September 2010 Headnotes by Jessica Smith

Dallas Bar Association

HEADNOTES

Focus Labor & Employment Law

September 2010 Volume 34 Number 9

Bench Bar 2010: Don’t Miss It!

on’t miss your chance at having fun, networking and up to 6 hours of outstanding CLE. More than 250 Dallas-area lawyers and 50 judges will enjoy recreational activities and earn nearly 6.5 hours of CLE in a relaxing atmosphere—and it’s not too late for you to join them at the 19th Annual Bench Bar Conference. The two-day conference begins Thursday, October 14 and will be held at the Horseshoe Bay Resort Marriott in the Texas Hill Country. This easy-going (yet intense) agenda includes CLE programs such as: • The online juror. • Voir Dire. • Judicial Updates. • Solo & small firm marketing. • A judicial review. • And more! Attendees also will enjoy a variety of recreational activities such as golf, a fun run, zip line canopy tour, yoga, a tour of the wine country, sporting clays, tennis, biking and karaoke. During the Bench Bar Conference, the DBA Outstanding Trial Lawyer of the Year Award will be presented to Frank Branson. “This year’s Bench Bar Conference is an event you want on your calendar,” said DBA President Ike Vanden Eykel. “Don’t miss the opportunity to socialize with our judges as well as local attorneys you

know in a great, relaxed setting. The CLE is going to be great and the entire agenda is put together to insure a good

time.” The deadline for registration is quickly approaching. Due to limited space, only judges and lawyers are able to attend the conference. Register online at http:// www.dallasbar.org/benchbar. For more information, contact Rhonda Thornton at rthornton@dallasbar.org.

Kenneth Starr to be Keynote Speaker at Philbin Awards by Jessica D. Smith

or more than 25 years, the Dallas Bar Association has honored local news journalists for their excellence in legal reporting by presenting members of the media with the Stephen H. Philbin Award. In 1982, Stephen Philbin lost his battle with leukemia. He was a long-time member of the Dallas Bar Association and a partner with the firm of Locke, Purnell, Boren, Laney & Neely. At the time of his death, Mr. Philbin was a leading authority on media law in Texas. He advised major publications and broadcast companies on libel law, regulations and licensing of broadcast properties, and fair comment rulings. In honor of his contributions to media law in the Dallas area, an anonymous donor funds the annual Philbin Awards, with the DBA Media Relations Committee coordinating the event. Numerous entries have been received for the 2010 competition, including TV news reports from the major network affiliates, radio stations and both print and on-line news and feature articles from the area’s large metro newspapers, magazines and suburban publications. The winners will be announced at the Stephen Philbin Awards Luncheon on Tuesday, October 12, at the Pavilion at the Belo Mansion. Last year, approximately 50 journalists attended the luncheon, which is open to judges and lawyers, offering a unique opportunity to get acquainted the local news reporters. The keynote speaker for the awards luncheon this year will be Kenneth W. Starr, J.D., former U.S. continued on page 8

Inside 5 Avoiding Retaliation Claims 9 Walking the Tight-Rope of Employing Interns 17 What Does Your DNA Say About You?

Volunteer Now!

Veterans Free Legal Advice Clinic First Friday of Each Month from 1:30 to 3:30 p.m. Friday, September 10 | Friday, October 1 Friday, November 5 | Friday, December 3 at the VA North Texas Health Care System (4500 South Lancaster Road, Dallas, TX 75216) For more information, contact DVAP at (214) 742-5768 or www.dallasvolunteerattorneyprogram.org.

2 H e a d n o t e s l D a l l a s B a r A s s o ciation

Calendar

September Events FRIDAY CLINICS

September 3 – Belo Noon

“Defending Guantanamo Detainees,” Dicky Grigg. (MCLE 1.00)*

September 10 – North Dallas**

Noon

“Valuing Economic Damages in Injury, Wrongful Death & Employment Cases,” Dr. Dwight Steward. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., 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. Thanks to sponsor Griffith Nixon Davison P.C.

September 17 – Belo Noon

“The Realities and Profession of Law Practice Today,” Nicole Hooper and Courtney Marcus. (Ethics 1.00)* Sponsored by the DBA Peer Assistance Committee.

WEDNESDAY, September 1 Noon

Employee Benefits/Executive Compensation Section “Ethical Issues in Plan Administration,” Randy Fickel and Patti Hedgpeth.” (MCLE 1.00)*

Solo and Small Firm Section “Turnover Receiverships—The Secret Weapon Hardly Anyone Uses,” Michael S. Bernstein. (MCLE 1.00)*

Legal Ethics Committee, “Marketing Yourself in Compliance With the Texas Ethical Rules & ABA Model Rules and Dealing With Conflicts of Interest,” Kathy Compton. (Ethics 1.00)*

Public Forum Committee

5 p.m.

Bankruptcy & Commercial Law Section “Chapter 11 Issues and Recent Events,” Joe Marshall, Lee Morris and Steve Stapleton. (MCLE 1.00)*

THURSDAY, September 2

WEDNESDAY, September 8 7:45 a.m.

Dallas Area Real Estate Lawyers Discussion Group

Noon

Tax Section “State Tax Update,” Daniel Butcher and Michael McClelland. (MCLE 1.00)*

6 p.m.

DAYL Board of Directors

Community Involvement Committee

Entertainment Committee

Law in the Schools & Community Committee

DAYL Elder Law Committee

DAYL Animal Welfare Committee

Energy Law Section Topic Not Yet Available

Municipal Justice Bar Association

Non-Profit Law Study Group

DAYL Lunch and Learn—Tripartite Relationship. For more information, contact Cherie Harris at cherieh@dayl.com.

5 p.m.

Family Law Nuts & Bolts CLE. Online Registration July 30—Sept. 9 at www.dallasbar.org. For more information, contact Alicia Perkins at perkinsa@lanwt.org, or Chris Reed-Brown at reed-brownc@lanwt.org.

5:15 p.m.

LegalLine—Volunteers welcome. Second floor Belo.

5:15 p.m.

LegalLine—Volunteers welcome. Second floor Belo.

11:30 a.m.

DAYL Barristers for Babies

11:45 a.m.

J. Reuben Clark Society

Noon

Admissions and Membership Committee

Publications Committee

Christian Lawyers Fellowship

DAYL CLE Committee

Tort and Insurance Practice Section “Gulf Oil Spill Update,” Bob Allen and Scott Summy. (MCLE 1.00)

THURSDAY, September 9

FRIDAY, September 10 Noon

Friday Clinic - North Dallas** “Valuing Economic Damages in Injury, Wrongful Death & Employment Cases,” Dr. Dwight Steward. (MCLE 1.00)*

Trial Skills Section “The Conventional Wisdom of Cross-Examination is Wrong: Three New Strategies that Guarantee Success,” Shane Read. (MCLE 1.00)*

MONDAY, September 13

Noon

Alternative Dispute Resolution Section “Using ‘Picture Power’ In Settlement Negotiations to Enhance Communications and Reduce Decision Making Mistakes,” Don Philbin.” (MCLE 1.00)*

Real Property Law Section “Enforcement of Restrictive Covenants,” Marc D. Markel. (MCLE 1.00)*

TUESDAY, September 14 Noon

Business Litigation Section “New Cases and Procedures at The Fifth Circuit,” Hon. Catharina Haynes.

THURSDAY, September 16 Noon

Appellate Law Section “Raiders of the Lost Articles of the Texas Constitution,” R. Michael Northrup. (MCLE 1.00)*

Judicial Candidates Forum - Civil District, County Court at Law and Probate Courts. Sponsored by the Judiciary Committee, Business Litigation and Tort and Insurance Practice Sections.

Minority Participation Committee

Christian Legal Society

Dallas Criminal Defense Lawyers Association

Dallas Gay & Lesbian Bar Association

UPL Subcommittee

3:30 p.m.

DBA Board of Directors

5 p.m.

FRIDAY, September 17 Noon

Friday Clinic – Belo “The Realities and Profession of Law Practice Today,” Nicole Hooper and Courtney Marcus. (Ethics 1.00)* Sponsored by the DBA Peer Assistance Committee.

MONDAY, September 20 Noon

TUESDAY, September 21

Home Project Committee

WEDNESDAY, September 15 Noon

Dallas Hispanic Bar Association

Senior Lawyers Committee

Dallas Women Lawyers Association “Professionalism in the Courtroom: Tales from the Bench,” Hon. Barbara M. G. Lynn. (Ethics 1.00)*

6 p.m.

Dallas Criminal Defense Lawyers Association

6 p.m.

International Law Section The International Criminal Tribunal for the former Yugoslavia (ICTY), in The Hague,” Rebekah Bailey, Stacey Cho, Brigit de Graca and Gregory Shannon. (MCLE 1.00)*

House Committee

J.L. Turner Legal Association

Corporate Counsel Section “The Corporate Counsel’s Survival Guide to Health Care Reform,” Denise Glass and Daphne Walker. (MCLE 1.00)*

4 p.m.

6 p.m.

Noon

Law Day Committee DAYL Equal Access to Justice Committee

Cases,” Devika Seth. (MCLE 1.00)*

Antitrust & Trade Regulation Section “Hot Topics in International Antitrust Law,” William R. Vigdor. (MCLE 1.00)*

St. Thomas More Society

TUESDAY, September 7

Noon

Pro Bono Activities Committee

DBA offices closed for Labor Day.

Mergers & Acquisitions Section “Earnouts and Purchase Price Adjustments: Why Litigators Love Them,” Michael Lynn and Lynn Tillotson. (MCLE 1.00)*

Dallas Asian American Bar Association

MONDAY, September 6

CLE Committee

Public Education Hearing on Disciplinary Rules

Government Law Section “From the Judges’ Perspective: The Role and Practice of Government Lawyers,” Hon. Jane Boyle, Hon. Mark Greenberg, Hon. Jim Jordan and Hon. Laura Kuchinsky. (MCLE 1.00, Ethics 0.25)*

Family Law Section Board

(MCLE 1.00)*

Judicial Candidates Forum —Family & Juvenile Courts Sponsored by the Judiciary Committee and the Family Law Section.

Friday Clinic – Belo “Defending Guantanamo Detainees,” Dicky Grigg. (MCLE 1.00)*

Health Law Section “Basic Rules Every Lawyer Who Represents Health Care Providers Needs to Know When a Client is Contacted by Federal Criminal Investigators,” H. Campbell Zachry (MCLE 1.00)*

Construction Law Section “The Impact of Recent Insurance Coverage Decisions on the Construction Industry,” Lee Shidlofsky. (MCLE 1.00)*

FRIDAY, September 3

Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.

Noon

Septem ber 2010

Labor & Employment Law Section “Common Mistakes Employers Make That May Lead to Litigation,” Supreme Court

WEDNESDAY, September 22 7:45 a.m.

Dallas Area Real Estate Lawyers Discussion Group

Noon

Sports & Entertainment Law Section “The Proposed Performance Right Royalty and the Digital Millennium Copyright Act,” John Simpson. (MCLE 1.00)*

Juvenile Justice Committee

DVAP New Lawyer Luncheon. For more information, contact Chris Reed-Brown at reed-brownc@lanwt.org.

DAYL Aid to the Homeless Committee

THURSDAY, September 23 Noon

Criminal Law Section “Preserving Error at Trial: Seven Ways to Protect the Record,” Bruce Anton. (MCLE 1.00)*

Environmental Law Section “Update on Public Nuisance and Climate Change Litigation,” Rick Faulk. (MCLE 1.00)*

Library Committee

Public Forum Committee

Community Service Fund Board

FRIDAY, September 24 9 a.m.

