October 2010 Headnotes by Jessica Smith

Dallas Bar Association

HEADNOTES October 2010 Volume 34 Number 10

Focus Health Law

DBA President Ike Vanden Eykel Leads by Example by Alicia Hernandez

f actions speak louder than words, Dallas Bar Association President Ike Vanden Eykel has a voice that can be heard around the Metroplex—if not further. And Mr. Vanden Eykel’s voice is leading the charge to make our legal system accessible to the poor through supporting the work of the Dallas Volunteer Attorney Program, a joint program of the Dallas Bar Association and Legal Aid of NorthWest Texas. In August, Mr. Vanden Eykel pledged $30,000 to the 2011 Equal Access to Justice Campaign, which benefits DVAP. His lead contribution launches the campaign and challenges other lawyers to support the program. “The Dallas Volunteer Attorney Program is the most comprehensive pro bono program in Dallas,” he said. “When people cannot afford to hire an attorney, they turn to DVAP for help. When lawyers need to refer a low-income person who needs legal help, this is where they send them. DVAP is our pro bono program, and we need to support it.” Anyone who has worked with Mr. Vanden Eykel has heard him express his passion for pro bono as “the most important things the bar does”, and he doesn’t just give the program lip service. In addition to the more than $242,500 he and his firm have donated to the program since 1994, he has invested his time and talents and those of his partners and associates to personally help low income clients. He has also taken more creative

approaches to helping the program serve more people. Several years ago, Ike sponsored a marketing effort for DVAP, which resulted in DVAP’s ever popular and often copied “Pro Bono: Billable Hours for the Soul” tag line. “Non-profits are so busy helping people that they oftentimes don’t have the time or the budget to focus on things like marketing,” said Mr. Vanden Eykel. “I saw this as an opportunity to help DVAP recruit more lawyers and, in doing so, help more people. DVAP has plenty of clients, but they are always in need of more lawyers to help.” And, his investment has paid off. In 2009, DVAP recruited 844 new volunteers and referred more cases than it has ever before—1,185 to be exact. And, DVAP is on course to break

those records again in 2010. The Honorable Deborah Hankinson, former Texas Supreme Court Justice, Dallas appellate lawyer and legal aid advocate extraordinaire, is also leading the DBA’s effort to raise money for pro bono legal aid. Justice Hankinson pledged $25,000 to the DVAP campaign in August. And, like Mr. Vanden Eykel, Justice Hankinson’s support of DVAP doesn’t stop there. She has been a leader on a national and statewide level in raising awareness and funding for legal aid to the poor. She has served as the Chair of the ABA Standing Committee on Legal Aid and Indigent Defense and as the Supreme Court liaison to the Texas Access to Justice Foundation. She has led the creation of the Texas Access to Justice Commission, an umbrella organization designed to coordinate and enhance legal services to the poor in Texas. She also was instrumental in securing millions of dollars in funding for legal aid to crime victims. “More than 400,000 people live below the poverty level in Dallas County, and our legal aid programs can only help a fraction of those people who need it,” said Justice Hankinson. “Our society depends upon faith in the rule of law for order. People in poor communities already know that the legal aid system is overburdened. Nevertheless, many of the poor in our nation still find the extent of the legal problems in their lives to be so troubling that they come to seek help. And we turn more than half of them away. We simply must find a way to do better. Everycontinued on page 6

Center: The Koons, Fuller, Vanden Eykel & Robertson, P.C. Management Team. Right: James Mitchell and Andrew Payne. Left: Hon. Deborah Hankinson

Focus

Health Law

Health Care Reform’s Impact on Employers by L. Scott Austin and W. Stephen Cockerham

he Patient Protection and Affordable Care Act, as amended (the Act), broadly impacts employers. This article provides a very high-level overview—the devil is in the details—of some key employer-related provisions. Many details will be forthcoming as regulations are issued.

Small Employers

Approximately 96 percent of businesses in the United States employ fewer than 50 full-time employees (those working 30 or more hours in a week). Under the Act, these businesses are exempt from any responsibility to provide health insurance coverage to their employees. Beginning this year, the Act does provide tax credit incentives for businesses

employing fewer than 25 full-time employees, with average wages less than $50,000 a year, to provide employee health coverage, if they contribute at least half of the total premium cost.

It is “Pay or Play” for Large Employers

One of the fundamental concepts of the Act is that everyone should have health coverage. Thus, beginning in 2014, the Act provides for state-based health care “Exchanges,” through which eligible individuals and employers can purchase health coverage. In order to help pay for these Exchanges, large employers (employers with 50 or more fulltime employees) must pay a penalty if they do not offer group health coverage. Those employers must also pay a penalty if they offer

coverage that does not meet specified requirements and low-income employees obtain coverage from the Exchanges rather than the employer. The penalty for an employer who fails to offer coverage is $2,000 per year for each full-time employee in excess of 30. A penalty also applies if an employer offers employee health coverage (more than 95 percent of large employers do so), but that coverage is unaffordable (an employee’s contribution exceeds 9.5 percent of household income), is below a minimum benefit level (the coverage pays less than 60 percent of covered health expenses), or does not comply with certain other requirements. The penalty will be the lesser of $3,000 for each fulltime employee receiving federal assistance to purchase coverage through an Exchange, or $2,000 for each full-time employee in excess of 30.

Inside 5 Mike Baggett Selected for Professionalism Award 9 Advising Your Clients on Navigating a Product Recall 15 Mandatory Flu Vaccinations and Healthcare Workers 17 Heathcare Reform in a Nutshell

New Requirements for Group Health Plans

The Act imposes many new requirements on group health plans. Some of the requirements will not apply (or will apply on a limited basis) to “grandfathered” plans—generally, group health plans that existed on March 23, 2010—which do not undergo specified types of design changes (e.g., increased cost sharing, or elimination of certain coverage). For all plans—whether or not grandfathered—and effective the first plan year on, or after, September 23, 2010: 1) the limiting age for dependent children is 26 (before 2014, grandfathered plans need not offer coverage to adult children eligible under another plan); 2) there can be no lifetime dollar limits continued on page 6

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

October Events

OCTOBER 1 – Belo Noon

October 2010 Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.

FRIDAY CLINICS

“What to Do if Your Child (or Your Client’s Child) is Arrested,” Hon. Andy Chatham. Sponsored by the CLE Committee and Juvenile Justice Committee. (MCLE 1.00)*

OCTOBER 8 – North Dallas** Noon

“The Privileged Few: Understanding the Scope of In-House Counsel’s Attorney-Client Privilege,” Cindy Buhr and Kelli Hinson. (MCLE 1.00)* RSVP to kzack@dallasbar.org. At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Suite 240 Dallas, Texas 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor, Griffith Nixon Davison, P.C.

FRIDAY, OCTOBER 15 – Belo Noon

“Ethics and the Law: The Case of Myriad Genetics, Ethics in Patenting and Ethics in Licensing and Commercializing Innovations,” Kirby Drake. (Ethics 1.00)*

FRIDAY, OCTOBER 1 Noon

Friday Clinic – Belo CLE Committee and Juvenile Justice Committee “What to Do if Your Child (or Your Client’s Child) is Arrested,” Hon. Andy Chatham. (MCLE 1.00)*

MONDAY, OCTOBER 4 Noon

Tax Section “What Partnership and LLC Issues are Likely to Make You a Malpractice Target?,” Randy Johnston. (MCLE 1.00)*

Noon

6 p.m.

DAYL Board of Directors CLE Committee “Annual Evening Ethics Program,” Bob Davis, Candace Chappell, Hon. Robert Fillmore, Knox Fitzpatrick, Anne Johnson, Mark Shank, James Snell, Frank E. Stevenson II, Nancy Thursby. Moderated by Hon. Kerry Fitzgerald. Free for DBA members, $65 for nonmembers. RSVP required, contact kzack@ dallasbar.org. (Ethics 3.5)*

Noon

Solo & Small Firm Section “Key Issues Concerning the Proposed Amendments to the Texas Disciplinary Rules,” Chuck Herring. (Ethics 1.00)* Judicial Candidates Forum - Appellate Courts Sponsored by the Judiciary Committee

Public Forum Committee 5 p.m.

Bankruptcy & Commercial Law Section “Community Property Issues in Bankruptcy,” John D. Spicer and Howard M. Spector. (MCLE 1.00)*

THURSDAY, OCTOBER 7 Noon

Construction Law Section “Liability and Litigation Issues Arising from Green Building and LEED Certification,” Dale E. Butler. (MCLE 1.00)* Family Law Section Board Meeting

TUESDAY, OCTOBER 19 Noon

Alternative Dispute Resolution Section “Dealing with Egomaniacs, Jerks and Subterfuge in Mediations,” Hesha Abrams. (MCLE 1.00)*

6 p.m.

Home Project Committee

WEDNESDAY, OCTOBER 13

TUESDAY, OCTOBER 26 Noon

Probate, Trusts & Estates Section “What it Means to be a Fiduciary,” Debbie Cox. (MCLE 1.00)* Tax and Employee Benefits Section “The Legislative Process and the Uncertainty of Death and Taxes,” Thomas A. Barthold. (MCLE 1.00)* Courthouse Committee American Immigration Lawyers Association Celebrate Pro Bono Week—“Legal Advocacy in Special Education,” Co-sponsored by the Dallas Volunteer Attorney Program and Advocacy, Inc. of North Texas. (MCLE 1.00)*

6 p.m.

Noon

Family Law Section “How to Use an “Investigative Accountant” in Family

Noon

Law Day Committee Pro Bono Activities Committee Municipal Justice Bar Association Non-profit Law Study Group 5:15 p.m. LegalLine—Volunteers welcome. Second floor Belo.

THURSDAY, OCTOBER 21

5 p.m.

Juvenile Justice Committee

DVAP Belo Legal Clinic

THURSDAY, OCTOBER 28 11:30 a.m. Federalist Society Noon

Criminal Law Section “Ethics For the Criminal Law Practioner,” Russell Wilson II. (MCLE 1.00)* Environmental Law Section “WTO/GATT Issues in Climate Change,” Prof. Jeffery Gaba. (MCLE 1.00)* Mentoring Committee Celebrate Pro Bono Week—“Texas Community Building with Attorney Resources,” co-sponsored by the Dallas Volunteer Attorney Program and Texas C-Bar. (MCLE 1.00)*

5:30 p.m. Pro Bono Awards This star-studded event is hosted by the Dallas Volunteer Attorney Program. RSVP to Ellie Pope at 214-243-2236 or Popee@lanwt.org.

FRIDAY, OCTOBER 29 9 a.m.

Blood Drive

Noon

Celebrate Pro Bono Week—“Family Law CLE” Co-sponsored by the Dallas Volunteer Attorney Program and the Dallas Association of Young Lawyers Equal Access to Justice Committee. (Ethics 1.00)*

1 p.m.

Sports & Entertainment Law Section Film and TV Production Boot Camp. At Poor David’s Pub, 1313 South Lamar St., Dallas. (MCLE 4.00)*

11:45 a.m. J. Reuben Clark Society

Appellate Law Section “Appellate Law October Fest,” Hon. Catharina Haynes, Hon. Carolyn Wright, Hon. Elizabeth Lang-Miers, Hon. Lana Myers, Hon. Mary Murphy, Hon. Robert Fillmore, Hon. Tom Gray, David Coale, LaDawn Conway, Charlie Frazier, Steve Hayes, Ann Johnson, Karen Johnson, Samara Kline and Cliffie

Justice in Education Symposium

Celebrate Pro Bono Week—“CLE Program,” Dallas Volunteer Attorney Program, Housing Crisis Center and DAYL Aid to the Homeless. (MCLE 1.00)

Energy Law Section “150 years of the Rule of Capture: Long Enough?,” Terence Charles. (MCLE 1.00)* Health Law Section “Impact of Healthcare Reform on Private and Public Hospitals,” Joel Allison and Ron Anderson. (MCLE 1.00)*

Noon

Dallas Hispanic Bar Association

7:45 a.m. Dallas Area Real Estate Lawyers Association

7 a.m.

WEDNESDAY, OCTOBER 20

7:45 a.m. Dallas Real Estate Lawyers Discussion Group Noon

Celebrate Pro Bono Week—“Applying for Asylum in Immigration Court: How to Assist Clients Fleeing Persecution” Co-sponsored by the Dallas Volunteer Attorney Program and Catholic Charities of Dallas Inc. (MCLE 1.00)*

International Law Section “U.S. Immigration Law and Policy and the Need for its Radical Reform,” Dr. Pia Orrenius. (MCLE 1.00)*

DAYL Animal Welfare Committee DVAP Bankruptcy CLE “Chapter 7 Bankruptcy,” Jeanette Clack, Michael Linz and Kathy Roux. The training is free to attorneys who are licensed in the Northern District of Texas and agree to take a pro bono Chapter 7 Bankruptcy case from DVAP. (MCLE 2.00)*. RSVP Alicia Perkins at perkinsa@lanwt.org.

