Dallas Bar Association
HEADNOTES
Focus Family/Probate, Trusts & Estates
April 2012 Volume 37 Number 4
No Courts, No Justice, No Freedom G. Michael Gruber to Receive Keynote Speaker 2012 Justinian Award trict Judge for the Northern District of Texas. Judge Lindsay is a highly regarded trailblazer who has spent his illustrious legal career supporting our court system and, more importantly, promoting equal By Emmanuel U. Obi and open access to it at various levels. The judiciary is a central aspect of In his former capacity as a Dallas City American democracy necessary to pre- Attorney, Judge Lindsay worked diliserving our rich heritage of liberty, jus- gently to ensure that Dallas citizens had tice and equality under law. The fun- fair and equal access to city courts. In damental necessity of the November of 1997, Judge judiciary can be traced back Lindsay was nominated by to our forefathers’ establishPresident Clinton to be a ment of a three-pronged federal judge for the Northgovernmental structure ern District of Texas, and essential to safeguarding after being unanimously our liberties. In the landconfirmed by the U.S. Senmark decision Marbury ate, became the first Afriv. Madison, the Supreme can-American federal judge Court reinforced this sysin the Northern District of tem of checks and balances Texas, which includes 100 by fortifying the judiciary’s counties. most essential power—judiThroughout his entire cial review. Accordingly, career, Judge Lindsay has it is rather timely that this Hon. Sam A. Lindsay steadfastly remained comyear’s ABA Law Day theme, mitted to maintaining a “No Courts, No Justice, No Freedom,” high level of integrity, hard work, and shines a spotlight on a critical issue that the highest ethical practice of the law. threatens the operational efficacy of our When asked about the significance courts. As members of the legal profes- of this year’s theme, Judge Lindsay sion and the community at-large, this responded, “[i]f there were no federal profound issue deserves our immediate court system, this country would not and sustained attention. have a democracy; the court system The recent global economic cri- is one reason democracy flourishes in sis has had far-reaching ramifications, this country today because it continuincluding the increased frequency and ally reminds members of society that we severity of funding cuts for courts across have a system based on laws and that no the nation. For example, this crisis has one person is above this system or any of constricted the availability of funding its laws.” To this end, according to Judge for, inter alia, pay raises for judges at Lindsay, “[t]he most important goal of the federal level and thereby negatively any effective jurist should be ensuring a impacts the judiciary’s ability to recruit fair process in which the litigants of any competent jurists. On the state level, case are treated fairly.” according to a report published by the As we celebrate Law Day this year, ABA task force examining this issue, it is a good time to recognize individu“the courts of virtually every state have als like the Honorable Sam A. Lindsay been forced into debilitating combina- who have faithfully defended our courts. tions of hiring freezes, pay cuts, judicial We should also commit our focus to findfurloughs, staff layoffs, early retirements, ing fiscally reasonable solutions to the increased filing fees, and outright clo- under-funding dilemma that is unduly sures.” Worse still, as the report high- restricting access to, and the functionlights, is that “the reductions in court ing of, our courts. This will ensure the staff and related resources come at the continued vitality of our court system—a very time when the demand for the judi- critical thread in the democratic fabric of cial resolution of economic claims has American life. In short, as the Honorable increased dramatically.” Thomas J. Moyer, former Chief Justice of Ironically, these funding cuts reflect the Ohio Supreme Court, once remarked, an arguably “penny-wise and pound- “[w]e can compromise on budgets, but we foolish” fiscal strategy. The truth is, as cannot compromise on justice.” noted in the ABA report, any savings The DBA will commemorate Law Day generated in the short-term by increased 2012 with a luncheon on Friday, May 4, cuts to funding and resources are ulti- noon, at the Belo Mansion. Tickets are mately overshadowed by higher long- $35 per person. For more information, or term social and monetary costs. to purchase tickets, contact Amy Smith As in years past, the DBA 2012 Law at asmith@dallasbar.org. HN Day Luncheon will highlight the pressing nature of the issues raised by this Emmanuel U. Obi is a corporate attorney in the Dallas office year’s theme. As such, it is quite fitting of Weil, Gotshal and Manges LLP and a member of the Dallas that this year’s keynote speaker is the Bar Association’s Publications Committee. He can be reached Honorable Sam A. Lindsay, U.S. Dis- at Emmanuel.Obi@weil.com.
