Page 1 DEC. 2016 / JAN. 2017 | VOLUME 25, NUMBER 10

Join us… Among the Whisperings and the Champagne and the Stars for a Gatsby-Themed Gala


he 15th Annual Austin Bar Foundation Gala is set for January 28, 2017 at the Four Seasons Hotel. With both a live and silent auction, the Gala raises funds for a multitude of Foundation projects, including Austin Adoption Day, the Justice Mack Kidd Fund, the Diversity Fellowship Program, and a variety of grants for law-related charities. Each year, the “Fund a Need” auction is held to raise money for a specific project. This year, the recipients of the Fund a Need auction will be the Foundation’s Free Legal Advice Clinic for Veterans, and the Self-Represented Litigant Project. The Gala also features the presentation of awards honoring Austin lawyers who have excelled in their profession and service to the community. The Foundation is pleased to announce this year’s awards and recipients: DISTINGUISHED LAWYER AWARD

The Distinguished Lawyer Award recognizes the dedication and hard work of two attorneys who have practiced law for 30 years or more and have significantly contributed to the legal profession and the greater community.

and the awards gO tO . . .

David Hilgers

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DAVID HILGERS A native Austinite, David Hilgers attended The University of Texas School of Law, graduating Order of the Coif in 1973. After a year as a briefing attorney for Chief Justice Joe Greenhill of the Supreme Court of Texas, he joined his father, William B. Hilgers, in legal practice in 1974. The firm later merged with Hilger’s longtime partner, Tom Watkins, to form Hilgers, Watkins and Kazen. Hilgers became managing partner in 1980, continuing until 2014. In 2004, the firm merged with Brown McCarroll and later with Husch Blackwell. He has served on the firm’s board since 2004, and as chair of the board since 2010.

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He became involved in the Health Law Section of the American Bar Association (ABA) where he served in various offices such as chairman of the Continuing Legal Education Committee, and as treasurer, vice-chair, chairelect, and chair of the Health Law section. He later became involved with the greater ABA as a member of the Section Officer’s Council and as chair of the Section Officers Council’s Chairs. Currently, he is continuing his work with the Health Law Section as chair of the Sponsorship Committee and has recently been appointed to the ABA Standing Committee on Legal Aid and Indigent Defendants. This appointment allows Hilger to continue his long-time interest in legal aid. Since the 1980s, he has served on, and chaired, the boards of both the Travis County Legal Aid Society and Texas RioGrande Legal Aid. Throughout his career, Hilgers has been involved in the community supporting organizations such as Austin Community Nursery

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Schools and Planned Parenthood Federation of America Western Regional Council. He served on Planned Parenthood of Texas Capital Region’s Board of Directors for many years, serving as president in 2004. He served on both the local and national boards for Recording for the Blind and Dyslexic, serving as president of the local board for one term. He was president of the St. Stephen’s Parents Association and served on the Swarthmore Alumni Council. Currently, he is on the board of Patient Privacy Rights, where he has served since 2010. continued on page 8



Join us . . . Among the Whisperings and the Champagne and the Stars for a Gatsby-Themed Gala 2017 Award Recipients Announced


Bench Strength—Preparing New Attorneys for the Courtroom How Senior Practitioners Can Help


Local Attorney and Family to Fight Slavery in Cambodia Kilday Family Begins Year of Service


Kids’ Chance of Texas Inaugural Reception a Great Success Worker’s Compensation Section of State Bar Sponsors Non-Profit


Corporate Sponsor: Proposed IRS Regulations May Increase Estate and Gift Taxes on Transfer of Family Business Interests HSSK Explains Proposed Changes to IRS Code


DEPARTMENTS 6 President’s Column 11 Opening Statement 12 Briefs 15 3rd Court of Appeals Criminal Update 16 3rd Court of Appeals Civil Update 17 Federal Civil Court Update 18 Federal Criminal Court News 19 Legislative Update 20 AYLA 22 Social Media Savvy 23 Developing Your Practice 24 Entre Nous 27 Classifieds /Ad Index

CONNECTIONS ONLINE EMAIL MAIL Nancy Gray, managing editor Austin Bar Association 816 Congress Ave., Suite 700 Austin, TX 78701-2665 SOCIAL LIKE FOLLOW WATCH STREAM @AustinBarAssociation



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DEC. 2016 / JAN. 2017 | AUSTINLAWYER


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

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AUSTINLAWYER | DEC. 2016 / JAN. 2017

Bench Strength—Preparing New Attorneys for the Courtroom BY STEVE BENESH AND PATRICK CABELLERO


he ultimate goal of many young attorneys is to one day walk into a courtroom and successfully first-chair a significant case. But, it doesn’t happen overnight. Trying a case requires a set of skills most law schools don’t fully provide, and thus associates must learn trial skills from their more seasoned colleagues. To that end, here are some ideas for senior practitioners to better equip junior attorneys to become dynamic first-chair trial lawyers. Give Associates Quality Work New attorneys often get projects that aren’t glamorous. Document review and legal research are fine for associates, but they need more varied experiences to become trial-ready. Letting associates handle depositions or court appearances are the types of real-world experiences that are essential. Depositions not only introduce associates to the examination of live witnesses, but they also offer a great introduction to dealing with opposing counsel in person. Multi-party depositions are particularly ideal because novice associates can watch others in action before examining a witness themselves. Defending a deposition teaches an associate how to make objections quickly and how to come to the aid of a witness, essential skills for the courtroom. Hearings provide associates the opportunity to interact with judges and to practice courtroom basics like introducing evidence. Observing a hearing is worthwhile, but associates also need to argue on their own, perhaps handling a portion of the argument they’ve been responsible for researching and drafting. Finally, placing young associates on a trial team and assigning them full responsibility for a piece of the case is another great way to familiarize them with the trial process.

Defending a deposition teaches an associate how to make objections quickly and how to come to the aid of a witness, essential skills for the courtroom. Provide Skills Training Despite best intentions, opportunities for hands-on experience don’t always present themselves. Even when they do, it’s still useful to have prior experience. That’s why promoting skills training within the firm is a good idea. In-house workshops taught by the firm’s seasoned litigators on trial skills, like examining witnesses, introducing evidence, and making objections, are ideal for young lawyers. Another way to get an associate practical skills in a friendly setting is for your firm to utilize mock trials when preparing a case. Promote Pro Bono/ Secondment Work Pro bono matters are another excellent method of getting

associates courtroom experience. Volunteer Legal Services, C-Bar, and other organizations are typically happy to provide cases to attorneys at a variety of experience levels. Something as simple as helping with an uncontested divorce exposes a junior attorney to courtroom procedure and makes a great impression with the judiciary. Secondment of a young attorney within a district or county attorney’s office (or even with a client, where appropriate) is less common, but is nonetheless worth considering for gaining courtroom exposure early in an associate’s career. Firms can promote these experiences by ensuring such work counts towards billable hour requirements.

Bracewell has used many of these ideas to promote the next generation of trial lawyers to great success. The key is to take an active interest in the development of newer attorneys, and provide them with meaningful opportunities toLAWYER develop into capable trial AUSTIN attorneys. AL AL

W. Stephen Benesh (above left), Steve.Benesh@bracewelllaw. com, is a litigation partner, and Patrick A. Caballero (above right), Patrick.Caballero@bracewelllaw. com, is litigation counsel, both in Bracewell’s Austin office.

DEC. 2016 / JAN. 2017 | AUSTINLAWYER



Living the Lawyer’s Creed How to be Conscious of Your Duty to the Judicial System

THIS MONTH as I read the Lawyer’s Creed I noticed this reminder: “I will always be conscious of my duty to the judicial system.” The Creed has many words of guidance specific to our relationships with our clients, to our opposing counsel, and to our judiciary; but, this specific call is for us to be vigilant in our duty to the judicial system. That is a fairly broad duty. This is more than a request to provide pro bono services or volunteer your time to bar associations. It is an obligation that frames every other obligation we have as lawyers. When you choose one course of action over another ask yourself, “is this being conscious of my duty to the judicial system?” That seems an overwhelming responsibility, but it can be achieved by small acts over your career that


will combine to create a lasting impact. With my roots in the army town of Killeen, I recognize a “call to duty” when I hear one. One lawyer I know exemplifies this “call to duty.” David Courreges is a former president of the Austin Young Lawyers Association and current member of the board of directors of the Austin Bar Association. He has accomplished more as a young attorney than I have in my entire career. When Bastrop County experienced a tragedy, he and Amy Welborn rolled up their sleeves and gathered a literal army of volunteer lawyers to bring those affected by the tragic fire answers to their legal questions. More than that, he brought compassion and empathy. That is being conscious of his duty to the judicial system. When he saw school-aged children needing more exposure to the legal system—a system many students feel leaves them behind—he developed more than one law-related education project for schools to educate them about the legal environment. As a result, the students began to understand it as somewhere to go for help, not something to fear. That is being conscious of his

AUSTINLAWYER | DEC. 2016 / JAN. 2017

duty to the judicial system. Judge Karin Crump noticed children waiting in the courthouse while their parents finished their legal business. She approached David with an idea. They, along with Judge Amy Clark Meachum, who serves on the board of BookSpring, organized a book drive.

