P.C. He can be reached at jwielebinski@munsch.com.
18 H e a d n o t e s l D a l l a s B a r A s s o ciation
Column
Novem ber 2014
In The News
FROM THE DAIS
Joel Crouch and Charles Pulman, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke at the Fort Worth Chapter/TSCPA Tax Institute. Alan Davis spoke at the University of Texas Law 2014 Estate Planning, Guardianship and Elder Law Conference in Galveston; David Colmenero spoke at the TSCPA Texas State Taxation Conference in Houston; Trey Cousins spoke at the Woodland Owners’ Workshop in Diboll and at the TSCPA Advanced Estate Planning Conference in San Antonio; Joel Crouch and Sarah Wirskye spoke at the 2014 San Antonio CPA CE Symposium; Trey Cousins and Mr. Crouch spoke at the Panhandle Chapter/ TSCPA 2014 Tax Institute; Mr. Crouch and Josh Ungerman spoke at the Advanced Tax Law Course 2014 sponsored by TexasBarCLE in Dallas. Vincent Allen and David Carstens, of Carstens & Cahoon, LLP, hosted a CLE Luncheon with the Association of Corporate Counsel.
KUDOS
Elsa Manzanares, of Gardere Wynne Sewell LLP, was chosen by the Dallas Regional Chamber® to join the 40th Class of Leadership Dallas. Holland O’Neil was named one of five “Women at the Pinnacle of the Legal Profession” by the Association of Women Attorneys. Katherine Kinser, of Kinser & Bates, L.L.P., is the 2014 recipient of the Sam Emison Award bestowed by the Texas Academy of Family Law Specialists. Mandy Price, of Weil, Gotshal & Manges LLP, was selected by the Dallas Regional Chamber to participate in the 40th class of Leadership Dallas.
Elisabeth Wilson, of Winstead PC, was elected as a Fellow the Texas Bar Foundation and the American Bar Foundation.
Mary Irozuru and Kathryn (Kadie) Michaelis joined Winstead PC as Associates. Eleshea Lively joined as Of Counsel.
Colin Cahoon, of Carstens & Cahoon, LLP, was selected Policy Advisor for the Heartland Institute.
Jodi McShan opened the Law Office of Jodi McShan, PLLC at 6060 N. Central Expy., Suite 500, Dallas, TX 75206. (214) 800-2091.
Aaron Borden, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., was accepted as a member of the Dallas CPA Society 2014-15 Leadership Development Academy. Jason Freeman has been accepted as a member of the 2014-2015 State Bar of Texas Tax Section Leadership Academy. David Colmenero was named to the 20142015 Executive Board of the Texas Society of Certified Public Accountants and serves as Secretary of the 2014-2015 Tax Section Council of the State Bar of Texas. Jerri Hammer, of TravisWolff & Company, L.L.P., has been named Practice Group Leader, Business & Individuals Tax and Advisory. Cynthia Timms, of Locke Lord LLP, has been elected Chair of the Appellate Section of the State Bar of Texas. Kim Askew, of K&L Gates LLP, received the Southwest Jewish Congress Flame of Honor Award. Joseph F. Coniglio, of Greenberg Traurig, LLP, has been named Managing Shareholder.
MOVE
Theodore Baroody joined Carstens & Cahoon, L.L.P as Partner. Avia Rice Gauthier opened the Law Office of Avia Rice Gauthier, PLLC, 800 E. Campbell Road, Suite 157, Richardson, TX 75081. 214-377-0786.
Tarron Gartner-Ilai joined Amy Stewart Law as a Principal.
Darrell E. Jordan joined Diamond McCarthy LLP as Partner. Michael Gardner and Eric Haas have opened Gardner Haas PLLC at Two Lincoln Center, 5420 LBJ Freeway, Suite 1200, Dallas, TX 75240. (214) 415-3473. Andrea Perez joined Kessler Collins P.C., as Associate.
Cami Boyd joined Holmes Firm PC as a Shareholder.
Toby Eisenberg joined U.S. Trust’s Park Cities office as a Wealth Strategies Advisor.
Sean Cox joined Steckler, L.L.P. as Of Counsel.
Brian Kirkpatrick joined Scott & Scott, LLP as Associate.
Jacob McBride and J. Allen Roach joined Hiersche, Hayward, Drakeley & Urbach, P.C.
Micah Adkins joined The Adkins Firm, P.C. as a Member.
Russell F. Coleman and Zachary T. Jones joined Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. as a Partner and Associate, respectively. Starlett Carter, Melissa Case and Andrew Frank joined Sidley Austin LLP as Associates. D. Gilbert “Gil” Friedlander joined as Senior Counsel.