Honorable Sam A. Lindsay
By Mary Blake Meadows
As the youngest of nine children in a bluecollar Dallas family, Mike Gruber never anticipated being able to go to college, much less aspire to a successful legal career and a lifetime of community service. As a child, one of the few places his entire family could afford to visit together was the Dallas Zoo, he recalls. Years later, he participated in the effort to successfully privatize the Dallas ZooG. Michael Gruber logical Society, and now serves as its incoming Chairman of the Board. “I thought my life was going to be painting cars and working as a mechanic. I never dreamed I’d have the kind of opportunities that I’ve experienced. The only difference in how our lives develop is the opportunities we’re
continued on page 10
Income Tax Considerations in Divorce by Jerri L. Hammer and Janet E. Stigent-Burns
General Filing Considerations
Governing Rules. Federal tax law respects the characterization of property and income under relevant state law. As such, the Texas Family Code is a necessary tool in the characterizing process. Federal tax law also acknowledges that marital agreements can serve to modify characterization. The validity of such agreements may serve to affect the tax reporting of transactions by the parties. Below are some general rules regarding tax effects of divorce. There are many more, and care must be taken in analyzing the tax implications of divorce. Modification of Community Property Law Application. The IRS has indicated that if certain conditions are met, the general rules for reporting one-half of all community property activity will not apply if: 1. The spouses lived apart for the entire year; 2. The spouses do not file a joint income tax return; 3. Either or both spouses have earned income for the year that is community income; and 4. The spouses did not transfer, directly or indirectly, earned income during the year. This does not include child support payments. The results of this modification are that each spouse reports all of their earned income. Furthermore, each spouse would report onehalf of other community income, such as interest, dividends, etc. Effect of Partition Arrangements on Tax Returns. In both pre-marital and post-marital agreements, earnings can be partitioned to a spouse. This would have the effect of rechar-
Inside 5 Estate Planning Considerations in Divorce 7 Parenting Facilitation: When Parents Don’t Play Well Together 9 Wiretapping, GPS Tracking and Eavesdropping
given, and I’ve been very fortunate to be able to give back.” This personal commitment to improve the lives of others has resulted in Mike being selected as the 2012 Justinian Award recipient, presented by the Dallas Lawyers Auxiliary to a member of the Dallas Bar Association in recognition of volunteer efforts benefitting the community. Mike’s opportunities began with the encouragement of Nancy Solana, his civics teacher during his senior year at Thomas Jefferson High School. Although he was enrolled in the school’s vocational education program for automotive mechanics, and spent his afternoons and evenings fixing wrecks and painting cars to gain experience and help support himself, Mike was inspired by classroom discussions about government and the law. “I loved the class and the challenge of think-
acterizing the income so that it does not follow the normal community property reporting rules. Although a marital agreement may be in place, this does not prevent the spouses from filing a joint return. If the partition agreement contains provisions regarding allocation of the tax burden, this provision should be provided to the tax preparer so that proper allocation can be made.
Tax Ramifications of Typical Marital Assets
Marital Residence. Internal Revenue Code section 121 allows for taxpayers to exclude up to $250,000 of gain from the sale of a residence (or up to $500,000 for joint filers) if certain requirements are met. Generally a taxpayer must meet an ownership and use test: 1. The taxpayer must have owned the residence for at least 2 years; and 2. The taxpayer has lived in the home as their primary residence for at least 2 years out of the last 5 years. If the anticipated gain from the sale of the residence is expected to exceed $250,000, care should be taken in considering whether the house is awarded to one spouse or jointly for the selling process. Retirement Funds—Early Distributions. Generally there is a 10 percent penalty for early withdrawal of retirement funds before the age of 59½. However, there is a specific exception for distributions from qualified plans if required by a divorce decree or separation agreement.
Property Held Within Entities
Partnerships. Because partnerships are “a pass-through entity” distributions may or may CONTINUED ON PAGE 8
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
April Events
APRIL 13- NORTH DALLAS** Noon
A pri l 2012 Visit www.dallasbar.org for updates on Friday Clinics and other CLEs. developing your practice and more. (MCLE 7.00)*. RSVP to ahernandez@dallasbar.org.
FRIDAY CLINICS
“Recent Developments in Eminent Domain Law – Texas Senate Bill 18,” Mark D. Smith. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Griffith Nixon Davison P.C. RSVP to kzack@dallasbar.org.
Noon
APRIL 20 -BELO Noon
“Wills and Living Trusts – Useful Clauses and Forms, New Laws and a Touch of Taxes,” James Roberts. (MCLE 1.00)* RSVP to kzack@dallasbar.org
MONDAY, APRIL 2
MONDAY, APRIL 9 Noon
Real Property Law Section “Title Insurance Related Legislation,” Peter Graf. (Ethics 1.00)*
DAYL Lawyers Against Domestic Violence Committee
Noon
Tax Section “International Tax Developments – Repatriation Legislation and New Reporting Requirements,” Kyle Bibb. (MCLE 1.00)* Peer Assistance Committee
TUESDAY, APRIL 3 Noon
Corporate Counsel Section “I Thought You Were A Lawyer! Erosion of the Attorney/Client Privilege for In-House Counsel,” W. Mark Bennett. (Ethics 1.00)* Government Law Section “Overview of the U.S. Attorney’s Office for the Northern District of Texas,” Sarah R. Saldaña. (MCLE 1.00)* Tort and Insurance Practice Section “Texas Trial Legend Honorees Panel Discussion” Royal Ferguson, Randy Johnston, Carmen Mitchell, Dick Sayles and Paula Sweeney. (MCLE 1.50)*
5:30 p.m. Bar None Auditions. Annual variety show in June includes skits and songs poking fun at lawyers, the law and current events, and benefits the Sarah T. Hughes Diversity Scholarships at SMU Dedman School of Law. For more information, contact mhardwick@shacklaw.net.
