Dallas Bar Association
HEADNOTES
Focus Family Law
September 2011 Volume 36 Number 9
High-Profile Criminal Defense Attorney Thomas Mesereau, Jr. to be Keynote Speaker at Philbin Awards
Dallas Bar Assoc
iation
by Jessica D. Smith
Celebrating its 28th year, the Stephen Philbin Awards Luncheon will be held Monday, October 17, 2011 at the Belo Mansion. The Philbin Awards, started in 1983 by the Dallas Bar Association, recognizes local news journalists for their excellence in legal reporting. This luncheon is a way to honor not only the local media, but also the memory of Stephen Philbin who lost his battle with leukemia in 1982. 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, the Philbin and Thomas A. Mesereau, Jr. Brock families, acting through the Dallas Bar Foundation, fund the annual Philbin Awards, with the DBA Media Relations Committee coordinating the event. Numerous entries have been received for the 2011 competition, including TV news reports from 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 Monday, October 17, at the Pavilion at the Belo Mansion. The luncheon is open to judges and lawyers and all members of the media The keynote speaker for this year’s luncheon will be Thomas A. Mesereau, Jr., of Mesereau & Yu, LLP, a high-profile Los Angeles criminal defense attorney best known for acquitting the late music legend, Michael Jackson, in the most-watched trial in legal history. Mr. Mesereau is widely recognized as one of the best trial lawyers in the country. He has been selected as one of “The Best Lawyers in America” and has been listed as one of the “One Hundred Most Influential Attorneys in California” by the Los Angeles Daily Journal. He was also named “Criminal Defense Lawyer of the Year” by the Century City Bar Association. Barbara Walters named Mr. Mesereau one of the year’s “Ten Most Fascinating People,” for his trial excellence and commitment to representing the underprivileged. He is widely recognized for his 25 years of pro bono service to the poor and underrepresented. Mr. Mesereau is a well-known presence in the African-American community where he operates a free legal clinic and assists local organizations and churches in drug recovery and youth counseling. For the past 12 years, he has defended at least one death penalty case on a pro bono basis. Additionally, Mr. Mesereau founded and helps operate a free legal clinic for the poor in south central Los Angeles. Mr. Mesereau has received numerous awards and commendations from bar associations, law schools, the city of Los Angeles, the county of Los Angeles, churches, secondary schools, colleges, businesses and civil rights organizations for his excellence as a trial lawyer and devotion to equal justice for all. DBA members can reserve their seats now for the 2011 Stephen Philbin Awards Luncheon on Monday, October 17. Tickets are $40; or tables of 10 can be purchased for $400. No walk-ins will be allowed. Don’t miss this exciting event! Purchase your ticket by logging on to www.dallasbar.org/ philbins or by contacting Judi Smalling at 214-220-7452 (or HN at jsmalling@dallasbar.org). Jessica D. Smith is the DBA’s Communications/Media Director. She can be reached at jsmith@dallasbar.org.
Dear Fellow Dallas Are a
Attorney:
You may be receiving this issue of Headnotes as a non-member of (DBA). I hope that you the Dallas Bar Associa enjoy reading this issue tion and that you will beco me a member of the DB A! I would like to share a special offer with those of you who are not cu If you join NOW onlin rrently members of the e at www.dallasbar.org DBA. you will receive 16 mo the price of 12 month nths of membership s. for You can see an exten sive list of all our me mber benefits on page highlight are: 5, but a few I would like to FREE CLE HOUR S – The Dallas Bar As sociation is the 2nd lar courses in the state gest provider of CL of Texas (See Page 2 E for CLE courses). COLLEGIALITY – Meet with other lawye rs who practice in yo sections and to discu ur field in our special ss your craft and atten ized d CLE courses that rel practice ate directly to your MAKING A DIFFE RENCE – Join one of our many committees who are committed to to work with other law providing legal servi yers ces to the poor, vo community, and mento lunteering within the ring other lawyers DIVERSITY – Meet, mentor, and collabora te with lawyers of all and backgrounds to ages, races, religion strengthen the fabric of s, our diverse legal comm unity. Membership in the Dallas Bar Associatio n has real benefits. member and take ad I hope you will beco vantage of them. To me a learn more about the member, please visit benefits of being a DB www.dallasbar.org, or call our Membership A (214) 220-7414. Coordinator, Kim Wa tson, at If you are already a DB A member, thank you very much for your co ntinued support! I hope to see you soon at Belo Mansion, DBA headquarters! Sincerely,
Barry Sorrels President Dallas Bar Association 2101 Ross Ave. ▪ Da
llas ▪ TX ▪ 75201 ▪
(214) 220-7414
New General Manager and Executive Chef at Belo The Dallas Bar Association welcomes two outstanding new members to the Belo Mansion staff. General Manager Kevin Brant, CPCE, comes to the Belo Mansion with a wealth of experience in all facets of management. Prior to coming to Belo, Mr. Brant was the Director of Sales for Wolfgang Puck Catering in Dallas, where he oversaw catering sales and marketing at Union Station and Reunion Tower. In addition, he served as the Director of National Accounts for BBJ Linen and Vice President of PriKevin Brant vate Events for ClubCorp, USA. His 17-year career with ClubCorp began in Miami and took him to Ft. Lauderdale, Atlanta and San Jose
Inside 9 Paternity Fraud in Texas 11 Adultery and Its Impact on Divorce 13 Alimony in Texas: Myths and Changes 17 When Family Law and Criminal Law Intersect
before bringing him to Dallas. Mr. Brant is a member of the International Special Events Society and of the National Association of Catering Executives, in which he has held several positions including President of both the Ft. Lauderdale and Atlanta Chapters. He is one of a select few who have attained their CPCE (Certified Professional Catering Executive) Certification and he has been honored with NAFEM’s (National Association of Food Equipment Manufacturer’s) Doctorate of Food Service Award for his contributions to NACE and the industry-at-large. Now firing up his delicious culinary talents in the Belo Mansion kitchen is Executive Chef Brian Litolff. A New Orleans native, Chef Brian is a graduate of Continued on Page 10
2 He 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 9-NORTH DALLAS** Noon
Septem ber 2011
“Facebook, Twitter and the Uncertain Future of Present Sense Impressions,” Jeffrey Bellin. (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. Thank you to our sponsor Griffith Nixon Davison P.C. RSVP to kzack@dallasbar.org.
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
TUESDAY, SEPTEMBER 13 Noon
Business Litigation Section “10 New Issues in Business Torts Every Plaintiff Lawyer Should Know,” Brian Lauten. (MCLE 1.00)*
Mergers & Acquisitions Section “In the Cross-Hairs: How to Respond When an Unfriendly Buyer Targets You,” Rob Little and Travis Souza.” (MCLE 1.00)*
SEPTEMBER 16-BELO Noon
“Appellate Briefs and Oral Argument Panel,” Chief Justice Carolyn Wright, Justice Kerry FitzGerald and Justice Robert Fillmore. (MCLE 1.00)*
THURSDAY, SEPTEMBER 1 Noon
Construction Law Section “Legislative Update,” Robert Bass. (MCLE 1.00)*
Judiciary Committee A Conversation With Collin County JudiciaryModerated by Judge Martin Hoffman,” Hon. Jay A. Bender, Hon. Chris Oldner and Hon. John Roach, Jr. (MCLE 1.00, Ethics 0.25). RSVP to kzack@dallasbar.org.
Public Forum Committee
DAYL Judiciary Committee
5:00 p.m. Bankruptcy & Commercial Law Section “Stern v. Marshall: Digging for Gold and Shaking the Foundation of Bankruptcy Courts,” Omar Alaniz, Katie Grissel and Bill Wallande. (MCLE 1.00)*
THURSDAY, SEPTEMBER 8 Noon
CLE Committee
DAYL CLE Committee
E-Mentoring Committee
FRIDAY, SEPTEMBER 2
Publications Committee
No DBA Events Scheduled
Christian Lawyers Fellowship
MONDAY, SEPTEMBER 5
Dallas Asian American Bar Association
St. Thomas More Society
6 p.m.
J.L. Turner Legal Association
Family Law Section Board Meeting
DBA Offices Closed in Observance of Labor Day
TUESDAY, SEPTEMBER 6 Noon
Corporate Counsel Section “Protecting Your Payable: Understanding Steps to Mitigate Credit Risk Pre-Chapter 11 and During Chapter 11,” Andrew Schoulder and Sam Stricklin. (MCLE 1.00)*
Tax Law Section “The High-Income Audit Initiative,” Jim Fee. (MCLE 1.00)*
Tort & Insurance Practice Law Section “Pending Subrogation Case Arising Out of the Events of September 11, 2001,” Steve Badger. (Ethics 1.00)*
Transition to Law Practice Committee
3:00 p.m. ABA Trial Practice CLE “Great Openings/Great Closings,” Charla Aldous, Leon Carter, Hon. Marty Lowy and Tom Melsheimer. (MCLE 2.00)*. Cost $25. RSVP to Todd Hirsch at lhirsch@diamondmccarthy.com. 6:00 p.m. DAYL Board of Director’s Meeting
WEDNESDAY, SEPTEMBER 7
8:45 a.m. Solo & Small Firm Section “Turning 65: What You Need to Know if You or Your Clients Are Turning 65,” Dale Applegate. (MCLE 7.30, including 0.75 Ethics). Noon
Employee Benefits & Executive Compensation Section “Service Provider and Participant-Level Fee Disclosure for Retirement Plans: Getting Ready for 2012,” Jim Williamson. (MCLE 1.00)*
FRIDAY, SEPTEMBER 9 Noon
Friday Clinic – North Dallas** “Facebook, Twitter and the Uncertain Future of Present Sense Impressions,” Jeffrey Bellin. (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. Thank you to our sponsor Griffith Nixon Davison P.C. RSVP to kzack@ dallasbar.org. Trial Skills Section “Introducing Exhibits: In Introduction, Including Digital Evidence,” Prof. Frederick Moss. (MCLE 1.00)*
MONDAY, SEPTEMBER 12 Noon
Alternative Dispute Section “Employment Mediations,” Cecilia H. Morgan. (MCLE 1.00)*
Real Property Law Section “Emerging Trend: Vapor Intrusion and Its Impact on Real Estate Transactions and Liability,” Jill A. Kotvis. (MCLE 1.00)*
Legal History Discussion Group “Saving Savannah: Law and the Struggle for Civil Rights in the South After the Civil War,” Prof. Jacqueline Jones. (MCLE 1.00)* Peer Assistance Committee
DVAP’s Finest Lisa Blue Baron
Lisa Blue Baron, of Baron & Blue, has been a committed volunteer with the Dallas Volunteer Attorney Program for many years. She has always enjoyed giving back and helping to provide legal services to those in need. In particular, she has utilized her fluency in Spanish to provide much-needed assistance to DVAP’s Spanish-speaking population. Lisa has contributed her time to DVAP by using her Spanish to interview clients at the West Dallas Legal Clinic, participated in conducting Spanish Pro Se Assisted Divorce Program classes, and helped to finalize family law cases for Spanish-speaking clients at DVAP’s monthly Prove-Up Clinics. Thank you for all that you do, Lisa!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
in Mexico,” Sara Cecilia Arredondo Pico. (MCLE 1.00)*
Community Involvement Committee Law in the Schools Committee
DAYL Elder Law Committee
DAYL Animal Welfare Committee
WEDNESDAY, SEPTEMBER 21 Noon
Energy Law Section “Top 10 Things to Do Before or During Your Oil & Gas Trial to Avoid Losing an Appeal,” Karen Watkins. (MCLE 1.00)*
Health Law Section “Physicians and Boundaries,” Karin Zaner. (MCLE 1.00)*
Law Day Committee
Pro Bono Activities Committee
DAYL Lunch & Learn
Municipal Justice Bar Association
6:00 p.m. Home Project Committee
Non-Profit Law Study Group
WEDNESDAY, SEPTEMBER 14
5:15
LegalLine—Volunteers welcome. Second floor Belo.
