Austin Lawyer, March 2017

austinbar.org MARCH 2017 | VOLUME 26, NUMBER 2

New Section Approved for Austin Bar Still Loving It Lawyers Club™ Convenes Its First Meeting April 4

D

id you know the most rapidly growing group of active members in the State Bar of Texas consists of those who have practiced for more than three decades or are age 55 or older? Did you also know the City of Austin is expecting the senior population to mirror statewide trends when it comes to aging and predicts one in five Austin residents will be 65 and older within the next five years?

If you are a seasoned attorney and still love practicing law, you are cordially invited to attend the inaugural meeting of the Austin Bar Association’s Still Loving It Lawyers Club™, approved by the Austin Bar Board of Directors in December 2016 as the newest practice section of the Austin Bar. The section will have its first meeting on Tuesday, April 4, 2017 at 11:30 a.m. in the Austin Bar seminar room. Lunch will be provided.

The newly created section is rooted in the tradition of the Austin Bar’s Senior Section, originally begun in 2000 with Justice Mack Kidd serving as founding chair.

Dissolved in 2010, the Senior Section has now been revived, reinvigorated, and rebranded as the Still Loving It Lawyers Club™.

Not limited to any specific age category, the section is open to all seasoned attorneys who are still passionate about the practice of law and all the future holds for them and their careers.

The Still Loving It Lawyers Club™ is led by Laura Fowler, with the assistance of her fellow attorneys in the Fowler Law Firm. Other founding members providing guidance and insight are Jim McCormack, Jerry Harris, Fred Sultan, Bill Hulsey, and Dirk Jordan.

The initial meeting is free and open to all who are curious about what the Still Loving It Lawyers Club™ has planned for the coming

Not limited to any specific age category, the section is open to all seasoned attorneys who are still passionate about the practice of law and all the future holds for them and their careers.

Austin Bar members Marilyn Poole (left) and Laura Fowler (right) still loving it at the 2017 Austin Bar Foundation Gala. Photo by Nicole Ryan Photography.

year. Bring a friend to the first meeting and receive a two-for-one registration and membership special. If you are interested in doing something to improve your law practice skills, your enthusiasm, and your exuberance about your professional goals and ambitions, you won’t want to miss it.

To anyone who might be wondering if the Still Loving It Lawyers Club™ is for them, Fowler offers these questions to ponder. Do any of these statements apply to you?

My greatest challenge as a seasoned attorney is my

friends, family, and civic, charitable, and faith-based groups love me and trust me so much, they turn to me for legal help. The ethics, conflicts, and confidences of their legal needs are a challenge.

What should I do?

SOLUTION: Every month our ethics gurus will give cutting-edge advice about how to handle the many adventures seasoned attorneys face daily in their practices, both in Texas, across state lines, continued on page 9

CONTENTS

AUSTINLAWYER MARCH 2017 | VOLUME 26, NUMBER 2 AL A L INSIDE FEATURED ARTICLES 1

New Section Approved for Austin Bar Still Loving It Lawyers Club™ Convenes Its First Meeting April 4

5

CLE Update: Executive Actions Impacting U.S. Immigration What’s Happening, and What’s Next?

12

Leadership Academy Holds Opening Retreat Forty Participants Begin Six-Month Leadership Program

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Austin Bar Foundation’s Gala a Night to Remember Over $80,000 Raised for Legal-Related Charities

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Laura Sharp Running for President-Elect of the State Bar of Texas Past-President of Austin Bar Seeks Election

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Thank You Austin Bar Foundation Fellows Largest Group of Fellows in Foundation’s History Pledges Support

ONLINE

DEPARTMENTS 6 President’s Column 11 Opening Statement 14 Briefs 16 Third Court of Appeals Civil Update 17 Third Court of Appeals Criminal Update 18 Federal Criminal Court News 19 Federal Civil Court Update 20 AYLA 22 Entre Nous 26 Ad Index 27 Developing Your Practice

CONNECTIONS ONLINE austinbar.org EMAIL nancy@austinbar.org MAIL Nancy Gray, managing editor Austin Bar Association 816 Congress Ave., Suite 700 Austin, TX 78701-2665 SOCIAL LIKE facebook.com/austinbar FOLLOW twitter.com/theaustinbar WATCH vimeo.com/austinbar

austinbar.org

NEWS & ANNOUNCEMENTS

EVENTS & MORE

Austin Bar Members Receive Board Certifications

MAR 20 Law Day Entry Deadline Deadline for student entries in Law Day essay and poster contests. Visit austinbar.org for details.

TBLS Holds Award Ceremony on Feb. 10, 2017

Matthew McConaughy Speaks to Youth at Project Engage Actor Visits Judge Mueller’s Courtroom in January

TCWLA Holds Annual Luncheon

Four Women Lawyers Honored with Pathfinder Awards

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

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

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

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

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

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AUSTINLAWYER | MARCH 2017

CLE Update: Executive Actions Impacting U.S. Immigration What’s Happening, and What’s Next?

BY ELEANOR RUFFNER AND KATE LINCOLN-GOLDFINCH

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n February 6, 2017, the Austin Bar hosted an emergency CLE presentation by Caroline Tang and Kate Lincoln-Goldfinch entitled “Updates on Recent Executive Actions Impacting U.S. Immigration: What’s Happening, and What’s Next?” Ogletree, Deakins, Nash, Smoak & Stewart, P.C. sponsored the CLE. The presentation focused on the changes in immigration policy resulting from President Trump’s executive orders entitled “Border Security and Immigration Enforcement Improvements” (Jan. 25, 2017), “Enhancing Public Safety in the Interior of the United States” (Jan. 25, 2017), and “Protecting the Nation from Foreign Terrorist Entry into the United States” (Jan. 27, 2017). The Austin Bar’s seminar room was filled to capacity, and the addition of those live-streaming the presentation on Periscope more than doubled the total audience.

The executive actions, read literally, affect a broad cross-section of U.S. residents, including highly skilled, legal permanent residents of the U.S. Tang, a partner and business immigration attorney at Ogletree, first discussed the effect the new executive orders were having on businesses and employees. The executive actions, read literally, affect a broad cross-section of U.S. residents, including highly skilled, legal permanent residents of the U.S. Many such LPRs are employees of the tech-industry players headquartered in Austin. For that reason, the recent executive orders introduced substantial uncertainty regarding the employees’ ability to visit their employers’ overseas operations, travel to conferences, or visit family abroad.

Tang also commented that the haphazard way in which the travel ban was administered caused chaos and confusion in the airports and led to protests against the travel ban. More confusion ensued when the ban was stayed by a federal judge in the U.S. District Court for the Western District of Washington, which the government immediately appealed.

Tang’s remarks echoed those of the amici curiae in support of the appellees in Washington et al. v. Trump et al., No. 17-35105, currently pending before the Ninth Circuit.

The amici—97 companies, including Apple, Facebook, Google, Warby Parker, Netflix, and Uber—described to the court the harm that the January 27 executive order was having on their businesses’ competitiveness. The executive order, the brief noted, “disrupts ongoing business activities” because of the uncertainty associated with business travel necessary for the success of the global tech industry.

Lincoln-Goldfinch, the founder of immigration practice Lincoln-Goldfinch Law, took the podium to advise the attendees of the effect that the executive actions have had on families in the Austin community. Lincoln-Goldfinch’s presentation included practical advice, including the paperwork to keep in your car and on your person to avoid improper detention and the steps parents should take to protect their children in the event one or both parents are detained or returned to their country of origin. She discussed the sea change anticipated in the realm of immigration, which immigration attorneys expect to include increased detention and rapid deportation of undocumented immigrants in the United States. She discussed concerns in the immigrant-advocacy community that due process will not be provided to those who are apprehended.