DAYL Equal Access to Justice Committee Senior Lawyers Committee

Securities Law Section Topic Not Yet Available

WEDNESDAY, OCTOBER 27

Speakers Committee DAYL Elder Law Committee

Mergers and Acquisitions Section Topic Not Yet Available

4 p.m.

Computer Law Section “Recent Developments for Web Sites and Internet Privacy,” Karl Larson. (MCLE 1.00)*

Franchise & Distribution Law Section “Funding Start-up Franchises and Other Companies Using 401k Funds,” Randy Staples. (MCLE 1.00)*

Tort and Insurance Practice and Business Litigation Sections “Internet Law, Social Networking, Privacy and Security,” Peter Vogel. (Ethics 1.00)*

Stephen Philbin Awards Luncheon Keynote speaker is Kenneth Starr. Tickets $35. DBA Media Relations Committee. Visit www.dallasbar. org to purchase your ticket. For more information, contact Jsmalling@dallasbar.org.

Legal Ethics Committee

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 1.5)*

5:30 p.m. Government Law Section “Collaborative Law: An Effective ADR Tool for Resolving Business Disputes,” Anne Shuttee. (MCLE 1.00)*

TUESDAY, OCTOBER 12 Noon

MONDAY, OCTOBER 25

Legal History Discussion Group

Real Property Law Section “Receiverships Revisited: An Old Remedy for New Problems?,” Charles Fiscus. (MCLE 1.00)*

WEDNESDAY, OCTOBER 6

Friday Clinic – Belo “Ethics and the Law: The Case of Myriad Genetics, Ethics in Patenting and Ethics in Licensing and Commercializing Innovations,” Kirby Drake. (Ethics 1.00)*

Intellectual Property Law Section Topic Not Yet Available Media Relations Committee

Labor & Employment Law Section “Mediation Tips for Employment Lawyers,” Cecilia Morgan, Kathy Fragnoli and Hon. Mark Whittington (Ret.). (MCLE 1.00)*

MONDAY, OCTOBER 11 Noon

Noon

J. L. Turner Legal Association

MONDAY, OCTOBER 18

Trial Skills Section “Everything a Lawyer Needs to Know About Putting Together a Trial Presentation,” Anne Gough and Kim Powell. (MCLE 1.00)* DAYL Teenage Girl Summit “Domestic Violence and Its Impact on Girls and Young Women,” Hon. Roberto Canas, Sue Hesseltine, Cynthia Cervantes, Beverly Black and moderated by Rebecca Aguilar. RSVP to Cherie Harris at cherieh@dayl.com. (MCLE 1.50)*

UPL Subcommittee

FRIDAY, OCTOBER 15

Morris Harrell Professionalism Committee

Judicial Candidates Forum- Part 2: Criminal District & County Criminal Courts Sponsored by the Judiciary Committee and the Criminal Law Section

Collaborative Law Section “National and International Developments in Collaborative Law,” Lawrence R. Maxwell, Jr. (MCLE 1.00)* Publications Committee Christian Lawyers Fellowship

Noon

Veterans Assistance Sub-Committee Meeting

Dallas Gay and Lesbian Bar Association

FRIDAY, OCTOBER 22

FRIDAY, OCTOBER 8

Corporate Counsel Section “Corporate Compliance Programs in a New Era of Government Enforcement,” Jim Brashear, Wes Loegering and Josh Roseman. (MCLE 1.00)*

House Committee DAYL CLE Program

11:30 a.m. DAYL Barristers for Babies

6 p.m.

TUESDAY, OCTOBER 5

Minority Participation Committee

THURSDAY, OCTOBER 14

5:30 p.m. Labor & Employment Law Section “Recent Case Law and Statutory Developments,” Hal K. Gillespie and Mark Shank. Registration $20. RSVP to Bkyle@littler.com. (MCLE 1.50)*

Peer Assistance Committee

CLE Committee

3:30 p.m. DBA Board of Directors

DAYL CLE Committee

Friday Clinic – North Dallas** “The Privileged Few: Understanding the Scope of In-House Counsel’s Attorney-Client Privilege,” Cindy Buhr and Kelli Hinson. RSVP to kzack@dallasbar. org. At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Suite 240 Dallas, Texas 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor, Griffith Nixon Davison, P.C

Wesson. (MCLE 5.00, including Ethics 1.00)*

5:15 p.m. LegalLine—Volunteers welcome. Second floor Belo.

St. Thomas More Society

Noon

Law Cases,” Larry Settles. (MCLE 1.00)*

MONDAY, NOVEMBER 1 Noon

Tax Section “International Tax Primer,” Willie Hornberger. (MCLE 1.00)*

Peer Assistance Committee

If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.

October 2010â&#x20AC;

D al l as Bar A ssoci ati on l Headnotes 3

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

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

October 2010

Headnotes

President's Column

Answers to the “Why” Questions by ike vanden eykel

here are a number of things that happen to you in the year that you serve as President of the Dallas Bar Association, but the one that has surprised me is the great number of times people have stopped me in the hall, called me on the phone, written me a letter or sent me an e-mail or text asking “Why?” Somewhere in the large amount of written material you take possession of as President of this organization it must state that part of the job description is answering the many questions on the minds of the members of the DBA. So I thought I would try to save a little time and answer some of the questions that are asked most often.

or two buffet lines offering a wide choice of food that is different every day of the week. You then go pick out your bread and decide if you want a hot bowl of soup. Finally, you move over to the desert table to select something to top off your meal. On many days that effort will include deciding if hot cobbler with ice cream is part of your current diet. I forgot to add you can go back through the line if you are still hungry when you finish your first plate! Tell all of this to a member of another bar association and they will be convinced you are making up a story. What we have each and every day at our headquarters in the way of great food and service is just another reason we have a very special deal at the Dallas Bar Association.

Why Is It Such a Big Deal To Be Involved In Why Is It Such A Big Deal That The DBA The DBA And How Does It Help Me? This one comes up a lot and it is a common misconception Has Its Headquarters At The Belo Mansion? of some people that the Dallas Bar is nice to have around, but Most of our membership is extremely proud of the Belo Mansion and the Pavilion. Nevertheless, there is a growing number of our membership that does not remember the cramped quarters at the Adolphus Hotel, which was called “home” prior to the purchase and renovation of the old Belo Mansion. Although not as large a group, there are a number of our members who have had the use, and enjoyment of The Pavilion at the Belo Mansion throughout their careers. These individuals missed the rush of seeing if they could grab one of 40 or so parking spaces in the back of Belo Mansion when they came for a function. They will never know the thrill of seeing just one spot under the big tree in the parking lot that somehow everyone overlooked and pulling their car into the space with a chuckle at the good fortune being experienced, only to find when they exited after lunch that 400 birds had changed the color and texture of the vehicle below in only one short hour. We have certainly come a long way!

Why Does Everyone Make Such A Big Deal Out Of Having Free CLE At The Dallas Bar?

New members of the DBA quickly become accustomed to being able to attend a wide array of Continuing Legal Education at our headquarters at no charge. It is just part of the routine for a member of the Dallas Bar, and it is easy to understand how someone could feel confident that this is what being an attorney is all about. Your bar association always provides you hundreds of CLE opportunities. Well, that is true if you are a member of the DBA. It is not so at most other places around the country. When people from other bar associations find out what we offer for CLE they are shocked and surprised. They have no idea how we do it and they want to know our secret. When other bars tell us they provide one free CLE function it becomes a source of pride and the subject of much bragging for months. We are different at the DBA and this is just one example.

Why Do People Always Make Such A Big Deal Out Of Culinaire And What Do They Do at The DBA?

You decide to go over to the Belo Mansion and have lunch and get a little CLE while you are there. You go through one

SAVE THE DATE

Dallas Bar Association’s New Member Reception Look for your invitation to join us for a

Mardi Gras Fall Party honoring New DBA members & Newly Licensed Attorneys!

it does not really help them. It is often easier to let others do that work so I can work more hours practicing law. Besides, those people doing bar work must not be that busy anyway, because they must have a lot of time on their hands to be involved at the DBA. An active and well run bar association is a lot like a seat belt. It is not a lot of help and is often inconvenient until you need it. Then it can be the difference in how something comes out. There are big issues that directly affect the practice of law that your Dallas Bar Association is involved with on a regular basis. It has a very large impact on your practice and it is able to do that because there are a number of people who are volunteering their time to help our profession. It is not surprising that many of those people do not have the time to help, but somehow they find a way to fit it in their schedules every day!

Why All This Talk And Effort About The Future Of The Profession And The Bar?

It is true that I have chosen to make Vision 2020 the cornerstone of my year as President of the Dallas Bar Association. Those of us who are fortunate to practice in Dallas and have the incredible support of the DBA in our great city owe a lot of appreciation to those who have come before us. The work done by our leaders 30 years ago is paying off today and making our lives richer for it. But the practice of law is like a finely tuned machine. If you don’t take care of it, you are going to have trouble in the future, and it might stop operating completely. We owe it to future generations of attorneys to do what we can to look into the future and attempt to make changes now that will keep our machine operating at peak efficiency for years to come. We may not be able to accurately predict everything, but one thing is certain–if we don’t at least try, we will certainly fail those who come through our doors in the future. We will continue to work hard at making sure we are able to serve the needs of attorneys well after 2020! I hope all of you are proud to be members of the most significant bar association in the United States. Those of us who are involved will continue to work hard to make a difference. It is an honor to serve as the 2010 President of the Dallas Bar Asso HN ciation!

The Fifth District Court of Appeals will hear live oral arguments about a local civil case. Monday, October 18, 12:30 p.m.

Belo Mansion—Seating is limited MCLE 1.50

For more information, contact Kim Watson at kwatson@dallasbar.org or (214) 220-7414.

2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Ike Vanden Eykel President-Elect: Barry Sorrels First Vice President: Paul K. Stafford Second Vice President: Sally Crawford Secretary-Treasurer: Wesley Young Immediate Past President: Christina Melton Crain Directors: Scott M. McElhaney (Chair), Brad C. Weber (Vice Chair), Jerry C. Alexander, Hon. Jane J. Boyle (At Large), Wm. Frank Carroll, E. Leon Carter, Rob Crain, Jennifer Edgeworth (President, Dallas Association of Young Lawyers), Laura Benitez Geisler, Michael K. Hurst, Hon. Marty Lowy, Michele Wong Krause, Karen McCloud (President, J.L. Turner Legal Association), Jose Ortiz (President, Dallas Hispanic Bar Association), Mary Scott, Hope Shimabuku (President, Dallas Asian American Bar Association), Scott P. Stolley (At Large), Diane M. Sumoski and Debra K. Thomas. Advisory Directors: Penny Brobst Blackwell (PresidentElect, Dallas Association of Young Lawyers), Eric Blue (President-Elect, J.L. Turner Legal Association), Eunice Kim Nakamura (President-Elect, Dallas Asian American Bar Association) and Hon. Teresa Guerra Snelson (PresidentElect, Dallas Hispanic Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Douglas S. Lang Directors, State Bar of Texas: Talmage Boston, Christina Melton Crain, Beverly Bell Godbey, Robert R. Roby, Frank E. Stevenson, II HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications / Media Director & Headnotes Editor: Jessica D. Smith Calendar: Kathryn Zack In the News: Judi Smalling Art Director: Thomas Phillips Advertising: Karla Howes PUBLICATIONS COMMITTEE Co-Chairs: Vincent J. Allen, Timothy G. Ackermann and Suzanne Raggio Westerheim Vice-Chairs: Lea N. Clinton and Paul R. Clevenger Members: H. Joseph Acosta, Natalie Arbaugh, Wesley J. Bailey, Heather J. Barbieri, Vance L. Beagles, Eric Blue, Barbara Boudreaux, Quentin Brogdon, Lance E. Caughfield, Christina Melton Crain, Pat Driscoll, Dawn E. Fowler, Floyd R. Hartley Jr., John Thomas Hayes, Paul W. Herring, Mary Louise Hopson, Victor Johnson, Arshil A. Kabani, Mike Keliher, Jamie McKey, Elizabeth Jo McShan, Thomas L. Mighell, Mitchell S. Milby, Clay Miller, Jennifer Mitchell, Hon. Jim Moseley, Sonia Navia, Heather Bailey New, Jenna Page, Kirk L. Pittard, Irina B. Plumlee, Robert D. Ramage, Andrew Baxter Ryan, Gregory W. Sampson, Steven D. Sanfelippo, Barry Sorrels, Paul K. Stafford, Scott B. Stahl, Amy E. Stewart, Sherry L. Talton, Debra K. Thomas, Ike Vanden Eykel, Peter S. Vogel, Thomas Williams, Courtney Willis, Elizabeth A. Wilson and Sarah Q. Wirskye. DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications / Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services:Alicia Hernandez Events Coordinator: Rhonda Thornton Executive Assistant: Michelle Dilda Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Amy E. Smith Membership Coordinator: Kimberley Watson Projects & Communications Assistant: Kathryn Zack Publications Assistant: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Lakeshia McMillan, Andrew Musquiz, Jigna Gosal, Tina Douglas Data Entry/Office Support: Patsy Quinn Copyright Dallas Bar Association 2010. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion.