Admissions & Membership Committee
Entertainment Committee
DAYL Equal Access to Justice Committee
5:00 p.m. Tort & Insurance Practice Section “Updates on the Local Rules and the 2011 Legislative Session and Judicial Reception” Hon. Martin Hoffman, Keith O’Connell, Tex Quesada, Kenneth Sheets and Hon. Gena Slaughter, moderator. (Ethics 1.25)* Presented by the DBA Tort & Insurance Practice Section, the Texas Association of Defense Counsel and the Dallas Trial Lawyers Association.
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group Noon
Family Law Section “Parenting Coordination and parenting Facilitation: Court Orders That Work,” Gay Cox, Esq. (MCLE 1.00)*
House Committee Walk Through
THURSDAY, SEPTEMBER 22
11:30 a.m. 20th Annual Bench Bar Conference September 22-24 at Horseshoe Bay Marriott. Register online at www.dallasbar.org. Noon
5:00 p.m. Dallas Volunteer Attorney Program Family Law Nuts & Bolts—Boot Camp Basics. (MCLE 3.00, including Ethics 1.00). To register, or for more information, contact perkinsa@ lanwt.org or reed-brownc@lanwt.org.
Environmental Law Section “Top Ten Sections of the Texas Water Code Environmental Lawyers Need to Know,” Hal Ray. (MCLE 1.00)*
Dallas Gay & Lesbian Bar Association
5:15
Noon
LegalLine—Volunteers welcome. Second floor Belo.
THURSDAY, SEPTEMBER 15
9:00 a.m. Dallas Volunteer Attorney Program “Employers & Immigration Seminar.” Hosted by DVAP and Catholic Charities of Dallas. (MCLE 4.50)* To register for the free seminar, email mrobles@ccicsdallas.org. Noon
Appellate Law Section “Supreme Court Update and 2011 Term Preview,” Edward C. Dawson and Scott Keller. (MCLE 1.00)* Media Relations Committee “Defamation from the Media Defense Side,” Paul Watler. (MCLE 1.00)* RSVP to jsmith@ dallasbar.org.
Minority Participation Committee
Christian Legal Society
3:30 p.m. DBA Board of Directors 5:00 p.m. Dallas Volunteer Attorney Program Family Law Nuts & Bolts—Beyond the Basics. (MCLE 3.00, including Ethics 1.00). To register, or for more information, contact perkinsa@ lanwt.org or reed-brownc@lanwt.org.
FRIDAY, SEPTEMBER 16 Noon
Friday Clinic – Belo “Appellate Briefs and Oral Argument Panel,” Chief Justice Carolyn Wright, Justice Kerry FitzGerald and Justice Robert Fillmore. (MCLE 1.00)*
FRIDAY, SEPTEMBER 23 Intellectual Property Law Section Topic Not Yet Available
MONDAY, SEPTEMBER 26 Noon
Computer Law Section Topic Not Yet Available
Securities Section “How Dodd Frank is Changing the World of Private Equity & Venture Capital Transactions & Fundraising,” J. Kevin Boardman, James A. “Jim” Deeken and Jason Villalba. (MCLE 1.00)*
DAYL Solo & Small Firm Committee
TUESDAY, SEPTEMBER 27 Noon
Probate, Trusts & Estates Section “2011 Texas Legislative Update,” William D. Pargaman. (MCLE 1.00)*
Courthouse Committee
American Immigration Lawyers Association
6:00 p.m. Dallas Hispanic Bar Association
WEDNESDAY, SEPTEMBER 28 7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group Noon
Sports & Entertainment Law Section “Juggling Multiple Interests in the Bankruptcy of the Texas Rangers,” Kellie Fisher. (MCLE 1.00)*
Juvenile Justice Committee
Legal Ethics Committee
Transition to Law Practice Committee “Malpractice Traps for the Beginning Lawyer,” Professor Bill Bridge, Paul Koning, Jett Hanna and Robert Tobey (moderator). (Ethics 1.00)*
DVAP New Lawyer Luncheon. For more information, contact reed-brownc@lanwt.org.
Probate Law Symposium Sponsored by the DAYL Elder Law Committee & Dallas Volunteer Attorney Program. (MCLE 4.00, Ethics 1.00). For more information, contact gosalj@lanwt.org.
Noon
Appealing to the Public Program The Fifth District Court of Appeals will hear live oral arguments about a local civil case at Belo. Seating is limited. RSVP to asmith@ dallasbar.org. (MCLE 1.50)*
Noon
Collaborative Law Section “Breaking Up Collaboratively: Dissolving, Dividing or Managing the Break-Up of a Commercial or Family-Owned Business Using Collaborative Law,” Jody L. Johnson, W.C. Roberts and Michael Zeytoonian. (MCLE 1.00)*
Senior Lawyers Committee
MONDAY, SEPTEMBER 19 Noon
Labor & Employment Law Section “Whistleblower, Public Entities and Qui Tam,” Hon. Carlos Lopez. (MCLE 1.00)*
THURSDAY, SEPTEMBER 29
TUESDAY, SEPTEMBER 20 Noon
Antitrust & Trade Regulation Section “The Attorney-Client Privilege Across Borders,” Jordan W. Cowman. (Ethics 1.00)*
Government Law Section “U.S. Supreme Court Update: Cases Affecting Local Government,” Edwin P. Voss, Jr. (MCLE 1.00)*
International Law Section “Trademark Registration and Protection
FRIDAY, SEPTEMBER 30 Noon
Minority Participation Committee “The Process for Obtaining Certification as a Minority or Women Owned Business,” Gayla Crain. RSVP to ahernandez@dallasbar.org.
DAYL Counsel With Kids Program
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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Headnotes
President's Column
Honoring the Profession by BARRY SORRELS
In this section of Headnotes, I often address the membership to discuss upcoming events, celebrate successful programs, and give credit to the members and staff who make it happen. This month, I am happy to have the opportunity to also address those of you who may not be members of the Dallas Bar Association.
Join the DBA
If you are not a member of the Dallas Bar Association, we want you to become a member. We are proud to have over 10,000 members, and we are proud of how active our members are in the legal community and the community at large, but we want more members. Lunch at the Belo Mansion features high-caliber lawyers presenting free CLEs on advanced legal topics. Our Equal Access to Justice Campaign provides the financial backing for the Dallas Volunteer Attorney Program so that our members work together to provide meaningful representation to the poor and disenfranchised. Our programs reach from schoolchildren to elected officials and everything in between. We could not do what we do without the diverse, talented, committed members who make up the Dallas Bar Association. When you become a new member, the scope of the Dallas Bar Association can be overwhelming. I would recommend you introduce yourself to the association by attending CLEs tailored to your specific practice area. If you do that, you will immediately realize the benefits of membership while you become aware of the many networking and service opportunities the DBA offers. Thank you for taking an interest in the Dallas Bar.
Appealing to the Public
Appealing to the Public is an excellent program that fulfills every purpose of our DBA mission statement. We invite the Fifth District Court of Appeals in Dallas, Texas, to hear live oral arguments out in the community, and we invite students from local schools to watch the arguments. To supplement the experience, the students are provided resources before the oral argument so they can gain an understanding of the issues that will be addressed. There will also be experienced lawyers, not participating in the case, who will provide an introduction to the legal system before the argument and a question-and-answer session at the close of the argument. This year, the case will be heard at 12:30 p.m., September 29, 2011, in the Pavilion at the Belo Mansion. Many people deserve thanks and recognition for their contributions to this event. First and foremost, we thank the Justices of the Fifth District Court of Appeals for accepting our invitation to hear arguments outside of their courtroom. We appreciate the lawyers who consent to present their arguments to a larger audience. The program itself would not exist if not for the hard work of Mark Sales, of Dykema, who coordinated the first event during his year as President of the DBA in 2006. Appealing to the Public continues to thrive with the sponsorship of the Dallas Bar Foundation, chaired by Rob Roby, of Curran Tomko Tarski. Each year, the Law in the Schools Committee, chaired this year
From Yellow Pages to Facebook Pages: Marketing Has Changed… And You Should Too Thursday, October 6, 8:00 a.m. to Noon at Belo MCLE 3.50, including Ethics 1.00 FREE Androvett Legal Media & Marketing Seminar DBA Members: Free; Non-members: $35 RSVP to jsmith@dallasbar.org Sponsored by the Media Relations Committee
by Mark Melton, of Hunton & Williams, organizes the event. Thanks to everyone who makes this special event possible.
ABA Trial Program
The ABA Trial Practice Committee, through Ladd Hirsch, of Diamond McCarthy, and the Dallas Bar Association Business Litigation Section, chaired by Aimee Fagan, of McKool Smith, are cosponsoring a CLE program called Great Openings - Great Closings on September 6 from 3:00 to 5:00 p.m. with a reception to follow. Mr. Hirsch has assembled an impressive panel which includes seasoned litigators, and a well-known trial consultant. The program will begin with remarks and reflections on what makes an opening statement and closing argument great. Then, the participating lawyers, Tom Melsheimer, of Fish & Richardson; Charla Aldous, of the Aldous Law Firm; and Leon Carter, of Munck Carter, will provide background and context from a specific trial and then perform an excerpt from an actual opening statement or closing argument from that past trial. After what’s sure to be a tremendous display of advocacy skills, Tara Trask will share her perspective from her vast experiences as a trial consultant. This is the type of star-studded CLE panel we at the Dallas Bar are proud to present to our members. Thanks to those who made it happen, and thanks to those participating. I hope to see you there. If you are a trial lawyer, you will not want to miss this.