place for all of us: Those who have the question, those who have the answer, and those who just want to help in some small way. Success requires all of the above. If just one of those pieces is missing, the gaps will not be filled. Thank you, David Courreges, for your endless energy, optimism,

Have you seen a gap which the judicial system could improve upon? Some problem you wish there were an answer to? You do not have to have the solution. Sometimes the biggest help is knowing the question. and action-oriented problem There are now books on multiple solving. You are conscious of your floors of the courthouse available duty to the judicial system, and to keep children entertained while you have raised its profile with the they wait. That is being conscious talents you so generously give. of his duty to the judicial system. How can you help? Call me, We don’t all have the energy AUSTIN LAWYER let’sAtalk! Mr. Courreges does, but we do L AL have the same duty and the same ability. Have you seen a gap which the judicial system could improve upon? Some problem you wish there were an answer to? You do not have to have the solution. Sometimes the biggest help is knowing the question. There is a

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2017 Gala Award Recipients continued from cover Hilger and his wife, Joan, have two daughters, Kelly Winship and Lauren Hilgers, and three grandchildren. MARTHA SMILEY As founding team member and executive of Grande Communications, civic volunteer, and political activist, Martha Smiley has been deeply engaged in the Austin community for more than 40 years. She began her legal career in the State Attorney General’s Office and then served as Regional Counsel to the Environmental Protection Agency. She later joined Steve Bickerstaff and Bob Heath in private practice, building the firm Bickerstaff, Heath and Smiley. Smiley’s legal career drew her to entrepreneurial enterprises for more than a decade before she returned to private practice. She now serves as counsel to the firm Enoch Kever. Through it all, Martha has held a deep commitment to community and civic engagement. With the unselfish support of her law partners and business colleagues, she has had the privilege of serving on the boards of numerous civic and community organizations. Governor Ann Richards appointed her to The University of Texas Board of Regents and the Texas National Research Laboratory Commission. At The University of Texas at Austin, she has served on the Intercollegiate Athletics Council for Women, as chair of the University of Texas Longhorn Foundation, on the Advisory Board of the Lozano Long Institute for Latin American Studies, and she is a Founder of the Center for Women in the Law. She served two years on the Executive Committee and as vice-chair for Mobility and Transportation for the Greater Austin Chamber of Commerce, and as a member of several Central Texas Mobility Advisory Groups. Smiley has served on the Boards of the Waller Creek Local Government Corporation, Austin Area Research Organization, Austin Community Foundation, SafePlace Foundation, RGK Foundation, KLRU Public Television, Capital IDEA, and the Austin Area Urban League. 8

Smiley has received numerous honors and recognitions over the years for her community leadership and service, including Honorary Order of the Coif and Distinguished Alumnus Award for Community Service from the University of Texas Law School; Presidential Citation from President Bill Powers at the University of Texas at Austin; Outstanding Achievement from the Travis County Women Lawyers Association; Outstanding Woman in Justice from the American Association of University Women; Profiles in Power Leader from the Austin Business Journal; Exceptional Award for an Honorary Alumnus from Leadership Austin, Architect for Change from E3 Alliance; Mobility Advocate of the Year from the Greater Austin Chamber of Commerce; Sportsmanship Award from First Tee; Woman of Distinction from the Girl Scouts of Central Texas; Woman of Merit from Omicron Delta Kappa at Baylor University; and Woman of the Year in Business Enterprise from the YWCA of Greater Austin. DAVID H. WALTER COMMUNITY EXCELLENCE AWARD

The David H. Walter Community Excellence Award is presented to an attorney or judge who has recently made a significant impact in the community and, at the same time, raised the profile of the legal profession. JO ANN MERICA Jo Ann Merica’s legal career reflects her steadfast commitment to professional leadership and community service. She has served as president of the Austin Young Lawyers Association, the Texas Young Lawyers Association, and the Austin Bar Association. In her service to these organizations, she has implemented a wide range of public service projects designed to assist victims of domestic violence, educate school children about the law, and provide legal services to the disadvantaged and poor. Each bar association led by Merica has won first-place honors and awards for projects created and implemented during her lead-

AUSTINLAWYER | DEC. 2016 / JAN. 2017

ership, including the “And Justice for All” specialty license plate created by the Texas Young Lawyers Association, which has raised nearly $250,000 for legal services for the poor in civil matters. Merica recently concluded a term as trustee of the Texas Bar Foundation, reviewing and awarding grants to improve the administration of justice in the state. She also recently chaired “Texas Lawyers for Texas Veterans,” established by the State Bar of Texas in 2010 to provide pro bono advice clinics to serve Texas veterans, the second highest-population of veterans in the nation. In addition, she has served as co-chair of the Austin Bar Association’s Free Legal Advice Clinic for Veterans Clinic, where she often volunteers. One of the pro bono cases Merica handled through the clinic received national coverage this year by Time magazine and National Public Radio and highlighted the need for discharge upgrades for military personnel who were discharged from service following episodes of sexual harassment or assault. Merica’s client testified before Congress regarding the need for related changes in military policy. Merica dedicates her time to the community in many ways, serving lunch at Caritas with her McGinnis Lochridge co-workers, making sandwiches with members of her church for Mobile Loaves and Fishes, and participating in various charity rides to raise funds for organizations helping victims of breast cancer and HIV/AIDS. She regularly takes a variety of pro bono cases, including current representation of a 9-year-old boy seeking status as a Special Immigrant Juvenile. She has an extensive list of awards and accomplishments, including AYLA Outstanding Alumnus, Austin Business Journal Women of Influence, Travis County Women Lawyer’s Association Pathfinder, two State Bar of Texas Presidential Citations, Military Law Section’s Col. Bryan S. Spencer Award, Texas Veteran Commission’s Leadership Award, and the Judge Sam Williams Award. She has taught trial advocacy as an adjunct professor at the

University of Texas School of Law since 1993 and has been selected to the Texas Super Lawyers List. LARRY F. YORK MENTORING AWARD

The Larry F. York Mentoring Award is given to a local lawyer or judge who has demonstrated exceptional skill and generosity in mentoring younger members of the bar. Nominees must have practiced at least 10 years and have served as role models and counselors to other lawyers, distinguishing themselves as leaders of their profession while fully embracing life’s experiences. DIRK JORDAN Dirk Jordan graduated from Louisiana State University with a BA in history and psychology before graduating from the University of Texas School of Law in 1992. He clerked for the Hon. Joseph Hart at the Travis County District Court, and interned for the Hon. Nathan Hecht at the Texas Supreme Court before joining the Austin office of Strasburger and Price. He spent the first 10 years of his practice at the firm, making partner in 1999. In 2001, he formed the Jordan Law Firm and has maintained a solo practice, for the most part, since then. He was a member of the Robert Calvert Inns of Court from 1991-2009 and helped form the Lloyd Lochridge Inns of Court in 2009, where he served as president. He currently serves on the executive committee as counselor. In 2014, he became the first Austin member to serve on the Board of Trustees of the American Inns of Court Foundation. Jordan is also on the Board of the Austin Bar Association Litigation Section, chairman of the State Bar of Texas Law Practice Management Committee, and chair of the Grievance Committee for Region 9. He is an adjunct faculty member at the University of Texas School of Law, teaching a class on “How to Start and Manage Your Law Firm.” He speaks on technology and law practice management at State Bar CLE events and various Texas law schools. Jordan has taught in Dublin, Ireland at Trinity College, and at conferences in Italy, Hungary, and Guatemala. He is committed to environ-

mental causes, serving on the Board of the Nature Conservancy from 1997-2003. In 2000, he was honored with the Volunteer of the Year Award. He currently serves on the Boards of the Pease Park Conservancy and the Old Enfield Neighborhood. In his spare time, he practices commercial litigation. A cancer survivor, Jordan has a reputation for collegiality, professionalism, and integrity. His commitment to mentoring young attorneys—through his work with the Inns of Court, as a professor, and as a speaker—is unparalleled. JOSEPH C. PARKER JR. DIVERSITY AWARD

This award is named in honor of Joseph C. Parker Jr., the first African-American president of the Austin Bar Association. Blazing the trail for minority lawyers who followed in his footsteps, Parker has spent his life and work championing

the equal, ethical, and fair treatment of all people, and raising awareness of the need to diversify our community. This award honors a firm or an individual who has led the way in bringing diversity to Austin’s legal community and who exemplifies all that Parker stands for. TONY NELSON Tony Nelson has spent his 29-year legal career focused on the representation of those who serve the citizens of the State of Texas—representing State, County and Local Governmental Entities, elected officials, and government employees in litigation matters in federal and state courts. Nelson currently serves as the Federal Court Litigation Team Leader for the Travis County Attorney’s Office, representing Travis County, its elected officials, and employees in federal court litigation matters. Since coming to the County Attorney’s Office in 2003, Nelson has also served as State Court Litigation Team Leader

officials across the state. and Employment Litigation Team His legal career started as an Leader, utilizing has vast experiassistant attorney general in the ence in representing governmenLaw Enforcement Division, where tal clients in litigation matters. he served for five years. Nelson’s litigation experience Nelson’s community involveincludes successfully representment includes the Austin Black ing governmental clients in civil Lawyers Association, as a member rights, employment and disability and former officer, and he curdiscrimination, open government, rently serves as co-chair of the tort claims, contract liability, and Austin Bar Association’s Diversity civil service litigation matters. Committee. His service on the Prior to his tenure with the Diversity Committee provided the Travis County Attorney’s Office, opportunity for assisting in the Nelson spent 11 years in the development of the Austin Bar’s private sector, as an associate with Diversity Fellowship Program, Allison & Associates, a Senior which provides rising second year Associate/Non-Equity Partner with minority law students a unique Bickerstaff, Heath, Smiley, Pollan, clerkship experience, splitting Kever & McDaniel, and a Foundtheir summer between working for ing Partner of Thomas, Hudson & Travis County District and County Nelson. Although he represented Court at Law Judges, and a particindividual and corporate clients ipating private sector law firm. while in private practice, the focus Nelson and his wife of 31 years, of his practice continued to be the Marie, are proud parents of two representation of governmental Wesley (25) and Michael clients, representing counties, muAUSTINsons, LAWYER nicipalities, and law enforcement A(22). L AL