Thursday, November 18 5:30—8 p.m., The Belo Mansion

Published by: DALLAS BAR ASSOCIATION

To reserve a seat, contact Amy Smith at (214) 220-7484 or asmith@dallasbar.org by Oct. 15.

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.

October 2010

D al l as Bar A ssoci ati on l Headnotes 5

Mike Baggett Selected for Professionalism Award by Talmage Boston

hose who work with Mike Baggett know the two prongs to his oftenrepeated philosophy: (1) “Be proud of who you are, what you do and who you do it with,” and (2) “Find and be part of a TEAM, because we can accomplish more as a TEAM than is possible individually.” Living that philosophy every day for the last 37 years, since he first arrived in Dallas, has resulted in Mike being named the 2010 recipient of the Morris Harrell Professionalism Award. The award is presented annually by the Dallas Bar Association and the Texas Center for Legal Ethics and Professionalism to the “attorney who best exemplifies, by conduct and character, truly professional traits who others seek to emulate and who all in the bar admire.” He will receive the award at the DBA’s Annual Meeting on Friday afternoon, November 5, 2010, at the Belo Mansion. Current DBA President, Ike Vanden Eykel, gives his perspective on this year’s choice for the Professionalism Award: “The word ‘professionalism’ is synonymous with Mike Baggett. Anyone who has worked with Mike knows he exemplifies the meaning of the word. He lives it every day and is someone we are very proud of in our profession. Mike Baggett is a class act.” An essential criterion for the Morris Harrell Professionalism Award is being “a lawyer who is well respected by his peers.” The wide-ranging respect Mike has received from his peers over the course of his career is demonstrated by the frequency with which he has been asked to lead organizations.—His leadership positions have included: CEO of Winstead PC from 1992-2006; President of the Dallas Bar Association in 2000 and Chairman of its Board of Directors

in 1996; Chairman of the Cotton Bowl Athletic Association from 1996-1998; Chairman of Downtown Dallas from 1999-2000; President and Chairman through the years of many associations and foundations connected with his alma maters, Texas A&M University and Baylor University Law School; and most recently, ChairmanElect of the Greater Dallas Regional Chamber in 2010. Next year, Mike will become only the second lawyer in its history to lead the Chamber. In his Inaugural Address as the DBA’s President a decade ago, Mike identified Mike Baggett the essential characteristics that have caused him to be chosen for leadership positions in a wide variety of organizations, and make him the right choice for this year’s Professionalism Award, as a “role model for the bar, particularly for younger or less-experienced lawyers:” •Have competence and confidence; •Avoid worries and doubts by maintaining a positive attitude; •Prioritize family and friends; •Enhance teamwork in your enterprise; •Stay in good physical condition; •Be motivated by goals other than maximizing income; and •Live every day with a moral compass, doing the right thing regardless of the consequences. Former DBA President Bob Jordan affirms that Mike’s walk has always matched his talk, making him a deserving recipient of this year’s Professionalism Award. “Mike Baggett gets it,” said Mr. Jordan. “He knows what lawyering is about. He knows how important

DBA Annual Meeting Nominations for DBA directors and officers will be made at the Annual Meeting on Friday, November 5, at 4 p.m. (A reception begins at 3:30 p.m.). Six director and four officer positions are elected annually. Within seven days following the Annual Meeting, all DBA resident members with an e-mail address on file with the DBA will be sent an online ballot. If you wish to vote online, please make sure the DBA has your e-mail address by visiting the DBA website at www.dallasbar.org, or call Kim Watson at (214) 220-7414 before 5 p.m. on Thursday, November 3, 2010. Please update your spam software to allow the e-mail ballot to enter you inbox from DallasBar@BallotBoxOnline.com. If you receive an online ballot but wish to vote by hard copy, please contact Cathy Maher at (214) 220-7401 to request that a paper ballot be mailed to you. Only those resident members without an e-mail address on file with the DBA will be mailed a hard copy of the ballot.

it is to keep your word. He knows how important it is to mentor others. And he knows how important it is to contribute to your community. There is a reason so many of our peers look up to Mike. He has earned that admiration over a career distinguished by contributing his time, his good humor and his judgment. This is an award he richly deserves.” In the midst of Mike’s many civic and bar association accomplishments, it is easy to lose sight of what he has achieved as a lawyer. He is the author of leading treatises published by Matthew Bender: Texas Foreclosure Law and Practice, Real Estate Litigation and Lender Liability Law and Litigation, which have been cited as authority by 12 appellate courts in Texas. He is a board certified (and recertified) Civil Trial Law specialist who has been first chair in over 50 jury trials. He has won six cases before the Texas Supreme Court. And he is chairman of three Texas Supreme Court Task Forces addressing Texas law in the areas of home equity loans, reverse mortgages and tax liens. These achievements in the legal arena have caused Mike Baggett to be recognized through the years as a recipient of Who’s Who in American Law, the Best Lawyers in America, a “Super Lawyer,” the Top 10 Business Litigators in Dallas/Fort Worth and the State Bar of Texas’ Judge Sam Williams Bar Leadership Award. Mike believes that the lawyer’s most important talent—problem solving— has been the key to his success in leading area groups through times of crisis. When the DBA’s need for more meeting rooms

and parking became critical, Mike and Mr. Jordan began the drive for “Mansion Expansion,” which led to the construction of the Belo Mansion’s Pavilion and underground parking facility. When the Cotton Bowl Classic faced the loss of Mobil Oil as a sponsor, Mike was instrumental in finding a successor sponsor in Southwestern Bell (now AT&T). He helped persuade the board to transfer the game from the stadium at Fair Park to Cowboys Stadium, a move that is aimed at getting the AT&T Cotton Bowl into the BCS in the next few years. And as the head of the Chamber’s Transportation Committee during this time of massive population growth in our area, Mike successfully persuaded Austin legislators and the North Texas Tollway Authority to provide additional funding for new and improved tollways and highways in North Texas. Though Mike Baggett has many solid years ahead of him as a top-flight lawyer who year-in and year-out makes a positive contribution to the citizens of North Texas, he already knows his ultimate goal. “At the end of your legal career and life, you want to look back and be proud of what you contributed over the long run,” he said. “If you are proud of what you contribute to help others, your profession and your community, you will leave your clients, profession and community in a better place.” The Dallas legal community and North Texas have become better places because Mike Baggett came to our area in 1973, and has made, and continues to make, positive contributions in many arenas, making him a worthy recipient of this year’s Morris Harrell Profession HN alism Award. Talmage Boston is a shareholder at Winstead PC, and a director of the State Bar of Texas. He can be reached at tboston@winstead.com.

6 He a d n o t e s l D a l l a s B a r A s s o ciation

Health Care Reform continued from page 1

for “essential health benefits” (and beginning 2014 there can be no annual dollar limits); 3) there can be no pre-existing condition exclusions for children under 19 (and no such exclusions at all after 2014); and 4) there can be no retroactive coverage rescission except for fraud or intentional misrepresentation. Additionally, effective the first plan year on, or after, September 23, 2010, non-grandfathered plans must: 1) provide preventive care without any employee cost sharing; 2) allow participants and their dependents to select any in-network doctor as their primary care physician; and 3) pay benefits for emergency services on an in-network basis. Non-grandfathered plans must also meet expanded internal and external claims review process requirements that provide new and increased rights for claimants during the appeals process, create new administrative hurdles for plans and requires that participant coverage remain in place during the appeals process. Additionally, the Act obligates employers to include cost information on employee’s W-2s, and report

annually on claims, benefits and other plan information as may be required.

Other Impacts

The Health Care Reform Act also: 1) requires reasonable break times for nursing mothers in a private location, which cannot be a bathroom (a hardship exception may apply to small employers); 2) creates new anti-discrimination and retaliation protections for employees; and 3) delays the Act’s application to insured health programs maintained under collective bargaining agreements (CBA) in effect on March 23, 2010, until the date the CBA expires. Finally, the Act is designed to slow the ever-escalating cost of health insurance by, for example, providing measures to control health care costs and increasing competition in the health insurance markets with the state-based Exchanges. Only time will tell if these measures will HN be effective.

L. Scott Austin is an employee benefits partner with Hunton & Williams. W. Stephen Cockerham, counsel with Hunton, handles labor and employment matters. They can be reached at saustin@ hunton.com and scockerham@hunton.com.

EVENING ETHICS Tuesday, October 5 ~ 6 to 9:30 p.m. At the Belo Mansion (Ethics 3.50)

SPEAKERS: • Candace Chappell • Bob Davis • Justice Robert Fillmore • Knox Fitzpatrick • Anne Johnson • Mark Shank • Frank E. Stevenson II • Nancy Thursby • Justice Kerry FitzGerald (moderator) No charge for DBA members. ($65 for non-members). $10 light buffet available. RSVP is required. Contact KTarangioli@dallasbar.org.

October 2010

Ike Vanden Eykel continued from page 1

one’s help is needed.” Andrew Payne and James Mitchell of Payne Mitchell Law Group, L.L.P., have joined President Vanden Eykel and Justice Hankinson with their support of DVAP. They have pledged $25,000 to the Equal Access to Justice Campaign. “I went to law school to effect positive changes for people,” said Mr. Mitchell. “Programs like DVAP embody the notion of the legal system making positive changes for people in need.” “Attorneys want to right wrongs, serve people, and see justice served,” added Mr. Payne. “DVAP clients and their life’s stories are compelling. Dallas lawyers are helping people save their homes, keep their children, and protect them from abuse. We are proud to support this worthy cause.” DVAP clients never have to pay a dime for their services. To qualify for help, a family of four cannot have an annual income over $27,563. Once the bills are paid, there simply is not enough money to pay lawyers. But the rewards of pro bono are plentiful. Clients get their day in court and show their appreciation through appreciative cards, tears of joy and hugs. “So often, lawyers tell me they get more from the experience of helping a lowincome client than they gave,” said Mr. Vanden Eykel. “It is extremely rewarding.” It is a win-win situation. DVAP does much more than simply help low-income people and give lawyers the opportunity to represent someone who truly needs them. DVAP also sponsors top-notch, nuts-andbolts CLE programs and supports its volunteer attorneys with mentoring, documents, malpractice insurance coverage and more. The program helps lawyers gain client counseling, court room and the “in trenches” experiences that they can use to become more effective for their paying clients. While the legal services to clients are

free, there are costs involved in running the program. DVAP is charged the very important task of serving the poor and ensuring that they get high quality legal help. In 2009, DVAP helped more than 4,000 people. DVAP also runs 11 legal clinics per month at seven community locations, and it added two new monthly clinics in the last year. DVAP hosts family law pro se clinics, helping hundreds of clients who would otherwise be denied, and, in doing so, simultaneously easing the burden of pro se litigants on the courts. This year, DVAP sponsored 49 CLE programs and supported the efforts of other pro bono programs in Dallas. DVAP’s cost per case is only $255. “We are so appreciative of our lead donors to the campaign,” said Jerry Alexander, Chair of the Equal Access to Justice Campaign. “They have challenged all of us to do our best to support the program. No donation is too small. And if you cannot donate money, you should donate your time.” “As my year as President is coming to a close, I wanted to restate my position that legal aid to the poor is the best thing we can do as a bar to preserve justice and serve the community,” added Mr. Vanden Eykel. “As usual, Dallas is leading the way for this effort in the State of Texas, but we can do better.” For more information on the Campaign, please contact Alicia Hernandez at (214) 220-7499 or ahernandez@dallasbar. org. Recognition levels and donor benefits are available. In addition, all individual donors at or above the $1,000 level and all firm and corporate donors at or above the $5,000 level will be recognized in an ad in the Dallas Morning News during the week HN of December 20, 2010. Alicia Hernandez is the director of the Dallas Volunteer Attorney Program and the DBA Director of Community Services. She can be reached at ahernandez@dallasbar.org.

