Dallas Bar Association
HEADNOTES August 2009 Volume 33 Number 8
Representing an Estate’s Creditors in Probate
Focus Probate/Trusts & Family Law
Inspired Women of the DBA
By William D. Houser and Amanda Trankovich
C
reditors of decedents’ estates often have their claims barred because they don’t understand the process set forth in the Probate Code for handling claims. For most creditors, the process begins by presenting their claim. Presentation requires a written, specific claim for money, including supporting documentation and a proper affidavit. If a claim is not properly documented, a dependent administrator can reject the claim, regardless of its merit. Generally, a claim may be presented to the personal representative, the representative’s attorney or filed with the court. A creditor must also meet certain deadlines or the claim may be barred. Those deadlines are triggered by notices sent from the personal representative or by the general statutes of limitations. A personal representative may send permissive notices to any unsecured creditor. Any claim held by an unsecured creditor that is not presented within four months of receipt of the permissive notice is barred. It is a good idea for unsecured creditors to send their presentment via a delivery method that confirms date and time of receipt, such as certified mail with return receipt requested. If the personal representative does not send permissive notices, an unsecured creditor may present a claim at any time before the general statute of limitations has run. Once the unsecured claim has been presented, the personal representative must reject or allow the claim. A personal representative can reject a claim for defects in form. If the personal representative does nothing with the claim for 30 days, then see representing page 6
Tickets $25
Saturday, August 8 Ŷ Granada Theater Ŷ For more information, visit www.dbalawjam.org.
ENSURING EQUAL ACCESS TO JUSTICE
More than 500 members of the Dallas legal community were “inspired” by esteemed women of the bar who relayed humorous and honest insights into professionalism and how they have reached the pinnacles in their careers. For the second consecutive year, a full house came to the Belo Mansion for the “Inspiring Women” CLE event, hosted by the DBA Legal Ethics Committee. Those participating in the midday program included Pat Villareal, U.S. District Judge Jane Boyle, Betsy Whitaker, Rhonda Hunter, Karen Gren Johnson (program coordinator), Professor Linda Eads (moderator), DBA President Christina Melton Crain and Madeleine Johnson (left to right).
Thanks to TK & Other Firms, Interns Shine by Darlene Hutchinson Biehl
F
iling, researching, photocopying, sorting mail and delivering documents. These may seem like mundane tasks for a veteran lawyer or seasoned paralegal, but for a high school student, these chores lead to the opportunity of a lifetime. Since 1994, the DBA has interviewed thousands of high school students and placed nearly 500 teenagers in law firms and corporate legal departments for eight weeks during the summer. The companies pay the students a reasonable wage, while giving them a glimpse into the legal profession. In cooperation with Dallas ISD, more than 20 students who are entering their senior years are chosen annually to experience the structure and demands of an office environment. Simultaneously, they gain self-confidence and learn about professionalism. During the two-month program, the interns also enjoy courthouse tours and other educational programs hosted by the DBA. One of the program’s first interns described the experience: “I feel that each time they give me a task they are showing confidence in me. Knowing that someone believes in me and my abilities gives me courage to strive harder.” The program is supported by the Dallas Bar Foundation, and would not be possible without the generosity of the firms and legal departments who open their doors each year to new interns. Thanks to the Thompson & Knight Foundation, an intern was placed this summer at the Dallas Volunteer Attorney Program. “This innovative concept will allow a student to witness firsthand the incredible work being done for low-income residents with important legal needs. The foundation and Cindy Pladziewicz created an idea that other firms could mirror in the future,” DBA President Christina Melton Crain said. Co-chairs for the 2009 Summer Law Intern Program are Lea Clinton, Everett New and Hope Shimabuku. To get involved in next year’s Summer Law Intern Program, contact HN Amy Smith at asmith@dallasbar.org.
Inside 3
Bar Associations Lend Hand to Students
10 The Basics of Adoption in Texas 16 Sole Management Community Property
Representing 16 Dallas high schools, this year’s summer law interns are working for 18 different employers.
2 He a d n o t e s l D a l l a s B a r A s s o c iation
Calendar
A ugust 2009
August Events
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
Dallas Black Criminal Bar Association Dallas Gay & Lesbian Bar Association UPL Subcommittee
August 7 – Belo Mansion
3:30 p.m.
DBA Board of Directors
August 14 – North Dallas**
FRIDAY, AUGUST 21
Friday Clinics Noon
Noon
“ERISA: Claims and Disputes,” Mark Johnson. (MCLE 1.00)*
“Frequently Raised Issues in DWI Cases,” Hon. Elizabeth Crowder. At Two Lincoln Centre is located at 5420 Lyndon B. Johnson Frwy., Suite 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. (MCLE 1.00)*
August 21 – Belo Mansion Noon
“Business Planning for Attorneys,” Doric Earle.
MONDAY, AUGUST 3 Noon
Tax Section Topic Not Yet Available.
WEDNESDAY, AUGUST 12 11:30 a.m.
House Committee Walk-Through
Peer Assistance Committee
Noon
CLE Committee Christian Lawyers Fellowship DAYL Judiciary Committee
5:15 p.m.
LegalLine
TUESDAY, AUGUST 4
Noon
Corporate Counsel Section “2009 Legislative Update,” Mark Vane. (MCLE 1.00)*
Tort and Insurance Practice Section “Top 10 Reasons Property Damage Claims Are Denied,” James LaRoe. (MCLE 1.00)*
Judiciary Committee Morris Harrell Professionalism Committee
6 p.m.
DAYL Board of Directors
WEDNESDAY, AUGUST 5 Noon
Employee Benefits & Executive Compensation Section Topic Not Yet Available.
Solo & Small Firm Section “Law Practice Management: Planning for the Future of You and Your Practice,” Scott M. Baker. (MCLE 1.00)*
Public Forum Committee DAYL Environmental Awareness Committee
THURSDAY, AUGUST 6 Noon
Construction Law Section “Documentation of Change Orders and Claims,” Timothy R. Overman. (MCLE 0.75)*
DAYL CLE Committee
1 p.m.
Family Law Section Board
FRIDAY, AUGUST 7
Noon
Friday Clinic – Belo** “ERISA: Claims and Disputes,” Mark Johnson. (MCLE 1.00)*
3 p.m.
High School Mock Trial Case-Writing Committee
SATURDAY, AUGUST 8 5 p.m.
Law Jam 2 at the Granada Theatre, benefitting DVAP and pro bono legal service to the poor. Evening includes seven local lawyer bands, silent and live auction of musical instruments and memorabilia. Purchase tickets at http://www.dbalawjam.org.
MONDAY, AUGUST 10 Noon
Alternative Dispute Resolution Section “Ethics of Negotiation,” Jerome Levy. (Ethics 1.00)*
TUESDAY, AUGUST 11
THURSDAY, AUGUST 13 11:30 a.m. Noon
DAYL Barristers for Babies
Collaborative Law Section “The Uniform Collaborative Law Act: Its Creation & Impact,” Larry Maxwell and Sherrie Abney. (MCLE 1.00)*
“What Every Young Lawyer Should Know About Summary Judgment,” sponsored by DAYL.
Admissions & Membership Committee Publications Committee Speakers Committee Dallas Asian American Bar Association DAYL Freedom Run Committee
6 p.m.
J.L. Turner Legal Association
FRIDAY, AUGUST 14
8 a.m.
Review of Oil & Gas Law XXIV, sponsored by the DBA Energy Law Section. Includes federal and state legislative updates and case law updates. Contact Sandra at: SL Anderson@pattonboggs.com for more info.
9 a.m. Noon
Immigration and Employment Law CLE, sponsored by the Dallas Volunteer Attorney Program & Catholic Charities. Friday Clinic – Belo “Business Planning for Attorneys,” Doric Earle. Children’s Justice Project Training CLE, sponsored by DVAP. For more information, contact Chris Reed-Brown at: reed-brownc@lanwt.org.
3 p.m.
High School Mock Trial Case-Writing Committee
MONDAY, AUGUST 24 Noon
Computer Law Section Topic Not Yet Available.
Securities Law Section “Securities Litigation Trends,” David Dodds, Larry Ranallo and Patricia Villareal. (MCLE 1.00)*
Criminal Justice Committee
TUESDAY, AUGUST 25 Noon
Courthouse Committee American Immigration Lawyers Association Dallas Bar Foundation DAYL Aid to the Homeless Committee
6 p.m.
Dallas Hispanic Bar Association
Noon
Friday Clinic – North Dallas** “Frequently Raised Issues in DWI Cases,” Hon. Elizabeth Crowder. Two Lincoln Centre is located at 5420 Lyndon B. Johnson Frwy., Suite 240 Dallas, Texas 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. (MCLE 1.00)*
WEDNESDAY, AUGUST 26
Trial Skills Section “Communicate to Teach,” W. Mark Lanier. (MCLE 1.00)*
11:30 a.m.
MONDAY, AUGUST 17 Noon
Labor & Employment Law Section “Highlights of the Labor and Employment Opinions Issued by the U.S. Supreme Court in Its 2008-2009 Term,” Jim Cuaderes. (MCLE 1.00)*
TUESDAY, AUGUST 18 Noon
Franchise & Distribution Law Section Topic Not Yet Available.
Entertainment Committee Law in the Schools and Community Committee DAYL Elder Law Committee
WEDNESDAY, AUGUST 19 Noon
Law Day Committee Library Committee Pro Bono Activities Committee Municipal Justice Bar Association Non-Profit Law Study Group DAYL Networking Seminar LegalLine
Noon
Business Litigation Section “Legislative Update,” Rep. Chris Turner and Rep. Robert Miklos. (MCLE 1.00)*
5:15 p.m.
DAYL Equal Access to Justice Committee
THURSDAY, AUGUST 20
3:30 p.m.
Investiture for Hon. Robert Fillmore (Fifth District Court of Appeals) and Hon. John Peyton (Dallas County Probate Court). Reception immediately following.
4 p.m. 6 p.m.
Senior Lawyers Committee Home Project Committee
8 a.m. Noon
Review of Oil & Gas Law XXIV, sponsored by the DBA Energy Law Section. Includes federal and state legislative updates and case law updates. For more information, contact Sandra at SLAnderson@pattonboggs.com. Minority Participation Committee Dallas Criminal Defense Lawyers Association
Sports & Entertainment Law Section “Media-Savvy Litigation in the Internet Age,” David Margulies. (MCLE 1.00)*
Noon
Juvenile Justice Committee Legal Ethics Committee DVAP New Lawyer Luncheon
THURSDAY, AUGUST 27 Dallas Bar Foundation
Noon
Criminal Law Section Topic Not Yet Available.
Environmental Law Section Topic Not Yet Available.
Mentoring Committee
FRIDAY, AUGUST 28 Noon
Intellectual Property Law Section Topic Not Yet Available. Media Relations Committee Collaborative Law Section Board
MONDAY, AUGUST 31 No DBA meetings scheduled.
TUESDAY, SEPTEMBER 1 Noon
Tort and Insurance Practice Section “2009 Legislative Update,” Brent Cooper. (MCLE 1.00)*
Judiciary Committee Morris Harrell Professionalism Committee
5 p.m.
Bankruptcy & Commercial Law Section Topic Not Yet Available.
6 p.m.
DAYL Board of Directors
WEDNESDAY, SEPTEMBER 2 Noon
Employee Benefits/Executive Compensation Section Topic Not Yet Available.
Solo & Small Firm Section Topic Not Yet Available.
Public Forum Committee DBA Community Service Fund DAYL Environmental Awareness Committee
THURSDAY, SEPTEMBER 3 Noon
Construction Law Section Topic Not Yet Available
Family Law Section Board St. Thomas More Society
FRIDAY, SEPTEMBER 4 3 p.m.
High School Mock Trial Case-Writing Committee
You Are Invited… Judicial Investiture Hon. Robert Fillmore, 5th District Court of Appeals Hon. John Peyton, Dallas County Probate Court
Tuesday, August 11, 2009
3:30 p.m. at the Belo Mansion. Reception to follow.