Both Tang and Lincoln-Goldfinch cautioned the recent executive orders were likely not the last executive orders expected to affect immigration policy. Several leaked executive orders, published

by Matthew Yglesias and Dara Lind online at Vox (January 25, 2017), discuss an end to the Deferred Action for Childhood Arrivals (DACA) program for DREAMERS, restricting visa availability

to high-skilled workers, and further restricting tax credits available to undocumented parents of U.S. citizens. As Tang and Lincoln-Goldfinch noted, the orders that were, in fact, signed by President Trump were essentially identical to the orders leaked and published on Vox. Consistent with the Austin Bar’s directive to aid in the administration of justice, to enhance the delivery of and access to quality legal services, and to actively participate in the success of the community at large, the presentation concluded with a call for support, both financial and temporal, for the non-profits and pro bono organizations involved in immigration litigation and advocacy. Those organizations include Casa Marianella (of which Lincoln-Goldfinch is a board member), American Gateways, RAICES, Texas Here to Stay, and Stronger Together.

News and camera crews from KXAN and KVUE attended, captured footage of the CLE, and interviewed Tang, Lincoln-Goldfinch, and Austin Bar’s president-elect, Amy Welborn.

The Austin Bar has made a video of the presentation available on its website for its members at austinbar.org/for-attorneys/online-cles.

The viewing password is ABarCLE2016.

In addition to CLE credit, the presentation offers a snapshot of the effects, both intended and unintended, of these executive actions.

Also available on the Austin Bar website are the summaries of contact information for the organizations in Central Texas that represent community members in immigration litigation and educate AUSTIN the publicLAWYER about this quickly changing legal landscape.

AL AL MARCH 2017 | AUSTINLAWYER

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PRESIDENT’S COLUMN LESLIE DIPPEL, ASSISTANT TRAVIS COUNTY ATTORNEY

Living the Lawyer’s Creed My Word is My Bond

I

n its very first stated principal, the Lawyer’s Creed advises: “I am passionately proud of my profession.

Therefore my word is my bond.”

We usually use that phrase to highlight the importance of the integrity of an agreement, whether it is written or not. This month, I read it in a much broader context.

Our profession is built on trust.

Our clients must trust us, the judiciary must trust us, and we must trust one another. We also trust one another with our very lives.

Overly dramatic? One in four lawyers suffer from elevated feelings of psychological distress, including feelings of inadequacy, anxiety, and depression. One in five of us will suffer from some form of a mental-health issue during our career. The legal profession has the highest rate of depression and one of the highest suicide rates of any profession.

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AUSTINLAWYER | MARCH 2017

Few of us will ask for help. We are strong, we are advocates for others, and we are slow to ask for assistance. We are afraid to admit that we have become out of control, because as lawyers, we feel we are supposed to always be in control. It begins early.

Nearly 40 percent of third-year law students show signs of active addiction or depression. Further, it is insidious. I have heard the stories of crossing an invisible line without knowing it, and then feeling there is no way out. Thus begins the spiral.

However, there is a promise of hope. The Austin Bar Foundation’s Justice Mack Kidd Fund provides up to $2,500 in financial assistance for counseling and medical treatment on a short-term basis for Central Texas lawyers suffering from depression or a related illness. Applications for the fund can be made through the Texas Lawyer’s Assistance Program, and it is completely confidential. Visit their page at texasbar.com or call 1.800.343.8527 for more information.

Travis County District Clerk and former Austin Bar Association President, Velva Price, serves on the Board of Trustees of the Justice Mack Kidd Fund.

At the upcoming annual Bench

I give you my word I will not remain silent.

Bar Conference to be held on May 12, 2017, Price will speak about her role on the Board of Trustees and remind us when you count those whose lives are affected by someone who is suffering from addiction or depression, the problem is too large to ignore. It is too important to remain in the shadows just because we don’t like to talk about it. How many friends do we have to lose before we begin a real conversation about mental health?

Thank you, Velva, for making your word your bond and continuing in your leadership of the Justice Mack Kidd Fund. As a result, it means we may not have to say

good-bye to another fellow lawyer.

We lose too many to the vicious cycle of substance abuse and suicide. The success stories I read all started with someone who had a friend who intervened.

Make a promise with me to no longer remain silent. When you see a friend who does not seem to be in his or her normal state of mind, or appears in trouble, a simple “hello, how are you, I’m worried about you” may be the intervention which leads to the identification of a problem, which leads to saving a life. I give you my word I will not remain silent, AUSTIN LAWYER and my word is my bond.

AL AL

PATRICK KEEL M e d i a t o r • A r b i t ra t o r Former District Judge

512 293-0300 www.patrickkeel.com

MARCH 2017 | AUSTINLAWYER

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New Section Approved for Austin Bar continued from cover

and internationally. Friends— from the very youngest family members of our clients, to their elderly parents—turn to us because of our age and experience. How to help while remaining ethically compliant with all these loyalties and confidences will be discussed with particular emphasis on State Bar Grievance Committee Opinions and Rules.

I love being a lawyer. I would love to learn how to continue to be active as a lawyer

Still Loving It Lawyers Club™ is mentor/ mentee heaven! Mentoring is a core mission of the section.

indefinitely, but I worry about my stamina and overall health. How do I know if I am too old?

SOLUTION: Every month our panel of medical and mechanical engineering experts from the University of Texas Dell Medical School and other local research facilities will present the real medical miracles that are being discovered RIGHT NOW to keep us all practicing law actively until we are 120 years old. (YES REALLY!) Brain, eye, knees, knuckle, even LOVE experts will

amaze you.

In addition, our wonderful friends at Texas Lawyers Assistance Program (TLAP) will provide opportunities for us to identify, reach, and help our seasoned-attorney friends who are drifting and isolating because of age, loss of purpose, or loss of self-confidence.

Is it possible to join a group where I am not the oldest lawyer in the room?

SOLUTION: We cannot guarantee you’ll not be the oldest lawyer in the room, but if you are, your registration, lunch, and CLE are FREE! All my lawyer friends are my age. How do I reach out to beginning lawyers and share my vast wisdom and mature advice with them?

SOLUTION: Still Loving It Lawyers Club™ is mentor/mentee heaven! Mentoring is a core mission of the section. We have plans to work with the Austin Bar Mentoring Program, along with four other local bar associations, and the UT Law Mentoring Program to provide opportunities to mentor polite, appreciative young attorneys and law students who will dote on every word of your seasoned-attorney wisdom.

I know there are great deals and discounts available for seasoned lawyers, and seniors in general, but how do I sort out the real groups from the frauds?

“I finally have my place in the country.

Lone Star Ag Credit helped me finance my piece of Texas.”

CHARLES GREEN | 5G LAND & CATTLE CO. Member Since 1998 Visit LoneStarAgCredit.com/tx to connect with a loan officer near you.

SOLUTION: Every month we will briefly present a carefully vetted “Deal of the Month” for seasoned attorneys by quality business representatives who offer serious swag and other amenities. In addition, whoever brings the best/ worst lawyer joke wins a prize!

For more information contact Laura Fowler at lfowler@thefowlerlawfirm.com, or LAWYER Isabel Salazar at AUSTIN AL AL isabel@austinbar.org.