Bench Bar
Please join us at the Marriott Horseshoe Bay Resort in the Texas Hill Country September 22-24. This is a great opportunity to get to know your colleagues in an informal setting with great CLEs and fun activities. Thank you to Co-Chairs Andy Payne, of Payne Mitchell Law Group L.L.P.; Dawn Estes, of Taber Estes Thorne & Carr PLLC; Steve Bolden, of Mahomes Bolden Warren Sigmon PC; Hon. Elizabeth Frizell; Deborah M. Perry, of Munsch Hardt Kopf & Harr, P.C.; and Rudy Rodriguez, of Gruber Hurst Johansen & Hail, LLP, for organizing what is sure to be an exciting event. I am personally looking forward to celebrating this year’s recipient of the Trial Lawyer of the Year Award, Mark Werbner, of Sayles Werbner. I hope to see lawyers from all practice areas and judges from every courthouse, together at Horseshoe Bay, enjoying each other’s company.
Visit the Dallas Bar
If it has been a while since you have come to visit the Dallas Bar Association headquarters, look at the calendar online at www.dallasbar.org, find something that interests you, and come by for lunch. We look forward to seeing you soon at Belo Mansion. HN
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: Barry Sorrels President-Elect: Paul K. Stafford First Vice President: Sally Crawford Second Vice President: Scott McElhaney Secretary-Treasurer: Sean Hamada Immediate Past President: Ike Vanden Eykel Directors: Brad C. Weber (Chair), Jerry C. Alexander (Vice Chair), Kim Askew (At-Large), Penny Brobst Blackwell (President, Dallas Association of Young Lawyers), Eric Blue (President, J.L. Turner Legal Association), Hon. Rob Canas ( Judicial At-Large), Wm. Frank Carroll, Rob Crain, Laura Benitez Geisler, Hon. Martin Hoffman, Michael K. Hurst, Monica Latin (At-Large), Karen McCloud, Eunice Kim Nakamura (President, Dallas Asian American Bar Association), Mary Scott, Hon. Teresa Guerra Snelson (President, Dallas Hispanic Bar Association), Diane M. Sumoski; and Michele Wong Krause. Advisory Directors: Chip Brooker (President-Elect, Dallas Association of Young Lawyers, Victor N. Corpuz (President-Elect, Dallas Asian American Bar Association), Lori Hayward (President-Elect, J.L. Turner Legal Association) and Carlos Morales (President-Elect, Dallas Hispanic Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Douglas S. Lang Directors, State Bar of Texas: Andy Payne, Christina Melton Crain, Beverly Bell Godbey, Frank E. Stevenson, II, Ike Vanden Eykel HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications / Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Advertising: Karla Howes PUBLICATIONS COMMITTEE Co-Chairs: Vincent J. Allen and Timothy G. Ackermann Vice-Chairs: Lea N. Clinton and Natalie L. Arbaugh Members: H. Joseph Acosta, Kevin Afghani, Nelson Akinrinade, Vance L. Beagles, Jason Bloom, Barbara Boudreaux, Jeremy Camp, Noel Chakkalakal, Y.W. Peter Chen, Ryan Cosgrove, Sally Crawford, Weston Davis, Pat Driscoll, David Drummer, Dawn E. Fowler, Jennifer Gajak, Constance Hall, James Holbrook, Dyan House, Victor Johnson, Harold Jones, Adam Kielich, Michelle Koledi, Cherika Latham, Jamie McKey, Patrick McLain, Thomas L. Mighell, Clay Miller, Jennifer Mitchell, Heather Bailey New, Emmanuel Obi, Jenna Page, Kirk L. Pittard, Elizabeth Pletan, Irina B. Plumlee, Laura Anne Pohli, Robert Ramage, Juan Renteria, Bryon Romine, John Roper, Gregory W. Sampson, Mary Scott, Barry Sorrels, Thad Spalding, Paul K. Stafford, John C. Stevenson, Amy E. Stewart, Scott Stolley, Roxana Sullivan, Sherry Talton, Peter S. Vogel, Suzanne R. Westerheim, Elisabeth Wilson, Sarah Q. Wirskye, Sarah Woodell, Angela Zambrano and Viktoria Ziebarth 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: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Lakeshia McMillan, Andrew Musquiz, Jigna Gosal, Tina Douglas Data Entry/Office Support: Patsy Quinn Copyright Dallas Bar Association 2011. 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 Associationís 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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Turnover Receivership: A Versatile Collection Tool By Michael S. Bernstein
There is a good tool for collecting judgments that has been available since 1979, but surprisingly few attorneys know about it. Known as the “Turnover Statute,” Section 31.002 of the Texas Civil Practice & Remedies Code allows the court to appoint a receiver to seize and sell a judgment debtor’s non-exempt assets, including present or future rights to property. The statute was created to help seize assets that are easily hidden from a levying officer, such as stock certificates, and to help recover intangible assets, like accounts receivable.
Powers of a Turnover Receiver
Some of the things a receiver can do to help collect a judgment are: seize the defendant’s bank accounts; sell any transferable property right of the debtor (for example, a taxi permit); obtain information from third parties which may lead to asset information; levy on anticipated proceeds from a lawsuit; seize accounts receivable; take control of contract rights; search through the defendant’s office; obtain copies of tax returns; sell real property; and sell tangible personal property. The traditional requirements we
often think about when considering a receivership do not apply. You do not have to wait 30 days from the date of your judgment. You do not have to show that you have exhausted your remedies or that other methods of collecting the judgment have failed. You do not have to show that the property is in danger of being lost, or whether the debtor is insolvent. None of these factors apply to a turnover receivership. The elements to prove up are that: the creditor has won its judgment; the defendant owns property that is nonexempt; and the property is not readily leviable by regular process (in other words, it is property that would be difficult for a constable to levy on.) That’s it. Once you prove the defendant has some assets of this kind, the door opens wide and all of the debtor’s non-exempt property can be placed into the receivership. Consider all of the non-exempt, intangible types of property that you may be able to prove up: valuable contract rights, interests in a business, accounts receivable, a good domain name or telephone number, rents and stocks. Arguably, ownership of a bank account supports turnover relief because the statute requires a showing of property that
“cannot readily be attached or levied on by ordinary legal process.” TCPRC §31.002(a)(1). The usual way to seize a bank account is through a garnishment, which is an extraordinary remedy. Therefore, a bank account is property that “cannot readily be attached.” The turnover order does not have to detail specific property. A laundry list type order is perfectly acceptable. Accordingly, the order could empower the receiver to seize and compel the debtor to turn over “all real estate” (except the homestead), “all bank accounts,” and so on. TCPRC §31.002(h).
Getting a Receiver Appointed
Getting a receiver appointed is motion practice. You may bring an application for turnover relief ex parte. An ex parte order does not unfairly surprise a judgment debtor because the judgment puts the defendant on notice that postjudgment collection proceedings will follow. The debtor has already had his day in court. No bond is required for a turnover receiver. The idea of a receiver’s bond comes from pre-judgment receiverships where one party seeks to put another party’s business or property into receivership. The bond in a traditional receiv-
ership (Chapter 64, Texas Civil Practice & Remedies Code) protects the respondent from damages in a pre-judgment context. If the movant loses its case, the respondent would have been wrongfully placed into receivership. But a bond is not needed to protect a debtor from a wrongful receivership where the creditor has already won its judgment. The whole point is to liquidate the debtor’s assets. Receivership is affordable on small cases as well as large ones. Most turnover receivers take their fee from what is collected. Because the turnover order will tax the fee as a cost against the defendant, the receiver can make your client whole by seizing enough property to also cover his fee. The next time you gear up to do a garnishment, consider using a receiver. A receiver could levy on several accounts receivable or several banks. Without a receiver, you would have to do a separate garnishment for each one. Turnover receivership has been available to creditors since 1979. It is a powerful, flexible collection tool that could be a regular part of your arsenal. HN Mike Bernstein is a solo attorney and full-time receiver in Garland. He can be reached at mike@dallasreceiver.com.
Belo Mansion Honored as Facility of the Year Teach Dallas ISD Students – Nov. 14-18 Volunteers are needed to teach in secondary classrooms this fall. Times and class sizes vary. Curriculum is available. Deadline to sign up is Nov. 1, please email asmith@dallasbar.org.
Your home—the historic Belo Mansion and Pavilion at the Belo Mansion—has been named the 2010-2011 Facility of the Year by the Dallas Chapter of the International Special Events Society (ISES). The award, based on a survey of the facility after each event, recognizes the creativity, uniqueness and the consistent quality of the location and the catering team. Award criteria include reception and dining areas, parking, location and energy and helpfulness of staff. Congratulations to the outstanding catering team, which is managed by Culinaire International. The team is led by Kevin Brant, CPCE, General Manager, and includes Executive Chef Brian Litolff; Director of Sales and Catering Dawn Finley; Catering Manager Bryan Starnes, Catering Sales HN Manager Linda Werner and Carlos Cano, Operations Manager.
