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austinbar.org MARCH 2021 | VOLUME 30, NUMBER 2

2021 Virtual Gala Raises $56,000 for Austin Bar Foundation

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he 18th Annual Austin Bar Foundation Gala, held on Jan. 28, 2021, may not have looked like all the rest, but it was a successful evening of fundraising and camaraderie nonetheless. The virtual program included a live auction and an awards presentation honoring five esteemed members of Austin’s legal community. The Gala’s “Around the World” theme celebrated diversity and illustrated the idea that despite our differences, we are all connected and all part of the human race. While separated by distance temporarily, the Gala showed us that we are not separated in spirit. Austin Bar members joined together and raised $56,000 to support the many legal-related programs and projects the Foundation funds throughout the year, such as Austin Adoption Day, the CANLAW Clinic, Veterans Legal Assistance Program, the Self-Represented Litigant Project, the Diversity Fellowship Program, scholarships for Texas LGBT law students, and the Justice Mack Kidd Fund. The Fund-a-Need portion of the auction raised $11,050 in support of the Foundation’s grant program, falling short of the $20,000 goal. Donations are still being accepted to help close this gap. The Foundation has awarded more than

TOP, (from left): Judge Aurora Martinez Jones; Mary Ellen King; Hon. Rudy Metayer; and Judge Tim Sulak (ret.) and family. BOTTOM, (from left): Judge Jessica Mangrum; Justice Chari Kelly with Snickers, Amanda Arriaga, and Abbey Fowler; Mary Ann Espiritu and Daniel Conejo with Abby; and Pete Reid.

While separated by distance temporarily, the Gala showed us that we are not separated in spirit. $168,500 to date in grants to legal-related organizations. Past grant recipients include American Gateways, Volunteer Legal Services, Austin Community Law Center, Austin Classical Guitar’s Guitar and Juvenile Justice Program, CASA, and the Texas Fair Defense Fund. Ticket holders were able to purchase party bags that were delivered to their homes prior to the

event. Bags included a DIY flower arrangement with flowers and a vase, insulated champagne flutes, and more. A signature cocktail kit was also available from HipStirs. To support restaurants struggling due to the pandemic, guests were able to order dinner to be delivered from several local restaurants offering a variety of ethnic cuisines. A Spotify playlist of world music was curated especially for the evening. Attendees, many wearing clothing that reflected their cultural heritage, uploaded photos to the virtual photo booth. Murad Auctions provided the live-stream platform and hosted the live auction portion of the evening. Guests bid on a Charleston culinary experience; a

Camp Blanco weekend getaway; a mountain vacation in Winter Park, Colo.; a stay at the Villas near Dripping Springs; a ski package in Jackson Hole, Wyo.; a “U.S. Explorer” package with a choice between five U.S. destinations; and a stay in a Paris apartment plus roundtrip airfare for two. In addition, several online silent auction items drew bids. An awards presentation followed the auction. 2021 Austin Bar award winners were: • Larry F. York Mentoring Award—Amanda G. Taylor; • David H. Walter Community Excellence Award—Adam Loewy; • Joseph C. Parker, Jr. Diversity Award—Judge Aurora Martinez Jones: and • Distinguished Lawyer Awards— Betty Blackwell, Bill Jones, and Judge Tim Sulak (ret.). Videos honoring all three Distinguished LawyerAUSTIN Award winners LAWYER AL AL can be viewed at austinbar.org.


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CONTENTS

AUSTINLAWYER MARCH 2021 | VOLUME 30, NUMBER 2 AL A L INSIDE FEATURED ARTICLES

DEPARTMENTS

CONNECTIONS

1

6

ONLINE austinbar.org

2021 Virtual Gala Raises $56,000 for Austin Bar Foundation

13 Travis County Women Lawyers Association

Honors Attorneys 21st Annual Pathfinder Awards Luncheon Held in January 14 What’s Mine is Mine—What’s Yours Is Ours 21 Austin Bar/AYLA Leadership Academy Announces

Class of 2021

24 Austin Bar President Kennon Wooten Wins Award

8 10 12 16 17

18

19 20 22 25 26

ONLINE

President's Column Equity Committee Spotlight Briefs Be Well Opening Statement Third Court of Appeals Civil Update Third Court of Appeals Criminal Update Federal Civil Court Update Criminal Court News AYLA Practice Pointers Entre Nous

Austin Bar Releases 2021 Judicial Evaluation Poll Results Fifty Local Judges Evaluated by Austin Bar and ACDLA Members View Photos from the Austin Bar Foundation Gala's Virtual Photo Booth

MAIL Nancy Gray, managing editor Austin Bar Association 816 Congress Ave., Ste. 700 Austin, TX 78701-2665 SOCIAL LIKE facebook.com/austinbar FOLLOW twitter.com/theaustinbar WATCH vimeo.com/austinbar STREAM @AustinBarAssociation

austinbar.org

NEWS & ANNOUNCEMENTS

EMAIL nancy@austinbar.org

UPCOMING EVENTS MAR 25 Cooking with the Judiciary With Judge Leon Grizzard and Chief Justice Darlene Byrne 6 – 7 p.m. Sponsored by the Lawyer Well-Being Committee. RSVP at austinbar.org.

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INTERESTED IN WRITING FOR AUSTIN LAWYER? Contributing authors sought for inclusion in Austin Lawyer. Articles on various legal-related topics are considered for publication monthly. Please limit submissions to between 500 and 750 words. Send articles to Nancy Gray, Managing Editor, at nancy@austinbar.org. Submission is not a guarantee of publication.

AUSTINLAWYER

AUSTINLAWYER OFFICIAL PUBLICATION OF THE AL ALASSOCIATION AUSTIN BAR AUSTIN BAR ASSOCIATION

Kennon Wooten ������������������ President David Courreges ������������������ President-Elect Amanda Arriaga ������������������� Secretary Justice Chari Kelly ��������������� Treasurer D. Todd Smith ����������������������� Immediate Past President

AUSTIN YOUNG LAWYERS ASSOCIATION

David King ���������������������������� President Rachael Jones ����������������������� President-Elect Blair Leake ����������������������������� Treasurer Sarah Harp ���������������������������� Secretary Sandy Bayne ������������������������� 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, 712 W. 16th Street, Austin, TX 78701. Periodicals Postage Paid at Austin, Texas. POSTMASTER: Send address changes to Austin Lawyer, 712 W. 16th Street, Austin, TX 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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PRESIDENT'S COLUMN KENNON WOOTEN, SCOTT DOUGLASS & McCONNICO

Women’s History Month: Reflecting on Success and Confronting Barriers

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omen’s History Month is a time to celebrate the contributions women have made to our country and to recognize women’s achievements in a variety of fields. It is also a time to reflect upon the barriers women have overcome in the past and the barriers we confront to this day. This mental exercise evokes images of trailblazers who opened doors for others,1 and it elicits thoughts of the rising stars among us and of the things we can each do to work toward equality for women. The legal field is, and always has been, filled with remarkable women. Texas alone provides many examples of women who ventured bravely into uncharted territory. A few of “the firsts” follow: • Special Chief Justice Hortense Sparks Ward, Special Associate Justice Hattie Leah Henenberg, and Special Associate Justice Ruth Virginia Brazzil, who convened in 1925 (due to recusals) as the first all-woman high court in the United States, specifically as a special Texas Supreme Court panel, to hear a case involving the fraternal organization Woodmen of the World;2 • Judge Sarah T. Hughes, who became the first female federal judge in Texas in 1961; • Barbara Jordan, who was the first Black female lawyer elected to the Texas Senate in 1966; • Irma L. Rangel, who became the first Mexican American 6

AUSTINLAWYER | MARCH 2021

woman to be elected to the Texas Legislature in 1976; • Justice Sandra Day O’Connor, a native Texan who served—between 1981 and 2006—as the first woman associate justice of the United States Supreme Court; and • Judge Karen Gren Scholer, who—in 2018—became the first Asian Pacific American to serve as a federal district-court judge in Texas.3 The list of trailblazers in Texas goes on and on. There are also countless rising stars among us. Yet, in and beyond Texas, barriers to success still exist for women. The COVID-19 pandemic recession has highlighted this reality in our labor force, both in and beyond the legal field, and it has raised many questions. What is happening? Why are women being impacted more than men? Is there a way to reverse the trend and emerge stronger than we were before? It is too soon to answer these questions fully, but now is the time to analyze the situation and look for opportunities. The National Women’s Law Center reported recently that over 2.3 million women have left the labor force since February 2020, as compared with the nearly 1.8 million men who left in that same time period.4 Women of color have experienced disproportionately negative impacts.5 And women in the law certainly have not been immune to the employment crisis during the pandemic. In a recent American Bar Association article, the author drove this point home, stating: “[S]napshots from across the country show women lawyers encountering a vast range of daunting issues related to the coronavirus outbreak, ranging from stress to income loss, additional caregiving respon-

