Dallas Bar Association
HEADNOTES January 2014 Volume 39 Number 1
Scott M. McElhaney Inaugurated as DBA’s 105th President by Jared M. Slade
Scott M. McElhaney will be inaugurated as the 105th President of the Dallas Bar Association on January 11, 2014. Scott, who focuses his practice on labor and employment and commercial litigation as a partner at Jackson Walker L.L.P., brings superlative credentials and a record of service to his latest leadership position with the DBA, all of which inform his vision for his term. “Scott will be a great DBA President,” commented Sally Crawford, an attorney at Jones Day and Scott’s immediate predecessor as DBA’s President. “Not only is he exceptionally smart and thoughtful, but he brings a tremendous amount of DBA experience and institutional knowledge, having served in numerous capacities and as a Board member. He will be wonderful.” A Dallas native, Scott was introduced to the law early by his father, John McElhaney, a longtime litigation partner at Locke Lord. He worked as a messenger at the firm, which was then known as Locke, Purnell, Boren, Laney & Neely, during one summer in high school. He credits the experience with confirming his interest in the law and educating him about the underground downtown tunnels. After graduating from St. Mark’s School of Texas, he attended Dartmouth College, was elected to Phi Beta Kappa, and received an A.B. degree, summa cum laude, in History. One summer found him at Thompson Knight as a paralegal, where he confirmed he still liked the law, before applying to law school. He earned his J.D., cum laude, from Harvard Law School. His passion for civil rights manifested itself in multiple extracurricular activities—Scott served as Managing Editor of the Harvard Civil Rights – Civil Liberties Law Review and President of the Harvard Law School Civil Liberties Union. Scott elected to clerk before beginning private practice. He was a Law Clerk to the Honorable H. Barefoot Sanders, Jr., then the Chief Judge of the United States District Court for the Northern District of Texas. He earned a second clerkship with the Honorable Irving Goldberg on the United States Court of Appeals for the Fifth Circuit. Those clerkships proved instrumental to Scott professionally and personally.
Scott M. McElhaney
Personally, his clerk network introduced him to his wife, Allison Walters, whose sister was one of the Sanders clerks who followed Scott. The couple fatefully met under Big Tex at a law clerk group outing to the State Fair. Today, Allison and Scott have two sons, both of whom attend St. Mark’s, like their father. Most weekends find Scott at a soccer field around town, watching his sons compete on the field. Both Christopher, 14, and Henry, 11, play soccer like their father did but also have diverse interests: Christopher enjoys photography and crosscountry while Henry sings in the school choir. It is unclear whether they will follow their father and grandfather into the courtroom; Scott is agnostic as to their future professions, so long as both are happy. Professionally, he was attracted to the firm Cohan, Simpson, Cowlishaw & Wulff, L.L.P., which featured numerous former Sanders and Goldberg clerks. Scott remained after that firm merged with Jackson Walker in 2001. W. Gary Fowler, Chair of Jackson Walker’s Dallas Labor and Employment Section, has worked with Scott since the merger. “Scott’s combination of knowing the law and applying it is what makes him a truly outstanding lawyer,” Mr. Fowler said, “He also brings great practical skills, a wonderful sense of humor, and love of the law to his work.” Today, Scott splits his practice almost equally between labor and employment, a field in which he is Board Certified by the Texas Board of Legal Specialization, and commercial litigation. His professional success has afforded him opportunities to continued on page 6
Focus Labor & Employment Law
Rafael Anchia to Receive 2014 MLK Justice Award mittee for Trade Policy and Negotiations. In the 83rd legislative session, he was appointed to the “He is courageous. His courage, patience, tenac- bi-national Border Legislative Conference. He ity and passion for justice brought this issue to the previously served as Vice-Chair of the Pensions, forefront. He opened doors and he opened eyes. His Investments and Financial Services Committee interest is public policy, not politics. He truly believes and on the prestigious Sunset Advisory Commishe was elected to serve the people of the State of sion. Having lived the American Dream that Texas, and to improve the lives of all Texans, regardinspired his parents to move to the United States, less of party affiliation.” - Cory Session, Timothy Cole’s brother and Representative Anchia has a genuine passion for Policy Director at The Innocence Project of Texas, helping people and true empathy for their strugon the role of Rafael Anchia in the passage of the gles and aspirations. During his service in the legislature, he has worked tirelessly on legislation to Tim Cole Act. protect civil rights, improve public safety, protect On January 20, 2014, the Dallas Bar Asso- our environment and improve health coverage ciation will honor Texas State Representative for women and children. When asked about his Rafael Anchia as the 2014 recipient of the Mar- most satisfying accomplishment, Representative tin Luther King, Jr. Justice Award. The award, Anchia responded without hesitation: “The Tim given annually, recognizes attorneys who embody Cole Act.” Working with The Innocence Project, Representative Anchia sponsored the values and principles of the life House Bill 1736, resulting in legisand legacy of Dr. King: justice, comlation that increases the amount of passion and service. compensation paid by the State of The son of Mexican and SpanTexas and provides other benefits ish immigrants, who taught him to individuals found to have been the value of education, hard work wrongfully imprisoned. and commitment, Representative “I have witnessed the significant Anchia was inspired early in life difference this recognition and payto become a lawyer and enter pubment has made in the lives of dozlic service when he participated ens of innocent men and women in a public school “court observer and their families,” said Represenprogram, which provided his first tative Anchia. “I have stayed in exposure to the justice system.” contact with many of these indiHe applied that inspiration toward viduals and have noted a direct and earning a full scholarship to attend tangible impact. I have seen them Southern Methodist University, Rafael Anchia not only get back on their feet, but where he graduated with honors. He received another scholarship to attend Tulane also thrive. I am proud to have played a part in University where he earned his law degree. At seeing justice served.” Prominent Dallas criminal attorney and PresTulane, he served as a volunteer advocate for ident of the Board of Directors at The Innocence immigrant detainees denied legal counsel, and Project of Texas, Gary Udashen, said: “The Tim worked on legislation monitoring nursing home conditions which later became law. It is not sur- Cole Act put Texas ahead of the rest of the counprising, then, that in his practice as an attor- try on this issue, and Representative Anchia has ney with the international law firm Haynes and been a leader and supporter in this area.” Representative Anchia has received numerBoone, where Representative Anchia specializes in public and corporate finance, public service ous community awards, including the American Jewish Committee’s Institute of Human has remained a constant and dual focus. Representative Anchia began his public ser- Relations Award, Texas Lawyer’s Extraordinary vice locally as a member of the Board of Trust- Minority in Texas Law and LULAC’s National ees for the Dallas Independent School District. “Man of the Year.” He has also received legislative honors too Twice elected to the Board, his efforts helped win public approval of a $1.37 billion bond pack- numerous to list—from Texas Monthly’s Top age that provided thousands of children with Freshman and Ten Best Legislators to Hispanic improved classrooms and learning environments. Business’ 50 Most Influential U.S. Hispanics in On a national level, he served as Chairman of 2012. The Representative was also appointed by the Board of the National Association of Latino Congresswoman Debbie Wasserman Schultz to Elected and Appointed Officials Educational the Democratic National Committee as an atFund, a leading national non- profit and non- large member in August 2013. The Dallas Bar Association is honored to prespartisan organization that facilitates full Latino participation in the American political process ent Representative Anchia with this prestigious award for his service to the Dallas community and from citizenship to public service. In November 2004, Rafael Anchia was the State of Texas. Please join us in thanking and elected to the Texas House of Representatives. honoring him at the Martin Luther King, Jr. JusHis district, House District 103, serves a west- tice Award luncheon at noon at the Belo Manern corridor of Dallas County, including parts sion. Members of the DBA and the community are of North Oak Cliff, West Dallas, La Bajada, Los invited to attend. To make reservations, contact Altos, Love Field, North Park and portions of Biri Avina at email@example.com. A plated lunch HN the cities of Irving, Farmers Branch and Car- will be served at a cost of $12.76. rollton. He currently Chairs the International Trade and Intergovernmental Affairs Commit- Dawn Fowler is co-chair of the Publications Committee and is a partner tee within the legislature and is an appointee of at Keane, Fowler & Donohue where she specializes in family law and is an President Obama to the federal Advisory Com- advanced credentialed mediator. She can be reached at firstname.lastname@example.org. by Dawn Fowler
Connatser Family Law Donates $15,000 to DVAP
11 Strategies for Recognizing and Avoiding Workplace Violence 13 Handcuffed: Laws Limit Employers’ Use of Background Reports
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2 He a d n o t e s l D a l l a s B a r A s s o ciation
January Events FRIDAY CLINICS
JANUARY 3-BELO Noon
“RIP: Why the ‘Show Me the Note’ Argument is Dead in Texas Foreclosure Litigation,” Emily Schulte. (MCLE 1.00)*. RSVP to email@example.com.
