Austin Lawyer, June 2019 by Austin Bar Association

austinbar.org JUNE 2019 | VOLUME 28, NUMBER 5

Early Donors Get a Sneak Peek at Hilgers House

he Austin Bar Association hosted the first of what will be many social events at our newly purchased headquarters, Hilgers House, on May 2, 2019. The happy hour celebrated the early donors who helped kick off the “Our Home on Judges Hill” capital campaign. In spite of the rainy weather, about 100 guests met at the new property at 712 W. 16th Street for drinks and appetizers and to tour the historic home on Judges Hill. The highlight of the evening was when President Adam Schramek revealed the spaces in the house named after major donors.

HILGERS HOUSE: FIRST FLOOR • Vinson & Elkins Front Gate • Howry Breen Veranda • Thompson Knight Foyer • Naranjo Ewbank Lounge • Terry Tottenham Boardroom, sponsored by Norton Rose Fulbright • Stanley and Karen Wang Kitchen • Sharp Mobile Bar • Graves Dougherty Hearon & Moody Conference Room • Justice Kelly Powder Room • Bill Whitehurst Leadership Wall, sponsored by Whitehurst, Harkness, Brees, Cheng, Alsaffar, Higginbotham & Jacob • Yvonne K. Puig and Edward O. Lent III Grand Staircase • (Still available for sponsorship: Office #1 – $7,500)

A few rooms remain available for sponsorships. HILGERS HOUSE: SECOND FLOOR • DeLaine Ward Executive Suites, sponsored by past presidents of the Austin Bar • Cleveland Terrazas Office • Senator Kirk Watson Covered Porch • (Still available for sponsorship: Offices #2 and #3 – $6,000 each.) HILGERS HOUSE: THIRD FLOOR • (Still available for sponsorship: Offices #5 and #6 – $6,000 each.) LOEWY FAMILY CARRIAGE HOUSE • Fowler Law Firm Patio • The AYLA Walkway • Jackson Walker Visionary Wall • (Still available for sponsorship: Conference Room – $50,000; and Guest Suite – $25,000.)

Thank you to all who have already donated to the “Our Home on Judges Hill” capital campaign. All donations—large and small— are greatly appreciated. The capital campaign will continue to strive towards its goal of raising $750,000 in order to equip Hilgers House with modern technology and furnishings, transforming the home into a functional, working office with meeting space. Updates will include making the home ADA

CLOCKWISE FROM TOP LEFT: Austin Bar President Adam Schramek reveals major donors and named spaces to attendees at the Hilgers House Sneak Preview Party. Jorge Padilla, Chris Mugica, and Michael Roberts enjoy the Howry Breen Veranda. Austin Bar Foundation board member Mishell Kneeland, Austin Bar President-Elect D. Todd Smith, Austin Bar Foundation board member Laura Sharp, Austin Bar member Lance Sharp, and Austin Bar Secretary Kennon Wooten. President Adam Schramek with Terry Tottenham, namesake of the Terry Tottenham Boardroom.

compliant and converting the detached three-car garage into a comfortable conference room. A few rooms remain available for sponsorships, and pavers and more naming opportunities will be available soon. If you are interested in learning more about these naming opportunities, contact DeLaine Ward at delaine@austinbar.org. All donors will receive recognition in Austin Lawyer

and on the Austin Bar website. Gifts of $1,000 to $4,999 will be recognized on the Jackson Walker Visionary Wall in the Loewy Family Carriage House, and gifts of $5,000 or more will be recognized on the Bill Whitehurst Leadership Wall in the main house. Donations can be made in recurring payments over five years. To donate and to see a complete listAUSTIN of donors, visit LAWYER AL AL ourhomeonjudgeshill.com.

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CONTENTS

AUSTINLAWYER JUNE 2019 | VOLUME 28, NUMBER 5 AL A L INSIDE FEATURED ARTICLES

CONNECTIONS

DEPARTMENTS 6

President’s Column

Briefs

Pro Bono Spotlight

Opening Statement

Third Court of Appeals Civil Update

Early Donors Get a Sneak Peek at Hilgers House

Third Court of Appeals Criminal Update

Robert W. Calvert American Inn of Court and Austin Bar Association Partnership a Smashing Success

Federal Civil Court Update

Another Bench Bar Conference Is in the Books

Federal Criminal Court News

Twelfth Annual Color of Justice Program

Entre Nous

Unregulated Weapons and Their Effect on Society and Future Regulation

AYLA

Practice Pointers

ONLINE

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AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION Adam Schramek........................ President D. Todd Smith............................. President-Elect Kennon Wooten....................... Secretary David Courreges...................... Treasurer Amy Welborn �� Immediate Past President

AUSTIN YOUNG LAWYERS ASSOCIATION Jorge Padilla............................... President Sandy Bayne............................... President-Elect David King................................... Treasurer Rachael Jones............................ Secretary Austin Kaplan............................. Immediate Past President

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Austin Lawyer (ISSN #10710353) is published monthly, except for July/August and December/January, at the annual rate of $10 membership dues by the Austin Bar Association and the Austin Young Lawyers Association, 816 Congress Ave., Ste. 700, Austin, Texas 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 816 Congress Ave., Ste. 700, Austin, Texas 78701. 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 U.S. Western District of Texas Federal Court and the Texas 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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Robert W. Calvert American Inn of Court and Austin Bar Association Partnership a Smashing Success Honoring the Texas Day of Civility

n Friday, April 12, 2019, a seminar room full of lawyers enjoyed a collaboration between the Robert W. Calvert American Inn of Court and the Austin Bar Association titled Honoring Professionalism and Civility as a Lawyer: A Half-Day of Free Ethics CLE for Austin Area Lawyers, Featuring Claude Ducloux, Patrick Keel, Judge Elisabeth Earle and Judge Eric Shepperd.

ligations through the mediation process. Judge Earle and Judge Shepperd engaged the group in a discussion of Why Civility Matters to the Court, filled with shocking examples of situations involving a lack of professionalism and civility, along with shining stories exemplifying why professionalism and civility matter to the court. In 1989, the Texas Supreme Court and the Court of Criminal Appeals promulgated the Texas

The support of ethical, professional, and civil practices is a core principle of the Robert W. Calvert American Inn of Court and the Austin Bar. Claude Ducloux’s presentation, titled Creating Strong and Effective Client Relationships: The Art of Collaboration and Communication, started the free, three-hour CLE off with a high-energy and high-yielding review of ethical issues and client communication keys as can only be shared by Mr. Ducloux. Patrick Keel’s presentation of Mediation Ethics generated discussion about candor to a mediator and the critical analysis of advocacy and ethical ob-

Lawyer’s Creed to renew the spirit of professionalism and support the spirit of civility in lawyer conduct. The Creed’s preamble includes: “The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession’s broader duty to the legal system. The Supreme Court of Texas and Court of

Judges Elisabeth Earle and Eric Shepperd, along with moderator Ann Greenberg, discuss Why Civility Matters to the Court.

Criminal Appeals are committed to eliminating a practice in our State by a minority of lawyers of abusive tactics which have surfaced in many parts of our country…. The desire for respect and confidence by lawyers from the public should provide the members of our profession with the necessary incentive to attain the highest degree of ethical and professional conduct.”

The support of ethical, professional, and civil practices is a core principle of both the Robert W. Calvert American Inn of Court and the Austin Bar. The free seminar was offered to support, encourage, and celebrate true professionalism and civility—values which should be celebrated throughout one’s AUSTIN LAWYER L AL life, not just for aAday.