HONORING AWARD WINNERS Distinguished Lawyer Award David Hilgers & Martha Smiley

David H. Walter Community Excellence Award

Join us…

among the whisperings and the champagne and the stars

Jo Ann Merica

Joseph C. Parker Jr. Diversity Award Tony Nelson

Larry F. York Mentoring Award Dirk Jordan







Tickets $175 each (early bird rate until Jan. 6) $200 each (after Jan. 6)


Table Sponsorships $3,500 – full table (10 seats) $2,000 – half table (6 seats) $5,000 – Foundation Sponsor $10,000 – Foundation Benefactor

DEC. 2016 / JAN. 2017 | AUSTINLAWYER


Local Attorney and Family to Fight Slavery in Cambodia BY ERIC BEHRENS


y friend and colleague, Doug Kilday, is moving to Cambodia in January, 2017 to fight the slavery trade in Southeast Asia. Kilday and his wife, Thais, have both accepted unpaid one-year fellowships as part of the world’s largest anti-slavery organization, International Justice

friends and colleagues. Doug and Thais learned about IJM through their church, Covenant Presbyterian Church. Austin lawyers Joy Baskin and Matt Dow are heading up Covenant’s efforts to keep the Kilday family in touch with their friends in the congregation. The church has created a fund for “IJM Fellowships,” and the Kildays will be able to

Justice Holmes told his protégés to match their ideals with heroism—great thoughts must be paired with action, and sometimes with personal sacrifice. The Kilday family is up to the task. Mission (IJM). Their children, Naeda, Lincoln, and David will join them on this extraordinary journey. Several thousand men, women, and children in Cambodia have spent many years in slavery, in areas such as the fishing industry, domestic servitude, and sex trades. Doug will work with local lawyers in Cambodia to help prosecute slave traffickers and enforce Cambodia’s anti-slavery laws. Thais will work with IJM’s Cambodian staff on support programs for rescued victims. Justice Holmes told his protégés to match their ideals with heroism—great thoughts must be paired with action, and sometimes with personal sacrifice. The Kilday family is up to the task. They are leaving the security of their jobs, home, and network of friends to move to Phnom Penh. Doug and Thais will have no salary in the coming year, and know they will likely have to postpone retirement as a result. From talking with other IJM families, however, they also know they and their children will have one of the most enriching years of their lives. They will have the almost unfathomable fulfillment of helping to rescue victims from slavery. The Kilday family will stay connected with their stateside 10

seek reimbursement for their living expenses out of that fund. Information about how to make a tax-deductible donation can be found through the Kildays’ website, Doug is planning to blog about their experience. His firm, Graves Dougherty, will keep a link to the blog on their website while he is away. Doug and Thais know there are many folks who dream of spending a year or more to help the poorest of the poor, but who feel overwhelmed about putting the dream into practice. They are happy to discuss the logistics that have occupied their thoughts these past months with anyone who is thinking of a similar undertaking. If you are interested in learning more, you are invited to join the Kildays for a brown bag lunch at Graves Dougherty at noon on Friday, December 16. The firm is located at 401 Congress Avenue, Suite 2200. Please RSVP to Doug at dkilday@gdhm. com. AUSTIN For moreLAWYER information about IJM, visit AL AL Behrens is a Shareholder at Graves Dougherty Hearon & Moody.

AUSTINLAWYER | DEC. 2016 / JAN. 2017

TOP: Doug and Thais Kilday; BOTTOM: The Kilday family.




ou could probably use more colons. They’re handy: they can help you write concisely and briskly. In this column I’ll discuss several good colon uses and go over some rules. (I won’t address colons in numerical ratios, in citations to a court record or evidentiary documents, in article titles, or for times.) The colon is a pointer, according to Bryan A. Garner in The Redbook, § 1.21. “Think of it as an arrow,” he says. It introduces explanations, amplifications, and illustrations. The defendant has two choices: plead guilty or fight.

sense is clear. In fact, the colon itself often makes the sense clear. It says to the reader, “Hey, I’m about to quote something.” In Clendenen v. Kirby, Inc., the court refused to apply equitable tolling to state-agency filing deadlines: [block quotation] You need no colon after words like including and such as, and most consider it a serious error. Not this: The defendant hired three lawyers, including: a transactional attorney and an appellate specialist. But this: The defendant hired three lawyers, including a trans-

The colon is a pointer, according to Bryan A. Garner in The Redbook, § 1.21. “Think of it as an arrow,” he says. It introduces explanations, amplifications, and illustrations. Lasker got what the appellate team worked hard to obtain: remand for an evidentiary hearing. The merger agreement was like a puzzle: working it out was as rewarding as seeing it finished. Of course, the colon also introduces lists and quotations, according to June Casagrande in The Best Punctuation Book, Period at 63-64. Those are some of the most common colon uses in legal writing. Summary judgment is inappropriate for three reasons: (1) … (2) … (3) … In Clendenen v. Kirby, Inc., the court refused to apply equitable tolling to state-agency filing deadlines, stating as follows: [block quotation] The text before a colon that introduces a block quotation need not do so explicitly as long as the

actional attorney and an appellate specialist. What can come before the colon in regular text? The traditional rule is that a colon should follow only an independent clause. Under that rule, these are wrong: The testator stated: The statute provides: The attachments are: The direct object or complement that would complete the thought is missing, so it’s not an independent clause. That rule is why we often see this construction with colons that introduce excerpts or block quotations: The testator made the following statement: The statute provides as follows: The attachments are the following: This traditional rule about independent clauses still applies in formal writing, especially if you

know your reader is a punctuation traditionalist. But the traditional rule is passing away in one context: Garner says you can ignore it in legal drafting when introducing numbered, lettered, or tabulated subparts. Garner, § 1.28. The Lessee shall not: (1) paint, wallpaper, alter, or redecorate any portion of the Property; (2) change or install locks; or (3) place signs, displays, or other exhibits on the Property. The Lessee shall not: (1) paint, wallpaper, alter, or redecorate any portion of the Property; (2) change or install locks; or (3) place signs, displays, or other exhibits on the Property.

capitalize the first word. If what follows the colon is an independent clause, capitalize the first word or don’t, according to your preference, a house style guide, or office practice—but be consistent. And finally, the colon is appropriate after the greeting or salutation in a formal letter. Casagrande at 65 and Garner, § 1.25. Informal: Dear Sandra, Formal: Dear Judge Haynes: Oh. And one space after colons, AUSTIN LAWYER if you don’t mind. AL AL

What about capitalization? If what follows the colon is not an independent clause, do not DEC. 2016 / JAN. 2017 | AUSTINLAWYER


BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Desiree Bedas   Andrew Bernick Jessica Bernstein                    Fitzsimmons, Kneeland, Mauldin, Patel, Rolong, and Rosenthal Connor Best  Jason Billick   Emily Westridge Black   Mari Dowdy     Elizabeth Drake       Chad Eaton   Brian Elliott     Elena Esparza     Isaac Harrington      Lealon Martin Merissa Muery    Alexandra Price    Mike Redondo    Maggie Simoneaux-Causo   Ellen Springer    Joshua Vanderslice   Jono Young


AWARDS „ Ronak Patel of Kelly Hart was selected as the first recipient of the North American Securities Administrators Association Patricia D. Struck Award. Patel is a partner at Kelly Hart & Hallman, and a former Deputy Securities Commissioner of Texas. NEW TO THE OFFICE „ Mishell Kneeland is the newest Austin partner of Culhane Meadows. A former Texas Assistant Attorney General and Assistant Austin City Attorney, Kneeland focuses her trial experience on helping businesses and local governments resolve

AUSTINLAWYER | DEC. 2016 / JAN. 2017

their business and employment disputes. „ Lloyd Gosselink Rochelle & Townsend appointed Jamie L. Mauldin as a new associate. Mauldin focuses on administrative law in the area of public utility regulation. „ Angelica Rolong has joined Ausley, Algert, Robertson & Flores as an associate where she focuses on cases involving divorce, custody matters, child support, and property division. „ Cain & Skarnulis is pleased to announce Clint Rosenthal has joined the firm as a partner. Rosenthal was previously with

Strasburger & Price. His practice focuses on all aspects of commercial litigation, as well as emerging companies and construction. MOVING ON UP „ SledgeLaw Group announced that Shauna Fitzsimmons has become a shareholder in the firm. Fitzsimmons focuses on water law and environmental matters, as well as a general governmental relations practice before the Texas Legislature. „ Graves, Dougherty, Hearon & Moody is pleased to announce Nicholas Miller has become Shareholder. He practices Real Estate & Oil and Gas Law.