The 1925 "All Woman" Court: (from left) Justice Ruth Brazzil; Chief Justice Hortense Ward; and Justice Hattie Henenberg. Photo credit: TSLAC.

sibilities, isolation, and hours that don’t stop.”6 Some economists have predicted that the gender wage gap will widen throughout the recovery from the pandemic recession, but those same economists have indicated that the recession could ultimately reduce gender gaps in the labor market.7 They attributed this potential reduction to things like fathers increasing the time spent on childcare during the pandemic, a rise in the number of couples in which the husband is the primary childcare provider, and the adoption of remote-working arrangements during the pandemic.8 Interestingly, their assessment relating to increased time spent on childcare was based in part on “existing evidence from policy-induced increases in father[s’] contributions to childcare (e.g., through paternity leave)[,]” which, to them, “suggest[s] that the rise in men’s engagement during the crisis will result in a higher involvement of fathers in childcare in the future, and a corresponding greater ability of mothers to pursue their careers[.]”9 As a woman observing women losing decades of labor-force

gains in less than a year, I want to believe that, ultimately, women will restore prior gains and come out better than they were before. As a mom married to a man who took 12 weeks of paternity leave and who has been the primary childcare provider in our home, I do believe that one way to be better than we were before, collectively, is to implement and support (without stigma, shame, or blame) policies giving all parents—moms and dads alike—the opportunity to take leave for childcare, regardless of whether such leave is required by the Family and Medical Leave Act, the Pregnancy Discrimination Act of 1978, or any other law. As Justice Ruth Bader Ginsburg once said, “Women will have achieved true equality when men share with them the responsibility of bringing up the next generation.” While the pandemic has led to immeasurable loss and struggle, it also has reinforced that support systems are invaluable to our individual success as women and, therefore, our collective success as a society. We can emerge from this pandemic better than we were before if we work together


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and support the helpers among us, regardless of gender. So, let’s use this month to celebrate our victories and ponder possibilities for the betterment of women and AUSTIN LAWYER AL AL of our broader community.

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Footnotes 1. For a neat collection of trailblazers’ oral histories, go to https://abawtp. law.stanford.edu/—a website launched for the Women Trailblazers in the Law Oral History Project of the American Bar Association’s Senior Law Division. 2. Ward was also the first woman to pass the bar examination for the State Bar of Texas (in 1910) and the first Texas woman admitted to practice before the United States Supreme Court (in 1915). For interesting biographies of these women and all other Texas justices, go to https:// tarltonapps.law.utexas.edu/justices/. 3. This article barely scratches the surface of these women’s accomplishments. I encourage all readers to learn more about them. When writing this article, I spent hours reading about them and felt both moved and inspired. 4. https://nwlc.org/resources/januaryjobs-day-2021/. 5. https://nwlc.org/resources/2020jobs-day-reports/. 6. Cynthia L. Cooper, Work-Life Imbalance: Pandemic Disruption Places New Stresses on Women Lawyers, Am. Bar Ass’n, Dec. 18, 2020, https:// www.americanbar.org/groups/ diversity/women/publications/ perspectives/2021/december/ worklife-imbalance-pandemicdisruption-places-new-stresseswomen-lawyers/. 7. See generally Titan Alon et al., This Time It’s Different: The Role of Women’s Employment in a Pandemic Recession, (Nat’l Bureau of Economic Research, NBER Working Paper Series, Working Paper No. 27660©, Aug. 2020), https://www.nber. org/system/files/working_papers/ w27660/w27660.pdf. 8. Id. at 4. 9. Id. at 38.

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EQUITY COMMITTEE SPOTLIGHT

Equity Committee Hosts Event to Discuss Podcast This Land

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lease join the Austin Bar Association’s Equity Committee for a virtual discussion of the podcast This Land on March 9, 2021 from 5:30 to 7 p.m. You can listen to This Land on Apple Podcasts, Spotify, TuneIn Radio, or wherever you normally access podcasts. The discussion will be moderated by Equity Committee Leadership Team Member Mishell Kneeland. An 1839 assassination of a Cherokee leader and a 1999 murder case—two crimes nearly two centuries apart—provide the backbone for a 2020 Supreme Court decision that determined the fate of five tribes and nearly half the land in Oklahoma. In eight easy-to-listen-to

episodes, the podcast explores the concepts of tribal sovereignty, jurisdiction, whether large portions of Oklahoma are tribal lands, and, if so, what that means for persons who are not citizens of the five Nations whose tribal lands are at stake. It also brings to light historical aspects of indigenous relocation, common misconceptions about life for citizens of the tribes throughout the United States, tribal governments, and the laws that impact indigenous tribes and current U.S. citizens.  RSVP today at austinbar.org to receive the Zoom link for the virtual discussion. Please try to listen to all eight episodes prior to the discussion, but don’t worry if you haven’t listened to them

all. This Land is also suitable for non-lawyers, so feel free to invite others to participate with

you. Questions? Contact Mishell Kneeland at mishell.kneeland@ AUSTIN LAWYER AL AL gmail.com.

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BRIEFS NEW MEMBERS The Austin Bar welcomes the following new members: Katherine Beran Anne Clegg Michelle Ghetti Tyler Hannusch Shara McDonald Ana Near Eduardo Ortiz Margo Pillischer Benjamin Sley Brian Tagtmeir Helene Fehlig Tatum Charles Zhang

ABOVE: (from left) Clemons, Limsiaco, Meredith, Smith.

NEW TO THE OFFICE

 McGinnis Lochridge welcomes Daniel C. Clemons as Of Counsel in the firm’s corporate and tax practice group. Clemons will focus his practice on outside general counsel representation, mergers and acquisitions, debt and equity financing, and other commercial transactions.  Spencer Fane announced Bill Hopkins has joined the health care practice group as a partner in the firm’s Austin office. Hopkins serves health care clients as an advocate and advisor in administrative law, regulatory defense, compliance, and litigation.

 Marc Limsiaco is an associate attorney at The Wiewel Law Firm. He graduated summa cum laude from Texas Tech University Law School and received his undergraduate degree from The University of Texas. Limsiaco practices in the estate planning division of the firm.  Amy Meredith has joined the Criminal Prosecutions Division at the Office of the Attorney General. Meredith is assigned specifically to the Violent Crimes and Major Offender Section, which specializes in prosecuting complex criminal cases including capital murders, sexual offenses involving children, and cybercrimes.

 D. Todd Smith has joined Butler Snow, strengthening the firm’s already impressive appellate and written advocacy practice in Austin and Texas, as well as continuing the growth of the firm’s Austin office. Smith is chair of the Austin Bar Foundation, past president of the Austin Bar Association, and a life fellow of the Austin Bar Foundation.

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BE WELL

Healthy Habits to Maintain Personal Wellness BY THOMAS L. AUSLEY of Lincoln’s greatest strengths in the supreme challenge of our nation. Perfection Is Not Required A common adage at our firm is, “Perfection is not required.” Our paralegals, office staff, and attorneys know that if we make a mistake, we can deal with it, especially if we know about it right away. Having that freedom and that grace encourages an environment of mutual accountability which benefits everyone. Thomas L. Ausley is board certified in family law and is a partner in GoransonBain Ausley family law firm in Austin. He is thankful to have been married 58 years and is blessed with four grown children and ten grandchildren.