JANUARY 10-NORTH DALLAS** Noon
“UCC Enforcement Upon Breach,” Jack R. Bird. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 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. Thank you to our sponsor Underwood Perkins, P.C. RSVP to firstname.lastname@example.org.
JANUARY 17-BELO Noon
DBA Offices Closed in Observance of New Year’s Holiday
THURSDAY, JANUARY 2
Construction Law Section “Review of Black + Vernooy and Third-party Beneficiary Claims Against Design Professionals,” Richard Schellhammer. (MCLE 1.00)*
FRIDAY, JANUARY 3 Noon
Friday Clinic-Belo “RIP: Why the ‘Show Me the Note’ Argument is Dead in Texas Foreclosure Litigation,” Emily Schulte. (MCLE 1.00)*. RSVP to trivas@dallasbar. org.
MONDAY, JANUARY 6 Noon
Tax Law Section “State and Local Taxes 101,” Amy Stowe. (MCLE 1.00)*
TUESDAY, JANUARY 7 Noon
Corporate Counsel Section “Preparing Your Annual Proxy Statement—Trends in Shareholder Activism,” David A. Kern and James E. O’Bannon. (MCLE 1.00)*
Morris Harrell Professionalism Committee
6:00 p.m. Home Project Committee
7:45 a.m. Dallas Area Real Estate lawyers Discussion Group 11:30 a.m. House Committee Walk Through
THURSDAY, JANUARY 9 Noon
Employee Benefits & Executive Compensation Section “ERISA Litigation Update,” James Raborn. (MCLE 1.00)* Family Law Section “Two Year Conditional Residence for Married Couples and the Role of Family Attorneys in the Immigration Process; Or When Does it Take A Family Attorney and Immigration Attorney to Save a Green Card,” David Swaim. (MCLE 1.00)*
Admissions & Membership Committee
Public Forum Committee
Law in the Schools & Community Committee
Christian Lawyers Fellowship
St. Thomas More Society
3:30 p.m. DBA Board of Directors Meeting 6:00 p.m. J.L. Turner Legal Association
FRIDAY, JANUARY 10 Noon
Friday Clinic-North Dallas** “UCC Enforcement Upon Breach,” Jack R. Bird. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 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. Thank you to our sponsor Underwood Perkins, P.C. RSVP to email@example.com. Government Law Section “IT Contracts for Government Entities – Procurement and Key Terms,” Eileen Youens. (MCLE 1.00)* Trial Skills Section “What Sitting Judges Want You to Know But Can’t Tell You: Advice From Former Federal Judges!” Hon. Royal Ferguson, Hon. Jeff Kaplan and Hon. Irma Ramirez (moderator). (MCLE 1.00)*
MONDAY, JANUARY 13
Legal Ethics Committee
Dallas Bar Foundation Board of Directors
WEDNESDAY, JANUARY 15
Environmental Law Section Topic Not Yet Available
DBA Community Service Fund Board Meeting
Law Day Committee
DAYL Lunch & Learn CLE. For more information, contact firstname.lastname@example.org.
Pro Bono Activities Committee
Non-Profit Law Study Group
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo. 6:00 p.m. Labor & Employment Law Section “Judicial Roundtable Discussion on Pressing Employment Law Issues.” (MCLE 1.50)*
THURSDAY, JANUARY 16 8:00 a.m. Federal Bar Association Civil Practice Seminar Noon
Appellate Law Section Topic Not Yet Available
Media Relations Committee
Minority Participation Committee
Christian Legal Society
DAYL Animal Welfare Committee
Dallas Gay & Lesbian Bar Association
FRIDAY, JANUARY 17 Noon
Friday Clinic at Belo “Bad Facts: Making Lemonade from Lemons,” Quentin Brogdon. (MCLE 1.00)* RSVP to email@example.com.
MONDAY, JANUARY 20 Noon
Martin Luther King, Jr. Justice Award Luncheon. Recipient: Rafael Anchia. RSVP to firstname.lastname@example.org.
TUESDAY, JANUARY 21 Noon
Antitrust & Trade Regulation Section Topic Not Yet Available International Law Section “EB-5 and Other Immigration Options for Foreign Investors,” Brent Huddleston. (MCLE 1.00)*
Real Property Law Section “Case Law Update,” David A. Weatherbie. (MCLE 1.00)*
Community Involvement Committee
DAYL Elder Law Committee
Peer Assistance Committee
WEDNESDAY, JANUARY 22
Business Litigation Section “The Risks and Rewards of the High Profile Case: From Voir Dire to Closing,” Tom Melsheimer. (MCLE 1.00)* Mergers & Acquisitions Section “Delaware M&A Law Update,” Bert Ashman and Mike Reilly. (MCLE 1.00)*
THURSDAY, JANUARY 23
Health Law Section “2013 in Review: False Claims Act Cases, Settlements and Initiatives,” Jeremy Kernodle. (MCLE 1.00)*
TUESDAY, JANUARY 14
DVAP New Lawyer Luncheon. For more information contact email@example.com.
Criminal Law Section “Immigration Consequences of Criminal Dispositions,” Gary Frost. (MCLE 1.00)*
Energy Law Section Topic Not Yet Available
Alternative Dispute Resolution Section “Perception Really is Reality: Unlocking the Mediation Matrix,” Joe L. “Joey” Cope. (MCLE 1.00)*
Sports & Entertainment Law Section Topic Not Yet Available
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
DAYL Board of Directors Meeting
WEDNESDAY, JANUARY 8
5:30 p.m. Bankruptcy & Commercial Law Section “What About My Retirement?” Tara Twomey. (MCLE 1.00)*
Tort & Insurance Practice Section “Additional Insured Coverage after In re Deepwater Horizon,” Veronica Bates, Rachel Geisber Clingman and Hon. Mary Murphy. (MCLE 1.00)*
5:30 p.m. Solo & Small Firm Section “Developing Your Marketing Message,” Jeff Whittle. (MCLE 2.00)*
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
“Bad Facts: Making Lemonade from Lemons,” Quentin Brogdon. (MCLE 1.00)* RSVP to firstname.lastname@example.org.
WEDNESDAY, JANUARY 1 Noon
Legal History Discussion Group “Borders Wars: Texas’ Fight for Water,” Ryan Langston. (MCLE 1.00)*
FRIDAY, JANUARY 24 Noon
Intellectual Property Law Section “Troll Hunting: Legislative Update Over Perceived Patent Abuses by Non-Practicing Entities,” James Gourley, panel moderator. (MCLE 1.00)*
MONDAY, JANUARY 27 Noon
Computer Law Section “Inter Partes Reviews: The First Year,” Daniel Venglarik. (MCLE 1.00)*
Securities Section “Hot Topics for the 2014 Proxy Season,” Katherine Cournoyer and Robert Little. (MCLE 1.00)*
Golf Tournament Committee
Senior Lawyers Committee
DAYL Solo & Small Firm Committee
TUESDAY, JANUARY 28 Noon
Probate, Trust & Estate Law Section “Guardianships,” Lisa Jamieson. (MCLE 1.00)*
DAYL Aid to the Homeless Committee
American Immigration Lawyers Association
6:00 p.m. Dallas Hispanic Bar Association
WEDNESDAY, JANUARY 29 Noon
Municipal Justice Bar Association
5:00 p.m. Transition to Law Practice Committee CLE “Introduction to the Transition to Practice Program & Attaining Success and Maintaining Integrity for the Beginning Lawyer.” (MCLE 1.50)* RSVP to email@example.com.
THURSDAY, JANUARY 30 Noon
Collaborative Law Section “Increasing Client Satisfaction by Adding Collaborative Tools to your Probate Toolbox,” Gary Ashmore and Ruth Rickard (MCLE 1.00)*
FRIDAY, JANUARY 31 Noon
DAYL CLE Committee
YOU ARE INVITED! MÙã®Ä Lçã«Ù K®Ä¦ JÙ. LçÄ«ÊÄ Monday, January 20, Noon at the Belo MLK Jus�ce Award to be presented to Rafael Anchia $12.76 per person. RSVPs required. Contact BAvina@dallasbar.org
Recently, the DBA hosted the Vietnamese Central Steering Committee for Judicial Reform. Appointed by the president of Vietnam, the committee’s goal was to learn more about the judicial system of the United States, including the criminal justice and court systems and the role of the bar association. In addition to the members of the Committee, DBA Immediate Past President Sally Crawford and past presidents Christina Melton Crain and Barry Sorrels also participated.
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 KZack@dallasbar.org.