Juvenile Justice Committee--Juvenile Delinquency: Advanced Topics. (MCLE 6.00)*. For more information, contact Alicia Hernandez or ahernandez@dallasbar.org.

Noon

Intellectual Property Law Section “Deposing an inventor in a patent case,” Larry D. Carlson. (MCLE 1.00)*

Media Relations Committee

MONDAY, September 27 Noon

Computer Law Section “Partly Sunny With a Chance of Rain: Forecasting the Legal Issues in Cloud Computing,” Thomas A. Kulik. (MCLE 1.00)*

Securities Law Section Topic Not Yet Available

Criminal Justice Committee

TUESDAY, September 28 Noon

Probate, Trusts & Estates Section “Hunt/Hill Litigation,” Mike Lynn. (MCLE 1.00)*

Courthouse Committee

American Immigration Lawyers Association

WEDNESDAY, September 29 No DBA Meetings Scheduled.

THURSDAY, September 30 Noon

Legal History Discussion Group, the Appellate Section and the CLE Committee “Capital Punishment on Trial: Furman v. Georgia and the Death Penalty in Modern America,” Professor David Oshinsky. (MCLE 1.00)*

7 p.m.

Dallas Hispanic Bar Association 5th Annual Lighting the Path to Legal Education Scholarship Fundraiser Dinner and Awards Ceremony. For more information, contact Maricela Siewczynski at maricela@texemploymentlaw.com.

FRIDAY, October 1 Noon

Friday Clinic – Belo “What To Do If Your Child (Or Your Client’s Child) Is Arrested,” Hon. Andy Chatham. (MCLE 1.00). Sponsored by the Juvenile Justice Committee.

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.

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Dal l as Bar A ssoci ati on l Headnotes 3

Goranson, Bain, Larsen, Greenwald, Maultsby & Murphy, PLLC Dallas 214.373.7676 Plano 214.473.9696 :: gbfamilylaw.com

4 H e a d n o t e s l D a l l a s B a r A s s o ciation

Septem ber 2010

Headnotes

President's Column

Local Pride / Hidden Treasure by ike vanden eykel

s members of the Dallas Bar Association, we have a lot to be proud of in this town. Dallas is a great city and has an economy that will stand up to any other city in our great land. We have one of the strongest bar associations in the legal community and our facility at the Belo Mansion is without equal in the entire country. We sit at the edge of the Dallas Arts District, which has justifiably received national acclaim. We have strong leadership in our city and county and this is a great place to practice law. We have so many treasures in this city that it is easy to sometimes overlook something of value in our own backyard. In the summer of 2009 Governor Rick Perry signed SB 956 into law, establishing the UNT at Dallas College of Law. This creates the first public law school in North Texas. In addition to authorizing the creation of the law school, the 2009 Legislature appropriated $5 million in start-up funding for the UNT at Dallas College of Law. The plans for all of this are developing at this time in our own neighborhood. When the UNT at Dallas College of Law enrolls its first class in 2012, it will be the fruition of a goal that began as early as 1980 when UNT initiated its law library collection. More than 30 years of planning and hard work is about to pay off for our city and our region. This school is truly something of which we can be very proud. UNT System will continue to work with the Texas Higher Education Coordinating Board as it develops the first new public law school in Texas in more than 40 years. Very important and exciting things are underway at this time at the newest Texas law school. The search is underway for a Founding Dean, who will have the responsibility to develop the curriculum, hire faculty and staff, and establish the process for student recruitment and enrollment. The Founding Dean will also be responsible for leading the UNT at Dallas College of Law through provisional and permanent accreditation by the American Bar Association. The current plan is for UNT at Dallas College of Law to

Board of Directors Roundup

cott McElhaney, chair, called the July 15 meeting to order and welcomed and introduced guests. He called on Martha Hofmeister, Bar None Director, and Rhonda Hunter, Bar None Choreographer, and thanked them for all their work over the past 25 years. Ms. Hofmeister then reported that Bar None 2010 sold out each night and anticipated proceeds for the Hughes Fellowship will reach $100,000. Ike Vanden Eykel, DBA President, then presented Ms. Hofmeister and Ms. Hunter with framed certificates. Reporting from the Dallas Chamber of Commerce, Dwayne Dankesreiter explained the Chamber’s long-range plan and focus on economic development. Todd Murray, President of the Federal Bar Association, then updated the Board on the Federal Bar, saying it continues to thrive and conducts several programs each year, including a joint program with the DBA Judiciary Committee. Publication Committee Co-Chairs Tim Ackermann, Vincent Allen and Suzanne Westerheim gave a brief explanation of the committee and reported that the publications process is doing well and that Headnotes recently won an APEX Award for Publication Excellence. Co-Chair of the Juvenile Justice Committee, Billye Summers, reported that the committee has conducted several CLE programs, including a well-received nuts and bolts program. Mark Nastri, Chair of the Energy Law Section, updated the Board on his section, highlighting the two-day seminar that was held in August. Reporting as Co-Chair of the Legalline Committee, Eric Bowers gave a brief explanation and update of the DBA’s twice-monthly Legalline service. Justice Douglas Lang reported on the recent activities of the ABA and stated that he and Kim Askew would be attending the ABA meeting in San Francisco. Mr. Vanden Eykel announced that DBA membership is now over 10,000 members and noted several upcoming DBA events. There being no further business, the meeting was adjourned.

begin taking applications in 2011 for classes that are scheduled to begin with the Fall 2012 semester. The initial location of the law school will be at the UNT System Building (UNTS) at 1901 Main Street in downtown Dallas. This building was the former home of Joske’s and Titche’s. Courses at UNT Dallas Law will be offered at the UNTS Building until extensive renovations of the Old Municipal Building are funded by the state and city, and the building project is completed. The UNT System will continue to work with the City of Dallas on plans for renovations to this historic building, which will serve as the UNT at Dallas College of Law’s permanent home. This project represents a significant addition and improvement to the strength and vitality of downtown. In January 2009, the Dallas City Council unanimously approved a Letter of Understanding, outlining plans to donate the Municipal Building, known as Old City Hall, to house the UNT at Dallas College of Law. The city has also pledged $16 million for the renovation of the Old City Hall. This significant commitment by our city leaders is a testament to the magnitude of this project and its impact on our city. The imposing granite and limestone beaux-arts Municipal Building, which was built in 1914, became world famous in 1963 when Lee Harvey Oswald, accused assassin of President John F. Kennedy, was shot to death in the basement of the building. When it is completed, the new law building will face the new Main Street Garden Park, which is already under construction. The Law School will provide a campus atmosphere in the heart of downtown Dallas. This project will truly represent a significant transformation of an important part of downtown and will add a great new neighbor for the Dallas Bar Association. We can look forward to a long and significant relationship with the new kid on the block. Dallas is our home and it is a place of which we are very proud, and with good reason. It is about to get a little better with the long-awaited arrival of UNT at Dallas College HN of Law.

Save the Date!

DBA CELEBRATES NATIONAL PRO BONO WEEK Monday, October 25 to Friday, October 29 A free CLE will be held at lunch each day at Belo. DVAP Pro Bono Awards—Thursday, October 28—Belo—5:30-7:30 p.m. For more information, contact Chris Reed-Brown at (214) 243-2243 or reed-brownc@lanwt.org. Sponsored by the DBA Pro Bono Activities Committee and the Dallas Volunteer Attorney Program in conjunction with the ABA National Pro-Bono Celebration.

Pro Bono Week Schedule of Activities Monday, October 25 Catholic Charities of Dallas Inc. Noon-1:00 p.m. (MCLE 1.00) Tuesday, October 26 Advocacy, Inc. of North Texas Noon-1:00 p.m. (MCLE 1.00) Wednesday, October 27 Housing Crisis Center (HCC) Noon-1:00 p.m. (MCLE 1.00) Belo Legal Clinic 5:00-9:00 p.m. Thursday, October 28 DVAP Pro Bono Awards Belo Pavilion 5:30-7:30 p.m. Friday, October 29 Wills Intake Clinic | The Senior Source 9:00 a.m.-Noon Family Law Noon-1:00 p.m. (MCLE 1.00)

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: Ike Vanden Eykel President-Elect: Barry Sorrels First Vice President: Paul K. Stafford Second Vice President: Sally Crawford Secretary-Treasurer: Wesley Young Immediate Past President: Christina Melton Crain Directors: Scott M. McElhaney (Chair), Brad C. Weber (Vice Chair), Jerry C. Alexander, Hon. Jane J. Boyle (At Large), Wm. Frank Carroll, E. Leon Carter, Rob Crain, Jennifer Edgeworth (President, Dallas Association of Young Lawyers), Laura Benitez Geisler, Michael K. Hurst, Hon. Marty Lowy, Michele Wong Krause, Karen McCloud (President, J.L. Turner Legal Association), Jose Ortiz (President, Dallas Hispanic Bar Association), Mary Scott, Hope Shimabuku (President, Dallas Asian American Bar Association), Scott P. Stolley (At Large), Diane M. Sumoski and Debra K. Thomas. Advisory Directors: Penny Brobst Blackwell (PresidentElect, Dallas Association of Young Lawyers), Eric Blue (President-Elect, J.L. Turner Legal Association), Eunice Kim Nakamura (President-Elect, Dallas Asian American Bar Association) and Hon. Teresa Guerra Snelson (PresidentElect, Dallas Hispanic Bar Association). Delegates, American Bar Association: Kim J. Askew, Hon. Douglas S. Lang Directors, State Bar of Texas: Talmage Boston, Christina Melton Crain, Beverly Bell Godbey, Robert R. Roby, Frank E. Stevenson, II HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications / Media Director & Headnotes Editor: Jessica D. Smith Calendar: Kathryn Zack In the News: Judi Smalling Art Director: Laura E. Heymann Advertising: Karla Howes PUBLICATIONS COMMITTEE Co-Chairs: Vincent J. Allen, Timothy G. Ackermann and Suzanne Raggio Westerheim Vice-Chairs: Lea N. Clinton and Paul R. Clevenger Members: H. Joseph Acosta, Natalie Arbaugh, Wesley J. Bailey, Heather J. Barbieri, Vance L. Beagles, Eric Blue, Barbara Boudreaux, Quentin Brogdon, Lance E. Caughfield, Christina Melton Crain, Pat Driscoll, Dawn E. Fowler, Floyd R. Hartley Jr., John Thomas Hayes, Paul W. Herring, Mary Louise Hopson, Victor Johnson, Arshil A. Kabani, Mike Keliher, Jamie McKey, Elizabeth Jo McShan, Thomas L. Mighell, Mitchell S. Milby, Clay Miller, Jennifer Mitchell, Hon. Jim Moseley, Sonia Navia, Heather Bailey New, Jenna Page, Kirk L. Pittard, Irina B. Plumlee, Robert D. Ramage, Andrew Baxter Ryan, Gregory W. Sampson, Steven D. Sanfelippo, Barry Sorrels, Paul K. Stafford, Scott B. Stahl, Amy E. Stewart, Sherry L. Talton, Debra K. Thomas, Ike Vanden Eykel, Peter S. Vogel, Thomas Williams, Courtney Willis, Elizabeth A. Wilson and Sarah Q. Wirskye. 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: Michelle Dilda Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Amy E. Smith Membership Coordinator: Kimberley Watson Projects & Communications Assistant: Kathryn Zack Publications Assistant: 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, Lakeshia McMillan, Andrew Musquiz, Jigna Gosal, Tina Douglas Data Entry/Office Support: Patsy Quinn Copyright Dallas Bar Association 2010. 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 jsmith@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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Focus

Dal l as Bar A ssoci ati on l Headnotes 5

Labor & Employment Law

Avoiding Retaliation Claims by Ron Chapman, Jr.