October 2010

D al l as Bar A ssoci ati on l Headnotes 7

Hearing Held on Amendments to TDRPC by Suzanne Raggio Westerheim

n October, 2009, the Supreme Court of Texas issued proposed amendments to the Texas Disciplinary Rules of Professional Conduct. After a period of public comment, changes were made to the proposed rules, and on April 14, 2010, a revised set of Proposed Amendments to the TDRPC were issued. On July 7, 2010, the Court issued the Interpretive Comments to the proposed rules. The proposed amendments to the TDRPC are the result of years of work and extensive debate by the Court, the Task Force on the Texas Disciplinary Rules of Professional Conduct and the State Bar’s Committee on the Texas Disciplinary Rules of Professional Conduct. The State Bar of Texas Board of Directors will make additional recommendations to the Court by October 6, 2010. A referendum of Texas lawyers on the proposed changes is expected in November or December of this year. In advance of the Board’s recommendation, a series of nine public education hearings were held around the state. The fifth in the series was held at the Pavilion at the Belo Mansion on September 3. Roland Johnson, Immediate Past President of the State Bar of Texas moderated the event. The event began with a presentation by Kennon L. Peterson, Supreme Court Rules Attorney, which highlighted some of the proposed changes to the TDPC, including: • Rule 1.04(a), which changes the definition of a prohibited fee from an unconscionable fee to a clearly excessive fee. • Rule 1.04(c), which adds requirements that the scope of representation and the basis or rate of expenses be communicated to the client at the beginning of the representation and that any change

in rate of fees or expenses be communicated to the client. • Rule 1.04(d), which requires contingent fee agreement be signed by the client and that the client be informed of any litigation and other expenses the client for which will be liable even if they lose. • Rule 1.05, which revises the definition of confidential information, creates a distinction between current or former clients and prospective clients, creates an exception for generally known or readily obtainable information, and outlines when and the extent to which a lawyer may disclose confidential information. • 1.05(c)(4), which adds a new exception that allows lawyers to disclose information to the extent reasonably necessary to seek legal advice about compliance with the TDRPC. • Rule 1.06, which removes the substantially-related standard from the general conflicts of interest rule, eliminating the Texas-only standard that allows a lawyer to sue a current client if the matter is not substantiallyrelated to the new matter. • Rule 1.07, which has been substantially rewritten to address the circumstances under which a lawyer may appropriately represent multiple parties in the same matter. • Rule 1.08(a), which outlines more extensive rules regarding business transactions with a client. • Rule 1.08(f), which outlines more extensive rules regarding aggregate settlements. • Rule 1.08(g)(1), which expands the prohibition against prospective limitation of liability to include liability for professional misconduct. • Rule 1.08(g)(2), a new rule outlining limitations on requiring arbitration of disputes between the lawyer and the client.

• Rule 1.09, which has been rewritten to, among other things, clarify what happens when a lawyer who has not personally represented a client switches firms. • Rule 1.13, which is a controversial new rule regarding prohibited sexual relations. • Rule 1.17, which is a new rule regarding duties to prospective clients. • Rule 3.05 Maintaining the Impartiality of the Tribunal. Ms. Peterson discussed the controversy regarding the proposed removal of definition of a pending matter and concerns it has raised regarding the common practice of talking to decision-makers at administrative agencies prior to filing a case without notifying the other side. Mr. Johnson then took questions and comments from audience members. Linda Turley addressed concerns regarding proposed Rule 1.15 regarding safekeeping of property. She was concerned that the rule changed substantive law and could adversely affect clients in healthcare subrogation cases. Hon. Staci Williams, as well as other

audience members, expressed concerns about proposed Rule 1.13 regarding prohibited sexual relations. Cindy Solls expressed concerns about the effect of the proposed rules on mediations. Michelle Wong Krause expressed concern about the effect of the proposed changes to Rule 3.05 on administrative law matters, including workers compensation matters. A summary and an MP3 audio of all nine hearings, as well as the proposed rules and other materials, can be found on the State Bar website at www.texasbar.com/Content/NavigationMenu/ForLawyers/GrievanceInfoandEthicsHelpline/disc_rules_update.htm. Also of interest was the announcement of TexasBar.com/ethics, which collects ethics resources for Texas lawyers and judges. Texas Bar.com/ethics is the brainchild of Justice Dale Wainwright, who HN was present at the hearing. Suzanne Raggio Westerheim represents and advises lawyers and law firms on professional responsibility issues. Ms. Westerheim is a Co-Chair of the DBA Publications Committee. She can be reached at suzanne@legallyethical.com.

Celebrating 28 Years!

DVAP’s Pro Bono Awards Celebration presented by the Dallas Volunteer Attorney Program to honor the dedication and support of our volunteers

Thursday, October 28, 2010 5:30-7:30 p.m.—Awards at 6:00 p.m. The Pavilion at the Belo Mansion Complimentary hors d’oeuvres, beer & wine Please RSVP by October 21, 2010 to Ellie Pope at popee@lanwt.org.

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

October 2010

Jackson Walker Leads the Way in Transition to Law Program By Jessica Smith

Mighty Mentees

here are many ways to be a mentor in this day and age—whether through e-mail, personal relationships or hands-on training. The Dallas Bar Association offers members numerous opportunities to be that wise and trusted counselor or supporter. One of those opportunities can be found by participating in the DBA’s Transition to Law Practice Program. And many of those counselors can be found at the firm of Jackson Walker. According to Michael Wilson, a partner at Jackson Walker, the firm has, to date, 19 partners participating in the program this year as mentors. Some of those partners are serving as mentors for Jackson Walker newcomers as mentees, but most are serving as mentors for new lawyers who are not with the firm. “Recruiting the partners to become involved wasn’t a hard sell,” said Mr. Wilson. “They know, as I do, the importance of this program to the participants and to the future of the profession.” The Transition to Law Practice program is designed to ease the transition between law school and the first year of practice for new lawyers by offering educational programming and guidance from experienced lawyers. The program matches newly licensed lawyers with a volunteer mentor for the new lawyer’s first year of practice. There are six CLE programs throughout the year that cover a range of areas crucial to a successful law practice including topics such as business development, wellness, career satisfaction and avoiding malpractice traps. Between programs, the pairs are encouraged to meet on their own, or with small groups that have been formed to connect the new lawyers with other Transition pairs in the same or similar practice area. The main goal of the program is to provide new law-

yers with a support system during the critical first year of practice and to help reinforce the importance of professionalism. “The Transition Program is a great opportunity for new lawyers to transition into the Dallas legal community, while learning the keys to a successful law practice,” said Laura Benitez Geisler, Chair of the program. “Jackson Walker has been a key player in facilitating a successful program since the program’s inception. Their commitment to helping beginning lawyers—both inside and outside the firm— has helped the program tremendously. The Jackson Walker mentors work hard to provide their mentees with a meaningful experience, which then lays the foundation for the mentees to have a successful transition into the practice of law.” While law schools teach theory, the Dallas Bar Association believes that the practicing bar is responsible for teaching beginning lawyers about the “practice” and “values” of the profession. A past par-

ticipant in the program said that the benefits to the mentees are prodigious. The program not only offers the opportunity for mentees to learn the fundamentals of practicing law, but also invites them to access the collective wisdom of the professional legal community. “I’m a member of the DBA’s Professionalism Committee, which has been involved in the development of the program,” said Mr. Wilson. “All members of the committee view the program as extremely important to the DBA and a great model for other associations, with the support of the State Bar. More than anyone else, though, Justice Douglas Lang deserves the credit for my becoming involved; he had the vision and the passion, and both were contagious.” The program’s success is dependent on the willingness of volunteer mentors to share their time and experience with new lawyers. The Transition committee is currently seeking mentors from all practice areas for the 2011 program. The time commitment is small—approximately one hour a month over the course of a year. “This effort is too important for any major firm to be sitting on the sidelines, and I hope greater awareness of the program and its mission will result in wall-towall support and participation within the DBA,” added Mr. Wilson. Interested mentors and beginning lawyers should contact Alicia Hernandez at ahernandez@dallasbar.org. For more information about the program, visit HN www.dallasbar.org/tlpp. Jessica D. Smith is the DBA’s Communications/Media Director. She can be reached at jsmith@dallasbar.org.

Mentoring opportunities abound at the DBA—whether you are part of a large or small firm, we need you! Take for example, William Holston, Jr. of Sullivan & Holston, a five-person firm in Dallas. Mr. Holston has been a participant in the DBA Transition to Law Practice Program since the program’s beginning in 2008. “One of the greatest resources of the Dallas Bar Association is the experience level of its lawyers,” said Mr. Holston. “There’s just so much more to the practice of law than what one learns in law school. This program is an excellent opportunity for new lawyers to take advantage of that knowledge and to network not only with more experienced attorneys, but also the younger attorneys who are their peers. In addition, all of the programs have been skillfully put together to benefit attorneys as they enter the practice of law.” Mr. Holston continues to keep in touch and mentor to all three of the mentees he has mentored since 2008—Paul Dell, Joseph Nguyen and Craig Novak, also known as the “Mighty Mentees.” They meet for lunch to talk law, family and just to connect. Though he’s been a practicing attorney for 28 years, Mr. Holston says that participating in this program is one of the most worthwhile and rewarding things he’s done as an attorney. “I’ve been very impressed with the young lawyers who have been my mentees and look forward to seeing them continue to develop professionally,” he said. “I’ve also really enjoyed getting to know them. It is a privilege to spend time with them and pass on some of the practical knowledge I’ve managed to pick up over the years. I think it’s one of the best things that our bar association is doing and am happy to be a part. Much like my pro bono work, I get a lot more than I give.”

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

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

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

Mediator ★ Arbitrator ★ Special Judge

October 2010

Focus

D al l as Bar A ssoci ati on l Headnotes 9

Health Law

Advising Your Clients on Navigating a Product Recall By Peg Hall and Matt Nickel

n case you’ve missed the deluge of news stories—there’s been a wave of recalls of pharmaceuticals, medical devices, food products and consumer goods in the U.S. recently. Recalls of consumer products have increased every year for the past six years in the U.S. As advisor to your manufacturing clients, how can you motivate them to plan now for recalls that may happen in the future, and allow you to help them “chart the course” through a recall? Read on.

The Motivation

What is the potential impact of a recall? Compare the following cases. In 2008, Peanut Corporation of America manufactured nearly 2.5 percent of the peanuts processed in the U.S. and had an estimated $25 million in revenue. By early 2009, the company had ceased operations and was forced into bankruptcy due to a massive recall. In 1982, seven people died in one week after taking Tylenol capsules. Johnson & Johnson’s (J&J) chairman candidly communicated with consumers and the media, immediately recalled the product and offered free replacements. Two months later, Tylenol capsules were back on the market and, despite the immense cost of the recall, J&J gained a reputation for safety, which may help the company weather the current storm it faces due to more recent events. The bottom line? A recall’s impact does not need to result in a death knell to clients. Advising clients to engage in forward thinking can allow them to minimize the costs of product recalls—both in terms of bottom-line dollars and reputation.

The Map to a Successful Product Recall

The groundwork for a successful recall should be laid long before a recall occurs. Remember, the goal for both regulators and companies is consumer safety. Companies that are perceived by regulators to be focused on consumer safety will more likely find regulators to be reasonable and helpful—or at least not hostile. Companies that are not well-regarded may find themselves besieged by government investigators at the first hint of a problem. The most effective means of minimizing the ramifications of a product recall lies in maintaining an indepth knowledge of the relevant regulations. Prudent manufacturers should have employees responsible for ensuring compliance with government regulations and should confer with outside counsel or other experts as necessary.

Plan Today for Next Year’s Recall

Ideally, a manufacturer should have a standing recall committee and/or a recall action plan in place before an event arises. The recall action plan should anticipate as many contingencies as possible and should provide a basic map for navigating through the recall. Additionally, companies should consider purchasing recall insurance to help cover some of the direct costs associated with recalling a product. Having recall insurance, a recall action plan and a team already in place when a crisis arises will provide a manufacturer with the compass it needs to navigate a potential storm and allows company officials to address important issues in a considered manner while not under duress.

Recalls and Litigation Concerns

A nearly certain consequence of a recall is litigation. In addition to product liability lawsuits, a recall can also trigger a fall in stock prices and subsequent class actions, governmental investigations and criminal or civil suits by government agencies. Thus, companies should consider obtaining outside legal counsel when product issues first arise. Just as a company’s early preparation allows for more efficient management of a recall, so too will outside counsel’s early involvement allow for more efficient management of any potential litigation issues.

To Recall or Not Recall

When faced with a possible product defect, it is not always obvious whether there must be a recall under governing regulations or whether there should be a voluntary recall. In this type of situation, it is important to immediately bring together internal and external expertise, and to consider early consultation with regulators, to

analyze the nature and scope of the problem and to develop a course of action (ideally using a developed recall action plan).

Smooth Sailing Ahead

The old adage, “expect the best, plan for the worst,” is especially applicable with product recalls. Every manufacturer, distributor and retailer should consider taking some basic steps to be prepared, including: 1. Fostering and maintaining a good relationship with regulatory agencies; 2. Staying updated on regulatory policies and procedures affecting your products; 3. Forming a standing recall committee; 4. Developing a recall action plan; 5. Considering recall insurance; and 6. Identifying and retaining outside legal counsel with relevant expertise. HN

Peg Donahue Hall is a partner in Sonnenschein Nath & Rosenthal LLP’s Dallas office, and is National Chair of the firm’s Product Liabililty Practice Group. She can be reached at pdhall@sonnenschein. com. Matt Nickel is an associate in Sonnenschein Nath & Rosenthal LLP’s Dallas office, and is a member of the firm’s Product Liability Practice Group. He can be reached at mnickel@sonnenschein.com.