James Creedon and Melissa Gray joined Klemchuk Kubasta LLP as Associates. Jeffrey Harvey and Corey Weinstein joined the firm as Of Counsel. Brian P. Lauten joined Deans & Lyons, LLP as Partner. Esther Donald and Anita Savage joined Goranson Bain, PLLC.
Jason Schumacher joined Locke Lord LLP as Partner.
Stephen E. Fox joined Polsinelli PC as an Equity Shareholder.
Jennifer Beth Ingram joined Sally Beauty Holdings, Inc. as a Senior Attorney.
David Bamberger, Kristi Kautz and Jeffrey D. Smith joined Fletcher, Farley, Shipman & Salinas, LLP.
Justice Jim Moseley, who served on Texas’ Fifth District Court of Appeals, joined Gray Reed & McGraw.
David & Goodman P.C. merged with Fox Rothschild LLP.
2015 INAUGURAL OF Bradley C. Weber A T T HE W ESTIN G ALLERIA D ALLAS
United States Postal Service -- PS Form 3526 Statement of Ownership, Management, and Circulation
Saturday, January 17, 2015 The Dallas Bar Association will inaugurate its 106th President, Bradley C. Weber at the inaugural ball on Saturday, January 17. The black-tie ball will include dinner, dancing to music by the band New Ground and silent and live auctions.
Cocktails 6:30 p.m. | Dinner 7:30 p.m. Tickets $150; Tables $1,500 | Judiciary $100 To reserve your ticket, contact Shawna Bush at (214) 220-7453 or sbush@dallasbar.org. Visit www.dallasbar.org for more information!
(1) Publication Title: Headnotes. (2) Publication Number: 1057-0144. (3) Filing Date: September 19, 2014. (4) Issue Frequency: Monthly. (5) Number of Issues Published Annually: Twelve. (6) Annual Subscription Price: $30. (7) Complete Mailing Address of Known Office of Publication: 2101 Ross Ave., Dallas, TX 75201-2768. Contact Person: Jessica D. Smith. Telephone: 214-220-7477. (8) Complete Mailing Address of Headquarters or General Business Office of Publisher: 2101 Ross Ave., Dallas, TX 75201. (9) Full Name and Complete Mailing Address of Publisher: Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Full Name and Complete Mailing Address of Editor: Cathy Maher, Executive Editor, 2101 Ross Ave., Dallas, TX 75201. Full Name and Complete Mailing Address of Managing Editor: Jessica D. Smith, Editor, 2101 Ross Ave., Dallas, TX 75201. (10) Owner: Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. (11) Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities: None. (12) Tax Status: Has Not Changed During Preceding 12 Months. (13) Publication Title: Headnotes. (14) Issue Date for Circulation Data: September 1, 2014. (15) Extent and Nature of Circulation. (First number is Average No. Copies Each Issue During Preceding 12 Months; Second number is No. Copies of Single Issue Published Nearest to Filing Date). (15a) Total Number of Copies (net press run): 11,599; 15,130. (15b1) Mailed Outside-County Paid Subscriptions Stated on PS Form 3541: 1538; 1,548. (15b2) Mailed In-County Paid Subscriptions Stated on PS Form 3541: 9,150; 9,117. (15b3) Paid Distribution Outside the Mails Including Sales Through Dealers and Carriers, Street Vendors, Counter Sales, and Other Paid Distribution Outside USPS: 0; 0. (15b4) Paid Distribution by Other Classes of Mail Through the USPS: 0; 0. (15c) Total Paid Distribution: 10,688; 10,665. (15d1) Free or Nominal Rate OutsideCounty Copies Included on PS Form 3541: 306; 1,673. (15d2) Free or Nominal Rate In-County Copies Included on PS Form 3541: 456; 2,591. (15d3) Free or Nominal Rate Copies Mailed at Other Classes Through the USPS: 29; 44. (15d4) Free or Nominal Rate Distribution Outside the Mail: 71; 93. (15e) Total Free or Nominal Rate Distribution: 862; 4,401. (15f) Total Distribution: 11,550; 15,066. (15g) Copies not Distributed: 49; 64. (15h) Total: 11,599; 15,130. (15i) Percent Paid: 92.53%; 70.78%. (16) Publication of Statement of Ownership. Publication required. Will be printed in the November 1, 2014, issue of this publication. (17) Signature and Title of Editor, Publisher, Business Manager, or Owner: Jessica D. Smith, Editor. Date: September 19, 2014. I certify that all information furnished on this form is true and complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including civil penalties).