retaliation claim is one of the thorniest issues an employer can face. While employees are not insulated from discipline or discharge once they engage in protected activity, employers must tread very carefully. A record number of retaliation charges were filed with the Equal Employment Opportunity Commission (EEOC) in 2009. Overall, the number of retaliation charges has almost tripled since 1992. This increase is due in part to the Supreme Court lowering the standard of proof for retaliation. In Burlington Northern Santa Fe Railroad Co. v. White, 548 U.S. 53 (2006), the Court adopted a vague standard that has led to additional litigation. The Court found that to sue for retaliation, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse.” To be considered “materially adverse,” the challenged act must be conduct that would dissuade a reasonable employee from making or supporting a charge of discrimination. This “materially adverse” standard is somewhat lower than the “ultimate employment action” test frequently used for discrimination cases. Compare Cooper v. United Parcel Serv., 2010 WL 610047 (5th Cir. Feb. 22, 2010) and Donaldson v. CDB, Inc., 2009 WL 1916466 (5th Cir. July 6, 2009), issued by the same court less than eight months apart. In Cooper,

a discrimination case, a job transfer that caused the employee’s commute to increase 25 minutes each way (50 minutes a day, over four hours a week and over nine days a year in commuting time) was not an “ultimate employment action” sufficient to establish a prima facie case of discrimination. In contrast, Donaldson was a retaliation case. The court found the allegation that the male supervisor called the female plaintiff “the devil” in a staff meeting and said she was trying to “bring [him] down,” coupled with a delay in the plaintiff receiving her Christmas bonus, might be “materially adverse” and therefore was sufficient to establish a prima facie case of retaliation. In the wake of the Burlington Northern decision, the risks associated with retaliation claims have increased. Nevertheless, smart employers can take steps to reduce these risks. 1. Take control of decision-making. Once there is recognition that protected activity may have occurred, partner with human resources and management (assisted by legal as needed) to develop an individualized plan to minimize risks. 2. Create the proper working environment. Consider separating the complaining employee and the alleged discriminator/harasser. 3. Cleanse the decision-making loop. When possible, take the alleged discriminator/harasser out of the decisional loop for any action that could be deemed an adverse employment action. Consider adding decision makers who are unaware of the protected

activity and keep them unaware. 4. Create a direct line of communication for the complaining employee to voice concerns. Direct the complaining party to forward all concerns to a specific person or two in human resources. 5. Fairly investigate all concerns. Get to the facts, evaluate them and take appropriate action. 6. Monitor. Periodically reach out to the employee and ask: “How are you doing? Is there anything to report?” Then prepare a memorandum to the file memorializing the question and answer. Follow up as needed. 7. Take control of the message. Control the message to the complaining employee, and to the complaining employee’s file. All documents should reflect the company’s determination to get to the facts and remediate the concern. Every communication to or about the complaining employee must be coordinated. The left hand must know what the right is doing. The company that takes control of the message ensures the documentary evidence that the EEOC, judge and jury evaluate will reflect the integrity and sensitivity with which the company

responded to the employee’s concern. 8. Take a deep breath. In the immediate aftermath of protected activity, pause and reflect before implementing any decision that could be construed as an adverse employment action. A paper trail that accurately reflects that the company has given the employee the benefit of the doubt will contribute mightily to a positive result, but don’t obviously “paper” the file. No checklist can guarantee a riskproof outcome. Often, an employer’s best decision is a choice between the lesser of two evils. However, a process that takes control of decision making and communications and accurately reflects the company’s commitment to basic fairness more often than not will protect the employer for one simple reason: a process that is fair and is fairly documented is more likely to be perceived as so by other parties– including employees, the EEOC, HN judges and juries. Ron Chapman, Jr., a shareholder with Ogletree Deakins, is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization. He can be reached at ron.chapman@ogletreedeakins.com.

SAVE THE DATE

Third Annual DAABA Night at the Opera Awards, Corporate Counsel, Civic Leaders and Judges Wednesday, October 20, 5:30 to 8:30 p.m., Margot and Bill Winspear Opera House For more information or sponsorship opportunities, contact Victor Corpuz at corpuzv@jacksonlewis.com or Albert Tan at albert.tan@haynesboone.com.

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

Septem ber 2010

DBA State Bar President’s Update A Helping Hand

By Terry Tottenham

hen I was running for State Bar president, I had the opportunity to meet with lawyers and local bar associations all across the state and to see the great work being done for our profession and the public. The Dallas Bar Association is a perfect example of what can happen when lawyers come together for the benefit of their colleagues and community. The DBA received numerous accolades during the State Bar of Texas Annual Meeting, including the Stars of Texas Bars Award of Merit and Star of Achievement, as well as Best Series of Articles for Feature/General Interest, Substantive Law and News for the newsletter Headnotes. In addition, the Dallas Volunteer Attorney Program was recognized by the State Bar Legal Services to the Poor in Civil Matters Committee with its Pro Bono Award. Congratulations on these welldeserved honors.

Texas Lawyers for Texas Veterans

During my year as president of the State Bar of Texas, I am proud to be launching Texas Lawyers for Texas Veterans, an initiative to provide legal services to our veterans. We will be working with local bar associations, mental

health professionals, veterans organizations and VA hospitals to set up pro Practicing law can be a rewarding bono clinics throughout the state. vocation, but also a challenging one. A veterans legal clinic is already Often, lawyers can feel overwhelmed by up and running in Dallas thanks to the stresses of the job and the leadership of Michael find themselves struggling Regitz of Fulbright & to keep up. This is espeJaworski L.L.P. and Dan cially true during this time Scott of Gardere Wynne of economic uncertainty, Sewell LLP. Michael and with lawyers feeling greater Dan, in conjunction with anxiety about keeping their the Dallas Volunteer Attorpractices going. ney Program, coordinate a This year, I am excited monthly clinic at the Dalto be working with Texas las VA Medical Center. If Lawyers’ Assistance Proyou are interested in volgram Director Ann Foster unteering for the clinic or on a new DVD to address in taking a pro bono case the pressures affecting lawfor a veteran, please conyers. Practicing Law and tact Michael at mregitz@ Wellness: Modern Strategies fulbright.com or Dan at Terry Tottenham for the Lawyer Dealing with dcscott@gardere.com. Clinics are also up and running in Anxiety, Addiction, and Depression offers Houston, Austin, El Paso, Fort Worth solutions — what’s available, what we and San Antonio. During the Bar offer, what works. For more information, Leaders Conference in July, we pre- please visit www.texasbar.com/tlap. In addition, the State Bar is providsented “Clinics in a Box” to local bars ing a series of free, one-hour webcasts to help them establish their own vetthrough TexasBarCLE called “Practice erans clinics. Many of our service members can- Tips in Good Times and Bad.” Each not find or afford the legal help they month, a new webcast is offered on a need and deserve. As lawyers, our topic dedicated to helping you achieve expertise in the law can be a life- your career goals, build your law pracline. I invite you to learn more about tice, and take control of your practice in Texas Lawyers for Texas Veterans a down economy. Visit the TexasBarCLE and the ways you can help by visiting website at www.texasbarcle.com to learn more or to sign up for the webcasts. www.texasbar.com/veterans.

RETIRING OR REPLACING COMPUTER EQUIPMENT? CLEANING OUT THE SUPPLY ROOM? DONATE TO THE DALLAS ISD E-MENTORING PROGRAM! The DBA E-Mentoring program is accepting donations of retired computer equipment to benefit the students of Dallas ISD through the Computers for Classrooms (CFC) Program. Donations are tax deductible and can be picked up from your office! E-Mentoring is also accepting donations of office supplies for its participating schools. For more info, contact Stephanie Murphy-Zaleskin at szaleskin@lpf-law.com o r 214-573-2367. Find out more about the E-Mentoring Program here: www. dbamentor.org. Or log on to www.dbamentor.org/volunteer. asp to sign up to make a difference, one e-mail at a time!

Disciplinary Rules

Last fall, in response to a Supreme Court of Texas request for a recommendation on the issue of professional liability insurance disclosure, the State Bar convened a series of public hearings around the state. In addition, lawyers and non-lawyers posted comments to the State Bar website, and many sent letters and emails. The input from State Bar members was tremendous and assisted the State Bar Board of Directors in its recommendation. Once again, the Supreme Court has called on the State Bar to make a recommendation. This time, the Court has asked for the State Bar’s input on proposed changes to the Texas Disciplinary Rules of Professional Conduct. Last year, the proposed rules were printed in the Texas Bar Journal for public comment, and in response to feedback, the Court has revised the proposed rules, which are available at www.supreme. courts.state.tx.us/rules/rules.asp. The State Bar is currently in the process of holding public hearings around the state on the proposed changes to the disciplinary rules. This will lead to a likely referendum of all Texas lawyers later this year. For a list of public hearing dates and locations, please check the State Bar website at www.texasbar.com. We welcome and HN encourage your feedback.

Mock Trial Team Coaches Needed! Volunteer attorneys are needed to help coach Dallas ISD high school mock trial teams for the 2010-11 season. Practice times vary by school. If interested, contact Amy Smith at asmith@dallasbar.org or (214) 220-7484.

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Dal l as Bar A ssoci ati on l Headnotes 7

8 H e a d n o t e s l D a l l a s B a r A s s o ciation

Focus

Septem ber 2010

Labor & Employment

Why Ethics Training Is the Cheapest Insurance Policy by Kim R. Miers and Jeremy W. Hawpe

he myriad of laws related to workplace ethics is complex and challenging. In addition to helping employers define what is expected of their employees, an effective corporate compliance policy can be the cheapest insurance policy a business can buy. While almost all employers have policies prohibiting discrimination and harassment, compliance policies should generally be much broader. Civil and criminal liability can attach to a company for the ethical misdeeds of its employees outside the discrimination/harassment context. But there is good news. The Federal Sentencing Guidelines (FSGs), which apply to all organizations not just publicly traded companies, and other federal statutes, such as Sarbanes-Oxley (SOX), establish detailed ethics and compliance guidelines by which the risk of corporate liability for ethical misdeeds can be substantially reduced. For example, the FSGs require judges to consider whether a convicted corporation had established an “effective compliance program” prior to the violation taking place; in other words, whether the corporation had taken appropriate steps to prevent and detect violations of ethics laws. Under the FSGs, the potential fine range for a criminal conviction can be significantly reduced—in some cases up to 95 percent—if an organization can demonstrate that it had an effective compliance and ethics pro-

gram in place and that the criminal violation represented an aberration within an otherwise law-abiding business. Thus, by being proactive, taking preventive steps and complying with the guidelines established by these laws, business organizations can dramatically decrease the likelihood of being penalized for a corporate ethics violation.

Effective Compliance and Ethics Training

What is an “effective” compliance policy? While there is no one-size-fitsall policy, the FSGs set forth seven elements of an effective compliance and ethics program: 1. compliance standards and procedures that are reasonably capable of reducing the prospect of criminal conduct; 2. oversight by high-level personnel; 3. due care in delegating substantial discretionary authority to appropriate individuals; 4. effective communication to all levels of employees; 5. reasonable steps to achieve compliance, which include systems for monitoring/auditing/reporting suspected wrongdoing without fear of reprisal; 6. consistent enforcement of compliance standards (including disciplinary measures); 7. reasonable steps to respond to and prevent further similar offenses upon detection of a violation.