CHAPTER 7 BANKRUPTCY CLE (MCLE 2.00) Tuesday, October 19, Noon-2p.m. at The Belo Speakers include: Jeanette Clack, Chief Deputy Clerk, U.S. District Court and bankruptcy attorneys Michael Linz and Kathy Roux. Judge & Trustee Panelists: Judge Harlin Hale, Corky Sherman, Rob Yarquito, Mary Frances Durham, Erin Schmidt. Topics: Pre-Filing Issues, E-Filing and Fee Waivers, Post Filing Procedures, the Unexpected Events, Common Issues in a Chapter 7 Bankruptcy The training is free to attorneys who are licensed in the Northern District of Texas and agree to take a pro bono Chapter 7 Bankruptcy case from DVAP. For registration and more information, contact Alicia Perkins at perkinsa@lanwt.org.

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

October 2010

Emeritus Members The Dallas Bar Association honors members who have contributed to the legal profession for 50 or more years. All 50-year members are invited to attend the Annual Meeting on Friday, November 5 at 3:30 p.m. to be recognized. To RSVP, contact Michelle Dilda at 214-220-7474 or mdilda@dallasbar.org. Licensed in 1937 Robert A. Hall Licensed in 1939 Lawrence W. Anderson E. Leroy Hallman Bernard Hirsh Licensed in 1940 Bardwell D. Odum Licensed in 1941 Royal H. Brin Jr. Robert S. Strauss Licensed in 1942 William F. Alexander Claude D. Bell Jr. Frank Ripy McWhorter Charles O. Shields Licensed in 1943 Lester A. Levy, Sr. Licensed in 1945 Jeannette Williams Sadler Licensed in 1946 James R. Alexander W. Richard Bernays Frank G. Newman Robert E. Rain Jean L. White Licensed in 1947 James G. Blanchette Jr. Gordon R. Carpenter Joseph W. Geary George Hopkins George Garrison Potts John F. Wilson Licensed in 1948 George Ashley Thomas T. Barnhouse Clarence Bentley Lamar Carnes H. Gene Emery Florence K. Fletcher Charles O. Galvin Lionel E. Gilly Paul Harkey Billy B. Joiner C. Sidney McClain James F. Williams Joel T. Williams Jr.

Licensed in 1949 Jack E. Brady John W. Collins Jr. Edward J. Drake William N. Hamilton Harold L. Hitchins William A. Hunter William L. Keller Cecil G. Magee John McCormack B. Thomas McElroy E. Donald McNees Gordon H. Montgomery Hon. Ted Z. Robertson Marvin J. Wise Licensed in 1950 George C. Anson W.S. Barron Jr. Albert L. Bartley Jr. Harold B. Berman D. Louise Boucher Hon. Dean M. Gandy Charles C. Garner Henry Gilchrist Wayne Hancock William C. Herndon H. Louis Morrison Jr. William C. Odeneal A.W. Patterson Jr. Ralph W.Pulley Jr. F.W. Reese Paul Thorp Eldon R. Vaughan Robert G. Vial Charles J. Winikates Sr. Licensed in 1951 Thomas K. Bamford Hon. L.A. Bedford Jr. Ramsey Clark M. Wayne Cummings H. Sam Davis Jr. James E. Day Jr. William C. Dowdy Jr. Zack E. Mason Joseph W. McKnight Harold Arnold Pollman John L. Roach Hon. Thomas B. Thorpe Heman E. Walker J. Ralph Wood Jr. Licensed in 1952 John R. Anthony Jr. Robert F. Ashley Prof. Alan R. Bromberg

John H. Chiles James E. Coleman Jr. Hon. Harry T. Holland Vester T. Hughes Jr. Jerry N. Jordan Graham R.E. Koch Wayne A. Melton Louise B. Raggio Joseph M. Stuhl Harry P. Stuth Jr. William “Bill” H. Tinsley James A. Williams Richard S. Woods Licensed in 1953 Donald C. Alexander Robert L. Blumenthal Joe Don Denton Thomas L. Fiedler Roy W. Howell Jr. James A. Knox Hon. James W. Mast William R. McGarvey Hon. Hugh Snodgrass Licensed in 1954 Norma Lea Beasley Hon. Theo Bedard Frederick H. Benners Cooper Blankenship Paul M. Brewer Hon. Joe B. Brown Hon. Ben Ellis Robert A. Gwinn Charles W. Hall John M. Hamilton Harold F. Kleinman W.E. Notestine J. Redwine Patterson Benjamin E. Pickering Hon. Robert E. Price Allen P. Schoolfield Maxel “Bud” Silverberg James C. Tubb John R. Wright Licensed in 1955 Winston L. Adkins Hon. Ted M. Akin John C. Biggers Dennis G. Brewer, Sr. Charles D. Cabaniss Thomas N. Griffith Jess T. Hay Lawrence P. Hochberg Jack Pew Jr. Anthony G. Riddlesperger Forrest Smith Robb Stewart Lee D. Vendig Licensed in 1956

Benjamin R. Collier John L. Estes Frank Finn Merle R. Flagg Richard A. Freling Joseph J. French Jr. Roger A. Hansen Frank S. La Barba Jr. Marvin L. Levin Wilmer D. Masterson Elton M. Montgomery Hobert Price Jr. Frank Tupper Smith Jr. Sidney Stahl Claude R. Wilson Jr. Gerry N. Wren

Emory L. White Jr. Barney T. Young Norman A. Zable Licensed in 1959 Webber W. Beall Jr. Tom A. Blakeley Jr. Allen Butler Durwood D. Crawford Marshall J. Doke Jr. Robert A. Fanning A.D. “Gus” Fields Frederick W. Fraley III Larry L. Gollaher James J. Hartnett Jack W. Hawkins Norman P. Hines Jr. James H. “Blackie” Holmes III Herbert L. Hooks Ray Hutchison Jerry P. Jones Richard A. Lempert George R. Milner George David Neal Donald F. Padgett Spencer C. Relyea III Paul L. Salzberger Edwin M. Sigel Joe A. Stalcup Charles M. Supple Robert C. Taylor

Licensed in 1957 Barton E. Bernstein William F. Bowles Don T. Cates Frank W. Elliott Jerry C. Gilmore V. Rock Grundman Ivan Irwin Jr. Tom James William C. Koons Edward J. Lynch Bernard C. McGuire Kenneth J. Mighell Harold E. Moore Neil J. O’Brien William D. Powell Ronald Roberts Morton A. Rudberg Merlyn D. Sampels J. Richard Sanderson Clay C. Scott Jr. Carl A. Skibell Jason B. Sowell Jr. Hon. Milton Sturman Robert H. Thomas Louis J. Weber Jr.

Licensed in 1960 E. Karl Anderson Anthony Atwell Paul E. Ave Lester V. Baum Perry Oswin Chrisman Edward A. Copley David S. Curtis Alan D. Feld Heather D. Fitzenhagen Paul L. Fourt Lawrence W. Jackson John L. Lancaster III Joe H. Loving, Jr. Tom D. Matthews, Jr. Hon. Pat McDowell Hon. Robert C. McGuire Hon. Don Metcalfe Robert L. Meyers III Robert F. Middleton Hon. Robert O’Donnell Jerome L. Prager William M. Ravkind Cecil A. Ray, Jr. Rust E. Reid James B. Sales Malcolm L. Shaw C. Freeman Stallings, Jr. Donald A. Swanson, Jr. Arthur I. Ungerman William D. White, Jr.

Licensed in 1958 Burt Berry Walton P. Bondies Jr. R.W. Calloway Leland W. Carter Robert C. Cox Robert Edwin Davis F. Lynn Estep Jr. Robert (Jim) Foreman Ben A. Goff John W. Hicks Jr. Bill C. Hunter Jerry Lastelick John H. McElhaney Robert H. Power William T. Satterwhite Harry R. Shawver Jr. Dan W. Stansbury Jack R. Wahlquist

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October 2010

Focus

Dal l as Bar A ssoci ati on l Headnotes 11

Health Law

The Future of Medical Equipment in America by Edward Vishnevetsky

he first wave of Baby Boomers—those born between 1946 and 1964—are quickly approaching Medicare-eligible age. In fact, beginning January 1, 2011, approximately 8,000 Baby Boomers will turn 65 every day for the next 18 years. In preparation for this influx of beneficiaries, Congress has passed new laws that will change the current landscape of the Medicare system. One of the biggest changes is the implementation of a durable medical equipment (DME) competitive bidding program, which will transform the way in which DME (i.e. oxygen concentrators, hospital beds, canes, walkers, etc.) is dispensed and paid for under Medicare Part B. Section 302 of the Medicare Prescription Drug, Improvement and Moderniza-

tion Act of 2003 (MMA) required the Secretary of the Department of Health and Human Service to establish and implement The Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) Competitive Bidding Program (CBP) by 2007. The statute required Medicare to replace the then-current fee schedule payment methodology for selected DMEPOS items with a competitive bid process. The specific competitively-bid items included: (1) oxygen supplies; (2) standard power wheelchairs, scooters; (3) complex rehabilitation power wheelchairs; (4) mail-order diabetic supplies; (5) enteral nutrients; (6) Continuous Positive Airway Pressure Devices (CPAPs), Respiratory Assist Devices (RADs);

Nominations for 2011 Fellows Award Now Being Accepted The annual Fellows Award is the most prestigious honor of the Dallas Bar Foundation and is presented every year at the Fellows Luncheon. Nominees must be members of the Dallas Bar Association who have adhered to the highest principles and traditions of the legal profession and who are highly respected within the legal profession. Nominees must also have served the community and the legal profession, while adhering to the highest ethical standards. Being a Fellow of the Dallas Bar Foundation is not a prerequisite for nomination, but it is a factor that may be considered in the selection process.

(7) hospital beds; (8) Negative Pressure Wound Therapy (NPWT) pumps; (9) walkers; and (10) support surfaces. Suppliers submitted their bids to Palmetto GBA, the Competitive Bidding Implementation Contractor for the CBP, and Palmetto GBA evaluated the bids based on the supplier’s eligibility, financial stability and bid price. Section 302 of the MMA mandated that competition under the CBP begin in 10 of the largest city-areas (termed “metropolitan statistical areas” or MSAs) in the United States in 2007 (Round One), in 80 of the largest MSAs in 2009 (Round Two), and in other areas after 2009. Round One included the “Dallas-Fort Worth-Arlington” MSA. After reviewing approximately 6,500 bids in Round One, Palmetto GBA offered contracts to 325 suppliers nationwide. Suppliers who did not receive a contract could not provide the competitively bid products in the designated MSAs. Incidentally, of the 580 Medicare suppliers in the Dallas-Fort Worth-Arlington MSA, only 196 contract offers were made; 69 percent of suppliers did not receive a contract. The CBP was officially launched on July 1, 2008. In response, DME companies and beneficiaries in the affected MSAs began filing lawsuits and lobbying Congress to stop the program. On July 15, 2008, Congress delayed the Program for 18 months by passing the Medicare Improvements for Patients and Providers Act. As a consequence for delaying the CBP, beginning January 1, 2009, all DMEPOS suppliers became subject to a 9.5 percent reduction in reimbursement for those products included in Round One of the

2007 CBP. The CBP is scheduled to go live again on January 1, 2011. With the exception of some new regulations created by an interim final rule, the 2007 CBP regulations continue to provide the framework under which the program will be implemented. Round One has been rebid, including most of the same items and services and for most of the same MSAs as the 2007 Round One CBP. That Round One Rebid concluded on December 21, 2009, and winning suppliers were scheduled to be announced in September 2010. Medicare rates on Round One Rebid items will average 32 percent less than the pre-CBP rates. Proponents of the CBP contend that the Round One Rebid in the 9 MSAs could save Medicare as much as $17 billion in reduced costs over 10 years. However, critics of the program argue that the CBP will: (1) force out providers who utilize high quality medical equipment; (2) result in more expensive, longer hospital stays, because hospitals will have to use multiple medical equipment and service providers to equip patients they discharge, instead of single, one-stop providers; (3) decrease competition; and (4) will result in the loss of jobs (estimated at as many as 100,000 nationwide) and small businesses. To that effect, critics of the program sponsored H.R. 3790, a bill introduced in the House by Representative Meek of Florida, which seeks to repeal the CBP, while fulfilling the Program’s intended objectives. Currently HN the bill has 252 co-sponsors. Edward L. Vishnevetsky is an associate in the Health Care section of Thompson, Coe, Cousins & Irons, LLP. He can be reached at evishnevetsky@thompsoncoe.com.

Previous Fellows Award Recipients: Justice Douglas S. Lang F John L. Estes F George W. Bramblett, Jr. F Hon. Robert W. Jordan F H. Ron. White F Hon. Linda B. Thomas F Adelfa B. Callejo F Hon. Jerry Buchmeyer F James E. Coleman F Harriet E. Miers F John L. Hauer F Robert H. Thomas F L.A. Bedford, Jr. F Louise Raggio F Hon. Merrill Hartman F Hon. Barefoot Sanders Submit Nominations by November 15th, 2010 to: Jeff Hage, 2010 DBF Fellows Vice Chair,at jhage@winstead.com or via phone at (972) 628-3600.