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Focus
Septem ber 2011
Family Law
When Seniors Divorce by Robert Gordon
A megatrend in the 21st century is the growing number of divorcing seniors. The divorce rate for the “50 plus” demographic is estimated to have doubled in the past decade. National attention was riveted to the news that Al and Tipper Gore announced their separation by email in June of 2010 after 40 years of marriage. Less surprising was Larry King’s press release the following month that he was seeking divorce for the eighth time. What are the reasons for the trend of seniors untying the knot? Due to advances in health care, seniors expect to live into the 7th, 8th and 9th decade of life. For younger clients, the major motive for remaining in an unhappy marriage is their commitment to successfully raising their children. Seniors do not face this challenge. Also, the nature of emotions and needs change from the passage of middle age to senior years. A fourth reason is an unintended consequence of the current American health care system. Divorce is a way seniors with serious medical problems can preserve their assets rather than having to “spend down” their assets in order to qualify for Medicaid benefits. Divorce planning for seniors includes designing successful post-divorce arrangements. This draws on the skills
and knowledge of lawyers with different perspectives. In addition to family law, perspectives include health law, real estate, probate and tax law. Bar associations across the country offer CLE programs that integrate these views under the domain of “elder law.” In developing a successful divorce strategy, lawyers should guide senior clients to conduct a “reality check” about their future standard of living. For younger divorce clients, there is the possibility that both spouses, over time, will increase their earnings. This allows them to forecast a return to their previously higher standard of living. For seniors, however, working years are fewer. Peak earning ability is likely behind them. Areas of concern for senior divorces are: retirement income, asset protection and division, health care, wills and trusts, beneficiary designations and powers of attorney. Special areas of concern may include competency. Increasingly characteristic of senior divorces is the issue of who gets the family dog. Retirement. Seniors are likely to have substantial wealth in their retirement plans. Benefits, particularly from an employed spouse, therefore, become more important. The non-employed spouse may rely on the benefits that the employed spouse receives. Thus, more attention must be paid to the benefits that a non-employed spouse will have
following divorce. Assets. Seniors are more likely to have value in their homes. In some cases, there is more than one home. In a senior divorce, the disposition of the homestead is more than a matter of economic valuation. Considerations of lifestyle, proximity to family, shopping and medical facilities are also relevant. Unlike younger clients, the two paramount issues of a senior divorce may become disposition of assets to provide for retirement funds and taxes. Also, the relative exposure of each spouse to lawsuits should be considered. An example is the situation where a physician is married to a teacher. Insurance. With the uncertainty of national Medicare benefits, available private insurance for catastrophic illness and ordinary long term care is important. In private policies, one spouse may be carried on the other’s health insurance. The carrier should be consulted about the consequences of divorce for continuing spousal coverage. In the case of life insurance, decisions must be made about beneficiary designations that are usually made in favor of the spouse at the time of inception. Confirmation of payment and the cash surrender value of whole life policies should also be reviewed. Wills and Powers. Most divorcing spouses will wish to cancel powers of
Minority Attorney Business Development Initiative Program September 30, Noon, at Belo Speaker: Gayla Crain of Spencer, Crain, Cubbage, Healy & McNamara PLLC. Topic: “The Process for Obtaining Certification as a Minority and Women Owned Business” RSVP to ahernandez@dallasbar.org. Sponsored by the DBA Minority Participation Committee
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attorney that were initially written in favor of their spouse for both wills and trusts. Invariably, this is also true for living wills that address extraordinary medical measures in the event of endof-life scenarios. Often this legal change is more difficult than it may appear because the wishes and concerns of adult children are also considerations. Diminished Capacity. A dramatic trend in senior divorces is to question the mental competency of a spouse. Most often, this issue is raised concerning the execution of documents that convey property, change wills, or alter powers of attorney. Every adult experiences diminished capacity with aging. Normal problems in memory and thinking become more noticeable in the senior years, as does the early onset of dementia. There are standard psychological assessments of cognitive functioning that will likely become routine in senior divorces. Despite the increase in the rate of senior divorce, the desire to enjoy marital relationships continues to flourish. The popular dating site, Match.com, boasts 2.5 million senior listings, while its chief competitor eHarmony prides itself on over HN 1.2 million senior listings. Robert Gordon is a clinical psychologist and attorney. He is a member of the senior lawyers division of ABA. He served as president of the Texas Psychological Association. He can be reached at drbob@drbob.com.
DAYL Elder Law Committee & Dallas Volunteer Attorney Program Present
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SYMPOSIUM 2011 Friday, September 16, Noon to 5:00 p.m. at Belo Social Hour, with Cash Bar Available: 4:00 to 5:00 p.m. MCLE 4.00; Ethics 1.00, pending For further information, contact gosalj@lanwt.org
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D al l as Bar A ssoci ati on l Headnotes 9
Family Law
Paternity Fraud in Texas by Katherine K. Kinser and Holly D. Friedman
In Texas, a man is presumed to be the father of any child born to his wife during the marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce. Tex. Fam. Code 160.204(a). The only way the presumed father can rebut that presumption is through adjudication or filing a valid denial of paternity. In April 2011, the Texas Legislature unanimously passed Senate Bill 785 to amend Sections 154.006 and 161.005 of the Texas Family Code and address the issue of paternity fraud. Prior to the passing of this bill the Texas Family Code did not address a father mistakenly signing an acknowledgment of paternity or having been wrongly adjudicated as the father of the child. In those situations, the law required the father to continue to pay child support even when genetic testing proved that he was not the father of the child. S.B. No 785 amends the law relating to termination of the parent-child relationship in such situations and the accompanying duty to pay child support.
Practical Applications
Prior to the passage of S.B. 785, Section 161.005 of the Texas Family Code
provided that a parent could file a suit for termination of the parent-child relationship, and a court could order termination if it is in the child’s best interest. With the passage of S.B. No 785, a man who has either signed an acknowledgement of paternity or has been adjudicated to be the father of a child without first obtaining genetic has a potential remedy for obtaining termination of the legal parent-child relationship.
The Petition for Termination
To seek termination, the father must file a verified petition and, in addition to stating that he is not the child’s father, must state that he signed the acknowledgment of paternity or failed to contest parentage because of the mistaken belief that he was the child’s genetic father based on a misrepresentation leading him to that conclusion. The mistaken belief must have been held at the time the acknowledgment was signed or on the date the court order in the previous proceeding was rendered.
alleged indicating that he is not the father.
Who can File
Any man who has mistakenly signed an acknowledgment of paternity or has been adjudicated to be the father of a child without obtaining genetic testing may file a petition seeking termination. A man may not file if he is the child’s adoptive father, the child was conceived by assisted reproduction that the man consented to, or he is the intended father under a court-approved gestational agreement.
Outcome
If a man is able to establish a meritorious prima facie case for termination, the court will order genetic testing. The result of that test will determine the outcome. If the testing shows the man is not the biological father of a child and the parent-child relationship is thus terminated, the man may no longer be required to pay future child support pay-
ments. The termination, however, does not affect the child support arrears or accrual of interest on arrears owed prior to the termination. In addition to filing for termination of the parent-child relationship, the man may petition the court to continue to allow him rights of possession and access to a child. If possession and access is granted, the court may also require one or all of the parties to participate in counseling with a mental health professional. Finally, if another man is determined to be the child’s biological father, he may not be ordered to pay retroactive child support for any period of time preceeding the date on which an order terminating another man’s parent-child HN relationship is entered. Katherine A. Kinser is Board Certified in Family Law and has been practicing family law in Texas for over 25 years. She can be reached at kathy@kinserbates.com. Holly D. Friedman brings her experience and education as a social worker into her practice of family law at The Friedman Law Firm, PLLC. She can be reached at holly@hfriedmanlaw.com.
When to File
Until September 1, 2012, any man may bring a petition under the bill without regard to when he learned that the child was not his biological child. Beginning September 1, 2012, the petition must be filed not later than 1 year after the man becomes aware of the facts
Turning 65: What You Need to Know if You or Your Clients Are Turning 65 A full day CLE program
Wednesday, September 7, 2011 Noon at Belo Sponsored by the DBA Solo & Small Firm Section, Estate Planning & Probate Section, Senior Lawyers’ Committee and DAYL Elder Law Committee
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10 H e a d n o t e s l D a l l a s B a r A s s o ciation
Septem ber 2011
DBA State Bar President’s Update by Bob Black
Every day, Texas lawyers are hard at work to protect the rights of their fellow Texans. We also work hard to give back to our communities and schools by volunteering and serving in leadership roles. One of my goals during the year ahead is to foster greater awareness of our service to our profession and our communities and to educate the public on the central role of lawyers in our democratic society. The Dallas Bar Association has a long tradition of service and education to both its members and the public. Prime examples are found in the accolades the DBA received at the State Bar of Texas Annual Meeting in San Antonio in June. The DBA was recognized with the Stars of Texas Bars Star of Achievement for its Mock Voir Dire Project, as well as a sweep in the newsletter category for Headnotes, including the award for Best Overall Newsletter. Congratulations on these well-deserved honors.
Making the Case
There are numerous examples of how
our members of our profession are serving their communities or providing pro bono work for those in need of legal assistance—from helping towns recover from natural disasters to bringing new families together through adoption days and ensuring veterans receive the benefits they deserve. Lawyers are doers so we may not spend a lot of time talking about our commitment to public service, but we need to. The State Bar of Texas has created an online portal—www.texasbar.com/ makingthecase—that contains resources to help you lead a conversation with a community group about the role of lawyers and the judi- Bob Black cial system in our society. This website includes ideas for speaking to community groups, tools to help you with your presentation and inspirational profiles and videos about trailblazing Texas lawyers who have contributed to the legal landscape of our state
and nation. The State Bar has also produced We Are Lawyers, a wonderful video that showcases the impact lawyers have had on our society. Visit www.texasbar.com/makingthecase to learn more and to receive a copy of We Are Lawyers. In a related initiative, we plan to collaborate with the Texas Bar Historical Foundation and the Texas Supreme Court Task Force on Historic Document Preservation to preserve many historic legal documents in danger of being lost and to help tell their stories. We, as a profession, have much to learn from our rich legal history, but it is my belief that there is much the public can learn about our beloved profession as well. It may take time to open minds, but it is a challenge worth undertaking.
Civics Education
Civics education is critical to fos-
tering engaged citizens who understand our democracy and the liberties it protects. Ensuring our students receive a comprehensive groundwork in civics is essential to producing the next generation of responsible, engaged citizens. To accomplish this, we need to connect with students via technology in an entertaining and thought-provoking manner. We must also ensure that Texas teachers have a full array of educational resources available to help them prepare our children for the future. This is especially important as our teachers work with the new Texas Essential Knowledge and Skills (TEKS) standards, which took effect August 1. These are the first new standards in 13 years. To that end, I have been working with the State Bar’s Law-Related Education department on Oyez, Oyez, Oh Yay! Civics Resources for Texas Students and Teachers, an interactive web-based project to assist Texas teachers and students in preparing for the new TEKS standards in social studies. Oyez, Oyez, Oh Yay! focuses on landmark court decisions that middle and high school students must know to be successful per the new TEKS standards. The website includes links to case summaries, videos and curriculum materials and strategies for teachers. An accompanying toolkit is available with information on the new TEKS standards that relate to court decisions, as well as a sample case summary, sample teaching strategies, a list of online resources for students and teachers, and other curriculum ideas from the Law-Related Education department. In addition, the State Bar has also produced a series of videos featuring five seminal U.S. Supreme Court cases that Texas students are required to study. The videos, which include interviews with leading Constitutional scholars, are available on the Oyez, Oyez, Oh Yay! website, as well as in DVD format. The website and DVD also include video introductions from former U.S. Supreme Court Justice Sandra Day O’Connor and Texas Supreme Court Chief Justice Wallace B. Jefferson, both strong advocates for strengthening civics education in our schools. For more information on this exciting project, HN visit www.texasbar.com.
New GM, Chef at Belo Mansion CONTINUED FROM PAGE 1
the French Culinary Institute of New York. His life has revolved around food since the age of 7 when he began helping his mother and grandmother in the kitchen. After pursing a degree in architecture, Chef Brian realized he was missing something. He quickly returned to New Orleans to begin the study of his true passion— food. After years of study, including an apprenticeship under renowned French Master Chef Brian Litolff Pierre Bertanet, Chef Brian began his culinary career. His experience has taken him to the kitchens at Food Glorious Food, World Yacht Cruises and New York City’s famous Tatou Restaurant. The Dallas Bar Association is pleased to welcome Mr. Brand and Chef Brian HN to the Belo Mansion.
