Austin Lawyer, April 2017

austinbar.org APRIL 2017 | VOLUME 26, NUMBER 3

Bench Bar Conference Set for May 12 Bench Bar Beyond Draws More Than 30 Judges

MAY 12 27TH ANNUAL BENCH BAR CONFERENCE

BENCH BAR

BEYOND

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egister by May 1 for the 27th annual Bench Bar Conference sponsored by the Austin Bar Association and the AYLA Foundation. The conference will be held from 8 a.m. to 5 p.m. at the Austin Country Club on May

12, 2017. The annual conference provides local attorneys and judges the opportunity to interact outside the courtroom in a casual, discussion-oriented environment. More than 30 judges are planning to attend this year’s event. Obtain your continuing

AUSTIN COUNTRY CLUB 8 a.m. – 5 p.m.

TICKETS: austinbar.org

legal education and join us as we build congeniality between Austin’s bench and the bar.

Bench Bar Beyond will explore topics and current trends in the legal profession that will impact our future as lawyers. Earn 7.5

hours of CLE, including up to three hours of ethics in this day-long conference. The cost is $295 for members and $400 for non-members. Register and pay online at austinbar.org or pick up a registration form at the Austin Bar office. Registration includes breakfast, lunch, and happy hour, in addition to CLE and relationship building opportunities.

Also included is a pre-conference event. On Thursday, May 11, those registered for the conference are invited to attend a reception and tour of the Federal Courthouse at 501 W. 5th St. from AUSTINLAWYER 5:30 to 7Ap.m.

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Obtain your continuing legal education and join us as we build congeniality between Austin’s bench and the bar.

Past-President of Austin Bar Seeks President-Elect Position Election for the State Bar Office Held April 3 – May 2

BELLEGIE A UR

Baruch of Dallas.

Also running is Joe K. Longley of Austin, who was added to the ballot as a petition candidate after submitting the required number of signatures.

AR Ballots will be emailed on April 3, with the election AUSTIN LAWYER AL 2. AL concluding on May

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was recommended by the State Bar board’s Nominating and Elections Subcommittee and approved by the Board of Directors as an official candidate, along with Chad

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aura Bellegie Sharp was nominated by the Austin Bar Board to be a candidate for State Bar of Texas president-elect. She

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CONTENTS

AUSTINLAWYER APRIL 2017 | VOLUME 26, NUMBER 3 AL A L INSIDE FEATURED ARTICLES Bench Bar Conference Set for May 12

1

Bench Bar Beyond Draws More Than 30 Judges

Past-President of Austin Bar Seeks President-Elect Position Election for the State Bar Office Held April 3 – May 2

Nominating Committee Announces Officer & Board Candidates

5

Leadership Positions Are Currently Uncontested 7

Austin Bar Fee Dispute Committee Grateful for Volunteers

9

Austin Bar Members Run for State Bar Board of Directors Elections Held April 1– 30

12

Update on Recent Immigration Enforcement Issues

23

Corporate Sponsor: Why Anti-Virus is Not Enough

ONLINE

DEPARTMENTS 6 President’s Column 11 Opening Statement 13 Minority Bar Spotlight 14 Briefs 16 Third Court of Appeals Civil Update 17 Third Court of Appeals Criminal Update 18 Federal Criminal Court News 19 Federal Civil Court Update 20 AYLA 22 Ad Index

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NEWS & ANNOUNCEMENTS

EVENTS & MORE

Free Legal Advice Clinic for Veterans

MAY 12 Bench Bar Conference 8 a.m. – 5:30 p.m.

Austin County Club Register at austinbar.org

by May 1

Honoring Our Dedicated Volunteers

Austin Bar Member Directory

Final Print Edition Available in Mid-April

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AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION Leslie Dippel .............................. President Amy Welborn ............................ President-Elect Adam Schramek ....................... Secretary D. Todd Smith ............................ Treasurer Judge Eric Shepperd ............. Immediate Past President

AUSTIN YOUNG LAWYERS ASSOCIATION Katie Fillmore ........................... President Austin Kaplan ............................ President-Elect Jorge Padilla .............................. Treasurer Drew Harris ............................... Secretary Chari Kelly .................................. Immediate Past President

Austin Lawyer ©2017 Austin Bar Association; Austin Young Lawyers Association

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Austin Lawyer is an award-winning newsletter published 10 times a year for members of the Austin Bar Association. Its focus is on Austin Bar activities, policies, and decisions of the Austin Bar Board of Directors, legislation affecting Austin attorneys, and other issues impacting lawyers and the legal professionals. It also includes information on decisions from the Third Court of Appeals, CLE opportunities, members’ and committees’ accomplishments, and various community and association activities.

The views, opinions, and content expressed in this publication are those of the author(s) or advertiser(s) and do not necessarily reflect the views or opinions of the Austin Bar Association membership, Austin Bar Association Board of Directors, or Austin Bar Association staff. As a matter of policy, the Austin Bar Association does not endorse any products, services, or programs, and any advertisement in this publication should not be construed as such an endorsement.

Contributions to Austin Lawyer are welcome, but the right is reserved to select and edit materials to be published.

Please send all correspondence to the address listed below. For editorial guidelines, visit austinbar.org in the “About Us” tab.

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AUSTINLAWYER | APRIL 2017

Nominating Committee Announces Officer & Board Candidates Leadership Positions Are Currently Uncontested

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he Austin Bar Nominating Association Committee announced the candidates selected for the 2017–2018 Board of Directors. The new board, along with incoming President, Amy Welborn, will take office on July 1, 2017. Current Board Secretary, Adam Schramek, is running unopposed for president-elect, and current Treasurer, Todd Smith, is running unopposed for secretary. Rounding out the slate of officers is current Austin Bar Board member Kennon Wooten, a partner with Scott, Douglass & McConnico, who is running unopposed for treasurer.

The following candidates are

FROM LEFT: Wooten, Arriaga, Behara, Taylor, and Sapire

running unopposed for four twoyear positions on the Board of Directors from 2017–2019.

• Amanda Arriaga, Chief administrative officer of the Texas Department of Public Safety • Vasu Behara, Staff attorney

The new board, along with incoming President, Amy Welborn, will take office on July 1, 2017.

for the 250th District Court of Travis County • Amanda Taylor, of Counsel with Beck Redden • Gregory Sapire, partner with K&L Gates Any qualified member not receiving the nomination of the committee may be included on the ballot by submitting a written petition, signed by 75 members of the Austin Bar, requesting that such member’s

name be placed on the list of candidates. Written petitions must be submitted to the Austin Bar office by Monday, April 10.