DVAP’s Finest Mike Regitz

Mike Regitz is an Intellectual Property attorney with Fulbright & Jaworski L.L.P. Along with Dan Scott of Gardere Wynne Sewell L.L.P., Mike coordinates the Veterans Legal Clinic that is held at the Dallas VA Medical Center on the first Friday of each month. The first Veterans Legal Clinics were sponsored and staffed by DVAP, Fulbright and Gardere, but Mike is thankful that now other lawyers, law firms and corporations are joining in the effort to help our veterans. After each clinic, Mike and Dan work with DVAP and their respective firms to try to get as many veterans’ cases placed as possible by tapping into an ever-growing network of attorneys willing to handle a veteran’s case on a pro bono basis. Mike represents veterans in cases generated from the Veterans Legal Clinic and has also helped staff other DVAP legal clinics in South Dallas and East Dallas. Mike hopes that more lawyers will contact him and join the Veterans Team. Thank you, Mike!

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

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

THE

L ATE ST

APPELLATE

OPINIONS — AVA I L A B L E D A I LY ON T E X A S L AW Y E R .C OM Click on “Daily Case Alert” to see the most recent case law or click on “Appellate Court Opinions” to search by practice area.

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

October 2010

Why Should Your Firm Accept Credit Cards? Credit and debit card acceptance is an essential practice management tool that is often overlooked as a means to increase revenue and cash flow. Many clients, including prospective clients, prefer the convenience of paying with credit or debit cards as opposed to checks. Opening a merchant account for your firm is a simple process and immediately gives more control of your receivables. Why turn away a prospective client who wants to use your law firm’s services and has the means to pay promptly?

Separating Earned and Unearned Fees

One key feature to consider when opening your merchant account is the ability to separate earned and unearned fees when accepting credit cards. In order to stay in compliance with the American Bar Association and most state guidelines for credit acceptance, a merchant account must correctly separate earned and unearned fees into operating and trust accounts, thus preventing the commingling of funds. Most importantly, a compliant merchant account enables an attorney to designate which account should be used for withdrawals of

all processing fees.

Payment Authorization on File

Once your merchant account is established, implement new procedures to take advantage of the service. One of the best ways to control receivables is keeping a payment authorization form on file for every client. Avoid the hassle of chasing down delinquent payments by providing a credit authorization form with all letters of engagement. A credit authorization form gives your law firm permission to charge a client’s credit or debit card for a certain amount. You can also arrange to automatically bill any past due balance over 30, 60 or 90 days to the client’s credit card on file. In addition, adding an option to pay by credit card on your monthly invoices will greatly reduce late payments.

Proceed With Caution

Ensure you have the proper procedures in place to handle such transactions. This includes compliance with trust account guidelines, proper documentation for chargeback prevention, and basic security procedures to protect cardholder information.

Happy Hour at Jimmy Choo

One of the most common concerns with credit card acceptance is the risk of a chargeback, which occurs when the cardholder files a dispute with his or her credit card issuing bank. To successfully defend an unfounded dispute, your law firm must prove two things: the work was performed and the client gave his or her permission to charge the credit card to pay for that work. Proving that your law firm’s services were provided is often the easier part. Clearly documenting and tracking every minute of work performed is a standard part of your operating procedures. Surprisingly, where law firms often fall short is in obtaining a client signature for a credit card transaction. If you currently accept credit card payments, review your process and ensure you would be able to provide key documentation needed if a charge was ever questioned.

Cardholder Security

In addition to documentation, you must have a procedure in place to handle and store client credit card information. All card information should be kept under lock and key, with access provided to authorized staff members only. Card information should never be stored or shared electronically, including via e-mail. Common sense should dictate when client information may be at risk. You should give credit card data the same level of confidentiality afforded to other sensitive client information. (For more detail on card

security, visit the PCI Security Standards Council website at www.pcisecuritystandards.org or www.PCICentral.com.)

The Bottom Line

A merchant account can be the secret weapon to resolving payment issues. It provides payment flexibility as well as convenience. In addition, offering credit cards as a payment option can attract clients and win new business. Now you can spend less time chasing down collections and more time practicing law. The Dallas Bar Association members are eligible to obtain a Law Firm Merchant Account through the Association’s Member Benefit program. With the Law Firm Merchant Account, members save an average of 25 percent off traditional bank processing programs. More importantly, the program is designed specifically for attorneys with the ability to correctly separate earned and unearned fees. If you have not yet taken advantage of this great member benefit you may be missing a huge cost savings to your firm. Begin accepting credit cards and guarantee payment for your legal services. For more information, visit www.affiniscape.com/DallasBar or call HN (866) 376-0950.

Affiniscape Merchant Solutions, the exclusive provider of the Law Firm Merchant Account™, professional payment solution for attorneys and their clients. For more information, visit www.affiniscape.com/DallasBar.

Brought to you by the Entertainment Committee

DBA CELEBRATES NATIONAL PRO BONO WEEK

Thursday, November 3, 6:00 to 9:00 p.m. Jimmy Choo at Highland Park Village (79 Highland Park Village, Dallas) For more information, contact Rhonda Thornton at rthornton@dallasbar.org.

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

Pro Bono Week Schedule of Activities

Monday, October 25 Tuesday, October 26 Wednesday, October 27 Thursday, October 28 Friday, October 29

Catholic Charities of Dallas Inc. Advocacy, Inc. of North Texas Housing Crisis Center (HCC) DVAP Belo Legal Aid Intake Clinic Texas C-BAR DVAP Pro Bono Awards Belo Pavilion Wills Intake Clinic | The Senior Source Family Law

Noon-1:00 p.m. (MCLE 1.00) Noon-1:00 p.m. (MCLE 1.00) Noon-1:00 p.m. (MCLE 1.00) 5:00-9:00 p.m. Noon-1:00 p.m. (MCLE 1.00) 5:30-7:30 p.m. 9:00 a.m.-Noon Noon-1:00 p.m. (MCLE 1.00)

October 2010

Focus

Dal l as Bar A ssoci ati on l Headnotes 13

Health Law

The Implementation Of Accountable Care Organizations by Joseph F. Coniglio

ince the passage of the Patient Protection and Affordable Care Act (PPACA) earlier this year, health care providers have shifted their focus from debating the merits of the legislation to the opportunities PPACA has created. One such opportunity is the law’s encouragement of developing accountable care organizations (ACOs). This article outlines the structure of the ACO and some of the legal issues raised by the formation of ACOs in the health care marketplace.

What is an ACO?

The Centers for Medicare & Medicaid Services (CMS) defines an ACO as a clinically-integrated organization of health care providers that agrees to be accountable for the quality, cost and overall care of Medicare beneficiaries to whom the providers in the ACO provide the bulk of primary care services. Under PPACA, several different types of provider organizations qualify to participate in an ACO, including physician group practices, physician networks, physician-hospital joint ventures or hospitals that employ physicians and others. Section 3022 of PPACA establishes the Medicare Shared Savings Program (the “Program”) which is expected to be operational by January 1, 2012. Under the Program, ACOs that voluntarily agree to quality thresholds may share in the cost savings they achieve for the Medicare program. Among other requirements to participate, an ACO must have a formal legal structure to receive and distribute shared savings and have defined processes to (a) promote evidenced-based medicine, (b) report the necessary data to evaluate qual-

ity and cost measures and (c) coordinate care provided to its assigned beneficiaries. If an ACO qualifies under these requirements and meets specified quality performance standards, it will be eligible to receive a share of any savings achieved for the Medicare system if the actual percapita expenditures on its assigned beneficiaries is a sufficient percentage below a specified benchmark over a period of time. For now, these requirements are missing many important term definitions, standards and benchmarks, but CMS expects to propose regulations spelling these out by the end of the year.

Open Issues

The formation and implementation of ACOs present a number of practical and legal issues that will need to be addressed by federal regulators governing the plans. Some of the key practical issues include how ACOs will be measured on quality, as well as how ACOs can accept accountability for care and cost of services to a patient population if those patients are free to see any provider, regardless of whether the provider is a part of the ACO. Some open legal questions include: • Antitrust: The formation of ACOs involves both horizontal and vertical integration of providers in a geographical area, thereby significantly enhancing bargaining power. This can implicate the Sherman and Clayton Acts if the ACOs use their market power in anti-competitive ways to reduce or eliminate competition. • Corporate Practice of Medicine and Fee Splitting Prohibitions: These prohibitions vary by state, and an ACO must be structured in compliance with the laws of the state(s) where the ACO

DBA President Wins Award

DBA President Ike Vanden Eykel (center), managing partner at Koons Fuller, brought home the Sam Emison Award at the Advanced Family Law Course event in September. The award is given each year for meritorious service to family law in Texas. Photo by Rick Robertson.

DBA Juvenile Justice Committee presents What to do if Your Child (or Your Client’s Child) is Arrested Friday, October 1, Noon, Belo Mansion Speaker: Hon. Andy Chatham, 282nd Judicial District Court MCLE 1.00

will be providing services. • Stark Law: ACOs implicate the physician self-referral prohibition known as the Stark Law, which prohibits certain referrals from physicians to entities with which the physicians have a financial relationship unless a statutory exception applies. The ACO structure’s distribution of cost savings received from Medicare represents a financial relationship that will need to conform to an exception. • Anti-Kickback: ACOs could also run afoul of the federal anti-kickback statute, which prohibits the payment or receipt of remuneration in return for referrals of Medicare-payable care unless a safe harbor applies. Viewed in the dimmest light, the formation of an ACO could raise anti-kickback risk that cautious providers will want to mitigate by conforming the ACO relationships to the terms of existing safe harbors. We expect further guidance from OIG in this area.

• Civil Monetary Penalties Law: A primary purpose of an ACO is to foster coordinated, cost-effective, quality care and to reduce unnecessary or redundant care or treatment. The Civil Monetary Penalties Law (CMP), however, prohibits hospitals from inducing physicians to reduce or limit services to Medicare beneficiaries and imposes financial penalties on both the hospital and the physicians involved. HHS will need to issue further guidance on this issue to protect the clinical judgment of providers involved in ACOs. These questions will need to be addressed by regulators before ACOs can begin to achieve the savings that PPACA anticipates. But legal hurdles notwithstanding, ACOs appear likely to become an integral part of the health care land HN scape in the coming years. Joe Coniglio is a Shareholder at Greenberg Traurig LLP in Dallas. He is a member of the Health Law Section of the DBA. He can be reached at coniglioj@gtlaw.com.

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

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

DBF Collins Clerks Appreciation Lunch

On Thursday, August 19, the Dallas Bar Foundation hosted the Collins Clerks Appreciation Lunch for this year’s mentors, which included Chief Justice Carolyn Wright and Judge Eric Moyé. The Collins Clerkships, started in 1989 by the Dallas Bar Foundation, provides eight summer clerkships for minority students in their second year at the SMU Dedman School of Law. Clerkships are provided at the Supreme Court of Texas, the Fifth District Court of Appeals at Dallas, the 14th Civil District Court, the Dallas County District Attorney’s office, the Dallas City Attorney’s office, and the Dallas County Public Defender’s office. The clerkships were named for William E. Collins, Chair of the Dallas Bar Foundation Board of Trustees from 1978 to 1982.

October 2010

Focus

Dal l as Bar A ssoci ati on l Headnotes 15

Health Law

Mandatory Flu Vaccinations and Healthcare Workers by Nichol Bunn and Gregory Stimmel

ctober is typically the start of flu season. This time last year, healthcare providers and public health officials were anticipating one of the worst flu seasons in decades. H1N1 or “swine flu” had reached pandemic proportions and it was estimated that 30 to 50 percent of the U.S. population could be infected, causing hospitals to be inundated with critical care patients To ensure a sufficient number of staff was available to handle the expected influx, one state mandated the vaccination of certain healthcare workers. Some private employers did so too. Both actions received opposition.

Can the Government Require H1N1 Vaccinations?

A mandatory vaccination law was first enacted in 1809 with Massachusetts’ smallpox-vaccination law. In Jacobson v. Massachusetts, the U.S. Supreme Court upheld the law, noting that it had a real and substantial relation to the protection of public health and was within the police power of the state. Since then, laws mandating vaccinations have been enacted, including laws requiring healthcare providers to be vaccinated against diseases such as measles, mumps and rubella. In general, the Supreme Court has upheld such laws with considerable deference to the use of a state’s police power to protect public health. However, a state’s right to enact such laws is not absolute and can be challenged. In August of 2009, the New York State Health Department mandated the vaccination of healthcare providers against the H1N1 virus as a precondition to employment. Employees challenged the mandate

claiming that the State violated the separation of powers clause, and that the legislature had not delegated authority for such action. The employees also claimed that the mandate was unconstitutional by: not providing an exemption for religious beliefs; adversely affecting liberty and property interests; and violating due process. A temporary restraining order was granted and the matter was set for hearing. However, before the hearing, Governor Patterson announced the suspension of the mandate due to a shortage of the vaccine. With this suspension, the constitutionality of the government mandate making the H1N1 vaccination a condition of employment remained unresolved.

Can Private Healthcare Employers Require H1N1 Vaccinations?