Employers looking to maximize the benefits of a compliance and ethics policy would be well advised to consider ethics training as mandatory and examine whether any existing training covers the following areas: • confidential information; • insider trading; • conflicts of interest; • accounting practices; • SOX requirements; • financial reporting procedures and records maintenance; • use of company property; • handling gifts and favors; and • reporting ethical and compliance concerns. The FSGs specifically reference the need to proactively communicate the organization’s ethics and compliance program by “conducting effective training programs.” The FSGs impose the requirement that all employees, including high-level personnel, receive periodic training pertaining to their organization’s ethics and compliance standards. Simple, quick-fix solutions will not satisfy the FSGs. For example, merely distributing a Code of Conduct will not suffice. While “periodic” is not defined by the FSGs, employers can be guided by how that term has been interpreted in the employment law arena. A thorough review of case law regarding the U.S. Supreme Court and the Equal Employment Opportunity Commission’s requirement for “periodic” harassment and discrimination prevention training shows that “periodic” is generally interpreted as every

12 to 24 months. Effective training should also address the “gray areas” and provide managers, executives and employees with practical skills for identifying required practices and resolving ethical dilemmas.

Additional Methods for Decreasing Liability

In May 2010, the FSG’s were further amended to strengthen and clarify provisions related to compliance programs. These amendments, effective November 1, 2010: • place a premium on having compliance personnel report directly to the governing body of a company or an audit committee that oversees the organization’s compliance and ethics program; • reward companies that detect an offense internally before its discovery outside the organization, and implement appropriate remediation efforts; and • encourage promptly reporting an offense to the appropriate governmental authorities. In addition to providing employees with clear expectations, developing a corporate compliance program that promotes honest and ethical conduct, as well as compliance with applicable laws, provides a substantial safety net for companies should an employee HN violate those principles. Kim R. Miers and Jeremy W. Hawpe are Associates at Littler Mendelson, P.C. and can be reached at kmiers@ littler.com and jhawpe@littler.com.

Philbin Awards David Carlock and Blaise Gormley are pleased to announce that Jere Hight has become a partner in the firm and the firm name has been changed to

Carlock-Gormley-Hight Family Law Litigation

continued from page 1

Solicitor General and current President of Baylor University. Mr. Starr has had a memorable career in academia, the law and public service. He served six years as United States Circuit Court of Appeals Judge for the District of Columbia. As Solicitor General of the United States from 1989 to 1993, he argued 25 cases before the U.S. Supreme Court. From 1994 to 1999, Mr. Starr was appointed to serve as Independent Counsel for five investigations, including Whitewater. Mr. Starr also volunteers his time by teaching in the inner city and assisting disadvantaged students with summer internships, after-school programs and guidance for financing a college education. He previously taught constitutional law as an adjunct professor at New York University School of Law and was a distin-

guished visiting professor at George Mason University School of Law and Chapman Law School. For the past six years, Mr. Starr has served as The Duane and Kelly Roberts Dean and Professor of Law at Pepperdine University, teaching current constitutional issues and civil procedure. On February 12, 2010, he was unanimously elected as the 14th President of Baylor University. DBA members can reserve their seats now for the 2010 Stephen Philbin Awards Luncheon on Tuesday, October 12. Tickets are $35; or tables of 10 can be purchased for $350. No walk-ins will be allowed. Don’t miss this exciting event! Purchase your ticket by logging on to www.dallasbar.org/Philbin or by contacting Judi Smalling at 214-220-7452 (or at HN JSmalling@dallasbar.org). Jessica D. Smith is the DBA’s Communications/Media Director.

Juvenile Delinquency: Advanced Topics SEPTEMBER 24 9 a.m. to 4:30 p.m. at the Belo Mansion 8235 Douglas Ave., Ste 600 | Dallas, Texas 75225 Ph: 214.346.0306 | www.carlockgormley.com

MCLE 6.00 (pending) Sponsored by the DBA Juvenile Justice Committee For more information, contact Alicia Hernandez at (214) 220-7499 or ahernandez@dallasbar.org.

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Dal l as Bar A ssoci ati on l Headnotes 9

Labor & Employment

Walking the Tight-Rope of Employing Interns by Stephen Fox and John Sanders

ven as the economy struggles to regain its footing, there remains a glut of qualified applicants seeking few available positions. In an attempt to distinguish themselves from other would-be workers, some enterprising applicants have sought to obtain positions historically reserved for college students during the summer: the unpaid internship. Those gunning for such positions see it as an opportunity to get their foot inside an otherwise closed door. To be sure, the pay is not good, but the would-be interns see it as an opportunity to gain relevant experience and to make the connection necessary to obtain gainful employment. For an employer, it would seem a dream come true: an eager and dedicated work-force that is willing and able to work for free. Today’s unpaid intern, however, can quickly turn into a costly legal problem for such businesses because such internships may violate the Fair Labor Standards Act’s (FLSA) minimum wage and overtime requirements. And the Obama administration’s Department of Labor (DOL) is increasingly scrutinizing such internships to see if violations are occurring. The DOL has investigated the use of internships and has, in some cases, fined employers who are actually using the interns to provide unpaid labor. As one official at the DOL suggested: “If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and still be in com-

pliance with the law.” The question, then, is under what circumstances can a business offer a valid, unpaid internship under the law? Recently, the DOL outlined the requirements for a legal unpaid internship: • The internship, even though it includes actual operation of the employer’s facilities, is similar to training that would be given in an educational or vocational environment; • The internship is for the intern’s benefit; • The intern does not displace regular employees and works under the supervision of existing staff; • The employer derives no immediate advantage from the interns, and on occasion the employer’s operations may actually be impeded; • The intern is not necessarily entitled to a job at the conclusion of the internship; and • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. If the criteria sound a bit out of date, it is because they are. They are based on a 1947 Supreme Court decision that evaluated whether the FLSA applied to prospective train yard brakemen—not exactly the sort of work most interns (paid or otherwise) are doing these days. Traditionally, an employer must meet all six requirements in order to have an unpaid internship. Recently, however, courts have looked to the totality of the circumstances and balanced each factor to ascertain whether an unpaid intern-

ship is subject to the FLSA’s minimum wage and overtime requirements. Regardless, an employer should strive to meet all of these factors to avoid regulatory scrutiny. Importantly, the mere fact that an employer labels a worker as a trainee and the worker’s activities as training, does not make the worker an intern or trainee for purposes of the FLSA unless the six factors are met. For an employer desiring unpaid internships, there are some basic guidelines to follow based on the six-factor test. First, the more an internship is organized and run like an academic or vocational endeavor, the better off the employer is. The employer should have separate internship programs with training materials and handbooks for interns distinct from those for paid employees. An employer should never replace a paid position with an unpaid intern. And interns should always be closely supervised in the work that they perform. No possibility of obtaining a perma-

nent position as a result of the internship should ever be raised. The internship should have a set period and the intern should be graded on a scale akin to an academic endeavor. The intern should be given clear goals and expectations at the start of the internship and be provided with clear understanding from the outset that the intern will not be paid for the internship. Although an unpaid intern may sound like a great solution to employers trying to do more with less—interns are energetic, want to learn, want to prove themselves and are willing to work for nothing—an unpaid intern program that does not meet the requirements imposed by the DOL runs the risk of untold exposure for unwitting employers. HN Stephen Fox is a Principal and John Sanders is an Associate at Fish & Richardson P.C. Their practices focus on complex commercial litigation with an emphasis on labor/employment litigation. They can be reached at sfox@fr.com and jsanders@ fr.com, respectively.

The Fifth District Court of Appeals will hear live oral arguments about a local civil case. Monday, October 18, Noon Belo Mansion—Seating is limited

MCLE 1.50 To reserve a seat, contact Amy Smith at (214) 220-7484 or asmith@dallasbar.org by Sept. 30.

PROPERTY TAX ATTORNEYS

A skilled team of Property Tax Lawyers representing commercial property taxpayers throughout Texas www.txtax.com • Dallas, TX • (972) 250-6363

• 30 years of cost effective successful representation • Trusted by the Bar as a leading authority on complex property tax issues • Former Chair of the American Bar Association Property Tax Committee • Former Chair of the State Bar of Texas Property Tax Committee • Former Chair of the Entire Texas Bar Section of Taxation • President of the National Association of Property Tax Attorneys • Comprehensive services spanning the entire property tax appeal process, from administrative hearings through litigation • Expertise across a broad range of industry segments and property uses

We pride ourselves in finding solutions where others have failed. John Brusniak, Jr.

10 H e a d n o t e s l D a l l a s B a r A ss ociation

Septem ber 2010

Judicial Profile: Honorable Jorge Solis by Vincent J. Allen

rom the cotton fields in Abilene to next in line as Chief Judge for the Northern District of Texas, Judge Jorge Solis has a story any parent would be proud to tell. Despite having only an eighth grade education herself, Judge Solis’s mother encouraged her son by explaining that he could either pick cotton the rest of his life or get an education. Judge Solis was one of seven children. Because of his parents’ emphasis on education, all seven of their children went to college and five of the seven obtained college degrees. Judge Solis was the only one of the seven to obtain a graduate degree. A native of San Ygnacio, Texas, south of Laredo, Judge Solis and his family moved to Abilene when he was four. He had extended family members in South Texas who were involved in local politics, but he had no lawyers in the family. Although his grandfather was a constable, Judge Solis had no contact with the legal profession until after he went to law school. Judge Solis chose his alma mater before he decided he wanted to become a lawyer. In 1963, Judge Solis’s junior high football coach required each of his players to pick a football team to follow for the season. Judge Solis picked the Texas Longhorns. The Longhorns were named the National Champion that year after defeating the Navy team and their Heisman Trophy-winning quarterback Roger Staubach in the Cotton Bowl. Judge Solis was ecstatic and decided then that he would attend UT for college. But, after graduating high school, the country was embroiled in the

Vietnam War, and Judge Solis was contemplating joining the military. At his mother’s urging, he decided to go to college, but it was too late to apply to UT. So he attended McMurry University, where he earned a degree in history in 1973. Then his dream of attending UT became a reality when he was accepted into law school. Upon graduating in 1976, Judge Solis took a job as an Assistant Criminal District Attorney in Abilene to obtain trial experience. His first trial was the prosecution of a traffic ticket in JP court in Abilene. For many years after the trial, the opposing lawyer on the case teased Judge Solis about how he “tried the case like he was in front of the Hon. Jorge Solis Supreme Court.” In 1981, Judge Solis decided to run for District Attorney upon the suggestion of one of his colleagues. While he ran for office, he worked for a plaintiff ’s firm, Moore & Halloway. He was elected the Criminal District Attorney in 1983 and reelected in 1986. Then, in 1987, at the suggestion of Bill Thomas, the retiring Judge, Judge Solis ran for the 350th Judicial District in Abilene. In the interim, he worked as a solo practitioner in Abilene in 1988. During that time, Judge Solis was instrumental in establishing the West Central Texas Narcotics Task Force. Upon learning that funding was available, he wrote the initial let-

ters to prosecutors and police chiefs for various counties and was surprised at the positive response he received to those letters. As a result, the Task Force was established, remaining in existence to this day (as the West Central Texas Interlocal Crime Task Force). From 1988 to 1989, Judge Solis served as a Special Prosecutor for the Task Force. According to Judge Solis, the Task Force provided much-needed assistance to rural counties that could not afford to hire experienced narcotics officers. In 1988, Judge Solis was elected to the bench and served on the 350th Judicial District Court from 1989 to 1991. Judge Solis, like many other first time judges, was surprised by the difference in the mindset required of a good judge. Although Judge Solis had experience as an advocate on both sides of the criminal and civil dockets, he had to repeatedly remind himself during his first year that he needed to “let the lawyers be the advocates.” Although he thought his chances were “slim to none,” he decided to apply for an opening on the federal bench in Dallas. Upon the recommendation of Senator Gramm, President George H.W. Bush nominated Judge Solis in 1991. You would not know it from talking with Judge Solis, but he was very shy growing up. After express-

ing interest in being a lawyer, he was often asked, “How do you plan to be a lawyer if you can’t get up in front of a group and speak?” But he was able to overcome his fear of public speaking to become an effective jurist. Even though he is a federal judge with the inherent power that the position brings, Judge Solis often reminds his staff: “We should stay humble.” He likes to tell the story of one of his first cases on the federal bench. He had sent a number of notes back to the jury signing only his name. Eventually, a question came back from the jury, “Who is this sending these notes back to us?” After each trial, Judge Solis asks the jury to comment on their experience. The number one complaint he receives from juries is redundancy. The number two complaint is that lawyers are not professional, which is a pet peeve of his. While lawyers must be zealous advocates of the client’s case, a good advocate should not resort to gamesmanship and unprofessional conduct directed at the opposing lawyers. Judge Solis lives in Dallas with his wife and is active in the St. Elizabeth of Hungary church. He has three children, the oldest of whom is a lawyer in Boston. He serves as the liaison from the federal judiciary to the State Bar of Texas. He is also involved in the Criminal Law Committee of the State Bar of Texas, which has been compiling a series of books with pattern jury charges for criminal cases. HN Vincent J. Allen is a partner at Carstens & Cahoon, LLP, and Co-Chair of the DBA Publications Committee. He can be reached at allen@cclaw.com.