Join the Dallas legal community
Honoring the career of L.A. Bedford, the first African-American judge in Dallas, and celebrate the publication of Quest for Justice: Louis A. Bedford Jr. and the Struggle for Equal Rights in Texas, written by Darwin Payne, Professor Emeritus SMU.
Thursday, August 27, 2009 ~ Noon Belo Pavilion ~ Buffet Lunch ($12.76) Sponsored by the DBF Board of Trustees. RSVP to 214-220-7487. Quest For Justice was made possible by a grant from the Dallas Bar Foundation and a grant from the J.L. Turner Legal Association Foundation. For an autographed copy of the book, contact Elizabeth Philipp by August 20 at the Dallas Bar Foundation 214-220-7487 (Book cost: $24.35).
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KTarangioli@dallasbar.org.
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D al l as Bar A ssoci ati on l Headnotes 3
Special Mentoring Highlight
Making Pipeline & Mentoring Programs a Priority by Darlene Hutchinson Biehl
W
hen an at-risk child has a caring adult as a mentor, the youngster is 52 percent less likely to skip school. This statistic, distributed by Big Brothers Big Sisters, demonstrates the enormous effect a person can have on another life. The members of the Dallas Bar Association have consistently answered the call to help students and young lawyers build successful lives and careers. In addition to the numerous mentoring and “pipeline” programs offered through the Dallas Bar Association, other groups of lawyers in Dallas have created initiatives to enhance the lives of Dallas’s youth, as well as college students. With nearly 2,500 members, the Dallas Association of Young Lawyers has been a leader in offering mentoring programs within the community, and the organization has been an integral partner in the DBA’s E-Mentoring Esq. program. In recent years under the leadership of Past President Laura Benitez Geisler, the DAYL launched Mentor Match, which pairs seasoned lawyers with newer attorneys. Through a database, mentees can identify mentors based on various criteria, including practice area, firm size, and age. Discussions between the pairs may focus on rainmaking, work/life balance, and other aspects of practicing law. Additionally, this year, DAYL President Dena DeNooyer Stroh established a Teen Leadership Academy, and has invited two students from each public and private high school to participate in a weekend summit. A graduate of a Dallas ISD high school who attended Yale University, Ms. Stroh noticed that many outstanding students from Dallas attend out-of-state colleges and do not return to Dallas. The Teen Leadership Academy is intended to foster leadership skills in these students, as they hear from community leaders and learn about the city’s future and the importance of community service. Other DAYL programs include: * The Young Voters Committee teaches students about the election process and the importance of voting. * The Ties That Bind Committee teaches high school students the importance of dressing appropriately and practicing professional etiquette. * The Judicial Intern Committee provides an opportunity for law students to work with local judges for six weeks in an unpaid internship. The Dallas Asian American Bar Association implemented a student scholarship program in 2008 that awards funds annually to a law student who attends a Texas law school and anticipates practicing law in the DFW area upon graduation.
Also, DAABA has partnered with the Asian Pacific American Law Student Association at the Dedman School of Law to conduct a mentoring program, which is coordinated by Mey Ly. Lawyers who are members of DAABA are paired with law students who are matched by professional interests and hobbies. The mentoring program provides a “sounding board” to students to get tips about what classes to take, the importance of networking, or activities in which to participate. According to Ms. Ly, DAABA hopes to expand its program to Texas Wesleyan students soon. A third-year associate at William L. Wolf, P.C., Mey Ly met her mentor, Patsy Yung Micale when she was a 2L at SMU. “Patsy, who was actively involved in TYLA, DAYL, DBA and DAABA, among other organizations, on top of maintaining a busy private practice, had an incredible impact on me,” she says. Since then, Ms. Ly has followed in her mentor’s footsteps, and volunteers for numerous activities. Ms. Micale, who serves as the 2009 president of DAABA, commented on how she benefitted as a mentor: “I am so incredibly proud of Mey Ly and the attorney that she has become. Aside from being good friends, our mentorship relationship really helped me keep a fresh perspective on practicing law, especially when I was feeling burnt-out at one point. Mey has a great attitude, and her enthusiasm for the profession can really rub off on you.” Christie Villarreal, 2009 president of the Dallas Hispanic Bar Association, explains the establishment of the organization’s scholarship program: “After the sudden and unexpected death of one of our members, Daniel Benavides, the DHBA raised money to award a scholarship in Daniel Benavides’ name. With the money raised, the DHBA formed the DHBA Scholarship Foundation in 2006. Since then, the DHBA has raised over $100,000 through its annual scholarship dinner and has awarded over $30,000 in grants and scholarships to Texas law students and DISD students.” This year, the 4th Annual Lighting the Path to Legal Education scholarship dinner will be held on September 30 (tickets are available at www.dallashispanicbar.com). The DHBA Law Student Committee also coordinates a mentorship program with students at the SMU Dedman School of Law and Texas Wesleyan University, offering career guidance, as well as public service and pro bono opportunities. This committee, co-chaired this year by Elisabeth Wilson, Manuel Diaz and Scott Sullivan, plans additional events for mentees and mentors, such as meet-and-greets and a mock interview program. A few months ago, program participants volunteered at the North
COURT OF CRIMINAL APPEALS TO HEAR ORAL ARGUMENT AT BELO The Texas Court of Criminal Appeals will be at the Belo Mansion on Friday, September 11 to hear Oral Arguments, beginning at 12:30 p.m. All members are invited to attend.
RSVP to Amy Smith at asmith@dallasbar.org.
Members of the Dallas Hispanic Bar Association are involved in various mentoring projects, and recently the teams volunteered at a local food bank. Pictured left to right are: Fernando Rojero, Wladimir Meskelis, Rachel Mascorro, Manuel Diaz, Greg Oltmanns, Elisabeth Wilson, Matthew Espinosa and Lina Ferero-Nino.
Texas Food Bank; community service projects can enhance the relationship between students and their mentors, while also demonstrating that busy lawyers can find time to “give back.” DHBA members have also established the Cesar Chavez Reading Program to improve the skills of schoolchildren. “The J.L. Turner Legal Association has long made mentoring a priority,” according to JLTLA President Art Anthony. “This year, as in previous years, our Membership Committee is planning a social event with the aim of matching young students and attorney mentees with more seasoned attorneys.” “The goal of this event will not be not only continue our tradition of helping young law students and lawyers transition to law practice, but also to further networking and pipeline initiatives that have been underway for the last several
years,” he adds. Programs such as these are even more important to young professionals in this economic environment, Mr. Anthony said. Founded in 1952, JLTLA is the African-American bar association in Dallas. Every year since 1982, the JLTLA has also awarded scholarships to minority law students that are from or attending law school in the DFW area. Dallas lawyers clearly understand that sustained relationships with students and young professionals can be equally beneficial to mentors and mentees – as well as to our communities. Finding time in a hectic schedule to offer guidance and support can often be challenging, but as these bar associations have demonstrated, the rewards HN are certainly worthwhile. Darlene Hutchinson Biehl serves as the DBA communications/ media director.
4 He a d n o t e s l D a l l a s B a r A s s o c iation
A ugust 2009
Headnotes
President's Column
It’s Time to Rock for Results by Christina Melton Crain
One love. One blood. You got to do what you should. One life. With each other. Sisters. Brothers. One life. But we’re not the same. We get to carry each other. Carry each other. One. — Lyrics to the song “One” by Bono
I
n the song “One,” the Irish band U2 emphasizes the oneness of humanity and the necessity of supporting one another in times of crisis. As lawyers, we are in a unique position to heed this message, because we have the ability to help, using our training, skill and time – not just our wallets. It is a fact of life that everyone in the community is not in “the same” position, and those persons with real legal problems but the inability to hire lawyers to fight for their rights need sisters and brothers who will reach out to “carry each other.” Nearly 15,000 attorneys practice in Dallas and hundreds more in the outlying areas. Each year, these attorneys donate more than 25,000 hours to assist low-income residents with civil legal issues who could not otherwise afford an attorney. This is a phenomenal contribution. But with more than 1.2 million people in the DFW area qualifying for free legal aid, DVAP has only been able to scratch the surface to provide the needed assistance. More volunteers and more dollars are needed. To shine a light on this dilemma, on August 8, 2009, the Dallas Bar Association will host Law Jam 2, a musical event to promote awareness of, encourage participation in, and raise funds for the Dallas Volunteer Attorney Program, the organization that recruits, trains and supports volunteer attorneys to provide pro bono legal services in Dallas. While DVAP has done and continues to do extraordinary work – serving thousands of clients annually and earning numerous awards for its efforts – a huge demand for volunteer-attorney participation and financial support remains. National studies show that up to 80 percent of the civil legal needs of poor Americans go unmet, and the Dallas region is no exception. We all can and should do more. Although everyone in society is not in “the same” posi-
18TH ANNUAL DBA BENCH BAR CONFERENCE September 24-26 Horseshoe Bay Marriott Resort
Register at www.dallasbar.org. Space is limited!
tion, we do have one thing in common – music. In the words of Henry Wordsworth Longfellow, “Music is the universal language of mankind.” Music does bring people together and allows us to experience the same emotions, showing us that people everywhere are the same in heart and spirit. This is where Law Jam 2 comes in. In the spirit of the Concert for Bangladesh, Live Aid, Live 8 and a host of other benefit concerts, Law Jam 2 will also be a celebration of music with an important message. However, Law Jam 2, chaired by the fabulous Martha Hardwick Hofmeister, has a distinct twist: Each of the participating bands has at least one member that is an attorney (exercising the right side of their brains for a change!). The evening will consist of a series of sets by seven top-notch lawyer-led bands (including nearly 30 musicians) – Blue Collar Crime, The Catdaddies, Flashcube, Independent George, Second Hand Noise, The Usuals, and The Wrecking Crew. In addition to some really great music (most of these bands regularly perform at public venues and private parties), the evening will include a live and silent auction of musical instruments and memorabilia, and other sports and unique items. The incomparable Jody Dean of KLUV will join us during the event to serve as master of ceremonies. But, most importantly, Law Jam 2 will be an opportunity to re-energize the DBA and the legal community in its support of, and commitment to, pro bono efforts in our community. Law Jam 2 is a “one night only” event. General admission tickets are $25 and all proceeds will directly benefit DVAP. Those who wish to show extra support for DVAP are encouraged to become a “Law Jam Groupie” for $100, which includes admission to the concert, a commemorative Law Jam 2 T-shirt, drink tickets and special recognition at the event. And, of course, other sponsorship opportunities are also available. To purchase tickets and/or to sponsor the event, visit www.dbalawjam.org\tickets.html or contact Judi Smalling at jsmalling@dallasbar.org or 214-220-7452. Come out and “rock for results”! It will be a great eve HN ning for a great cause!
Teenage Girl Summit:
Problems Facing Today’s Girls & Resources Available to Assist Them TUESDAY, AUGUST 11 ~ NOON The Belo Mansion 1.0 CLE
For judges, lawyers, social workers, LPCs and parents. Sponsored by the DBA Juvenile Justice Committee. Casual Attire Only! Approximately 4 hours from Dallas. x More than 50 judges attending, and about 250 lawyers. x At least 6 hours CLE, including Ethics. x CLE topics include a view from the federal bench, legal writing, legislative updates, voir dire, marketing in troubled times, the economic crunch’s effects on the profession, negotiation ethics, and much more. x Events such as karaoke, fun run, yoga, sporting clays, tennis, wine tour, golf, fun by the pool, zip-line canopy tour, biking and more. x First 100 registrants entered for a $100 gift card. x First 20 first-time registrants entered for a room upgrade.
PANELISTS
x Dr. Jim Calvert, psychologist
x Sue Thiers Hesseltine, executive director of
Our Friends Place
x Hon. Lena Levario, judge of the 204th Criminal
District Court
x Connie McLouth, Mental Health America
Representatives of community agencies will also be in attendance to answer questions, including: Community Council of Greater Dallas, Mental Health America, Our Friends Place, Promise House (Wesley Inn Program), Letot, Nexus and TRAC.