If this occurs, ballots will be emailed from Ballot Box on Friday, April 28. The last chance to vote will be at the Bench Bar Conference on May 12 at the Austin Country Club. Otherwise, the candidates running uncontested will serve as officers from 2017–2018 and on the Board AUSTIN LAWYER from 2017–2019.

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PRESIDENT’S COLUMN LESLIE DIPPEL, ASSISTANT TRAVIS COUNTY ATTORNEY

Living the Lawyer’s Creed We Shall Not be Deterred by Fear

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anguage in the Lawyer’s Creed charges that we “shall not be deterred by any real or imagined fear of … public unpopularity nor be influenced by mere self-interest.” This sentence speaks to the duty between lawyer and client, but it applies equally to a larger context.

I was excited to attend the recent mid-year meeting of the American Bar Association. Bar leaders from across the country participated in discussion groups on implicit bias and diversity. I spoke with the President of the Missouri Bar, Dana Tippin Cutler, after her presentation. She used the phrase “courageous collaboration,” and it stuck with me.

Mark Twain famously wrote, “Courage is not the absence of fear, but the resistance to fear and the mastery of fear.” Physical courage, doing something despite the risk of injury, is one kind of courage. Moral courage requires us to take action for moral reasons despite the risk of adverse consequences. Twain challenged us with the statement, “[i]t is curious, that physical courage should be so common in the world, and moral courage so rare.”

Cutler told us about the African proverb, “run to the roar.” When hunting, lion herds in the African savannas sent older and weaker members of the pride in the opposite direction of the pack. The weaker lions had little strength to attack, but had loud roars. Working as a team, the lions roared as

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AUSTINLAWYER | APRIL 2017

potential prey approached, and the prey would run in fear in the other direction, right to where the stronger lions waited for them.

“Run to the roar” teaches that, when faced with danger, running right where you fear to go may be the only escape.

As lawyers, we collaborate daily. Uncertainty can exist in work groups and efforts to create change. In those discussions, we may feel vulnerable and fear judgment or criticism when expressing our viewpoints. Our fear of adverse consequences may be grounded in implicit biases.

Fear of not being accepted, liked, or agreed with may stop us from collaborating courageously. Cutler challenged us to ask ourselves hard questions. We start by not assuming we do not have biases, because we all have experiences we bring into our daily lives that collectively create the lens through which we view the world—some good and some bad. To collaborate courageously, we have to be aware that those implicit biases exist and then challenge their validity.

Ask what your firm is doing to ensure people of all races, genders, physical abilities, sexual orientations, and generational differences are successful. Is there a diversity committee? If not, create one. Do you go to lunch with the same person or group every day? Invite someone different. Do you have a go-to lawyer in the firm from whom you seek assistance? Collaborate with a different one. Did an interaction make you feel even the least bit uncomfortable? Ask yourself why.

Who are you mentoring? Can you widen your circle?

The Austin Bar Association’s Diversity Committee is in its seventh year of helping minority law students have access to robust clerkship programs. Led

by Judge Lora Livingston, Judge

“Run to the roar” teaches that, when faced with danger, running right where you fear to go may be the only escape.

We must continue to run towards what we fear in order to conquer it, because the real danger lies in ignoring implicit bias.

Thank you to the leaders of the Diversity program and the law firms who ran to the roar with us.

Eric Shepperd, Judge Orlinda Naranjo, Tony Nelson, Rudy Metayer, and myself, this program places first-year law students in a 10-week fellowship split between working for the judges in the Heman Marion Sweatt courthouse, and the law firms that sponsored the program. When the committee first began, Judge Livingston encouraged us not to sit and talk about what a great goal diversity is, but to do something to achieve it. Judge Shepperd brainstormed with us to work with firms to place law students into their clerkship programs.

Speaking for myself, I was afraid.

I was afraid we might not be successful in asking firms to offer positions outside of their traditional clerkship model. But we “ran to the roar.” And we should not have been surprised when Austin firms gladly answered the

call. Over the years, Armbrust & Brown; Dubois, Bryant & Campbell; Graves, Dougherty, Hearon & Moody; Jackson Walker; Lloyd Gosselink; Locke Lord; McGinnis Lochridge; Munsch Hardt Kopf & Harr; and Thompson Coe have contributed to this program and sponsored a law student. They not only contributed financially, but also by mentoring and providing the law students with an experience to help them become successful members of the bar.

We must continue to run towards what we fear in order to conquer it, because the real danger lies in ignoring implicit bias. Thank you to the leaders of the Diversity Fellowship Program and the law firms who ran to the roar with us. Together, we took a step towards minimizing implicit bias.

We hope the conversation is AUSTIN LAWYER only beginning.

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Austin Bar Fee Dispute Committee Grateful for Volunteers

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he Austin Bar Fee Dispute Committee is composed of attorney and non-attorney volunteers who mediate and arbitrate fee disputes between lawyers and clients as well as disputes between lawyers.

Provided for free by the Austin Bar, the committee offers this valuable community service to the citizens of Austin because

everyone has a right to be charged a fair and reasonable fee for legal services rendered. Clients and attorneys involved in fee disputes are treated professionally and fairly by the Fee Dispute Committee.

Achieving a mutually satisfying outcome for all parties is the primary goal and most often, conflicts are resolved before escalating to the point at which a client feels the need to file a grievance

NON-ATTORNEY MEDIATORS: Jacqueline Childress Kathy Lenox Mike Macari

with the State Bar of Texas.

Thank you to these dedicated committee members who faithfully give their time and expertise.

ATTORNEYS: Julia Benkoski Kenneth Davidson Carson Fisk Tom King Stephen Moss Anne Stanford

Members of the committee must have 40 hours of mediation training in order to serve. If you would like to become involved, please contact Marissa Lara-Arebalo at marissa@austinbar.org to AUSTIN LAWYER learn more.

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Austin Bar Members Run for State Bar Board of Directors

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he State Bar of Texas is governed by a board of directors who volunteer their time and professional experience. The board’s expertise allows the State Bar to provide high-quality services and programs to members and the public. The board receives no monetary compensation and is elected by State Bar members.