10th Annual Freedom Run Presented by Scott & Scott

5K Run

Thursday, September 9, at 6:30 p.m. at Dallas City Hall Plaza Benefitting the Assist The Officer Foundation. Paying tribute to the victims and heroes of 9/11. Register Online at www.freedomrun.com. Sponsored by the Dallas Association of Young Lawyers.

Ted M. Akin ★ 4,000+ cases mediated ★ Full-Time Mediator since 1989 ★ 90%+ settlement rate ★ 35 years of judicial experience ★ Justice retired 5th Court of Appeals ★ Chair - The Civil Collaborative Group ★ Member - The Association of Attorney-Mediators

3023 Hester Avenue Dallas, Texas 75205-3525 (214) 821-6370 www.judgeakin.com

★ Distinguished Mediator - Texas Mediator Credentialing Association ★ Panel - FINRA Dispute Resolution ★ Panel - CPR: International Institute for Conflict Prevention & Resolution

Mediator ★ Arbitrator ★ Special Judge

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Da l l as Bar A ssoci ati on l Headnotes 11

Labor & Employment

The ADA Amendments Act of 2008 by Rob Wills and marcia jackson

n January 1, 2009, comprehensive legislation amending the Americans With Disabilities Act of 1990 (ADA) took effect. Believing that courts had strayed from the ADA’s original purpose, advocacy groups lobbied for the passage of the Americans With Disabilities Act Amendments Act of 2008 (ADAAA) to attempt to bring the statute back in line with the goal of eliminating discrimination against individuals with disabilities. This article examines the ADAAA revisions, and whether its goals are being met. The ADAAA was largely designed to overturn two Supreme Court decisions. The first, Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), required consideration of mitigating measures such as medications and hearing devices when evaluating whether one’s impairment substantially limits a major life activity. The second, Toyota Motor Mfg., Ky, Inc. v. Williams, 534 U.S. 184 (2002), required an impairment to be “severely restricting” to the performance of a centrally important life activity to qualify as a substantial impairment. By changing these results, Congress intended to increase the pool of individuals eligible for protection under the statute. Congress also delineated specific major life activities and multiple bodily functions that, if substantially impaired (even if the impairment is not “active”), support eligibility under the ADA, rather than leave such inquiries to individualized, case-by-case assessments. Many employers believe the ADAAA

goes well beyond what is necessary and was otherwise contemplated by Congress twenty years ago; not surprisingly, advocacy groups still feel the ADAAA does not reach far enough. Aside from the controversy surrounding the enactment of the ADAAA, has anything in fact changed? In terms of legal decisions, the answer appears to be not much, at least not yet. While courts have refused to apply the new ADAAA legislation retroactively to conduct occurring before January 1, 2009, these same courts have not shied away from expressing what their decision might have been if based on the new standards. For example, the Fifth Circuit recently held that an employee did not meet the ADA standard of disability because the employee’s “hearing impairment is not substantially limiting when it is mitigated through [employee’s] use of his electronic hearing aid…” Kemp v. Holder, No. 09-30255, 2010 U.S. App. LEXIS 13964, at *7 (5th Cir. June 22, 2010). Yet, the court noted, “Kemp’s claim might fare differently if the ADAAA applied.” Id. at *10. Similarly, a New York district court held that an employee’s sickle cell anemia did not constitute a disability because the employee’s condition was merely “episodic.” The court also recognized, however, that the temporal restrictions under the ADA were amended by the ADAAA. They now provide that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active,” suggesting that this decision

would also be different if decided under the ADAAA. Casseus v. Verizon New York, Inc., No. 08-cv-4119, 2010 U.S. Dist. LEXIS 68910, at *54 (E.D.N.Y. July 9, 2010). There can be little doubt that courts are becoming increasingly aware of the significance of the ADAAA, or that employers should remain vigilant in ensuring they comply with the statute. In particular, it is even more important that employers take seriously the obligation to engage in the “interactive process” with those requesting and/or possibly needing accommodation. A more measurable change can already be seen in the number of administrative charges of disability discrimination filed since the ADAAA’s enactment. According to EEOC statistics, more than 21,451 disability discrimination-related charges were filed in 2009, up 10 percent from 2008, and more than the number of charges in any of the previous 17 years (i.e., since the ADA took effect). Whether that increase is directly attributable to the substantive revi-

sions of the ADAAA is unclear, though it is plausible to make the connection. But we are likely still years away from answering the most critical inquiry: Will expanding the class of individuals considered “disabled” actually lead to greater employment for persons with disabilities, particularly those with apparent health conditions? Sadly, certain studies illustrate that one of the unintended consequences of these rights may be a reduction in the total number of persons with disabilities being employed in the first place. Like most statutes, only time will tell whether Congress’s purpose will be achieved or whether its impact will be muted or, worse, harmful to the underlying mandate to improve employment opportunities for those HN with disabilities.

Rob Wills is an associate in the litigation practice group with the business law firm of Wick Phillips Gould & Martin, LLP, and can be reached at rob.wills@wickphillips.com. Marcia Jackson, of the Labor and Employment practice group at Wick Phillips, contributed to this article and can be reached at marcia.jackson@ wickphillips.com.

PUBLIC EDUCATION HEARING ON DISCIPLINARY RULES Friday, September 3, Noon to 2 p.m. Belo Mansion Join us for a public education hearing on the proposed amendments to the Texas Disciplinary Rules of Professional Conduct. To read the proposed amendments visit www.texasbar.com/ethics.

12 H e a d n o t e s l D a l l a s B a r A ss ociation

Septem ber 2010

Column Writing on Writing

Fighting the Toll Booth Syndrome by Scott P. Stolley

oll booths are becoming an anachronism. Anyone have a problem with that? Unfortunately, the Toll Booth Syndrome is alive and well in legal writing. This is a problem. In 1987, law professor George Gopen coined the phrase Toll Booth Syndrome to explain why so much legal writing is wretched. Gopen analogized to a tired lawyer who tosses out the requisite coins when approaching a toll booth. If the coins miss the toll basket, what does the lawyer do? If the lawyer believes that the purpose of the toll is to pay for road construction and maintenance, he or she will stop and “grovel in the gravel” to find the coins and put them in the basket. On the other hand, if the lawyer believes that the purpose of the toll is merely to divest him or her of loose change, the lawyer will drive on because the purpose has been accomplished. Too many lawyers believe that a brief is just a basket for loose change. All that matters is that they divest their knowledge (their loose change) onto the page. This is a recipe for an awful brief.

Let’s bring the analogy forward to the computer age. A brief is not a data dump for your knowledge about the case. You cannot treat a brief as if you are simply downloading from one computer to another. I have yet to meet a judge who wants to be a receptacle for a comprehensive download. A brief must be a focused effort to persuade. To produce such a brief, you must put in the hard work of “groveling in the gravel.” Here are five tactics to achieve this: 1. Decide what the issues are—You don’t truly know your case until you know what the issues are. Also, the judges invariably want to know what the issues are. That’s what judges do—they decide issues. If you don’t give them the issues, they will make up their own. A good way to lose is to let someone else decide what issues are teed-up. Be judicious in determining how many issues you raise. In law school, we are taught the art of issue spotting. Although a data dump of the issues may score high on a law school exam, judges uniformly advise lawyers to limit the number of issues. Judges will tell you

that a brief is more impactful when it is focused on a few issues. 2. Outline from there—Once you know your issues, you can build an outline. Once you’ve built the outline, the brief will practically write itself. The outline will keep you focused on the issues and deter you from turning the brief into a data dump. 3. Be selective in the fact statement— Many lawyers download all of the facts into the statement of facts. But by the time the issues get narrowed on appeal, most of the factual detail becomes irrelevant. The judges don’t need a blow-byblow account of every event or every witness’s testimony. Let the issues guide how you draft your factual recitation. Consistent with your ethical obligations, include only the facts necessary to an understanding of the issues and your theme of the case. 4. Cite fewer cases—Lawyers tend to cite too many cases, which is understandable. After a lawyer spends hours locating buried treasure in the case law, it is painful to discard that treasure. But again, this isn’t law school, where showing off your scholarship is

paramount. The court doesn’t need to see all of your research—only the most important cases that support your arguments. As Professor Geoffrey Hazard has said, “The object is to be clear, not to show how hard it was to be so.” 5. Don’t over quote—Many briefs take up way too much space quoting from cases. Block quotes are especially distracting and hard to read. And they usually include more text than is necessary to make the point. Better to accurately paraphrase, thus exhibiting your mastery of the pertinent legal concepts. The Stockholm Syndrome is a condition by which a hostage develops an affinity for his or her captors. Under the Toll Booth Syndrome, lawyers develop too much affinity for the details of their cases. They become hostage to the minutiae. Resisting the Toll Booth Syndrome will improve your chances, because you can be sure that the court does not care to HN be hostage to the minutiae. Scott P. Stolley is the leader of the Appellate Practice Group at Thompson & Knight LLP. He is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization. He can be reached at Scott.Stolley@tklaw.com.

Dallas Tomorrow

Dallas Hispanic Bar Association to Honor Adelfa B. Callejo at 5th Annual Lighting the Path to Legal Education Scholarship Fundraiser Dinner and Awards Ceremony September 30 at 7:00 p.m. at the Belo Mansion Other awards presented: DHBA Corporate Counsel Diversity—Carlos M. Hernandez DHBA President’s Award—Michele Wong Krause For sponsor or ticket information, contact Maricela Siewczynski at (214) 634-9990 or maricela@texemploymentlaw.com. On Tuesday, August 3, the DBA Public Forum hosted its second Dallas Tomorrow Forum at the Belo Mansion. The panelists included (left to right) UNT Chancellor Lee Jackson; Dr. Gail Thomas, president and CEO of The Trinity Trust Foundation; Keven Ann Willey, Dallas Morning News Vice President; and Dallas Mayor Tom Leppert (below). Also pictured are DBA Public Forum Co-Chairs Phillip Kingston and Cheryl Camin and DBA President-Elect Barry Sorrels.

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Da l l as Bar A ssoci ati on l Headnotes 13

Labor & Employment

An ounce of prevention is worth a pound of cure by Michelle Alice Morgan

enjamin Franklin’s famous adage rings true as the government has increased its manpower and announced its commitment to audit employment practices—with a focus on payroll practices. Now is a good time for companies to evaluate whether they are treating some workers as independent contractors when they should really be treated as employees and, if so, make a change before the auditors come knocking. Also, for employees who are not being paid overtime, it is critical to make sure the circumstances support the decision not to pay overtime.