Published by: DALLAS BAR ASSOCIATION
2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Christina Melton Crain President-Elect: Ike Vanden Eykel First Vice President: Barry Sorrels Second Vice President: Paul K. Stafford Secretary-Treasurer: Bill Mateja Immediate Past President: Frank E. Stevenson II Directors: Jerry C. Alexander, Arthur Anthony (President, J.L. Turner Legal Association), Kim Askew (at-large), Hon. Tena Callahan, Wm. Frank Carroll, Leon Carter, Rob Crain, Sally L. Crawford, Hon. Elizabeth H. Crowder, Laura Benitez Geisler, Hon. Marty Lowy, Scott McElhaney, Patsy Yung Micale (President, Dallas Asian-American Bar Association), Mary Scott, Paul K. Stafford, Dena DeNooyer Stroh (President, Dallas Association of Young Lawyers), Diane Sumoski, Debra K. Thomas, Christie Villarreal (President, Dallas Hispanic Bar Association) and Brad C. Weber. Advisory Directors: Jennifer Duncan Edgeworth (PresidentElect, Dallas Association of Young Lawyers), Karen McCloud (President-Elect, J.L. Turner Legal Association), Jose Angel Ortiz (President-Elect, Dallas Hispanic Bar Association) and Hope Shimabuku (President-Elect, Dallas Asian-American Bar Association). Delegates, American Bar Association: Kim J. Askew, Hon. Douglas S. Lang Directors, State Bar of Texas: Talmage Boston, Beverly Bell Godbey, Timothy W. Mountz, Robert R. Roby, Mark K. Sales, Travis Vanderpool (Past Chair) HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications / Media Director & Headnotes Editor: Darlene Hutchinson Biehl Calendar: Kathryn Tarangioli In the News: Judi Smalling Art Director: Laura E. Heymann Advertising: Karla Howes PUBLICATIONS COMMITTEE Co-Chairs: Anne Pohli, Timothy G. Ackermann and Suzanne Raggio Westerheim Vice-Chairs: Vincent J. Allen and Lea N. Clinton Members: H. Joseph Acosta, Natalie Arbaugh, Sorana Ban, Heather Barbieri, Barbara Boudreaux, Scott Beckman, Lance Caughfield, Paul R. Clevenger, Christina Melton Crain, Linda Dedman, Tobey S. Elliott, Jennifer A. Green, Floyd R. Hartley Jr., Thomas M. Hoffman, Mary Louise Hopson, Young Jenkins, David F. Johnson, Victor Johnson, Lisa Kivett, Susan P. Kravik, Thomas L. Mighell, Clay Miller, Hon. Jim Moseley, Susan D. Nassar, Heather Bailey New, Kirk L. Pittard, Irina B. Plumlee, Christopher A. Robison, Bryon L. Romine, Andrew Ryan, Gregory W. Sampson, Barry Sorrels, Paul K. Stafford, Scott B. Stahl, J. Allen Sullivan, Claire Swann, Sherry L. Talton, Debra K. Thomas, Edith Miller Thomas, Mark Toronjo, Ike Vanden Eykel, Paul Watler, Jenna P. Wright and Paul F. Wright. DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications / Media Director: Darlene Hutchinson Biehl Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Coordinator: Rhonda Thornton Assistant to the Executive Director: Terri Hawkins Law-Related Education & Programs Coordinator: Amy E. Smith Membership Coordinator: Kay von Westernhagen Projects & Communications Assistant: Kathryn Tarangioli Publications Assistant: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas LAWYER REFERRAL SERVICE: LRS Program Assistant: Biridiana Avina Interviewer: Marcela Mejia VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Lakeshia McMillan, Andrew Musquiz, Jigna Gosal, Tina Douglas. Data Entry/Office Support: Patsy Quinn Dallas Bar Foundation Executive Director: Elizabeth Philipp Copyright Dallas Bar Association. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to dhutchinson@dallasbar. org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
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D al l as Bar A ssoci ati on l Headnotes 5
The Dallas Bar Association From 1961-1970 Editor’s Note: As the Dallas Bar Association celebrates the inauguration of its 100th president, Christina Melton Crain, we will reflect each month on the bygone eras the organization has experienced. Darwin Payne’s book, As Old As Dallas Itself: A History of the Lawyers of Dallas, the Dallas Bar Associations, and the City They Helped Build, has been used as a source in these articles. It is available from the Dallas Bar Foundation for $25. Contact Elizabeth at ephilipp@ dallasbar.org.
T
he national spotlight was directed at Dallas during much of the 1960s, and many lawyers from the area played significant roles in the events that transpired during this pivotal era. The decade began with Fred T. Porter leading the Dallas Bar Association. Mr. Porter had served as Kaufman County District Attorney and then moved to Dallas to practice with Gardere, Porter & DeHay. During his DBA presidency, the Dallas Independent School District began to integrate its schools, and Mr. Porter and the DBA board agreed unanimously to work with the Dallas Citizens Council to help prepare the community for the success of desegregation. That year, he and the DBA board urged the creation of two new federal judgeships for the Northern District. In 1962, Morris Harrell took the helm as DBA president. The son of a major-league baseball pitcher, he earned his undergraduate and law degrees from Baylor University. In World War II, Mr. Harrell served as a naval officer in the Pacific. He began his law practice in Dallas at the suggestion of his uncle, W.B. Harrell, who served as DBA president in 1945. Morris Harrell served as assistant U.S. attorney for the Northern District of Texas, and later became a partner with Locke, Purnell, Rain & Harrell. Mr. Harrell was president of the State Bar of Texas in 1970-71, president of the National Conference of Bar Presidents in 1976-77, president of the ABA in 1982-83, and president of the American College of Trial Lawyers in 1987. In 1962, the association’s third executive director JoAnna Moreland was hired and remained until her retirement in 1990. Morris Harrell left an indelible mark on the practice of law in Dallas – and nationally. In 1998, he received the ABA Medal for “conspicuous service in the course of American jurisprudence,” an award previously given to Oliver Wendell Holmes Jr., Sandra Day O’Connor, Thurgood Marshall and Warren Burger. And in 1999, Mr. Harrell was named the first recipient of the DBA’s Professionalism Award. The award, given annually by the DBA and the Texas Center for Legal Ethics & Professionalism, has since been renamed in his honor. The eyes of the world were fixed on Dallas in 1963, and H. Louis Nichols was the man leading the DBA. He was urged by his peers to visit Lee Harvey Oswald at the Dallas city jail to assure he had legal representation, and he did so just hours before Jack Ruby shot Oswald. Mr. Nichols and the DBA board also deliberated about the televising of the Ruby trial, and forwarded a unanimous resolution to the judge indicating that any broadcast of the trial would be “detrimental to the due and orderly administration of justice and the maintenance of the dignity and decorum of such proceedings.” A lieutenant colonel in the U.S. Army during World War II, Mr. Nichols had served as assistant city attorney, and later practiced with Nichols, Jack-
son, Dillard, Hager & Smith. During 1964, Hubert Dee Johnson served as president of the DBA. A lieutenant in the U.S. Navy during World War II, he joined Carrington, Gowan, Johnson & Walker, and later served as general counsel for the Federal Reserve Bank of Dallas. During his 66-year career, he chaired an ABA section of banking and business lawyers. A native of Sulphur Springs and son of a Methodist minister, J. Edwin Fleming served as DBA president in 1965. Earning his undergraduate and law degrees from SMU, he was vice president of the student body. Much of his law practice was spent at Coke & Coke, and he was active in the Kiwanis Club, where he became friends with Ross Perot. In fact, Mr. Fleming drafted the corporation papers for the company that became EDS, and he represented the firm in its initial public offering. Walter H. Magee led the DBA during 1966. He earned his B.B.A. and law degree from SMU, and spent his entire career at Carter, Jones, Magee, Rudberg, Moss & Mays. He was active in the Texas Trial Lawyers Association, the Association of Trial Lawyers in America, the ABA, and many community organizations, such as the Arthritis Foundation and the United Way. A new courthouse (the George Allen Sr. Courts Building) opened during his presidency.
DBA’s 1967 president, Mark Martin, led an association of 1,600 lawyers, and was a partner with Strasburger & Price. In 1972-73, he served as chairman of the board of the State Bar of Texas. Additionally, he was president of the Texas Association of Defense Counsels, and in 1980, he received the University of Texas distinguished alumnus award. During his DBA presidency, the board commissioned an oil portrait of U.S. District Judge Sarah T. Hughes and presented it to her. The board also passed a resolution commending President Lyndon B. Johnson for appointing Dallas lawyer Ramsey Clark to be the nation’s attorney general. It was also during this time that Hon. Barefoot Sanders served in the Johnson Administration. A native of Nebraska, Arthur Philip Wilson served as DBA president in 1968. During World War II, he served in the U.S. Army, and later he earned his B.B.A. and law degrees from SMU. A partner with Brady, Drake & Wilson, he was a founder of the DBA’s Law in a Changing Society program, and was committed to the high school mock trial program, serving as a judge for many years. Mr. Wilson helped establish the Texas Court of Military Appeals and served as a judge for 12 years. In 1977, he co-chaired the Dallas Bar Foundation’s campaign to acquire
the Belo Mansion as DBA headquarters. And he was instrumental in conducting the research to add the Belo Mansion to the National Register of Historic Places. Born in San Angelo, Hugh L. Steger served as DBA president in 1969. After four years as an FBI agent, he joined Storey, Armstrong, Steger & Martin, where he practiced 50 years. He was a member of the Southwestern Legal Foundation, and was active with various YMCA clubs. During his tenure as DBA president, six new courts were added in Dallas County, and the DBA hosted annual meetings of the State Bar and the ABA. Spending his early years in Minnesota and Alabama, Frank C. Moore earned his law degree at SMU by attending its night classes. After five years in the Army, he worked in the Dallas city attorney’s office and the Dallas County district attorney’s office. He entered private practice with the firm of Dalton & Moore, and served as DBA president in 1970. In 1970, he established the DBA Law in a Changing Society Committee, which placed volunteer lawyers in numerous local schools. He was a strong advocate of mock trial competition for high school students, and the DBA’s development of the innovative program set an example that many cities and states have replicated in the decades that followed. Additionally, Mr. Moore was instrumental in creation of the Dallas Bar Foundation, and in 1997, the DBF offered its first scholarship in his name. Next month, we’ll look at the DBA and its presidents during the HN 1970s.
Lawyers Rockin' For Pro Bono Saturday, August 8 Ŷ Granada Theater Ŷ 7 Lawyer Bands Ŷ One Night Only!
’s KLUV y b d Hoste Dean Jody
FEATURING OUTSTANDING LAWYER BANDS Ŷ The Usuals Ŷ Independent George Ŷ The Wrecking Crew Ŷ The Catdaddies Ŷ Blue Collar Crime Ŷ FlashCube Ŷ Ŷ Second Hand Noise Ŷ
SPECIAL SPONSORSHIPS AVAILABLE. Tickets are limited. Purchase your tickets today at http://www.dbalawjam.org. BOUNCER SPONSORSHIP — Your $500 contribution includes 2 admission tickets, 2 commemorative t-shirts, complimentary beverages and special recognition. GROUPIE SPONSORSHIP — Your $100 contribution includes event admission, a commemorative t-shirt, three drink tickets and special recognition. GENERAL ADMISSION TICKET — $25
Auction for Music Memorabilia & Other Cool Items Too!
Currently, hundreds of Dallas lawyers donate their time to help low-income residents in our city — but we need thousands of lawyers to volunteer! This unique musical event will promote awareness of, participation in and fundraising for the Dallas Volunteer Attorney Program, which coordinates and provides pro bono legal services to the poor. All net proceeds from Law Jam will benefit DVAP, a joint program of the Dallas Bar Association and Legal Aid of NorthWest Texas.