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Dal l as Bar A ssoci ati on l Headnotes 11
Family Law
Adultery and Its Impact on Divorce by Kelly McClure and Chris Meuse
In his epic poem Don Juan, Lord Byron wrote, “what men call gallantry, and gods adultery, is much more common where the climate’s sultry.” Blame it on that indecent sun or the sweltering temperatures felt this summer, but whatever the reason, Americans are cheating on their spouses in record numbers. A recent study in the Journal of Marriage and Family found that infidelity is the primary cause of approximately half of all divorces, and according to a 2008 USA TODAY/Gallup Poll, 54 percent of Americans know someone who has an unfaithful spouse. As it is becoming increasingly more common for spouses to engage in extramarital affairs, infidelity is becoming more and more prevalent as an issue in divorce. As such, it is important for the Texas practitioner to know and understand the role adultery plays in the divorce process. Although a divorce may be decreed in Texas without assigning fault to one party, the Texas Family Code provides that adultery may be a fault ground for divorce. TFC § 6.003. “Adultery,” as used in a divorce proceeding, means the voluntary sexual intercourse of a married person with one not the husband or wife of the offender. Adultery is not limited to acts committed before the separation of the parties. To prove adultery, direct and circumstantial evidence may be used, but clear and positive proof is necessary. Mere suggestion and innuendo of an affair during the marriage are insufficient. Therefore, a party will likely be
unsuccessful in a claim of adultery if the only evidence offered is a hunch or feeling that the other spouse is engaged in a sexual relationship outside the marriage. Therefore, if a party suspects that their spouse is committing adultery, it is important for him or her to collect as much evidence supporting the suspicion as possible. Any evidence that goes towards proving that the opposing party had an opportunity and proclivity to commit adultery should be gathered early in a case. Emails, text messages, telephone records, credit card and bank statements, or any information to which the innocent party has equal access, may be useful in proving adultery. Additionally, with the advent of social networking websites, it is important to gather relevant information, such as photographs or postings, from the offending party’s social networking webpage. Information on these sites could be deleted or restricted, making it more difficult to obtain later, so it is important to collect this information at the earliest possible time. Besides securing a decree in favor of one spouse on the fault ground of adultery, pleading and/or arguing adultery as the reason for the breakup of a marriage can be used to obtain a disproportionate share of the marital estate. The Texas Family Code also provides that the court must divide a marital estate in a manner that the court deems “just and right.” TFC § 7.001. Fault in the breakup of the marriage and the benefits the innocent spouse would have received from a continuation of the marriage are factors a court may consider in determining a
“just and right” division of the marital estate. An unequal division of marital property, however, may not be used to punish the party at fault in the divorce. Simply proving adultery, therefore, without any other factors listed by the Texas Supreme Court in Murff v. Murff, 615 S.W.2d 696 (Tex. 1981), will not result in an award of a disproportionately greater amount of the community estate to the innocent spouse. Since courts are not to use an award of a disproportionate share of the estate to punish an adulterous party and because claims of adultery are becoming increasingly more common in the courtroom, it is crucial that the party claiming adultery focuses on how the offending party’s actions broke up the marriage and how the end of the marriage will affect the innocent spouse. To increase a party’s chances of recovering a disproportionate share of the estate, evidence should be presented showing that the adulterous party’s extramarital affair
caused the breakup of the marriage and that because of the breakup, the innocent spouse will be deprived of benefits that would have been received had the marriage continued or that the adulterous affair resulted in a waste of community assets by any grossly excessive gifts made to a paramour. Adultery certainly can have an impact on divorce proceedings, and infidelity has become an increasingly more common reason for married couples to dissolve their marriage. Therefore, it is important for the Texas practitioner to understand a claim of adultery and its impact on divorce, in case a “Don Juan” walks through the office door. HN Kelly McClure is a board-certified Family Law Practitioner and partner at McClure Law Group, PC. She also is a former Chair of the Family Law Section of the Dallas Bar Association. Chris Meuse is an associate at McClure Law Group, PC who is trained in Collaborative Law and whose practice focuses exclusively on family law matters. They can be reached at kmcclure@mcclure-lawgroup.com and cmeuse@mcclure-lawgroup.com, respectively.
LIVE FAMILY LAW NUTS & BOLTS CLE SEPTEMBER 14 & 15, 5:00 to 8:00 p.m. at Belo MCLE 3.00, including 1.00 Ethics each evening Sponsored by the DBA Family Law Section and DVAP To register, or for more information, contact perkinsa@lanwt.org, or reed-brownc@lanwt.org.
12 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
Septem ber 2011
Family Law
Must I Stay or May I Go by James Giries
In Chambers Interview of Children in Family Law Cases
Many parents who are divorced or separated from their child’s other parent face the question of whether their child may choose which parent they will reside with primarily. Much misinformation and fear exist regarding the extent to which a child may choose the primary residence. In the minds of many parents or conservators, this question equates to who will be the primary parent or conservator, who will be able to spend more time with the child or who will exercise more control. Texas Family Code (TFC) Section 153.009 provides for the interview of a child in chambers to address the child’s desires regarding primary residence. The in-chambers interview may also include the child’s preference as to possession, access or any other issue in the suit affecting the parent-child relationship. Upon request, the court must con-
duct an in-chambers interview with respect to a child 12 years of age or older. The interview is discretionary for a child under 12 years of age. Absent a request, there is no requirement that the court interview the child or incorporate the child’s desires into its ruling.
cases, the court may not interview a child in chambers on any issue on which the parties are entitled to a jury verdict. TFC § 153.009(b). The determination of which joint managing conservator may designate the primary residence of the child is an issue that may be decided by a jury. TFC § 105.002(c).
Who Can Request an In-Chambers Who May Be Present at the Interview? Any party to the lawsuit, an amicus Interview attorney and the attorney ad litem for the child may all request an in-chambers interview. The court may also conduct an interview of a child on its own motion. The procedure for requesting the interview of the child in chambers is omitted from the statute and left to the individual court. Generally, a written motion or letter to the court and coordination with the court’s schedule is all that is required.
Non-Jury Trial vs. Jury Trials
The in-chambers interview applies only to non-jury trial cases. For jury trial
Professionalism Tip of the Month If you know a lawyer whose impairment due to depression or addiction raises a substantial question as to that lawyer’s fitness to practice competently, you are required to report that lawyer to the disciplinary authority. However, ethics rule 8.03(c) allows lawyers to fulfill their obligation to report by bringing the impaired lawyer to the attention of an approved peer assistance program rather than to the disciplinary authority. The Texas Lawyers Assistance Program (TLAP) is one such program. For more information call (800) 343-8527 or (512) 427-1453, 24 hours a day, or visit the TLAP webpage on the Texas Bar’s website. All reports are confidential by law.
The court may permit the attorney for a party, the amicus attorney, the guardian ad litem for the child, or the attorney ad litem for the child to be present during the interview. TFC § 153.009(e). However, the court is not required to permit anyone to be present and may exclude these individuals at its discretion.
Preparation of a Record
A record of the interview can be made and becomes a part of the record in the case. TFC §153.009(f). The individuals who may request a record also include any party, the amicus attorney, or the attorney ad litem for the child or the court itself.
Weight of the Child’s Preference
Significantly, the child’s stated desires to the court regarding possession, access or
other issues does not diminish the court’s discretion in determining the best interest of the child. TFC § 153.009(c). Invariably the court will weigh the myriad factors to determine the child’s best interests. The weight afforded to the child’s preference is dependent upon the age and maturity of the child and the practicality of the child’s request in light of the circumstances. Thus, it is important to consider judicial temperament regarding the interview itself based on the factors in each case and the experience the court brings to bear to resolve the issues presented.
Recent History
A child’s preference could previously be submitted in writing to the court during a pending suit as an alternative to the in-chambers interview. This provision allowed for, or perhaps facilitated, “dueling affidavits” in divorce cases and suits affecting the parent-child relationship. In 2009, the Texas Legislature repealed this option. Currently, Section 153.009 is the only statutory mechanism that allows the affected child to communicate the child’s preferences directly to HN the court.
James Giries is family law attorney focusing on matters including divorce, child custody and property division. He can be reached at james@girieslaw.com.
Food Drive Success! The Community Involvement Committee hosted a food drive to support the Jewish Family Service of Greater Dallas. The result was a success! Christina McCracken, of Gordon & Rees, LLP, is the Committee Co-Chair and Paul Herring, Attorney at Law, was Chair of this project. A big thanks to Paul for delivering the food to Jewish Family Service.
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Dal l as Bar A ssoci ati on l Headnotes 13
Family Law
Alimony in Texas: Myths and Changes by Jana Wickham Paul and Holly Eckert
Contrary to popular belief, Texas alimony does exist, but it’s difficult to obtain. Post-divorce support is referred to as “maintenance” under Chapter 8 of the Texas Family Code. “Maintenance” means an award in a divorce of periodic payments from the future income of one spouse for the support of the other spouse. TFC § 8.001(1). Common misconceptions abound about maintenance. Also, recent substantial legislative changes went into effect for all cases filed on or after September 1, 2011. MYTH: “If I’ve been married for 10 years and I’m the breadwinner, I’ll have to pay alimony.” ANSWER: Most likely, “no”, unless your spouse meets one of the statute’s eligibility requirements. First, the threshold requirement for a spouse to qualify is that the maintenance seeking spouse must lack sufficient property, including separate property, at divorce to provide for the spouse’s minimum reasonable needs. TFC § 8.051. “Minimum reasonable needs” is not defined. Determining what the minimum reasonable needs are for a particular individual is a fact-specific determination that is made by the court on a case-by-case basis. Usually the court looks at a spouse’s monthly expenses to determine if she can financially support herself given the property division she receives. Unlike under the old statute, this threshold requirement now applies to those seeking spousal maintenance based on the other spouse’s conviction of, or deferred adjudication for, family violence as defined by Texas Family Code in Section 71.004. If qualifying under family violence, the 10-year plus marriage rule doesn’t apply. So, a “newlywed” could receive maintenance. Further, the changes clarify that a spouse is only eligible to seek maintenance on the family violence basis if it occurred within two years before the divorce filing
All members are invited to
“Legal Writing for the Beginning Lawyer” October 7, Noon, at Belo
Speaker: Chad Baruch of The Law Office of Chad Baruch RSVP to ahernandez@dallasbar.org. Co-sponsored by the Transition to Law Practice Committee and Dallas Association of Young Lawyers
PUBLIC FORUM
“LEGISLATION SESSION SUMMARY” SPEAKERS: REP. RAFAEL ANCHIA and SEN. JOHN CARONA
Monday, October 3, Noon, at Belo RSVP to sevans@dallasbar.org Sponsored by the DBA Public Forum Committee.