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hroughout my years of practice and in my personal life, certain habits have contributed to maintaining an environment of personal wellness. IN THE OFFICE

Follow the Golden Rule The golden rule, in one form or another, is a cornerstone of all major religions. We find the Christian version of the golden rule in the book of Matthew: “Whatsoever you would have others do for you, do that for them, for that is the law.” It is almost too simple. In the book A Team of Rivals, Doris Kearns Goodwin describes Abraham Lincoln’s relationship with his Cabinet. By acting honorably, forgiving offenses, taking blame as the person in charge, and insisting on giving others credit for successes, Lincoln formed a Cabinet consisting of his biggest political rivals. This ability to put the greater good ahead of personal gain was one 12

AUSTINLAWYER | MARCH 2021

SELF-CARE I would have been unable to practice law for over 50 years had I not recognized the importance of self-care. If you are drained mentally, physically, and emotionally, you have nothing left to give your clients or your staff, and even less to give to your family. Mental health professionals coined the term “compassion fatigue.” Substantial research exists about this phenomenon for social workers, police, and emergency relief workers, but in the past several years, their attention finally turned to judges and attorneys, as well as court and legal staff. In an article titled “Is Compassion Fatigue an Issue for Judges?,” a judge defines compassion fatigue as “the result of vicariously becoming worn down and emotionally weary from hearing about and dealing with situations where people have been physically and emotionally injured.” Remember that lawyers are not meeting clients at their best—clients come with anxieties and will act out and be consumed with the difficulties they are facing. Because of a lawyer’s important role in dealing with clients who are emotional and difficult, it is even more important to practice valuable self-care. It is easy to experience burnout and fatigue so pervasive that some experts

refer to it as equivalent to an environmental hazard. Consciously equipping yourself with some of the following tools for self-care is imperative to help you enjoy the practice of law: Develop Avocations If you do not have a hobby, get one. Take up golf or tennis or running. Learn to play an instrument. Plant a garden. Collect antiques. Get a pet. Do something that has absolutely nothing to do with the law and commit yourself to participate every week, no exceptions. Leave on Time and Leave It at the Office When the day is over, it is over. Go home and disengage. Getting on your laptop in the evenings at home to work on cases is not disengaging. If you commit to end the day at 5:00 or 5:30 p.m., you will be more likely to focus your energies efficiently and get the job done. Of course, there will be exceptions to this when a mediation session runs past the stated end time, or when a deadline simply must be met; however, pay attention to how often you violate this rule. Set Realistic Expectations for Yourself and Establish Boundaries Many attorneys are, by nature, high achievers, and some come from families of perfectionists. Some also carry an inordinate sense of a need to “save the world.” Going overboard in dedication to the practice of law, with no sense of perspective, harms not only your clients, but yourself as well. Your actions may appear to come from genuine concern for a troubled client, but deeper reflection may reveal your own need to feel needed and valued by others, or to hear the praise of others. But those “others” will not clean up the mess of your

life when you do not take care of yourself. Be realistic about what you can accomplish in the available timeframe. Overextending yourself will only lead to an ultimate burnout. Maintain balance by controlling your calendar and making time for yourself. Ensure that you have friends outside of the legal profession and spend time with them. Take Vacations Your expertise as an attorney is fueled by creativity. As an attorney, you problem-solve, mediate, and help others arrive at conclusions that were previously unknown to them. How can you maintain this creativity without taking time away from the stresses of your occupation? No matter how poor you think you are now, your soul will be poorer without time to reflect on the journey of life. Maintain a Healthy Sense of Humor Without it, you will definitely take yourself and your profession too seriously. Humility is one of the most admirable qualities of a great leader. Being able to laugh at yourself and at life’s foibles helps maintain perspective and is a reminder of your own humanity. As an attorney, you have an opportunity to model those principles and to change the public’s perception of the legal profession. If you consistently practice “being well,” you can make a difference by better serving not only your clients, but also your family, your community, and AUSTIN LAWYER yourself. AL AL


Travis County Women Lawyers Association Honors Attorneys 21st Annual Pathfinder Awards Luncheon Held in January

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n Jan. 19, 2021, the Travis County Women Lawyers Association hosted its 21st Annual Pathfinder Awards luncheon, virtually this year, recognizing trailblazing women attorneys in Travis County. TCWLA recognized the award winners for being role models and pioneers who are shattering stereotypes and blazing trails for female attorneys. Every year, TCWLA selects and honors a panel of Pathfinders who represent a diversity of life and work experiences, which results in a thought-provoking and inspirational program. This year was no exception. Congratulations to the TCWLA 2021 Pathfinders:

DENISE DAVIS Denise Davis, founding partner at Davis Kaufman, has nearly two decades of experience working in the Texas Legislature. She is the

former Texas House of Representatives deputy parliamentarian, ex-chief of staff for Texas House of Representatives Speaker Joe Straus and ex-general counsel to Lieutenant Governor Bill Ratliff. Davis is consistently ranked as one of Texas’s most powerful lobbyists. CHRISTINA CANALES GORCZYNSKI Christina Canales Gorczynski is executive director of Impact Austin, a dynamic women’s collective giving organization. Christina is also a licensed attorney and certified mediator with the State Bar of Texas. Previously, Christina served as a program officer at the Simmons Foundation, specializing in advocacy and reproductive health; served as principal consultant at First Person LLC, a Texas-based consulting firm specializing in advocacy and capacity building for nonprofits, private foundations, and social

ABOVE: (from left) 2021 TCWLA Pathfinder Award Winners Denise Davis, Christina Canales Gorczynski, and Hon. Evelyn Palfrey McKee.

enterprises; and started her career serving as the executive director of the League of Women Voters of the Houston Area. HON. EVELYN PALFREY MCKEE Judge Evelyn Palfrey McKee, a native of Dallas and East Texas, earned her undergraduate degree from SMU and J.D. from UT School of Law. She served as Chief of Contracts at the Travis County Attorney’s Office and

then opened a private practice, handling primarily family law and probate, before being appointed in 1989 as a municipal judge for the City of Austin. In 1999 Judge McKee was appointed presiding judge of that court. In addition to her work as municipal court judge, Judge McKee is a successful author andAUSTIN publisher of several romance LAWYER AL AL mystery novels.

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What’s Mine is Mine—What’s Yours Is Ours BY HANNAH HEMBREE BELL AND ROBERT METZ In the digital age, you may think, “Oh, if I ever need those I’ll just grab them from the bank.” Wrong. Financial institutions won’t keep your records forever; most purge their files after seven years. So, set a time once a year to save your monthly statements to the cloud. Your future divorce lawyer and tracing expert will thank you.

Hannah Hembree Bell of Hembree Bell Law is a family law and estate planning attorney serving families in the greater Austin and San Antonio areas.

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veryone remembers learning the basic parameters of separate and community property for the bar exam: If you owned the property prior to marriage or inherited or were gifted it during the marriage, it's separate property; otherwise, it's presumed to be community property. Simple enough, right? In theory, yes. In practice, drawing and maintaining the line between separate and community assets can get fairly complicated. Below are three crucial ways you can hold the line both before and after you say, “I do.” GOLD STANDARD: PRE-MARTIAL AGREEMENT Spelling out how your and your future spouse’s assets will be treated in the event of divorce may not be the most romantic option out there, but it’s certainly the cleanest. Pre-martial agreements (aka “prenups”) allow you and your sweetheart to alter the property characterization framework as it applies to your specific situation. Perhaps you two don’t want to create any community property during your marriage—that’s an option. Or, maybe you want 14

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Robert Mertz is a forensic, litigation, and valuation partner with Whitley Penn in its Austin office. He is a certified public accountant (CPA), accredited in business valuations (ABV), and a certified fraud examiner (CFE).

to carve out the way a specific income source is treated—you can do that, too. But, if you decide to go this route, consider hiring an experienced characterization and tracing expert to review your agreement before you sign. The intent—and thus effect—of a prenup can be lost if the wording is not clear. Then, be sure to refer back to your prenup periodically and make sure you are living by the provisions. Otherwise, you may face challenges or arguments about the prenup in the event of a divorce. PAPER THE FILE The key to proving separate property claims (by the required clear and convincing evidence standard, or “CCE”) is maintaining detailed records. At a minimum, you need to be able to show the value of your separate property assets the day before you get married or at the time you receive the gift or inheritance during the marriage. But, to go the distance no matter how complicated your financial situation becomes, you’ve got to paper the file:

1. Keep all bank and brokerage account statements for accounts where you’ve placed separate property funds.

2. Hold on to closing statements for real property transactions. Don’t throw those cumbersome, legal-sized, title company folders in the trash. They may come in handy if you need to prove the separate property you used for a down payment or trace a 1031 exchange someday. 3. Gifts: Say “thank you” but also “sign here.” We all remember the elements of establishing a gift—intent, delivery, acceptance—with all the interesting law school problems turning on establishing the intent element. The same is true in real life. Get divorced, and you will have to prove by CCE that the $10,000 check from your mom was meant as a gift to you and you alone. To avoid situations where the gift is contested and your mom is dragged into a deposition to testify about the gift, best practice is to contemporaneously document the gift. For example, you could draft a declaration of gift for the giftor’s signature, have her add an annotation to the memo field of the check, and/or keep other forms of written communications between the giftor and recipient documenting the gift. YOUR BUSINESS—FORM IT, FUND IT, RESPECT IT Form it. Fund it. Your legal practice or side hustle woodworking business can be a significant part of your portfolio of assets. If formed before marriage, the entity

is separate property. In Texas, even if your separate property business appreciates significantly during marriage, the entire company (and its growth) remains your separate property. To preserve that separate property interest, you need to ensure you’ve followed all the formalities to complete the formation of your firm. So, after you’ve filed your formation documents, make sure you draft an operating agreement and properly fund the entity. For the operating agreement, sign it and clearly document the total initial contribution(s) (often a nominal amount like $1,000). Then, set up a separate bank account in the name of the business and deposit the initial contribution from your personal funds. Having all these items completed, dated, and recorded prior to marriage will go a long way toward solidifying your separate property claim. Respect It. Now that you’ve gone through the headache of setting up your practice, make sure you respect the boundaries between your personal finances and your firm’s finances. In other words, whether separate or community property, don’t treat your business like your personal piggy bank. It is easy to fall into the bad habit of making personal expenditures using business bank and credit card accounts. Similarly, a business owner may consistently use personal funds to make business expenditures without being reimbursed. The severity of the consequences of these bad habits can vary from simple adjustments to financial statements (and business valuation, if a community property business) to claims of fraud and/or alter-ego in an attempt to pierce or reverse pierce the corporate veil. In sum: Get a prenup, hang on to your financial docs, and maintain your entity’s corporate form. Hopefully you won’t need any of it. But if you do, your future divorce lawyer and tracing expert AUSTIN LAWYER will thankAyou. L AL


MARCH 2021 | AUSTINLAWYER

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OPENING STATEMENT

To Serif or Not to Serif Advice for fonts in legal writing BY WAYNE SCHIESS, TEXAS LAW, LEGALWRITING.NET

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hat are the best fonts for legal writing? Legal text appears most often in traditional, serious documents—statutes, contracts, pleadings, and briefs—so let’s narrow our definition of “best” to professional and readable. This column defines a few terms, reports on some research, and offers some recommendations. SERIF OR SANS SERIF? Fonts come in two broad categories: serif and sans serif. Serif fonts have small extensions at the end of each stroke, called serifs. (Below left.) Examples are Times New Roman, Garamond, and Cambria. Sans serif fonts have no serifs. (Below right.) Examples are Arial, Tahoma, and Calibri.

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Most legal writers have, at some point, had to decide whether to use a serif or sans serif font. Yes, some courts and other organizations require a certain font, and you might work for someone who insists on one. A Social Security Administration lawyer told me that the U.S. Attorney for his district required that all documents filed by federal attorneys be in Arial. But what if it’s up to you? Generally, serif typefaces are more common in legal writing than sans serif, and they tend to look more professional to most lawyers. So my recommendation (not a rule) is a serif font for most legal documents. READABILITY Which is more readable, a serif font or a sans serif font? For years, I heard from lawyers 16

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and writing experts that “studies show” that serif fonts are more readable than sans serif fonts. But when I went looking for the studies, I came across an exhaustive report by a consultant named Alex Poole.1 He reviewed more than 50 empirical studies on typography and drew three useful conclusions: 1. There is no consensus about which is more readable, serif or sans serif, and there are many studies finding no difference at all. 2. The alleged differences in readability are slight. In fact, the differences are “so peripheral to the reading process that this effect is not even worth measuring.”2 3. Readability is more strongly affected by the particular font and the reader’s familiarity with that font than it is by whether the font is serif or san serif. As Poole put it, “we should accept that most reasonably designed typefaces in mainstream use will be equally legible.…”3 BEYOND SERIFS For recommendations on specific fonts, the best source is Matthew Butterick’s Typography for Lawyers, also available at typographyforlawyers.com. It’s the most thorough, comprehensive, and informed book on the topic. Beware: Butterick dislikes some common, widely used fonts. He strongly recommends against Times New Roman, and he hates Arial, saying that he refuses to name it, but it “rhymes with Barial.”4 He believes that lawyers should avoid “system fonts”—those that come with Microsoft Word, for example. Lawyers should use professionally designed fonts, and he’ll sell you his, called Equity.

Generally, serif typefaces are more common in legal writing than sans serif, and they tend to look more professional to most lawyers. Still, he knows that most lawyers won’t be buying fonts, so he offers recommendations for system fonts that go from “generally tolerable” to “OK in limited doses” to “questionable” to “fatal to your credibility.”5 On his “generally tolerable” list are several serif fonts that most legal writers will know and that I recommend for any legal document: Bell MT, Book Antiqua, Century Schoolbook, Garamond, and Palatino. For email, sans serif fonts are more typical, and Calibri, on Butterick’s in limited doses” AUSTIN“OK LAWYER AL AL list, is common.

Footnotes 1. Alex Poole, Which Are More Legible: Serif or Sans Serif Typefaces? (Feb. 17, 2008) http://alexpoole.info/blog/ which-are-more-legible-serif-orsans-serif-typefaces/. 2. Id. citing Ole Lund, Knowledge Construction in Typography: The Case of Legibility Research and the Legibility of Sans Serif Typefaces (1999) (thesis submitted for the degree of Doctor of Philosophy, University of Reading, Department of Typography & Graphic Communication). 3. Id. 4. Matthew Butterick, Typograph for Lawyers 78 (2d ed. 2015). 5. Id. at 79.


THIRD COURT OF APPEALS CIVIL UPDATE The following are summaries of selected civil opinions issued by the Third Court of Appeals during January 2021. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Feb. 2, 2021.

> MANDAMUS: Court grants mandamus relief when trial court fails to limit scope of medical exam. In re Evans, No. 03-20-00532CV (Tex. App.—Austin Jan. 28, 2021, orig. proceeding) (mem. op.). In this personal-injury lawsuit, Evans alleged damages for mental anguish. The trial court granted defendants’ request for a mental examination by their expert. Evans challenged the order because it failed to identify the tests to be administered. The court of appeals noted that the movant must show good cause for the exam, including relevance, a nexus between the exam and the condition in controversy, and that the information cannot be obtained by a less intrusive means. The trial-court order was not limited to Evans's particular mental conditions and failed to identify any test to be administered. The court held that the trial court abused its discretion and granted mandamus relief.

MANDAMUS: Court grants mandamus relief when trial court denies request for medical exam. In re Peterson, No. 03-20-00504CV (Tex. App.—Austin Jan. 28, 2021, orig. proceeding) (mem. op.). In this personal-injury lawsuit, the trial court denied defendants’ request to compel a physical exam of plaintiff by their expert. The defendants argued that the exam was necessary because the plaintiff gave only vague answers about her condition and recommended treatments. The court of appeals concluded that the exam could provide relevant information. Further, the plaintiff had been examined by her own experts who would testify at trial, and the defendants’ experts should have the same opportunity. The court rejected the plaintiff’s argument that laches barred mandamus relief. The court noted the defendants’ three-month delay, along with the COVID-19 pandemic that put the trial court in limbo for several months, did not bar mandamus relief. TRIAL PROCEDURE: Court reverses temporary injunction for failure to comply with Rule 683. Hegar v. Zertuche Const., LLC, No. 03-19-00238-CV (Tex. App.— Austin Jan. 22, 2021, no pet. h.) (mem. op.). Zertuche challenged Comptroller’s assessment of back taxes and penalties and filed an

oath of inability to pay. Comptroller alleged Zertuche failed to meet the statutory requirements to protest, and thus the suit was barred by immunity. The trial court granted a temporary injunction enjoining tax collection. Comptroller challenged the order for failure to comply with TRCP 683’s requirement for a temporary-injunction order to set a trial. The court of appeals held that the temporary-injunction order was void. TRCP 683 requires an order to set the cause for trial on the merits. This is a mandatory requirement without which the order is void. The order provided that the parties will set the matter for trial at a future date. The court reversed, dissolved the injunction, and remanded. CONTRACTS: Court holds that forfeiture clause in MSA not invoked with prior breach. Permit Partners, LLC v. Sauer, No. 03-19-00059-CV (Tex. App.— Austin Jan. 29, 2021, no pet. h.) (mem. op.). The parties’ MSA required Permit to make monthly payments to Sauer. Sauer was required to maintain confidentiality as to the MSA’s terms. When Permit failed to make the first payment, Sauer filed an amended counterclaim for breach. Permit claimed the counterclaim breached Sauer’s obligation to maintain confidentiality and thus forfeited her award. The trial court ordered that Permit

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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.

breached the MSA and awarded damages and attorney’s fees. The court of appeals concluded that implicit in the MSA’s forfeiture provision is an exception for just cause based on a prior breach. Thus, even if Saur violated the confidentiality provision, a forfeiture results only if Permit had complied with its obligations. Because Permit had breached the MSA before Sauer filed her counterclaim, there was no forfeiture. The court affirmed on the merits and affirmed the attorney’s fees award but reversed theLAWYER attorney’s AUSTIN AL AL fees award against Permit.