Because Equal Access Equals Justice
6 He a d n o t e s l D a l l a s B a r A s s o c iation
A ugust 2009
DBA Thanks ‘100 Club’ Members! The Dallas Bar Association Extends Its Appreciation To the Loyal Members of the ‘100 Club’ We are proud that the following law firms and corporate legal departments are members of the 2009 Dallas Bar Association 100 Club. 100% of their Dallas lawyers are members of the Dallas Bar Association. If your firm is not listed, please fax a list of the names of all the attorneys in your Dallas office or corporate legal department to Kay von Westernhagen at 214-220-7464, or e-mail the list to kvw@dallasbar.org. If all of your Dallas lawyers are DBA members, your firm will then be recognized as 100 Club members at the Annual Meeting in November and listed in the 2010 Pictorial Directory. Thank you for your support of the Dallas Bar Association. 100 Club Members as of July 15, 2009 Law Firms With 6 or More Attorneys Ackels & Ackels, L.L.P. Addison Law Firm P.C. Baker & McKenzie LLP Baker Botts L.L.P. Beasley, Hightower & Hartmann, P.C. Bell Nunnally & Martin LLP Blanscet Sutherland Hooper & Hale, LLP Brice, Vander Linden & Wernick, P.C. Brown & Hofmeister, L.L.P. Burford & Ryburn, L.L.P. Canterbury, Elder, Gooch, Surratt, Shapiro & Stein, P.C. Carrington, Coleman, Sloman & Blumenthal, L.L.P. Carstens & Cahoon, LLP Cavazos, Hendricks, Poirot & Smitham, P.C. Clark & Milby, PLLC Cobb Martinez Woodward PLLC Collins Basinger Pullman Cowles & Thompson, P.C. Cox Smith Matthews Inc. Curran Tomko Tarski LLP David, Goodman & Madole, P.C. ELROD, PLLC Ford, Nassen & Baldwin, P.C. Fulbright & Jaworski L.L.P. Godwin Ronquillo PC Goranson, Bain, Larsen, Greenwald, Maultsby & Murphy, PLLC Greenberg Traurig, L.L.P. Griffith Nixon Davison, P.C. Gruber Hurst Johansen & Hail, LLP Guida, Slavich & Flores, P.C. Hiersche, Hayward, Drakeley & Urbach, P.C. Johnson, Jordan, Nipper & Monk, P.C. Klemchuk Kubasta LLP Koons Real Estate Law Koons, Fuller, Vanden Eykel & Robertson P.C. Kraft & Associates Krage & Janvey, L.L.P. Kroney Morse Lan, PC Little Pedersen Fankhauser LLP Locke Lord Bissell & Liddell LLP Loewinsohn Flegle Deary L.L.P. Malouf Lynch Jackson & Swinson, P.C.
Focus
McGuire, Craddock & Strother, P.C. McKool Smith P.C. Meadows, Collier, Reed, Cousins & Blau, LLP Munsch Hardt Kopf & Harr, P.C. Passman & Jones, P.C. Raggio & Raggio, P.L.L.C. Sandbote, Waggoner & Zopolsky, P.C. Sayles Werbner, P.C. SettlePou Shackelford, Melton & McKinley, LLP Sorrels, Udashen & Anton Stanley, Mandel & Iola, LLP Staubus & Randall, L.L.P. Susman Godfrey L.L.P. The Bassett Firm, P.C. The Hartnett Law Firm Thomas, Feldman & Wilshusen, L.L.P. Winstead PC Law Firms With 2 to 5 Attorneys Ackerman & Savage, L.L.P. Allison & Johnson Anderson & Brocious P.C. Andrew Lee, P.C. Ashley & Laird Blankenship, Wiland & O’Connor, P.C. Brousseau Graham & Dooley Bruegger & McCullough, P.C. Calloway, Norris, Burdette & Weber Campbell & Chadwick, P.C. Carlock & Gormley, LLP Condon Thornton Sladek Harrell LLP Crain Lewis, L.L.P. Dallas Baptist University Daniel Sheehan & Associates, LLP Deans & Lyons, LLP Dedman & Handschuch PLLC Dement Roach & Stern PLLC Durham & Pittard, LLP Edwards & de la Cerda, L.L.C. Garlitz Bell, LLP Hamilton & Squibb, LLP Hance & Wickham, P.C. Holmes Firm PC Horton & Archibald, P.C Jenkins & Watkins Johnson & Silver, LLP Johnston * Tobey, P.C. Keane, Fowler & Donohue
Kurzner PC Law Office of Emily Horton PLLC Law Office of Lynn Davis Ward Law Office of Stewart & Behbahani Law Offices of Shelly B. West Law Offices of Terrence G. Turzinski, P.C. Lidji & Dorey Maris & Lanier, P.C. McTaggart & Associates Mincey-Carter, PC Patterson & Sheridan, LLP Peters Smith Law Firm Prager & Miller, P.C. Quaid & Quaid, L.L.C. Ramirez & Associates, P.C. Ray & Elliott, Attorneys at Law P.C. Schneider & Miller, P.C. Sessions Fishman Nathan & Israel LLP Daniel Sheehan & Associates, LLP Sheils Winnubst, PC Simpson Woolley, L.L.P. Smith, Stern, Friedman & Nelms, P.C. Charles W. Spencer & Associates, PLLC Spencer & Waterbury Stoddard & Northam, PLLC Stuber Cooper Voge, PLLC Taber Estes Thorne & Carr PLLC Tailim Song Law Firm The Clark Law Firm The Gibson Law Group The Law Office of Dan E. Martens The Law Offices of Richard A. Gump, Jr., P.C. Thomas & Dees, PLLC Tobolowsky & Burk, P.C. Valdez Washington LLP Walker & Long Winn, Beaudry & Winn, L.L.P. Woodward & Shaw, P.C. Corporate Legal Departments Belo Corp. Contran Corporation Debt Settlement America Gearbox Software, LLC Genesco Sports Enterprises Morgan Management Corporation Natural Wellness USA, Inc. Pinnacle Partners In Medicine Tenaska Power Services Co.
Probate/Trusts
Representing an Estate’s Creditors in Probate continued from page 1
the claim is deemed rejected. When a claim in a dependent administration is rejected, the unsecured creditor has 90 days in which to file suit on its claim or the claim is barred. In dependent administrations, presentment is a prerequisite for obtaining a judgment. The rules for handling claims in independent administrations vary from those in dependent administrations. There is no mandated presentment prerequisite to judgment. In fact, absent receipt of a permissive notice, there is no requirement of presentment at all. If presentment is required in an independent administration, the Probate Code only requires that unsecured creditors give written notice of the “nature and amount” of the claim within 120 days of receiving the per-
missive notice to avoid the claim being barred. In this case, the presentment must be sent (i) via hand delivery with proof of receipt or via certified mail, return receipt requested, (ii) in a pleading filed in connection with a lawsuit regarding the claim, or (iii) in a written instrument filed in the court. Once an unsecured creditor sends its notice as provided above, its claim will not be barred until the general statute of limitations runs (i.e., there is no 90-day deadline to file suit). Secured creditors are also handled differently. The personal representative must send secured creditors notice within two months of the representative’s court appointment or promptly after learning of the secured debt. Upon receipt of the notice, secured creditors must make a timely election regard-
ing their claim. They can elect to have their claim treated either as a “matured and secured” claim or as a “preferred debt and lien.” If no election is affirmatively and timely made, the secured creditor will be deemed to have elected the preferred debt and lien option. Treating the claim as matured and secured accelerates the debt, and the debt will be paid during the course of administration; however, the secured creditor may lose some of its priority to payment. Treating the claim as a preferred debt and lien means the creditor elects to continue the original contract it had with the decedent, and the heirs or devisees will take the collateral subject to the loan. Secured creditors must be careful in exercising non-judicial remedies in dependent administrations. Foreclosure
sales can be set aside by a probate court if conducted before the estate’s formal creation. Once formal dependent administration is pending, the creditor cannot exercise non-judicial remedies at all. In independent administrations, a secured creditor can exercise non-judicial remedies at any time. Finally, creditors need to be aware that they are not assured of payment on a claim merely because it is approved. If an estate does not have sufficient assets to pay all proper claims, then the Probate Code provides a classification system to determine the priority in which HN claims are paid. Board-certified in estate planning and probate law, William D. Houser is a partner at Jordan, Houser & Flournoy, LLP. He can be reached at bhouser@jhflegal.com. Amanda Trankovich is a third-year law student at Baylor University.
Au g u st 2 0 0 9 â€
D al l as Bar A ssoci ati on l Headnotes 7
8 He a d n o t e s l D a l l a s B a r A s s o c iation
Focus
A ugust 2009
Family Law
Child Protective Services Investigations by Kristine Bridges
E
arly American laws governing the protection of children were patterned after laws established for the humane treatment of animals. Such delay in child welfare legislation highlights the challenging role of the government in the areas of family preservation and protection of children. In the state of Texas, the Child Protective Services division of the Department of Protective and Regulatory Services is responsible for investigating reports of child neglect and abuse. Although one certainly never expects to find themselves dealing with issues of child welfare and CPS, if the circumstance arises, a quick and appropriate response is needed.
The Report of Neglect or Abuse
Texas law requires that any person who has cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect must report the situation. The mandatory reporting requirement applies to individuals who may have privileged communications, such as attorneys, members of the clergy, social workers, mental health professionals or health care providers. Reports of child neglect or abuse should be made to law enforcement authorities or the CPS hotline at 1-800-252-5400. Such reports may be made anonymously and a reporter’s identity will not be revealed during the investigation, although the nature of the report itself could identify the reporter. After a report is made to the
hotline, it is assigned a priority based on the severity of the allegations and sent to the appropriate regional CPS office.
The Initial Investigation
A CPS investigation may begin in a variety of ways, but typically, the reporter, parent or child will be interviewed. For parents, this begs the question: Can CPS interview my child without my knowledge or presence? The answer is generally yes. Some practitioners recommend that concerned parents instruct their child’s school or care provider in advance in writing that their children may not be interviewed by any person without their permission or presence. However, CPS may interview a child wherever he or she may be found. As an investigative agency, CPS is required to follow constitutional search and seizure protections prior to entering a person’s home or interviewing an alleged perpetrator of neglect or abuse. It is important for parents, and those advising parents, to know that a parent is allowed to have an attorney present for any investigative interview with CPS. Further, a search warrant is required for a CPS worker to enter a parent’s home, even if the CPS worker is accompanied by a law enforcement officer. While a parent’s initial inclination is typically to cooperate with CPS, it is advisable for parents to seek immediate counsel for discussion of their particular situation.
The Court’s Role & Final Disposition
CPS may ask the court to issue an
The DBA Congratulates Dallas Legal Hospice for 20 Years of Service! Dallas Legal Hospice is a nonprofit law firm that provides healthrelated, civil legal assistance to low-income individuals who have been diagnosed with terminal illnesses or HIV-disease. For information on Legal Hospice of Texas, or its 20th Anniversary Celebration scheduled for August 29, visit www.legalhospice. org.
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ex parte emergency order for children to be removed from their parents. If the court approves the emergency removal, a show-cause hearing will be held within 14 days. At the 14-day hearing, the court will determine if CPS should be appointed as the temporary managing conservator of the children. If the court grants the CPS request, further investigation will ensue and the parents will be offered services geared toward family reunification and eliminating the presence of neglect and abuse. Upon the removal of children, CPS is required to pursue appropriate family placements over foster care, if possible. If a child is removed from a parent’s custody, then a suit to terminate the parent-child relationship has been initiated. If parents are not able to afford counsel, the court will appoint an attorney or attorneys to represent them in the termination case. The court will appoint attorneys for the children. The district attorney’s office will represent CPS.
After 60 days, the court is required to hold a status or review hearing to review the status of the children and the plans for reunification of the family. A permanency hearing must be held within 180 days to evaluate the status of the suit. Such hearings must then be held every 120 days thereafter until there is a final disposition in the case. CPS is required to finalize a suit to terminate the parent child relationship within 12 months. The standard at trial for termination of a parent’s right is “clear and convincing evidence.” Due to the timeline, it is important for a parent to take the allegations of CPS very seriously and not delay in seeking counsel, court-appointed or otherwise, to help them determine the best route to maintaining their paren HN tal rights. Kristine Bridges is a solo practitioner in the area of family law and a member of the DBA Family Law Section. She can be reached at kristine@kristinebridges.com.