Worker Classification

Companies that use individuals on an independent contractor basis (also known as “a 1099 basis”) would be wise to audit this practice to determine whether their classification of some workers as independent contractors actually meets the legal requirements. Frequently, people presume that all it takes to have a 1099 arrangement between the company and the worker is the agreement of both parties, but that is not the case. Whether a worker can legally be considered a 1099 contractor is complicated and varies according to the context of the engagement. While there is no single definition that applies in all contexts, the IRS’s Common Law Test, the DOL’s Economic Realities Test and Texas’s common law rules all tend to focus on the question of which party has the “right of control”—the company or the worker? If the company retains control over how the work is done, when the work must be done and other aspects of the manner of the work, the worker probably does not fit

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the mold of an independent contractor. For example, when making its determination, the IRS examines three categories of control: (1) behavioral control (such as instruction, direction and training given by the company to the worker), (2) financial control (such as the degree of the worker’s financial investment, whether the worker markets himself/herself as being available for hire by other companies) and (3) the type of relationship of the parties (such as permanency of the engagement and whether benefits are provided). While proper use of independent contractors allows a company to take advantage of certain benefits and savings, a misclassification can result in stiff penalties and fines. Other downsides to misclassification include concerns in the realm of insurance coverage, as most policies do not cover losses caused by independent contractors.

Employee Classification

For the W-2 employees of a company, it is equally important to evaluate whether the company has properly classified

employees as exempt vs. non-exempt. As with the overall worker classification issue, the issue of who is exempt from being paid overtime under the Fair Labor Standards Act (FLSA), or non-exempt, is a hot topic among government auditors and is another area in which misclassification can cost a company dearly. A common misperception is that, by paying an employee a salary, the company doesn’t have to pay that person overtime pay. While it is true that paying an employee a regular salary is one part of the equation, the other part of the equation is equally important: ensuring that the employee’s actual job responsibilities fit into one of the recognized categories of exemption under the FLSA. If the employee’s actual job responsibilities do not fit the definition of one or more of the exemption categories, the employee is entitled to overtime—even if he or she is paid on a salary basis. The DOL provides a good overview of some of the most common categories of exemption, including the professional exemption, the administra-

tive exemption, the computer professional exemption and the outside sale exemption (see www.dol.gov/whd/regs/compliance/ fairpay/fs17a_overview.pdf). It is important to note that the actual elements of each exemption category do not necessarily match up with what one would expect based on simply looking at the title of the exemption. For example, many people who have jobs that are considered “administrative positions” do not meet the test for someone exempt from overtime pay under the “administrative exemption” of the FLSA. Also, many of the exemption categories require that the person be guaranteed a salary of at least $455/week and the company must not dock pay or make other deductions other than those that are HN expressly allowed by law. Michelle A. Morgan, a partner in Shackelford, Melton & McKinley, is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization and a member of the DBA Labor and Employment Section. She can be reached at mmorgan@shacklaw.net.

14 H e a d n o t e s l D a l l a s B a r A ss ociation

Septem ber 2010

Eight Steps to a Better Voir Dire by Mike H. Bassett

he judge has finally finished talking to the jury panel. She turns to you and says, “Counselor, please proceed.” What to do now? Text books can be (and have been) written on the art of picking a jury. This article, though, will provide you with eight tips for conducting a better voir dire during your next trial. 1. Preparation is the key. You need to know your case inside and out. This is the first time that the jury is going to hear you speak and you will

never have this opportunity to make a good first impression again. This is the time to establish credibility, charisma and control. Don’t blow it. 2. Find out how your judge conducts voir dire. Does your judge allow you to get into the facts of the case during voir dire? The last thing you want to do is have the judge stop you in the middle of picking a jury to reprimand you for “breaking one of her rules.” Know these things before you stand up. 3. PowerPoint is the only way to go. This allows you not to have to fumble with notes. Based upon my

Summer Law Intern Program

On Friday, August 6, the Summer Law Intern Program (SLIP) celebrated the end of the 2010 program with a reception at the Belo Mansion. In addition to SLIP interns and their families, guest included (left to right) Erin Peirce, SLIP Co-Chair; Hope Shimabuku, SLIP Committee member and DAABA President; keynote speaker Chief Justice Carolyn Wright of the Fifth District Court of Appeals, Ryan McFarlin, SLIP Co-Chair and Diane Sumoski, DBA Board Member.

very non-scientific interview of juries over the last 10 years since I’ve been using PowerPoint, it gives the impression that you are instantly credible. Also, my experience leads me to believe that folks are going to retain 80 percent or more of what they see and hear. 4. Have a seating chart. While I have tried cases against lawyers who have the ability to memorize an entire jury panel, my limited brain capacity won’t allow me to do that. The seating chart allows you to home in on jurors right away and, most importantly, call them by name. 5. Read the juror information card before jury selection starts. Juror information cards can be a wealth of information. At a minimum, you want to find out if any of your jurors have been involved in any type of litigation before, have ever served on a jury, and what they do (or have done) for a living. These bits of information can be great launching points to get a juror to talk. 6. Talk 25 percent of the time, listen 75 percent of the time. All too often, attorneys think that they should talk to a jury during voir dire. I disagree. I think this is a time to let jurors tell you about their biases and prejudices and how they view the world. Ask open-ended questions! “How do you feel about…?,” “When you hear that my client is a big trucking company, how do you feel?,” or “How do you feel about sitting on a jury involving an accident where somebody lost their life?” Stay away from questions that allow jurors to give one-word answers. 7. Make sure you talk to every juror. I’ve had it happen many, many times. You’re gathered around a table

trying to figure out who you’re going to strike from your jury and someone say, “What about juror number 13?” Everybody looks at their notes and realizes that juror number 13 hasn’t said a thing. Then someone says, “I think he looked to be fairly reasonable.” And then juror 13 gets on your jury and ends up absolutely being your worst possible nightmare. The solution? Make sure you have at least a two- or three-sentence exchange with every juror that can conceivably end up on your jury. 8. What do I do with that character on the jury pool? It happens to all of us—there is one person in the jury pool who wants to answer every question and whose opinions seem to be based on a reality that no one else can grasp. Your first reaction may be to shut this person down. My experience, however, has told me to let them say a few things and then, the next time the person raises a hand, explain that you appreciate the opinions, but that you want to give other jurors a chance to talk. Be careful not to shut them down or humiliate them in front of the other jurors. There they are—eight steps to a better voir dire. Be prepared, know how the judge conducts voir dire, use PowerPoint (always), make a seating chart work for you, listen to the jurors—don’t talk to them, use the information found on the juror information cards and lightly but firmly handle that character on the jury HN panel.

Mike H. Bassett is a partner at The Bassett Firm in Dallas County, Texas. He has been a member of the Dallas Bar Association for 22 years. Mr. Bassett can be reached at MBassett@thebassettfirm.com.

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Da l l as Bar A ssoci ati on l Headnotes 15

Column The Business of Law

Drawing Back the Curtain by Mary Louise C. Hopson

This month’s column is dedicated to the new crop of Dallas lawyers. If you are one, welcome!

hat a year to begin practice as a lawyer. With the economic downturn that started while you were still in law school, we hope you have landed a job by now. If you are reading this, perhaps you are employed and have joined the DBA. If you are not yet a member, please join now to reap the many benefits of membership, which include meeting and learning from fellow lawyers in the community and getting Headnotes every month. Ask if your firm will pay your DBA dues. If you are a lawyer just starting out at a firm, wouldn’t you love to have a book that helps you understand how law firms really work and what is expected of you in the workplace? If you have a few years of experience, or even more tenure, and occasionally are mystified by the inner workings of your firm, would such a book help as you continue your practice? We have a suggestion for you: Introduction to Law Firm Practice, a new book from the American Bar Association’s Law Practice Management Section.

A New Beginning

With new lawyers arriving at firms all over town, and thousands more of their older brethren returning to their practices from well-deserved summer vacations, September is a great month to talk about this new book, written to help lawyers, particularly the newly minted ones. Author Michael Downey, a partner at Hinshaw & Culbertson LLP and Adjunct Professor at Washington University School of Law, “draws back the curtain” to explain how firms actually function. In Downey’s words, the goal of the book is to “empower better decision-making, and thus help newer entrants find greater satisfaction and happiness in a law firm.” A law firm is a complex animal, and law firms differ from one another. But there are certain similarities, and knowing more about them, along with the differences, will help you as your career progresses. Of course, a paperback of less than 250 pages cannot include comprehensive explanations of all of the topics covered, but the book provides an excellent overview to help new lawyers understand how things work in a law firm and what is required for success. And a wide list of topics it is, including: how firms are organized; firm governance; comparisons of time-based, flat-fee, and value-based billing and related procedures;

Vision 2020—Your View As the work of the Vision 2020 Commission proceeds, the committee wants your thoughts and ideas on the project. This is a project of your Association and it is intended to improve what the DBA does now for you and what it can do in the future.

E-mail your ideas and suggestions to dbavision2020@dallasbar.org.

DVAP’s Finest Marsha Hunter

Marsha Hunter is a sole practitioner who has been volunteering with DVAP for several years. She strongly believes that it is our responsibility as attorneys to ensure that the justice system works for the economically disadvantaged, as well as for those who have resources. The Dallas Volunteer Attorney Program has given her the opportunity to help individuals in our community who really need and deserve help. “I do not know of any other organization that has done as much to change the lives of others for the better in this way, and I am delighted to be able to be a part of that effort,” Marsha says. She has taken several contested family law cases and probate cases. “The DVAP staff screens the clients they send to me, so much of the initial work has already been done when the client comes to my office for their first interview. The DVAP mentor attorneys are always available to answer questions and provide guidance, forms and other resources. Volunteering with DVAP does not take a lot of time, and the rewards are great. I intend to continue to volunteer with DVAP in the years to come and encourage other attorneys to do so,” Marsha states. Thank you, Marsha!

Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.

A joint legal aid program of the Dallas Bar Association and Legal Aid of NorthWest Texas (formerly Legal Services of North Texas).

compensation; client development and marketing, including personal marketing and the “elevator speech”; profitability; client intake procedures, including conflict checks, engagement letters, retainers; protecting client funds; and thoughts on firm culture. Also covered are challenges to successfully managing a firm; comparisons of the different titles lawyers carry; temporary and contract lawyers; nonlawyer positions at firms, including paralegal and administrative positions; performance evaluations; pro bono; client retention and cross-selling; professional liability; malpractice and complaints; diversity; mentoring; and supervision. Four valuable exercises are included on making partner, organizing a practice, compensation and culture and marketing.

Why This Book Is Important

Having the opportunity to work with others in a law firm can be very rewarding. One has the chance to collaborate with other smart, highly-educated people to help clients and make a difference in the world. The financial rewards—even in the current economic environment—can be great. You will work hard, but you will be able to make meaningful contributions to your firm as

you build up valuable experience. As part of your long-range career planning, you will want to know all you can about how your firm “ticks.” Being familiar with its business and cultural underpinnings is essential to knowing how you fit in and the expectations the firm’s partners will have of you. Some of these topics are discussed in law schools, but there is room for greater understanding. This book helps to close the gap between education and practice. The price is $79.95, but DBA members can purchase this and other ABA books at a 15 percent discount. To order, or for more information, call (312) 988-6112 or visit www.ababooks. org. Enter code PAB7EDBA upon checkout to get the discount. Why do I like this book? In a business world that seems to change by the day, a good understanding of one’s work environment is essential. This book helps lawyers maximize their opportunities for success, giving them a greater sense of control over their practices and, as a result, perhaps more happiness. HN What’s not to like about that? When she’s not writing The Business of Law, an occasional column about the business side of law firm practice, Mary Louise Hopson helps lawyers market their services. She is a former co-chair of the Publications Committee. She can be reached at mlhops@sbcglobal.net.