F I NANCING FOR: RECREATIONA L P R OP ER TY RURAL H OM ES | RURA L REAL ES TATE | EQUIP MENT FARM OR RANCH OPER ATIONS | AGRIB US INES S ES F I NA N C I N G Y O U R P I E C E O F T E X A S F I NA N C I N G Y O U R P I E C E O F T E X A S

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2/9/2017 12:18:13 PM

MARCH 2017 | AUSTINLAWYER

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AUSTINLAWYER | MARCH 2017

OPENING STATEMENT

Lawyers Are Not Too Bad. Literally.

BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

A

s legal writers, we might be tempted to use intensifiers to bolster our points— to persuade. But as discussed in this column last month, we’re usually better off avoiding intensifiers such as clearly, very, and blatantly because they aren’t persuasive.

They smack of overstatement or desperation. This month I’ll discuss another common intensifier that literally drives me up a wall.

Yes, it’s literally. I’ve got some bad news about it, but I’ve got some good news, too.

First, let’s be clear: literally means actually, or verbatim. Yet linguists and others who study language agree: In speech, literally has become an all-purpose intensifier like truly or completely.

No doubt you’ve heard expressions like these: • The firm is literally printing money.

• We literally bombed them for 52 points.

• I was so scared I literally died.

These statements flout the literal meaning of literally, and to some ears they sound comical—or absurd.

In writing, the trend is the same: literally can’t be taken . . . literally. According to Bryan Garner, the figurative use of literally “is commonplace even among many well-educated people but is still avoided in careful usage.”1 But this commonplace usage, even in writing, isn’t recent. Charles Dickens used literally non-literally in Nicholas Nickelby in 1839, and F. Scott Fitzgerald used it in The Great Gatsby in 1925. Neither usage was in dialog: “Lift him out,” said Squeers, after he had literally feasted his eyes, in silence, upon the culprit.2 He literally glowed.3 So it isn’t new. Or rare. Merriam-Webster’s Dictionary of English Usage cites many examples from the 1800s and 1900s.4 In fact, Merriam-Webster suggests

As legal writers, we ought to value precision and avoid hyperbole.

We shouldn’t embrace this lax but longstanding use of literally. that using literally in this way is no longer a mistake; rather, it’s mere hyperbole—but careful writers should still avoid it for that reason. Lawyers, as careful writers, should heed that advice.

That’s the bad news, and there’s not much we can do about it. Words change, language changes, and sometimes they change for the worse. Did you know that long ago, the frozen dairy dessert was called iced cream? Over time, incorrect spelling and pronunciation changed it to ice cream.5 It’s happening with iced tea, too, right?

But again, as legal writers, we ought to value precision and avoid hyperbole. We shouldn’t embrace this lax but longstanding use of literally. Even if you’re willing to say, in casual conversation, “My boss is so impatient, I’m literally walking a tightrope,” please don’t use this figurative sense of literally in your professional writing. “Evert’s processing delays

have resulted in Ladco’s sales representatives literally drowning in customer complaints.”

Now the good news. I wanted to see how lawyers actually use literally, and I decided my best route was to search in appellate briefs. With my Westlaw account, I could easily search many appellate briefs. What I found is that lawyers are holding the line, as far as I can tell, on literally.

I did a search for the word literally in appellate briefs filed in the Austin Court of Appeals, the Texas Court of Criminal Appeals, and the Texas Supreme Court. My search returned nearly 2,000 hits, and I skimmed dozens of them.

I’m happy to report that I couldn’t find any genuinely erroneous uses of literally. There were some close calls, but overwhelmingly, brief writers are using literally when they mean . . . literally. So hurray for these: • The court concluded that, literally applied, the ordinance’s

definition of “nonconforming use” is at odds with the ordinary meaning of that term.

• Aerofile denied that Hanson’s attempted forfeiture was effective because Hanson failed to strictly and literally comply with the notice provision.

• The statute can be read both literally and rationally.

Congratulations, AUSTIN LAWYER and let’s keep it thatAway.

L AL FOOTNOTES 1 Bryan A. Garner, Garner’s Modern American Usage, 515 (3d ed.

2009).

2 Charles Dickens, Nicholas Nickelby 114 (1839).

3 F. Scott Fitzgerald, The Great Gatsby 95 (1925).

4 Merriam-Webster’s Dictionary of English Usage 607 (1994).

5 Garner’s Modern American Usage at 434.

MARCH 2017 | AUSTINLAWYER

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Leadership Academy Holds Opening Retreat Forty Participants Begin Six-Month Leadership Program

O

n Friday, January 13, the 2017 class of the AYLA/Austin Bar Association Leadership Academy met to kick off its new year. The first session was an all-day retreat at the State Bar of Texas Law Center. Participants learned about the purpose and upcoming sessions of the Academy, networked with one another, and received a tour of the Texas Supreme Court guided by Justice Debra Lehrmann. This year’s class is the largest in the Academy’s history with 40 participants. The class is incredibly diverse with members from a variety of practice areas, firm sizes and types, and levels of experience.

The Academy was established to assist local lawyers in finding ways to make a positive impact in the community, serve in local bar associations, and develop professional leadership skills. Following the retreat, the Academy will meet in a series of five monthly presen-

tations to engage and network with local leaders in public policy, government, private sector, non-profit, and various bar associations. Past presenters have included Senator Kirk Watson, Mayor Steve Adler, Travis County Civil District Judge Karin Crump, and Travis County Judge Sarah Eckhardt.

The Academy also includes a class project designed by the participants in which they seek to have an impact on or serve their community. The program culminates with a graduation ceremony where leaders of AYLA and the Austin Bar provide information on next steps for community involvement.

Applications to participate in the Leadership Academy are accepted in November for the next session beginning in January of each year.

Congratulations to this year’s Austin Bar / AYLA Leadership Academy class members: Kristi Morgan Aronica Kristen Attie Craig M. Bryan

2017 Leadership Academy class with Texas Supreme Court Justice Debra Lehrmann at the Texas Supreme Court.

David Campbell Eric Nelson Malori C. Carley William Nix Katy Cox Jason P Ortega Samantha Diaz Jeana Patel D. Cameron Duncan III Kayvon Rashidi Megan Fescenmeyer Michael Redondo Claudia Angelica Garnica Estrada Stacey V. Reese Veronica Reyes Gibson Liesel K Rickhoff Jason Gorman Christopher Ritter Alexandra Gullett Michael Roberts Hailey A. Hobren Christyne Harris Schultz Brandy A. Howard Adam Sencenbaugh Terria Hutchinson Monica B. Stallings Megan Johnson Kevin Vermillion Raegan A. Koesler Jennifer Ward Matthew Leslie Ayeola Williams Tanya Melamed Katie Wolters Thomas Mendez Rand Zumwalt AUSTINLAWYER Brittney Mollman AL AL

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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 | MARCH 2017

BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Reaves Ashley Chase Barker Aravind, Baldwin, Barrett, Earley, Gasink, Koplin, Price, Robinson, and Scheick

William Bryant Jase Burner Brian Carroll Erin DeBooy Kimberly Grinnan Jasmine M. Harding Preston Heckathorn Monte James Brittany Johnson Jerry Lee Alexander McSwain Adela Meraz Travis Parks Stephen Pasta Anne-Marie Rabago Neal Rackleff Elisabeth Smith Andrew Ware Kevin Weber Ashley Wheelock Marlene Wyatt Trey Zamorano

AWARDS George C. Baldwin of Peckar & Abramson’s Austin office received his Texas Board Certification.

Baldwin focuses on the resolution of commercial disputes through litigation, mediation, and arbitration.

Amanda K. Jester was named to the Ambulatory M&A Advisor annual Leading Lawyer List. Jester represents private equity funds, hospitals, free-standing emergency centers, and others in mergers, acquisitions, and joint ventures.