Want To Update Your Directory Photo? Got an outdated headshot in the DBA Membership Directory? Maybe it’s time to update it! Just e-mail your new photo (in jpg format) to pictorial@dallasbar.org and it will be added to the New Online DBA Membership Directory. Commercial Properties Ad_finalHR.pdf
5/22/09
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Au g u st 2 0 0 9
Focus
D al l as Bar A ssoci ati on l Headnotes 9
Family Law
Collaborative Law: The First Option for Probate Disputes By Lawrence R. Maxwell Jr. and Sherrie R. Abney
T
he collaborative process is a structured, voluntary, non-adversarial approach to resolving disputes, based upon cooperation between the parties, teamwork, full disclosure, honesty, integrity, respect, civility and parity of costs. The process is tailor-made for resolving probate disputes, which typically involve ongoing, personal relationships, such as will contests, contested guardianships and claims of breach of fiduciary duty. When probate disputes arise, most parties want to get matters settled as quickly as possible. Spending time in protracted litigation can destroy important relationships and result in significant legal fees greatly diminishing an estate or trust. In the collaborative process, parties are able to control costs and scheduling, and the process is private and confidential.
Before entering into the process, collaborative lawyers must provide prospective clients with sufficient information to enable them to make an informed decision about the material benefits and risks of the collaborative process as compared to other reasonably available alternatives, such as mediation or litigation. Further, the parties understand that the collaborative lawyers are independent from each other, and no attorney-client relationship exists between one party’s lawyer and any other party. The collaborative process begins with the parties and their lawyers signing a “participation agreement,” which describes the nature and scope of the dispute, states the parties’ intention to resolve the dispute without resorting to a court-imposed resolution, and includes an agreement to make timely, full and candid disclosure of necessary information without formal discovery. A defining characteristic of the process is that, should the dispute not be settled in the
8th Annual Freedom Run 5K Run
Thursday, September 10 at 6:30 p.m. At Dallas City Hall Plaza Register Online at www.freedomrun.com Sponsored by the Dallas Association of Young Lawyers. Benefitting the Assist the Officer Foundation.
Retiring Judges Honored Hundreds of local lawyers recently honored two of Dallas County’s most revered judges. DBA President Christina Melton Crain presented a resolution to Hon. Nikki DeShazo, of Probate Court No. 1, (top photo) for her 26 years of outstanding judicial service and many hours of service to DBA projects. Hon. Anne Ashby received a standing ovation (bottom photo) from members of the Dallas Bar at a luncheon held in her honor. She has spent nearly her entire legal career in public service, including 20 years as judge of the 134th District Court.
process, the collaborative lawyers must withdraw from representation and cannot represent a party in any court proceeding that is substantially related to the subject matter of the dispute. The withdrawal provision benefits all parties since the collaborative lawyers are able to devote 100 percent of their time assisting their clients in resolving the dispute, rather than spending their time and their client’s money on discovery preparing for a trial. Further, the withdrawal provision discourages parties who are not serious about settling from engaging in the collaborative process.
Steps of the Collaborative Process
Determine the goals, interests and concerns. In the first face-to-face meeting, participants determine the goals, interests and concerns of all parties. The parties, not their lawyers, have an opportunity to state what they want and, perhaps more importantly, why they want it. Hearing firsthand saves time and eliminates misunderstandings and any “spin” that frequently accompanies a secondhand statement. Gather relevant information. Having determined the goals and interests, the parties gather the documents and other information that will be needed to resolve the dispute. Participants agree to request only those documents necessary to resolve the dispute; voluntary compliance with requests is mandatory. When an expert opinion will be beneficial, the parties agree to jointly retain a single expert, thereby eliminating the cost of opposing experts. Develop options. The parties are now in a position to develop all reasonable options. Since the process is confidential, the parties are free to engage
in speculation and conjecture without fear that their words will be used against them later. Brainstorming options will lead to out-of-the-box thinking, resulting in opportunities for formulating creative solutions. Evaluate options. Options may be modified or combined with other options as the parties use their best efforts to satisfy as many of the goals and interests of all parties as possible. Solutions are explored that would never be considered or possible in litigation. Negotiate a settlement. As a result of the commitment of the parties and lawyers to work in good faith and in a non-adversarial manner, a settlement can be negotiated that satisfies as many of the parties’ goals, interests and concerns as possible. The uses and advantages of the collaborative process are numerous. The process is especially effective in disputes where money is not the sole issue. In addition, probate lawyers can employ the steps of the collaborative process when negotiating and drafting wills, trusts, declarations of guardianship, and other estate-planning documents. The only way to know if a party or a party’s matter is appropriate for the collaborative process is to visit with a lawyer or other professional trained in the process. A roster of collaborative lawyers, additional details about the civil collaborative process and articles about the process are available at www.collab HN orativelaw.us. Dallas attorneys Sherrie Abney and Larry Maxwell are cofounders and past-chairs of the DBA Collaborative Law Section. Ms. Abney is the author of Avoiding Litigation: A Guide to Civil Collaborative Law. Mr. Maxwell is co-chair of the ABA Section of Dispute Resolution Collaborative Law Committee and the Section’s Advisor to the Uniform Law Commission Drafting Committee. They can be reached at info@collaborativelaw.us.
Probate Symposium
Friday, September 18 ~ Noon to 4 p.m. ~ Belo Mansion 4 hours CLE pending, including 1 hour ethics
Topics include legislative update, estate-planning considerations, capacity issues, and panel of probate judges. Sponsored by the DAYL Elder Law Committee, the DBA Probate Section, the DBA Pro Bono Activities Committee and the Dallas Volunteer Attorney Program. For more information, contact Jigna Vyas Gosal at gosalj@lanwt.org or 214-243-2247.
2009 Family Law Nuts & Bolts CLE ~ LIVE! September 22 and 23 ~ 5 to 7 p.m. ~ Belo Mansion 6 hours CLE, including 2 hours ethics (total)
Learn about recent legislative changes in family law, hone your practice skills, and hear from legal specialists. Training is free for attorneys who agree to accept one complex DVAP case or two simple DVAP cases. Otherwise, cost is $200. Co-sponsored by the Dallas Volunteer Attorney Program and the DBA Family Law Section. For more information, contact Chris Reed-Brown at reed-brownc@lanwt.org or 214-243-2243.
Ted M. Akin ) 4,000+ cases mediated ) Full-Time Mediator since 1989 ) 90%+ settlement rate
g n i z i
) 35 years of judicial experience ) Justice retired 5th Court of Appeals
s e
) Chair - The Civil Collaborative Group
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3023 Hester Avenue Dallas, Texas 75205-3525 (214) 821-6370 www.judgeakin.com
) Member - The Association of Attorney-Mediators ) Distinguished Mediator - Texas Mediator Credentialing Association ) Panel - FINRA Dispute Resolution ) Panel - CPR: International Institute for Conflict Prevention & Resolution
Mediator ) Arbitrator ) Special Judge
10 H e a d n o t e s l D a l l a s B a r A ss ociation
Focus
A ugust 2009
Family Law
Basic Adoption in Texas: Follow the Trail of Crumbs By Carson Epes Steinbauer
W
ho can forget the Hansel & Gretel story, in which two children are abandoned in the forest by parents who were desperately poor and lacked food to feed the family? Like that early-1800s fairy tale, the modern adoption process can be a daunting journey in which a lawyer can easily get lost in the thicket unless the proper steps are taken. If handled correctly, an adoption can be a wonderful and gratifying experience for all involved Chapter 162 of the Texas Family Code governs adoptions. Any adult that has standing to file suit under Chapter 102 of the Family Code may adopt a child eligible for adoption and residing in the state of Texas if: n a suit to terminate the parentchild relationship under Section 161 of the Family Code is coupled with the adoption action, or the parent-child relationship for both the child’s parents has already been terminated;
n the action is for a step-parent adoption, and the step-parent is currently the spouse of the parent whose rights have not been terminated; n the child is at least two years old, one parent’s relationship with the child has been legally terminated, and the person seeking adoption has been a managing conservator or has had actual care, custody and control of the child for at least six months before the adoption suit was filed, or is the child’s former step-parent, and the parent whose parental rights have not been terminated consents to the adoption; or n the child is at least two years old, one parent’s relationship with the child has been legally terminated, and the person seeking adoption is the child’s former step-parent and has been a managing conservator of the child, or has had actual care, possession and control of the child for at least one year preceding the adoption. A child of 12 years or older must consent to the adoption in writing or in open court. The court may waive this
4th Annual Lighting the Path to Legal Education Awards Dinner Wednesday, September 30 7 p.m. ~ The Belo Mansion The Dallas Hispanic Bar Association will honor Hon. Jerry Buchmeyer and Hon. Merrill Hartman for their distinguished careers. The organization will also present its 2009 Corporate Counsel Diversity Award to Wayne Watts, general counsel of AT&T, and the 2009 President’s Award will be presented to Marcos Ronquillo. All proceeds benefit the Dallas Hispanic Bar Association Scholarship Foundation.
requirement, but only where it has been clearly established that it is in the child’s best interest. Further, an adult may adopt another adult in Texas with the written consent of the person being adopted. If the person seeking the adoption is married, both spouses must petition for adoption. If one spouse dies during the adoption process, the case will continue. But if the spouses seek a divorce during that process, the court must abate the proceedings, and shall dismiss the adoption suit unless the pleadings are amended so that only one of the petitioners seeks the adoption. Moreover, all adoption cases must include a pre-adoptive and post-placement social study, which the court cannot waive. The completed report is made available to the petitioners, and must be filed before any final order of adoption. Should the adoption be contested and subject to a jury trial, practitioners should note that this report is subject to the Texas Rules of Evidence when used as an exhibit. In a bench trial, however, the court may consider the contents of the report even if it is never formally introduced into evidence. In addition to a formal social study, each petitioner must obtain his or her own criminal history record from the Department of Public Safety. As governed by Section 411.128 of the Texas Government Code, DPS must provide the court with a certified copy of that criminal history before any final adoption order. Except when the adoption is by the child’s grandparent, step-parent, or
aunt or uncle by birth, marriage or prior adoption, a Health, Social, Educational and Genetic History Report must also be prepared and filed. The court may waive this report if the child’s biological parents cannot be located and their absence causes there to be insufficient information to complete the report. The validity of a final adoption order is not subject to attack, however, if such a report was not filed. Ultimately, the court must find that the requirements of the adoption have been met and that the adoption is in the best interest of the child before the adoption may be granted. The final order may change the child’s name if the pleadings so request, and the court, on motion or sua sponte, may seal the file. A final adoption order establishes the parent-child relationship between the adoptive parent and the child for all purposes. Moreover, both an adoptive child and an adoptive adult are entitled to inherit from and through their adoptive parents as though the adoptee were the biological child of the adoptive parents. Practitioners should carefully review Chapters 162 and 163 of the Texas Family Code before guiding a client through the adoption process. When properly executed, an adoption can be a truly rewarding experience and joyful event for the bench, bar and everyone HN involved. Carson Epes Steinbauer is a senior associate with Goranson, Bain, Larsen, Greenwald, Maultsby & Murphy, PLLC, and practices all aspects of family law. She can be contacted at cepes@gbfamilylaw.com.
Summer Clerks Visit Belo Mansion
For more information, visit www.dallashispanicbar.com.
Each year, the DBA Minority Participation Committee invites summer associates to luncheons at the Belo Mansion to acquaint them with the legal community and the many opportunities available to them in Dallas. In June, Karen Gren Johnson, a former state district judge, addressed the law students (photo above). Then, in July, the associates enjoyed hearing from Dallas County District Attorney Craig Watkins (photo right).