You Are Invited

To the Investiture of U.S. Magistrate Judge Renee Harris-Toliver Friday, September 3, 3:30 p.m. United States Courthouse, Courtroom 1546 1100 Commerce Street Reception following at The City Club 6900 Bank of America Plaza 901 Main Street RSVP: (214) 753-2151

16 H e a d n o t e s l D a l l a s B a r A ss ociation

Septem ber 2010

LRS Panelists Provide Decades of Service by Lee Baldwin

he DBA Lawyer Referral Service (LRS) Committee is pleased to announce that this year’s annual meeting will include something new and different—the recognition of all DBA members who have been on the LRS Panel for 10 or more years. The Panel currently has more than 200 members, but the Committee was surprised to learn that almost one in four of those members has served on the panel for over 10 years. A short questionnaire was sent to those who joined in 1986, and their informative reflections are summarized below. All of the respondents agreed that the primary reason for joining the Panel was because of the potential business it could bring. However, a large percentage of the respondents also viewed LRS membership as a larger opportunity to serve the public. This explanation was of particular interest to the Committee, because it contradicts a negative stereotype that we often see: the greedy and self-serving lawyer. This “service to the public” explanation from LRS panelists has many facets. Vernon Witherspoon, for example, saw it as a way to provide low-cost legal services to persons who only needed some legal advice without having to get involved in full-blown litigation. David Carlock considered it as a way to give back to the

community by delivering legal services to the poor. Ray Walker pointed out that often a simple conference with an LRS referral provides the resolution to a question or problem for a member of the public who may have thought that his or her problem was more complicated than it really was. Michael Linz observed that the LRS Panel, when originally established and in today’s world, provides a service to a public that often does not know how or where to obtain an attorney. All of the LRS panelists who responded agreed that the practice of law has changed significantly in the past 20 years. Mr. Linz pointed out that he originally received a number of out-of-state referrals from persons seeking local counsel. Today, however, and because of the Internet he suspects, he receives almost no such calls. Mr. Walker believes that the biggest difference between today’s practice and that of the 1980s is that clients now avoid face-to-face meetings, often preferring to do many things by fax or e-mail. He believes that easy access to information provided by the Internet has affected law practice as well, but that because the information on the Internet is free—although not always reliable— clients increasingly do not see the value of using a lawyer. Mr. Carlock pointed out that the

Annual Evening Ethics Program Tuesday, October 5, 6 to 9:30 p.m. at the Belo. Sponsored by the CLE Committee. RSVP to Kathryn Zack at kzack@dallasbar.org by September 30.

practice of law is much more competitive today than it was when he joined the LRS Panel in 1986. Originally, as a family law practitioner, he relied heavily on referrals from other lawyers. However, today there is much more emphasis on marketing one’s practice, and he believes that a well-designed website is a must in today’s competitive environment. Mr. Witherspoon believes that there was greater potential for business prospects in those early years and that there were more new client prospects per attorney than there are now. John Gargan noted that, back in the seventies, legal specializations had not yet surfaced, so every lawyer was presumed to be able to “do it all.” In addition, the DBA itself was much smaller, and Dallas attorneys pretty much felt that they knew each other or had a greater familiarity with opposing counsel than they do today.

Bruce A. Alford Ward Beaudry Tom Blakeley William Blankenship F. Clinton Broden Janet Boyanton Robert Clark David Carlock J. Kem Carlson Carla Earwood Norman H. Ewert Jonathan Gansell John P. Gargan E. Michael Grossman Robert D. Hemphill Doanld C. Hood

All of those surveyed agreed that LRS Panel membership has helped their practice. It still serves as a reasonable source for potential clients, and the LRS staff is always pleasant to deal with and willing to answer any questions. In an era when attorneys are often characterized as being greedy or just thinking about themselves, the respondents consistently referred to LRS Panel membership as a “service to the community,” and a way to help people. No doubt this desire to serve has been a material motivator for all 49 of the people who will be honored by the DBA in November. Please join us in thanking them for making our profession better because of their decades of service HN as an LRS Panel member. J. Lee Baldwin maintains a solo practice, and is the Chair of the LRS Committee. She can be reached at leebaldwin@dfwatty.com.

THANK YOU!

Catherine T. Johnson H. Michael Johnson Stephen P. Karns Rick Krause William Lamoreaux David Leon Michael F. Linz Thomas J. Lochry Raul H. Loya W.W. Mitchell, II Melton Myers Sanjay S. Mathur Jonathan A. Pace Willaim B. Pasley Lanny E. Perkins J. Scott Perry William B. C. Pittenger

Hardin Ramey Carl E. Roberts Micahel E. Rohde James T. Rudd Larry D. Salmon Michael T. Savage William L. Siegel Thaddeus M. Sims Richard A. Sinzinger Daniel Strann Bert Starr Kay L. Van Wey Ray Walker Shelly B. West Vernon Witherspoon David C. Wright

Sep t e mb e r 2 0 1 0

Focus

Da l l as Bar A ssoci ati on l Headnotes 17

Labor & Employment

What Does Your DNA Say About You? By Robert G. Chadwick, JR. and Lindsay McNutt

he idea of employers collecting or using genetic information for employment decisions—remember the movie Gattaca—seems more like a far-fetched science fiction story than an actual business practice today. Indeed, the Genetic Information Nondiscrimination Act (GINA) was passed primarily to prevent genetic information discrimination before it had taken firm hold in the workplace. GINA only became effective on November 21, 2009, but as of April of this year, 80 charges of discrimination had already been filed under the new law with the Equal Employment Opportunity Commission (EEOC). One charge in particular made national media attention when an employee in Connecticut was terminated after disclosing to her employer that she had tested positive for the BRAC-2 gene, which can increase one’s risk for breast cancer. These charges beg the question: If genetic information discrimination is perceived to be merely science fiction, why are so many claims being filed?

One answer may be the shear breadth of protection afforded by GINA. The act applies to employers with 15 or more employees, and prevents an employer from requesting, requiring or purchasing the following information: (1) genetic tests of an employee or family member, (2) manifestation of a disease or disorder in a family member, (3) any request for or receipt of genetic services by an employee or family member, or (4) participation in genetic research by an employee or family member. A family member includes a dependent of an employee or a first- to fourth-degree relative of the employee or dependant; genetic information of a fetus or embryo is also protected. Certain uses and disclosures of genetic information by an employer, however obtained, are also prohibited. GINA provides limited exceptions for employers who acquire genetic information, but even seemingly innocuous inquiries or mistaken beliefs by unwary employers can lead to potential violations. Employers who inquire regarding an employee’s health or continue to follow typical business practices of collecting medical information to comply with other policies

Christmas in July

can unwittingly violate GINA. For instance, one exception allows an employer to obtain genetic information to comply with the certification provisions of the Family and Medical Leave Act of 1993 (FMLA) (or leave under similar state or local laws). The FMLA allows employers to require an employee submit certification by a health care provider to document that the employee qualifies for leave under the act. An employer who obtains genetic information regarding an employee, however, only to later learn that the employee was ineligible for FMLA leave may not be entitled to this exception. GINA provides another exception for genetic information “inadvertently” requested or required by an employer. Interpretive regulations proposed by the EEOC as to this exception would allow an employee to provide genetic information to support (1) a request for leave not governed by law, or (2) a request for accommodation under disability discrimination laws. These regulations do not, however, address the scope of the inquiries which may be made by an employer in such regard. An employer can conceivably violate GINA, therefore, simply by adhering to established, but overly broad, policies requiring medical verification to support a request for leave or reasonable accommodation. The proposed EEOC regulations would also apply to “water cooler” conversations where a supervisor overhears co-workers discussing an employee’s genetic information, or

where an employee proffers protected information in response to a benign question, such as “how are you feeling today?” However, if the supervisor joined the co-workers’ conversation or asked the employee for further information, the acquisition of genetic information may no longer be inadvertent and could be a violation of GINA. Even where acquired through a lawful inquiry or voluntary disclosure, genetic information can still haunt an employer. An employer may violate GINA if the genetic information is not properly maintained. The act requires that protected information be kept on separate forms and in separate medical files; genetic information may not be maintained as part of an employee’s personnel file. Lawfully acquired genetic information can also form the basis of a charge of discrimination. GINA forbids an employer from using such information as a basis for an employment decision. As with the Connecticut employer described earlier in this article, an employer’s knowledge of genetic information followed shortly by an adverse employment decision can itself prompt an EEOC charge. As with any new employment law, there is going to be a learning curve for unwary employers under GINA. As EEOC charge statistics already show, HN time is not on their side.

Robert G. Chadwick, Jr. is a shareholder at Campbell & Chadwick, P.C. and can be reached at rchadwick@cllegal. com. Lindsay McNutt is an associate at Campbell & Chadwick, P.C. and can be reached at lmcnutt@cllegal.com.

Available NOW!

In July, the DBA Community Involvement Committee held their annual “Christmas in July” drive to collect donations for local charities. This year’s recipients are North Texas Food Bank, Genesis Women’s Shelter and The Family Place. Thanks to CIC committee members Tracye McGaughy (left) and Elaine Mosher for helping with collections.

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18 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

Septem ber 2010

September

FROM THE DAIS

Jerry Selinger of Patterson Sheridan, LLP, spoke at a seminar jointly sponsored by Southern Taiwan University and National Cheng Kung University in Tainan, Taiwan. Monte Hurst of Hermes Sargent Bates L.L.P., was a panelist at the South Texas College of Law, In-House Counsel and Employment Law Conference in Houston.

Robert H. Voelker of Munsch Hardt Kopf & Harr, P.C., spoke at the annual Texas Housing Conference, which is sponsored by the Texas Affiliation of Affordable Housing Providers. Maria Wiemann and Mitchell Milby of Milby PLLC, presented a ZweigWhite Webinar to HR professionals nationwide. Randy Johnston of Johnston + Tobey, P.C., spoke at the 2010 Advanced Civil

. . . . . . DBA In the News . . . . . . During the past two months, your DBA has been highlighted in the following media: Al Dia: Legalline Best Southwest Neighbors: Legalline Commercial Recorder: State Bar awards—Dallas Bar and Dallas Volunteer Attorney Program Coppell Gazette: LegalLine multiple times dBusinessNews: DBA Community Involvement Committee’s Christmas in July; Dallas Tomorrow Forum; LegalLine; SLIP; Headnotes wins APEX Award; CIC’s School Supply Drive; DBA’s Veterans Legal Clinic Dallas Business Journal: DBA receives SBOT awards Dallas Child Magazine: DBA listing Dallas Examiner: Dallas Tomorrow Public Forum Dallas Morning News: Robert Miller’s business column in print and online for the Summer Law Intern Program (SLIP); CIC’s Christmas in July drive; Dallas Tomorrow Public Forum; Veterans Clinic Dallas Morning News: Community Calendar print and online: Legalline, CIC’s Christmas in July drive; Dallas Tomorrow Public Forum; Veterans Legal Clinic

Dallas Morning News: Things to Watch: Dallas Tomorrow Public Forum Dallas Observer: Dallas Tomorrow Public Forum Dallas South News: Dallas Tomorrow Public Forum Fox 4 TV: Clarice’s Hometown Heroes—CIC’s School Supply Drive (Special thanks to Kane, Russell, Logan and Coleman for their generous donations) KLTY: Veterans Clinic, Legalline, other DBA community service projects LegalFront: DVAP Veterans Legal Clinic Little Elm Journal: Veterans Legal Clinic North Dallas Gazette: SLIP Pegasus News: Dallas Tomorrow Public Forum Post Tribune: Legalline SBOT Newspaperclips.com: SLIP, CIC’s Christmas in July drive, Veterans Legal Clinic, CIC’s School Supply Drive

Trial Course in San Antonio and at the State Bar College Summer School Program in Galveston, Texas. Judge Carlos Cortez of the 44th State Civil District Court spoke at the Texas Trial Lawyers Association annual Litigation seminar. Linda Turley of the Turley Law Firm spoke at the 2010 Belli Society Seminar in Vancouver, Canada.