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Leslie Breeland is a real estate agent affiliated with Compass. Compass is a licensed real estate broker and abides by federal, state and local laws. Equal Housing Opportunity.

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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.

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The following are summaries of selected criminal opinions issued by the Third Court of Appeals during August 2020. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Feb. 1, 2021.

JURY VERDICT ON PUNISHMENT – BLANK SPACE ON VERDICT FORM: Jury’s verdict of imprisonment without community supervision upheld when verdict form did not expressly reflect that jury had rejected community supervision. Hernandez-Dominguez v. State, No. 03-19-00125-CR (Tex. App.— Austin Aug. 31, 2020, no pet.) (mem. op., not designated for publication). Appellant was convicted of aggravated assault with a deadly weapon—family violence. The jury assessed punishment at eight years’ imprisonment and returned a verdict form leaving open space in the portion for recommending that the court suspend the sentence and place Hernandez-Dominguez on community supervision. The district court read the jury’s verdict in open court and confirmed with the presiding juror that this was the jury’s verdict. Hernandez-Dominguez argued on appeal that the jury’s 18

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punishment verdict reflected a community-supervision recommendation and that his judgment of conviction should be modified to reflect that his sentence was probated. The appellate court disagreed. The court was mindful that “[a] jury’s lawful verdict on punishment is inviolate,” and the verdict should be “held good if the jury’s intentions can reasonably be ascertained.” In this case, the jury’s intent could be ascertained from the court’s charge on punishment, which instructed the jury that if it were to recommend community supervision, it would have to express that recommendation in its verdict. The court’s charge further instructed the jury that if it decided against a community-supervision recommendation, no express finding was necessary, and the jury would “say nothing” in its verdict concerning community supervision. “Following these instructions, the jury ‘sa[id] nothing’ in its verdict form as to community supervision, leaving only a blank space in the portion for recommending that the court suspend the assessed sentence and place Hernandez-Dominguez on community supervision.” The court also ascertained the jury’s intent by looking to closing arguments and the state of the evidence. Additionally, the jury’s verdict was read in open court and the district court confirmed with the presiding juror that this was the jury’s verdict. Finally, the court noted that Hernandez-Dominguez “declined the district court’s offer to poll the jury, which would have been the proper action to take if he questioned the punishment assessed,” and he “raised no objection to the imposition of his sentence.” SEARCH AND SEIZURE – STANDING TO CHALLENGE: Defendant did not have standing to challenge police seizure of drugs that defendant had tossed into outdoor trash can on another’s property. Sauls v. State, No. 03-19-00785CR (Tex. App.—Austin Aug. 31,

2020, no pet.) (mem. op., not designated for publication). Police officers executed a “no-knock” search warrant for firearms at a residence in Temple, using a “flash-bang” device that made an explosive sound upon detonation. One of the officers was stationed outside a different house at the end of the street. When the device went off, the officer heard a noise and saw a man, later identified as Sauls, running from the front of the house where the officer was stationed. The officer shined his light onto Sauls and noticed that he had a white plastic bag in his hands. Sauls looked up at the officer and tossed the bag into a trash can directly next to the side porch of the house. The officer ordered Sauls to the ground, looked inside the trash can, and found marijuana in plain view inside the plastic bag. Sauls did not live at the house and the trash can did not belong to him. Instead, it belonged to his girlfriend’s aunt, who lived

at the residence. Sauls claimed that he and his girlfriend were “overnight guests at the house that night” and that he and his girlfriend “spend quite a bit of time over there.” Prior to trial, Sauls filed a motion to suppress, asserting that the seizure of the marijuana violated the Fourth Amendment. The district court denied the motion to suppress, and the appellate court affirmed. The court observed that the rights protected by the Fourth Amendment “are personal,” and “an accused must show that the search violated his, rather than a third party’s, legitimate expectation of privacy.” Looking at the totality of the circumstances, the court concluded that because Sauls threw the marijuana into an outdoor trash can that did not belong to him, on property that was not his, he lacked standing to challengeAUSTIN the search and the LAWYER seizure of the evidence. AL AL

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FEDERAL CIVIL COURT UPDATE

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The following are summaries of selected civil opinions issued by the U.S. Court of Appeals for the Fifth Circuit. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of Jan. 24, 2021. ADMIRALTY: Seaman cannot be found contributorily negligent for carrying out superior’s specific order that results in seaman’s injury but may be found contributorily negligent for injury suffered while following general order. Knight v. Kirby Offshore Marine Pac., LLC, 983 F.3d 172 (5th Cir. 2020). Knight was injured while working aboard a tugboat owned by Kirby. Knight’s responsibilities aboard the vessel included assisting with repairs and general heavy lifting. The vessel contained a stern line that was used to secure the tugboat to a barge that the vessel was towing. The barge captain ordered Knight to change out the line; as Knight was installing the new line, he stepped on the line and injured his ankle. Knight asserted a negligence claim against Kirby under the Jones Act. Following a bench trial, the trial court concluded that although Kirby acted negligently by ordering Knight to change the line in rough conditions, Knight was contributorily negligent for failing to watch his footing and failing to move the line to a location on the boat where he would not have stepped on it. The court assigned equal fault to Knight and Kirby. On appeal, Knight argued that he could not, as a matter of law, be held contributorily negligent, relying on language from a prior Fifth Circuit opinion, Williams v. Brasea, Inc., 497 F.2d 67 (5th Cir. 1974), which stated “a seaman may not be contributorily negligent for carrying out orders that result in his own injury,

even if he recognizes possible danger.” Rejecting that argument, a majority of the Fifth Circuit panel held that “Williams, at most, stands for the proposition that a seaman may not be found contributorily negligent for carrying out a specific order from his superior that results in the seaman’s injury.” And the majority held that the order given to Knight was a general order, not a specific one. However, the members of the majority disagreed about why the distinction between general and specific orders, which formed the basis for the court's holding, was not precluded by the broad language in Williams. Judge Barksdale, writing for the court, concluded that the language in Williams was mere dictum. Judge Ho, by contrast, reasoned in a concurring opinion that the broad language in Williams did not control not because the relevant language was dictum, but because the court has the authority to “narrow” prior holdings that are “too broadly phrased.” Either way, the majority agreed that the order given to Knight was a general order rather than a specific one and, therefore, affirmed the district court’s finding of contributory negligence. In a dissenting opinion, Judge Elrod wrote that the language from Williams is not dictum, and the court was bound to follow the precedent as the law of the circuit. Judge Elrod found no basis in Williams (or the cases that followed it) for a distinction between general and specific orders. And, in any event, Judge Elrod would have held that Knight was, in fact, given a specific order. IMMIGRATION AND HUMAN TRAFFICKING: Detention facility’s labor program for detainees was not exempt from provisions of Trafficking Victims Protection Act (TVPA) imposing civil liability for

Sameer Hashmi is an associate at Scott Douglass McConnico who practices complex commercial litigation across Texas and around the country.