Eric Galton received the 2017 Frank Evans Award from the State Bar of Texas Section of Alternative Dispute Resolution Excellence and Contributions to the Field of Alternative Dispute Resolution.

Andrew S. Cates was elected to membership in the Fellows of the Texas Bar Foundation. Election is a mark of distinction and recognition of Cates’s contributions to the legal profession.

NEW TO THE OFFICE Marilyn Poole recently joined the Fowler Law Firm. Poole has served on the Board of Directors for the Austin Bar Foundation since 2016.

Dickson Wright announced the hiring of Mark Scott. His focus is in the areas of intellectual property, including patents, copyrights, and trademarks.

Norton Rose Fulbright hired Joshua Bernstein as a partner.

Bernstein advises clients in both development-related real-estate transactions and real-estate fi-

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AUSTINLAWYER | MARCH 2017

nance and private-equity matters.

In addition, Emily Jung and Katie Van Dyk have been hired as associates at the firm.

J. Terry Weeks and Nathan L. Kennedy joined Gray & Becker as partners. They joined the family law section of the firm specializing in complex divorces and family law appeals as well as continuing their wills and probate, real-estate, and business-law practice.

Scott Douglass & McConnico announced the naming of Santosh Aravind and John Gasink as partners to the firm. Aravind focuses on civil litigation and white-collar criminal defense. Gasink focuses on commercial litigation with an emphasis on fraud, breach-of-contract, breach-of-fiduciary-duty, and negligent-misrepresentation cases involving complicated financial instruments.

Wittliff Cutter Austin announced the hire of Katherine Chiarello, Ryan Botkin, and John Saba. Chiarello focuses on cases involving business contracts, business torts, fraud, securities fraud, trademarks, and trade secrets. Botkin focuses on business disputes within a broad assortment of subjects, including technology and IP licensing, financial services, and healthcare. Saba focuses on a variety of technical areas, including patents, trademarks, copyrights, trade secrets, and licensing.

Shafeeqa Watkins Giarratani joined the Ogletree, Deakins, Nash, Smoak & Stewart as a co-managing shareholder of the

Austin office. Giarratani focuses on employment-law counseling, including pay equity, whistleblower claims, and federal contractor/ affirmative-action compliance.

MOVING ON UP Locke Lord Partners elected Michelle Earley to the executive committee. She handles a wide range of corporate and securities work for public and private companies, including master limited partnerships.

McGinnis Lochridge named Jo Ann Merica as partner. She focuses on real-estate, construction, commercial, consumer, family, and administrative-law disputes.

Norton Rose Fulbright promoted Tamsen Barrett, Eagle Robinson, and Benjamin Koplin to partner. Barrett concentrates on intellectual-property matters, which include domestic and foreign patent prosecution and strategic development of patent portfolios. Robinson focuses on patent litigation and transactional matters. Koplin concentrates on life sciences and healthcareregulatory and anticorruption compliance and defense.

Jacob Scheick was named partner of Alman, Blackburn, Dickie & Mitchell. He specializes in securities litigation, construction and real-estate litigation, and general commercial disputes.

Stone Loughlin & Swanson announced Dan Price as a partner for the firm. He focuses on general civil litigation, insurance law, and corporate law.

Austin Bar Foundation’s Gala a Night to Remember More than $80,000 Raised for Legal-Related Charities

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ore than 500 members of Austin’s legal community packed the Four Seasons Hotel on Saturday, Jan. 28, 2017 for the Austin Bar Foundation’s 14th annual Gala.

The Great Gatsby-themed evening transported guests to the Roaring 20s, with many at the blacktie event decked out in period costume. In addition to enjoying cocktails, dinner, and dancing, attendees generously raised funds by purchasing “Grab for Good” bags, buying raffle tickets for a variety of exclusive gift baskets, and bidding on luxurious live-auction items.

The event raised more than $80,000 benefiting the Foundation’s many charitable and partner programs, including Austin Adoption Day, the Justice Mack Kidd Fund, Free Legal Advice Clinics for Veterans, the Self-Represented Litigant Project, the Diversity Fellowship Program, and scholarships for LGBT law students in Texas. In

addition to supporting these Austin Bar programs, the Foundation has provided more than $107,000 in grants to area organizations for law-related projects since the grant program began in 2012.

The Gala allows the Foundation to fulfill its mission of supporting and expanding the provision of legal-related charitable and educational programs and services in Central Texas by organizing and marshaling the resources and abilities of the Austin Bar Association and its members.

During the evening, five outstanding attorneys were honored for their immense contributions to Austin’s legal community and the community at large. The awards and award recipients were: • The Distinguished Lawyer Award: Martha Smiley, Enoch Kever; and David Hilgers, Husch Blackwell • The David H. Walter Community Excellence Award: Jo Ann Merica,

TOP: (from left) Dirk Jordan, Martha Smiley, Austin Bar President Leslie Dippel, Jo Ann Merica, Tony Nelson and David Hilgers. BOTTOM FROM LEFT: Judge Karin Crump enjoying the evening; Kay Mailander bidding at the silent auction; Judge Todd and Paul Wong driving in style. Photos by Nicole Ryan Photography.

McGinnis Lochridge • The Larry F. York Mentoring Award: Dirk Jordan, Jordan Law Firm

• The Joseph C. Parker Jr. Diversity Award: Tony Nelson, Assistant Travis County AUSTIN LAWYER Attorney AL AL

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

MARCH 2017 | AUSTINLAWYER

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THIRD COURT OF APPEALS CIVIL UPDATE

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

>

The following are summaries of selected civil opinions issued by the Third Court of Appeals during January 2017. The summaries are intended as an overview; counsel are cautioned to review the complete opinions. Subsequent histories are current as of February 6, 2017.

TRIAL PROCEDURE: Reinstatement did not preclude later jurisdictional challenge.

West Travis County Pub. Util.

Agency v. CCNG Dev. Co., L.P.,

No. 03-16-00521-CV (Tex. App.—Austin Jan. 4, 2017, no pet. h.). CCNG sued Agency for breach of a utility agreement.

Two years later, the district court dismissed the case for want of prosecution under the Travis County local rules. CCNG timely filed a motion to reinstate, contending it did not receive notice of intent to dismiss. The district court reinstated the case. Agency filed an interlocutory appeal. According to the court of appeals, the dispositive issue was whether the reinstatement order constituted a denial of Agency’s jurisdictional challenge. Agency contended that because a trial court is without authority to reinstate a case over which it lacks jurisdiction, the reinstatement necessarily denied its jurisdictional challenge. The court concluded that the reinstatement did not adjudicate the jurisdictional issue and that the district court properly deferred the issue until the case was more fully developed. The court dismissed the appeal.

FAMILY LAW: Court upheld damage award in property division enforcement action.

Baskett v. Baskett, No. 03-1600563-CV (Tex. App.—Austin Jan. 5, 2017, no pet. h.) (mem. op). Divorce decree awarded wife specific items of property and all of her personal property, jewelry, and clothing in husband’s possession. Wife’s personal property was either damaged or missing when she attempted to retrieve it. The

trial court granted wife’s post-divorce petition for enforcement and awarded damages. Husband argued that the trial court improperly modified the decree by awarding damages for items that were not specifically listed in the decree. The court of appeal disagreed that such specificity was required. According to the court, the trial court did not modify the decree, but only implemented it.

The court further rejected husband’s argument regarding damages. Wife presented evidence from internet research to substantiate the value of her property. The court affirmed.