Janu a ry 2 0 1 4 â€
D al l as Bar A ssoci ati on l Headnotes 3
4 He a d n o t e s l D a l l a s B a r A s s o ciation
Martin Luther King, Jr.’s Call to Service Scott M. McElhaney
Dr. Martin Luther King, Jr. once said, “Life’s most persistent and urgent question is: ‘What are you doing for others?’” Later this month, on January 20th, we will celebrate the Rev. Dr. Martin Luther King, Jr. holiday. Many of our offices will be closed. The Dallas Bar Association will host its annual Martin Luther King, Jr. Day celebration and present the Martin Luther King, Jr. Justice Award to a worthy recipient: State Representative Rafael Anchia. Other groups in the area will also honor the day with parades and speeches. But as happened with some commemorations of Dr. King’s “I Have a Dream” speech at the 50th anniversary of the 1963 March on Washington, celebrating the progress our society has made in the area of civil rights can obscure the full measure of King’s message. Too often, we lose sight of the fact that King’s work as a minister and civil rights leader not only promoted the cause of racial equality, but also challenged us to address the prevalence of poverty in our country. While we as a bar association are not equipped to solve all of the problems confronting society or the poor, we all have the ability, and the responsibility, to do our part to answer King’s call to do something for others. Dr. King is often described as being a modern-day prophet to America who led the country out of its Jim Crow past and towards racial equality. We rightly celebrate King’s dream that all people be judged by the content of their character and not the color of their skin. But the 50th anniversary of the March on Washington last year and the 50th anniversary of the Civil Rights Act of 1964 later this year are not occasions to just congratulate ourselves for the progress the country has made. The “White Only” sign above a water fountain on the first floor of the Dallas County Records Building is a faded remnant of what it once was, and the arguments about it concern how to present what a plaque on the wall now calls an “unpleasant portion of our history.” But if King were alive today, he would likely not tell us that the advancements we have made in racial justice are simply a part of history, nor would he allow us to relax now. The words of prophets like Dr. King make people uncomfortable because those messages challenge the status quo and confront the ways in which people fail to live up to their ideals. During the civil rights movement, King had to deal with moderates of the time who favored desegregation, but who thought that King wanted change too quickly. King’s famed “Letter from a Birmingham Jail” was addressed to fellow clergymen who thought that the marches for civil rights in Birmingham—during which King was arrested for parading without a permit—were “unwise and untimely.” King’s Letter responded that “‘Wait has almost always meant ‘Never’” and that “justice too long delayed is justice denied,” and this response is now seen as a defining message
of the movement and a catalyst for more rapid progress. One aspect of Dr. King’s message that bears repeating today is his advocacy for the poor. This advocacy was part of King’s philosophy of fighting what he called the “triple evils” of racism, poverty and militarism, which stood as barriers to what he described as the “Beloved Community.” Many recall that King went to Memphis before his assassination in April of 1968 to support a group of sanitation workers who were striking over unfair wages and working conditions. Fewer remember the extent to which King’s focus shifted in the final years of his life to the condition of the underprivileged and plans for the Poor People’s Campaign. King saw it as a part of his ministry to combat poverty, writing that “[n]o individual or nation can be great if it does not have a concern for ‘the least of these.’” Today, 15 percent of Americans, roughly 46.5 million people, are stuck living at or below the poverty line. In Texas, 17.2 percent, or over 4.4 million, live in poverty. To be sure, the causes of poverty are varied and the poverty rate is affected by both national conditions and global economic forces beyond the control of any individual. But Dr. King’s message was for each of us to consider what we can do to address the effects of poverty and improve the condition of the poor. Individually and collectively, our efforts can produce positive change. The Martin Luther King, Jr. federal holiday is the only federal holiday observed as a national day of service. It has been called “a day on, not a day off.” We should all try to honor the legacy of Dr. King by volunteering for service in some way, whether it be working at a food bank, cleaning an area park, or mentoring a student. However, as lawyers, we are able to help address the vast unmet legal needs of the poor. The Dallas Bar Association has a proud tradition of working to meet those needs. Last year the Dallas Volunteer Attorney Program closed more than 4,500 cases and Dallas lawyers donated almost 20,000 hours of service to the poor. Lawyers like you who volunteer to take a case through the DVAP program have helped stop unjust evictions, fight deceptive business practices, and keep abusive spouses away. Each of these things can help remove barriers that prevent poor people from building a better life and climbing out of poverty. We are justly proud of this record of service. But there is more to do. DVAP still has to turn away too many clients because cases cannot be placed. Volunteering for DVAP service is easy. You can staff an intake clinic or volunteer to take a case by contacting DVAP through the Dallas Bar’s website. You may also choose to serve the community in some other way. Whatever we do, Martin Luther King Day is a chance to start the year off right by recommitting ourselves to the nation by serving each other and HN our communities.
COME TO THE INAUGURAL OF SCOTT M. McElhaney
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Hotel Packages to Adolphus, Le Meridien, Omni Mandalay, Ritz‐Carlton, W Dallas and more
A Night in The Kitchen with Abacus Chefs
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Collec�on of men’s neck �es by Stanley Korshak
And much more!
Get your tickets now for the Inaugural, Saturday, January 11, at The Westin Galleria Hotel | www.dallasbar.org
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: Scott M. McElhaney President-Elect: Bradley C. Weber First Vice President: Jerry C. Alexander Second Vice President: Rob Crain Secretary-Treasurer: Audrey Moorehead Immediate Past President: Sally L. Crawford Directors: Tatiana Alexander (President, J.L. Turner Legal Association), A. Shonn Brown (At-Large), Wm. Frank Carroll, Laura Benitez Geisler, Hon. Martin Hoffman, Michael K. Hurst, Krisi Kastl, Michele Wong Krause, Meyling Ly (President, Dallas Association of Young Lawyers), Karen McCloud, Sakina Rasheed (President, Dallas Asian American Bar Association), Mary Scott, Scott Stolley, Diane M. Sumoski, Robert L. Tobey, Aaron Tobin and Elisabeth A. Wilson (President, Dallas Hispanic Bar Association) Advisory Directors: Jonathan Childers (President-Elect, Dallas Association of Young Lawyers), Monica Lira (President-Elect, Dallas Hispanic Bar Association), Bill Richmond (President-Elect, Dallas Asian American Bar Association) and Ebony Rivon (PresidentElect, J.L. Turner Legal Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Lawrence Boyd, Wm. Frank Carroll, Andy Payne, Florentino A. Ramirez and Ike Vanden Eykel HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Display Advertising: Deni Ackerman, Tina DeRobertis, Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Dawn Fowler and Jared Slade Vice-Chairs: Paul Clevenger and Meghan George Members: Timothy Ackermann, Vincent Allen, Natalie Arbaugh, Benjamin Barmore, Joi-lee Beachler, Martha Beard-Duncan, Lisa Blackburn, Jason Bloom, Eric Blue, Leigh Bradford, Bobby Braxton, Kandice Bridges, Kelsey Brock, Sara Ann Brown, John G. Browning, Casey Burgess, Eliot Burriss, Stacie, Cargill, Nancy Carroll, Lance Caughfield, Julie Chandler, Joel Crouch, Walter Dean, Lea Dearing, David Dodds, Adam Dougherty, Brandon Duck, Christopher Elam, Alexander Farr, J. Martin Futrell, Jenny Givens, Jennifer Gjesvold, Andrew Gould, James Gourley, Nadia Haghighatian, Susan Halpern, William Hammel, Jordan Harrison, Jeremy Hawpe, John Herring, Zachary Hilton, Kelli Hinson, Tyler Hokanson, Alison Hollender, Mary Louise Hopson, Mandy Jenkins, Soji John, Cynthia Jon-Ubabuco, Yoon-Joo Jung, Tiffany Kamuche, Nicholas Kennedy, Adam Kielich, Michelle Koledi, Matthew Kolodoski, Susan Kravik, Norman Lofgren, Sixuan Lu, Margaret Lyle, Ashley Mason, Andrew Mayo, Jennifer McCollum, Christina McCracken, R. Sean McDonald, Scott McElhaney, Elizabeth “Jodi” McShan, John McShane, Michael Merrick, Christopher Meuse, Aaron Michelsohn, Wendy Mills, Constance Mims, Ethan Minshull, Paige Montgomery, Caitlin Morgan, Hon. Jim Moseley, Terah Moxley, Derek Neilson, Nick Nelson, Christopher Norcross, David Parham, Murali Pasupulati, Seth Phillips, Keith Pillers, Amiee Pingenot, Kirk Pittard, Irina Plumlee, Laura Anne Pohli, Ellen Pryor, Gabriel Reyes, Edward Rice, Morgan Richards, David Ritter, Carl Roberts, Richard Salgado, Joshua Sandler, Brandon Schwarzentraub, Calvin Scott, Ifeyinwa “Ify” Seales, Isabel Segarra, Micah Skidmore, Crystal Smith, Phillip Smith, Bradley Smyer, Yon Sohn, Thad Spalding, Timothy Springer, Jacob Stasny, Cori Steinmann, John Stevenson, Scott Stolley, Brian Stork, Amy Stowe, Billye Summers, Kristopher Tate, SaKinna Thomas, Pryce Tucker, Brent Turman, Peter S. Vogel, Bradley C. Weber, Suzanne Westerheim, Elisabeth Wilson and Andrew Wirmani DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Coordinator: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Kimberlynn Taylor Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Marisol Guzman, Andrew Musquiz, Carmen Perales Program Assistant: Patsy Quinn Copyright Dallas Bar Association 2014. 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 firstname.lastname@example.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. 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Janua ry 2 0 1 4