Kids’ Chance of Texas Inaugural Reception a Great Success


ollege student Christi Campbell is drawn to nursing and specifically working with victims of trauma. A nursing major at the University of Texas at Tyler, she is taking a tough schedule of classes including chemistry, microbiology, psychology, and anatomy. Her path wouldn’t be possible without support from Kids’ Chance of Texas, a new 501(c)(3) non-profit organization whose sole mission is

is a Founding Sponsor for Kids’ Chance of Texas, as are several law firms who are members of the Section, including Stone Loughlin & Swanson, Burns Anderson Jury and Brenner, and Flahive Ogden and Latson. Christi is the first scholarship recipient for Kids’ Chance. Accompanied by her mother, Paula Campbell, she was formally presented with her Kids’ Chance scholarship by David Mattax,

Kids’ Chance of Texas is a new 501(c)(3) non-profit organization whose sole mission is to create and support scholarship programs that provide educational opportunities for the children of Texas workers who have been seriously injured or killed in an employment-related accident. to create and support scholarship programs to provide educational opportunities for the children of Texas workers who have been seriously injured or killed in an employment-related accident. The Worker’s Compensation Section of the State Bar of Texas

Commissioner of Insurance, and Jessica Corna, General Counsel for the Office of Injured Employee Counsel on October 22 at the Bullock Texas State History Museum during the Inaugural Reception. “The Kids’ Chance scholarship I received has impacted me in the

Christi Campbell (center), Inaugural Scholarship Winner, with David Mattax and Jessica Corna.

best way possible,” Campbell says. “Going into my first year of college I was unsure of how I was going to be able to afford paying for my next three years, but after getting this scholarship, I have much less to worry about. I will be able to use the scholarship money toward my education and feel comfortable knowing it will decrease my financial burden exponentially. Without the Kids’ Chance scholarship, I would be struggling to pay for my college education but fortunately, this scholarship will help me

tremendously!” Kids’ Chance of Texas operates on a completely volunteer basis by members who are committed to keeping operational expenses to a bare minimum in order to make the greatest impact possible. The program is supported through targeted marketing and by presentations to professional organizations related to the workers’ compensation industry. For more information or to get involved,AUSTIN contact Jane Stone at LAWYER AL AL

Austin Bar Members are Cordially Invited to Attend Swearing-In Ceremonies for: Margaret Moore, Travis County District Attorney Tuesday, Jan. 3, 2017, 9 a.m. Courtroom of Hon. Brenda Kennedy Blackwell-Thurman Criminal Justice Center

Hon. Tamara Needles, 427th District Judge and Hon. Brad Urrutia, 450th District Judge Tuesday, Jan. 3, 2017, 3 p.m. Courtroom of Hon. Brenda Kennedy Blackwell-Thurman Criminal Justice Center

Hon. Jan Soifer, 345th District Judge Friday, Jan. 6, 3 p.m. 3rd Floor Ceremonial Courtroom Heman Marion Sweatt Courthouse Reception immediately following at Highland Lounge, 404 Colorado St.

DEC. 2016 / JAN. 2017 | AUSTINLAWYER


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The cases summarized are from July 2016 and subsequent histories are current as of October 31, 2016. The summaries represent the views of the author alone and do not reflect the views of the Court or any of the individual Justices on the Court.

SENTENCING: District court did not commit fundamental error by questioning defendant and victim during punishment hearing. VanWinkle v. State, No. 03-1600278-CR (Tex. App.—Austin July 22, 2016, no pet.). The defendant pleaded guilty to aggravated sexual assault of a child. During the punishment hearing, the district court questioned the victim concerning the circumstances of the assault and also asked the defendant “numerous” questions concerning the charged offense, an extraneous offense, and other matters. The defen-

Maitreya Tomlinson

dant failed to object to any of the questioning, but he contended on appeal that the district court committed “fundamental error” by “abandon[ing] the role of a neutral, detached hearing officer” and “[taking] on the role of an advocate for the State.” Although the appellate court expressed some concern regarding “the extensive nature and the manner of the questioning,” it ultimately disagreed with the defendant, observing that “a large portion of the questions asked would seem to fall within the types of permissible questions that a trial court may pose to witnesses, and the district court did not ask any questions that the attorneys in this case would not have been allowed to [ask].” Also, the court observed that many of the questions “seem[ed] directly relevant” to a determination of whether community supervision was appropriate in this case. Moreover, according to the court, nothing indicated that the district court “became

D. Todd Smith

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Smith Law Group was founded by appellate specialist D. Todd Smith, Treasurer of the Austin Bar Association for 2016-2017 and a Life Fellow of the Austin Bar Foundation.

Handling Civil Appeals and Supporting Trial Counsel Statewide 512.439.3230 W W W. A P P E A L S P L U S .C O M

so involved as an advocate that it could no longer impartially assess punishment.” For these reasons, the court concluded that the district court did not commit fundamental error. SEARCH AND SEIZURE: Continuation of temporary detention to search for weapons permissible. Perez v. State, No. 03-15-00490CR (Tex. App.—Austin July 27, 2016, no pet.). Police officers were dispatched to a convenience store to investigate a report of property damage. Upon arrival, the officers detained the suspect and her companions, one of whom was the defendant in this case. Even though the defendant had not committed the property damage, the officers frisked him, searched his vehicle with a canine unit, and discovered contraband. The defendant filed a motion to suppress the evidence obtained during the search, arguing that the officers had improperly continued the detention to investigate him. The district court denied the motion to suppress, and the appellate court affirmed. The court observed that the officers had testified to the following facts: the investigation had occurred at night; one of the officers had observed a box of ammunition inside the defendant’s vehicle; the windows of the vehicle were tinted, which “prevented the officers from getting a good view” of the vehicle’s interior; and the defendant was a known gang member. The totality of these circumstances, the court concluded, supported a finding by the district court that the officers could have reasonably believed that the defendant was dangerous and may have had access to a firearm, which in turn supported the search and continued detention of the defendant. PRETRIAL BOND: Although defendant had been continuously confined for more than 90 days on felony drug charges without the State being ready for trial, defendant was not entitled to a reduction in bond. Ex parte De Paz, No. 03-15-

Zak Hall is a staff attorney for the Third Court of Appeals.

00581-CR (Tex. App.—Austin July 7, 2016, no pet.). After the defendant had been confined for more than 90 days prior to trial, he filed an application for writ of habeas corpus, asking that his bond be reduced to an amount no greater than a personal bond pursuant to article 17.151 of the Texas Code of Criminal Procedure. The district court denied relief. The appellate court affirmed, observing that section 17.151, by its terms, does not apply to a defendant who is “being detained pending trial of another accusation against the defendant as to which the applicable period has not yet elapsed.” Here, the defendant had a hold in Hays County that was based on a pending motion to adjudicate. The defendant argued that a pending motion to adjudicate was not equivalent to “being detained pending trial.” The appellate court disagreed, holding that, “under the plain language of [the relevant statutory provisions], appellant was ‘being detained pending trial’—the revocation hearing—as to ‘another accusation against [him]’—that he [had] violated the terms of his community supervision.” The court added that the defendant had “failed to prove that the ‘applicable period’ as to the motion to adjudicate guilt,”—in this case, 20 days from the filing of the motion to adjudicate—“had elapsed.” For these reasons, the court concluded that the district court hadAUSTIN not abused its discreLAWYER tion in denying relief. AL AL

DEC. 2016 / JAN. 2017 | AUSTINLAWYER




The following are summaries of selected Third Court of Appeals’ civil opinions issued during October 2016. The summaries are intended as an overview; counsel are cautioned to review the complete opinion. Subsequent histories are current as of November 7, 2016.

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.

DISCOVERY: TCPA motion to dismiss stays discovery in Rule 202 proceeding. In re Elliott, No. 03-16-00231-CV (Tex. App.—Austin Oct. 7, 2016, orig. proceeding). Under Rule 202, MagneGas Corp. sought to depose Elliott to discover information about an anonymous article that criticized the company. John Doe 1 filed a motion to dismiss the Rule 202 petition under the Texas Citizens Participation Act. Without addressing the motion to dismiss, the trial court granted MagnesGas’s Rule 202 petition. The court of appeals addressed an issue of first impression: whether a TCPA motion to dismiss stays all discovery in a Rule 202 proceeding. The court concluded that the motion to dismiss invoked TCPA. The court rejected MagneGas’s argument that a Rule 202 petition is not a lawsuit within the meaning of TCPA. The court concluded TCPA stays all discovery, thus, the trial court had no discretion to order a Rule 202 deposition before ruling on the motion to dismiss. The court granted mandamus relief. The concurrence concluded that the First Amendment supported mandamus relief without the need to reach the TCPA issue. TRIAL PROCEDURE: Court reverses death penalty sanction. Hernandez v. Polley, No. 03-1500384-CV (Tex. App.—Austin Oct. 13, 2016, no pet. h.) (mem. op.) (op. on reh’g). Hernandez sued Polley following a car accident. Polley served discovery