DEFAMATION MITIGATION ACT: Must publish false information to trigger Act. In re InduSoft, Inc., No. 03-1600677-CV (Tex. App.—Austin Jan. 10, 2017, orig. proceeding) (mem. op.). Taccolini’s company competed with InduSoft and eventually sued InduSoft for business disparagement. InduSoft filed a plea in abatement under the Defamation Mitigation Act, claiming that portions of Taccolini’s petition constituted defamation. The Act applies to “damages arising out of harm to personal reputation caused by the false content of a publication.” The trial court denied the abatement; InduSoft sought mandamus relief. The challenged portions of the petition alleged that InduSoft told other companies not to do business with Taccolini. The court of appeals

concluded that because Taccolini did not allege that InduSoft published false information that harmed Taccolini’s personal reputation, the Act did not apply. The court denied mandamus relief.

INTERLOCUTORY APPEAL: Automatic stay applies to entire MDL proceeding.

In re Volkswagen Clean Diesel Litigation, No. 03-16-00718CV (Tex. App.—Austin Jan. 11, 2017, no pet. h.) (mem. op.). In this appeal from the denial of a plea to the jurisdiction in an MDL, Volkswagen filed a motion to stay all proceedings pending resolution of State’s interlocutory appeal. Volkswagen contended the automatic stay applied to all cases in the MDL, not only the individual cases in which State filed an interlocutory appeal. The court of appeals rejected State’s argument that “proceeding” in §51.014 refers only to the causes in which State appealed. The court concluded that “all other proceedings in the trial court” encompasses all of the activities and hearings in the MDL pretrial court, not just the individual causes subject of State’s interlocutory appeal. The court stayed all proceedings in the AUSTIN LAWYER MDL court.

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THIRD COURT OF APPEALS CRIMINAL UPDATE

>

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

DOUBLE JEOPARDY: Convictions for offense of indecency with a child by contact not subsumed by convictions for offense of aggravated sexual assault of a child, and judicial estoppel did not apply.

Radilla-Esquivel v. State, No. 0314-00544-CR (Tex. App.—Austin Sept. 16, 2016, pet. ref’d) (mem. op., not designated for publication). Appellant was charged with four counts of aggravated sexual assault of a child, three counts of indecency with a child by contact, and three counts of indecency with a child by exposure. The jury found him guilty of two counts of aggravated sexual assault of a child and all six counts of indecency with a child. Among other issues on appeal, Appellant contended that his convictions for indecency with a child by contact were “subsumed” by his convictions for aggravated sexual assault of a child and therefore violated the constitutional prohibition against double jeopardy. The appellate court disagreed. As an initial matter, the court rejected Appellant’s contention that the State should be judicially estopped from contesting the double-jeopardy issue, based on a comment by the prosecutor during trial in which the prosecutor indicated that he “thought” the indecency offenses might be subsumed by the aggravated sexual

assault offenses. The court noted that the comment “was made in the midst of an informal discussion with the trial judge and defense counsel and that later, when a draft of the jury charge had been prepared, the prosecutor responded to defense counsel’s objection and affirmatively argued that the evidence supported the submission of the indecency convictions to the jury for punishment.” Thus, the State’s ultimate position at trial was consistent with the position it had taken on appeal. Turning to the merits of Appellant’s contentions, the court observed that the record supported a finding that Appellant had penetrated the victim’s sexual organ and penetrated her anus on at least three occasions each, “thus constituting six separate and distinct acts of penetration” and that “the admissions made by appellant and the detective’s testimony provided evidence of two more offenses of indecency with a child by contact.” Accordingly, the record contained evidence of “at least eight separate and distinct sexual offenses, and Appellant was convicted of committing only five of them,” and “Appellant could have been charged with and convicted of either indecency by contact or aggravated sexual assault for each time the evidence showed he penetrated [the victim’s] anus or sexual organ.” The court concluded that “[b]ecause the indictment alleged, and the evidence supported, separate and distinct acts of sexual misconduct,” none of the convictions violated the prohi-

bition against double jeopardy.

SUFFICIENCY OF THE EVIDENCE—GUILTY PLEAS: Judicial confession sufficient to support guilty plea.

Garcia v. State, No. 03-16-00208CR (Tex. App.—Austin Sept.

28, 2016, pet. ref’d) (mem. op., not designated for publication).

Appellant pleaded guilty to the offense of aggravated sexual assault of a child. On appeal, Appellant claimed that the evidence presented at the plea hearing was insufficient to prove his guilt. Specifically, he asserted that his judicial confession was not sworn and there was no evidence to show that the confession was made while he was under oath.

Appellant further claimed that the evidence was insufficient to prove the element of penetration because the victim had failed to testify during punishment that Appellant had penetrated her sexual organ.

The appellate court rejected these contentions, first observing that “it is well-established that a judicial confession need not be sworn to before a clerk or other authority to support a conviction.” Moreover, the court determined, “[i]f a judicial confession states that the defendant has read the charging instrument and that he admits to having committed each alleged act, the confession alone is sufficient to support a conviction from a guilty plea.” So long as the judicial confession “embrace[s] every element of the charged offense” and “contain[s] sufficient reference”

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.

to the allegations in the charging instrument,” the confession will be sufficient to support the plea. The court concluded that “the judicial confession in this case embraced every element of the charged offense and was sufficient to support Garcia’s conviction.” The court also rejected appellant’s assertion that the trial court could not take judicial notice of the confession because it had not been formally admitted into evidence, observing that this argument had been rejected in prior cases. Because the court concluded that the judicial confession alone was sufficient evidence of guilt, the court did not need to address Garcia’s remaining argument that the victim’s testimony admitted during punishment was insufficient to establish the AUSTIN LAWYER element of penetration.

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FEDERAL CRIMINAL COURT NEWS

Following The Numbers

BY DAVID PETERSON

A

s a criminal defense attorney, it’s always tempting to talk about a sensational case. But I want to begin this column with a discussion about one of the “meat and potatoes” federal charges: illegal reentry after deportation. This is currently the most-filed federal charge, and it has been for years.1 These cases fill the dockets, strain judges, court staff, and attorneys, and fill our federal prisons.

I’m going to give some back-

ground of this charge by the numbers historically, and I encourage us all to follow the numbers as we move into a new era of federal criminal justice.

Title 8 U.S.C. § 1325 makes several manners of entering without inspection or permission a misdemeanor punishable by up to six months. A second offense can be a charge of a felony with a two-year statutory maximum.

Section 1326 makes it a felony to reenter—or be found in—the United States following deportation, removal or exclusion, without having first sought permission to reapply for admission from the Attorney General of the United States or a designated successor, the Secretary of the Department of Homeland Security. The punishment can range all the way up to 20 years in federal prison. It is a victimless crime, although federal officials often focus on claims that they are prosecuting only “the worst of the worst”—that is, undocumented immigrants with serious criminal histories. The Sentencing Commission estimated in 2015 that at least 25 percent of those convicted under § 1326 had no prior felonies, and another 33 percent had no prior “aggravated felony” convictions.2 Forty percent had “aggravated felony”

convictions, which is a legal term of art that includes certain misdemeanors and a slew of non-violent felonies.

Historically, the level of prosecutions doesn’t correlate with the number of apprehensions of undocumented immigrants.3 Apprehensions went from a high in the year 2000 of 1,814,729 all the way down to 662,483 in 2013. During that time, misdemeanor illegal entry (§ 1325) prosecutions went from 3,875 to a high of 54,175, then back down to 35,770. Felony illegal reentry prosecutions went from 7,919 in 2000 to a high of 37,929 in 2014.