KUDOS

Al Ellis of Sommerman & Quesada LLP, was selected the 2010 recipient of the Jim D. Bowmer Professionalism Award for Outstanding Contributions to the Profession by the College of the State Bar of Texas. Robert L. Harris of the Dallas office of Shannon, Gracey, Ratliff & Miller, LLP, has been accepted as a member in the International Association of Defense Counsel (IADC). Katherine Compton of Greenberg Traurig, LLP, received the Virginia S. Mueller Outstanding Member Award from the National Association of Women Lawyers (NAWL). William Gardner with Milby, PLLC, published “Drafting a Sound Contract: A Checklist of Important Contractual Provisions” in the July 2010 Stare Decisis, a quarterly publication of the Primerus Young Lawyers Group. Bob Driegert, attorney-mediator, was elected Treasurer for the American Association of Attorneys-CPAs. Mary Alice McLarty of The McLarty Firm, P.C., has been elected vice-president of the American Association for Justice (AAJ). Judge Carlos Cortez of the 44th Civil District Court received the Texas Wesleyan School of Law Distinguished Alumnus Award.

William Hornberger of Jackson Walker LLP, has been selected to serve as outside General Counsel of the National Society of Hispanic MBAs. Kelly M. Crawford of Scheef & Stone, L.L.P., has been elected to membership in the Fellows of the Texas Bar Foundation.

ON THE MOVE

Bejan K. Ghatrehee has joined Kroney Morse Lan, PC as an Associate. Jeffrey Ansley has joined Curran Tomko Tarski LLP in the white collar and securities enforcement defense division. Jason Emmitte has joined Looper Reed & McGraw P.C. as an Associate. Mark Craig and Kent Williamson have joined the firm of SettlePou as Associate and Shareholder, respectively. Manuel Diaz, John M. Helms, Jr. and Eric Johnson have formed the new firm of Helms, Johnson & Diaz LLP located at 6060 North Central Expressway, Suite 560, Dallas, TX 75206. Mark A. Stinnett of Stinnett Thiebaud & Remington LLP, has been chosen to serve as managing partner of the firm’s new Colorado Springs, Colorado, office. Stinnett will divide his time between the Dallas and Colorado Springs office. Travis Brown, Todd Goldberg, Hamilton Lindley and Keith Koshkin have joined Goldfarb Branham LLP, as Associates. Jonathan Covin has joined Wick, Phillips, Gould & Martin LLP, as Partner. News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org.

You can listen to the KLTY radio spot and view Fox 4’s Hometown Heroes here: www.dallasbar.org/info. asp?info=49.

Presented by the Dallas Association of Young Lawyers

2009 Leadership Class

When: Saturday, September 25, 2010 Where: Dallas Zoo Time: 6:00-7:00 p.m. - VIP reception 7:00-10:00 p.m. – Zoo-a-Palooza Tickets: $50 each, $75 for VIP tickets, sponsorships available. Proceeds benefit Dallas Zoo’s Educational Outreach Program. For more information, log on to www.zooapaloozadallas.com.

Public access to court records now available Public access to family, civil and criminal court records is now available at www.dallascounty.org/districtclerk or http://www.dallasbar.org/info.asp?info=50.

Sep t e mb e r 2 0 1 0

Classifieds

Da l l as Bar A ssoci ati on l Headnotes 19

September

OFFICE SPACE

Attorney sublease in downtown Dallas business law firm. Easy freeway access, great views and free parking. $16.75 sq ft (tracks primary lease). Inquiries to: Dallas Bar Association, Box 09-10A, 2101 Ross Avenue, Dallas, TX 75201. Preston Tower—3 offices with shared amenities, as low as $595/mo. (kitchen, conference room, reception area, bathroom). Convenient and accessible. 10 minutes from courthouse. Call (214) 369-1171 or e-mail: herbhooks@aol.com. Campbell Center: AV law firm has 2 offices for sublease. New space with exceptional finish out and elevator exposure, amenities included. Law firm also has overflow business litigation work for associate level attorney. Call Joy (214) 361-1262. Galleria Area: Law firm located at Lincoln Centre has exterior window offices and interior secretarial offices available. Offices can be rented individually or as a package. Includes use of 2 conference rooms, 2 copiers/scanners, postage meter, fax, VoIP, T1 Internet phone service, 2 kitchens, reserved garage parking. On-site gym and restaurants. E-mail bcollette@dalpat.com for details.

and kitchen. Also includes locker room with shower. Secure, covered and free parking. 24-hour access. Great location with views of the city. All offices may be rented individually or as a package. Contact Jason at (214) 965-9300. Executive suites, hidden in the shadow of CityPlace; 4225 Office Parkway, two blocks east of Central, one block north of Haskell. Exterior offices with all amenities bundled at one reasonable rate including conference room, kitchen, high-speed Internet, fax, receptionist, covered parking, 24/7 HVAC & access in a recently updated building starting at $500/month. (972) 567-6501 jedwards@stoneeagle.com. Professional office suites for lease in Uptown State Thomas area. Restored Victorian home circa 1886 w/hardwood floors throughout. Shared conference room. 2619 Hibernia St/Boll. 1 block from McKinney Avenue. Lawyers preferred. $700/month. Includes phone & Internet. Phone (214) 987-8240 Far North Dallas. Tollway & Frankford Road 2588 Sq. Ft. Great location. 6 offices, reception area. Large Conference room and Kitchen. $2700. (214) 7704063.

Four offices available for rent in our historic West End building. Three of the offices rent at $750 each and the fourth is $650 per month. All offices can rent individually or as a package. Contact Craig Miley at (214) 692-8800 or craig@mileybrown.com.

Professional Office Suite Available for Sublease! Located on North Central Expressway. Elegantly furnished window office (13’.0” x 12’6”) with hardwood floors. Includes; telephone, Internet access, printer, fax, copier, use of conference room, lobby and kitchen. Please call (972) 664-1511 for additional details.

Uptown Dallas. Law firm near Katy Trail has 8 window offices and 1 interior office for rent. Friendly office environment with unique style and great artwork throughout. Includes telephone, Internet, fax, copier and use of conference rooms

High-rise views at low-rise rates. Panoramic views from 63rd floor. Class-A downtown space close to courthouse, AVrated law firm. Access to large conference room, library, kitchen. Secretarial, cleri-

LIVE FAMILY LAW NUTS & BOLTS CLE SEPTEMBER 15 & 16 5:00 to 8:00 p.m. at the Belo Pavilion MCLE 3.00 | 1.00 Ethics each evening Sponsored by the DBA Family Law Section and DVAP A great opportunity to become familiar with practice points for handling a family law case. Online Registration July 30—Sept. 9 at www.dallasbar.org. For more information, contact Alicia Perkins at perkinsa@lanwt.org, or Chris Reed-Brown at reed-brownc@lanwt.org.

cal, reception available. One office available with a very nice secretarial station. Negotiable. Call Kay (214) 761-6463. Northpark/Central Expwy—Law firm has “turnkey” office for sublease in Class A building for $1200. Includes use of office furniture (if needed), telephone, high-speed DSL, fax line, parking, and large conference room and kitchen. Great location with downtown and Park Cities views, excellent finish out with hardwoods in lobby, elevator exposure, and easy access to/from Central Expwy. Call (214) 292-4202.

POSITION AVAILABLE

Partner-Level: Patent law boutique, consisting of prep/pros lawyers with largelaw firm experience, working in an “eat what you kill environment,” is seeking partner-level patent attorney with prosecution experience. A self-supporting book of portable business is a positive, but not imperative. Please e-mail your resume to bcollette@dalpat.com. Real Estate Attorney. Well-established, 13-attorney law firm, located in Richardson, seeks outstanding attorney to join our team. Require five-plus years of commercial real estate experience. Will perform title work and handle closings. Litigation experience and book of business a plus. Collegial, professional work environment. Direct all inquiries to bgordon@bhlaw.net. Need a civil trial lawyer with 5 years minimum experience. Don’t be afraid of hard work; be able to laugh at yourself, never at others; lose the ego (seriously); treat the staff like you would treat your best client; be willing to do things our way; and don’t throw people under the bus. Interested? Send your resume to nmenchaca@thebassettfirm.com.

Downtown Dallas law firm seeks a commercial litigation attorney with at least 5 years’ experience. Trial experience in both state and federal courts preferred. Compensation negotiable. Reply to: kmighell@cowlesthompson.com. Downtown Dallas law firm focusing on risk management solutions, civil defense litigation, personal injury, transportation, employment claims, insurance coverage and commercial litigation seeks a litigation attorney with 2-6 years’ experience; demonstrating the ability to write, effective analysis, creative problem solving and communication skills. Send resume and writing sample to Monica. sharpless@whitecolaw.com.

POSITION WANTED

Attorney experienced in oil and gas and corporate law seeks position with energy company or law firm. Has been Board Certified in Oil, Gas and Mineral Law by the Texas Board of Legal Specialization. Excellent contract and drafting skills. Location in Dallas-Fort Worth Metroplex preferred, but not absolute with the right opportunity. Available for project assignments. Call (214) 5266900.

SERVICES

Mexican Law Expert—Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues –forum non conveniens, Mexican claims/defenses, personal injury, moral damages, Mexican contract law. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez (210) 222-9494 / dlopez@pulmanlaw.com. PLACE YOUR AD HERE! For affordable classified advertising rates call Judi Smalling at: (214) 220-7452.

Classified Advertising – 2010 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.

DBA Member Rates: 40 words or less $80; 41-60 words; $112; 61-100 words $140. NonMember Rates: 40 words or less $128; 41-60 words; $160; 61-100 words $190. Web Page Rates: Classified ads which run in Headnotes can also be posted on the DBA Web site for an additional fee of $40 for a 30-day period, or $60 for non-members. Web-only ads are also available. Ads are posted at www.DallasBar.org/members/classifieds.asp. Deadlines: Ad text and payments are due on the 10th of the month prior to the issue date. For instance, ads for the October 2010 issue of HEADNOTES are due September 9. Payment must be made at time ad is submitted. Mail items to Judi Smalling c/o Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. For additional information: Request rate card and details from JSmalling@dallasbar.org.

The Realities and Profession of Law Practice Today Ethics 1.00 (Pending) Friday, September 17, Noon, at Belo Hall Speakers: Nicole Hooper, Ph.D. and Attorney at Law—Fulbright & Jaworski, L.L.P. Courtney Marcus, Attorney at Law—Fulbright & Jaworski, L.L.P. For more information, contact Sherri Evans at sevans@dallasbar.org. Sponsored by the DBA Peer Assistance Committee

MONTHLY PARKING AVAILABLE AT BELO For more information about becoming a monthly parker in the Belo Mansion garage, contact Felicia at (214) 744-0500. The number of monthly parkers is limited.

20 H e a d n o t e s l D a l l a s B a r A ss ociationâ&#x20AC;

Septem ber 2010