D al l as Bar A ssoci ati on l Headnotes 5
Marilea Lewis* Managing Shareholder Chief Operating Officer
Poised for the Future Donald E. Godwin, and the shareholders, attorneys and staff of Godwin Lewis PC, are proud to announce Marilea Lewis as Managing Shareholder and Chief Operating Officer of the firm. Marilea’s many years on the bench, professionalism and commitment to her clients combine to make her uniquely qualified for this significant position of leadership and responsibility. Godwin Lewis is poised for continued growth and welcomes the chance to promote diversity and opportunity for all. *Board Certified in Family Law by the Texas Board of Legal Specialization
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6 H e a d n o t e s l D a l l a s B a r A s s o ciation
New Sister Bar Presidents Set High Bar for 2014 by Yoon-Joo Jung and Bradley M. Smye
The Dallas Bar Association is proud to introduce the new presidents of its sister bar organizations and looks forward to supporting their goals for 2014. Sakina Rasheed will serve as president of the Dallas Asian American Bar Association (DAABA). Ms. Rasheed is an associate at Haynes and Boone, LLP, where she focuses her practice on representing financial institutions and borrowers in commercial loan transactions. Ms. Rasheed graduated from Southern Methodist University cum laude and the University of Texas-Austin School of Law. Ms. Rasheed first became involved in DAABA in 2008, when she helped organize a Career Night for law students, and since that time has served as co-chair of the Program Committee and the Service Committee and as a director of DAABA. For 2014, Ms. Rasheed is committed to hosting charitable and service projects that benefit the greater Asian-American community in DFW. For example, DAABA has partnered with local non-profit organizations that support refugees in their search for employment and Southeast Asian women who are victims of domestic violence. She is also committed to expanding the DAABA mentorship program to provide practicing attorney mentors for both law students and new attorneys. Tatiana Alexander will serve as president of the J.L. Turner Legal Association (JLTLA). As a commercial litigation associate at McGlinchey Stafford PLLC, Ms. Alexander represents clients in consumer financial services disputes and commercial litigation. She graduated cum laude from the University of Houston, received her J.D. from
Meyling (Mey) Ly
Texas Wesleyan University School of Law, and received an L.L.M. from SMU Dedman School of Law. Ms. Alexander became involved in JLTLA during her first year of law school and has since served in a number of capacities, including vice president, co-chair of the Dallas Black Women Attorneys Committee and chair of the JLTLA 60th Anniversary Celebration Committee. One of Ms. Alexander’s goals for 2014 is to expand JLTLA’s pipeline diversity initiative to include elementary school students. Ms. Alexander firmly believes that connecting with students at an early age will help motivate them to succeed academically and eventually increase attorney diversity. Meyling (Mey) Ly will serve as president of the Dallas Association of Young Lawyers (DAYL). Ms. Ly is a labor and employment associate at Littler Mendelson P.C., where she focuses her practice on matters involving Title VII of the Civil Rights Act, the Americans with Disabilities Act and the Occupational Safety and Health Act. Ms. Ly received the Jo Anna Moreland Outstanding Committee Chair Award from the Dallas Bar Association for her
work with the Community Involvement Committee in 2010, and is a former board member of DAABA and the DFW chapter of the National Association of Asian American Professionals, which she co-founded in 2011. She graduated cum laude from both Texas A&M University and SMU Dedman School of Law. Ms. Ly began participating in DAYL in 2006 as a member of the DAYL Leadership Class. She joined the DAYL board in 2008, and has since founded and chaired the Attorneys Serving Troops Committee, co-chaired the Membership Committee, and served as board liaison to the Animal Welfare and Generation Generosity committees. In 2014, Ms. Ly will focus on supporting young lawyers in transition and on business development for young lawyers. She is also excited to co-host a free legal advice clinic with sister bars, which she believes will not only provide much-needed service to the community, but also further unite the sister bars. Elisabeth Wilson will serve as president of the Dallas Hispanic Bar Association (DHBA). Ms. Wilson is an associate at Winstead PC, where she practices commercial litigation. She previously
served as a briefing attorney for Justice Douglas S. Lang and as a judicial clerk for Judge Jane J. Boyle. Ms. Wilson graduated magna cum laude from the University of Southern California and cum laude from SMU Dedman School of Law, where she was a Sarah T. Hughes Diversity Scholar and Editor-in-Chief of the Computer Law Review and Technology Journal. Ms. Wilson has been active in DHBA since she was in law school. She has served as Law Student Committee cochair, DHBA representative on the DAYL Board, director, vice president and now president-elect. As the daughter of a Mexican immigrant, Ms. Wilson is passionate about helping the Latino community in DFW. For 2014, she plans to expand DHBA’s diversity pipeline initiatives with programs that expose school children to positive role models in the local legal community. Ms. Wilson also plans for DHBA to serve the broader community through a domestic violence awareness program in HN Spanish. Yoon-Joo Jung is an attorney at DLA Piper LLP and can be reached at email@example.com. Bradley M. Smyer is an attorney at DLA Piper LLP and can be reached at firstname.lastname@example.org.
Scott M. McElhaney Inaugurated as DBA’s 105th President continued from page 1
teach employment law and legal research and writing at SMU’s Dedman School of Law and earned him regular recognition as a Texas “Super Lawyer” by Thompson Reuters, one of the “Best Lawyers in America” for commercial litigation and Labor and Employment Litigation, and a Best Lawyer in Dallas by D Magazine. “Scott’s a fabulous lawyer with an incredibly diverse practice,” effuses the head of Jackson Walker’s Trial Section, Retta A. Miller, who noted his labor and employment bona fides while touting Scott’s trial, class action and appellate victories for a title insurer as exemplifying his commercial litigation successes. “He possesses a great understanding of the law and legal strategy and has proven himself a great partner and colleague with whom to practice law.” Scott first served the DBA in a leadership role in 2005. After co-chairing the Judiciary Committee that year, he
subsequently led the Business Litigation Section, Bench Bar Committee and the Admissions and Membership Committee. In 2009, Scott oversaw the collection of a then-record $596,000 in contributions for the Campaign for Equal Access to Justice, the joint fundraising effort of the DBA and Legal Aid of NorthWest Texas that supports the Dallas Volunteer Attorney Program, which provides free civil legal aid to the poor in Dallas County. He was elected to the DBA’s Board of Directors in 2006 and re-elected both in 2008 and 2010. After chairing the Board in 2010, he has served as the First and Second Vice President of the DBA. “I have loved serving the DBA,” Scott said. “It is amazing to see what our members contribute to the community.” In particular, he appreciates “getting to see all the exciting work the committees and sections do.” Fortunately, both his firm, Jackson Walker, and his clients have encouraged
Scott’s contributions to the Bar and, in Scott’s words, “appreciate my giving back to the community.” Ms. Miller echoed Scott’s sentiments, “We at Jackson Walker are absolutely committed to supporting the Bar, from encouraging Scott and others to serve in leadership roles to being active in pro bono. We are pleased and proud that Scott is being recognized for his efforts by being elected President.” Service and educational opportunities define Scott’s vision for his term as President. “First, I want to continue [DBA’s immediate past President] Sally Crawford’s focus on members taking on pro bono work.” For Scott, that means not only raising money to support DVAP, but also convincing members to take cases. “We need people to take cases, especially ones that might be more complicated,” Scott said before adding, “Those are the cases that can be the best training for more junior lawyers.” Second, Scott plans for the DBA to have a series of events to commemorate
the 50th Anniversary of the Civil Rights Act of 1964. He was excited by the coincidence of the anniversary of the passage of the law and his term, especially given his law school extracurricular activities. He hopes to focus not only on the law’s importance, but the challenges of implementing the law and how the legal system was used to establish a more equal society. Scott encourages all DBA members to get more involved. Members can enjoy (or lead) the easy, free CLE, take “the short leap to joining a section for professional development,” and commit to one or more of “an array of volunteer opportunities that allow our members to give back from Legalline to Christmas in July to Habitat for Humanity to working at one of the numerous clinics to taking a HN case through DVAP.” Jared M. Slade is a Senior Associate at Alston & Bird LLP and Co-Chair of the DBA Publications Committee. He can be reached at Jared.Slade@alston.com.