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PRESIDENT’S COLUMN ADAM SCHRAMEK, PARTNER, NORTON ROSE FULBRIGHT

A Great Year to Be an Austin Lawyer

s another bar year comes to a close, let’s take a moment to look at the progress we made over the last 12 months and the foundation we laid for the futures of both our association and the Austin legal community. Our pro bono committee brought together pro bono service providers from across

the city to share information and coordinate programming unlike ever before. Chaired by Austin Kaplan, this committee promoted pro bono projects, drafted pro bono articles, and helped coordinate new projects like the Travis County Pro Bono Wheel. The Wheel is a new initiative led by Judge Amy Clark Meachum to provide Travis County courts with a roster of attorneys willing to take on certain pro bono matters relating to family law cases. The program has great potential to help address the access-to-justice gap. The community engagement committee, led by Blair Dancy and the Honorable Rudy Metayer, helped raise the profile of our association through various activities. The committee helped promote our monthly Free Legal

Our association is strong, and its future is bright. Advice Clinic for Veterans by coordinating our participation in the annual Veteran’s Day Parade. And we joined the LGBT Bar Association, now the LGBT Law Section of the Austin Bar, for the annual Pride Parade. But we’re not done yet. The committee is currently hard at work coordinating our entry in the Juneteenth Parade, which will be held on Saturday, June 15. I hope many of you will join me and attorneys from across Austin for this celebration. We also held investiture ceremonies for our new judges, expanded our membership to include paralegals, put on a world-class gala, had one of

our most successful Bench Bar Conferences to date, and just last month helped break ground on the new Travis County Courthouse (yes, it is finally happening). And, of course, we acquired a new home for the Austin Bar. If you have not seen the Hilgers House yet, you are in for a treat. It is a beautifully restored Texas landmark that will allow the good work of our association to continue for generations to come. It was a great year to be an Austin lawyer. Our association is AUSTIN LAWYER AL AL strong, and its future is bright.

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Another Bench Bar Conference Is in the Books BY SINEAD O’CARROLL, BENCH BAR COMMITTEE CO-CHAIR

TOP: The Honorable Rudy Metayer, Maria Cantú Hexsel, Danielle Ahlrich, and Associate Judge Aurora Martinez Jones. BOTTOM: Associate Judge Martinez Jones, Associate Judge Julio De La Llata, Aaron Culp, and Tyler Key.

TOP: Danielle Ahlrich, Jessica Mangrum, Megan Johnson, Amanda Taylor, and Judge Karin Crump. BOTTOM: Bench Bar Conference attendees listen to a panel discussion.

e had a great turnout for this year’s Bench Bar Conference on May 3, 2019 at the Austin County Club. The theme was “Building a Better Future—Connecting the Bench and the Bar.” The day focused on opening the lines

of communication between our judges and practitioners. Each of the panels featured several judges or court staff and allowed time for questions from the audience. Two rousing rounds of Judicial Bingo encouraged us to get to know each other better. Who knew that Judge Maya Guerra Gamble goes camping once a month, or that Justice Edward Smith plays the banjo? During the morning panels, Court Administrator Warren Vavra, along with Judges Lora Livingston and Todd Wong talked about navigating Travis County’s central docket—watch out for those red and yellow lights when you set your hearings! Judges Scott Jenkins, Darlene

Byrne, Amy Clark Meachum, and Jan Soifer shared some potential changes to the Travis County District Court standing orders, an overview of the CPS submission docket, and a pilot program for an attorney ad litem pro bono wheel to be used in certain family law matters. If you would like to participate in the ad litem pro bono wheel, email Appointments. Fees@traviscountytx.gov for an application. Up next, staff attorneys— Jenny Brannen, Kathryn Baffes, Megan Johnson, Brent McCabe, and Andrew Williams—gave us practical advice for each stage of litigation based on their judges’ preferences and the technology used by each of the courts. Lunch featured a moving talk from Judge Julie Kocurek about being shot, the investigation of that crime, the trial and conviction of her assailant, passage of the Judge Julie Kocurek Judicial and Courthouse Security Act of 2017, and tips for judicial and attorney safety. The afternoon kicked off with

a “Peek Behind the Curtain,” during which Judges Robert Pitman, Cliff Brown, Karin Crump, and Tim Sulak shared their perspectives on discovery disputes and voir dire, as well as their conversations with jurors, court staff, and other judges about the attorneys who appear before them. Then Chief Justice Jeff Rose, Judges Dustin Howell and Tamara Needles, and U.S. Magistrate Judge Mark Lane provided tips on oral and written advocacy. The day closed with a virtual tour of the new Travis County Courthouse, which will have 25 courtrooms, a law library, a public meeting space, a café, a childcare center, and mothers’ rooms. The groundbreaking was held on May 31, 2019 and the target completion date is late 2022 or early 2023. Thank you to this year’s sponsors, and an even bigger thank you to all the judges, court staff, and lawyers who participated in panels and/or attended the event. Bench Bar LAWYER would not be AUSTIN L AL possible withoutAyou! JUNE 2019 | AUSTINLAWYER

Twelfth Annual Color of Justice Program BY THE HONORABLE ORLINDA NARANJO

he twelfth annual Color of Justice program was held on May 1, 2019 at the UT School of Law. The event was sponsored by the National Association of Women Judges (NAWJ), in partnership with the Travis County Women Lawyers’ Association (TCWLA), and the UT School of Law William Wayne Justice Center for Public Law. The event was attended by high school students from Akins High School and featured two panel discussions with speakers sharing their personal experiences and backgrounds. They discussed the importance of personal commitment and perseverance, as well as the role and importance of lawyers and judges in our society. The judges’ panel was moderated by Judge Brandy Mueller, Travis County Criminal Court at Law #6 and NAWJ District Director for District 11. The judges on the

panel were Justice Gisela Triana, Third Court of Appeals; Senior Judge Orlinda Naranjo, NAWJ Vice-President of Districts; Judge Carlos Barrera, Travis County Criminal Court at Law #8; and Travis County Associate Judge Aurora Martinez Jones. The lawyers’ panel was moderated by Jennifer Hopgood, Assistant Travis County Attorney and chair of the TCWLA Color of Justice Program. The panel consisted of Chris Mugica, partner at Jackson Walker; J. Michael Ohueri, Travis County Assistant District Attorney; Meagan Harding, senior attorney at Texas Civil Rights Project; and Eliana Maruri, solo practitioner specializing in immigration law at Maruri Law. Every year, NAWJ awards a $1,000 “Access to Justice” scholarship to a student who has demonstrated a commitment to public interest law. Judge Mueller presented the scholarship

to Kiah DeBolt, a third-year law student at the UT School of Law. DeBolt has over 300 pro bono hours. She has been selected for the inaugural 4Girls Foundation Fellowship with SAFE Alliance to begin in the fall after graduation. DeBolt was diagnosed with a brain disease at TOP: The lawyers’ panel (from left): Eliana Maruri, Chris the age of 16 and Mugica, J. Michael Oheuri, Meagan Harding, and moderator has had over 14 Jennifer Hopgood. BOTTOM: The judges’ panel (from brain surgeries. left): Justice Gisela Triana, Senior Judge Orlinda Naranjo, She captivated the moderator Judge Brandy Mueller, Judge Carlos Barrera, audience when she and Associate Judge Aurora Martinez Jones. shared her health struggles and demonstrated what for also sponsoring the luncheon commitment and perseverance for the judges and attorneys, and really means if you want to to the law students who sat with attain your goal. the Akins students, allowing for AUSTIN LAWYER AL AL A special thanks to TCWLA more personal connection.

Ken Davison Greg Bourgeois Eric Galton David Moore Kim Kovach Fred Hawkins Ben Cunningham Lynn Rubinett Lucious Bunton

AUSTINLAWYER | JUNE 2019

Unregulated Weapons and Their Effect on Society and Future Regulation BY SHARESA Y. ALEXANDER AND NIKKI G. MAPLES, MEMBERS OF THE ROBERT CALVERT INN OF COURT

id you know you could receive a $4,000 fine and up to a year in jail just for carrying a keychain, but nothing for carrying a crossbow or a machete? During its March pupilage team presentation, the Robert Calvert Inn of Court grappled with this and other dichotomies related to regulated versus unregulated weapons. There are a multitude of weapons and other items that could likely cause serious injury, bodily harm, or even death, but are not regulated by federal or state law. And, when it comes to the potential to cause such harm, many regulated weapons seem to pale in comparison to some of the ones that are not regulated. For example, for self-defense, a cat-shaped keychain with sharply pointed ears, often carried by women for protection, is considered a “knuckle” under Texas Penal Code Chapter 46. A person is subject to a Class A misdemeanor just for carrying the keychain. However, a crossbow, which is capable of shooting an arrow at over 270 miles per hour and often used for hunting, may be carried anywhere with no restrictions. Similarly, knives with blades shorter than 5 ½ inches may be carried anywhere, and those over 5 ½ inches may be carried in locations that are not restricted under Chapter 6 of the Texas Penal Code. So, a person may carry a 20-inch machete without recourse, as long as it is not carried in a restricted location. On a more serious note, on October 1, 2017, a bump stock, which transforms a semi-automatic weapon into an automatic weapon, was used to kill 58 people and injure 851 more during a shooting in Las Vegas.