N ove mb e r 2 0 14
Dal l as Bar A ssoci ati on l Headnotes 19
Classifieds
November
EXPERT WITNESS
Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/ defenses, personal injury, moral damages, contract law, corporations. Coauthor, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. dlopez@pulmanlaw.com Economic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, business valuation, credit damage and divorce matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 5137113. troney@thomasroneyllc.com. “We Count.”
FOR SALE
Firearms Liquidation. Licensed and Insured FFL Class I and III. Get the most for your clients with the least liability. We purchase or sell on consignment. 5H Outdoors. David R Hunt, Sr. (214) 217-8398 DHuntSr@5HOutdoors.com.
OFFICE SPACE
Walnut Glen Tower (Walnut Hill/Central) Tasteful, bright, spacious offices in Class A building with views of downtown over lake with fountain. 16-story glass atrium with glass elevators and waterfall. Practice in a relaxed yet professional 4-lawyer environment which includes administrative stations, conference room, kitchen, copier, phone system, reserved garage parking, onsite restaurant and other amenities. Why not have quality of life while you practice? Please call (214) 750-1600 for details. Large office and/or secretarial office available at 4054 McKinney Avenue. Shared conference and break room, copier, fax, DSL & phone equipment are available if needed. No long term commitment and a monthly rate of $850.00 for the unfurnished large office and $300.00 for the furnished secretarial office. Call (214) 520-0600. Pearlstone Suites in the West End of downtown Dallas are unique new law offices combined with professional law firm marketing services to help attorneys launch or grow a solo practice or
small firm. Suites include these amenities at no additional cost: Direct dial phone with personalized voicemail and call forwarding, high speed Internet access, IT support, law office reception, on-site building security, conference rooms, kitchen and coffee service, fitness center, building directory listing, all utilities and CAM charges. Marketing services available include websites, branding, brochures, strategy, coaching and more. Pre-leasing discounts available. Visit www.pearlstonesuites.com or call (214) 446-3943. Offices available for rent with law firm located in Downtown Dallas Class A, arts district building. Amenities include conference room, law library, secretarial station, kitchen, parking garage, photocopy/scanner/postage/ facsimile and related amenities. Contact Laura at (214) 922-9265. Dallas Arts District: Offices available within law firm overlooking Klyde Warren Park. From 190 to 320 sq ft; shared space includes conference room, kitchen. Please respond to Dallas Bar Association, Box 14-09, 2101 Ross Avenue, Dallas, Texas 75201 or call (214) 220-1210 ext 102. Central Expressway | Park Cities – Varying sized offices and cubicles are available for rent. Office with several long-established law practices. Perfect for Solo practitioners and 2-to-3 partner groups. Your space comes with turnkey services, amenities and updated technology at affordable pricing. For pictures, floor plan and greater detail, please visit us at www.MeadowsLawCenter.com or call (214) 368-7880 Ext 4413. Highland Park/Uptown – Office with other well-established law firms. Fully furnished offices, receptionist, meeting rooms, utilities included, garage parking, walking distance to tons of restaurants and the Katy Trail. Prices starting at $400. Call Michelle at (214) 5597158. Office with window view available for rent with law firm located in Dallas Class A building near 635 & Coit. Amenities include use of 3 conference rooms, parking garage, photocopy/scanner/postage/facsimile and related amenities. Contact Aaron at (214) 3474259 or email info@hn-lawfirm.com.
POSITION AVAILABLE
Health Law Attorney Needed Experience in healthcare regulatory and payment matters - Medicare, Medicaid, licensing, transactional or criminal law services to healthcare providers. We prefer a problem solver with a disciplined work ethic, excellent writing skills, good attitude who is self-motivated and will participate in marketing
Need Help? You’re Not Alone.