Ballots for district director elections will be mailed on April 1, and voting will continue through April 30. District 9 currently holds three places with directors: Lance Sharp, Place 1; Chris Oddo, Place 2; and Ann Greenberg, Place 3.

Sharp’s term is expiring and Austin Bar President Leslie Dippel and Austin Bar member Karl E. Hays are running to fill Place 1.

LESLIE DIPPEL Dippel leads the employment law section of the Travis County Attorney’s Office. Before joining Travis County, Dippel was a trial lawyer

with the Attorney General’s Office and a law clerk for U.S. Magistrate Judges Steve Capelle and Andy Austin. She joined Travis County following private practice with Brown McCarroll. Her practice emphasizes employment law.

Dippel has actively served the Austin Bar Association throughout her career, including her current position as president. She has chaired numerous committees and has been a member of the board of directors since 2007.

“It has been a privilege to serve this year as president of the Austin Bar Association,” said Dippel.

“I would be honored to represent Austin attorneys on the State Bar Board of Directors. Broadening the base of dedicated attorneys at the state level is necessary now more than ever. We need to be involved in the issues that are important to the members of the State Bar in order to maintain our integrity and provide the outreach and oversight that matters. It

would be my privilege to work at the state level to ensure Austin’s voices are heard.”

KARL E. HAYS Hays is a sole practitioner with more than Dippel 30 years of experience.

He is Board Certified by the Texas Board of Legal Specialization in Civil Trial Law, Civil Appellate Law, and Family Law. He serves as a member of the Family Law Council of the Family Law Section of the State Bar. A Life Member of the Texas Family Law Foundation, he has worked to advance the practice of family law and provide a voice for Texas families in the legislature.

He is an active and long-standing member of the Texas Academy of Family Law Specialists, the Travis County Family Law Advocates, and the Austin, San Antonio, and Williamson County Bar Associations. He is also a Fellow with the

Hays

American Academy of Matrimonial Lawyers.

“Every member of the bar has an obligation to do his or her part to insure the integrity of our profession and to protect our right to govern ourselves,” said Hays.

“As a solo practitioner, I am acutely aware of the need for solo practitioners and attorneys who practice in small firms to do their part to contribute to our profession and to the preservation of our right of self-governance. My goal will be to do my part to insure our continued right of self-regulation, and to protect and AUSTIN promote the best LAWYER interests of our profession.”

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AUSTINLAWYER | APRIL 2017

OPENING STATEMENT

Mastering the Dash How to Navigate Legal Writing Using the Em Dash

BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

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et’s get to know the dash. It’s good for breaks and pauses, emphasis and force.

In this column I’ll explain how to create the right dash, go over some rules, and discuss several good uses. I’ll also try to dispel a myth.

The dash discussed here is the em dash. It’s a long, horizontal punctuation mark—like these—and should be distinguished from the en dash – like these – a shorter mark with used in number ranges and some types of compounds. On a typewriter, you create a dash by typing two hyphens with spaces on either side -- like that. Are you using a typewriter? Then don’t use two hyphens. “Use real dashes,” says Matthew Butterick in Typography for Lawyers.1 To get the em dash in Microsoft Word, type two hyphens, leaving no space on either side. Word should automatically convert that into an em dash. If you put a space before and after the hyphens, Word will convert that into an en dash, which is the wrong mark. (Yet so many writers use spaces that the shorter en dash is ubiquitous despite being technically wrong.) You can also insert an em dash directly with the “insert symbols” function or with keystrokes: alt + 0151. On a Mac, hold down the shift and option keys and press the minus key. Note that copying and pasting sometimes converts an em dash to a hyphen—a glitch you’ll want to catch when you proofread.

Rules? The dash obeys few rules. It’s flexible. You can use it in place of commas, colons, parentheses, periods, and semicolons.

In place of a comma: • It was the seller who balked, not the buyer.

• It was the seller who balked—

not the buyer.

In place of a colon: • The courts assess three factors: purpose, type, and effect.

• The courts assess three factors—purpose, type, and effect.

A pair of dashes in place of a pair of commas or parentheses: • Calhoun’s statement, which was false, blamed the problem on Scoville.

• Calhoun’s statement (which was false) blamed the problem on Scoville.

• Calhoun’s statement—which was false—blamed the problem on Scoville.

The dash can even replace a period or semicolon, separating independent clauses: • Chen does not object to the fee. She asks that it not be disclosed.

• Chen does not object to the fee; she asks that it not be disclosed.

• Chen does not object to the fee—she asks that it not be disclosed.

With all these possibilities, how do you decide when to use a dash? Consider two key writing goals: breaks and emphasis.

According to June Casagrande in The Best Punctuation Book, Period, you can use the dash to indicate “breaks in a sentence,” or “a change of sentence structure or thought.”2 It signals a new direction, often abruptly, and might replace a heavier transition word: • Kaye will sell the yacht.

However, the buyer must have financing within 30 days.

• Kaye will sell the yacht—if the buyer has financing within 30 days.

Dashes also emphasize. In The Redbook, Bryan Garner calls the dash “a forceful and conspicuous punctuation mark.”3 In the earlier example about Calhoun’s

With all these possibilities, how do you decide when to use a dash? Consider two key writing goals: breaks and emphasis. statement, the paired parentheses downplay the inserted clause, the paired commas are neutral, but the paired dashes emphasize it.

Writers can use a single dash to point, and that pointing is emphatic. In the following examples, the second version highlights the lack of permission, and it’s all in the dash: • Jeffrey deleted the paragraph without checking with his co-author.

• Jeffrey deleted the paragraph— without checking with his co-author.

As for the myth—I’ve met lawyers and teachers who frown on the dash, saying it’s too informal for legal writing. One legal-writing teacher told me he won’t allow his students to use it.

I disagree. The dash is entirely appropriate for legal writing, especially persuasive legal writing. Yes, overuse might be a problem, so exercise judgment,

but youAUSTIN should add the dash to LAWYER your writing toolkit.

AL AL Footnotes: 1 Matthew Butterick, Typography for Lawyers 46 (2d ed. 2015).