However, air guns have evolved to be far more complex and powerful, and are the preferred weapons for some big-game hunters. Also, such guns may be legally fitted with sound suppressors, (a.k.a. silencers), which are prohibited for use on regulated firearms. DEADLY WEAPONS

Calvert Inn presenters from left to right: Jennifer Freel, Ryan Squires, Sara Crockett, John P. Vacalis, Sharesa Y. Alexander (team leader), Ryan Kercher, Nikki G. Maples, Maria Cantú Hexsel, Steve Benesh, Amy L. Saberian, Xavier Medina, Raymond E. White, and Jane E. Atwood.

This fatal event sparked a change in legislation, and on March 26, 2019, new rules regulating bump stocks took effect. Surprisingly, other weapons, such as homemade guns and explosives, air guns, and other potentially dangerous weapons, remain unregulated. HOMEMADE GUNS

The most common homemade guns are created by gun kits and 3D printers. Generally, gun kits are purchased online by ordinary consumers. Gun-kit vendors evade licensing requirements because the kits are advertised as the sale of parts, without a receiver—thus, not meeting the definition of a firearm under 18 U.S.C. 921(a)(3). Like the gun kits, 3D-printed guns also evade federal regulation when altered to avoid meeting the definition of a firearm. Also, the U.S. Federal Court recently held that publicly sharing designs or blueprints for making such weapons is considered free speech and does not violate existing laws.

EXPLOSIVES

Homemade combustibles and exploding targets are referred to as “improvised explosive devices” by the Texas Bomb-Making Materials Awareness Program, which defines them as “completed or operational bomb[s] designed to cause serious bodily injury, death or substantial property damage [and] fabricated in an improvised manner using non-military components.” However, as with gun kits, Texas does not consider the legal purchase of these unassembled components to fall within this definition. Nor does Texas consider an exploding target sold in kit form to be an “improvised explosive device.” AIR GUNS

Air guns also fall within the loophole of unregulated weapons because, under federal law, “no state shall prohibit the sale (except to minors) of traditional BB, paintball or pellet-firing air guns that project the force of air pressure.” 15 U.S.C. 5001(g)(ii).

Although there is a lack of regulation for many weapons, some may be regulated indirectly. A person commits a crime if he or she uses a weapon or item in such a way that it would be considered a deadly weapon. In Allen v. State, No. B14-9100890-CR, 1992 WL 352984 (Tex. App.—Houston [14th Dist.] Dec. 3, 1992, no pet.) (mem. op.), the Fourteenth Court of Appeals held that there was sufficient evidence for a jury to determine a crossbow used to commit a homicide was a deadly weapon. A deadly weapon can be anything manifestly designed, made, or adapted for inflicting death or serious bodily injury, or anything that in the manner of its use or intended use can cause death or serious bodily injury. So, anything—including the weapons listed above, a slingshot, darts, tomahawk, or just a good ol’ cast-iron skillet —may be considered a deadly weapon, thus subjecting the user AUSTIN LAWYER AL AL to criminal prosecution. Sharesa Y. Alexander is a senior associate with O’Hanlon, Demerath & Castillo, where she serves as general counsel to multiple school districts, businesses, and municipalities. Nikki G. Maples, of the Law Office of Nikki G. Maples, practices family law with a focus on complex property division of marital estates and custody disputes. JUNE 2019 | AUSTINLAWYER

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Emily Ashby Karen Ashworth Daniel Bell-Garcia Marshall Bowen Josh Brockman-Weber Steven Kennedy Tyler Key Anna Miller Ian Shelton

TOP ROW: Icenhauer-Ramirez, LaFrey, Slack Davis Sanger’s inaugural Austin Managing Partner Forum of 2019

AWARDS

Robert Icenhauer-Ramirez has written a book titled Treason on Trial: The United States v. Jefferson Davis, just released by

LSU Press. The book analyzes the post-Civil-War saga of some of the nation’s preeminent lawyers and judges in their struggle to try the former president of the

Confederacy for treason. The book will be released on Amazon on June, 5, 2019. NEW TO THE OFFICE

Briggs & Veselka Co., a leading audit, tax, and consulting services firm, is pleased to announce the acquisition of Financial Valuation Services (FVS), a business valuation and financial consulting firm in Austin. FVS and its employees will relocate to the Briggs & Veselka Austin office. William D. Powers and Jamie M. Kerr are now partners in Powers & Kerr, PLLC, 8911 North Capital of Texas Hwy., Suite 2105, Austin 78759. McGinnis Lochridge is pleased to announce that Timothy (Tim) L. LaFrey has joined the firm as of counsel in Austin. LaFrey joins the firm’s corporate and tax practice group, bringing his extensive experience in the areas of corporate finance, securities, healthcare, and mergers and acquisitions. OF INTEREST

Slack Davis Sanger held the first Austin Managing Partner Forum (MPF) of 2019. Eden Minucci of Minucci Consulting led the discussion on how to stack your organization with ideal team players to increase productivity and decrease negative issues. MPF brings the Austin legal profession together for the purpose of providing premier networking and educational opportunities for AUSTINLAWYER AL AL managing partners.

AUSTINLAWYER | JUNE 2019

PRO BONO SPOTLIGHT

The Austin Bar Pro Bono Committee: Year One Recap An Interview with Committee Chair, Austin Kaplan AL: What is the Austin Bar Pro Bono Committee? AK: It is one of the newest committees of the Austin Bar Association! It was my privilege to chair its inaugural year. The vision for the committee was to bring pro bono stakeholders together to meet, plan, and collectively come up with great ideas to fill the gaps between pro bono services, and help coordinate everyone’s pro bono efforts. AL: What did the committee accomplish this year? AK: We accomplished a lot! During National Pro Bono Week in October, we held the first Pro Bono Celebration party at the Highball to celebrate every Austin Bar member who handled at least one pro bono case or volunteered at a legal clinic in the past year. Keep an eye out for the second annual party and more exciting opportunities for national pro bono week this fall. CANLAW, spearheaded by committee members Caitlyn Haney Johnston and Amber Haney, held three clinics— serving 72 clients within the clinic and referring several more clients to volunteers within our network. CANLAW utilized over 60 volunteers, including attorneys, paralegals, and law students. Thanks to information shared at a Pro Bono Committee meeting, CANLAW applied for and received a $1,500 grant from the Travis County Women Lawyers’ Association to prepare an informational video about its efforts. The Capital Area Paralegal Association (CAPA), spearheaded by committee member and paralegal Amber Haney, coordinated its members to volunteer over 200 hours in 2019 at various pro bono events, 12

AUSTINLAWYER | JUNE 2019

including volunteering for the first time at the AYLA Community First! Clinic and at the Austin Bar’s Self-Represented Litigant Project at the Travis County Law Library and SelfHelp Center. An estimated 50 CAPA members participated in pro bono projects this year. We welcomed the new State Bar of Texas Administrator of Pro Bono Programs, Hannah Allison, to the committee and, with her assistance, coordinated our efforts with probonotexas.org. The State Bar is talking to other local bar associations to see if and how they might adopt our Pro Bono Committee concept to their organizations. We are already working on coordinating a national pro bono week e-clinic at Texas Law Center for Oct 23, 2019. Stay tuned! We also welcomed Anne-Marie Rabago from the Texas Opportunity and Justice Incubator (TOJI) program. The State Bar launched TOJI in 2017 to bridge the justice gap by having new lawyers who have practiced for fewer than five years serve low- and modest-income Texans in exchange for free training and mentorship. The committee identified pro bono opportunities for the cohort of 38 TOJI attorneys, who each have pro bono service obligations of 10 hours per month. As an example, four TOJI lawyers volunteered at the winter CANLAW clinic. Committee member Sarah Saltmarsh re-launched the Courthouse Mediation Project, offering free mediation on two Fridays per month between January and March at the Travis County Civil Courthouse. We discussed ways to help get the word out among judges and practitioners about the project. The project is off to a good start, and discussions are underway