Unlike the government, private healthcare employers who required the H1N1 vaccination did not have the same police powers and/or constitutional basis for mandating the vaccinations, and the employment policies were challenged. Although employers can generally put conditions on employment, the policies must conform to state laws allowing employees to opt out and must not run afoul of employment issues such as employment contracts, collective bargaining agreements, Title VII, OSHA, EEOC, and ADA. Private healthcare employers should also consider the liability of mandating flu vaccinations–especially during a pandemic. During the H1N1 pandemic, several vaccines were rushed to market. However, the safety and efficacy of these vaccines were questioned. There were some scientists who

warned that the vaccines had been linked to the deadly nerve disease known as Guillain-Barre Syndrome. Other scientists and consumer advocates were concerned about the use of thimerosal, a mercury-based preservative, and the fact that at least one state had suspended the mercury limits to allow the H1N1 vaccine. There was also concern about the use of adjuvants or additives such as squalene, which is believed by some to be associated with symptoms known as the “Gulf War Syndrome.” Without adequate safety studies, employers could not be certain of the risks associated with mandating the H1N1 vaccination and there were some who suggested that the employer should be held liable for requiring their employees to use an untested or unsafe vaccine as a term of employment. Although the H1N1 vaccine manufacturers and distributors had obtained immunity from lawsuits, it was unclear whether this immunity would extend to private healthcare employers requiring vaccinations.

Best Practices

Be prepared. Scientists say that it is just a matter of time before we encounter another pandemic. Healthcare employers should review their policies and ensure that they comply with current employment laws. Also, they should conduct a risk analysis for any additional liability exposure. In the meantime, healthcare employers should consider implementing an education program encouraging its employees to be vaccinated voluntarily and develop effective alternatives for those who choose not to be vaccinated. Finally, during any type of flu outbreak, healthcare employers should make a concerted effort to keep themselves and their employees educated about the virus and the HN vaccine.

Nichol Bunn is Of-Counsel at Wilson, Elser, Moskowitz, Edelman & Dicker, LLP. She is on the CLE Committee of the DBA and can be reached at Nichol.Bunn@wilsonelser.com. Gregory Stimmel is an Associate at Wilson, Elser, Moskowitz, Edelman & Dicker, LLP. He can be reached at Gregory.Stimmel@wilsonelser.com.

Justinian Award Nominations Due Soon

The 29th Annual Justinian Award will be presented in April 2011 at the Belo Mansion. The Dallas Lawyers Auxiliary is seeking nominations for this prestigious award which is given annually to a member of the Dallas Bar Association who has dedicated his or her career to volunteer service through civic, educational, health, welfare or philanthropic endeavors in the Dallas community. The recipient will be chosen by a panel of distinguished non-lawyer community leaders. Attorneys serving in public office or candidates for public office are not eligible. Please consider nominating one of the many outstanding attorneys in the community for the Justinian Award. Past recipients include lawyers from large and small firms, solo practitioners and corporate attorneys. Nominations must be submitted in writing no later than January 10, 2011, to Carolyn Raney, 2413 Grandview Drive, Richardson, TX 75080, or by e-mail at carolynraney@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

October 2010

Our Responsibility to Protect the Right to Jury Trials by Greg W. Curry and George “Tex” Quesada

he Texas Trial Lawyers Association and Texas Association of Defense Counsel have divergent views on many issues. Our living is made fighting each other. None of us like to lose. As a result, these two groups often end up on the opposite side of issues affecting the legal profession. But, when it comes to the protection of the jury system and the right to a trial by jury, both groups are aligned. The American jury system is the best and most powerful method ever devised for the ascertainment of truth. It is the ultimate decision-maker for the disputes we spend our professional careers fighting. A jury trial is the pinnacle of the trial lawyer’s experience. The benefits of the jury system were recognized long ago. Indeed, the right to

a trial by jury is mentioned in the Declaration of Independence, the body of the U.S. Constitution, and the Bill of Rights. The jury system has been central to the justice system in America since its inception. Nonetheless, the jury trial is under constant attack. There are a multitude of reasons—some perceived and some real— including high costs of litigation, over-worked courts, beliefs that juries are unpredictable and random, delay, and the assumption that most cases will settle. Critics of the jury system will point to verdicts that shock the conscience, concerns about runaway juries, and the purported benefits of alternative dispute resolution. They will claim that America is “sue happy,” that many claims heard by juries are frivolous, or that jury trials stifle economic health. It is incumbent upon us, as officers of the court, to ensure that the right to

BLOOD DRIVE!

Friday, October 29 | 9:00 a.m. to 4:00 p.m. The Belo Mansion

Please have a good meal, drink plenty of fluids before your donation, and bring your photo ID. Reserve the best time for you and your firm today. Visit www.dallasbar.org. Questions call Michelle Dilda at (214) 220-7474

a jury trial is protected. We must fight against unwarranted, inaccurate attacks on the civil justice system. When problems do emerge, lawyers must be in the forefront of seeking solutions that do not “put a thumb” on either side of the scales of justice. We must support our judiciary. We must ensure accurate information is utilized when evaluating jury trials. Unjustified attacks on the jury system send the wrong message about lawyers and the justice system. Such attacks are often based on, or lead to, the conclusion that trial judges are weak and cannot control their courtrooms, that plaintiffs’ lawyers are unethical and sleazy, and that defense lawyers are incompetent or otherwise incapable of preventing the perceived harm that results from the jury system. Such arguments erode respect for the law, solidify anti-lawyer sentiment, and promote unreasonable efforts to change or modify our precious jury system. The importance of juries to our justice system cannot be overstated. A jury’s decision-making process is one of the only times where individuals get to actively participate in the justice system. Participation avoids alienation from the workings of the justice system by the people. Although jurors may wish they could avoid jury service because of the strain it places upon their lives, once on a jury they inevitably seize the opportunity to take part in the justice system and attempt to decide matters in a fair and equitable manner. Juries try to and usually do “get it right.” The collective knowledge and experience of a group of individuals is superior to the fact-finding ability of one. The collection of knowledge and experiences, and the fact that a group of fact-finders, as opposed to one, review the evidence and hear the

witnesses, necessarily must lead to a well considered and reasoned decision. And although some may disagree with those decisions, no other system has ever been demonstrated to be superior. Too many lawyers remain silent in the face of attacks on the jury trial. Trial lawyers must learn and understand the roots of the jury system. We must obtain and use knowledge regarding the jury system to oppose the jury system’s detractors. Trial lawyers on both sides of the docket must embrace our role as examples of those who believe in the jury system and educate others as to its benefits. Silence by the bar will only lead to the public’s belief that statements by the jury systems’ detractors are fact. Trial lawyers must acknowledge the systems’ weaknesses, while continuing to seek improvement. Absent such proactive steps, trial lawyers may become an anomaly in a sea of “alternative dispute specialists,” “litigators,” and “arbitrationors.” The time to ensure the jury system is protected is now. Get involved. Join an organization such as the TTLA or TADC that promotes the jury system and seeks to protect it. Speak with others in the community about the jury system and correct misconceptions about it. And strive to improve the system that is the basis for our chosen line of work. Next time you hear an attack, step up and respond. Correct the misperception. Stand by the HN judge. Greg. W. Curry is a partner with Thompson Knight, LLP, and is the current president of the Texas Association of Defense Counsel (TADC). He can be reached at Greg.Curry@tklaw. com. George (Tex) Quesada, is an attorney at Sommerman & Quesada, LLP, and is President of the Texas Trial Lawyers Association. He can be reached at quesada@textrial.com. The authors would like to thank Greg Binns, partner at Thompson Knight, and Jody Rodenberg, clerk at Sommerman & Quesada, LLP, for their work on this article.

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

October 2010

Focus

Dal l as Bar A ssoci ati on l Headnotes 17

Health Law

Health Care Reform in a Nutshell by Chuck Blanchard

n March 30, 2010, after complicated Congressional proceedings, the President signed a reconciliation bill completing amendments to the “Patient Protection and Affordable Care Act” (PPACA). PPACA becomes effective in stages, with new changes taking effect every year until 2015. Many of the details will be fleshed out in agency regulations, but the following are some highlights of PPACA: 1. Health Insurance Exchanges PPACA mandates that the states will establish “American Health Benefit Exchanges” and “Small Business Health Options Program Exchanges.” Basically, the exchanges will be “marketplaces” for individuals and businesses to purchase insurance. The plans sold on the exchanges must meet certain requirements, and insurers must provide plans with certain benefits to participate. The Federal Government will also contract with private insurers to offer plans on each exchange. Subsidies to purchase coverage on the exchanges–“premium credits” and “cost-sharing credits”–will be available to some individuals based on income. 2. Mandated Health Insurance Under PPACA, most individuals will be required to obtain private health insurance or pay a tax penalty (beginning in 2014). Exemptions from the tax will be available on various grounds, including when the cost of the least expensive plan exceeds 8 percent of the individual’s income.

Generally, employers of a certain size (50 or more employees) will have to provide insurance coverage or pay an additional tax. Taxes will also be imposed on employers providing coverage that does not rise to a certain level (low enough for an employee to qualify for a “premium credit” in the exchanges). In some situations, employees will be permitted to take the contributions their employers would make to employer-offered coverage to purchase insurance from the exchanges. “High Cost” plans will be subject to a 40 percent excise tax. 3. Linking Payment to Quality With respect to private insurance, 80 to 85 percent of all premium dollars collected by insurance companies must be spent on benefits and quality improvement. Plans that do not meet those targets must provide rebates to consumers. Insurers will also be required to justify premium increases– failure may prevent participation in the exchanges. With respect to Medicare, PPACA institutes “value-based purchasing,” limiting reimbursement payments to care providers that do not meet certain quality standards. Medicare reimbursements may also be reduced to care providers that have higher rates of “preventable hospital readmissions” and “hospital-acquired conditions.” 4. Encouragement of “Coordinated Care” In conjunction with linking payment to quality, PPACA contains several provisions that address the way health care services are delivered. Gen-

Coming Soon—The Return of the Federal Estate Tax by Anne Pohli

he federal estate tax, which expired for just this year, is scheduled to return to its 2001 form on January 1, 2011. After a decade of steadily increasing exemptions—from $1 million in 2001 to $3.5 million last year, the exemption will drop back to $1 million. The top taxation rate, which had dropped to 45 percent, will return to 55 percent. Income taxes are also affected. Under prior law, the assets one owned at death received a new income tax basis—a “step-up” in basis to their value on the date of death. This meant that the heirs were relieved of the built-in capital gains tax liability and were able to start fresh. For those who die in 2010, the advantage of having no estate tax is offset by the fact that the income tax basis will “carry over” to the heirs, along with any capital gains tax liability, for estates with assets in excess of $1.3 million. In addition, the executor will have to determine what the decedent’s basis in the property. Depending on the decedent’s record keeping diligence, this may be very difficult. Over the past several years, there have been a number of proposals for the future of the estate tax, creating considerable confu-

sion for both lawyers and clients. Most tax experts believed Congress would have acted before this year to prevent the expiration of the tax, and one of the more popular predictions was that the exemption would be set at a minimum of the 2009 level of $3.5 million for the foreseeable future. However, the crystal balls proved hopelessly inaccurate, and although several bills have been introduced, there has been no resolution. The result is that many people who believed they would be exempt from estate tax will, in fact, be subject to it. Lawyers who draft wills, but do not practice tax planning, should consider consulting with a tax expert for clients that may be subject to the estate tax. Clients with assets of a gross value of $1 million ($2 million combined for a married couple) will be subject to the tax, and simpler, non-tax planned wills may no longer accomplish their estate planning goals. There are a number of tools to reduce the impact of the tax. Factors in deciding which are appropriate include the size of the estate, the type of assets and the HN client’s family situation. Anne Pohli is a past chair of the DBA Publications committee. She practices in the area of wills, trusts and probate. She can be reached at lapohli@sbcglobal.net

DBA MEMBER REMINDER:

Your 2011 DBA DUES STATEMENT will be mailed to your office or home on October 15, 2010. 2011 DBA DUES must be paid by December 31, 2010 to continue receiving all your member benefits. Thank you for your support of the Dallas Bar Association!

erally, PPACA contains provisions to study, test and implement care that is more “coordinated” and “integrated.” Some examples include: • Establishment of the Center for Medicare & Medicaid Innovation to study ways to improve the quality of care and reduce costs; • Incentives for “accountable care organizations”–groups of care providers that agree to manage and coordinate care for Medicare patients. “ACOs” that meet certain quality benchmarks and produce cost-savings for Medicare will be able to “share” in such savings; and • Programs to explore the use of “bundled care,” where Medicare and Medicaid providers are paid a flat rate for an “episode” of care, rather than payments for each separate service. 5. Regulation of Private Insurance PPACA includes numerous regulations on private insurance designed to expand coverage, including: • Restricting denial of coverage based on pre-existing conditions; • Allowing children to stay on parents’ insurance until age 26; • Eliminating “lifetime dollar limits,” and restricting “annual dollar limits;” • Requiring plans to provide certain preventative services at no cost; • Prohibiting insurers from dropping coverage because an individual participates in certain clinical trials; and • Restricting insurers’ ability to charge higher rates based on gender

or health status. 6. New Government Funding Although certain payments under Medicare and Medicaid are being changed, altered and/or reduced, PPACA does provide funds for new programs, including: • $5 billion for a temporary “high-risk pool” to cover those with pre-existing conditions; • $5 billion to cover individuals who retire before age 65 until they are eligible for Medicare; • $15 billion for preventative health programs; • Rebates to Medicare D recipients who fall into the “coverage gap” on prescription drug benefits; • Scholarship, loan and tax relief programs to expand care in underserved areas; • $250 million in new grants to states that require insurance companies to justify premium increases; • $250 million in increased funding to prevent health care fraud; • Increased federal matching funds for families on Medicaid; • $6 billion for a program to develop non-profit, member-run health “coop” insurance companies; • Increased funding to construct and expand services at “community health centers;” and • Creation of a voluntary long-term care insurance program called HN CLASS Act. Chuck Blanchard is a partner at Carrington Coleman and a member of the firm’s Healthcare practice group. He can be reached at cblancha@ccsb.com.