2 June Casagrande, The Best Punctuation Book, Period 118, 119 (2014).

3 Bryan A. Garner, The Redbook: A Manual on Legal Style § 1.51 (3d ed. 2013).

APRIL 2017 | AUSTINLAWYER

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Update on Recent Immigration Enforcement Issues

BY KATE LINCOLN-GOLDFINCH

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n January, President Trump issued three executive orders relating to immigration entitled “Border Security and Immigration Enforcement Improvements” (Jan. 25, 2017), “Enhancing Public Safety in the Interior of the United States” (Jan. 25, 2017), and “Protecting the Nation from Foreign Terrorist Entry into the United States” (Jan. 27, 2017).

One month later, the Department of Homeland Security (DHS) issued two memos describing how those orders will be enforced: “Enforcement of the Immigration Laws to Serve the National Interest” (Feb. 20, 2017) and “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies” (Feb. 20, 2017).

The travel ban ordered in “Protecting the Nation from Foreign Terrorist Entry into the United States” made the biggest splash in the media because of chaotic implementation at U.S. airports. Visa holders and Lawful Permanent Residents alike from the seven banned countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) were denied entry and detained, refugees were turned away or not permitted to enter, and attorneys and protestors flocked to the airports to lend assistance.

Though not as splashy, the

Expedited Removal is a procedure that allows a DHS official to summarily remove a noncitizen without a hearing before an immigration judge. two remaining orders are more sweeping and propose a sea change in the enforcement of immigration within the United States. The memos outline a plan to implement mass deportation by greatly expanding enforcement priorities to include essentially every undocumented person in the United States because they include individuals who have not been convicted of any crime, but have committed the elements of a crime, which includes illegal entry. This is a departure from the priorities under the Obama administration, which prioritized felons and people with convictions for significant misdemeanors. The memos also seek to expand remote detention centers, mostly run by private, for-profit companies, call to hire more enforcement agents, and make asylum protection more difficult to obtain.

The most severe change is the plan to begin the application of expedited removal to anyone apprehended in the interior of the U.S. who cannot prove to the satisfaction of an Immigration

and Customs Enforcement (ICE) officer that he or she has been in the U.S. for longer than two years.

Expedited Removal is a procedure that allows a DHS official to summarily remove a noncitizen without a hearing before an immigration judge. See 8 U.S.C. § 1225(b)(1). To date, it has only been implemented by regulation to recent border arrivals—people who entered the country less than 14 days before their apprehension or who are apprehended within 100 miles of the border. The Executive Orders and memos plan will now apply to any noncitizen who is apprehended in the interior of the U.S. An ICE officer can accomplish an expedited removal within 24 hours. What this means is even the undocumented father of U.S. citizen kids, perhaps with a U.S. citizen wife, who is apprehended by ICE in Austin could be deported within a day— without due process, without the right to call his family, call his lawyer, or to see a judge—if he does not have evidence on him at the time of his arrest proving he has resided in the U.S. for

Kate Lincoln-Goldfinch is an immigration attorney at Lincoln-Goldfinch Law.

longer than two years. Needless to say, it will become necessary for undocumented immigrants to keep proof on them, at all times, of their time in the U.S. for longer than two years if they hope for due process in their deportation AUSTIN LAWYER proceedings.

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AUSTINLAWYER | APRIL 2017

MINORITY BAR SPOTLIGHT

Apply Now for LGBT Law Student Scholarship Austin Bar Foundation and the Austin LGBT Bar Association Offers Scholarship

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he Austin Bar Foundation and the Austin LGBT Bar Association are honored to announce the second annual LGBT Scholarship. The Foundation will award two $3,000 scholarships to two current law students, including 2017 graduates, enrolled at a Texas law school. The award is intended to help defray expenses of pursuing a law school education.

LGBT community or LGBT legal issues to: Attn: LGBT Scholarship Selection Committee Austin Bar Foundation 816 Congress Ave, Suite 700 Austin, Texas 78701 Applications must be postmarked by May 1, 2017. The

Foundation and Association will announce recipients in May 2017. Winners will be honored in person at the State Bar of Texas’ Annual Meeting to be held June 22, 2017 in Dallas. Applicants

should be prepared to attend the Annual Meeting. For more information, please contact Daniel Collins, treasurer, Austin LGBT Bar Association at dcollins.dc@ AUSTIN LAWYER gmail.com.

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The Foundation will award two $3,000 scholarships to two current law students, including 2017 graduates, enrolled at a Texas law school.

Eligible students must be enrolled at a public or private law school physically located in Texas, and have demonstrated some commitment or contribution to the LGBT community or LGBT legal issues. This criterion will be construed broadly to include activities consistent with the Austin LGBT Bar Association’s purposes of promoting education on issues relating to LGBT law, raising the profile and acceptance of LGBT individuals within the legal community, and promoting LGBT equality. The selection committee will also consider each applicant’s academic record and educational debt burden/financial need.

Application forms can be found at austinbar.org. Please complete the form and submit it, along with a current copy of a transcript (official or unofficial), resume, statement of financial need, and, most importantly, a statement of commitment or contribution to the

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APRIL 2017 | AUSTIN LAWYER 13 1/11/2017 3:18:37 PM

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Stephanie Kover Julie Deweese Lacey Kalbas Deborah Case Callie Haley Ben Mathews Christina De La Garza Taylor Yetter Josh Brown Karen Vladeck L.James Anderson Lauren DiLizia John Zuercher Paul Stellman

Jetel, Montes, Norman, Pepper, and Winstead

AWARDS Pete Winstead received the 2017 Philanthropy Day Special Recognition Award in recognition of his civic and charitable endeavors and commitment to making Austin better for all citizens. Winstead is a founding shareholder of Winstead PC. Chris Pepper has been named a Client Service All-Star for 2017

by BTI Consulting Group. Pepper is an Energy & Environmental Shareholder at Winstead, focusing on air quality and environmental matters and regulatory programs established by the Texas Commission on Environmental Quality and U.S. Environmental Protection Agency.

Pirkey Barber was named one of the top firms in the country for trademark law in the 2017 edition of World Trademark Review’s WTR 1000. Co-founders Louis T. Pirkey and William G. Barber were also honored individually with Gold status nationally in “Enforcement and Litigation.” Pirkey also received national Gold status for “Prosecution and Strategy.”