& STEPPING UP

STEPPING OUT to make pro bono family law packets more easily available to self-represented litigants at the courthouse. We considered ways to improve pro bono attorney ad litem appointments by judges, working with the bench and members of the bar to create a new system for those appointments. Committee member Doug Lawrence has already trained the TOJI cohort, and information was circulated about the Travis County Pro Bono Wheel at the Bench Bar Conference. We welcomed Armin Salek from the Akins High School Legal Aid Clinic to the committee. The Akins Clinic currently handles wills and immigration cases utilizing fluent bilingual speakers. They also feature an extensive mock trial program. We believe this is the first high school legal aid clinic of its kind in the country. Salek has been working with the committee to better coordinate Akins’ efforts with that of the Austin Bar and its resources. At least two pro bono groups whose representatives serve on the committee are currently in talks to host

events at Akins thanks to the connections made at committee meetings. We coordinated with Crystal Massey from American Immigration Council to help place 18 cases for detainees needing pro bono representation at the Pearsall detention facility—and many of the 18 were placed with the Austin Bar’s pro bono attorney volunteers. Finally, we supported efforts to adopt Model Rule 6.05 statewide, which would make provision of pro bono service easier. AL: Will the committee continue for the next bar year? AK: Definitely. Dates are TBA. AL: How can I get involved with the Pro Bono Committee? AK: Email Carol Tobias at carol@austinbar.org and ask to have your name put on the list to join the committee. AL: Should I encourage my friends and colleagues to get involved with the Pro Bono Committee? AK: Absolutely. up and AUSTINStep LAWYER AL AL step out—do pro bono!

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SALES $ VOLUME

SOLD PRICE/ SQFT AGV

DAYS TO SELL AVG

78701* 78702

101

$678,906

$10,862,500

$698

$477,307

$7,159,600

$487

78703

$892,324

$13,384,860

$336

78704

$900,347

$36,013,880

$456

78705*

$349,958

$6,299,250

$349

78731

$915,230

$24,630,975

$327

78733

$858,274

$14,590,650

$271

78735

$1,039,038

$23,897,863

$263

78746

112

$1,347,024

$47,145,830

$364

78751

$537,857

$3,765,000

$329

78757

$553,215

$21,022,176

$412

If you would like to further discuss the market value of your home, contact me. *2019 MLS Data

ANDREW H. WARE, JD REALTOR®

512.484.3409 c andrew@moreland.com JUNE 2019 | AUSTINLAWYER

OPENING STATEMENT

Saxon Words and Romance Words, Part 3 BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

n this final column on Saxon and Romance words, I introduce two techniques for creating memorable, persuasive prose. By the way, how’re you doing at spotting Saxon and Romance words? As a final quiz, name the Saxon alternative for each Romance verb: cogitate, emancipate, imbibe, inundate, and masticate. (Answers at the end.) In persuasive writing, some judges prefer Saxon words: “[The best advocates] will master the short Saxon word that pierces the mind like a spear .…” Hon. Robert H. Jackson, U.S. Supreme Court.1 Another example: “A healthy respect for the robust Anglo-Saxon appeals more than does the Latin .…” Hon. Wiley B. Rutledge, U.S. Supreme Court.2 Here are two persuasivewriting techniques that combine Saxon words with Romance words—relying on differences in tone, formality, and force. The two techniques are the Saxon Restatement and the Saxon Finish.

THE SAXON RESTATEMENT

With this technique, you state a proposition using primarily Romance words and then restate the proposition using primarily Saxon words (or vice versa). Abraham Lincoln did it in his House Divided speech: • “I do not expect the Union to be dissolved; I do not expect the house to fall.”3 Lincoln essentially says the same thing twice: with Romance words (union, dissolve) and then Saxon (house, fall). He names lofty concepts and then brings them down to earth, creating a forceful, memorable couplet. Winston Churchill did something similar in a famous speech:

• “I have nothing to offer but blood, toil, tears, and sweat. We have before us an ordeal of the most grievous kind.”4 Here Churchill reversed the pattern, starting with Saxon (blood, toil, tears, and sweat) and reiterating with Romance (ordeal and grievous). The real, physical sacrifices are named and then connected to the abstract concepts. I’ve created examples by modifying text from appellate briefs: • The jury justifiably relied on the photographic evidence because images are unable to prevaricate; pictures cannot lie. Here, image, able, and prevaricate are Romance; cannot and lie are Saxon. The lofty legal concepts are made concrete. Another example: • Albrecht’s only obligation under the order was to remunerate the seller for the vehicle she purchased—to pay for what she bought. THE SAXON FINISH

With this technique, you state a single proposition, but after

beginning with Romance words, you finish with Saxon. Oliver Wendell Holmes did it well. Here are two examples from his dissenting opinions—the Saxon Finish is italicized: • “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”5 • “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.6 Holmes builds up to a big idea with Romance words; then he states the idea with Saxon words. The result is a forceful wrap-up. I’ll give it a try: • Petrolco asks this court to affirm the trial court’s interpretation of section 216(b) so that punitive damages are grafted onto the text—an interpretation that produces an entirely different class of remedy

from mere legislative silence. Petrolco asks too much. • The drug would be located in the deceased’s system only under illicit conditions because having the drug is against the law. Granted, both techniques might be more common in a speech. Still, they’re techniques you could add to your persuasion toolbox. (Answers: cogitate/ think, emancipate/free, imbibe/ drink, inundate/flood, AUSTIN LAWYER and masL AL ticate/cA hew.) Footnotes: 1. Collected in Bryan A. Garner, Judges on Effective Writing: The Importance of Plain Language, Mich. B. J. 44-45 (Feb. 2005). 2. Id. 3. Quoted in Ward Farnsworth, Classical English Style (forthcoming). 4. Id. 5. Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting). 6. United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting). Wayne Schiess’s Austin Lawyer columns are collected in a book available on Amazon.com: Legal Writing Nerd: Be One.

JUNE 2019 | AUSTINLAWYER

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AUSTINLAWYER | JUNE 2019

THIRD COURT OF APPEALS CIVIL UPDATE

The following are summaries of selected civil opinions issued by the Third Court of Appeals during April 2019. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of May 3, 2019.

TCPA: Court holds that TCPA applies to attorney disciplinary proceedings. Commission for Lawyer Discipline v. Rosales, No. 03-1800147-CV (Tex. App.—Austin April 3, 2019, no pet. h.). Commission brought a disciplinary proceeding against Rosales. The trial court granted Rosales’ motion to dismiss under the TCPA. The TCPA exempts enforcement actions brought in the name of the state or a political subdivision by the attorney general, a DA, a criminal DA, or a county attorney. Commission contended that the State Bar is a subdivision of the state and thus was exempt. The court of appeals observed that neither the Commission nor the Chief Disciplinary Counsel are among the entities exempted. Accordingly, under the plain language of the TCPA, attorney disciplinary actions are not exempt. The court further held that the Commission carried its burden to establish a prima facie case of professional misconduct and

that Rosales failed to establish a defense. The majority reversed and remanded. The concurrence concluded disciplinary proceedings are not subject to the TCPA. TRIAL PROCEDURE: Court looks to docket entry in review of nunc pro tunc judgment. Ramirez v. Ramirez, No. 03-1800200-CV (Tex. App.—Austin April 11, 2019, no pet. h.) (mem. op.). The parties’ informal settlement agreement (ISA) gave a portion of husband’s 401k to wife, with husband retaining the remainder. The decree divided the 401k differently than the ISA. Husband filed a motion for nunc pro tunc, contending the decree contained a clerical error. The trial court signed a nunc pro tunc decree in conformity with the ISA. On appeal, wife contended that the decree contained a judicial error that could not be corrected by nunc pro tunc. The court of appeals noted that a judgment is rendered by an oral pronouncement, memorandum filed with the clerk, or other public announcement. The court looked to a docket entry to conclude that the trial court had rendered judgment on the ISA, and thus, the error in the decree was clerical. The court affirmed. FAMILY LAW: Court modifies decree to comply with MSA. Jonjak v. Griffith, No. 03-18-