David Shank represents clients in highstakes, complex disputes in Texas and around the country. He is a partner at Scott Douglass McConnico.

knowingly obtaining services by certain coercive means. Gonzalez v. CoreCivic, Inc., No. 19-50691, 2021 WL 192717, -- F.3d – (5th Cir. Jan. 20, 2021). The TVPA, enacted in 2000, imposes civil liability on a party who knowingly provides or obtains the labor or services of a person by certain coercive means. CoreCivic operates detention facilities holding alien detainees on behalf of Immigration and Customs Enforcement (ICE) and provides a work program for detainees at its facilities. Although ICE standards require these work programs to be voluntary, former detainee Gonzalez alleged that CoreCivic violated the TVPA, claiming that the work programs were coercive because ICE forced detainees to perform labor by imposing more severe living conditions—including solitary confinement and physical restraints—on detainees who refused to participate. CoreCivic moved to dismiss, arguing that labor performed by immigration detainees in lawful custody is exempt from the TVPA. The district court denied the motion but certified the question for interlocutory appeal. The Fifth Circuit agreed with the district court. After reiterating that “[j]udges are not

legislators” and therefore may not enact exemptions to statutes, the Fifth Circuit held that nothing in the TVPA’s text supported CoreCivic’s argument that the statute does not apply to labor performed in work programs in a federal immigration detention setting. Rather, the TVPA imposes liability on “whoever” obtains labor through certain coercive means, and the definition of “whoever” clearly includes entities like CoreCivic. CoreCivic argued that the TVPA should nevertheless be construed to cover only forced labor that arises in the international human trafficking context, because that was Congress’s focus in passing the statute. The court rejected this argument too, because courts are not free to create statutory exemptions they think Congress would have included (but did not) had Congress conAUSTIN LAWYER sidered them. AL AL

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CRIMINAL COURT NEWS

Felony Pre-Trial Diversion Update BY DAN DWORIN

D an Dworin is a criminal defense attorney licensed in the Western District of Texas since 1997. He is board certified in criminal law by the Texas Board of Legal Specialization. dworinlaw.com.

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ide prosecutorial discretion has long been part of the criminal justice system. On Jan. 1 2021, José Garza was sworn in as Travis County District Attorney, after defeating the sitting district attorney Margaret Moore in the Democratic primary runoff, the timing of which coincided with national and local protests calling for reform of the criminal justice system. Garza campaigned heavily on issues of criminal justice reform. Although police make arrests in Travis County, the felony cases are prosecuted by the district attorney. The District Attorney’s Office has for many years offered

a pre-trial diversion program to defendants whose offenses were non-violent—mostly low-level drug possession and theft charges—and whose criminal history was not significant. The main advantage of pre-trial diversion is that upon successful completion of a term of supervision the criminal charge is dismissed, and the defendant can have their arrest records expunged.1 Garza has signaled an intent to greatly expand the number of defendants potentially eligible to have their case dismissed by participating in a diversion program. In a press release dated Jan. 29, 2021, Garza said that his office has “greatly expanded our pre-trial diversion program so that more people will be eligible,” and added that previous programs which rejected applicants due to their criminal history have been re-examined to reflect that “all people are capable of change.”2 Defense counsel are being encouraged to submit applications, and, according to Garza’s letter, prosecutors are also now empowered to recommend a case for pre-trial diversion without waiting for a request from the defense. Garza’s office subsequently released a “non-ex-

The inability to hold jury trials since early 2020 has created a backlog of cases across the entire state of Texas. Efforts to expand the use of prosecutorial discretion to reduce the number of defendants awaiting trial will no doubt happen in many jurisdictions, whether formally sanctioned or not. clusive” list of offenses which would be considered for pre-trial diversion, including intoxication assault, felon in possession of a firearm, burglary of a habitation with the intent to commit theft, and robbery. In his letter, Garza promised transparency with the pre-trial program, pledging to “update the community regularly on the number of people accepted for diversion, and the number of people who have successfully completed it.”3 The inability to hold jury trials since early 2020 has created a backlog of cases across the entire state of Texas. Efforts to expand the use of prosecutorial discretion to reduce the number of defendants awaiting trial will no doubt happen in many

jurisdictions, whether formally sanctioned or not. By formalizing the use of such discretion, Travis County may be able to provide data to other jurisdictions seeking to find alternatives to incarceration or formal probation during these unprecedented times. In practice locally, Travis County, under Garza’s leadership, will be focusing on increasing the use of pre-trial diversion in his effort toLAWYER implement criminal AUSTIN AL AL justice reform. Footnotes 1. Tex. Code Crim. Proc. art. 55.01(a)(2) (A)(ii)(c). 2. José P. Garza to Travis County Community, Jan. 29, 2021, https://www.traviscountytx.gov/ images/district_attorney/docs/ Press_Releases/2021/pr-210129da-community-letter.pdf. 3. Id.

Divorce and Child Custody Surveillance ~ Undercover Background Checks Computer and Cell Phone Forensics Corporate Invessgaaons Insurance Fraud Expert Tessmony “Informaaon is power, the not knowing is devastaang” 20

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STRICTLY CONFIDENTIAL Anji Maddox

Offices in Austin, Round Rock and Dallas


Austin Bar/AYLA Leadership Academy Announces Class of 2021

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n Jan. 8, 2021, the newly selected Austin Bar/Austin Young Lawyers Association Leadership Academy class members met for a virtual opening retreat as they began their six-month leadership training program. The Hon. Kirk Watson, founding dean of the University of Houston’s Hobby School of Public Affairs, opened the fivehour Zoom retreat with a talk on leadership. Michael Alexander of MLA Consulting made a presentation to the group on the Myers‑Briggs Type Indicator. The class also heard from Justice Chari Kelly of the Third Court of Appeals; the Hon. Rudy Metayer, Pflugerville city councilmember and chair of the African American Lawyers Section of the State Bar of Texas; and David King, president of the Austin Young Lawyers Association. The 2021 class is made up of 18 attorneys representing a vari-

ABOVE: (from left) Justice Chari Kelly, Hon. Kirk Watson, and Hon. Rudy Metayer.

ety of practice areas, firm sizes, firm types, and levels of experience. The Leadership Academy was established to help local lawyers find ways to make a positive impact in the community, serve in local bar associations, and develop professional leadership skills. Following the opening retreat, the Leadership Academy offers a series of five monthly presentations for participants to engage and network with local leaders in public policy, the judiciary, the private sector, non-profit organiza-

tions, and bar associations. United States District Judge Robert Pitman kicked off the first of this year’s virtual presentations on Jan. 27, 2021 with inspiring remarks and a thoughtful question-and-answer time with the class. Each Leadership Academy class selects a project to help support the Austin Bar Foundation or one of its programs. The project is planned and executed by the class members during the six-month program. For those interested in applying to future Leadership

Academy classes, applications are accepted in November for the class beginning the following January. This year’s organizing committee includes co-chairs Ayeola Williams and Elliott Beck and members Brian Aslin, Haley Bullard, Sam Denton, Lindsay Drake, Sarah Harp, Jessica MacCarty, Rachel McKenna, Ciara Parks, Justin Rosas, Gracie Wood Sheppard, and Mitchell Zoll. Congratulations to the members of the Austin Bar/AYLA Leadership Academy Class of 2021: Kristy Blurton Stephanie A.H. Louie Alexa Cedillo Daniella Deseta Eric D. Cuellar Lyttle Jillian Michelle Kara L. French Alana Goycochea O'Shaughnessy Daniel Olds Will Hailey Maximilian Alec Herzog Raileanu Hunter Hudson Hannah Marie Vahl Thomas M. Just Mariana Lozano Kiera Lee Kilday Villarreal AUSTIN LAWYER Alan Lin

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Senior District Judge

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Stephen Yelensoky

Mediator, Arbitrator, Special Judge and Litigation Consultant

syelenosky.com 512-444-2226 sy@syelenosky.com MARCH 2021 | AUSTINLAWYER

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AUSTIN YOUNG LAWYERS ASSOCIATION

11th Annual AYLA MLK Day of Service A Safe, Socially Distance Success

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ach year, in honor of Dr. Martin Luther King, Jr., the Austin Young Lawyers Association coordinates a Day of Service project. The 11th Annual AYLA MLK Day of Service was held on MLK Day, Jan. 18, 2021. This local project is modeled after the national MLK Day of Service, which is intended to transform Dr. King’s life and teachings into community service that helps solve social problems. While the 2021 MLK Day of Service looked a lot different than in years past, it was just as successful in getting local attorneys, as well as their friends and families, to give back to the community. Committee members reached out to local

nonprofits and connected with twelve organizations: Central Texas Food Bank, Austin Allies, Austin Area Urban League, Austin Urban Technology Movement, The Next Generation Project, Conduits of Change, BookSpring, The InsideBooks Project, Partnerships for Children, Seedling Mentors, We Are Blood, and Refugee Services Texas. Information about the work each organization is doing to serve those in need was shared on social media and in the signup process. AYLA appreciates all of the volunteers who took the time to make cards, bake goodies, package diapers and wipes, and collect donations. The organizations were full of gratitude when

One of the highlights of the event was having the We Are Blood bus come to Hilgers House. All 27 spots allotted for AYLA that day were filled. the donated items were collected at the end of the day. There were 85 individuals who signed up to volunteer and many more who showed up with donations for one or more organizations. One of the highlights of the event was having the We Are Blood bus come to Hilgers House. All 27 spots allotted for AYLA that day were filled. Also, AYLA collected 665 pounds of donations for the Central Texas Food Bank. Thank you to everyone who

CLOCKWISE: Donated food and hygiene items collected and organized by AYLA volunteers lining the front porch of Hilgers House, ready to be distributed; the We Are Blood bus at Hilgers House offering safe and convenient blood-donation opportunities for AYLA volunteers; labeled items donated by AYLA members awaiting distribution.