They steadily decreased over the next few years. This means that as we’ve apprehended fewer undocumented immigrants, we’ve criminalized a greater percentage of them.

The numbers can be a slog to wade through, but the point is: illegal entry and reentry prosecutions do not correlate with levels of illegal immigration. They seem to correlate with the political will of those in control of the government. For example, illegal reentry prosecutions increased heavily during the first five years of the Obama administration, declining in the past two years.

The Department of Home-

land Security has shown further declines in apprehensions through October 2016.4 One thing to be aware of is as follows: President Trump promised to introduce mandatory minimum sentences for illegal reentry (§ 1326), of two and five years, within his first 100 days in office. It will be important to continue to follow the numbers and changes related LAWYER to this mostAUSTIN AL AL charged federal offense.

FOOTNOTES 1 trac.syr.edu/tracreports/bulletins/overall/monthlydec16/fil/ 2 ussc.gov/sites/default/files/ pdf/research-and-publications/ research-projects-and-surveys/ immigration/2015_Illegal-Reentry-Report.pdf 3 Unless otherwise noted, the remaining data is from grassrootsleadership.org/reports/ indefensible-decade-mass-incarceration-migrants-prosecuted-crossing-border.

4 dhs.gov/news/2016/12/30/dhsreleases-end-year-fiscal-year2016-statistics David Peterson is an Assistant Federal Public Defender for the Western District of Texas. Any views expressed are his views only and not those of the Office of the Federal Public Defender.

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FEDERAL CIVIL COURT UPDATE

>

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

CIVIL PROCEDURE: Arbitration agreement between plaintiffs and non-diverse defendant failed to establish improper joinder.

Bullerwell et al. v. Volkswagen Group of America, Inc. et al., No. SA-16-CV-01199 (W.D. Tex. [San Antonio] Jan. 10, 2017) (Doc. 12).

Defendant argued that citizenship of non-diverse defendant should be disregarded in diversity jurisdiction analysis because arbitration agreement precluded any reasonable possibility of recovery

by Plaintiffs against non-diverse defendant. The Court disagreed, noting that such argument had been “uniformly rejected” across multiple jurisdictions. Motion to remand granted.

PATENT INFRINGEMENT: Expert may not offer opinions to “explain” a term construed

by Court as having its plain and ordinary meaning.

Yeti Coolers, LLC v. RTIC Coolers, LLC, No. A-15-CV-00597 (W.D. Tex. [Austin] Jan. 27, 2017) (Doc. 356). Plaintiff moved to exclude Defendant’s expert on

grounds that expert’s opinions relied on alternative constructions of certain claim terms that had already been construed by Court as having their plain and ordinary meanings. Plaintiff claimed that expert’s purported “explanation” of the plain and ordinary meanings as understood by one skilled in the art constituted inconsistent—and thus improper—claim construction. The Court agreed, noting that although testimony to the jury about the plain and ordinary meaning of a term as understood by one skilled in the art may be permitted in certain circumstances, it is impermissible to offer such testimony to argue claim construction to the jury, as only the trial judge may instruct the jury on the meaning of claim terms. Motion to exclude granted.

CONSTITUTIONAL LAW: City had no constitutional duty to inform indigent citizens of available alternative options to resolve traffic tickets without upfront payment or jail time.

Canaan et al. v. City of El Paso, No. EP-16-CV-00132 (W.D. Tex. [El Paso] Jan. 12, 2017) (Doc. 33) (mem. op.). Plaintiffs brought claims against Defendant under 42 U.S.C. § 1983 and Texas law, alleging that Defendant’s municipal clerk staff systematically fails to inform traffic ticket recipients that they may request a determination of indigency and/ or alternative sentencing, instead

advising that tickets can only be resolved in one of three ways: (1) payment in full, (2) application for a payment plan with 25 percent of the total fine paid upfront, or (3) jail. Plaintiffs claimed violations of equal protection and due process rights. The Court found Defendant did not have a constitutional duty to inform Plaintiffs of alternative options, nor did Plaintiffs have a constitutional right to be informed of such options by Defendant. The Court found Plaintiffs’ complaint failed to state a claim upon which relief could be granted under § 1983.

Motion to dismiss granted in part.

CIVIL PROCEDURE: Plaintiff’s removal of own case was waivable procedural defect that did not defeat federal jurisdiction.

Sigler v. Caliber Home Loans, Inc., No. SA-16-CV-00717 (W.D. Tex. [San Antonio] Jan. 5, 2017) (Doc. 9). Plaintiff removed his own case to federal court. Defendant did not object or move to remand. In the context of Defendant’s subsequent motion to dismiss, the Court undertook a sua sponte analysis of its subject matter jurisdiction, acknowledging that the federal removal statute (28 U.S.C. § 1441(a)) authorizes removal by defendants only. The Court noted that the issue of removal by a plaintiff has been treated differently by different courts—some considering it a jurisdictional defect mandating remand, others

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

finding it a mere procedural defect that is waived if not raised within 30 days of removal. The Court adopted the latter approach and held that the procedural defect had been waived. Nevertheless, the Court ultimately granted Defendant’s motionLAWYER to dismiss for AUSTIN failure to state a claim.

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AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Day of Service AYLA Members’ Spirit of Volunteerism Helps Multiple Organizations

O

n Jan. 16, 2017, more than 50 young lawyers, friends, and family participated in the Austin Young Lawyers Association’s annual National Day of Service as part of a nationwide celebration of the life and teachings of Dr. Martin Luther King, Jr. Volunteers from AYLA and the Austin Bar Association fanned out across the city, assisting local non-profit organizations, including: • Austin Children’s Shelter; • BookSpring; and • Austin Animal Center.

An additional event for the Austin Parks Foundation was also scheduled for the Day of Service event. Although more than 25 attorneys registered to volunteer, the event was canceled because of bad weather conditions and

AYLA’s participation in the 2017 National Day of Service was a big success... rescheduled for Saturday, Feb. 4.

AYLA’s participation in the 2017 National Day of Service was a big success, and the participants’ spirit of volunteerism made an impact across the community.

Many thanks to the Day of Service Co-Chairs Jorge Padilla and Drew Harris, and the many committee members who helped coordinate this year’s events, including David Courreges, Kelley Dwyer, and AUSTIN LAWYER Franklin Hopkins.

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TOP: Attorney volunteers at the Austin Animal Shelter.

LEFT: Attorney volunteers at BookSpring.

AYLA Tailgate

D

id you attend the AYLA Tailgate fundraiser in October before the UT vs Baylor football game? Let’s make this an annual event! If you are interested in being on the committee to help plan for next year, please contact Debbie Kelly at Debbie@austinbar.org.

The Tailgate was a great success this year because of the many people who helped put it together and raise money for the AYLA Foundation and Reindeer Games. We are especially grateful to our sponsors, MEXCOR, AUSTIN LAWYER AL AL Tito’s Handmade Vodka, and South Austin Brewery.

ABOVE: (from left) Drew Harris, Kristen Haraden, Jorge Padilla, Austin Kaplan, and Franklin Hopkins.

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AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Women’s Resource Fair, April 8 Volunteers and Donations Needed

T

he Austin Young Lawyers Association is organizing the 10th annual Women’s Resource Fair. The event is scheduled for Saturday, April 8, 2017 from 9 a.m. to 3 p.m. at the Schmidt-Jones Family Life Center located at 1300 Lavaca Street, near the First United Methodist Church.

The Women’s Resource Fair provides hundreds of homeless and low-income women with a full day of services, including legal advice, medical exams, haircuts, child care, plus a chance to shop for clothing and shoes.