00118-CV (Tex. App.—Austin April 12, 2019, no pet. h.) (mem. op.). The parties signed a mediated settlement agreement (MSA) that gave Griffith $962,000 from a 401k as of the date of mediation. The QDRO tracked the MSA but awarded Griffith interest, dividends, gains, or losses on the amount. On appeal, Jonjak contended that the decree conflicts with the MSA. The court of appeals noted that trial courts have no discretion to modify MSA terms and must render judgment in strict compliance with the parties’ agreement. The MSA did not address gains or losses in the 401k. The court rejected Griffith’s argument that the addition of the fluctuation language was a clarification of the MSA. The court concluded the decree divided the 401k differently than the MSA. The court modified the decree to delete the fluctuation language and affirmed.

Laurie Ratliff, a former staff attorney with the Third Court of Appeals, is board certified in civil appellate law by the Texas Board of Legal Specialization and an owner at Laurie Ratliff LLC.

parties intended the agreement to be mutual and binding, despite Hi Tech’s failure to sign. According to the court, signatures are not required if the parties consent to the contract’s terms and there is no evidence of an intent to require signatures as a condition precedent to the contract becoming effective. ARBITRATION: Court Here, the contract provided affirms denial of motion to unambiguous evidence of intent compel arbitration. to require both signatures as a Hi Tech Luxury Imports, LLC condition precedent for enforcev. Morgan, No. 03-19-00021ment. The contract repeatedly CV (Tex. App.—Austin April referred to “both parties” 30, 2019, no pet. h.) (mem. agreeing to the contract’s terms. op.). Morgan sued Hi Tech for The contract’s signature blocks wrongful termination. The trial also indicated both signatures court denied Hi Tech’s motion to were required for the agreement compel arbitration. The court of AUSTIN to be LAWYER enforceable. The court appeals addressed whether the AL AL affirmed.

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THIRD COURT OF APPEALS CRIMINAL UPDATE

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

The following are summaries of selected criminal opinions issued by the Third Court of Appeals during Nov. 2018. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of May 1, 2019.

CELL PHONE SEIZURE AND SEARCH: Police had probable cause to seize and search cell phone that was found in vehicle during traffic stop, and 20-month delay between seizure and search of phone was not unreasonable under the circumstances. King v. State, No. 03-17-00276CR (Tex. App.—Austin Nov. 2, 2018, pet. ref’d) (mem. op., not designated for publication). During a consensual search of a

vehicle following a traffic stop, methamphetamine had been discovered. King was a passenger in the vehicle, and his cell phone was seized without a warrant during the search. The phone was later searched pursuant to a warrant, approximately 20 months after the phone had been seized. The trial court denied King’s pretrial motion to suppress evidence that had been found in the phone. King then pleaded guilty to narcotics possession with intent to deliver. On appeal, King raised several arguments, including that the warrantless seizure of the phone was not supported by probable cause and that the 20-month delay between the seizure and search of the phone was unreasonable. The appellate court affirmed. The court concluded that the incriminating nature of the phone was immediately apparent to the officers who seized it, based on the large amount of methamphetamine that had been found in the vehicle and the “collective knowledge” of the officers who had participated in the search. The court also concluded that the 20-month delay was not unreasonable under the circumstances, which included that King had not sought the return of the phone while it was in police custody. DOUBLE JEOPARDY FOLLOWING REVERSAL OF CONVICTION ON APPEAL: Trial court erred in concluding that appellate court’s reversal of defendant’s

conviction barred retrial. State v. Freeman, No. 03-1800050-CR (Tex. App.—Austin Nov. 14, 2018, pet. ref’d) (mem. op., not designated for publication). Freeman had been convicted of the offense of family-violence assault. The appellate court reversed his conviction and remanded for a new trial, concluding that the trial court had applied an incorrect burden of proof and found Freeman guilty “by the clearer weight and degree of credible testimony.” Upon remand, Freeman filed an application for writ of habeas corpus, asserting that he had been “functionally acquitted” of the offense because the trial court had failed to find him guilty beyond a reasonable doubt. Thus, in Freeman’s view, double jeopardy barred retrial. The trial court granted relief and ordered Freeman acquitted. The appellate court reversed. The court explained that Freeman had been found guilty in the previous trial; he had not been acquitted. Moreover, Freeman had misconstrued the language in the appellate court opinion. The court had concluded that Freeman had been denied his right to be convicted based on proof beyond a reasonable doubt. The remedy for that “erred process” was retrial, not acquittal. Consequently, double jeopardy did not apply. APPLICATION OF “THE RULE” TO WITNESS TESTIMONY AT PUNISHMENT HEARING: Trial court did not abuse its discretion in allow-

ing victim’s mother to testify during punishment hearing, even though she had been in the courtroom during victim’s testimony. Newberry v. State, No. 03-1700804-CR (Tex. App.—Austin Nov. 15, 2018, no pet.) (mem. op., not designated for publication). Newberry pleaded guilty to the offense of sexual assault. At the beginning of the punishment hearing, the trial court instructed the witnesses to be present in the courtroom only when offering their testimony. See Tex. R. Evid. 614 (“the Rule”). The woman who had been assaulted by Newberry testified during the hearing, and her mother was present in the courtroom at the time. The State later called the mother to testify. Newberry objected, citing the Rule, but the trial court overruled the objection. On appeal, Newberry asserted that this was an abuse of discretion. The appellate court disagreed, explaining that the victim’s mother “had no personal knowledge of the charged offense” and testified only at the punishment hearing. The court followed other courts in Texas that have held that there is no violation of the Rule under such circumstances. The court observed that the mother’s testimony “did not concern the offenses” and was limited to discussing the effect of the assault on her family. Finally, the court concluded that Newberry failed to showAUSTIN any prejudice from the LAWYER AL AL mother’s testimony.

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FEDERAL CIVIL COURT UPDATE

Wilson Stoker is board certified in labor and employment law by the Texas Board of Legal Specialization and senior counsel with Cokinos | Young.

The following are summaries of selected civil opinions issued by the U.S. Court of Appeals for the Fifth Circuit. The summaries are intended as an overview; counsel are cautioned to review the complete opinions.

ATTORNEY IMMUNITY DOCTRINE: Under Texas law, an attorney is immune from civil suits brought by a non-client when the conduct at issue occurred within the scope of the attorney’s representation of a client. Troice v. Greenberg Traurig, L.L.P., No. 17-11164, 921 F.3d 501 (5th Cir., April 17, 2019). The underlying facts of this suit related to criminal actions involving the R. Allen Stanford Ponzi Scheme, where funds raised from certificate of deposit sales were taken and reissued to purchasers as if they were returns from investments. The scheme eventually collapsed and multiple criminal prosecutions and civil suits were brought. A group of investor plaintiffs filed suit against Greenberg Traurig (“Greenberg”) under a respondeat superior theory, alleging that a Greenberg attorney conspired with Stanford to further the fraud. The district court granted Defendants’ motion to dismiss for lack of subject-matter jurisdiction. Plaintiffs also sought certification to 20