ABA Publication Discount For DBA Members Dallas Bar members can purchase ABA books at a 15% discounted rate. For a complete list of titles or to place an order, visit www.ababooks.org. Enter code “PAB7EDBA” upon checkout and the 15% discount will be automatically applied to your order. Discount does not apply to ABA-CLE iPod products. For assistance, call (312) 988-6112.
J anu a ry 2 0 1 4
D al l as Bar A ssoci ati on l Headnotes 7
Connatser Family Law Donates $15,000 to DVAP Campaign by Alicia Hernandez
Aubrey Connatser, Managing Member of Connatser Family Law, has supported pro bono legal aid since law school, and has now demonstrated her commitment to pro bono through a $15,000 gift to the Equal Access to Justice Campaign benefiting the Dallas Volunteer Attorney Program (DVAP). “Family lawyers like Aubrey are critical to DVAP’s success,” said Scott McElhaney, Dallas Bar Association President. “DVAP has great support from the DBA’s Family Law Section, but we always need more family lawyers who can take the difficult family law cases and run with them. Aubrey is a great example of what we need for DVAP.” In law school, Aubrey participated in the University of Texas Domestic Violence Clinic and volunteered at the Travis County Child Advocacy Center. After graduation in 2001, she immediately became involved with pro bono legal aid to the poor through the Dallas Volunteer Attorney Program, where she represented family law clients, helped recruit and train volunteers, and mentored other lawyers on their pro bono family law cases. Aubrey has also served as a Co-Chair of the Dallas Bar Association’s Pro Bono Activities Committee, further imparting her knowledge and enthusiasm for both pro bono legal services and family law to the Dallas legal community. Earlier this year, Aubrey opened Connatser Family Law. The firm provides representation in divorce, child custody and visitation, paternity, complex property settlements, premarital agreements, modifications and collaborative law. The firm supports pro bono legal aid to the poor, and its law-
yers are also involved with other nonprofits that help families and children in Dallas, including The Family Place, Big Thought and Big Brothers and Big Sisters. “Having access to family law attorneys is very important to DVAP clients,” said Shonn Brown, Co-Chair of the Equal Access to Justice Campaign. “While many DVAP family law cases are straightforward, others have complicated custody and visitation disputes or involve domestic violence. Family law experts make a huge difference in the lives of these clients and their children.” Aaron Tobin, Co-Chair of the Campaign agrees. “Access to justice, whether through legal advice and counsel or going to court, is very important to the vitality of our community. People who cannot afford lawyers are lost
in our justice system. Knowing your legal rights and having an advocate helps build everyone’s trust in our legal system, and DVAP, with the support of donors like Aubrey Connatser, is going a long way to build that trust.” DVAP, a joint pro bono program of the Dallas Bar Association and Legal Aid of NorthWest Texas, recruits and trains volunteer attorneys to represent clients on a variety of civil matters, including consumer, housing, landlordtenant and probate cases. However, its caseload is overwhelmingly family law with varying levels of difficulty. To meet this demand, DVAP places pro bono cases with volunteer attorneys and provides those volunteers with mentoring and training. DVAP also has a very successful Pro Se Program, offered in both English and Spanish, through which staff and volunteers help clients handle their own family law cases. Earlier this year, DVAP, with the support of the Dallas Civil Courts, started a Pro Se Intake Clinic at the George Allen Courthouse to increase its outreach to the community. DVAP and the Dallas Civil Courts have also partnered for nearly 18 years to hold “night court” once a month to finalize uncontested family law cases for both pro se litigants and volunteer attorneys. In addition, DVAP and the Dallas Bar Association’s Family Law Section collaborate to host CLE programs and promote pro bono opportunities to all members of the Dallas legal community. To learn more about the program and volunteer, contact Alicia Hernandez at HN email@example.com. Alicia Hernandez is the director of the Dallas Volunteer Attorney Program and the DBA director of community services. She can be reached at firstname.lastname@example.org.
THANK YOU TO OUR MAJOR DONORS! The Dallas Bar Association and Legal Aid of NorthWest Texas thank all of the sponsors of our Equal Access to Justice Campaign benefitting the Dallas Volunteer Attorney Program. Please join us in recognizing and thanking the following for their generous gifts to the Campaign*:
CHAIRMAN’S COUNCIL ($25,000) Anonymous Crain ♦ Lewis, L.L.P. Hon. Deborah G. Hankinson Payne Mitchell Law Group L.L.P.
AT&T Anderson Tobin PLLC Connatser Family Law Gruber Hurst Johansen Hail Shank LLP Slack & Davis LLP
Andrews Kurth Baker Botts, L.L.P. Deans & Lyons, LLP Exxon Mobil Corporation Gardere Wynne Sewell LLP Godwin Lewis PC The Hartnett Law Firm Haynes and Boone Foundation Jackson Walker L.L.P. Jones Day KoonsFuller Locke Lord L.L.P. Mike & Erin McKool Sidley Austin L.L.P. Simon, Greenstone, Panatier & Bartlett, P.C. Thompson & Knight Foundation Vinson & Elkins LLP *Donors as of press time.
Akin Gump Strauss Hauer & Feld LLP Jerry C. Alexander Baker & McKenzie LLP Baron & Budd, PC Bloom Strategic Consulting Bracewell & Giuliani LLP Business Litigation Section Carrington, Coleman, Sloman & Blumenthal, L.L.P. Carter Stafford Arnett Hamada & Mockler Dallas Association of Young Lawyers Elrod PLLC Energy Future Holdings, Luminant & TXU Energy Cheryl A. Engelmann Estes Okon Thorne & Carr PLLC Fish & Richardson Gibson, Dunn & Crutcher LLP Hartline Dacus Barger Dreyer LLP Holland & Knight LLP Husch Blackwell LLP Mark & Laurie Johansen Jordan, Houser & Flournoy K&L Gates Norton Rose Fulbright Patton Boggs LLP Tax Law Section
To donate, contact Alicia Hernandez, email@example.com. For more information about the Campaign see www.dallasbar.org/dvapcampaign. The severe recession has hit poor people especially hard. More than 600,000 people in Dallas County qualify financially for DVAP’s help.
8 He a d n o t e s l D a l l a s B a r A s s o ciation
Labor & Employment Law
DOL Enforcement On Employee Misclassification by Courtney Barksdale Perez and Stacey Cho
Since announcing its Misclassification Initiative in September 2011, the U.S. Department of Labor (DOL) continues to make employer compliance with the Fair Labor Standards Act (FLSA) a top priority, with particular focus on the misclassification of employees as independent contractors. In July 2013, the DOL confirmed its commitment to the Misclassification Initiative, characterizing employee misclassification as “workplace fraud.” From the DOL’s perspective, misclassification deprives the government of valuable tax and unemployment insurance revenue. As part of the Misclassification Initiative, the DOL works closely with other agencies including the IRS to share information in a coordinated effort to reduce employee misclassification. The DOL has also initiated Memoranda of Understanding with 14 states (excluding Texas) to uncover and remedy misclassification. The Misclassification Initiative has dramatically changed wage and hour litigation and increased the number of FLSA cases filed across the country. Since the Misclassification Initiative was launched, the number of FLSA cases filed in the federal courts increased 27.8 percent from 6,336 in 2011 to 8,152 in 2012. As such, misclassification issues provide fertile soil for individual actions and collective actions filed by similarly classified workers. These cases are proving profitable for plaintiff’s attorneys and the DOL. The Wage and Hour Division (WHD) has collected more than $9.5 million for 11,400 misclassified workers since 2011, reflecting an 80 percent increase in back wages
paid and a 50 percent increase in the number of workers receiving back wages. The DOL shows no signs of curbing its enthusiastic enforcement efforts, setting aside $10 million of its FY 2013 budget to detecting and deterring employee misclassification. This focus has also influenced legislation. At the federal level, lawmakers have proposed the Employee Misclassification Act, Payroll Fraud Prevention Act, Fair Playing Field Act, Rebuild America Act, and the Independent Contractor Tax Fairness and Simplification Act addressing misclassification issues. Most recently, the DOL proposed a $1.9 million survey of more than 10,000 workers to explore the extent of misclassification by gauging workers’ awareness of employment laws, job classifications, rights and benefits associated with their job status and the consequences of being misclassified as an independent contractor. The DOL hopes that the results will support its proposed “Right to Know” regulations that would change the FLSA recordkeeping requirements to require employers to expressly inform workers of their work status and how their pay is computed. At the state level, in July 2013, Governor Rick Perry signed House Bill 2015, which establishes penalties for those who misclassify employees as independent contractors on state contracts. The law was passed after a study conducted by the University of Texas revealed that 40 percent of construction workers in Texas were misclassified as independent contractors. Like the construction industry in Texas, the WHD is focused on industries that historically have employed vulnerable workers, including transportation and warehousing, agriculture, home health-
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care, childcare, janitorial, meat and poultry processing, hotel/motel, personnel services, landscape, restaurants, catering, guard services and healthcare facilities. Employers, and those who represent them, should carefully evaluate employee classification. Review the treatment and classification by each group and ensure consistent treatment of those providing similar services to avoid expensive FLSA collective actions. If a court must decide the issue, the Fifth Circuit applies the Economic Realities Test to determine whether an individual is an employee or independent contractor, and therefore not covered under the FLSA. The factors include: (1) degree of control exercised by the employer; (2) extent of the relative investments of the worker and
the employer; (3) degree to which the worker’s opportunity for profit or loss is determined by the employer; (4) skill and initiative required in performing the job; and (5) permanency of the relationship. This determination is not always clear, and no single factor controls, but a wellwritten agreement that speaks to these factors can help establish an independent contractor relationship. These steps can minimize exposure by ensuring that the relationships between employers and workers are properly structured, docu HN mented and implemented. Courtney Barksdale Perez is Of Counsel and Stacey Cho is an Associate at Carter Stafford Arnett Hamada & Mockler, PLLC, and can be reached at firstname.lastname@example.org or scho@ carterstafford.com, respectively.