NEW TO THE OFFICE Giordani, Swanger, Ripp & Phillips hired Amy P. Jetel as a

new partner to the firm upon the retirement of partner Stephen Phillips. As a result, the firm’s name changed to Giordani, Swanger, Ripp & Jetel. Jetel specializes in inbound tax planning.

compliance matters. Ross focuses on real estate law, representing purchasers, sellers, borrowers, developers, landlords, and tenants in a variety of real estate transactions.

Dickson Wright announced that Joey Berger has joined the firm’s Austin office. Berger focuses on real estate and other transactional matters.

MOVING ON UP Thomas Queen, Paul Saenz, and Andrea Schutz announced the formation of their new law firm, Queen Saenz + Schutz. The firm will focus on corporate and business law, mergers and acquisitions, corporate finance, and commercial and technology transactions.

Former Texas State Supreme Court Justice Dale Wainwright joined Greenberg Traurig as chair of its Texas Appellate Group.

Wainwright focuses on clients in complex disputes in state and federal trial and appellate courts.

Gene Montes joined Parsley Coffin Renner. Montes focuses on administrative law in the area of public utility regulation.

Jackson Walker announced the election of Kimberly Gdula, Benjamin Rhem, and Cassie Ross to the firm’s partnership. Gdula focuses on commercial litigation, including contract actions, fiduciary litigation, and insurance defense.

Rhem focuses on energy and environmental law, advising power generation, oil and gas, and mining companies in state and federal

Parsley Coffin Renner announced Kate Norman has been named partner of the firm. Norman represents natural gas, electric, and telecommunications utilities in complex administrative litigation.

Allensworth & Porter promoted Will W. Allensworth to partner.

Allensworth focuses on construction law with a particular emphasis on payment claims, design, and construction defect litigation, professional liability and registration, and appellate work.

Patrick Pearsall was elected as a shareholder to Winstead PC. Pearsall focuses on public regulatory and environmental law.

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THIRD COURT OF APPEALS CIVIL UPDATE

Laurie Ratliff is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization and is a shareholder with Ikard Golden Jones. From 1998 through 2001, she was a staff attorney with the Third Court of Appeals.

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The following are summaries of selected civil opinions issued by the Third Court of Appeals during February 2017. The summaries are intended as an overview; counsel are cautioned to review the complete opinions.

Subsequent histories are current as of March 7, 2017.

PUBLIC INFORMATION ACT: Redundant remedies doctrine bars ultra vires claim.

McLane Co., Inc. v. TABC, No. 0316-00415-CV (Tex. App.—Austin Feb. 1, 2017, no pet. h.). McLane

submitted a PIA request to TABC. AG ruled that TABC must release the information with two exceptions. TABC challenged the AG’s ruling and McLane intervened.

McLane contended TABC’s chief administrative officer acted ultra vires. The trial court granted TABC’s and CAO’s pleas to the jurisdiction on immunity grounds.

According to the court of appeals, the “redundant remedies doctrine” precludes an action under the UDJA when the same claim could be pursued through different channels. McLane already had a statutory remedy under the PIA to compel production of the documents and thus, its redundant ultra vires claim under the UDJA was not justiciable. The court affirmed.

HEALTHCARE LIABILITY ACT: Expert report that fails to implicate defendant cannot be cured.

Post Acute Med., LLC v. Montgomery, No. 03-15-00807-CV (Tex. App.—Austin Feb. 10, 2017, no pet. h.). Montgomery sued after his wife died during a post-operative stay at a rehab hospital. Hospital challenged Montgomery’s expert report.

The trial court denied hospital’s motion to dismiss and granted Montgomery a 30-day extension to cure. The trial court denied hospital’s challenge to the second report. The court of appeals noted that to be a deficient but curable report, it must implicate

defendant’s conduct. One expert report addressed the surgeon’s conduct; the other report addressed post-surgical care and the cause of death. Neither report opined about the merits of Montgomery’s claims against the hospital. The court concluded the reports were “no report” as to the hospital and thus did not meet the standard for a curable expert report. The trial court had no discretion but to dismiss with prejudice. The court reversed and rendered.

ADMINISTRATIVE LAW: Court reveres cost-of-good-sold calculation.

Hegar v. Autohaus LP, LLP, No. 03-15-00427-CV (Tex. App.— Austin Feb. 24, 2017, no pet. h.).

The dispute in this franchise tax protest is Autohaus’s inclusion of labor costs for repair work to install auto parts in its cost-ofgoods-sold determination. The trial court found that Comptroller Rule 3.588(b)(7) was unconstitutional and granted Autohaus’s motion for summary judgment and denied comptroller’s motion.

According to the court of appeals, for transactions involving a sale of tangible property and a service, a taxpayer can only subtract costs allowed by Rule 3.588. The dispute centered on whether the repair labor costs are costs of “producing the goods.”

The court concluded that Autohaus did not produce the auto

parts by installing them. Thus, the repair labor costs were not costs of producing already-completed auto parts, but instead were services that are excluded from cost of goods sold. The court vacated and reversed in part and rendered in part.

TRIAL PROCEDURE: Absence of conditional language creates mutual promises.

Daneshjou v. Kasling, Hemphill, Dolesal & Atwell, L.L.P., No. 03-16-00664-CV (Tex. App.— Austin Feb. 23, 2017, no pet. h.) (mem. op.). Law firm sued to recover unpaid legal fees. The parties’ mediated settlement agreement provided payment terms and for dismissal of the lawsuit. Client failed to pay and law firm filed a motion to enforce. Client also filed a motion to enforce, contending law firm breached the MSA by not dismissing the lawsuit. The trial court granted law firm’s motion and denied client’s. The court of appeals observed that to make performance conditional, an agreement must use terms such as: “if, provided that,” or “on condition that.” Without such language, terms are promises not conditions. The MSA contained no conditional language. Thus, the court concluded that the parties’ obligations were mutual promises, not a condition precedent uponAUSTIN client’s obligation LAWYERto pay. The court affirmed.

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THIRD COURT OF APPEALS CRIMINAL UPDATE

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The cases summarized are from October 2016 and subsequent histories are current as of March 1, 2017.

INEFFECTIVE ASSISTANCE OF COUNSEL: Defendant not prejudiced by counsel’s failure to advise him of the effect that no-contest plea to assault family violence would have on any future military service.