AUSTINLAWYER | DEC. 2016 / JAN. 2017

on Hernandez regarding benefits received from other insurance policies. The trial court granted Polley’s motion to compel when Hernandez failed to respond to discovery. During a hearing on a second motion to compel, the trial court orally warned Hernandez that it would dismiss the case if discovery responses were not complete. At a third hearing, the trial court dismissed the case. The court of appeals concluded the sanction failed the test in Transamerican. The record did not indicate whether Hernandez or her attorney was responsible for the incomplete discovery. Further, the sanction was excessive. The court concluded the oral warning did not constitute a lesser sanction. Finally, the sanction order failed to explain why the death penalty was appropriate. The court reversed and remanded. ATTORNEY’S FEES: Court reverses attorney’s fees award. Continental Healthcare, Inc. v. Remedy Therapy Staffing, PLLC, No. 03-14-00464-CV (Tex. App.—Austin Oct. 14, 2016, no pet. h.) (mem. op.). Continental contracted with Remedy to provide physical therapy services. Remedy sued Continental for late payment of invoices and sought attorney’s fees under CPRC §38.001. While the lawsuit was pending, Continental paid the delinquent invoices. Remedy, however, insisted on recovering its attorney’s fees. The trial court awarded Remedy no damages, but awarded attorney’s fees. The court of appeals addressed whether the contract’s “prevailing party” attorney’s fees provision applied. The court observed that to prevail, a party must obtain judicially-sanctioned relief on the merits that materially alters the legal relationship between the parties. With no damages awarded, Remedy was not a prevailing party. The court reversed and rendered.

TRIAL PROCEDURE: Settlement did not preclude third party claims. Albright v. Rhea & Sons Enters., Inc., 03-15-00496-CV (Tex. App.—Austin Oct. 19, 2016, no. pet. h.) (mem. op.).  Albright sued general contractor for breach of implied warranty in the construction of their home. General contractor designated 18 subcontractors as responsible third parties.  Albright and general contractor settled. Albright added the subcontractors, asserting negligence and breach of implied warranty claims. The trial court granted summary judgment for Rhea. The court of appeals concluded that the settlement with general contractor did not bar Albright’s claims against the subcontractors. The court observed that general contractor’s percentage of responsibility is still included in the fact finder’s determination. Albright’s claims against Rhea were not inconsistent with the settlement.  The court further concluded that Albright could not recover against Rhea under an implied-warranty theory absent a contractual relationship with Rhea. The court affirmed in part and reversed and AUSTIN LAWYER remanded. AL AL



The following are summaries of selected civil opinions issued by the U.S. District Court for the Western District of Texas during October 2016. These summaries are intended as an overview only, and counsel are cautioned to review the complete opinions.

ELECTION LAW: “Sore loser” statutes likely to be upheld as constitutional. Kennedy v. Cascos, 2016 U.S. Dist. LEXIS 137477 (W.D. Tex. [Austin] Oct. 4, 2016). Plaintiffs filed an emergency motion for a preliminary injunction requiring Texas to add Roque De La Fuente to the 2016 presidential election ballot as an independent candidate or, alternatively, to the State’s list of write-in candidates. Plaintiffs challenged the constitutionality of Texas’ “sore loser” statutes (Tex. Elec. Code §§ 162.015, 192.032), which prohibit individuals who participated in

a party primary from becoming either an independent or a writein candidate on the subsequent presidential ballot. Noting that similar “sore loser” statutes have been upheld by the Supreme Court as valid exercises of state power and that the district itself had previously upheld the Texas provisions, the Court determined Plaintiffs had failed to demonstrate a substantial likelihood of success on the merits. As such, preliminary relief was not justified and Plaintiffs’ motion was denied. INSURANCE LAW: Claims against insurance adjusters under Insurance Code section 541.060(a)(2)(A) considered viable in light of district court split. Mehar Holdings, LLC v. Evanston Insurance Company, 2016 U.S. Dist. LEXIS 142592 (W.D. Tex [San Antonio] Oct. 14, 2016). A first-party insurance case regarding a fire that had damaged Plaintiff’s property was removed to federal court on grounds of


Thorough and Supportable Business Valuations Since 1996 Edward C. Fowler, CFA, ASA, MAFF

diversity jurisdiction and improper joinder. The Court denied Plaintiff’s motion for remand on grounds that Plaintiff had failed to state viable claims against the in-state insurance adjuster defendants, reasoning that insurance adjusters could not be held liable under Texas Insurance Code sections 541.060(a)(2)-(4) and (7). Plaintiff moved for reconsideration. The Court noted a split in authority among federal district courts regarding whether an adjuster may be liable under section 541.060(a)(2)(A), and determined that the split must be resolved in favor of remand to state court. The Court determined it lacked subject-matter jurisdiction because a reasonable basis existed for Plaintiff to recover against the insurance adjusters, such that complete diversity was destroyed. Plaintiff’s motion for reconsideration was granted and the case was remanded to state court.

Rachael K. Jones is an attorney at The Carlson Law Firm and a member of the AYLA Board of Directors.

EMPLOYMENT LAW: “Firstto-File” rule does not apply to second-filed individual FLSA claim. Guyton v. Legacy Pressure Control, Inc., No. SA-15-CV1075-XR, 2016 U.S. Dist. LEXIS 137896 (W.D. Tex [San Antonio] Oct. 4, 2016). Six months before Plaintiffs filed their individual Fair Labor Standards Act claims, a collective FLSA action was filed against Defendants in the Southern District of Texas. Although Plaintiffs fit within the certified class in the collective action, they did not opt in to that class. Defendants moved to transfer Plaintiffs’ claims to the Southern District based on the Fifth Circuit’s “First-to-File” rule. The Court found that the “First-to-File” rule applies only when both competing lawsuits are collective actions, not when the second-filed suit is an individual action. Defendants’ motion AUSTINLAWYER to transfer venue was denied. AL AL

Tel: (512) 476-8866 DEC. 2016 / JAN. 2017 | AUSTINLAWYER



The Dreaded Federal Criminal Appointment BY DAN DWORIN


Dan Dworin is a criminal defense attorney who has practiced in Central Texas since 1995, and has been licensed in the Western District of Texas since 1997. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization.

ll attorneys licensed to practice in the Austin Division of the Western District of Texas are subject to being appointed to represent a criminal defendant in federal court. Although most Austin lawyers support the Sixth Amendment guarantee of an accused’s right of counsel, and the requirement that counsel be provided at no cost for indigent defendants, few lawyers are eager to be thrown into an area of the law they know little about, where a client’s freedom hangs in the balance. In many districts and divisions, federal courts have set up a panel, or list, of qualified attorneys from which appointments are made by the judges to ensure indigent defendants receive the benefit of experienced counsel in these serious cases. The Austin Division is the only major metropolitan division in the Western District that

has chosen not to adopt such a program to date. The San Antonio Division has a two-tiered (regular and more complex case) indigent defense panel. All panel members are expected to agree to mentor others who seek to gain experience in federal defense practice so they can join the panel of qualified attorneys. But in Austin, everyone’s still on the hook, and help comes informally. So, if you get “the call,” remember this: Don’t panic. There are resources available to help Criminal Justice Act (CJA) counsel. CJA refers to the federal statute governing appointment of counsel to indigent defendants. Austin is lucky to have a team of very experienced federal public defenders. The office of the Federal Public Defender (FPD) is the first line of counsel available to help indigent defendants, and they take as many cases as they

ethically can handle. However, in federal court, many indictments involve multiple defendants, and obviously one law firm cannot represent co-defendants in the same indictment due to the very real possibility of a conflict of interest. Jose Gonzales-Falla, Horatio Aldredge, and David Peterson will do their best to answer basic questions and point you in the right direction. You may reach them at 512.916.5025. The FPD’s website,, has many resources for CJA practitioners, including a list of helpful articles written by the very experienced staff throughout the Western District. Many private defense counsel who practice in federal court, such as myself, are happy to assist lawyers who wind up in this predicament. You may contact meAUSTIN at 512.479.4009, LAWYERor dan@ AL AL

Family Law Specialist Tim Whitten has practiced in family law since 1992. He has been certified *Kimberly A. Edgington as a Family Law Specialist by the Texas Board of Legal Specialization.

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Creative Solutions to Family Law We help people resolve their family law issues in a way that protects their interests and preserves their family relationships. Most family law cases can be difficult both from an emotional and financial perspective. We believe in reducing the emotional and financial stress by offering our clients alternative options to resolve their disputes, such as collaborative law, mediation and limited scope representation. Our firm also believe that clients reach better results when they resolve disputes cooperatively. However, when that isn’t possible, we commit ourselves to the ethical resolution of adversarial litigation.