or during the pendency of the divorce, and it was committed against the other spouse or the other spouse’s child. TFC § 8.051(1). The second way to qualify for maintenance falls under Section 8.051(2): a spouse must be unable to provide for his minimum reasonable needs because of (a) incapacitating physical or mental disability; (b) lack of ability to earn sufficient income and a 10-year plus marriage; or (c) being the custodian of a child of the marriage who requires substantial care and supervision because of a physical or mental disability which prevents the spouse from earning sufficient income. If a spouse has been determined to be eligible for maintenance under Section 8.051 (2)(b), a rebuttable presumption still exists that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in earning sufficient income or developing necessary skills to provide for the spouse’s
minimum reasonable needs during separation or during the pendency of the suit. TFC § 8.053(a). MYTH: “If the court orders me to pay alimony, I’ll pay it forever.” ANSWER: The statute limits the duration and amount. In determining the nature, amount, and duration of maintenance, the court can consider all relevant factors, including those listed in Section 8.052. Please see the new legislative changes for a complete list of the numerous factors. Before the new statutory changes, the court could order maintenance for a period of no longer than three years. Now, maintenance may remain in effect for no more than five years if the spouses were married for 10 years, but not more than 20, or, if the spouses were married less than 10 years and eligibility is satisfied due to family violence. It lasts seven years if married for at least 20 years, but not more than 30, and 10 years if married 30 years or more. It is impor-
tant to remember, however, that these periods are ceilings and not necessarily what might be ordered in every case. The court must limit the duration of an award for maintenance to the shortest reasonable period that will allow the maintenance seeker to earn sufficient income to provide his or her minimum reasonable needs. TFC § 8.054(a)(2). Also, the court may order no more than the lesser of $5,000 per month or 20 percent of the obligor’s average monthly gross income. The old maximum award allowed was the lesser of $2,500 or 20 percent of the obligor’s monthly gross income. With all of the new changes, it is worth a read of the statute to see if your HN client fits the alimony bill. Jana Wickham Paul is a partner in the law firm of Hance Wickham, P.C., and is board certified in family law by the Texas Board of Legal Specialization. She can be reached at jpaul@ hancelaw.com. Holly Eckert is an associate at Hance Wickham, P.C. She can be reached at heckert@hancelaw.com.
14 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
Septem ber 2011
Have You Had Your CLE Today? As a member of the Dallas Bar Association, you have more than 400 free CLE opportunities available each year. Whether you are interested in Criminal, Labor & Employment, or Tax Law, we have a CLE for you. To find out more, log on to www.dallasbar.org.
Sean Hamada, Judiciary Committee Chair, Robert Udashen, Hon. Jim Jordan, Federal District Judge Paul Stickney, Stuart Reynolds and Leon Carter.
Labor & Employment Law Section Chair Cecilia Morgan, EEOC General Counsel Patrick David Lopez, Robert Canino, EEOC Council Member and Joseph Gillespie, Section Treasurer.
Panelists at the Tort & Insurance Practice Section’s Legends of the Bar were: Royal Brin, Lisa Blue Baron, James Coleman, Sylvia Demarest, Hon. Catharina Haynes, moderator, and Section Chair Robert Tobey.
Solo & Small Firm Section Chair John Goren and speaker RJon Robbins, sponsor.
Business Litigation Section Chair Aimee Fagan, Hon. John Ward, Hon. Barbara M.G. Lynn and Bruce Sostek.
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Dal l as Bar A ssoci ati on l Headnotes 15
Column Business of Law
Honoring the Profession – What Makes A Good Lawyer? by Mary Louise C. Hopson
What makes a good lawyer? Education, knowledge, experience, high standards and a good work ethic go far. But what else is important to being as good a lawyer as one can be? We asked two really good lawyers, both outstanding members of the Dallas Bar Association, who make a real difference in the Dallas legal landscape, to share their thoughts.
Be Available and Be Helpful
Strasburger & Price partner Bob Thomas has spent decades helping the profession, becoming a very well-regarded lawyer. A key figure in establishing the Belo Mansion as headquarters for the Dallas Bar Association many years ago, Mr. Thomas often can be found leading groups of summer clerks and newly-minted lawyers through the building and describing the history of the former funeral parlor and home of Col. A. H. Belo that was
renovated to house the DBA. Although he is technically “retired,” Mr. Thomas admits that he “flunked retirement.” He goes to the office every day, is found at the same phone number assigned to him decades ago and is very much a part of the local legal scene. For starters, a good lawyer, Mr. Thomas said, answers his or her own telephone. “A lawyer does not need to have a secretary answer and screen calls,” Mr. Thomas said, adding that even Henry Strasburger, founder of his firm, answered his own phone back in the day. “A lawyer should be readily available to answer the phone. Most telephones these days will tell you who is calling, so you already know who is on the line. Don’t be so self important that you won’t answer your own phone calls.” Once on the telephone, said Mr. Thomas, a lawyer should try to be as helpful as possible. “Try to be of help on the first call,” he said, adding that “it’s scary to call a lawyer
A Conversation with the Collin County Judiciary, Moderated by Judge Martin Hoffman Speakers: Hon. John Roach, Jr., 296th District Court; Hon. Chris Oldner, 416th District Court; and Hon. Jay A. Bender, County Court at Law No. 6.
Thursday, September 1, noon at Belo MCLE 1.00, including .25 Ethics Sponsored by the Judiciary Committee. RSVP to kzack@dallasbar.org.
for some people. Ask about the nature of their problem. See what you can do for them, and ask how you can be of help. After a little conversation, you will be able to tell if the problem is within your area of competence. If it’s not, try to refer the caller to someone who knows how to help them. You can be helpful without having to make an appointment, or worrying about charging for every single call or sending out a bill.”
you do, and the money will take care of itself,” he said. “The driver shouldn’t be the money. Too many people focus on the economics first, rather than being a good lawyer and putting clients’ interests first. When you put the clients first, they will come back to you and take care of you economically.” Courage is also necessary, he said, “the courage to stand up and call someone out when they are wrong, to admit when you are wrong and to stand up for your principles and convictions.”
With Hard Work, Passion and Courage, the Money Will The Dallas Bar Association Follow – Helping Lawyers Become Mike Boone is a partner at Haynes and Boone, which has 550 lawyers Good Lawyers working in 30 major legal practice areas in 12 cities around the world. Richard D. Haynes, his securities law instructor, hired him in 1967 after graduation. In 1970 the two formed Haynes and Boone. Being a good lawyer requires a lot of hard work, he said. “You have to become the best expert in your field, to be knowledgeable,” Mr. Boone said. “But clients don’t pay for knowledge. They pay for great judgment, experience, creativity and problem-solving ability–things that are beyond what you learn in law books.” Great lawyers have great judgment, and have mastered such skills as picking a jury, negotiating, and taking a creative approach to finding solutions to client problems, he added. A good lawyer must also be passionate and not overly concerned with the “money” side of the practice, said Mr. Boone. “Worry about being great at what
There are many ways to describe a good lawyer. Of course, each lawyer is different, and each situation varies with area of practice, type of clients, professional setting and personality of the lawyer. The Dallas Bar Association provides its membership with a framework that can make each member a better lawyer. “I think the Dallas Bar Association is the greatest public service bar association in America,” said Mr. Thomas. “Participation in DBA activities is a great way to honor our profession and become a better lawyer, whether one teaches at or attends our outstanding legal education programs, or takes part in our other activities. And, besides that, it helps HN keep practicing law fun!”
Mary Louise Hopson consults with lawyers and other professionals on marketing and communications issues. She is a former Co-Chair of the Publications Committee, and writes the occasional column The Business of Law. She can be reached at mlhops@sbcglobal.net.
16 H e a d n o t e s l D a l l a s B a r A s s o ciation
Septem ber 2011
Piercing the Corporate Veil: The Bankruptcy Impact By Peter Hall
Piercing a corporate veil is not complicated but is frequently improperly raised as a cause of action rather than as a remedy. To succeed in piercing, a litigant must understand what a chosen piercing theory requires and what other obstacles may arise. Additionally, the unique circumstances of bankruptcy cases may significantly affect who may seek to pierce and who will reap the benefits if successful. Although piercing is traditionally sought in order to hold individuals personally liable for corporate obligations, Texas does recognize the concept of reverse piercing where a corporation’s assets may be reached to satisfy the personal obligations of a shareholder or director. Reverse piercing is most commonly used in closely held corporation cases where the alter ego theory is raised and adequately proven, but only after proving the underlying substantive cause of action. Without delving into the state law theories on piercing, state court lawsuits typically become subject to the jurisdiction of the bankruptcy court as soon as a petition for bankruptcy is filed. The case may also
be removed to the bankruptcy court and become a part of the bankruptcy estate. At this point, the case may or may not remain in the hands of the original plaintiff. The bankruptcy estate consists of all of the debtor’s legal or equitable property interests as of the commencement of the case. Adversary proceedings in bankruptcy frequently allege alter ego theories against defendant debtors. If the theory is proven, the assets of the alter ego may be treated as those of the debtor, regardless of whether the debtor is a business or the individual behind the business. In corporate bankruptcy situations, ownership of a cause of action against the debtor is an important determination. The answer depends upon whether the debtor could have raised the underlying substantive claim at the commencement of the case under applicable state law. If the claim alleges only indirect harm to a creditor (i.e., an injury which derives from harm to the debtor), and the debtor could have raised the claim for a direct injury under applicable law, then the cause of action belongs to the bankruptcy estate. Conversely, if the claim does not explicitly or implicitly allege harm to the debtor, then the cause of action could not have been asserted
by the debtor as of the commencement of the case, and is not property of the estate. For actions belonging to the estate, only the trustee may seek to pierce the veil. This seems somewhat counter-intuitive. The suggestion that the estate might sue itself is essentially correct. The estate stands to gain additional assets from, or have existing liabilities shifted to, the debtor’s alter ego identity. The possibility of piercing and reaching shielded assets increases the estate assets and allows for a better return to creditors. The Fifth Circuit Court of Appeals, construing Texas law, held that an alter ego theory, under such circumstances, was property of the estate to be asserted by the debtor corporation. See Matter of S.I. Acquisition, Inc., 817 F.2d 1142 (5th Cir. 1987). The holding was that the piercing action belonged to the estate and the automatic stay provision prevented the debtor’s creditors from bringing a state court action against the debtor and its non-bankruptcy co-defendant based on the alter ego doctrine because the action was not personal to any one creditor. Properly raising a theory of piercing the veil is critical to any suit; in bankruptcy or otherwise. Litigants must understand that
piercing is a remedial action and not a substantive cause of action. Piercing merely expands the scope of potential sources of relief by extending to individual shareholders or other business entities what is otherwise only a corporate liability. As the Court of Appeals in Beaumont put it very succinctly, “[w]ithout an underlying cause of action creating corporate liability, evidence of an abuse of the corporate form is immaterial.” In re StarFlite Management Group, Inc., 162 S.W.3d 409 (Tex.App.-Beaumont 2005, no writ). Piercing the corporate veil is an attractive remedy where a corporate defendant does not appear to have the ability to satisfy a judgment. However, these theories are too frequently misapplied by attempting to pursue them as the substantive causes of action and misunderstanding their concepts. Additionally, plaintiffs too frequently spend large amounts of time and money pursuing a remedy for which they commonly lose standing once the defendant has filed for bankruptcy HN protection. Peter C. Hall is Vice President of Product Development, National Bankruptcy Services, LLC. He can be reached at lawyer.hall@gmail.com.