Need Help? You’re Not Alone. Need Help? You’re Not Alone. Need Help? You’re Not Alone. Alcoholics Anonymous…………………………...(214) 887-6699
Texas Lawyers’ Assistance Program…………...(800) 343-8527 Texas Lawyers’ Assistance Program…………...(800) 699-9306 343-8527 Narcotics Anonymous…………………………….(972) Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Al Anon…………………………………………..…..(214) Texas Lawyers’ Assistance Program…………...(800) 363-0461 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) Mental Health Assoc…………………………….…(214) 699-9306 828-4192 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Crisis Hotline………………………………………..1-800-SUICIDE Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health 828-4192 Suicide Crisis Assoc…………………………….…(214) Ctr SMU.…………………………...(214) 363-0461 828-1000 Al Anon…………………………………………..…..(214) Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Metrocare Services………………………………...(214) Mental Health Assoc…………………………….…(214) 743-1200 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE SuicideHotline………………………………………..1-800-SUICIDE Crisis Ctr SMU.…………………………...(214) 828-1000 Crisis Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 DBA Peer Assistance Committee Metrocare Services………………………………...(214) 743-1200 Metrocare Services………………………………...(214) 743-1200 DBA Peer Assistance Committee
& seminar presentations. Please email resume to markskennedylaw@msn.com. Come practice law with (not for) a really great 14-lawyer firm in beautiful offices in Campbell Centre. Walk in the door and start practicing immediately. We will take care of virtually everything else. Bring your own staff or we will supply. Contact Steve Palmer @ (214) 2426440 or spalmer@pamlaw.com. See our website at www.pamlaw.com Business litigation firm seeks experienced trial attorney with first chair trial, deposition, and appellate experience. Some existing hourly clientele a plus. Compensation negotiable. Firm offers first rate office facility, a tenured, experienced support staff, and good work environment. Send cover letter and resume in confidence to oaklawnfirm@aol.com. Dallas County’s Community Supervision & Corrections Department (CSCD) is seeking a Director of Community Supervision and Corrections (IRC72529) Salary: $150,000 minimum. The Dallas County CSCD is a professional criminal justice agency that serves that the public under the authority of the criminal judiciary system. The CSCD is charged with public protection through the supervision of more than 50,000 offenders residing in Dallas County. Job Purpose: Provides strategic vision and tactical direction to directors, managers and supervisors in the effective development, implementation and attainment of the mission and goals of the department by: establishing departmental goals; developing strategic plans; providing effective leadership to a large staff; ensuring best practices are developed and implemented programmatically and financially; implementing strategies to recruit, motivate and retain a large staff of approximately 700 employees; and working effectively with elected judges to ensure compliance with applicable laws, statutes, and orders of the Courts. Qualification-Experience/Education: Minimum of a Bachelor’s degree in criminal justice, criminology, corrections, counseling, human services development law, law enforcement, political science, pre-law, public administration, rehabilitative studies, social work, psychology or sociology. Minimum of eight (8) years of experience as a Community Supervision/ Corrections Officer that includes the supervision of offenders in the field. Minimum of ten (10) years of related progressive, managerial experience resulting in a high level managerial role. Must obtain Texas CSO certification within one year. To apply, visit our website at www.dallascounty.org. You may forward a resume for consideration to: yulonda.fletcher@dallascounty.org. Salary commensurate with experience.
Legal Aid of NorthWest Texas (LANWT) currently has various openings throughout its firm at various locations. We are a Section 501(c)(3) nonprofit Texas Corporation. LANWT provides free civil legal services to eligible low-income residents in 114 Texas Counties. If you are interested in joining a great team that offers you the opportunity to rapidly develop litigation skills in court, a generous health benefits package, and the ability to be of service to others, we encourage you to visit LANWT’s career site at www.lanwt.org.
POSITION WANTED
Real Estate and Finance Attorney. Over fifteen years’ major firm experience representing lenders, buyers and sellers of commercial real estate, including multi-state portfolios. Fullor part-time. Willing to maintain own insurance. Dallas area. Prefer real estate section of law firm. cpant@verizon.net.
SERVICES
Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high-end watches. Consignment terms available @ 10-20% over cash. For consultation and offers please call J. Patrick (214) 739-0089. Established Dallas Photographer. Studio & On Location Portraits. 360 PanoTour Interface. Evidence Gathering Drone. Client Privacy. Consulting. Attorney References. blue line, 1410 Easton Road, Dallas 75218. (214) 7317028. www.bluelinestudio.us Email: fernandoandrez@att.net. Transfer Pricing Expert. William Seeger, PhD, is an economist with 23 years of experience, IRS and Big Four, providing Economic consulting services, Transfer Pricing Documentation, International Tax Planning advice, and Dispute Resolution guidance and strategy. His Dispute Resolution experience includes IRS field audits, Appeals, Competent Authority, and Advanced Pricing Agreements. Former Partner, PwC and KPMG, and Dallas District Industry Economist. Contact Dr. Seeger at Quantecon Consulting, (972) 422-9170 or visit www. Quanteconconsulting.com. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.
Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.
Teach the Law to Dallas ISD Students–Nov. 17-21 Volunteers are needed to teach in Middle School and High School classrooms this fall. Times and class sizes vary by school. Curriculum is available. Sign-up no later than October 27. Please email ktaylor@dallasbar.org with your available volunteer date(s)/times.
20 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
Novem ber 2014