Volunteers are needed to assist with set-up, clean-up, registration, gift bag distribution, and general duties. If you have any questions or would like to volunteer, contact

APR 8 AYLA WOMEN’S RESOURCE FAIR SCHMIDT-JONES FAMILY LIFE CENTER 9 a.m. – 3 p.m.

Lauren Downey at womensresourcefair@hotmail.com.

We are also seeking volunteers to provide legal advice and assistance in the areas of family law, immigration, criminal law, estate planning, bankruptcy/collections, public benefits, landlord/ tenant law, and consumer issues, among other matters. Also needed are attorneys who speak other languages or legal staff who can

READY TO HELP? Volunteer to provide legal advice and assistance in the areas of family law, immigration, criminal law, estate planning, bankruptcy/ collections, public benefits, landlord/tenant law, and consumer issues, among other matters.

assist as interpreters. Two shifts are available: 9 a.m. to 12 p.m., and 12 to 3 p.m. Please contact Kara Batey at KBatey@branscombpc.com to sign up.

Donations of gently-used

Maitreya Tomlinson

women’s clothing of all types and sizes are being sought for inclusion in the clothing closet. Please contact Debbie Kelly at Debbie@ austinbar.org if you have any AUSTIN LAWYER questions.

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ENTRE NOUS

And the Tweet Goes On….

Lawyers, Mount Up! We’re Heading into “Uncharted Territory”

BY CLAUDE DUCLOUX

I

n the wildly funny and entertaining movie, “Idiocracy,” an average U.S. soldier put into suspended animation for an experiment— wakes up in the dystopian future, and finds out that his 20th century education makes him now the smartest man in the world. Reasoning skills are non-existent, as is the ability to judge honesty and candor. President Camacho (actor Terry Crews) starts his State of the Union address by telling everyone to shut up, and promising he can fix everything. Now this movie is being studied as a documentary.

Suppose you’re in a hearing and the judge asks you a direct question. It probably is not the best idea to insult the judge and her question, and insist that the question proves intentional bias which excuses a response. It won’t be long before your legal career will take an unpleasant detour.

Why? Because your credibility and the mission of our profession depends upon establishing truth.

No one will dispute that the most overused descriptor of the mysteries of our new administration is: “Um,… we’re in uncharted territory.” The press is scurrying around to the point of exhaustion trying to fact-check the latest report. They are slowly being worn out and conditioned to the acceptance of “alternative facts” and the diminishing returns of factual proof. Indeed, we’re in “uncharted territory.”

Like most of you, I am an American first and foremost. I enlisted in the Army to serve this country, and have never stopped volunteering since. I pray every day that this cherished democracy will continue. All loyal Americans, regardless of political beliefs, want that. Our lives, families, and posterity are at stake. I also concede that some of my opinions may be wrong.

Clearly, good and decent citizens will hold different opinions. But none of us gets to change, ignore, or create our own facts. In those dark moments, the legal profession

is often at its finest.

While all of us are entitled to espouse and consider every reasonable proposal to move our country forward, there are undoubtedly dark forces that are trying to change the shape and balance of our traditional checks and balances, using opportunism and appeals to the (often justified) fears and frustrations of many.

Honesty is always the first casualty in the battle for hearts and minds. But historically, we have re-

lied on and trusted institutions who take their responsibilities seriously: dedicated journalists, lawyers, and judges. Thus, we might expect attacks on all three. And we are seeing such attacks daily.

In difficult times, the legal profession’s role as protector of the rule of law becomes paramount.

Lawyers and judges frequently have rescued our nation from excesses of power and populist, but unfair, prejudices. I remind you that in 1959, more than 90 per-

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cent of Americans polled favored laws against inter-racial marriage.

What politician seeking reelection could oppose that? Such laws would have prevailed were it not for the courage and the incredible integrity of judges who refused to bend to political pressure, and observed their duties under the Constitution of the United States to afford equal protection of the laws. We must not countenance the creation of second-class American citizens. Discrimination is never progress. And truth never has an alternative.

Like our colleagues on all sides of the political spectrum, we all need to have objectivity and courage. That becomes most difficult when we might favor a position which we know is legally insupportable. In those situations, we shall be tested. I have been inspired by heroes of every political belief who have taken unpopular stands. Even when I fervently disagree with their positions, I have thanked them for making me think, for encouraging me not to be complicit by my silence.

Make no mistake, the brilliant tactic of labeling the free press as biased, untrustworthy liars may be new to this American generation, but it is a standard tool used by every regime seeking to stifle criticism. Journalists, like lawyers, are impediments to false narrative. If Shakespeare’s “Dick the Butcher” character were written today, he’d say, “first thing, kill all the lawyers, …and take out some journalists, too!”

Once you get the public “buy-in” on discrediting the press, you’re home free. Lest we forget, 43 years ago a dogged and persistent press forced a president to resign for lying, and another president was impeached. A lying president was not to be tolerated!

Yet neither president had the temerity to argue that the journalists made it all up.

Let’s put this urgent duty we have into context. What do we really mean when we say “Rule of Law?” Why is that phrase so important? We say the words, but few can explain the concept.

Let me try: The Rule of Law is

our social compact as a civilized nation to address problems, conflicts, and basic fairness between our citizens with rules rather than guns, daggers, murder, and mayhem. And knowing that rules will never be perfect, we further agree to improve them if they fall short, become obsolete, or fail to address their purpose. But we follow them.

How can we swing this pendulum back to encouraging honesty and belief in, and reliance on, rules? Here’s the long game: We need to embrace truth wherever

we find it, and defend the public servants and journalists who are threatened by reporting the truth.

While every honest position has a right to be heard, wherever it may fall on the political spectrum, it should be based upon facts.

Our strength and resolve must never permit us to “go along to get along.” American lawyers have always been the messengers of a society unhappy with itself. And those seeking to undermine the Rule of Law know it. I don’t say to pick arguments where there are

none, or make yourself a social pariah, but don’t suffer falsehoods and injustice wherever you find them, without making an appropriate comment, rejoinder, or written reply. Indeed, that is our role.

Let’s do what we have always done best: share good ideas. Fix problems. Make this a better world. I am so proud at this moment to be a lawyer.

Plus, I really want to be part of a different documentary than “Idiocracy.”

AUSTINLAWYER Keep the A faith.

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Laura Sharp Running for President-Elect of the State Bar of Texas Past-President of Austin Bar Seeks Election

A

ustin Bar member Laura Bellegie Sharp has been chosen as a candidate for president-elect of the State Bar of Texas.

State Bar members will vote for the president-elect and district directors in April. The winner will serve as president-elect in 2017-2018 and as president in 2018-2019.

President-elect candidates are recommended by the State Bar board’s Nominations and Elections Subcommittee and approved by the Board of Directors in accordance with a three-year rotating cycle between members in a metropolitan area, nonmetropolitan area, and an open year. It is currently an open-year cycle.

Sharp is a trial attorney handling all forms of litigation for The Sharp Firm in Austin. She obtained her Bachelor of Arts from the University of Texas, and her

Sharp served as president of the Austin Bar Association from 2003 to 2004 and she is a Founding Fellow of the Austin Bar Foundation, where she served as chair twice.

J.D. from Baylor Law School.

She served on the State Bar of Texas Board of Directors from 2004 to 2007. She has served on the bar’s Rules, Grievance, and Women in the Profession committees, the board of the State Bar of Texas Insurance Trust, and has served on the Texas Board of Legal Specialization since 2007.

She is a Texas Bar Foundation Life Fellow, and a member of the Texas Trial Lawyers Association.