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D al l as Bar A ssoci ati on l Headnotes 9
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10 H e a d n o t e s l D a l l a s B a r A s s o ciation
Labor & Employment Law
A Tale of Two Statutes: Employee Leave Under the FMLA and the ADA modations to qualified individuals with “disabilities.” In certain circumstances, leave can be a reasonable accommodation under the ADA. When an employee needs leave due to a personal health condition, employers covered by both the FMLA and the ADA need to consider both statutes. For example, Company has 100 employees, meaning both the FMLA and the ADA apply. Edward Employee, a qualified individual under the ADA, meets the eligibility requirements of the FMLA. One day, Edward tells Company he needs 14 weeks off work for personal health reasons. How should Company proceed? Both statutes provide methods for Company to evaluate the nature of Edward’s health condition. Under the FMLA, Company can require Edward to submit a medical certification from a healthcare provider. However, Company can only make medical-related inquiries that are job-related and consistent with
by Susan E. Hannagan and Terah Moxley
On the heels of securing multi-million dollar consent decrees in two suits against nation-wide employers regarding no-fault absence policies, the Equal Employment Opportunity Commission (EEOC) remains focused on these policies as part of its strategic enforcement initiatives. Consequently, employers— and their counsel—must have a working knowledge of two statutes that can overlap when employees need leave due to personal health issues—the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). The FMLA applies to private employers with 50 or more employees and allows eligible employees to take up to 12 weeks of leave per year for their own “serious medical condition,” among other things. The ADA applies to private employers with 15 or more employees and requires employers to provide reasonable accom-
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business necessity under the ADA. Let us assume this process leads to the conclusion that Edward’s health condition is both a “serious medical condition” under the FMLA and a “disability” under the ADA. What now? Due to his FMLA eligibility, Edward automatically qualifies for 12 weeks of leave. And since leave can be a reasonable accommodation under the ADA, Company should probably give Edward the additional two weeks of leave he needs unless this would cause Company an undue hardship. (It is always the employer’s burden to prove undue hardship under the ADA, and financial hardships rarely suffice.) Thus, in most circumstances the reasonable accommodation requirements of the ADA will prohibit Company from terminating Edward’s employment upon the exhaustion of his FMLA leave. In addition, because Company is covered by both laws, it should examine its leave policies in light of its ADA obligations. Policies that provide for automatic termination after employees miss a specified amount of work—known as no-fault absence policies—are enticing fodder for the EEOC and should include exceptions for ADA and FMLA leave. Analyzing Edward’s need for leave under both the FMLA and the ADA at the outset is important because it impacts the job Company must leave open for Edward and outlines the return-to-work process once Edward’s leave ends. First, leave under both acts is job-protected leave. However, under the FMLA, Company can return Edward either to the same job he held when his leave
commenced or to an equivalent one. However, according to the EEOC’s interpretation, the ADA requires Company to return Edward to the same job unless this would cause an undue hardship. Only then could Company consider returning Edward to an equivalent position. Next, when Edward returns to work, the FMLA and ADA call for different procedures. Under the FMLA, Company can usually only require Edward to submit a return-to-work certification from a healthcare provider if such a requirement is listed in its policies and if Company told Edward such a certification would be required when designating his leave as FMLA leave. By contrast, the ADA allows Company to send Edward for a fitness-for-duty exam if it has a reasonable belief that Edward’s present ability to perform his essential job functions are impaired by his medical condition and if the exam is job-related and consistent with business necessity. In sum, while the overlap of the FMLA and the ADA can cause headaches for even the most sophisticated employers, analyzing the requirements of both at the outset of any medical-related leave can help the process proceed smoothly. Additionally, maintaining an informal dialogue with employees throughout such leave, as encouraged by the EEOC, can help ensure that all parties have a good grasp on the situation and an understanding of each party’s expectations and HN requirements. Susan E. Hannagan and Terah Moxley are associates at Estes Okon Thorne & Carr PLLC and can be reached at shannagan@ estesokon.com and firstname.lastname@example.org, respectively.
High School Mock Trial Competition – Judges Needed! Help judge the Texas High School Mock Trial Competitions this January, February and March 2014! A variety of dates and times are available. Earn self-study CLE credit. Food and Beverages will be provided! To register, visit www.dallasbar.org/mocktrialjudges or contact email@example.com
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Dal l as Bar A ssoci ati on l Headnotes 11
Labor & Employment Law
Strategies for Recognizing and Avoiding Workplace Violence by Kevin S. Mullen
Roughly 20 percent of violent crime occurs in the workplace, resulting in two million worker injuries annually. Although workplace violence incidents, such as the recent Navy Yard shootings in which 12 people were killed, have received extensive media attention, most employers have no formal plan for addressing this threat. Employee injuries and fatalities are not the only consequences of workplace violence: workplace fatalities attributed to violence are estimated to cost employers $800,000 per incident. Although the stakes are high, many employers live in denial of the potential for violence in their own workplaces. Employers that ignore the potential for workplace violence imperil employees (and customers) and risk substantial liability. The Occupational Health and Safety Administration has instructed its field compliance officers to consider issuing citations for failing to maintain workplaces “free from recognized hazards that... are likely to cause death or
serious physical harm” when employers fail to recognize potential workplace violence hazards. Almost invariably, when employees (or patrons) are killed or injured in a workplace violence incident, the employer is sued for negligence, and multi-million dollar verdicts and publicly-reported settlements abound. While employers with workers’ compensation may be protected from employee claims, exemplary damages can be recovered by survivors if gross negligence is proven, and there is no protection from claims by injured customers or third parties. Moreover, defending such claims is an expensive, high stakes proposition. Prudent employers can minimize threats to employees and customers while insulating themselves from liability by implementing plans to prevent and address workplace violence. First, establish a “zero tolerance” policy for workplace violence that includes a robust reporting component encouraging employees to “see something—say something,” assures employees that concerns will be promptly investigated,
2013 DBA President Recognized
and prohibits retaliation for good faith reports of threatening conduct. Second, supervisors and managers should be trained to spot early warning signs and report such signs rather than assuming an employee is “just blowing off steam” or “going through a tough time at home.” In the aftermath of nearly every workplace violence incident, investigators discover many warning signs that were overlooked by the perpetrator’s co-workers or supervisors. Third, assess the work environment itself, increase security measures if necessary, and educate employees on responding to a workplace violence scenario. Do the customers your company services have a propensity for violent conduct? If so, consider installing a “panic button” device by which security can be quickly and silently summoned. Are your premises and employee parking lots well lit? Are there multiple entrances, and, if so, how are they secured? What is your stance on guns in the workplace? If you wish to prohibit guns in Texas, you must comply with the posting requirements of Section 30.06 of the Texas Penal Code (but employees still maintain the right to keep a firearm and ammunition inside a locked personal vehicle). Provide training to all employees on the actions they should take if an active shooter enters the workplace. An excellent resource is the City of Houston/Homeland Security produced video, “Run, Hide, Fight,” which can be accessed at www.youtube. com/watch?v=5VcSwejU2D0. Fourth, before an incident ever arises, employers should assemble a standing threat assessment and response team. This team should consist of permanent members (typically a company leader,
human resources professional, experienced in-house or outside legal counsel, security professional/law enforcement liaison, threat assessment professional, and public relations advisor) and be augmented with incident-specific members (i.e., the threatening employee’s supervisor). Having this team in place before an incident saves valuable time and promotes a cohesive, multi-faceted, effective response strategy. While attempting to maintain a violence-free workplace, employers must be careful not to violate employmentrelated laws. Although an employer may understandably wish to screen out job applicants who have prior criminal convictions, it must ensure that background check procedures comply with the Fair Credit Reporting Act and that background checks are not disproportionately affecting minority applicants (a topic of recent high-profile suits by the EEOC). Frequently, employees who engage in threatening behavior suffer from psychological disorders, which may shield them from discipline under the Americans with Disabilities Act. And, even an employer with the best of intentions may find itself on the wrong side of a defamation or invasion of privacy suit if false or private information about an employee is provided to third parties. Although no employer can completely eliminate the threat of workplace violence or the litigation it spawns, careful planning can significantly mitigate these risks, and, more importantly, HN save lives. Kevin S. Mullen is a shareholder at Littler Mendelson, PC, and Treasurer of the DBA Labor & Employment Law Section. He can be reached at firstname.lastname@example.org.