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took the time to make this year’s MLK Day of Service a success. All are invited to continue serving and giving back by attending one of the monthly AYLA Community Service Days events. You can find information about each Community Service Day in Bar Code,LAWYER Austin Lawyer, AUSTIN and on social media. AL AL


AUSTIN YOUNG LAWYERS ASSOCIATION

AYLA Member Spotlight: Ben Dower AYLA: Tell us a little bit about yourself and your law practice. Dower: Having lived in Austin for over 20 years, I claim the coveted title of “Austin Native.” (Just don’t check my birth certificate.) My parents and sister still live here, and I have been maintaining rigorous quarantine practices so I can stay in their “pandemic bubble.” (And, if it hasn’t been claimed already, © on that phrase as the title of my first book, album, or film.) As you can probably tell, I know nothing about intellectual property law. Instead, I practice civil litigation at the Office of the Attorney General of Texas. My clients are primarily state officials, state employees, state agencies, and public universities. These days, my caseload includes lawsuits

challenging the State’s response to the pandemic. Consequently, I have been eating temporary injunction hearings for breakfast via Zoom (unless they’re on Travis County’s 2 p.m. docket, in which case they’re more of a late lunch). It is fast-paced but rewarding work. AYLA: How long have you been involved in AYLA and what’s been your best AYLA experience so far? Dower: My involvement with AYLA started in 2014. Since then, I served an ex officio member of the AYLA board for a few years and was elected as a director in 2019. I have had many wonderful experiences with AYLA, including the trial academy and leadership academy. The latter involved host-

UPCOMING EVENTS THUR., MARCH 4 Zoom Yoga 45-Minute Beginner-Friendly Yoga Taught by Sireesha Yoga 6 p.m. Visit ayla.org to register. FRI., MARCH 5 AYLA Board of Directors Nominations Due Completed 2021–22 nominations due Visit ayla.org for complete details. THUR., MARCH 25 AYLA Docket Call Trivia Hosted by Dave Floyd 6 p.m. Visit ayla.org to register.

ing an outdoor pie fest, which had great turnout and allowed many local lawyers and judges to bring their families. I also got “pied” in the face as a fundraiser. That may not have been the “best AYLA experience,” but was certainly memorable. AYLA: What’s your favorite moment of your career so far? Dower: I don’t know off the top of my head, but I am confident it is not a story I would want to tell in Austin Lawyer. No offense. And no comment. AYLA: What’s your best piece of advice for fellow young attorneys? Dower: Find a good mentor, and preferably good mentors (plural), who will invest in your professional growth. Throughout

Ben Dower

my career, I have been enormously blessed with wonderful colleagues who have taken the time to teach me how to practice law the right way (upon information and belief). If you are lucky enough to find someone like that, attach yourself to them (metaphorically), and don’t let go. (Again, and I cannot emphasize this enough, metaphorically AUSTIN LAWYER AL AL speaking.)

Serve on the 2021-22 AYLA Board of Directors Nominations Now Open

A 

re you interested in a leadership role in AYLA? The 2021– 22 nominations are now open for officers (president-elect, secretary, and treasurer) and directors (four positions). Nomination forms and petitions are due March 5. AYLA board meetings are held monthly from August 2021 through May 2022. To be eligible to be an officer, you must be a current AYLA member and have been a director of the association prior to the election. To be eligible to be a director, you must be a current member of AYLA. To run for a position, submit a

MARCH 5 2021–22 AYLA BOARD OF DIRECTORS NOMINATIONS DUE Email: debbie@austinbar.org

nomination petition signed by 10 current AYLA members and list all AYLA committee involvement. With your petition, include a professional headshot and 50 words or less about yourself for the ballot that will be circulated to the membership. Submit nomination forms to Debbie Kelly at debbie@ austinbar.org. Visit ayla.org for a nomination form and complete AUSTINLAWYER election rules. AL AL MARCH 2021 | AUSTINLAWYER

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Austin Bar President Kennon Wooten Wins Award

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he National Conference of Bar Presidents (NCBP) awarded Austin Bar President Kennon Wooten the President’s Page Award during the 2021 Virtual NCBP Midyear Meeting, held in early February. Also honored was Maryam Ahmad, president of the Chicago Bar Association. The pair were recognized for outstanding columns written for their respective bar association journals. Wooten won the award for the first President’s Column of her term, published in the combined July/August 2020 issue of Austin Lawyer, titled “Won’t You Be

The award-winning column was written in response to the racial tragedies and subsequent protests held around the country. My Neighbor?” The award-winning column was written just months into the COVID-19 pandemic and in response to the racial tragedies and subsequent protests held around the country. “In a moment of time like this one, the Austin Bar Association is called upon to stand up, be a good neighbor, and help our community heal

by doing our part to increase access to justice and stamp out injustice,” wrote Wooten. Wooten and Ahmad’s winning articles, along with several other President’s Columns that received honorable mention, are posted at ncbp. org/page/2021_Pres_Page_ AUSTINLAWYER AwardsWinner. AL AL

You’re busy looking out for your clients’ needs. Who’s looking out for yours? Jim Kaighin, Jr., CFP Financial Professional

3500 Oakmont Blvd., Suite 101 Austin, TX 78731

512-302-6051 kaighinjr@hilltopnetwork.com Member: FINRA/SIPC

2021 AUSTIN BAR FOUNDATION GALA

thanks

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PRACTICE POINTERS

Seven Things to Know About Pandemic Employment Law 2021 BY AUSTIN KAPLAN AND RYAN ESTES 1. REMOTE WORK

“Do I have a right to work from home during the pandemic?” It depends. According to the EEOC, an employer is not required to continue allowing employees to telework after reopening its workplace.1 But if an employee has a disability, then the employee could invoke their rights described below. 2. HEALTH RIGHTS

The Americans with Disabilities Act (ADA) protects employees with mental or physical conditions that substantially limit one or more major life activities or bodily functions, and employers must make reasonable accommodations as long as the accommodations are not an undue burden on the employer. What does this mean in the real world? Remote work or taking a leave of absence to avoid a dangerous health situation may—but not “must”—constitute a reasonable ADA accommodation.2 What if a covered employee requests remote work to avoid potential COVID-19 exposure because of a pre-existing condition? Generally, the ADA requires an individualized inquiry and that both parties engage in an interactive process to determine next steps. The Family and Medical Leave Act (FMLA) also provides protection for some employees facing serious health conditions. Both employees and employers should review the facts and applicable law to avoid a minefield before making health and medical leave decisions. 3. LAYOFFS

Most Texas employees are atwill, meaning they can be let go at any time for good reason,

bad reason, or no reason at all, but not for an illegal reason. State and federal statutes prohibit discrimination on the basis of race, color, religion, national origin, gender, LGBTQ status,3 pregnancy, disability, age (over 40 years old), veteran status, and others. Just because the company runs a layoff does not mean individuals were not added in discriminatorily. Three major issues have arisen with layoffs: (1) targeting older workers; (2) targeting women, especially in sales; and (3) lack of required notice. Replacing older workers with less qualified younger ones in a layoff may be evidence of age discrimination. Replacing women with men, or new moms with non-parents, may be evidence of pregnancy discrimination. Finally, larger layoffs require compliance with the federal WARN act, meaning companies must give 60 days or as much notice as practicable even to at-will employees. All these claims can be waived in severance agreements, so both employers and employees should consult with counsel before proposing or agreeing to one. 4. WAGE & HOUR/ OVERTIME

Fair Labor Standards Act (FLSA) claims for unpaid wages and overtime will continue to dominate employment lawsuit filings in 2021. Expect significant change in this area as the Biden administration implements worker-friendly regulations and issues (or retracts) opinion letters.4 5. FREE SPEECH ISSUES Can you fire an employee for storming the Capitol? Governmental employees have limited

Austin Kaplan

Ryan Estes

Austin Kaplan is a past president of the Austin Young Lawyers Association and board certified in labor and employment law. Ryan Estes practiced labor and employment law in Chicago for seven years and is one of the newest Austin Bar members. Kaplan and Estes are attorneys at Kaplan Law Firm, an employment law and civil rights boutique. myworklawyer.com.