Ex parte Riley, No. 03-16-00350CR (Tex. App.—Austin Oct. 11, 2016, pet. ref’d) (mem. op., not designated for publication). Riley pleaded no contest to the offense of assault family violence and was placed on deferred-adjudication community supervision for one year. Subsequently, Riley filed an application for writ of habeas corpus asserting that his plea was the result of ineffective assistance of counsel and was therefore involuntary. One of Riley’s contentions was that counsel had failed to advise him of the “military consequences” of his plea. Riley testified at the habeas hearing that, when he asked counsel what effect accepting the plea would have on his ability to join the Marines, counsel told him that “it would not be a problem at all.” However, Riley’s counsel testified that he “didn’t ever remember discussing [the military consequences of a plea] with Mr. Riley,” although he recalled discussing the issue with Riley’s mother. The trial court denied the habeas application. On appeal, Riley did not contend that Campbell gave him inaccurate advice. Instead, Riley argued that any adverse effects on eligibility for military service are such a serious consequence that, as with immigration consequences, “counsel is not free to simply remain silent on these issues if they are implicated in a plea agreement.” However, the appellate court did not need to decide whether counsel’s advice was deficient in that regard because Riley had failed to demonstrate prejudice. The court observed that “neither the application for writ of habeas corpus nor Riley’s affidavit

indicate[d] that Riley placed any particular emphasis on the effect of accepting the plea on his future military eligibility.” Instead, Riley averred that he was “scared of being charged with a felony” and “took the deal” for that reason.

Additionally, the court concluded that the record supported a finding by the trial court that it would not have been rational under the circumstances for Riley to reject the plea. Because Riley essentially confessed to committing the crime, “the likelihood of a conviction for assault family violence after trial was high,” but, “[b]y taking the plea and agreeing to deferred-adjudication community supervision, Riley was able to entirely avoid jail time and not be convicted of assault.” Thus, Riley had failed to demonstrate prejudice, and the appellate court affirmed the denial of relief.

RIGHT TO INTERPRETER: Trial court did not abuse its discretion in denying Spanish-speaking defendant services of interpreter during pretrial hearing when defendant’s trial counsel was able to translate proceedings.

Ramirez v. State, No. 03-1500727-CR (Tex. App.—Austin Oct. 21, 2016, no pet.) (mem. op., not designated for publication).

Ramirez was charged with aggravated assault with a deadly weapon. Although a translator was provided during trial, Ramirez’s counsel served as the interpreter during a pretrial hearing. On appeal, Ramirez asserted that he was denied his right to have the hearing interpreted as guaranteed by the Sixth Amendment and article 38.30 of the Code of Criminal Procedure. Specifically, he argued that his attorney did not translate the services verbatim and, moreover, that the record failed to show whether his attorney was truly bilingual or “had a good grasp of the Spanish language.” Observing that the trial court has “wide discretion in determining the adequacy of interpretive services,” the appellate court found Ramirez’s complaints to be without merit. As an initial

matter, the court observed that nothing in the record of the hearing revealed that Ramirez objected to the trial court’s procedure or requested that a different interpreter be used. Moreover, the record showed that Ramirez “understood the proceedings because . . . Ramirez answered all of the questions posed to him by the court and similarly responded to statements made by the State.”

For example, after Ramirez’s attorney informed the court that Ramirez wanted to proceed to Zak Hall is a staff attorney for the Third trial, and after the State read what Court of Appeals. The summaries represent the views of the author alone the terms of its plea offer were, and do not reflect the views of the Court or Ramirez responded, “Okay. Yes. any of the individual Justices on the Court.

I understand that and I’m not accepting that.” The court also noted that article 38.30 of the Code of Criminal Procedure does not require that an interpreter be licensed or certified in order to serve as a translator. According in the record . . . that contradicts to the court, “The district court that conclusion.” Accordingly, determined that Ramirez’s attorthe judgment of conviction was ney could adequately serve as an AUSTIN LAWYER affirmed.

AL AL interpreter, and there is nothing

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Keel Former District Judge

Mediator Arbitrator

patrickkeel.com (512) 293-0300 APRIL 2017 | AUSTINLAWYER

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FEDERAL CRIMINAL COURT NEWS

How Long Will This Be On My Record?

BY DAN DWORIN

Dan Dworin is a criminal defense attorney licensed in the Western District of Texas since 1997. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. dworinlaw.com.

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ften, people seeking jobs, trying to lease a residence, or applying for professional licenses become concerned about whether some past legal mishap will hurt their chances. Some assume a very old arrest record won’t show up on some type of

background check and are unpleasantly surprised when it does.

Defense attorneys always seek a result which causes the least amount of long-term negative consequences to the client. The best possible result is one in which the charge is dismissed prior to trial, but even that does not guarantee the client’s public record (which includes arrests not resulting in conviction) will be spotless.

In Texas, a criminal defendant who is acquitted at trial or whose case is dismissed under certain circumstances may be eligible for the relief known as “expunction.”

When granted, the agencies having records of the arrest must destroy those records, and the client is legally able to deny the occurrence of the arrest under most circumstances.1 This type of relief does not, contrary to urban mythology, apply to old convictions.

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AUSTINLAWYER | APRIL 2017

If a case is dismissed by the State prior to trial, the eligibility for expunction does not arise until either the statute of limitations for the offense has run out, or if a prosecutor is willing to certify in writing that the records are no longer needed, usually as a matter of policy or principle. Unfortunately, this means some defendants never get around to getting their eligible cases expunged because they have to wait such a long time they forget all about it.

If a case is dismissed but the defendant entered a plea or was otherwise found guilty or placed on a formal court-ordered probation for another offense arising out of the arrest, the dismissed charge cannot be expunged. This comes as a surprise to some defendants who choose to enter an agreement to plead to a reduced charge in exchange for dismissal of another charge. Such a plea agreement is often advantageous to avoid various collateral consequences, regardless of the expunction issue, but counsel should carefully explain that expunc-

tion of the dismissed charge will not be possible under the current state of the law.

Many defendants assume when a case is dismissed it is automatically removed from the public record.

This is not the case, and there is no “right” to expunction as such. It is affirmative relief the defendant must seek on their own, and courts do not appoint counsel for such matters (although some lawyers, myself included, do occasionally accept pro bono expunction cases through Volunteer Legal Services).