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AUSTINLAWYER | DEC. 2016 / JAN. 2017


Texas Election Results BY ERIC WRIGHT


he November elections are behind us and the national race for President has certainly taken most of our attention (President-elect Trump carried Texas 52.39 percent to 43.34 percent for Secretary Clinton). As we begin the process of governing, we now turn our attention to the 85th Texas Legislative Session and the 115th United States Congress. While there are changes to those holding individual seats, the numbers of the Texas Congressional and Legislative delegations are virtually unchanged. The slightest change was an increase of five seats by Democrats in the Texas House of Representatives. STATEWIDE: Republicans again won all statewide offices on the ballot. Democrats have not won a statewide election in Texas since 1994. TEXAS CONGRESSIONAL DELEGATION: All of the incumbents on the ballot won re-election. Currently there are 25 Republicans and 11 Democrats in the Texas Delegation. The partisan split in 2017 will remain the same. There will be two new members in Texas Congressional Delegation: Vicente Gonzalez (D-McAllen) and Jodey Arrington (R-Lubbock). TEXAS SENATE: Of the three incumbent senators who had major party opposition, all won re-election. The Senate currently has 20 Republicans and 11 Democrats. In 2017, the Senate will still have 20 Republicans and 11 Democrats. The Senate will have three new members in Bryan Hughes (R-Mineola), Borris Miles (D-Houston), and Dawn Buckingham (R-Lakeway). TEXAS HOUSE: All 150 members of the House were up for election in 2016. Only 47 House incumbents had general election opposition, while 83 House

incumbents had no major party opposition. Currently, the House has 99 Republicans, 50 Democrats, and 1 Independent (elected in a Special Election in House District 120). The Democrats picked up five seats—one from the Independent, and four from Republicans. In 2017, the House will have 95 Republicans and 55 Democrats. The House will have 22 new members, and four former state representatives will be returning to the House. Seventeen House incumbents did not seek re-election; four incumbents were defeated in the Republican Primary; two incumbents were defeated in Republican Primary run-offs; and five incumbents were defeated in the General Election. Note: Representative Dawnna Dukes (D-Austin) was re-elected, but she has announced that she will resign before the Legislature convenes. House Incumbents Defeated in the General Election (5) 1. Kenneth Sheets (R-Dallas) in District 107 2. Rick Galindo (R-San Antonio) in District 117 3. John Lujan (R-San Antonio) in District 118 4. Linda Thompson (I-San Antonio) in District 120 5. Gilbert Pena (R-Pasadena) in District 144 New Members in the Texas House (22) 1. District 5 – Cole Hefner (RMt. Pleasant) 2. District 7 – Jay Dean (R-Longview) 3. District 18 – Ernest Bailes (R-Shepherd) 4. District 20 – Terry Wilson (R-Marble Falls) 5. District 33 – Justin Holland (R-Heath) 6. District 49 – Gina Hinojosa (D-Austin) 7. District 54 – Scott Cosper (R-Killeen) 8. District 60 – Mike Lang

(R-Granbury) 9. District 64 – Lynn Stucky (R-Sanger) 10. District 71 – Stan Lambert (R-Abilene) 11. District 73 – Kyle Biedermann (R-Fredericksburg) 12. District 77 – Evelina “Lina” Ortega (D-El Paso) 13. District 107 – Victoria Naeve (D-Dallas) 14. District 116 – Diana Arevalo (D-San Antonio) 15. District 118 – Tomas Uresti (D-San Antonio) 16. District 120 – Barbara GervinHawkins (D-San Antonio) 17. District 126 – Kevin Roberts (R-Houston) 18. District 128 – Briscoe Cain (R-Deer Park) 19. District 130 – Tom Oliverson (R-Cypress) 20. District 139 – Jarvis Johnson (D-Houston) 21. District 146 – Shawn Thierry (D-Houston) 22. District 150 – Valoree Swanson (R-Spring)

Congress Avenue Partners is comprised of principals Eric Wright (pictured above), Eric Woomer, Buddy Garcia, and Gregg Knaupe. The firm offers strategic legislative advice and political counsel. The views and opinions expressed are those of the author and do not necessarily reflect the views or opinions of the Austin Bar Association.

Former Members Returning to the Texas House (4) 1. District 4 – Former Representative Lance Gooden (R-Terrell) 2. District 55 – Former Representative Hugh Shine (R-Temple) 3. District 117 – Former Representative Philip Cortez (D-San Antonio) 4. District 144 – Former Representative Mary Ann AUSTINLAWYER Perez (D-Houston) AL AL

DEC. 2016 / JAN. 2017 | AUSTINLAWYER




Season of Giving


s the weather gets colder, decorations start going up, and holiday music begins playing in the air, it is impossible not to get into the holiday spirit. For most of us, the holidays provide some much-needed time off, and as the year comes to a close, a chance to reflect on the things and people we are most grateful for. As tough as the practice of law can be, I realize I’m very lucky. I count my blessings to be in a profession that provides a good way to make a living. I’m thankful for the wonderful people I work

with, my family and friends who support me, and the countless people who have helped me get where I am today. While I will certainly be thinking of my family, friends, and colleagues this holiday season, I will also take time to think of and celebrate people I don’t know. Because I am so lucky, I realize in my day-to-day life, I’m surrounded by people similar to myself. There is an entire segment of our community with whom I don’t regularly come into contact. Growing up, my parents emphasized the importance of giving back and donating to charity, and for that, I’m grateful. Every holiday season, we would get a wish list for a child in need and provide the child with clothes and presents. I would always try to pick a girl close to my age so I could pick out all the stuff I thought was cool. But through that

process, I never got to see the faces of the people we were helping or learn their stories. As an adult, I’ve learned so much by breaking out of my comfort zone and interacting with people I might not otherwise meet. I’ve mentored children at an elementary school in East Austin, worked with families under the poverty line, and interacted with children and families in the CPS system. Those experiences gave me new perspective. At times, they provided a huge culture shock, especially hearing the stories of families struggling to stay together. It not only made me appreciate my own fortune in a whole new light, but also made me more generous and understanding. This holiday season, I encourage you not only to give, but also to try to learn about the person you are helping. I love that AYLA provides opportunities

to do just that with its Reindeer Games event. This holiday celebration for needy families will be held on Sunday, December 11, 2016 from 1 to 3 p.m. at Parque Zaragoza. AYLA works with the Department of Family and Protective Services to identify families in need. The families partake in crafts and games, and we provide each family with a holiday basket made up of presents for their children and a gift card for groceries. I can tell you from experience there is no way to leave the event without a smile on your face! AYLA is currently seeking donations and volunteers to help with this effort. I hope you all have a wonderful and restful holiday, and a happy new year! The holiday season presents so many opportunities to give back, and I hope you findAUSTIN an opportunity that is LAWYER meaningful forAyou. L AL

AYLA 2017 MLK Day of Service


n honor of Dr. Martin Luther King, Jr., the Austin Young Lawyers Association will once again coordinate the annual MLK Day of Service in Austin on Monday, January 16, 2017. This local project is modeled after the national MLK Day of Service, which is intended to transform Dr. King’s life and teachings into community service to help solve social problems. This year’s volunteer events will feature some favorites from years past: Austin Animal Center, Austin Parks Foundation, BookSpring, and Austin Children’s Shelter, as well as a few



new opportunities. Please check future Bar Code announcements for additional project and registration details. For information about how to help coordinate a project, please contact Jorge Padilla at or Drew Harris AUSTIN LAWYER AL AL at

AUSTINLAWYER | DEC. 2016 / JAN. 2017

UPCOMING EVENTS THURSDAY, DEC. 8 AYLA Holiday Party 5:30 to 7 p.m. Mean Eyed Cat, 1621 W. 5th St. Sponsored by Kim Tindall & Associates, Rainmaker Document Technologies, and Spire Consulting Group. SUNDAY, DEC. 11 AYLA Reindeer Games 1 p.m. to 3 p.m. Parque Zaragoza, 2608 Gonzales St.

To donate and sign up volunteer, visit MONDAY, JAN. 16 MLK Day of Service To volunteer, email Debbie Kelly at THURSDAY, JAN. 20 AYLA Docket Call 5:30 to 7 p.m. Location TBD


All Aboard the AYLA CLE Ethics Bus


ringing together ethics and fun was once again proven to be a winning combination as AYLA served up ethics CLE on wheels for the third year in a row. AYLA members met their three-hour ethics CLE requirement aboard the AYLA Ethics Bus on October 5. Attendees traveled by chartered bus to the Deep Eddy Distillery in Dripping Springs, while listening to presentations on current ethical topics. Participants enjoyed a fun and easy way of earning ethics credit, while also networking with other young lawyers. The event was inspired by previous CLE ethics bus programs which traveled to Dry Comal Creek Vineyards and Deep Eddy Distillery. This year’s event was a great success due to the entertaining speakers. On the ride to the dis-

tillery, Mike Golden, of Boulette Golden & Marin, started the program off with his presentation on a lawyer’s duty of confidentiality. Golden included case studies of criminal and civil cases in which attorneys’ duties of confidentiality were at odds with what seemed like the right thing to do. Each case study was followed by consideration and application to examples of dilemmas lawyers frequently face in practice. Once attendees arrived at the distillery, they enjoyed a tour of the facility and a tasting of Deep Eddy’s flavored vodkas. While there, David Gonzalez, of Sumpter & Gonzalez, presented on the ethics of advising a client on how to handle a sobriety stop. Gonzalez covered the law, the policy employed by Austin Police Department, and practical implications.

Since this is a question lawyers are frequently asked by non-lawyer friends, the participants commented on how much they appreciated the helpful advice. On the bus ride home, Worth Carroll, of Sumpter & Gonzalez, presented on how to get clients to “eat their spinach” and follow their lawyer’s advice. Carroll provided perspective on dealing with clients with alcohol and drug addictions. He addressed the tricky ethical dilemmas that come with trying to get clients the help they need, while also helping them legally, and sometimes dealing with upset family members.