Au g u st 2 0 0 9
Focus
Dal l as Bar A ssoci ati on l Headnotes 11
Family Law
Family Law Appeals: Looking Outside the TRAPs & TRCPs By Georganna L. Simpson and Jeremy C. Martin
T
he Texas Family Code contains special rules that supplement the Texas Rules of Appellate Procedure and Texas Rules of Civil Procedure in family law appeals.
Findings of Fact Most lawyers know that Texas Rule of Civil Procedure 296 provides that counsel has 20 days to request findings of fact after a bench trial. Few lawyers, however, are aware the Family Code prescribes other deadlines to request certain types of findings of fact, including findings regarding child support, possession and access, and property division. Section 154.130 of the Family Code mandates the court make certain findings of fact regarding the obligor’s and obligee’s net resources, applicable percentage applied to the obligor’s net
resources, and why that amount varies from the guidelines if: (1) a party files a written request not later than 10 days after the date of the hearing; (2) a party makes an oral request in open court during the hearing; or (3) the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines. The court’s failure to make these findings of fact on proper request constitutes reversible error. In all cases in which a parent contests possession of a child and the possession periods vary from the standard possession order, Section 153.258 of the Family Code requires a party to file a written request with the court not later than 10 days after the date of the hearing or make an oral request in open court during the hearing, if the party wants the court to state in the order the specific reasons for the variance from the standard order. In a divorce suit in which the court
Celebrating 27 Years! DVAP’s 2009 Pro Bono Awards Celebration Thursday, October 1 ~ 5:30 p.m. ~ The Belo Mansion Save the date! Please plan to attend this celebration, hosted by the Dallas Volunteer Attorney Program.
orders a property division, Section 6.711 of the Family Code requires the court, on a party’s request and if disputed evidence exists, to state in writing its findings of fact regarding (1) the characterization of each party’s assets, liabilities, claims and offsets and (2) the value or amount of the community estate’s assets, liabilities, claims and offsets. The request must conform to the Texas Rules of Civil Procedure. Although these findings of fact certainly assist the attorney in challenging the property division, they do not take into consideration the value of a party’s separate estate in making the division of property. Accordingly, the practitioner should also request that the trial court put a value on the separate estates of the parties to enable an appellate court to determine whether the trial court has made a full and equitable division.
Temporary Orders Pending Appeal Sections 6.709 and 109.001 of the Family Code govern temporary orders pending appeal. Not later than the 30th day after the date an appeal is perfected, on motion of the court or that of a party, and after notice and hearing, the trial court may render a temporary order necessary for the preservation of the property and for the protection of the parties during the appeal and for the safety and welfare of the child during the pendency of the appeal as the court may deem necessary and equitable. An order may require the support of
either spouse, require the payment of reasonable attorney’s fees and expenses, appoint a receiver for the preservation and protection of the parties’ property, or award one spouse exclusive occupancy of the parties’ residence pending the appeal. An order may also appoint temporary conservators for the child and provide for possession of the child, require the temporary support of the child by a party, restrain a party from molesting or disturbing the peace of the child or another party, prohibit a person from removing the child beyond a geographical area identified by the court, require payment of reasonable attorney’s fees and expenses, or suspend the operation of the order or judgment that is being appealed (except an order or judgment terminating the parent-child relationship in a suit brought by certain governmental agencies). The court retains jurisdiction to enforce these temporary orders unless the appellate court, on a proper showing, supersedes the court’s order. These temporary orders must be signed within 30 days of the filing of the notice of appeal. Section 9.007 of the Family Code abates the trial court’s power to render further orders to assist in the implementation of or to clarify the property division during the pendency of an appellate proceeding. This may make the need to timely obtain temporary orders HN pending appeal imperative. Georganna Simpson and Jeremy Martin maintain individual practices in Dallas with a primary focus on family law appeals and are both members of the DBA Family Law Section and the DBA Appellate Section.
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12 H e a d n o t e s l D a l l a s B a r A ss ociation
In the News
A ugust 2009
August
ON THE MOVE
H. James Acosta has joined Looper Reed & McGraw as a partner. Bradley L. Adams has joined The Brinkmann Corporation as general counsel.
524, Dallas, TX 75206.
ton Sladek Harrell LLP as partner.
Sarah Elizabeth Elkins and Lauren Zimmerman have joined Hermes Sargent Bates, LLP.
Alan Rosenberg has joined Stuber Cooper Voge, PLLC as an associate.
the Dallas Bar Association are included in Headnotes as space permits. Please send announcements to Judi Smalling at jsmalling @dallasbar.org.
Don Swaim has joined Rose•Walker, L.L.P. as partner.
KUDOS
Daniel P. Elms has joined Bell Nunnally & Martin LLP as partner.
Matthew R. Baker has joined Godwin Ronquillo PC as an associate in the business litigation section.
Brian J. Fisher has joined Kane Russell Coleman & Logan PC as an associate.
Manuel G. Berrelez has joined Vinson & Elkins LLP as an associate in the complex commercial litigation group.
Craig A. Harris has joined Hiersche, Hayward, Drakeley & Urbach, P.C. as of counsel to the commercial litigation section.
Ryan Browne, Spencer Browne and Angel L. Reyes III have launched Reyes Bartolomei Browne at 5950 Berkshire Lane, Suite 410, in Dallas.
Harry J. Joe has joined Jackson Lewis LLP as partner, and Rebecca R. Massiatte has joined the firm as an associate.
Cynthia S. Buhr has joined Plains Capital Corporation as vice president and assistant general counsel. Michael J. Dalton has joined Dykema Gossett PLLC in the real estate practice group. Uttam Dhillon has joined Fitzpatrick Hagood Smith & Uhl LLP as partner. Mark D. Downey and Charles A. Guerin have joined Munsch Hardt Kopf & Harr, P.C. as shareholders. Adrienne A. Dunn has opened the Law Office of Adrienne Dunn located at 6060 N. Central Expressway, Suite
David R. Weiner has formed the Weiner Law Firm at One Lincoln Centre, 5400 LBJ Freeway, Suite 1260, Dallas, TX 75240.
Caroline Akers and Mark Bohon, of Looper Reed & McGraw, were elected to the Texas Wesleyan School of Law Alumni Association board of directors. Ms. Akers was elected president.
News items regarding current members of
Purchasing Shoes Helps Pro Bono The DBA has partnered with TOMS Shoes, a company founded in 2006 that has a very simple one-for-one policy. For every purchase of its unique lightweight slip-on shoes, TOMS donates a pair to an underprivileged child in a third-world country. But our partnership has an added benefit: For every pair of TOMS Shoes purchased by DBA members and friends, the company not only donates a pair of shoes to a needy child, but a percentage of each sale is also contributed to the Dallas Volunteer Attorney Program to help low-income residents in Dallas with civil legal needs. As DBA President Christina Melton Crain demonstrates from her personal collection, a wide variety of stylish TOMS shoes are available. For DVAP to benefit from your purchase, be sure to connect to the TOMS online store via the DBA Web site at www.dallasbar.org.
Jennifer N. Lewis has joined FarrowGillespie & Heath LLP as an associate. Summer L. Mendoza has joined Tollefson Bradley Ball & Mitchell, LLP as an associate. Leslye E. Moseley has joined Sessions Fishman Nathan & Israel LLP. J. Durrell Padgitt relocated his office to One Hillcrest Green, 12700 Hillcrest Rd., Suite 249, Dallas, TX 75230. John Pinkerton has joined Rose• Walker, L.L.P as partner. Michael Rist has joined Condon Thorn-
After Hours
D
rafting documents, taking depositions, responding to clients, cultivating new business and handling various administrative tasks can consume the better part of a lawyer’s day. Often, very little time is left for family and extracurricular activities. But some attorneys have found a way to blend their vocation and their avocation. Sally C. Helppie, of counsel with Tipton Jones and chair of the DBA Business Litigation Section, not only represents those in the entertainment industry, but she also spends quite a bit of time in the producer’s chair. Ms. Helppie is the founder and president of Sabbatical Pictures, LLC, a Dallas-based motion picture production company. She produced “Exit Speed,” an action thriller which enjoyed a limited U.S. theatrical run and wider release abroad (available now on DVD). Subsequently, she produced “The Beacon,” a supernatural chiller that won the top award for Best Feature Film at the 2009 Paranoia Film Festival. A 1985 graduate of the UCLA School of Law, Ms. Helppie became increasingly interested in the entertainment industry while living in California. Currently, her practice focuses on entertainment law and commercial litigation, and she has represented film productions of all sizes, as well as individual writers, actors and financiers. She has been involved in a movie produced by Martin Scorcese, and projects that include Johnny Depp and Mel Gibson. Additionally, she often helps Texas production companies with cast, crew, equipment, location and union contracts. It’s difficult to believe this seasoned trial attorney and movie producer has
continued on next page
Coming Soon!
any “spare time,” but from 2005-2008 she also served as a high school mock trial coach in the Carrollton-Farmers Branch ISD. And in 1994, the city of Carrollton named Ms. Helppie the Businesswoman of the Year. ”Both entertainment law and producing movies are intellectually stimulating and creative,” Ms. Helppie says. “My litigation background also has proved helpful in contract negotiations and addressing issues pre-production, as well as solving issues that arise on set. I am very grateful to have two complementary and enjoyable HN careers.” Do you know a DBA member with a really unique talent or hobby, who spends a significant amount of time devoted to this activity? If so, we’re interested in highlighting these stories. Send a brief overview to Darlene Hutchinson Biehl, Headnotes editor, at dhutchinson@dallasbar.org.
Trial lawyers on both sides of the aisle agree there is no better way to prepare for trial than to research your judge through
The 2009 Dallas County * Bench Book *A portion of the proceeds from the sale of this book goes directly to the Dallas Bar Association.
Call 800-456-5484 to order your copy today!
Au g u st 2 0 0 9
In the News
Dal l as Bar A ssoci ati on l Headnotes 13
August
continued from page 12
Vincent Ansiaux, of Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P.; Timothy Darley, of National Teachers Associates Life Ins. Co.; and John Greco, of Touchstone, Bernays, Johnston, Beall, Smith & Stollenwerck, LLP, have been elected as the officers of the North Texas Association of Insurance Counsel. Mark W. Bayer, of Gardere Wynne Sewell LLP, received the 2009 Alumni Service Award by the Bowdoin College Alumni Council. Beth Bradley, of Tollefson Bradley Ball
the Transportation Lawyers Association.
& Mitchell, LLP, has been named chair of the State Bar Insurance Law Section. Craig L. Caesar, of McGlinchey Stafford PLLC, has been inducted into the Litigation Counsel of America.
David H. Harper, of Haynes & Boone, LLP, has been named to Baylor University’s board of regents.
Allison K. Exall, of Curran Tomko Tarski LLP, has been named a member of a regional land sustainability committee of the Urban Land Institute.
James C. Ho, the solicitor general of Texas, received the Best Brief Award from the National Association of Attorneys General.
Beverly Godbey, of Gardere Wynne Sewell LLP, has been appointed to the Texas Access to Justice Commission.
William O. Holston Jr., of Sullivan & Holston, was recognized by the State Bar of Texas for 10 years of membership in the State Bar Pro Bono College.