I’ve learned to be skeptical when clients talk about a prior offense that was expunged. Generally they mean dismissed, and perhaps eligible for expunction. But all too often people fail to avail themselves of that service until it is too late and the old arrest record has popped up either in a background check, or in a prosecutor’s file as part of the client’s criminal historyLAWYER reviewed by AUSTIN a prosecutor in a newAcase.

L AL Footnotes: 1 Texas Code of Criminal Procedure art. 55.01.

FEDERAL CIVIL COURT UPDATE

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The following are summaries of selected civil opinions issued by the U.S. District Court for the Western District of Texas during February 2017. These summaries are intended as an overview only, and counsel are cautioned to review the complete opinions.

ARBITRATION: Challenges to entire arbitration agreement must be resolved by arbitrator, not court.

Hobzek v. HomeAway, Inc. et al., No. 1:2016-cv-01058 (W.D. Tex. [Austin] Feb. 3, 2017). In a putative class action alleging racial discrimination, defendants moved to compel arbitration based on arbitration agreement contained in online terms and conditions, to which plaintiff had agreed by clicking to indicate acceptance. Arbitration agreement also contained prohibition against class actions. Court found that arbitration agreement demonstrated parties’ clear and unmistakable intent to arbitrate the issue of arbitrability. Court determined that plaintiff’s challenges were to arbitration agreement as a whole, not specifically

to delegation clause, and thus must be decided by arbitrator.

Motion to compel arbitration granted.

INTELLECTUAL PROPERTY LAW: Summary judgment granted on copyright infringement claim for unlicensed public performance

by DJ and/or karaoke machine.

EMPLOYMENT LAW: Hearsay evidence acceptable in conditional certification for FLSA collective action.

Contreras et al. v. Land Restoration LLC et al., No. 1:2016cv-00883 (W.D. Tex. [Austin] Feb. 17, 2017). Manual laborers formerly employed by defendant’s landscaping business moved for conditional certification of collective action under Fair Labor Standards Act (FLSA) based on lack of overtime pay. Defendants objected on hearsay grounds, contending that plaintiffs did not have personal knowledge of, e.g., hours worked by or wages paid to former coworkers. Noting leniency of evidentiary standards at conditional certification stage, Court granted plaintiffs’ motion. In consideration of plaintiffs’ representation that class would consist largely of non-English-speaking immigrant workers, Court also approved request to include language, in both Spanish and English, regarding right to be free from retaliation and inquiry into immigration status in notice to class.

Broadcast Music, Inc. et al. v.

Bentley et al., No. 5:2016-cv00394 (W.D. Tex. [San Antonio] Feb. 28, 2017). Copyright owners of various musical compositions sued establishment for copyright infringement based on unlicensed public performance of 12 copyrighted compositions by DJ and/or karaoke machine. Plaintiffs sent 32 letters to owner of establishment over a three-year period to request that license be renewed and then sent investigator to establishment to obtain photo and audio evidence of infringement.

Plaintiffs moved for summary judgment. Defendants did not respond. Court noted that, although judgment cannot be granted solely on grounds that motion is unopposed, facts raised by moving party may be considered undisputed when facts are supported by evidence and nonmoving party fails to respond. Court found every element of copyright infringement claim was satisfied either by defendants’ admission or through substantial evidence presented by plaintiffs. Summary judgment

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AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN KATIE FILLMORE BUTLER SNOW

A Supreme Experience

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n March 1, 2017, I had one of the most exciting experiences of my legal career: I was admitted to the Bar of the U.S. Supreme Court in open court.

Over the course of law school and my legal career, I’ve read countless opinions authored by the U.S. Supreme Court. In my law school constitutional law class, we pored over every word and debated and discussed the most nuanced details of the artfully crafted opinions. We talked about each justice’s ideologies and their personal stories to glean insight into this most elusive branch of the U.S. government.

I marveled over the wisdom and brilliant legal justification which they breathed into their opinions.

I could only imagine what it would be like to be in the courtroom.

The Supreme Court has never allowed cameras in the courtroom; the only way to truly see what it is all about is to see it in person. So the opportunity to appear before the Court was a once-in-a-lifetime experience I couldn’t pass up.

The opportunity certainly did not disappoint. From start to finish, my trip was a special experience. I was joined in D.C. by my family—my parents, who traveled from Dallas, and my sister, who traveled from New York City. My dad is a member of the Supreme Court Bar and offered to move for my admission, so we made it a 20

AUSTINLAWYER | APRIL 2017

family affair.

We arrived at the courthouse early in the morning and walked up toward the tall Corinthian columns which give the building its monumental appearance. We were guided through a series of rooms in the courthouse, including the admissions office and a beautifully decorated conference room, and we were briefed by clerks of the Court on what to expect.

Finally, we were escorted into the courtroom and seated in the front row, which I learned is the prime seating reserved as a privilege for members of the Supreme Court Bar. The courtroom was surprisingly small, considering the enormity of the decisions rendered, but it was packed to the brim with spectators. The room grew silent as the large clock that hangs above the bench approached 10 a.m. All eyes were on the thick, red velvet curtains behind the bench, waiting for the justices to emerge.

Promptly at 10 a.m., the clerk announced, “Oyez, oyez!” All were ordered to stand and the justices filed in to take their places in high-backed leather seats. It was a surreal experience to see the justices, whom I’ve read so much about, right before my eyes!

Justice Kagan was the closest to where I was seated—only about five feet away. Only eight justices were present, as Justice Scalia’s former seat has yet to be filled.

Chief Justice Roberts called the Court to order. The first order of business was the reading of the opinion being released that day: Bethune-Hill v. Virginia State Board of Elections, addressing gerrymandering in voting districts.

Justice Kennedy read aloud the summary that prefaces the Court’s opinion.

The next order of business was attorney admissions. My dad was the first to be called to the podium to move for my admission to the Court. My dad recited words from a script provided by the admissions clerk, changing the script ever so slightly to add “daughter” before my name and to state that he “proudly” moved for my admission. Although the clerk had advised not to vary from the script, I think the justices were pleased with the slight amendment because they all smiled when they learned it was my dad moving for my admission.

Per the clerk’s direction, I stood comments that prompted laughter when my dad announced my from the audience. For instance, name. Upon the completion of my an argument regarding legisladad’s recitation of the scripted tive history struck a nerve with affirmation of my qualifications Justice Alito and he responded, for the bar, Chief Justice Roberts “You know, our colleague Justice announced that I was admitted.