His presentation was followed by a panel discussion with all three speakers providing their perspectives on handling tricky dilemmas in accordance with ethical standards. AYLA would like to thank its speakers, Deep Eddy Vodka Distillery, and the generous sponsor, TERIS Litigation Support, which AUSTIN LAWYER made the event possible. AL AL

Bar & Grill—Once Upon a Vote


n the weekend before election day, AYLA held the 24th annual Bar & Grill show at the Scottish Rite Theater. This year’s show was a parody of the presidential election, with Donald Trump and Hillary Clinton and their respective supporters trying to win votes through song and dance. After a tied election, the candidates descended on Disney World to oversee a ballot challenge that would determine the winner. Songs included “More Unfavorable Polls,” “Build That Wall,” “Part of a Trial,” “If I Were the President,” “Electoral College,” and “When You Wish Upon a Vote.” Funds raised by Bar & Grill supports AYLA Foundation projects such as Reindeer Games and Women’s Resource Fair. AYLA would like to thank AUSTIN LAWYER AL AL the generous sponsors of the show and everyone who purchased tickets. BAR & GRILL SPONSORS PRODUCER Norton Rose Fulbright

UNDERWRITER Goldsmith, Bogisch & Chaires

SUPPORTERS Blazier Christensen Browder & Virr Friday Milner Lambert Turner PLLC Gardere Wynne Sewell LLP LawPay Margaret Moore & Robert Oliver Velva Price

PATRONS Berkeley Research Group Discovery Litigation Services O’Connell & Soifer The Sharp Firm

SPECIAL THANKS TO AusTex Printing and Mailing Bar & Grill Singers Capitol Wright Distributing Debbie Kelly Emily’s Catering Kristen Haraden & Ruben Rosado Mexcor International Wine & Spirits Pam Friday, Sarah Yurko, and Hill Country Middle School Studio E

TOP: The cast of the 24th Annual Bar & Grill Show; BOTTOM: Donald Trump (Rob Johnson, right) bemoans the latest poll results with his close advisors (from left, Paige Barnett, Matt Leslie, Laurianne Balkum, Hailey Hobren, Adam Schramek, Christie Mason, and Dan Dworin). Photos by Antony Ng. DEC. 2016 / JAN. 2017 | AUSTINLAWYER



Breach of Privilege/Confidentiality BY RACHAEL K. JONES


his is the last of a three-part series which began in the October issue. Although lawyers may not always think about it, legal ethics rules are just as applicable online as offline. To help avoid accidental violations of the Texas Disciplinary Rules of Professional Conduct (TDRPC) while using social media, here are a few final considerations and tips to keep in mind. CONFIDENTIALITY ISSUE: A lawyer’s duty of confidentiality to clients extends to “all information relating to a client or furnished by the client … acquired by the lawyer during the course of or by reason of the representation of the client,” and can attach even before an attorney-client relationship has been established. (TDRPC Rule 1.05(a).) Confidential information includes clients’ identities, and may even extend to geographic location when an attorney is traveling on confidential client business. As such, lawyers should be mindful that social media posts and photos may reveal their location through automatic geotagging. A lawyer may not disclose any confidential information unless the lawyer has engaged in a meaningful consultation with the client about the potential disclosure and the client

has given informed consent. (Note: This requirement does not apply to non-privileged information related to closed cases that is publicly available form court records.) Confidentiality issues may also arise in a settlement context. Lawyers, clients, and clients’ family members should all be mindful of the fact that, unless otherwise specified, confidentiality provisions in settlement agreements extend to social media as well. • Avoid mentioning former, current, and prospective clients on social media altogether. • Never disclose any information about a former, current, or prospective client without prior informed consent from the client. • Make sure your clients understand that confidentiality provisions in settlement agreements include social media. SPOLIATION ISSUE: Social media profiles and posts are discoverable in litigation, and lawyers have an ethical duty to preserve potentially relevant content from social media websites. Lawyers must ensure that clients understand and comply with this duty. Once litigation is reasonably anticipated, potentially relevant social media content may only be deleted or taken down if an appropriate record of the content

is maintained. (Keep in mind that a mere printout or PDF may be insufficient for this purpose, as the duty to preserve likely extends to metadata as well.) However, lawyers may generally advise clients to change the security settings on their social media profiles. • Advise clients about the duty to preserve all potentially relevant social media content once litigation is reasonably anticipated. • Advise clients to change the security settings on their social media profiles to “private” for the duration of the litigation process. • Ensure archival versions of social media content include metadata. UNINTENDED ATTORNEYCLIENT RELATIONSHIP ISSUE: Attorney-client relationships can be created through communications on social media. The most common scenario occurs when someone posts a legal question about a specific fact situation and an attorney responds. Although you may provide generally applicable legal information, providing any advice related to specific facts runs the risk of inadvertently creating an attorney-client relationship. An appropriate disclaimer may be helpful in this regard, but it is also imperative that your conduct remains consistent with the disclaimer. • Always include an adequate disclaimer in any response to a

post about a legal question. • Only provide general legal information, not fact-specific legal advice. UNAUTHORIZED PRACTICE OF LAW ISSUE: Remember that social media is not constrained by geographic or jurisdictional boundaries. Lawyers should avoid any conduct on social media that could potentially be interpreted as the unauthorized practice of law in jurisdictions where they are not admitted to practice. Keep in mind that lawyers’ online communications may also potentially be subject to the ethics rules of the jurisdictions where the recipients of the communications are located. • Be mindful of whether your conduct on social media could be construed as the unauthorized practice of law in another jurisdiction. In addition to the tips above, law firms would be well advised to consider implementing a formal social media policy to ensure that the conduct of all lawyers and non-lawyer staff remains compliant with the ethical rules. Do you have questions related to lawyers and social media, or a particular topic you’d like to see addressed? Please feel free to share your AUSTIN thoughts by emailing LAWYER AL AL


Negotiate With Confidence - Our Trial Team Has Your Back Meghan Alexander | David M. Gottfried | Michael Jurgens | Tara Gillespie


AUSTINLAWYER | DEC. 2016 / JAN. 2017


Pros and Cons of Establishing A Niche Practice BY AMY E. MITCHELL


here seems to be a trend in recent years for lawyers to move away from the type of generalist law practice many of us envisioned when we watched our first small-town lawyer television show. You know, the one where the only lawyer in town has no shortage of new and exciting cases to try, clients who are always able to pay, and the time to actually get up to speed in any and every field of law—all while enjoying time with family and attending all of the town events. Instead, many modern lawyers, especially solo practitioners and small firm lawyers, are finding that developing and marketing a narrowly focused or “niche” practice is the key to success and happiness in practicing law. For me, a niche practice was all I ever wanted. Becoming a music lawyer was the sole reason that I applied to law school, and I stubbornly refused to seriously consider another practice area despite seeing there were a number of music lawyers in my market already which could make entering that niche practice area more difficult. If I had been less stubborn, I would have considered related creative industries such as book publishing, photography, visual arts, etc.

However, I felt, because of my experience as a musician, I had important credibility for my intended niche. I suspect a higher percentage of lawyers stumble upon their niche rather than setting their sights on one. Who knew that pet photographers in Central Texas needed specialized legal representation? But, assuming you don’t have tunnel vision and haven’t stumbled upon a specialty, how does one decide whether a niche practice is the right choice? Here are a few pros and cons to consider. PROS More manageable. It’s hard for me to fathom taking any case that walks in the door. Focusing on a single practice area or type of clientele allows you to have a deeper knowledge of the legal subject than if you are a generalist. You will also likely be able to use your specialized knowledge for more than one client making you more efficient. Higher fees. If you become the go-to or “expert” in your field, then you can typically charge higher fees than your counterparts who may only dabble. And, if your niche is obscure, chances are only a handful of lawyers are familiar with the legal issues at all. If

there’s a demand for legal work and a small supply of lawyers who can fill it, fees tend to go up. Excellent marketing tool. Establishing yourself as “the animal photography lawyer in Texas” is simply more memorable than saying you are a family and estate planning lawyer in Texas. (Think of the domain names you can grab!) Having a deeper knowledge of your subject matter may also lend itself to publishing and/or lecturing, which can raise your profile so you attract the attention of prospective clients not just locally, but statewide, or even nationally. CONS Smaller prospective client base. By restricting the type of work you do, you are necessarily relying on a smaller potential client base. Whether your niche practice is feasible may also depend on your location. Is there already an established lawyer in that field in your market? If so, the law of supply and demand may suggest you try something— or somewhere—else. Takes time. Unless you have a bedrock client with lots of money from the get-go, it’s unlikely that you will be able to start a niche practice and have enough work in that niche to make the average lawyer pay for months, if not years. Be patient, network, and do “other” work, ideally in a tangentially-related field, while you continue to develop contacts and experience in the specialized field in which you want to work. If you do end up building a successful niche practice, you may find you are disappointed to no longer have time to do work in those other areas and are forced to outsource! Greater market risk. Putting all of your eggs in one basket can backfire if the laws or market changes. From personal experience watching the music industry go into a free fall a few

Amy E. Mitchell is a solo transactional entertainment lawyer serving creative professionals in the music, film, and television industries since 2004. She is the founder of the Entertainment & Sports Law Section of the Austin Bar Association and currently serves as the Chair of the Entertainment & Sports Law Section for the State Bar of Texas.

years back, this can be worrisome. Pivoting to a related practice area can be helpful. For example, I pivoted to work in film and television. My grounding in music law ended up being invaluable in my film and television practice because many producers I work with also have questions surrounding music licensing for their audiovisual projects, questions that other film lawyers tend to outsource. Voilà—new niche! In sum, ask yourself if there is an actual demand which isn’t being met in your market for the work you want to do. Or, be stubborn and scrappy like me and slowly, but steadily, enter the AUSTIN LAWYER L AL market waving your nicheAflag.