First Amendment rights, but employees of non-public entities do not, and can be fired for any non-prohibited reason. Texas does not prohibit firing people who engage in a protest. For private executives, doctors, and lawyers, always check your employment agreements. 6. WHISTLEBLOWERS

Employees in unionized and non-unionized workplaces may be protected from adverse employment actions if they engage in concerted activity fighting for better wages, hours, or working conditions;5 report safety violations in health care; or report or oppose an employer’s fraud on the federal government.6 7. VACCINES AT WORK?

The jury is still out, but the consensus seems to be that employers can condition continuing employment on vaccination status, subject to accommodations forAUSTIN medicalLAWYER conditions or AL 7 AL religious objection.

Footnotes 1. See Section D, Question D.15 of the EEOC Guidance updated Dec. 16, 2020. https://www.eeoc.gov/wysk/ what-you-should-know-about-covid19-and-ada-rehabilitation-act-andother-eeo-laws. 2. Id. 3. Finally true in the 5th Circuit. See Bostock v. Clayton County, 140 S.Ct. 1731 (2020). 4. See, e.g., https://www.whitehouse. gov/briefing-room/presidentialactions/2021/01/20/regulatoryfreeze-pending-review/. The Biden administration issued a regulatory freeze to all executive agencies hours after his inauguration, indicating forthcoming regulatory changes. 5. See, e.g., https://www.nlrb.gov/rightswe-protect/protected-concertedactivity (explanation of the NLRA’s application to both unionized and non-unionized workplaces). 6. Texas has one non-statutory protection, and it only applies when an employer fires an employee for the sole reason that the employee refused to commit a criminal act. 7. See Section K of the EEOC Guidance updated Dec. 16, 2020. https:// www.eeoc.gov/wysk/what-youshould-know-about-covid-19-andada-rehabilitation-act-and-othereeo-laws.

MARCH 2021 | AUSTINLAWYER

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ENTRE NOUS

Our “Firefighters” in Robes—And Improving Your Conspiracies BY CLAUDE DUCLOUX

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one of us, no matter what our personal beliefs, could have predicted the descent of our country into the depths of dysfunction that we saw in January. Aflame in lies and demagoguery rivaling the worst in modern history, our country squeaked through, although tipped up on two wheels as we rounded the corner. But an unescapable reason for cresting the wave of lies was that the rule of law held. As I write this in late January, there have been about 100 “election” lawsuits filed around the country. Thus far, 66 have failed or been withdrawn, and none have succeeded in providing any evidence of widespread (or even narrow) fraud (despite the tempting offer by an eminent politico of a $1

million bribe “reward” for finding evidence). In that dearth, judges around the country—in both the trial and appellate courts—did their jobs. They created a “fire break” of sorts: They demanded evidence. That’s our system. Thank you. As a result, we’ll be here for at least four more years. The country was on fire, and our judges were the firefighters. But the fires continue. Not even the dismal, embarrassing, and crushing failure to provide evidence stopped the lies, or even fazed many national leaders (and some luminaries in our profession) from spraying more fuel on the fires, aiding conspiracy theories, fingering imaginary villains, blaming the blameless, and thus, encouraging violence, hatred, and continuing social upheaval. These

Implicit bias training teaches us that people cannot accept evidence contrary to their firmly held beliefs .… Core beliefs are central to your personality. So, how do we heal?

lies have put too many Americans at risk for personal attacks. Who can disagree that leaders in a free society who deliberately lie to us are more dangerous than foreign enemies? Their leadership positions give legitimacy to fictitious conspiracies and encumber progress and social healing. And what we have witnessed cannot be seen as legitimate differences of opinion. As the words leave their lips and fingertips, they know they are lying. There was a momentary pause, of course, right after the invasion of the Capitol, where everyone pretended to desire “healing” and “repairing our divisions.” Sure. But I doubt they were serious. Within days, I received this urgent request for money, warning: “… Far-Left and Radical policies will take control in the White House, the House, and now, the Senate.” And of course, Sen. Jim Jordan was on Noticias Zorro threatening his colleagues with unspeakable punishment for any acknowledgement of the President’s involvement in the Jan. 6 events (which he claimed

Judges around the country—in both the trial and appellate courts— did their jobs.… They demanded evidence. That’s our system. Thank you. As a result, we’ll be here for at least four more years. The country was on fire, and our judges were the firefighters.

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AUSTINLAWYER | MARCH 2021

were done by “Antifa”). So, that’s somewhat less conciliatory than one would hope. Clearly, we could make huge strides towards putting out these fires and toning down the attacks, and we could likely do it quickly. But it would require honesty and disclosure by the primary purveyors of the central lies. And that’s simply not going to happen. Why? Implicit bias training teaches us that people cannot accept evidence contrary to their firmly held beliefs. Some call it “epistemic closure,” the inability to even consider that you are wrong. Core beliefs are central to your personality. So, how do we heal? I suggest “pivoting.” That is, formulating responses which divert the conspiracies to something less toxic. So, here are some examples of real conspiracy theories and how to respond when confronted by a believer: THEORY: Jews started the California forest fires, with space lasers. RESPONSE: Not possible. They were started on a Saturday. Now, between you and me, I’d be looking at the Unitarians. THEORY: 5-G electromagnetic waves are spreading the COVID-19 virus. RESPONSE: Completely false. Reruns of “Wheel of Fortune” and “Frasier” are spreading the virus. Even logging on to “Cozy TV” requires masking. THEORY: Bill Gates knew about COVID-19 ahead of time and is making money on it. RESPONSE: False. His plan to pass tiny computer chips into your vaccine is true, but they were chips left over from Windows 95. They can’t start anything. THEORY: The Chinese created COVID-19 as a weapon. RESPONSE: False. Due to genetic sequencing, scientists


have proven that SARS-CoV-2 has entirely natural origins. However, adding a single teaspoon of sugar to the virus results in the formula for Starbucks Pumpkin Spice. THEORY: “Q” says Trump was recruited by top military generals to break up the “cabal” of elitists and Satan worshippers who eat people. RESPONSE: Okay, this is a bit trickier. There is no cabal of cannibal-elitists. But the recruit-

ment of Trump by top military generals unfortunately is true. The three top generals were Gen. Valery Gerasimov, Gen. Nikolai Bogdanovsky, and Gen. Pavel Gavrilovich. THEORY: The Dominion voting machines were rigged to steal votes from Trump. RESPONSE: No, they were rigged to steal from ME! I spoke to the ghost of Hugo Chavez, who informed me that Dominion

MEMBER, ASSOCIATION OF ATTORNEY MEDIATORS

machines counted the votes in my 2008 race for State Bar president, which accounts for my loss by 121 votes statewide (actually it was 124, but my three law partners voted against me twice). So, there could absolutely be no other reason why I lost. Fortunately, I had no mob of conspiracy junkies to go rush the State Bar building. But I did “help myself” to two TexasBarCLE pocket protectors from the PDP

office, so I’m calling it even. And in the meantime, let’s remember to thank our “Firefighters in Robes,” and help them by honoring the truth, by pushing against these false theories, and by acknowledging that our continued existence as a democratic republic depends on our having courage, by valuing the human spirit, and respecting eachAUSTIN other. LAWYER Keep the A faith. L AL

Save the Date EQUITY SUMMIT Fri. May 14, 2021 10 a.m. – 3 p.m.

Don’t miss this free, virtual event sponsored by the Austin Bar’s Equity Committee. 2016-PRESENT

Join us, and be a part of shaping our continued focus on equity in future bar years. More details about speakers, topics, and registration will be available soon.

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