11th Annual Freedom Run — 5K Run Thursday, September 8, 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. Organized by the Dallas Association of Young Lawyers.
BUSINESS LEADERSHIP SYMPOSIUM Presented by Texas Wesleyan Law Review
November 4, 2011 Texas Wesleyan School of Law Fort Worth, Texas The Texas Wesleyan Law Review is pleased to host a Business Leadership Symposium this fall on the general legal issues that today's corporate attorneys must face as both legal professionals and business leaders. Parties interested in attending the symposium, please contact: Kate Echols Texas Wesleyan Law Review, Symposia Editor txwesccsymposium@gmail.com
Please visit our website for additional information or to register for the symposium:
http://www.law.txwes.edu/LawReview/UpcomingSymposia/tabid/1504/Default.aspx
Approval for CLE credits will be sought for this event.
BUSINESS LEADERSHIP SYMPOSIUM November 4, 2011 • Texas Wesleyan School of Law
Sept e mb e r 2 0 11
Focus
Dal l as Bar A ssoci ati on l Headnotes 17
Family Law
When Family Law and Criminal Law Intersect by Shelly Wilbanks
Family and criminal law cases typically follow their own separate parallel paths. However, when they intersect, it complicates both cases and requires attorneys to consider issues that may be outside their preferred focus area or specialization. In family law, this happens primarily when there are allegations of domestic violence and/or child abuse. When your client is facing allegations of domestic abuse or child abuse, the overlap into the criminal realm creates procedural and legal consequences that you must consider to fully protect and successfully advocate for your client. Following are some issues you should consider when you come to the intersection of criminal and family law. Be sure to look both ways before crossing. If your client informs you that the opposing party has alleged family violence or child abuse, you must find out whether your client has been formally charged with a crime. If police were called but your client does not know the status of the charges, you can search for the case by client name using the terminals provided at the Frank Crowley courthouse. You can learn what charges, if any, have been filed, whether your client has been indicted, the cause number and the assigned prosecutor. If charges have been filed, you should recommend that your client retain defense counsel, then work closely with her to plan strategy for any civil hearings.
Depending on the potential consequences to your case, it may be in your client’s best interest not to testify. Regardless, your client needs to be fully advised of the impact on the criminal defense when deciding whether to take the stand and may want to have defense counsel present at any civil hearings. Another reason to work closely with your client’s defense counsel is that she may not realize the impact of a family violence finding on your client’s custody or divorce case. Such a finding precludes a managing conservatorship for the perpetrator, provides grounds for disproportionate division of community property and spousal support prior to 10 years of marriage, and can create standing for a third party to petition for conservatorship. As a result, she may advise your client to plead guilty to “straight” assault— no family violence finding—thinking it would avoid the negative consequences of a family violence conviction. However, such a conviction would have the same effect in the civil case as a family violence conviction if opposing counsel proves the alleged victim’s family relationship. If the police or the Department of Family and Protective Services have been called, subpoena the police reports, DFPS, and medical records as soon as possible. These can provide excellent impeachment material. When a party has called 911, you must submit a request or subpoena within 30 days of the call to prevent destruction of the recording. You
Celebrating 29 Years! DVAP’s Pro Bono Awards Celebration
Save the Date: Wednesday, October 26, 2011 The Pavilion at the Belo Mansion Hosted by the Dallas Volunteer Attorney Program
can preserve this evidence by submitting a Freedom of Information Act request online and sending a subpoena for the recording and all records related to the call. Your request must include the name of the caller, the address, the date, and the approximate time of the call. Under Texas Code of Criminal Procedure Section 17.292, the magistrate shall issue an Emergency Protective Order (EPO) when a defendant has been charged with a family violence offense that involves serious bodily injury or the use or exhibition of a deadly weapon during the assault. An EPO expires after 30-90 days and does not include a finding of family violence. It may prohibit the respondent from going home, from going near the applicant and children and from possessing firearms and ammunition. Violating an EPO carries the same criminal penalty as violating a temporary ex parte or permanent protective order. Whether or not formal charges have been filed, when your client has been
accused of child abuse, as with domestic violence allegations, it is extremely important to consider the possible criminal consequences should your client testify or make statements to other parties or caseworkers. When such allegations are made, CPS will arrange for a forensic interview of the child. Request a copy of the report and/or send a subpoena, and be prepared for the prosecutor’s attempt to use the report as evidence or have the forensic interviewer testify regarding the child’s statements. Failure to adequately address the criminal aspects of a civil case can have severe consequences for your client. Winning custody or property for your client means little if the information provided in the civil case contributes to a criminal conviction. Proceed with caution. HN Shelly Wilbanks is a family law attorney and former prosecutor. As an associate at Duffee + Eitzen, LLP, she represents clients in all areas of family law. She can be reached at swilbanks@ duffee-eitzen.com.
You are Invited The DBA Legal History Discussion Group and The University of Texas History Department will present: Professor Jacqueline Jones on “Saving Savannah: Law and the Struggle for Civil Rights in the South After the Civil War”
W W
September 12, Noon, at Belo, Free, MCLE 1.00 Email jdaniel@velaw.com to register.
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Guest Speaker Justice Eva Guzman Texas Supreme Court Location Belo Mansion & Pavilion - Dallas 12 p.m. to 1:30 p.m.
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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 s s o ciation
In the News
September
FROM THE DAIS
Charles Meadows, Jr., Joel Crouch, Josh Ungerman, David Colmenero and Mary Wood of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. spoke at the Taxation and Estate Planning Update for Professionals seminar in Tyler and Longview. Anthony Daddino, with the firm, spoke at the San Angelo Chapter of the Texas Society of CPAs and spoke in Lubbock to the West Texas Women Certified Public Accountants. William Cousins III spoke at the AICPA Conference on Tax Strategies for the High-Income Individual. Alan Davis spoke at the 20th Annual Institute on Estate Planning in Amarillo. Michael Villa, Jr. spoke at the ABA Tax Section May Meeting. David Colmenero spoke at the Annual Estate Planning Update. Charles Meadows, Jr., Joel Crouch and David Colmenero spoke for the Wichita Falls Chapter/TSCPA. Charles Meadows, Jr., Joel Crouch, David Colmenero and Michael Villa, Jr. spoke at the Dallas CPA Society’s Continuing Education Day Conference. Charles Meadows Jr. was a panelist on the Tax Controversy broadcast by the Accounting Continuing Professional Education Network in Dallas. Angela Neville spoke at the 2011 national conference of the Association of Rural Electric Generating Cooperatives. Dennis Sullivan, of Sullivan & Holston, spoke at a Legal Defense Practice Workshop.
KUDOS
Septem ber 2011
Marcos G. Ronquillo, of Godwin Ronquillo PC, has been named to the 2011 Binational Board of Directors of the United StatesMexico Chamber of Commerce. Carolyn Raines, of the firm, has been elected President of the Executive Women of Dallas.
David E. Colmenero, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., has been named the 2011-2012 Chair of the Dallas CPA Society. Barry Barnett, of Susman Godfrey L.L.P., has been elected to The Center for American and International Law 2011-2012 Board of Trustees. Jeffrey Hall, of Holden & Carr, has been promoted to Partner. James C. Ho, of Gibson, Dunn & Crutcher LLP, has received the Best Brief Award for excellence in brief writing in the U.S. Supreme Court by the National Association of Attorneys General. Claude Wilson, of Looper Reed & McGraw, P.C., has been named an Honorary Fellow for 2010-2011 by the Texas Society of Certified Public Accountants. Al Ellis, of Sommerman & Quesada LLP, has been selected as a 2011 recipient of the Distinguished Alumni Award at The University of Texas at Arlington. Amy Ganci, of Ganci & Skinner, LLP, has been named to the Board of Directors of the Rockwall County Bar Association. Bob Driegert was elected President-Elect/ Vice President of the American Association of Attorney-Certified Public Accountants. Mary Alice McLarty, of McLarty Pope Firm, L.L.P., has been elected presidentelect of the American Association for Justice. Mark K. Sales, of Dykema Gossett PLLC, has been appointed Co-Chair of the firm’s Probate, Trust and Fiduciary Litigation Practice Area.
Jeven Sloan, of Loewinsohn Flegle Deary L.L.P., has been promoted to Partner.
Rodney Moore has joined Weil, Gotshal & Manges LLP as Partner.
Victor D. Vital, of Greenberg Traurig LLP, has been elected to the board of directors for the Boys and Girls Clubs of Greater Dallas.
The Law Office of Gil L. Daley, II, P.C. has a new Fort Worth address of 201 Main St., Ste 600, Fort Worth, TX 76102; phone: (817) 763-9553.
Tom Mighell has published an ebook in partnership with The American Bar Association Law Practice Management Section (LPM) and Apple, titled “iPad in One Hour for Lawyers.” Mighell is also the incoming Chair of the ABA Law Practice Management Section. Monica Cruz, of McCurley Orsinger McCurley Nelson & Downing, LLP, has been appointed to the Texas Bar Association District 1 Grievance Committee.
ON THE MOVE
Jeff Abrams, of Abrams Mediation & Arbitration, has opened a satellite office at 4139 Libby Rd NE, Olympia, WA 98506. He also maintains his Dallas office.
Amy Ganci, Kevin Ganci and Ellen Skinner, of Ganci & Skinner, LLP, have moved to a new branch office in Allen at 825 Market St., Suite 220, Allen, TX 75013. Paula Sweeney joined Slack & Davis, L.L.P. as Partner. Stewart Clancy joined Akerman Senterfitt LLP as Shareholder; Jason Clark and Michael McKleroy, Jr. have joined the firm as Of Counsel. Adam Nunnallee and Jelena Kovacevic have joined as Associates. Andrea Cummings has joined Alston & Bird LLP as Partner.
J. Kendall Ray has joined Burford & Ryburn, L.L.P. as Associate.
Robert M. Candee has joined Vernon Law Group, PLLC as Of Counsel.
Michael Chiusano, Baron Oursler and Vanessa Jeffries have joined Quilling, Selander, Lownds, Winslett & Moser, P.C. as Associates.
James S. Frederick has joined The Bassett Firm as Associate.
Lindsay Daye Barbee has joined Rochelle & Rankin LLP as Associate. R. Scott Schieffer has joined Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. as Associate. Katherine Elsbernd, Joseph Griffith and Tabor Pittman have joined Greenberg Traurig LLP as Associates. Jennifer Snow has joined Farrow-Gillespie & Heath LLP as Associate. Nathan A. Myers has joined Hamilton & Squibb, LLP as Associate. Matthew Mattson has joined Fish & Richardson as Associate. Cole Evans and Michael A. Freeman have joined the firm of Winstead PC as Associates. Ronald Massingill has joined Brousseau Graham & Dooley as Of Counsel.