Sam Hallman, of Strasburger & Price, LLP, has been named president-elect of
Heather D. Johnson, with Burford &
Ryburn, L.L.P., has been elected to the board of directors of the National Multicultural Western Heritage Museum. Joyce G. Mazero, of Haynes & Boone, LLP, has been elected to the board of directors of the Susan G. Komen for the Cure Advocacy Alliance. Charles M. Meadows Jr., of Meadows, Collier, Reed, Cousins & Blau, L.L.P, has received the Jules Ritholz Memorial Merit Award from the ABA Tax Section’s Committee on Civil and Criminal Tax Penalties. continued on next page
DBA Earns Many State Bar Awards
T
he Dallas Bar Association accepted numerous awards for its programs and services at the State Bar of Texas Annual Meeting in June. This year, the State Bar’s Local Bar Services Committee selected the DBA as the recipient of the Award of Merit for best overall local bar association programming. In the past year, the DBA’s sections and committees have presented nearly 400 CLE programs – most of which are free to its members. Further, the DBA makes a significant impact in the community through programs with the Dallas ISD, SMU Dedman School of Law, Habitat for Humanity, and many other charitable organizations. Additionally, the DBA earned the Partnership Award for hosting the Justice in Education Symposium, which brings educators, administrators and
community leaders together to develop initiatives to enhance the public school system in Dallas. Awards were also presented for outstanding articles published in Headnotes: n Best Series of General Interest Articles: 2008 President’s Columns by Frank E. Stevenson II. n Best Series of Substantive Legal Articles: Various criminal law articles published in May 2008 by Heather Barbieri, Bill Mateja, Kip Mendrygal and Kevin Ross. n Best Feature Story: “Abraham Lincoln’s Lessons for Today’s Ethical Lawyer,” by Billie J. Ellis Jr. and William T. Ellis. n Best Human Interest Story: “National Mentoring Month: Impacting At-Risk Children,” by Christina Melton Crain and Charles Pierson. n Best News Article: “Removal of
State Bar President Harper Estes (center) presented awards in June to DBA’s 2009 President Christina Melton Crain and DBA’s 2008 President Frank E. Stevenson II.
400+ Children Prompts Enormous Pro Bono Effort,” by Darlene Hutchinson Biehl. Various DBA members received individual awards at the annual meeting, including: n Bob Bliss received the Lifetime Achievement Award from the State Bar Real Estate, Probate & Trust Law Section. n Talmage Boston received a presidential citation for chairing the Annual Meeting Committee. n William A. Brewer III received the Community Service Award from the State Bar Hispanic Issues Section. n Adelfa Callejo received the Lifetime Achievement Award from the State Bar Hispanic Issues Section. n George Coleman received the Dan Rugeley Price Memorial Award from the Texas Bar Foundation. n Orrin Harrison received a presi-
dential citation for work on the Grievance Committee Structure Task Force. n Gregory S.C. Huffman received the Distinguished Counselor Award from the State Bar Antitrust & Business Litigation Section. n Dolly Wu received the Women & Minority Scholarship Award from the State Bar Intellectual Property Law Section. n TYLA President’s Awards of Merit were presented to Rob Canas, Sarah Kownacki, Jennifer Evans Morris, Kristy Piazza, Ken Riney and Chris Rogers. At the annual meeting, Roland K. Johnson of Fort Worth assumed the role as president of the State Bar. One of Mr. Johnson’s key initiatives in the coming months will be the statewide implementation of the Transition to Law Practice Program, launched in 2007 as a pilot HN program in Dallas.
REVIEW OF OIL & GAS LAW XXIV Energy Law Section – Dallas Bar Association
August 20-21, 2009 14 Hours of CLE Credit, including ethics Topics include: Federal and State Legislative Updates, Case Law Updates, and Exxon’s view on the industry. Location: Belo Mansion 2101 Ross Avenue, Dallas, Texas 75201 Contact: Sandra Anderson 214-758-1583 or SLAnderson@pattonboggs.com Credit Card Registration available at: www.reviewofoilandgas.com
14 H e a d n o t e s l D a l l a s B a r A ss ociation
In the News
August
continued from page 13
Michelle A. Mendez, of Hunton & Williams LLP, received the Robert B. Wilson Distinguished Service Award. She was also elected treasurer of the State Bar Bankruptcy Law Section, and was named chair-elect of the Research Fellows of the Center for American and International Law. William (B.J.) Moore and Davor Rukavina, of Munsch Hardt Kopf & Harr, P.C., have been named shareholders. Jennifer Evans Morris, of Carrington, Coleman, Sloman & Blumenthal, L.L.P., has been elected president-elect of the
Donation Will Bolster Pro Bono Service by Darlene Hutchinson Biehl
K
A ugust 2009
en Fuller has a passion for pro bono work, particularly in the field of family law. Despite being a name partner with Koons, Fuller, Vanden Eykel & Robertson, P.C., he chooses to spend most days donating his talents and experience to the Dallas Volunteer Attorney Program to assist low-income residents. But his efforts don’t end there. Noting that many needed expenses are not covered in the typical DVAP budget, he recently sent Kenneth D. Fuller a personal letter to the executive committee of the State Bar of Texas Family Law Section, relaying some current statistics and he told them of a few pressing needs in Dallas. A former chair of the section, Mr. Fuller has practiced law 47 years, and the section inducted him into its Hall of Legends. Undoubtedly, his plea garnered the attention of his colleagues. The State Bar Family Law Section responded with a $5,000 donation to DVAP to cover various discretionary expenses, including costs of litigating cases, certified copies, DNA testing, process service and CLE training. “They were very gracious,” Mr. Fuller says of the section’s leadership, “and we are so very appreciative of their assistance. Volunteering with DVAP has been a wonderful experience for me.” The Family Law Section is the fourthlargest section of the State Bar and includes approximately 4,400 attorneys. The Dallas Volunteer Attorney Program recruits, trains and supports pro bono attorneys in providing free civil legal aid to the poor in Dallas. Cases include bankruptcy, consumer, family, benefits, housing, wills and probate cases. Services are provided to residents who meet the financial eligibility guidelines (the gross annual income of a family of four must be less than $26,500). DVAP is a joint project of the Dallas Bar Association and Legal Aid of NorthWest Texas. Volunteer attorneys receive malpractice insurance, free CLE and mentoring. For more information on Dallas Volunteer Attorney Program, contact Alicia Hernandez at ahernandez@dallasbar. HN org.
Texas Young Lawyers Association. Lori Murphy, of Tollefson Bradley Ball & Mitchell, LLP, has been named partner. Michael J. Noordsy, of The Bassett Firm, has been named partner. Jeffrey H. Rasansky, of Rasansky Law Firm, received the Cy Pres Impact on Justice Award from the Texas Access to Justice Foundation. Matthew Sanderson, of Looper Reed & McGraw, has been licensed as a solicitor able to practice law in England and Wales.
and Margaret Crow Collection of Asian Art. M. Gaddy Wells, of Downs & Stanford, P.C., has been appointed to the State Bar Standing Committee on Real Estate Forms. Jeffrey A. Zlotky has been named managing partner of Thompson & Knight LLP.
FROM THE DAIS
Christa Boyd-Nafstad, of Gillespie, Rozen, & Watsky, P.C., delivered the commencement address for Grayson County College in Sherman.
Daniel J. Sheehan Jr., of Daniel Sheehan & Associates, L.L.P., chaired the 12th Annual Texas Irish American Cup Challenge golf tournament to raise funds for charities.
John M. Cox, of John M. Cox & Associates, P.C., served on the faculty of the 2009 Texas Association of Defense Counsel Trial Academy in San Antonio.
David S. Starr, of Belo Corp., has been elected to the board of directors of Big Brothers Big Sisters of Dallas County.
Jay R. Downs and Melissa M. Sage, of Downs Stanford, P.C., participated in Reading Day & Career Day at Onesimo Hernandez Elementary in Dallas.
Albert C. Tan, of Haynes and Boone, LLP, has received the Outstanding Attorney Achievement Award from the Asian American Law Students Association at SMU Dedman School of Law, and has been named to the board of directors for The Trammell
Sarah B. Foley, of Yee & Associates, PC, spoke on “Intellectual Property Practice Tips and Documents” at the Advising Businesses in a Troubled Economy CLE hosted by the University of Houston.
Family Law Section Presents Award
William O. Holston Jr., of Sullivan & Holston, spoke at the Point Center for Arts and Education at CC Young regarding “Welcoming the Stranger, America as a Refuge for Political and Religious Refugees.” Kenneth Johnston, of Kane Russell Coleman & Logan PC, spoke at the Banking Institute in Charlotte, N.C. Elaine Martin, of The Law Office of Elaine Martin, spoke on “Immigration Basics” to the Human Resource Meetup North Group. Mark McPherson, of McPherson LawFirm, PC, spoke at the Oklahoma Water Environment Association’s Annual Meeting in Norman, on “Why Texas Is Suing Oklahoma for Its Water.” Nicole R. Metcalf, of Jackson Walker LLP, presented “Anticipation of Litigation: Can You Identify the Trigger?” at the Lorman Education Services’ Document Retention and Destruction Seminar in San Antonio. Jerry Selinger, of Patterson & Sheridan, LLP, presented at the AIPLA 2009 Spring Meeting in San Diego, Calif. John Slavich, of Guida, Slavich & Flores, served as an instructor for the Brownfield Technical Assistance Course, sponsored by Texas Commission on Environmental Quality. News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send announcements to Judi Smalling at jsmalling @dallasbar.org.
THE TRUST HAS YOU COVERED The State Bar of Texas Insurance Trust specializes in helping all Bar Members and their Eligible Employees obtain complete insurance coverage at any point in their lives. From Health Insurance to Long Term
The DBA Family Law Section recently held the 2nd Annual “Art for the Courthouse” Scholarship Competition. Students from Booker T. Washington High School for the Performing and Visual Arts entered pieces of art reflecting this year’s theme of “The Changing Shape of Families.” As a result, Jaquelyn Rodriguez was presented with a $2,500 scholarship this summer. She plans to use the scholarship to attend a summer program at The College for Creative Studies in Detroit, Mich., and her winning work of art will be on display in the George L. Allen Sr. Courts Building near the family courts.
DBA Outstanding Minority Attorney Award ~ Nominations Being Accepted ~ Criteria and Eligibility: Must be a current DBA member in good standing and in good standing with the State Bar of Texas. Must have demonstrated outstanding service to the DBA. Must have demonstrated outstanding service to the community. Must demonstrate a high level of professionalism and integrity.
Deadline for Submission: October 2, 2009 Past Recipients: Sara Sanchez Hewitt, Florentino A. Ramirez, Joel Winful, Aurora Madrigal, Tonya Parker, Michele Wong Krause, Aaron Ford, Lisa Page, Martin Garza, Andrea Frye, Paul Stafford, Sheri Crosby and Wesley Young Sponsored by the DBA Minority Participation Committee. To obtain nomination form, contact Alicia Hernandez at ahernandez@dallasbar.org or 214-220-7499.
Disability Insurance, the Trust has you covered. Your quote is only a phone call or click away. Visit www.sbotit.com or call 800.460.7248.
Au g u st 2 0 0 9
Dal l as Bar A ssoci ati on l Headnotes 15
Classifieds
August
POSITIONS AVAILABLE
Palmer & Manuel, LLP is seeking one experienced family law attorney with portable business. Please contact Rebecca Manuel at rmanuel@pamlaw.com and visit our website at www.pamlaw.com for more information. Clouse Dunn Khoshbin LLP, an established, AV-rated boutique firm located in downtown Dallas is seeking a fulltime attorney with at least 7+ years of experience specializing in employment law and employment litigation. Strong writing skills required. Send resume to debra@cdklawyers.com. Godwin Ronquillo PC is seeking an associate with 1 1/2 to 3 years experience in commercial litigation. Court clerkship time a definite plus and equal to time worked in a law firm. Must have excellent research and writing skills. Submit writing sample with resume. Contact employment@godwinronquillo. com. Principals only. Energetic lawyer with passion? Share offices with established counsel and professional staff. Plenty of overflow business. Centrally located to three county seats. Tremendous opportunity for right person. Bring your staff and be ready to eat what you kill. E-mail resume, cover letter and any questions to reallawyer@ charterinternet.com. AV-rated, Plano-located, family law firm seeks hard-working, ambitious associate with one to three (1-3) years of family law/litigation experience. Salary commensurate with performance. Excellent support staff and diverse established clientele. Contact Lead Office Manager, Jennifer Lynette, at 817-905-3831 or fax resume and cover letter to 972-380-4229.
POSITION WANTED
Help for the solo and small firm practitioner. Outstanding research, writing and oral advocacy skills. Work experience includes business litigation, tort and insurance cases. Former judicial
clerk, law review, appellate experience. Very competitive rates. 214-866-0026. Attorney starting own practice with 4+ years experience in banking, real estate, and business entities seeks overflow work. Compensation variable based on other factors in arrangement. E-mail inquiries to AndrewKJenkins@ gmail.com or call 214-886-6039. Need help without full-time hire. Solo practitioner with 15 years experience seeking overflow work to supplement practice. Large firm experience in business transactions, litigation and bankruptcy. Top academic credentials. Of counsel relationship possible. E-mail to mark@ business-lawyer.net or 214-331-6300.