Keep up with the Dallas Bar Association online: www.dallasbar.org
Sally Crawford, DBA’s 2013 president, was recognized by the Board of Directors with an oil painting of The Belo Mansion by Texas artist Jerral Derryberry. Mr. Derryberry’s work is currently represented and sold in fine art galleries and national exhibitions. More of his work can be seen at www.jerralderryberry.com.
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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 s s o ciation
Labor & Employment Law
Piercings, Tattoos, Make-Up and the Changing Face of Employment Law by Michael R. Buchanan and Janet Landry
Beginning in the 1960s, Congress passed a series of employment laws based upon what would be considered immutable characteristics—an applicant/employee was either male or female, a member of a particular race/ethnic group, a member of a recognized religious group or nonreligious. Employment litigation focused on how individuals fit within a protected category and how the employer treated them in the workplace. It is a new century and the “face” of employment law has changed. In increasing numbers, individuals sporting tattoos, piercings, make-up, jewelry and hairdos worthy of Captain Jack Sparrow, Boy George and the Girl with the Dragon Tattoo are applying for jobs. These applications pose the question of whether an employer is free to make employment decisions on physical appearance issues that arguably are matters of personal choice (rather than an immutable, legally protected
characteristic). The answer is one that frustrates employers who want bright lines to follow: it depends. In the private sector, inventive employees are advancing religious and gender-based arguments seeking legal protection for appearance. An illustrative case is Swartzentruber v. Gunite Corp., 99 F. Supp. 2d 976 (N.D. Ind. 2000). Mr. Swartzentruber proved ultimately unsuccessful in convincing the trial court that his membership in the “Church of the American Knights of the Ku Klux Klan” entitled him to display the “Fiery Cross” tattooed on his arm. Mr. Swartzentruber alleged that the “Fiery Cross” was one of seven sacred symbols of his religion. Rather than struggle with the difficult issue of “what is a sincerely held religious belief,” the Court held that requiring Swartzentruber to cover his tattoo did not unduly infringe upon the practice of his religion and that this accommodation served his employer’s interest in promoting harmonious race relations in the workplace. An opposite result was obtained in a law-
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2014 INAUGURAL OF Scott M. McElhaney
suit brought against the Red Robin Restaurant company. The employee claimed to be a follower of the “Kemetic” religion, a modern practice of ancient Egyptian traditions. At issue were two tattoos on the employee’s wrists, written in the Coptic language. Translated into English, the tattoos said: “My father Ra is Lord. I am the son who exists of his father. I am the father who exists of his son.” Red Robin terminated the employee after he refused to cover his tattoos. In the resulting lawsuit filed by the EEOC, the Court denied Red Robin’s summary judgment motion holding that it failed to demonstrate that an exception to its “no tattoo or piercings” policy would create undue hardship for the company. The case later settled for $150,000. Why did Mr. Swartzentruber lose and Ra’s son win? These two cases illustrate that outcomes are inherently fact specific. Mr. Swartzentruber’s tattoo arguably could offend customers, vendors and co-workers, and covering the tattoo did not restrict the “practice” of his religious belief (e.g. there was no contention that his religion dictated that the tattoo be displayed). In contrast, Red Robin’s argument was undermined when its CFO was quoted as saying the company had “Christian” values and sought out “that allAmerican kid from the suburbs” for its server positions, not those with “that urban kind of experience.” The CFO’s comments created a fact issue as to whether religious or race discrimination played a role in the employee’s termination. The religious claims of Mr. Swartzentruber and Ra’s son are mirrored in a growing body of case law devoted to claims of “gender stereotyping.” Men are suing for the right to wear make-up and jewelry, women for the right to forego workplace obligations “to
look feminine.” As with religious challenges to appearance issues, outcomes are exceedingly fact specific. In a large number of cases, tattoos and piercings do not implicate religious or gender issues. In a handful of cases, the same appearance issues may trigger legal protection. Employers have a better chance of prevailing if they follow some common-sense rules: 1. If your company has a “brand” that requires a certain appearance—especially for those who interact face-to-face with the public—incorporate reference to the brand into your appearance and dress code. 2. Adopt appearance and dress code policies phrased in support of tolerance, diversity and nondiscrimination; 3. When issues arise, make individual assessments. A tattooed employee might be okay in a Buzz Lightyear costume at a Disney Theme Park and not okay as a server at the Disney Malt Shop; 4. In general, asking an employee to remove body piercing paraphernalia, or to cover tattoos, is a reasonable accommodation, especially if the tattoo or piercing is capable of communicating a message at odds with the employer’s commitment to tolerance and diversity; 5. Gender stereotyping claims require careful analysis. Do not treat them lightly; 6. When Captain Jack applies for that receptionist position, do not knee-jerk the response. Consider seeking legal advice. Counsel can help you ask the right questions to determine if a legally protectable right has HN been implicated. Mike Buchanan is a Shareholder with Ogletree Deakins and can be reached at Michael.Buchanan@ogletreedeakins.com. Janet Landry is a second-year law student at the SMU Dedman School of Law where she is a member of the school’s Labor and Employment Mock Trial Competition Team.
Park Place Motorcars Dallas Ticket to Drive Raffle ...Winner receives 2014 Mercedes-Benz CLA-Class
At The Westin Galleria Dallas
Saturday, January 1 1, 2014 The Dallas Bar Association will inaugurate its 105th President, Scott M. McElhaney at the inaugural ball on Saturday, January 11. The black-tie ball will include dinner, dancing to music by the band New Ground and silent and live auctions.
Cocktails 6:30 p.m. | Dinner 7:30 p.m. Tickets $150; Tables $1,500 | Judiciary $100 To reserve your ticket, contact Shawna Bush at (214) 220-7453 or firstname.lastname@example.org. Visit www.dallasbar.org for more information!
Runner-Up Receives: Key West Marriott Beachside Hotel 4-Night Stay with Rental Car and Airfare for 2 Raffle tickets are $100 each — or 6 tickets for $500. Proceeds benefit the Dallas Volunteer Attorney Program, which provides legal services to the less fortunate in our community. No more than 1,500 tickets will be sold. Purchase raffle tickets online at
www.dallasbar.org/dvap/raffle.asp or at the DBA offices at the Belo Mansion (2101 Ross Avenue, Dallas, TX 75201). Drawing will be held at the DBA Inaugural Ball on January 11, 2014. The winner need not be present to win. The winner is responsible for all taxes, title and licensing. Prize is non-transferable. No cash option is available.