Scalia is not here any longer, but Several other candidates were he would be having a fit at this presented for admission after me. point.” At another point, counsel Once all had been presented, we was attempting to argue a very stood in unison to take the oath narrow interpretation of language to become official members of the from a previous Supreme Court U.S. Supreme Court Bar. case to suggest that it should The third and final order of not apply to the present case, business for the Court was to hear and Justice Kagan responded by oral argument in Coventry Health asking the attorney rhetorically if Care of Missouri v. Nevils. The he thought the justices were just issues presented in the case were “careless with [their] words” for whether the Federal Employee including that language in the Health Benefits Act (FEHBA) opinion. When oral arguments preempts state law that prohibits concluded, everyone stood as the insurance companies from claimhigh court was dismissed and filed ing the proceeds of personal inback behind the curtains. jury settlements pursuant to their I left the courthouse with a contracts and whether the express feeling of awe over what I had preemption clause of FEHBA just witnessed and the fact that I violates the Supremacy Clause. had stood before the highest court The arguments lasted about an of our land. It was a huge honor, hour, during which the justices and at the same time humbling, to (except for Justice Thomas) get to stand before these brilliant asked questions of the attorneys. legal minds. It was a day I will not The justices had tough, pointed AUSTIN LAWYER forget. questions and also several witty AL AL

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Candidates for 2017-2018 Board of Directors

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The Austin Young Lawyers Association announces its unopposed candidates for the 2017-2018 Board of Directors.

Having no contested races, these AYLA officers and members of the Board of Directors will take office on July 1, 2017.

AYLA PRESIDENT: Austin Kaplan, founder of Kaplan Law Firm AYLA PRESIDENT-ELECT: Jorge Padilla, partner at Jackson Walker AYLA TREASURER: Sandy Bayne, founding partner of BayneLaw and of-counsel with GilesAseron

AYLA SECRETARY: David King, associate at Graves, Dougherty, Hearon & Moody The following will serve a twoyear term, joining Andrew Cates, Franklin Hopkins, Rachael Jones, and Erin Smith on the AYLA Board of Directors.

Francesca Di Troia, associate at Nunis & Associates Brittani S. Miller, litigator for Texas Municipal League Intergovernmental Risk Pool Monica B. Stallings, associate at the Law Office of Nikki Maples

TOP ROW: Kaplan, Padilla, Bayne, and King BOTTOM ROW: Di Troia, Miller, Stallings, and Leake

Blair Leake, associate at Wright AUSTIN LAWYER & Greenhill AL AL

AYLA Speed Networking and Wine Tasting Event

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n February 8, 2017, more than 100 AYLA members participated in speed networking and wine tasting at the Infinite Monkey Theorem Urban Winery.

Hosts Mike Golden and Steve Foster presented the science and art of effective networking strategies, discussing topics such as how to make a meaningful introduction and how to break into a group. After each discussion, the hosts turned it over to participants to practice the techniques.

The feedback from attendees was unanimously positive with many commenting this was their favorite AYLA event to date.

Participants loved the opportunity to be “forced” out of their comfort zones to meet new contacts. Many attendees stayed for hours after the event ended, continuing in conversation with the new contacts they had met.

Given the success of the event, more networking activities will be implemented in the future to help young lawyers feel even more comfortable initiating conversations to meet someone new.

This event was made possible thanks to a generous grant from the Texas Young Lawyers Association, in-kind sponsorship from the Infinite Monkey Theorem, and our excellent presenters, Mike Golden AUSTIN LAWYER and Steve Foster.

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UPCOMING EVENTS THURSDAY, APRIL 13 AYLA Wills/Estates Basics CLE 5:30 to 7 p.m.

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Why Anti-Virus is Not Enough

BY JETT HANNA, SENIOR VICE PRESIDET OF TLIE

I

n a recent TLIE claim, a lawyer was engaged to close a transaction. On the day before closing, the lawyer received an email from the seller asking for the funds to be wired to a different bank than originally requested. The lawyer complied with the request, but the seller later complained he had not received the money, and that he had not sent the email with new wiring instructions. A jury found the lawyer 100 percent liable for the loss of the funds.

A case like this makes clear that lawyers simply cannot farm out all technology issues to technology professionals and assume that they will be protected. Lawyers and their staff must be trained to spot unusual occurrences and avoid misuse of technology. The nature of threats which may not be prevented by anti-virus and other security software varies greatly.

CONTENT OF EMAILS The content of emails can come back to haunt lawyers in malpractice cases. A recent Texas case resulted in a $200 million verdict and emails among lawyers that mocked the client appear to have influenced the verdict.

Lawyers should remember that emails are often discoverable,

even when the lawyers might think they are protected as internal discussions. A body of law is developing nationally permitting lawyers to discuss potential ethical or malpractice concerns with either an internal counsel or an outside lawyer under privilege, but no Texas cases have yet opined on the availability of a privilege for such discussions.

MALICIOUS ATTACHMENTS AND WEBSITES A Toronto law firm lost six figures because of email-related phishing. The firm’s accountant was presented with an email which purported to be from the bank, with a link asking the accountant to log in.

Clicking on the link, the accountant saw a screen which looked just like her usual bank screen, and she tried to log in.

However, she received an error message, with instructions to call a number. The webpage presented to the accountant was not in fact the bank’s website, but rather one designed to steal her password information.

Emails frequently have links to websites that they are not what they purport to be. The links may either execute an attachment to the email which will infect the comput-

TLIE has been a source of reliable, affordable legal malpractice insurance for Texas lawyers and judges for more than 30 years.

Jett Hanna can be reached at 800.252.9332. er in some manner, or will lead to a phony website designed to steal user information (phishing).

sive technology security plan designed to use effective safeguards, both technical and practical.

CONCLUSION In this short article, we can only scratch the surface of methods to get around anti-virus to hack into law firm systems. It is vital that all law firm employees be alerted to potential technology security issues, and to the importance of using technology wisely. Firms should further have a comprehen-

1 www.mahanyertl.com/2015/ breaking-news-andrews-kurth-legal-malpractice-verdict 2 www.newyorklegalethics.com/ keeping-the-privilege-a-primeron-the-stock-decision/ 3 www.hg.org/article.asp?id=33074

Footnotes:

APRIL 2017 | AUSTINLAWYER

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