DEC. 2016 / JAN. 2017 | AUSTINLAWYER



The Joy of Teamwork—Making it Work for Everyone A Lesson From Another Profession: Share the Joy BY CLAUDE DUCLOUX


arlier this year, I expanded my legal role by becoming the Director of Education, Ethics and State Compliance for Affinipay, the Austin-based technology company providing the “LawPay” credit card services to lawyers everywhere. It provides “CPA Charge” to accountants, and general credit card services to thousands of other professionals, scores of state and local bar associations, and membership organizations. Spoiler alert: I love it. Every day, I am privileged to work with dozens of brilliant young people who are incredibly talented, fun, and dedicated. Happily, many of my new colleagues share my affinity for comedy and satire, but with youthful perspectives that are remarkably thoughtful and refreshing. Who knew being an elder statesman could be so fun? Since the first of the year, I


have presented dozens of CLE programs (primarily ethics and law office management) all across the USA, as well as eight national webcasts. As a result, my long-suffering legal assistant, Cheryl, has been learning the CLE rules in 42 states to qualify my many presentations for credit. She’s been awesome. I have not neglected my active schedule for the State Bar of Texas CLE, completing a dozen more speeches this year. And for our own Austin Bar, LawPay and I are creating an inventory of 10 CLE-approved speeches (45-60 minutes in length) which are being recorded at Austin Bar Association section luncheons. These CLE presentations will be on the Austin Bar website, provided free of charge to all Austin Bar members for selfstudy CLE credit. Yes, I am still practicing law. But this position allows me to

AUSTINLAWYER | DEC. 2016 / JAN. 2017

Here’s what I am most impressed with in watching this new environment: They seem to share joy better than my profession. After nearly 40 years as a litigation lawyer, my expectations have clearly been dulled by a culture that too often envies the successes of others rather than celebrating them. concentrate on those areas of law I truly enjoy—which include representing lawyers and firms in ethics matters—while leaving the child custody cases in the rearview mirror. Thank you, God. In preparing these presentations and videos, I have the most impressive assistance of a cadre of young people, including graphic designers, videographers,

software engineers, and wildly intense marketing folks. I am impressed, yet completely at their mercy, because when it comes to this stuff, I… know…nothing. I’m a like a grandpa strolling through Whole Foods who is quizzed about his favorite chai teas. Huh? I’ll tell Brittany, “Hey, I need a thingamabob in this presentation that creates one of those hyperflugels.” Brittany rolls her eyes and knows exactly what I need. Poof! It’s there. Then I’ll tell Justin, “Can you do that magic thing on this slide which does…you know… that cool thing?” Justin laughs, sips his weirdly healthy drink made of gluten brains, and creates magic for me. We have the coolest, smartest Chief Software Architect, James, who did a nationwide CLE with me on Cybersecurity for Lawyers. But he’s always cracking the whip about office security. Apparently, leaving a typewritten list on my desk of all my passwords is somehow unacceptable. But I like seeing the veins in his eyeballs when he sees it. You guys think I’m high-strung? Ha. Meet James. I’m like Jeff Bridges in the “Big Lebowski” compared to him. Yet, if we need to design some new cool feature for lawyers to bill or collect, his team of software developers (aka, the “dev” guys) can do it. They are

simply awesome. (Occasionally scary, too; but mostly awesome. Some even speak in completely understandable sentences. I bring them tributes to keep them happy. They seem to like cookies. Oh yeah: and beer.) I am sure they know when they explain how something works to me, and I nod my head, it’s merely a nod of feigned comprehension. I really have no idea what they’re talking about. But they know. They look at me like I’m a chimp being read Chaucer. The real “tell” is when I start crying. Here’s what I am most impressed with in watching this new environment: They seem to share joy better than my profession. After nearly 40 years as a litigation lawyer, my expectations have clearly been dulled by a culture that too often envies the successes of others rather than celebrating them. Perhaps it is the inevitable result of our

adversary system and the jerks it attracts. But during my career first as a government litigator, then in both a medium-sized and a huge national firm, I saw all too often that jealousies and rivalries had not been reserved only for opposing parties. They fester and thrive within firms themselves. Jockeying for position, bonuses, and professional credit often results in rumors and gossip that squeeze out esprit de corps. My joy for more than 26 years was having the honor of practicing with Allen Hill, Don Carnes, and Aaron de la Garza. We associated not for money, but just for overhead. With diverse practices, we never competed for clients, and we actually liked each other, thus satisfying the best and #1 rule I learned at a 1979 “Nuts and Bolts” lecture by Broadus Spivey: “There is no perfect way to practice law. But you gotta like the people you see every day.” And

more financially nimble at this I did. I am sure I got more than I problem solving, or non-lawyer gave, because they had to suffer para-professionals will fill those through numerous impromptu gaps much faster than the Unau(“Hey… listen to this!”) Bar & thorized Practice of Law CommitGrill script readings and Entre tee can close them. Nous ideas whenever the muse I know this is a longer conhit me, but they never once told versation. I’m interested in your me to shut up. Sure, they walked ideas on how we might encourage away muttering. But no direct more cooperation. Can we become “shut ups.” more agile and service-oriented? Now I get to see talented young Is there something we should be adults every morning. We meet, learning? collaborate, laugh, and work Now, as a start to decreasing hard on a great project helping jealousy between lawyers, I’m tens of thousands of lawyers and sure my beloved wife would other professionals operate more jokingly add: “Hey, maybe you efficiently and effectively. How should stop awarding lawyers cool is that? plaques every time they use the Is there any way we can right soup spoon.” That hurt my encourage better cooperation feelings. I love my “Best Use between and among lawyers? I of Soup Spoon” plaque. I keep suggest we look at ourselves first it next to my “Excellence in and foremost as problem-solvers Italics” plaque… and those are rather than gladiators putting on really rare. battle gear every time someone Happy holidays, and keep the asks for help. Like it or not, we AUSTINLAWYER faith. must, as a profession, become A L AL

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DEC. 2016 / JAN. 2017 | AUSTINLAWYER



Proposed IRS Regulations May Increase Estate and Gift Taxes on Transfer of Family Business Interests BY SONIA DESAI, DIRECTOR AND JARED C. JORDAN, MANAGING DIRECTOR HSSK, LLC, AUSTIN


ecent proposed changes by the Internal Revenue Service (IRS) to Section 2704 of the Code, if approved, may eliminate, or virtually so, valuation discounts that are applied in fair market value determinations of limited partnership interests in family partnerships (FLPs). The effect of the proposed changes may impact the transfer of family businesses across generations and potentially require small and mid-size family businesses to sell-off in order to pay the higher estate and gift taxes.

times of transition when ownership interests are divided amongst multiple family members: Reduced market valuations to reflect an individual interest owner’s inability to control business decisions and the fact that there is no ready market for the equity interest. By ignoring these economic realities, the proposed IRS changes may potentially inflate valuations of family businesses and increase resulting estate or gift taxes. Control would constitute the collective holding of at least 50 percent of either the capital or

Family members who collectively hold at least 50 percent of the equity of an entity would be assumed to exercise their control jointly to eliminate any restrictions on transfer or liquidation as stipulated in the company’s governing documents. The new regulations would remove long-recognized ways of valuing closely held and thinly traded equity interests. These techniques recognize the realities that face closely held companies at

profits interests of an entity. So if two siblings each hold a 50 percent interest in a family entity, control would be attributed to both of them, whereas before, neither would have been deemed to have control.

HSSK LLC ( is a business valuation, litigation consulting and financial restructuring advisor to companies and individuals. Ms. Desai and Mr. Jordan can be reached at the firm’s Austin office, 512.355.7870,, Family members who collectively hold at least 50 percent of the equity of an entity would be assumed to exercise their control jointly to eliminate any restrictions on transfer or liquidation as stipulated in the company’s governing documents. Interest holders would be assumed to have a hypothetical right to “put” their interests to the family entity and receive, within six months, cash and/or other property with a value that is at least equal to the minimum value of the interest. The family entity is the assumed “market” thereby substantially eliminating discounts for lack of marketability. These and other proposed

changes by the IRS to estate and gift tax regulations would increase by as much as 50 percent the federal estate and gift taxes on transfers of the ownership in family companies from one generation to the next through an estate or gift. Steps individual companies can take to protect themselves will vary according to specific situations. Family company owners should consult with their estate and financial planning advisors to review and evaluate the proposed regulations and possible gifting/planning strategies to mitigate their impact. A public hearing for these changes is set for December 1 with official enactment AUSTINoccurring LAWYER as quickly as 30 days A later. L AL

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The official publication of the Austin Bar Association, Austin Lawyer is published 10 times per year and goes to more than 4,000 legal profe...

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