Monica Berry has joined NTR Metals, LLC as Assistant General Counsel. Christopher Kratovil has joined the firm of Dykema Gossett PLLC. Grant Neidenfeuhr has joined the Tinsley Law Firm as Associate. Roger Mandel has joined Lackey Hershman, L.L.P as Partner. Paul Skiermont and Donald Puckett have formed the firm Skiermont Puckett LLP located at the Chase Tower, 2200 Ross Avenue, Suite 4301W, Dallas, TX 75201; phone: (214) 978-6600. Richard A. Cuccia, II has formed Cuccia Legal, PLLC, located at 4925 Greenville Ave., Suite 200, Dallas, Texas 75206. phone (214) 728-9479. Frank E. Sheeder III has joined DLA Piper LLP as Partner. Daniel Hopper has joined Thompson & Knight LLP.
. . . . . . DBA In the News . . . . . .
During the past two months, your DBA has been highlighted in the following media:
Hood County News: DBA President Barry Sorrels
Advocate Magazine: Law Jam 3
Mesquite News: Legalline, DBA Summer Legal Series, CIC Christmas in July
Al Dia: DBA Legal Summer Series Buddy Magazine: Law Jam 3 Dallas Business Journal: DBA wins SBOT awards, Belo Mansion Honored as Facility of the Year Dbusinessnews.com: DBA Legal Summer Series, Law Jam 3
NBC DFW news.com: Law Jam 3 Neighborsgo.com: Law Jam, Belo Mansion Honored as Facility of the Year North Dallas Gazette: Law Jam 3, DBA Summer Legal Series, Ken Burns at Belo Oakcliffpeople.com: CIC Christmas in July
Dallas Morning News: Philbin Awards, Legalline, DBA Summer Legal Series, CIC Christmas in July, Ken Burns at Belo, DBA Civil Collaborative Law Training & Symposium
OpenPR.com: Belo Mansion Honored as Facility of the Year, Law Jam 3
Daily Commercial Record: Law Jam 3
PRLog.com: Law Jam 3
Dallas Public Library website: DBA Legal Summer Series
Rowlett Lakeshore Times: DBA wins APEX Award, CIC Christmas in July, DBA Summer Legal Series
DAYL Dicta: Law Jam 3
Pegasus News: Law Jam 3, Ken Burns at Belo
DHBA Newsletter: Law Jam 3
SBOT newspaperclips.com: DBA Legal Summer Series, Ken Burns at Belo
Guidelive.com: Law Jam 3, Ken Burns at Belo
Texas Lawyer: Dallas Volunteer Attorney Program, Law Jam 3
Sept e mb e r 2 0 11
Classifieds
Dal l as Bar A ssoci ati on l Headnotes 19
September
OFFICE SPACE
Time is Money! Centrally located 3 miles from County Courthouse & 2 miles from downtown! Quality office space starting at $933/mo. for 622 SF., including electricity and free garage parking. 9 miles to Love Field Airport. Minutes to DART rail, Baylor University Medical Center, Dallas Arts District, SMU, Oak Lawn, West Village. Uptown Tower. 4144 N. Central Expressway. (972) 490-7348. Window office space (14x14) located at Hampton Court, 4311 Oak Lawn Avenue, Suite 600, Dallas, TX 75219 with a spectacular view of downtown Dallas. This space comes with patio access, reception area, conference rooms and kitchen. Space is shared with a family and civil litigation practice. $2,000/monthly. Contact Wilma Viktorin, (214) 4169010 or at wviktorin@duffee-eitzen.com. For photos of the space go to http://www.mydallasfamilyattorney.com Window office Space Available: 6116 N. Central Expressway across from SMU, formerly known by Dallasites as the “Dallas Cowboy Building.” Space includes access to conference rooms, receptionist, kitchen, computer network, internet, phones, and copier. Contact John Withers, Jr. at (214) 363-2095 or johnjr@witherslaw.com. Office Space: Downtown Dallas - Minutes from Courthouses. Two office spaces available. Perfect for attorney and legal assistant/secretary. One large two window office and one inside office space with phone system, conference room, reception area, kitchen, Internet, copier, fax, 24-hour access and parking. Contact (214) 651-8144. Office space available within small real estate law firm located at 4054 McKinney Avenue. Shared conference and break room, copier, DSL & phone equipment are available if needed. No long term commitment and a total monthly rate of $650.00. For inquiry, please call (214) 520-0600. Dallas Centre Suites. Executive and vir-
tual suites with breathtaking views of Dallas on the SW corner of Greenville Ave. Services include full time receptionists with call screening and client greeting with 24/7 onsite building security. Administrative, Notary, Paralegal, and Secretarial Support/ Services provided as needed. Beautifully furnished Conference Rooms, Day Suites and Training Room, which allow you to set up and operate your business in an elegant and professional environment. For leasing information contact Tanya Rodriguez at (972) 479-8800 or at TRodriguez@dallascentresuites.com . Second month free with a 12 month contract! Office Space for Rent. Oak Cliff area. Law Offices of John H. Read II. Includes conference room, full kitchen, free parking, and secretarial available. Contact: Evelyn at (214) 760-9999. Campbell Center I: AV rated law firm has a window office (15x15) for sublease in Class A Bldg. Space is new with exceptional finish out and elevator exposure. All amenities included. Call Joy (214) 361-1262. Tired of sterile office buildings and elevators? One large office ($1,200) with fire place and one small office ($600) available (together or separately) in historic home in Uptown. These unique offices have great client appeal. Receptionist service and conference room available. Picture of home at www.texascrimlaw.com. Call Mick (214-720-9552) North Dallas. Law firm located at Lincoln Centre has two partner size offices, one associate size office and cubicles available. Easy access to Tollway and LBJ, two conference rooms, break room/kitchen, phones, copiers, postage machine, and fax. Email: dallasipfirm@gmail.com for more information.
POSITION AVAILABLE
Small-sized Dallas law firm seeks parttime office manager. Tasks include management of firm accounts and general office admin. Skills needed: computer literate
NEW MEMBER BENEFIT The DBA’s New Online Career Center connects jobseekers with prospective employers in the legal field! Jobseekers can search jobs, post their resume and set up email alerts! Employers can post jobs as well as search resumes to find the right candidate! Go to www.dallasbar.org for more details!
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and proficient with QuickBooks. Approx. 20 hrs/wk. Respond to Dallas Bar Association, Box 09–11A, 2101 Ross Avenue, Dallas, TX 75201. Law firm seeks an associate attorney with 0 to 2 years of experience to work in its commercial litigation and insurance defense sections. Strong research and writing skills are a must. Excellent benefits. To apply, please email a cover letter, resume, writing sample, and transcript to attyapplication@gmail.com. Looking for a bilingual attorney (English/Spanish) with 2+ years’ experience in criminal law. Candidate will be responsible to manage a criminal department caseload consisting of misdemeanor and felony cases. Individual must be self-motivated and willing to work hard. Interested individuals should email resume and cover letter to jjrivera21@juno.com. Godwin Ronquillo PC, a downtown Dallas law firm, seeks associates with 2009 bar date or older. Experience in commercial/civil litigation. Candidate must have excellent credentials, research and writing skills with some deposition, hearing and trial experience. Principals only. Contact: employment@godwinronquillo.com. Palmer & Manuel, LLP, a 13 attorney firm in Campbell Centre, seeks one experienced business litigation and one experienced family law attorney. Applicants should have substantial portable business. The firm’s compensation formula allows attorneys to keep a substantial portion of their fees. See the firm’s website at www.pamlaw.com. Please reply to spalmer@pamlaw.com. Dallas boutique business, commercial, bankruptcy, and construction litigation firm seeks experienced litigator. Candidate must have first chair trial experience and have taken expert deposition. Stable work record necessary. Compensation negotiable. Some portable hourly clientele and involvement in one or more associations a plus. Firm offers first-rate office environment. This is an excellent opportunity for the right attorney. Respond to: oaklawnfirm@aol.com.
POSITION WANTED
Experienced and conscientious litigation attorney seeks contract work. Research, pleadings, motions, briefs, discovery, court appearances, depositions, and appeals. UT law honors graduate, AV-rated, excellent references, reasonable hourly rate. Contact attorney 3503-7615@yahoo.com.
SERVICES
Diamond and Gold Buyer. Buying all types of Diamonds, Immediate Cash Paid. Consignment terms available @ 10 -20% over CASH. For consultation and offers please call (214) 739-0089 Mexican Law Expert - Attorney, law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 222-9494. dlopez@pulmanlaw.com Economic Damages Experts - Thomas Roney has more than twenty years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, valuation and divorce matters. Mr. Roney and his experienced team of economic, finance, and CPA experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney, Barry Seldon, PhD. or Syd Thompson, MBA in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com. Do you have a big case or just feel overwhelmed? Top quality litigation support attorney available for contract assignments. Work experience includes complex business litigation, tort and insurance cases. Former judicial clerk, law review, appellate experience. Very competitive rates. (214) 243-8444. Place Your Ad Here! For affordable classified advertising rates call Judi Smalling at: (214) 220-7452.
Civil Attorney Advisors Needed for Mock Trial Teams Advisors are needed to instruct teams for the 2011-2012 mock trial season (a civil case). Firms and partners can adopt teams as well. Dates and times vary. To sign up, please email the coordinator, Amy Smith at asmith@dallasbar.org.
NEED TO REFER A CASE? The DBA Lawyer Referral Service Can Help. Log on to www.dallasbar.org/dallas-lawyer-referral-service or call (214) 220-7499.
20 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 2011
YOUR CAUSE In 1983, Judge Merrill Hartman led a group of Dallas visionaries to create the first volunteer attorney program in North Texas. Today, the project is known as DVAP, the Dallas Volunteer Attorney Program. DVAP attorneys help families living at or below the Federal poverty guidelines who cannot afford an attorney in civil cases. In honoring her friend, Lisa Blue said of Judge Hartman, “For Merrill, ‘Justice for All’ was not a slogan, it meant access to the Courts started with access to a lawyer.” This year, funding for DVAP faces uprecedented challenges due to state budget cuts, lower interest rates on IOLTA accounts, and reductions in institutional giving. Among the many remarkable projects organized by you, the members of the Dallas Bar Association, this may be the most important collective effort we endeavor. As we embark on the 2011-2012 Equal Access to Justice campaign, please consider helping our cause. For those of you in leadership positions, please educate your firm members about this important effort and consider a coordinated giving campaign. To the many champions of DVAP who have given so generously in the past, thank you for setting our example. You have taught us that DVAP is what we do, that DVAP is our cause. For more details and to donate: www.dvapcampaign.org Or contact Alicia Hernandez - (214) 220.7499 Email: ahernandez@dallasbar.org Rob Crain EAJ Co-Chair
Chris Lewis
214.522.9404 www.CrainLewis.com