She served as president of the Austin Bar Association from 2003 to 2004, and held director and officer positions from 1998 to 2003.

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She is a Founding Fellow of the Austin Bar Foundation, for which she has served as chair twice, and currently serves as treasurer.

Sharp has been a delegate in the American Bar Association House of Delegates since 2008, is on the board of the National Con-

Sharp

ference of Bar Foundations, and is an American Bar Foundation Life Fellow. Sharp is running against AUSTIN LAWYER Chad Baruch of Dallas.

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Thank You Austin Bar Foundation Fellows Largest Group of Fellows in Foundation’s History Pledges Support

T

he Austin Bar Foundation raises funds through the Fellows program and fundraising events such as the annual gala.

Fellows commit to give $2,000 over 10 years; Life Fellows have completed their financial commitment.

Sustaining Fellows are donors who have achieved Life Fellow status but continue to give annually.

Since November 2016, the Austin Bar Foundation has welcomed the largest group of new Fellows and Life Fellows in its history. For a complete listing of Austin Bar Foundation Fellows, visit austinbar. org/foundation/fellows.

NEW LIFE FELLOWS Alan Andrews Richard H. Anton Sam Bassett Chester Sanford Beattie, Jr. R. Louis Bratton Stockton Anthony Hayden Briggle Tiffany Tomblin Carnes Gerald C. Carruth Jeffrey S. Chapman Randall Chapman

Fleur A. Christensen Christi Craddick Stanley W. Crawford Holly R. Davis Julio de la Llata James W. Evans James B. Ewbank II Judge Melissa Y. Goodwin Mark Hefter Chris Kirker R. Bruce LaBoon Frank L. Leffingwell Joe R. Long Shelly Masters John B. Meadows Sarah Dougherty McHaney Kevin Meek Stephen P. Meleen John J. Migl Elizabeth (Becky) Miller Prentice H. Miller Parker Polan Ethan L. Shaw Martha E. Smiley Henri A. Ten Brink Erin M. Thrash Karen Wang William F. Warnick William D. Wiese Judge Kimberly Williams

NEW FELLOWS: Meghan Alexander Richard Alexander Kristen A. Algert Anthony Arguijo

Amanda Arriaga Joel Don Ballard Amy Beckstead Elizabeth G. (Heidi) Bloch John D. (J.D.) Bostick Timothy Boughal Bruce P. Bower Kevin Brown Tanya Brown Judith E. Bryant Kim Gustafson Bueno Cleveland R. Burke Patrick A. Caballero Stephanie F. Cagniart Randy C. Cain Jennifer Ahrens Cawley Annette Chaires William Christian Martin Cirkiel Todd A. Clark Samuel Erik Combs IV Madeleine Connor JoAnn Dalrymple Tricia Heil Davis Masha-Leah Davis Carolyn Anne Denero Patricia Dixon Jams D. Doyle III Lindsey S. Drake Anna Eby Chad Ennis Craig T. Enoch Justice Scott K. Field Todd Fine Jason Flaherty

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DEVELOPING YOUR PRACTICE

Chasing the Work-Life Balance

BY AMY E. MITCHELL

M

y friends laughed when they heard I was writing an article on worklife balance. After all, I run a busy solo law practice, have two active boys under the age of three, tend to collect new hobbies like they’re going out of style (ukulele or knitting, anyone?), and am always signing up to sing in some production or another. My dayto-day life is hectic, and I feel exhausted more often than not.

In other words, I’m not exactly the poster child for how to appear well-balanced or relaxed. Does that mean my work-life balance is out of whack?

As a concept, achieving a worklife balance can be misleading because it suggests there is some magic combination of waking time spent “working” and time spent “living” (i.e., time with family, friends, social activities, hobbies, etc.), or, worse, that the terms “work” and “life” are somehow mutually exclusive. In reality, striking the right balance is a moving target and varies from person to person and situation to situation. While someone may feel balanced working 60 hours a week because the work itself is fulfilling “life” needs (e.g., co-workers are friends, firm culture is socially satisfying), another may feel imbalanced with a particularly draining or isolating part-time job and need a lot of “outside” time to decompress and recharge.

The initial hurdle for achieving a work-life balance is reflecting on how balanced you feel on a regular basis and identifying your basic needs to be the person you want to be. Do you feel like all

you do is work? Did you have to cancel your anniversary plans again? Are you constantly missing your kid’s concerts and ballgames? If so, you’re not alone. For most attorneys, it’s easy to fall into the “work comes first” mentality to the exclusion of adequate time for friends, family, and self. A strong lawyer work ethic is instilled in law school, if not earlier, and the pressure to bill time in our profession can be suffocating.

Indeed, the thought of some of my big-firm lawyer friends taking time off work for ukulele lessons is laughable. But all is not lost.

There are steps you can take to start improving your work-life balance right away.

Start small.

Imagine you’re on a seesaw and each week a new person is on the other side. That person weighs more or less than the previous person, forcing you to readjust.

Now think of that seesaw partner as your work demands. The heavier that seesaw partner, the more effort you need to expend to counterbalance to meet your “life” demands.

If you are deep into the “all I do is work” lifestyle (because, let’s face it, what attorneys do you know who complain they are spending too little time working?), commit to setting aside some amount of time for yourself each day, even if it’s just five to 10 minutes. Give yourself permission to be selfish with this time.

Simply enjoying stillness can be a good start.

Identify your priorities.

When I had my first child, I joined a new moms group. We

were given a worksheet with the following increments of time on it: 1 minute, 5 minutes, 15 minutes, 30 minutes, 1 hour, 2 hours, half day, full day, and weekend. We were then asked to fill in what we would do if we had that amount of time to do with as we wished.

At first, I thought it was a silly exercise but I quickly realized the exercise was deceptively good at helping me identify what I was missing in my daily routine and thus served as a valuable tool in identifying my personal priorities and building some balance back into my life. The list can also be helpful if you unexpectedly have a chunk of time free up, especially if you’re in the habit of updating the list regularly to reflect changes in your professional and/ or personal life.

TIP: To improve your chances of success, mark down regular “Me Time” in your calendar. Do not give up your “Me Time” unless there’s a true emergency.

Set work boundaries.

Setting boundaries with employers and clients can be uncomfortable.

Most attorneys accept working nights and weekends as a given.

However, those attorneys are often the ones who experience burnout or are so bleary-eyed they become inefficient and/or commit errors.

Stepping out of the office to rest and recharge is therefore not only good for your body, soul, and personal relationships, but can make you more efficient and produce a better work product.

After confirming what is expected of you at work, communicate to your bosses and co-workers your commitment to having a healthy work-life balance, which entails having a reasonable amount of personal time every week. Discuss ways to free up time such as working remotely or delegating certain tasks. Chances are, if you can agree on certain shifts to increase the amount of personal time you have to recharge out of the office,

Amy E. Mitchell is a solo transactional entertainment lawyer and has served 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. amyemitchell.com.

the firm will soon benefit from a happier, more productive you.

Similarly, insist clients recognize your need for personal time and respect your work hours.

These same people presumably respect the hours for retail stores and many other professionals.

Why not us? That said, if the client really and truly needs someone available 24/7 and this arrangement doesn’t work for you, consider politely suggesting there may another attorney who can serve their needs better. I’ve been amazed how many times this simple statement reins a needy client in.

In sum, achieving the right work-life balance is easier said than done, and will not happen for you overnight. It will take time and energy to reset your expectations of this profession and those of others. However, the payoff in terms of personal happiness and AUSTIN LAWYER satisfaction is priceless.

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