Speak To Dallas ISD Students for ½ Day During the week of November 15-19, volunteers can teach up to 3 classes a day in the secondary social studies classrooms. Curriculum is available. Deadline to sign up is November 1. For more information, contact Amy Smith at asmith@dallasbar.org.

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

October 2010

October

FROM THE DAIS

Byron Egan, of Jackson Walker L.L.P., spoke at the TexasBarCLE Advanced In-House Counsel Course in San Antonio, Texas. Tracey Wallace, also with the firm, spoke at the Lavender Law Conference in Miami, Florida.

KUDOS

Emmanuel Obi and Angela Zambrano, of Weil, Gotshal & Manges LLP, have been named two of the Five Outstanding Young Dallasites (FOYD) by the Dallas Junior Chamber of Commerce (DJCC). Stephen B. Good, of Gardere Wynne Sewell LLP, has been re-elected Managing Partner through February 2017. Michael Laussade, of Jackson Walker L.L.P., has been accepted into the North Texas Business Council for the Arts’ Leadership Arts Institute.

Scott Aston, of Looper Reed & McGraw, P.C., has been elected to the firm’s Board of Directors, and Matthew Sanderson was named Member, and elected to the firm’s Board of Directors.

ON THE MOVE

Frank Tupper Smith, Jr and Sarah E. Oliai have merged their practices to form Smith and Oliai, PLLC, located at 6060 N. Central Expressway, Suite 560, Dallas, TX 75205.

Scott P. Stolley, of Thompson & Knight, LLP, has been reappointed to serve a three-year term on the Pattern Jury Charge–Business, Consumer and Employment Committee for the State Bar of Texas.

Jason B. Binford has joined Kane Russell Coleman & Logan PC as an Associate.

Rosanne Messineo Mills has rejoined the Federal Deposit Insurance Corporation-Dallas Regional Office as a Senior Attorney in the Asset Management II section.

Mary Alice McLarty, of The McLarty Firm, P.C., has been elected vice-president of the American Association for Justice (AAJ).

Elisaveta Dolghih has joined Godwin Ronquillo PC as an Associate.

John B. Brown has joined Ogletree, Deakins, Nash, Smoak & Stewart, P.C. as shareholder.

Shannon G. Guthrie has joined the firm of Benenati Law Firm, P.C.

Shelly S. Jock has joined the Law Office of Ralph C. “Red Dog” Jones.

William A. Newman, J. Daniel Oliphant and J. Andrew Robertson have joined The Bassett Firm as an Appellate Attorney and Associates, respectively.

News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org.

Jess C. Rickman, III, of Hallett & Perrin, P.C., has been selected the 2010 Chairman of the Board of Trustees for the 12th Man Foundation at Texas A&M University.

Amachi Wins Award

Mary Ellen Skinner has joined Ganci & Skinner, LLP as a partner. The new firm has offices in Dallas and Collin Counties.

J. Kelly Barnes has joined Greenberg Traurig, LLP as an Associate.

. . . . . . DBA In the News . . . . . .

During the past two months, your DBA has been highlighted in the following media:

ply Drive, Amachi Community Outreach Award

Business Wire: DBA President Ike Vanden Eykel wins Family Law Award

Irving Rambler: DVAP

Coppell Gazette: Veterans Legal Clinic, Legalline dBusinessNews: Amachi Community Outreach Award, Legalline, Frank Branson Trial Lawyer of the Year

The Amachi Program, a joint effort of the DBA and Big Brothers and Big Sisters, was the 2010 recipient of the LexisNexis Community & Educational Outreach Award in the local bar with more than 5,000 members division, which was presented at the ABA Annual Meeting in August

YOU ARE INVITED!

Third Annual DAABA Night at the Opera Awards, Corporate Counsel, Civic Leaders and Judges

Little Elm Journal: Veterans Legal Clinic Mesquite News: Legalline North Dallas Gazette: Legalline, Amachi Community Outreach Award

Dallas Business Journal Public Eye Section (photos): Public Forum Committee’s Dallas Tomorrow program; Minority Clerkship Luncheon

Park Cities People: DBA booth at health clinic

Dallas Morning News Business Section—Bob Miller’s column print & online—Collaborative Law Section Symposium, Frank Branson Trial Lawyer of the Year

SBOT Newspaperclips.com: Amachi Community Outreach Award, DBA President Ike Vanden Eykel wins Family Law Award

Dallas Morning News Community Calendar: Legalline Flower Mound Leader: Veterans Legal Clinic Focus Daily News: CIC’s School Sup-

Pegasus News: Legalline

Star Local News: DBA President Ike Vanden Eykel wins Family Law Award TCBA Bulletin: Justice Douglas Lang Transition to Law Practice WFAA.com Legalline

Community

Calendar:

Wednesday, October 20, 5:30 to 8:30 p.m. Margot and Bill Winspear Opera House For more information or sponsorship opportunities, contact Victor Corpuz at corpuzv@jacksonlewis.com or Albert Tan at albert.tan@haynesboone.com.

ANNUAL CONFERENCE OF THE PROFESSIONS “The Ethics of Humor in the Professions”

Speaker: Phillip Freeman Thursday, October 14 , 1 to 4 p.m. at SMU’s Perkins School of Theology. For more information or to register, log on to http://smu.edu/ethicscenter/register. Sponsored by the DBA, the Dallas County Medical Society, U.T. Southwestern Medical Center, and the SMU Maguire Center for Ethics and Public Responsibility.

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

October 2010

Dal l as Bar A ssoci ati on l Headnotes 19

Classifieds

October

OFFICE SPACE

High-rise views at low-rise rates. Panoramic views from 63rd floor. Class-A downtown space close to courthouse, AV-rated law firm. Access to large conference room, library, kitchen. Secretarial, clerical, reception available. Offices available with very nice secretarial stations. Negotiable. Call Kay (214) 761-6463.

high-speed Internet, fax, receptionist, covered parking, 24/7 HVAC & access in a recently updated building starting at $500/month. (972) 567-6501 jedwards@stoneeagle.com. Attorney sublease in downtown Dallas business law firm. Easy freeway access, great views and free parking. $16.75 sq ft (tracks primary lease). Inquiries to: Dallas Bar Association, Box 10-10A, 2101 Ross Avenue, Dallas, TX 75201.

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

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

PRICE REDUCED: Own your Office Space! 4 window offices with views of mature trees near 75 between Walnut Hill and Meadow. Will lease too. Highly competitive full service rates (+/-2600 feet). For information, e-mail Kevin at kdym@platformproperties.com or call (214) 514-3389.

Uptown Offices available—Everything included—Receptionist and all amenities—phone, Internet, copying/faxing, refreshments, snacks, parking, multiple conference rooms, great atmosphere, access to experience in broad practice areas, easy access to/from Tollway. $1,500.00/ month. Phone: (214) 443-0853.

Seven offices available for rent in our historic West End building. Five upstairs offices rent at $750 each and two downstairs offices are $650 per month each. All offices can rent individually or as a package. Contact Craig Miley at (214) 692-8800 or craig@mileybrown.com.

No Rent Until Next Year! Preston Tower—3 offices with shared amenities, as low as $595/mo. (kitchen, conference room, reception area, bathroom). Convenient and accessible. 10 minutes from courthouse. Call (214) 369-1171 or e-mail: herbhooks@aol.com.

Executive suites, hidden in the shadow of CityPlace; 4225 Office Parkway, two blocks east of Central, one block north of Haskell. Exterior offices with all amenities bundled at one reasonable rate including conference room, kitchen,

POSITION AVAILABLE

Rockwall area legal assistant/paralegal needed. Prefer 2-3 years of experience. Benefits and salary commensurate with experience. Please send resume to Dale

Downtown Dallas law firm seeks a commercial litigation attorney with at least 5 years’ experience. Trial experience in both state and federal courts preferred. Compensation negotiable. Reply to: kmighell@cowlesthompson.com. The U.S. District Court, Northern District is recruiting a Courtroom Services Administrator. Will be responsible for consulting and overseeing the design, installation, repair, and maintenance of the district’s sound systems, evidence presentation systems, electronic recording systems, telecommunications systems, and video conferencing systems. Will be responsible for courtroom technology support, including training attorneys on the use of courtroom presentations; travel throughout the district will be required. Ability to effectively communicate, both orally and in writing. At least five years of experience providing courtroom litigation support, including extensive use of electronic presentation equipment. AMX System Design certification and Sound Architectural Acoustics certification, or equivalents, are preferred. Background check and FBI fingerprinting will be required. Full benefits. Resume and salary history to human_re-

POSITION WANTED

Attorney experienced in oil and gas and corporate law seeks position with energy company or law firm. Has been Board Certified in Oil, Gas and Mineral Law by the Texas Board of Legal Specialization. Excellent contract and drafting skills. Location in Dallas-Fort Worth Metroplex preferred, but not absolute with the right opportunity. Available for project assignments. Call (214) 526-6900.

SERVICES

Mexican Law Expert—Attorney, law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues-forum non conveniens, Mexican claims/defenses, personal injury, moral damages, Mexican contract law. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez 210222-9494 / dlopez@pulmanlaw.com. PLACE YOUR AD HERE! For affordable classified advertising rates call Judi Smalling at: (214) 220-7452.

Capital Punishment on Trial: Wednesday, November 3, Noon, Belo Mansion Speaker: Dr. David M. Oshinsky, professor of history and winner of the 2006 Pulitzer Prize in History MCLE 1.00

You are Invited!

Presented by the J.L. Turner Legal Association and the Dept. of History of the University of Texas at Austin Sponsored by the DBA Appellate and Criminal Law Sections, CLE Committee and Legal History Discussion Group.

DBA Justice in Education Symposium

Tuesday, November 16~ 8:30 a.m. to 1:30 p.m. ~ Belo Mansion

DWLA Judicial Reception

Speakers include DISD Supt. Dr. Michael Hinojosa, Hon. Teresa Guerra Snelson and various panels.

October 5 at 5:30 p.m. at Park City Club 5956 Sherry Lane Suite 1700, Dallas

The Jack Lowe Sr. Award for Community Leadership will be presented during the luncheon.

Hon. Judge Nikki DeShazo (Ret.) to receive the 2010 Louise B. Raggio Award.

Registration $35, includes lunch. Contact Alicia Hernandez at (214) 220-7499 or ahernandez@dallasbar.org

Insurance Trust

800.460.7248 www.sbotit.com

Downtown Dallas law firm focusing on risk management solutions, civil defense litigation, personal injury, transportation, employment claims, insurance coverage and commercial litigation seeks a litigation attorney with 2-6 years’ experience; demonstrating the ability to write, effective analysis, creative problem solving and communication skills. Send resume and writing sample to monica. sharpless@whitecolaw.com.

The 58th Anniversary Scholarship & Awards Gala

For more information, contact Cheryl Williams at (214) 957-9646 or Phyllis Lister Brown at (214) 207-0836

State Bar of Texas

Rockwall Area Attorney Needed. Prefer 2-3 years of practice, some civil litigation experience. Good benefits and salary commensurate with experience. Please send resume to Dale Henley at dhenley@mmsvlawfirm.com, or by fax to (469) 402-0461.

Furman v. Georgia and the Death Penalty in Modern America

Reception: 5:30 | Dinner: 7:30 Donation: $90, Black Tie

The State Bar of Texas Insurance Trust specializes in helping all Bar Members and their Eligible Employees obtain complete insurance coverage at any point in their lives. From Health Insurance to Long Term Disability Insurance, the Trust has you covered.

sources@txnd.uscourts.gov. Additional info at www.txnd.uscourts.gov #10-14.

The Board of Directors of the J.L. Turner Legal Association Foundation Invite You To

Saturday, October 9, 2010 The Sheraton Hotel Dallas

Exclusive coverage is easy to recognize...

Henley at dhenley@mmsvlawfirm.com, or by fax to (469) 402-0461.

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

October 2010