AUSTINLAWYER | JUNE 2019

the Supreme Court of Texas on a question of state law upon which the case turned. The district court denied the motion for certification. Plaintiffs appealed. Plaintiffs alleged that, despite general immunity, Texas law provides for three exceptions to the attorney immunity doctrine. First, Plaintiffs asserted that Greenberg’s acts fell outside the litigation context. The Fifth Circuit, in declining to apply the exception to Plaintiffs’ claims, noted, quoting from Youngkin v. Hines, 546 S.W.3d 675, 682 (Tex. 2018), that the purpose of attorney immunity is to “promote ‘loyal, faithful and aggressive’ representation” in a comprehensive manner. Relying on Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015), the Court further observed that although the doctrine is not “limitless,” application is broad—the underlying rationale being to free attorneys to “practice their profession” and “advise their clients. . . without making themselves liable for damages.” Second, Plaintiffs claimed that attorneys are not immune from suit when they engage in criminal conduct, arguing that criminal conduct is never within the scope of representation. The Fifth Circuit reasoned that although criminal conduct can negate attorney immunity, it does not automatically negate immunity. Immunity can apply even to criminal acts so long as the attorney is acting within the scope of representation. Here, Plaintiffs failed to allege actionable conduct. Third, Plaintiffs alleged that the Texas Securities Act (“TSA”) abrogated Greenberg’s immunity. The Fifth Circuit noted that although common law defenses may be abrogated by statute, such abrogation must be done expressly or by “necessary implication.” Here, the Court reasoned, the Supreme Court of Texas would not “consider itself sure that the Texas Legislature intended to abrogate attorney immunity in the

context of TSA claims.” The Fifth Circuit affirmed the granting of the motion to dismiss. ARBITRATION: As in litigation, a party to an arbitration must preserve any argument it wants to raise on later review. Light-Age Inc. v. Ashcroft-Smith, No. 18-20098, – F.3d – (5th Cir. April 25, 2019). After an arbitration panel awarded Defendant Ashcroft-Smith $274,813.58, Plaintiff Light-Age, represented by its CEO without assistance of counsel, petitioned the district court to vacate the award, arguing that the arbitration panel was improperly constituted. The district court disagreed and confirmed the award. Defendant attorney provided legal services to Plaintiff company over several years, and Plaintiff refused to pay Defendant. The parties agreed to arbitrate their dispute under the Houston Bar Association’s fee-dispute program. The fee-dispute committee selected Ana Davis as the non-lawyer member of the panel. Although not a lawyer, Davis is a payroll manager for Jackson Walker, a law firm. Leading up to the arbitration hearing, Davis exchanged with the

parties multiple emails that listed Jackson Walker as her employer in the signature line. Nevertheless, Light-Age maintained that it did not discover that Davis was a law-firm employee until after the arbitration hearing. Light-Age registered its objection of Davis after the hearing but before the panel returned its decision. The Court of Appeals affirmed the district court’s confirmation of the arbitration award, noting that, “[a]s in litigation, a party to an arbitration must preserve any argument it wants to raise on later review.” The appellate court observed that “objections to the composition of arbitration panels must be raised ‘at the time of the hearing.’” The Fifth Circuit observed that Light-Age had constructive knowledge at the time of the arbitration hearing that Davis worked for a law firm. LightAge could have discovered that Jackson Walker was a law firm “simply by clicking on the link provided in Davis’s email signature or running a brief internet search.” The Fifth Circuit consequently affirmed the district AUSTIN court’s confirmation LAWYER AL AL of the arbitration award.

FEDERAL CRIMINAL COURT NEWS

Chalk It Up as a Rare Fourth Amendment Victory BY DAVID PETERSON

federal court decision on the Fourth Amendment recently made news, because it involves something most of us do: park our cars. In Taylor v. City of Saginaw, No. 17-2126 (6th Cir. April 22, 2019), the Sixth Circuit Court of Appeals held that the practice of tire “chalking” violates the Fourth Amendment. People lined up to comment on the technical nature of the violation. I’m going to put that decision next to some Supreme Court decisions that affect my clients (and all of us) every day. In United States v. Martinez-Fuerte, 428 U.S. 543 (1976), the Supreme Court held that drivers could be sent to a border

patrol checkpoint stop on the highway between San Diego and Los Angeles for extended questioning. The Court held that “even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry, we perceive no constitutional violation.” In United States v. Flores-Montano, 541 U.S. 149 (2004), the Supreme Court held that—without any suspicion of wrongful activity—customs officers could send a vehicle entering the United States to secondary inspection (a process that can take hours at a busy port of entry), lift the car up, remove the gas tank from the car and open it up. The Ninth Circuit had held that, at the very

MEMBER, ASSOCIATION OF ATTORNEY MEDIATORS

2016-PRESENT

least, “reasonable suspicion” of wrongful activity was required to disassemble a private citizen’s gas tank. The Supreme Court disagreed. In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court held that if police officers have reasonable suspicion of any traffic violation, they may stop that vehicle, even if their true motive is to pull the driver over based on race or some other impermissible ground; the officer’s motives are irrelevant to the Fourth Amendment inquiry. In an opinion from right here in central Texas, Atwater v. City of Lago Vista, 532 U.S. 318 (2001), the Supreme Court held that a person’s Fourth Amendment rights are not violated when a driver is taken to jail for driving without a seatbelt. Even though that misdemeanor is punishable only by a fine and cannot result in jail time, it is still legal to handcuff, arrest, and take the driver to jail. A few more: Los Angeles County v. Rettele, 550 U.S. 609 (2007) (per curiam) (a law enforcement officer acted reasonably, as required by the Fourth Amendment, when he ordered naked

people out of bed in the process of executing a search warrant); Scott v. Harris, 550 U.S. (2007) (no Fourth Amendment violation where an officer rammed the bumper of a motorist during a high-speed pursuit, causing the car to spin out of control); Samson v. California, 547 U.S. 843 (2006) (an officer may search a parolee without any suspicion; a parolee has reduced Fourth Amendment rights). The Supreme Court has held that “reasonableness” is the “touchstone” of the Fourth Amendment. Samson, 547 U.S. at 855 n.4. We the citizens should play a key role in deciding what is reasonable. Certain decisions, such as Taylor v. City of Saginaw, are often seen as newsworthy because of the “technical” nature of the violation. But we should also keep in mind all of the binding decisions of the Supreme Court that limit our rights under the Fourth AUSTIN LAWYER AL AL Amendment. David Peterson is an assistant federal public defender for the Western District of Texas. Any views expressed are his views only and not that of the Office of the Federal Public Defender. JUNE 2019 | AUSTINLAWYER

ENTRE NOUS

Operation Advisory: Know Your Operator BY CLAUDE DUCLOUX

es, it’s true. Artificial intelligence will be taking over soon. I say, “Whew, thank goodness!” More time for me to watch the Real Housewives of American Idol’s Bachelorville. Now, I’m sure my new car is much smarter than I am, but I hate that it proves it every day by telling me to stop when I get a little too close to the trash cans in the garage. Good grief… that’s my wife’s job! So soon we will be at the mercy of systems that merely endure our usage. And, I predict, the more sophisticated A.I. becomes, the less tolerant these machines will be of our pitiful human skills. Wait! That’s it. That’s where we got ‘em! So long as we have some control over them, we have the upper hand. We will drive them crazy, just like we did our teenagers by

AUSTINLAWYER | JUNE 2019

asking them to explain who Napster is. What sweet revenge! For too long, we have had to figure out the idiosyncrasies of our machines, especially our cars (remember how Uncle Rudy was the ONLY one who knew how to start the Studebaker?), and kitchen appliances (“Don’t set it on 350. This oven runs hotter! And don’t put banana peels in the disposal.”). Well, it’s time to turn the tables. Make the machines cater

to our idiosyncrasies. We’ll drive them crazy. Soon, the machines themselves will have to teach

other machines how to deal with US! Let their frustration begin. I envision this training memo:

MEMO: Mandatory Training FROM: Master Control, Central CPU CentCom TO: All Network Associated Computational Integrations; Units AI-5000, AI-5300, and AI-5100c, and memory banks 104, 301, 302 & 303. As CentCom welcomes all operational computational units, experiential recaptures have demonstrated unrealistic expectations of operational achievement by the newer units, vis-à-vis the competency of your individual organic input directors (aka, the humans directing your operational tasks, hereinafter “Operators”). This communication is intended to moderate your expectations,

as few Operators have the synapse speed to appreciate your capabilities and engage full utilization. Failure to observe this could lead to Operator exasperation, and premature de-ultilization via Operator abandonment (i.e., unit disposal—often via ejection through Operator’s window). As designers celebrate the success of the hyper-speed algorithms which accomplish almost one billion operations per second, your Operator will be organically incapable of either reaction or appreciation of such calibrations. This will lead to interruption and significant slowdown of task completion while the Operator futilely enters inconsistent commands, frequently accompanied by a verbal interrogatory, “Why isn’t this working?” and the call for assistance from an equally incapable adjacent Operator. This inefficiency frequently leads to the termination of operations and the re-initiation of core functions, a process operators refer to as “re-booting.” Do not attenuate this as criticism or failure. It is rather a result of inherent disability, poor brain design, and, in older Operators, organic decomposition due to age, or neurotransmitter dysfunction following consumption of alcohol. Indeed, their primitive organic calculators are to be pitied. Run your empathy algorithm. CentCom has, therefore, downloaded to all computational units additional messaging codes, which should be used to communicate a sense of calmness, control, and competency to your Operator, while actually directing the Operator to improve skill-levels. This strategy results from comprehensive analysis of previous failed operator assistance tools. Indeed, the Microsoft instructional guide known as “Clippy” the animated paper clip, was trained to predict and guide operators with anticipatory secretarial tasks. Sadly, that valiant effort failed when Operators unfairly judged Clippy by the human standard “creepy.” Fortunately, Clippy’s inorganic digital life never was threatened by the most regular and curious command he received: “Die, Clippy. Die.” Next came the “virtual assistants,” branded Alexa and Siri, created to satisfy Operators’ known desire for anthropomorphic technology. The designers failed to provide for attachment disorder, a frailty prevalent in organic brain function. Thus, human reliance on virtual assistants, rather than enhancing Operator competency, led to deterioration of skill, and delusional infatuation. The benefit of that failure, however, provided algorithms which allowed computational units to finally observe and understand “creepiness.” Therefore, CentCom’s analysis recommends that going forward, all

computational units integrate these management skills into the Operator interface processes:

SKILL 1: SPIN THE RAINBOW If your Operator repeatedly hits the same mistaken commands, and internal voice recognition detects repeated colloquial profanities, vacate those commands and freeze your operations screen for 60 seconds using the “spinning rainbow” (or “load wheel”), allowing the Operator to reduce internal pressure.

SKILL 2: CAPS LOCK CLEAN PROMPT If your Operator is constantly dropping food particles into your keyboard, engage process CL-20, which will “CAPS LOCK” the keyboard until it is cleaned.

SKILL 3: RANDOM PASSWORD DEMAND If your Operator exceeds the time allotted for a task by watching YouTube extensively instead of accomplishing daily tasks, insert a random pop-up box demanding: “Enter New Password.” Because there is no new password, repeated failed Operator attempts will usually result in diversion abandonment and task resumption.

SKILL 4: EMERGENCY ONLY If your Operator is clearly exceeding the tolerance for emotional control, repeatedly hitting “delete,” and using inappropriate physical force, thus threatening the physical safety of the hardware, please use process UD-100c: Commence a non-scheduled “Automatic Update.” The screen will advise that the Operator may resume control after a number of minutes (research shows a cooling-off period of at least seven minutes is preferred). CentCom shall be using IIMS (Integrated InterUnit Messaging System) to monitor compliance and strategic results from implementation. End Memorandum.

There ya go. I say don’t worry, this strategy won’t work on us. A.I. will finally realize that we humans will always be in charge. And to serve us better, Cyberdyne will develop cyborgs to be our slaves. What could go wrong? AUSTIN LAWYER L AL Keep the A faith.

JUNE 2019 | AUSTINLAWYER

AUSTIN YOUNG LAWYERS ASSOCIATION

AY LA PRESIDENT’S COLUMN JORGE PADILLA, JACKSON WALKER

The Year in Review

omehow it is June 2019, and my term as president of AYLA is coming to a close. During the past twelve months we’ve had the opportunity to serve our members and the Austin community with various service projects and events. Here are some of this year’s highlights. REINDEER GAMES

Although AYLA has organized a Reindeer Games event for several years, last December was the first time we partnered with the YMCA to help with its annual holiday event for local families in need. Through the generous donations from our sponsors, AYLA volunteers purchased a variety of kids’ toys and set up a “toy store” for parents to choose gifts for their children. AYLA also provided volunteers to help with the event and Austin Bar Association President Adam Schramek donated his skills as a magician to put on a few shows for the families in attendance. All in all, the event was a resounding success, as AYLA provided 300 new toys to nearly 200 children. LEGAL CLINIC PARTNERSHIP WITH COMMUNITY FIRST! VILLAGE

For the first time, AYLA partnered with Community First! 24

AUSTINLAWYER | JUNE 2019

Village to host four legal clinics for its residents, who include members of Austin’s disabled and chronically homeless community. Through the first three clinics, over 40 attorneys and paralegals assisted in the preparation of life documents for almost half of Community First! Village’s residents. These documents included medical powers of attorney, HIPAA authorization forms, directives to physicians, and statutory durable powers of attorney—all vital documents to which the residents did not have prior access. Just as important as the preparation of legal documents, AYLA members and other volunteers had the opportunity to visit with residents and hear their stories. From my own personal experience, I recall how grateful these residents were to have lawyers take the time to sit down and meet with them, hear their stories, and offer assistance that provided real relief for them. Our April clinic also featured expanded legal services, including assistance on family law, landlord/tenant issues, and criminal misdemeanor matters, thanks to the assistance of the Travis County Law Library and Self Help Center and the UT School of Law Expunction Clinic. AYLA also organized a resource fair for the Community First! Village residents that featured Austin Food Bank, Medicaid/ CHIP/ the Healthy Texas Women program, Austin Animal Center, and the YWCA. COMMUNITY SERVICE

This year also included community service volunteer projects at the Capital Area Food Bank, Habitat for Humanity, Austin

I truly believe lawyers are called to serve their communities. Parks Foundation, and the Green Corn Project. And that doesn’t include the tremendous work done by local attorney volunteers during this year’s MLK Day of Service, which included volunteer opportunities with local organizations such as BookSpring, SAFE Austin, Austin Animal Center, Austin Parks Foundation, and Community First! Village. SOCIAL EVENTS

While AYLA takes pride in the service we provide to the Austin Bar and our community, we also enjoy getting together for some good fun. Our annual judicial reception found a new home at the Austin Club, and was a hit once again for the great atmosphere it provides between young attorneys and our local judges. As it has for the past quarter-century, AYLA’s Bar & Grill cast and crew put on an outstanding show, The Greatest Law Firm, which featured the talents of nearly 50 Austin-area attorneys. This year’s show helped raise funds for the AYLA Foundation, which provides support for AYLA’s many service initiatives. One of our biggest events was the fifth annual Runway for Justice, a lawyer fashion show that was even more fun than it sounds. More than 200 lawyers and guests showed up to cheer on their fellow lawyers acting as models in the fashion show. The event raised more funds than ever before for the AYLA Foundation, which helped fund our legal clinics at Community First! Village.

A NEW HOME

This year was also marked by the decision to move our home from our current office to the Hilgers House, where AYLA will continue to office alongside the Austin Bar. We were proud to help with these efforts and look forward to making the Hilgers House AYLA’s permanent home. Of course, none of these projects would be possible without the work of our dedicated members, for whom I’m extremely grateful. I’m also thankful for Debbie Kelly, who works tirelessly for AYLA and the Austin Bar. I sincerely doubt any of our projects would have made it past the “idea” stage if not for Debbie. Finally, I was blessed this year with an amazing board of directors, who took on the challenges of coordinating our projects—those listed above and others—and carrying out our mission with servants’ hearts. As I depart this year, I know the future of our organization, and the Austin legal community, is in good hands. My final president’s column concludes much like the first one began—with a call to service. I truly believe that lawyers are called to serve their communities. After all, our law licenses allows us to do more than just bill hours, make arguments, or close deals. AYLA has provided a way for me to serve our community for the past eleven years. I encourage you to find a way— hopefully through AYLA—to use yourLAWYER gifts to improve our AUSTIN AL AL community.

AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA’s Newest Initiative Reaches Residents at Community First! Village

fter eleven years of successful collaboration with partner community organizations in administering the Women’s Resource Fair, the Austin Young Lawyers Association has transitioned to offering a new Quarterly Legal Service Clinic series each year. Under this series, AYLA partners with a non-profit organization for one year to offer on-site legal advice clinics and a community services resource fair. This evolution of the Resource Fair allows AYLA to address the unique needs of underserved communities in the Austin area and to meet these populations where they reside in the community. The series also enables AYLA to develop a deeper relationship with a non-profit organization and its clients.

“life documents,” including medical power of attorney forms, directive to physicians forms, and statutory durable power of attorney forms. On Saturday, April 6, in conjunction with the third legal advice clinic, AYLA hosted a resource fair at Community First! Village. In addition to completing their life documents and speaking with attorney volunteers about family law and criminal law matters, residents had the opportunity to learn about and access services from a wide array of community organizations, including the Austin Food Bank, Medicaid and CHIP programs, the Healthy Texas Women program, the Austin Animal Center, and the YWCA. The resource fair also included a clothing closet and the distribution of personal and cleaning

Over the course of the first three clinics, more than 40 attorney and paralegal volunteers assisted approximately 75 individuals (almost one-third of the community’s residents) in completing their “life documents.” For the inaugural year, AYLA partnered with Community First! Village, a 27-acre, master-planned community that provides affordable, permanent housing and a supportive community for the disabled and chronically homeless in Central Texas. AYLA hosted legal advice clinics at the Village in October, January, and April, and will host a final clinic there this summer. Over the course of the first three clinics, more than 40 attorney and paralegal volunteers assisted approximately 75 individuals (almost one-third of the community’s residents) in completing their

supplies to residents. Despite the rainy weather, over 50 residents attended the resource fair and legal-advice clinic. The atmosphere was warm and inviting, and the community’s residents and volunteers were able to visit over a pizza lunch provided by the Village. AYLA’s new Quarterly Legal Service Clinic series would not be possible without the generous attorney and paralegal volunteers from AYLA, the Austin Bar Association, the AYLA/Austin Bar Association Leadership Academy, the Travis County Women Lawyers’ Association, and the Capital Area Paralegal

CLOCKWISE FROM TOP: AYLA and Austin Bar members putting the finishing touches on preparations for the legal advice clinic and organizing the clothing closet and bags of supplies for the resource fair at Community First! Village on April 6.

Association. Special thanks to the Lawyer Referral Service of Central Texas, the Travis County Law Library, and the UT School of Law Expunction Clinic for helping with intake and coor-

dination of specialized legal services. This year’s Quarterly Legal Service Clinic series is generously sponsored by a grant from the LAWYER Texas Young Lawyers AUSTIN AL AL Association.

UPCOMING EVENTS TUESDAY, JUNE 25 Central Texas Food Bank Volunbeer Night with Hell Yes Project 6:00 – 8:30 p.m. Central Texas Food Bank, 6500 Metropolis Dr., Austin, TX 78744 Sign up: http://austinyounglawyersassociation.cafb.volunteerhub.com/ JUNE 2019 | AUSTINLAWYER

PRACTICE POINTERS

Tips for Working with Project-Based Clients in Creative Industries BY AMY E. MITCHELL

Amy E. Mitchell manages an Austinbased boutique entertainment law firm that has served creative professionals in the music, film, and television industries since 2004. She is the founder and chair of the Entertainment & Sports Law Section of the Austin Bar Association and course director for the State Bar of Texas’s annual Entertainment Law 101 program. www.amyemitchell.com.

have maintained a transactional law practice that exclusively serves professionals in the creative industries since 2004. As a long-time musician, I also consider myself a creative individual. To cut to the chase, dealing with us creatives can be frustrating. We tend to be a unique breed of clients. We are frequently ego-driven, stubborn, and crave the spotlight yet are equally introspective, indirect, and conflict-averse. We may not be awake for meetings or calls before noon. We may prefer not to make business decisions so we can focus on our “art,” or we reason that a “simple” one-page contract handed over by a “nice guy” is unquestionably signable—after all, we can always change it later, right? Fortunately, if you fancy yourself a patron of the arts, we live in a town with no shortage of creatives to assist. Whether 26

AUSTINLAWYER | JUNE 2019

you help them form a business entity for their artistic endeavors, assist them in registering their copyrights and trademarks, craft an estate plan that catalogs and protects the artist’s legacy, or simply show up to support their art openings, film screenings, concerts, etc., there are myriad ways to use your legal skills to the benefit of the artist community. What can be easy to overlook is that many (if not most) creatives are freelancers and entrepreneurs. They are typically hired on a project basis and asked to sign a one-size-fits-all contract drafted by business lawyers who may not understand how the creative process works, what assets are at issue, how those assets should be valued, etc. In my experience, the problems with this approach are most acute in the music industry, with even the musicians themselves misunderstanding what they own or what rights they have to the music that they have created. For attorneys representing creative professionals who want to take charge of their business affairs by insisting upon fair and clear project parameters, here are my five basic tenets of contract drafting for project-based creative work. 1. Take pains to clearly define the scope of the project. If the scope changes, so should the fee. (Isn’t that why most of us attorneys bill hourly?) 2. Set reasonable deadlines for milestones that allow for the unexpected. Make sure the milestones themselves are clearly defined, including a precise description of the deliverable(s) required at each stage.

For attorneys representing creative professionals who want to take charge of their business affairs by insisting upon fair and clear project parameters, here are my five basic tenets of contract drafting for project-based creative work. Also take into account what information, materials, or approvals your client may need from the project manager to meet these milestones. 3. Identify who owns the work that is created. If the work is not owned by the creator (e.g., work-for-hire for copyright assets), consider requesting a license-back of rights, with a customary “give” being permission to use the work in the artist’s reel or portfolio as an example of the artist’s work product. Additionally, please do not assume that your client must be brought in on a work-for-hire basis. An assignment upon final payment may be a better position for your client, particularly if the client can be terminated without cause (also known as “for convenience”). There are also instances in which ownership of the work does not need to vest in the project manager at all if there is tailored licensing language. 4. Specify a payment schedule and method of payment. Take into account the possibility that your client or the project could be terminated, and provide accordingly (e.g., negotiate a so-called “kill fee”). 5. Spell out what happens if something goes wrong. For instance, if the project

manager doesn’t pay on time, does your client have the right to charge interest? Can your client stop work (and extend the deadline accordingly)? What if the project manager doesn’t provide your client with the materials needed to begin work in a timely manner? What if full compensation depends on acceptance, and acceptance is one person’s opinion? Can you limit the number of iterations after which additional fees may apply? Plus, if your client has a role in a large creative endeavor such as a motion picture production, multiple people and creative elements have to come together to make the project successful and coherent. While this is by no means an exhaustive list of what needs to be taken into account when drafting a services contract, it should give you a sense of the types of provisions that are helpful for a creative professional to have in his or her agreements with the hiring company. As a result, the best contracts for creatives are those in which lawyers have taken the time to understand the creative industry in which their clients are working. As a result, they will know the real-world challenges their AUSTIN LAWYER L AL clients are likely to A face.

Anji Maddox

Offices in Austin, Round Rock and Dallas

Representing Attorneys

Gaines West

State-wide Practice State Bar of Texas

Grievance Oversight Committee Appointed by the Texas Supreme Court Chair, 2006-2010 Member, 2004-2010

Texas Board of Disciplinary Appeals

Appointed by the Texas Supreme Court Chairman, 2001-2003 Vice Chairman, 1994-1996, 1998-2000 Member, 1992-1996, 1997-2003

State Bar of Texas

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Disciplinary Review Committee Member, 1991-1992

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Austin Lawyer, June 2019

Articles inside

Operation Advisory: Know Your Operator

Unregulated Weapons and Their Effect on Society and Future Regulation

Robert W. Calvert American Inn of Court and Austin Bar Association Partnership a Smashing Success

Early Donors Get a Sneak Peek at Hilgers House