Janua ry 2 0 1 4
D al l as Bar A ssoci ati on l Headnotes 13
Labor & Employment Law
Handcuffed: Laws Limit Employers’ Use of Background Reports by Audrey Mross
Employers using criminal and credit history contained in background checks when making hiring and other employment decisions may be surprised to learn that legislators and regulatory agencies may have handcuffed their ability to do so. Rationales for these limits include data showing use of such criteria has a disproportionately negative impact on protected class members, the stark statistic that one in three adult Americans have an arrest or conviction record and the havoc wreaked on many individuals’ credit rating by a weak economy. Limits on using arrest and conviction reports evolved over time. The Equal Employment Opportunity Commission (EEOC) opined in 1982, 1987 and 1990 that using arrest and conviction information to screen out applicants may form the basis of a Title VII race discrimination claim. The EEOC warned employers that blanket exclusions would be hard to defend and created a three-part test, telling employers to consider the nature of the offense, how it relates to the job being sought and how long ago it occurred, in order to prove use of the report was both job-related and consistent
with business necessity. Some states and cities went further, giving the force of law to what the EEOC was suggesting. For example, Massachusetts bans employers from inquiring or using information they obtain relating to arrests in which no conviction occurred, first convictions for minor misdemeanors (e.g., drunkenness, simple assault, speeding) or a misdemeanor conviction that is more than five years old. A more recent development is the “ban the box” movement, in which inquiries about convictions are prohibited until after a conditional offer of employment has been made. The first state to do this was Hawaii in 1998. In Texas, both Travis County and the City of Austin removed the conviction question from their employment applications in 2008. The federal Ban the Box Act (H.R. 6220) died in committee in 2012. While the creep of regulation may have gone unnoticed by many employers, large dollar settlements had the opposite effect. In 2011, the EEOC negotiated a $3.13 million settlement over an employer’s practice of excluding applicants who had been arrested pending prosecution and those who were arrested or convicted of minor offenses. Perhaps emboldened by successful litigation,
DVAP’s Finest Dawn Fowler
Dawn Fowler is a Partner with Keane, Fowler & Donohue. Board Certified in Family Law, she is also a credentialed mediator and trained parenting facilitator - coordinator. She has been a DVAP volunteer since 1986, accepting family law cases, and serving as a mentor, instructor and coordinator on many CLE and public service projects. Dawn is a past chair of the DBA Family Law Section, Solo & Small Firm Section and LegalLine Committee. She has received the DBA’s Joanna Moreland Award, Special Recognition Award and President’s Award, along with a Lifetime Service Award from DVAP. She has served on many committees, projects, and has assisted in the Equal Access to Justice Campaign. She currently serves on the SBOT Unauthorized Practice of Law Committee and is a co-chair on the DBA Publications Committee. She is a firm believer in “Pay it Forward” and is thankful for the guidance and support of Merrill Hartman, Chris Reed-Brown, Ike Vanden Eykel and Louise Raggio in finding a profession and forum that permits her to do so in such a gratifying way. Thank you for all you do, Dawn!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
the EEOC issued a 30-page Consideration of Arrest and Conviction Records in April 2012. The Office of Federal Contract Compliance Programs, which governs certain federal contractors, issued similar guidance in its Directive 306, in January 2013. Both emphasized the need for employers to use the three-part test to be able to prove selection criteria are sufficiently job-related. Unlike the slow development of limitations on use of criminal history, prohibitions on use of credit history began in 2007 and expanded quickly. Ten states (CA, CO, CT, HI, IL, MD, NV, OR, VT and WA) currently limit procurement or use of credit record information on applicants and employees. According to the National Conference of State Legislatures, there were 35 bills pending in 17 states and the District of Columbia in 2012 and in just the first half of 2013, there were 45 bills filed in 25 states and the District of Columbia. The federal Equal Employment for All Act (H.R. 645) was introduced in February 2013 but is stalled in committee with only 31 co-sponsors. With some variations, these bills and laws prohibit the use of a report bearing on an applicant’s or employee’s creditworthiness, credit standing or credit capacity when making adverse employment decisions, with exceptions allowed for jobs involving national security,
FDIC clearance, managerial jobs at financial institutions or when otherwise required by law. In light of these restrictions, determine what positions in your organization have a statutory requirement of performing a criminal and/or credit check on certain employees. Next, identify the state and local law regulating use of these reports in the jurisdictions where you have employees. Third, consider whether you want to forego using these criteria, even where allowed, to take advantage of tax credits or deductions such as the federal Work Opportunity Tax Credit (for hiring those who face barriers to being hired, including felons). There is also a federal bonding program which offers a no-cost bond to protect employers who hire ex-offenders. Fourth, remove questions about arrests from your hiring forms and processes entirely and remove inquiries about criminal convictions, if not allowed by law. If you can keep the conviction question on your employment application, add a statement that a “yes” answer is not an automatic bar to employment and that the nature, seriousness and timing of the HN offense will be considered. Audrey Mross is chair of the Labor and Employment section at Munck Wilson Mandala LLP, and can be reached at email@example.com.
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14 H e a d n o t e s l D a l l a s B a r A s s o ciation
Labor & Employment Law
Fifth Circuit Overrules NLRB on Collective Action Waivers by Steven E. Clark and William Zac Duffy
The Fair Labor Standards Act (FLSA) has become a favorite tool of plaintiffs’ attorneys who represent employees. To limit the risk of facing a collective action under the FLSA, many employers require their employees to sign agreements in which they waive their right to participate in a collective action against the company. These clauses were recently called into question by a decision of the National Labor Review Board (NLRB). The Fifth Circuit recently reversed this decision, making it easier for employers to avoid collective actions under the FLSA.
ous: FLSA cases are relatively easy to win (or settle) and the potential exposure for employers can be substantial. A prevailing plaintiff in an FLSA proceeding is entitled to an award of unpaid wages and attorneys’ fees, and in most cases the plaintiff will also be awarded liquidated damages equal to two times the unpaid wages. The FLSA also provides that the plaintiff may bring the suit as a collective action on behalf of all similarly-situated employees. The threat of a collective action, combined with the potential of a large damages award, typically results in an FLSA case being settled well before trial.
lective action. A single-party arbitration clause was first upheld by the Supreme Court in the context of consumer contracts in AT&T Mobility LLC v. Concepcion in 2011. In Concepcion, the Supreme Court held that AT&T could require consumers in California to waive the right to bring a class action even though that state’s laws held such waivers to be unconscionable. Attorneys who represent employers immediately recognized the Concepcion decision as a way to prevent collective actions under the FLSA and many began inserting them in all new employment agreements.
The NLRB Rules on Single Single-Party Arbitration Party Arbitration The Rise of FLSA Litigation in Agreement On January 3, 2012, the NLRB Many employers have attempted to held that D.R. Horton had violated the Texas shield themselves from the threat of FLSA National Labor Relations Act (“NLRA”) The surge of FLSA litigation in Texas cannot be overstated. By way of illustration, 233 FLSA cases were filed in Texas in 2003. That number has swelled to 1,050 new FLSA case filings as of December 10, 2013. The reason for the increase is obvi-
collective actions by including singleparty arbitration clauses in their employment agreements. This clause requires the plaintiff to arbitrate all claims against the company in his or her individual capacity, and not as a member of a class or col-
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by requiring its employees to sign an agreement that precluded them from filing joint, class, or collective claims addressing their wages, hours or other working conditions (i.e., a single-party arbitration agreement). In reaching this conclusion, the Board focused on Section 7 of the NLRA, which provides that employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
29 U.S.C. § 157. The Board found that that the right to engage in concerted action included the “ability to join together to pursue workplace grievances, including through litigation.” Consequently, the Board ordered D.R. Horton to cease and desist from maintaining an arbitration agreement in which employees waive the right to class or collective actions in arbitral or judicial forums.
The Fifth Circuit Reverses
D.R. Horton appealed the NLRB’s decision to the Fifth Circuit and argued that the Board’s interpretation of the NLRA impermissibly conflicted with the Federal Arbitration Act (FAA). On December 3, 2013, the Fifth Circuit joined several other appellate courts in reversing the NLRB’s decision. The Fifth Circuit found that there was no basis to conclude that the NLRA supports a congressional command to override the FAA. While the Supreme Court may still rule on the issue in the future, the Fifth Circuit’s opinion provides a relatively safe avenue for employers to limit their expo HN sure under the FLSA.
Steven E. Clark, of the Clark Firm PLLC, is a solo practitioner and can be reached at firstname.lastname@example.org. William Zac Duffy is an associate at McDole & Williams PC and can be reached at email@example.com.
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10/9/12 10:39 AM
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Dal l as Bar A ssoci ati on l Headnotes 15
Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/ defenses, personal injury, moral damages, contract law, corporations. Coauthor, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. email@example.com. Economic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, valuation and divorce matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. troney@ thomasroneyllc.com. “We Count.”
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really great 14-lawyer firm in beautiful offices in Campbell Centre. Walk in the door and start practicing immediately. We will take care of virtually everything else. Bring your own staff or we will supply. Also 1 or 2 window offices with secretarial space and conference room available for sublease. Contact Steve Palmer @ (214) 2426440 or firstname.lastname@example.org. See our website at www.pamlaw.com.
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16 H e a d n o t e s l D a l l a s B a r A s s o ciation
He won’t toot his own horn, so we will.
Jackson Walker L.L.P. is proud to announce that our partner, Scott McElhaney, will serve as the Dallas Bar Association’s 105th president in 2014. Recognized by his clients and peers in local, state, and national surveys, Scott has been included in The Best Lawyers in America, named a “Texas Super Lawyer” by Thomson Reuters and listed as one of the “Best Lawyers in Dallas” by D Magazine. Congratulations, Scott!
For t Wor th
Te x a r k a n a
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