OFFICE SPACE
CPA firm has corner office on 8th floor at Knox/Henderson and Central Expy to share with CPA or attorney. Space includes administrative assistant, conference room, kitchen, telephones, high-speed DSL and copier. Available January 1, 2010. Call Dana at 214-559-3690. High-rise views at low-rise rates. Panoramic views from 63rd floor. Class-A downtown space close to courthouse, AV-rated law firm. Access to large conference room, library, kitchen. Secretarial, clerical, reception available. Two offices available. One office has a very nice secretarial station. Negotiable. Call Kay 214-761-6463. Hidden in the shadow of CityPlace. For lease ±4,000 ft. second floor of garden office building at 4225 Office Parkway, two blocks east of Central, one block north of Haskell. Recently remodeled. $13.25 full serve + 40% electric on minimum two-year lease. Some covered parking, nice reception, conference and kitchen. 972-367-6540 or pbogner@stoneeagle.com. Northpark/Central Expwy — Law firm has two large partner offices and one smaller office for sublease in Class A building. Best views in town overlooking
DVAP’s Finest Paul Vigushin
Paul Vigushin is a sole practitioner with a general civil practice in Richardson. He assists DVAP clients with divorces, bankruptcies and guardianships, and often mans the phones for the DBA LegalLine. Paul represented four DVAP clients in their Chapter 7 bankruptcies last year, helping to fill a critical need for bankruptcy attorney assistance at DVAP. In addition, for the past two years, Paul has chaired the DAYL Ask-a-Lawyer event, which is co-sponsored by DVAP. “My early mentors showed by example that you could be a successful attorney, have a booming practice, and find time to help those in need. Besides, doing pro bono work was about the only way for a young lawyer to see the inside of a courtroom. The goodwill generated by helping others pays manifold dividends for our profession as a whole,” he says. Thanks for all you do, Paul!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x3316.
A joint legal aid program of the Dallas Bar Association and Legal Aid of NorthWest Texas (formerly Legal Services of North Texas).
downtown and Park Cities. Great location with excellent finish out, elevator exposure and easy access to/from Central Expwy. Includes use of large conference room, secretarial space and kitchen. High-speed DSL, telephones, copier/ scanner and on-site storage also available. Call 214-292-4202. Walnut Glen Tower (Walnut Hill/Central Expwy) Office: Spacious office in relaxed, yet professional 3-lawyer environment, including secretarial station, conference room, kitchen, copier, telephone system, DSL line, garage parking, penthouse view and other amenities. Call 214-750-1500 for details. Move-in special. 3 months free rent in Preston Tower. 2 offices. Shared amenities (kitchen, conference room, reception area, private bath, copier). Call 214-369-1171 or e-mail herbhooks@ aol.com. Executive suites. All amenities bundled at one reasonable rate including conference, kitchen, high-speed Internet, T-1 phone rates, Internet fax, receptionist, 24/7 HVAC, 24/7 access, etc. Beautiful ‘A’ garden building in Richardson directly at the DART stop near 75 Central and Spring Valley. Current tenant roster is largely attorneys. 972-367-6540 or 972-367-6527. North Dallas Tollway (Galleria area) office space. Hardwood floors and ornate mahogany paneled walls in common areas. One office (approx. 13.5 x 13.5) with built-in mahogany secretarial carrel (located in outer office area). Access to three conference rooms, copier, postage meter and two kitchens. Receptionist services available. Please call Kristi at 972-934-4100. Office space near Victory and West End. 501 Elm Place building has exposed wood beams and original brick walls. The seven-story atrium allows for natural light. Located across from the Records Building and the Sixth Floor Museum, the DART rail line runs directly behind the building on Pacific Ave. Take clients to eat dinner at Mortons located in the basement or to eat lunch in the West End Historic Dis-
trict which is within walking distance. Remodeled “Ready To Move In” offices are available and ready for you. Sizes available: 626 sq. ft., 1,097 sq. ft., 1,414 sq. ft., 1,552 sq. ft., 1,633 sq. ft., 3,679 sq. ft., 5,107 sq. ft. Call Scott Ehley for information at 972-241-3545 or e-mail at sehley@international-capital.com. Mention the ad and receive a moving allowance! Uptown Dallas office suite. Two law offices and secretarial space for rent in boutique litigation law firm, 650 square feet. Free parking and access to DART. Use of conference rooms, copy/mail center and kitchen. Great opportunity for patent and IP lawyers to share business. Contact Elena at 214-969-9099. Plano office space. Easily accessible to George Bush and Dallas Tollway. Two executive offices with plenty of support staff space available. Approximately 850 square feet, second level. Full amenities. For further information please contact Jennifer at 972-380-4222.
SERVICES
Mexican law expert. Attorney/former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues – Mexican claims/defenses; personal injury; moral damages; forum non conveniens. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez 210-222-9494 / dlopez@pulmanlaw. com. Damage Calculations. Do you need damage calculation services for personal injury cases? If so, call Verlin Taylor at 214-536-5361 or vktaylor@ sbcglobal.net for reduced fees on discovery, file review, report development and depositions.
RATES & DEADLINES
Headnotes is mailed monthly to approximately 10,000 attorneys in the Dallas area, and is ideal for announcing available office space, job openings, items for sale, services, etc. Deadlines: Ad text and payments are due on the 10th of the month prior to the issue date. For more information: Request rate card and details from Judi Smalling at JSmalling@dallasbar.org.
16 H e a d n o t e s l D a l l a s B a r A ss ociation
Focus
A ugust 2009
Probate/Trusts & Family Law
Sole Management Community Property by Tom Jackson
T
he Fifth Circuit’s December 2008 decision in Gray v. U.S., 2008 WL 5235989, is the latest case to address the IRS’s ability to collect taxes by levying or attaching the sole management community property of a nonliable spouse. In Gray, the other spouse was nonliable because she qualified for innocent spouse protection. The question before the court was whether the IRS could reach her sole managed community property to pay her husband’s tax debt. The Fifth Circuit ruled that the IRS could, but only the husband’s 50-percent interest in that property.
Community and Separate Property Texas law defines community property as property, other than separate property, acquired by either spouse during marriage. There is a rebuttable presumption that all property acquired during marriage is community property. Under federal law, each spouse is considered to own a 50-percent interest in community property. Income earned by either spouse is considered community income for tax purposes. That is, if spouses file separately, each is to report one-half of each spouse’s income on their respective tax returns unless an agreement exists to the contrary. (Note: A 50-percent presumption does not necessarily obtain on divorce. The presiding judge in a divorce case
may make a disproportionate division if the judge deems that division to be “just and right.”) Texas law defines separate property as property owned by a spouse before marriage, property acquired by a spouse during marriage by gift, devise or descent, and any damages recovered by a spouse for personal injuries that do not represent loss of earning capacity during marriage.
Joint and Sole Management Texas law distinguishes between community property subject to the joint management, control and disposition of both spouses, and community property subject to one spouse’s sole management, control and disposition. The distinction between joint and sole management community property is critical to determine how far the IRS and other creditors may reach to collect against a nonliable spouse. A spouse is considered to have sole management, control and disposition over community property that that spouse would have owned if that spouse were single, such as a medical practice. This sole management community property includes personal earnings, revenue from separate property, damages recovered for personal injury attributable to loss of earning capacity, and the increase in value, mutations and revenue of all property subject to a spouse’s sole management, control and disposition. Texas law defines community property subject to joint management, control and disposition as all com-
munity property that is not subject to a spouse’s sole management, control and disposition, for example, a joint financial account. (Note: The parties may enter into an agreement to provide otherwise.)
General Creditor’s Reach Although each spouse has a 50-percent interest in the community property, Texas law limits the types of community property that a creditor may reach to satisfy a spouse’s separate liability. To satisfy that liability, Texas law allows a creditor to reach all of a liable spouse’s community property subject to that spouse’s sole management, control and disposition. A creditor may also reach all community property subject to the spouses’ joint management, control and disposition, and all of the liable spouse’s separate property. Whether the debt was incurred before or during marriage does not matter. A creditor may not reach any portion of the community property subject to the nonliable spouse’s sole management, control and disposition, or the nonliable spouse’s separate property. A spouse that incurs contractual liability will bind the share of the noncontracting spouse’s community property subject to the sole or joint control of the contracting spouse, but the noncontracting spouse is not “personally liable” for the obligation. The creditor, however, cannot reach the noncontracting spouse’s sole management community prop-
erty. That is, the creditor can only reach the contracting spouse’s separate property, sole management community property, and any joint management community property.
IRS Reach Under federal law the IRS has a further reach than a general creditor. It may also reach the liable spouse’s 50-percent interest in the non-liable spouse’s sole management community property to satisfy a separate federal tax liability. For example, whereas a general creditor cannot reach the liable spouse’s interest in an account held in a nonliable spouse’s sole name, the IRS can reach 50 percent of that account. Caveat 1: This analysis of a creditor’s reach does not apply to tort liability incurred during marriage. For liability based in tort, such as personal injury to a third party caused by one spouse, the injured party can reach the sole managed community property of the other spouse, but not that spouse’s separate property. Caveat 2: If a spouse incurs a contractual debt for necessaries, such as emergency medical care, the creditor can reach both the separate property and sole managed community property of the noncontracting spouse. Caveat 3: The protection afforded by Texas homestead laws is beyond HN the scope of this article. Thomas P. Jackson is an attorney practicing in Dallas focusing on financial issues in family law litigation. He can be reached at tpj@dfwlawyer.com.
The Dallas Jewish Community Foundation Presents the 14th Annual Professional Advisors Seminar: What’s Hot, What’s Not: 2010 Edition Stephan R. Leimberg is CEO of Leimberg and LeClair, Inc., an estate and financial planning software company, President of Leimberg Associates, Inc., a publishing and software company in Bryn Mawr, Pennsylvania, and Publisher of Leimberg Information Services, Inc. which provides e-mail based news, opinion, and information for tax professionals. Leimberg is the author of numerous books on estate, financial, and employee benefit and retirement planning and a nationally known Stephan R. Leimberg speaker. Leimberg is the creator and principal author of the entire Tools & Techniques series. A nationally known speaker, Professor Leimberg has addressed the Miami Tax Institute, the NYU Tax Institute, the Notre Dame Law School and Duke University Law School's Estate Planning Conference, the National Association of Estate Planners and Councils, and the AICPA's National Estate Planning Forum. Leimberg has also spoken to the Federal Bureau of Investigation, and the National Aeronautics and Space Administration. Leimberg was named 1998 Edward N. Polisher Lecturer of the Dickinson School of Law and was a featured speaker at the American Bar Association's Tax Sections Annual Meeting.
Thursday, September 17 2009 Breakfast at 7:30 a.m. Seminar 8:00 a.m. - 10:00 a.m. Our 2009 Seminar has a new location: Westin Park Central 12720 Merit Drive Dallas, TX 75251 Valet parking $10. Surface self parking is complimentary. Earn 2 CE Hours
Register online at www.DJCF.org Early Registration: $50. After September 1: $60. Call 214-615-9351 or e-mail info@djcf.org
2009 Sponsors
Prescott Pailet Benefits LP
Bernstein Global Wealth Management A unit of AllianceBernstein L.P.
Bessemer Trust Cole & Reed, PC Financial Planning Associates Gardere Wynne Sewell, LLP Hunton & Williams, LLP Jackson Walker, LLP Klein & Pollack, LLP Kroney Morse Lan, PC Lane Gorman Trubitt, LLP
Philip Vogel & Co., PC Silverman Goodwin, LLP Stanford M. Kaufman and Associates The Blum Firm, PC, Attorneys at Law TravisWolff Independent Advisors & Accountants Weaver and Tidwell, LLP Winstead, PC Waldman Bros.