TUESDAY, APRIL 10 Noon
Business Litigation Section “The Law of Minority Shareholder Oppression in Texas,” Ladd Hirsch. (MCLE 1.00)*
Mergers and Acquisitions Section “Annual Nugget-Palooza,” Mary Korby, Gemma Descoteaux and Byron Egan. (MCLE 1.00)*
DAYL Solo & Small Firm Committee
6:00 p.m. Home Project Committee
WEDNESDAY, APRIL 11
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group 11:30 a.m. Walk Through House Committee Noon
Alternative Dispute Resolution Section “Settlement Decision Making and Mediation Challenges,” Randall Kiser. (MCLE 1.00)*
Family Law Section Topic Not Yet Available (MCLE 1.00)*
Summer Law Intern Program Committee
Solo & Small Firm Section “What Every Attorney Should Know About Office Leases,” Marcy C. Helfand. (MCLE 1.00)*
DAYL Ask-A-Lawyer Committee
Juvenile Justice Committee
Public Forum Committee
DAYL Judiciary Committee
5:30 p.m. Tort & Insurance Practice Section at The Westin Galleria, Dallas “Seminar on: Insurance Settlements, Civility in Litigation and The New Consolidated Insurance Program,” Quentin Brodgon, Windle Turley, Ted Turner and David S. White. (Ethics 0.75; MCLE 2.00)*
6:00 p.m. DAYL Board of Directors Meeting
WEDNESDAY, APRIL 4 Noon
Employee Benefits & Executive Compensation Section “Current Developments in Employee Plans Voluntary Compliance,” George C. Patterson. (MCLE 1.00)*
5:00 p.m. Bankruptcy & Commercial Law Section “Issues and Challenges in Real Estate Cramdown Confirmation Cases,” Davor Rukavina and Joseph J. Wielebinski. (MCLE 1.00)*
11:30 a.m. DAYL Lawyers Serving Children Committee
DAYL Foundation Board Meeting Christian Lawyers Fellowship
Judiciary Committee
DAYL Freedom Run Committee
6:00 p.m. J.L. Turner Legal Association
Construction Law Section “Ethics For Government Contractors,” Eileen Youens. (Ethics 1.00)*
DBA Offices Closed for Good Friday
Law in the Schools and Community Committee
St. Thomas More Society of Dallas
FRIDAY, APRIL 13
FRIDAY, APRIL 6
THURSDAY, APRIL 12 CLE Committee
THURSDAY, APRIL 5
Trial Skills Section Topic Not Yet Available, Tom Melsheimer, Cynthia O’Keeffe and Patrick Sweeten (MCLE 1.00)*
MONDAY, APRIL 16
9:00 a.m. Dallas Minority Attorney Program Learn about law practice management,
9:30 a.m. DBA Sporting Clays Shoot At Elm Fork Shooting Range, 10751 Luna Rd, Dallas 75220. Check-in: 9:00 a.m.; Competition starts at 9:30 a.m. $150 per person (includes snacks and lunch). RSVP to rthornton@dallasbar. org.
MONDAY, APRIL 23 Noon
Computer Law Section “The Evolving Computer Fraud and Abuse Act: An Overview and Update of Recent Activity,” Shawn E. Tuma (MCLE 1.00)*
Securities Section “Corporate Governance Issues in Securities Litigation,” Sheryl Hopkins and Stephen Grace. (MCLE 1.00)* Golf Tournament Committee
Noon
Labor & Employment Section Topic Not Yet Available (MCLE 1.00)*
DAYL Criminal Bar Involvement
9:00 a.m. DVAP Family Law Nuts & Bolts Video CLE (MCLE 6.00; Ethics 2.0)* for information contact perkinsa@lanwt.org
TUESDAY, APRIL 17 Noon
Antitrust & Trade Regulation Section “Search Warrants and Dawn Raids – How to Respond To A Visit From Government Agents,” Kathleen Beasley. (MCLE 1.00)*
Franchise & Distribution Law Section Topic Not Yet Available (MCLE 1.00)*
International Law Section “Legal Ethics in International Practice,”Martin Lutz. (Ethics 1.00)*
DAYL Elder Law Committee
DAYL Animal Welfare Committee
WEDNESDAY, APRIL 18 Noon
Energy Law Section Topic Not Yet Available (MCLE 1.00)*
Health Law Section “Regulation of Marketing for Pharma and Device Companies,” Aaron Davidson. (MCLE 1.00)*
Law Day Committee
Pro Bono Activities Committee
5:15 p.m. LegalLine – Volunteers welcome. Second floor Belo.
5:15 p.m. LegalLine – Volunteers welcome. Second floor Belo.
Noon
6:30 p.m. DAYL Environmental Awareness Committee Meeting
Noon
Lawyer Referral Service Committee
Friday Clinic – North Dallas** “Recent Developments in Eminent Domain Law – Texas Senate Bill 18,” Mark D. Smith. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Griffith Nixon Davison P.C. RSVP to kzack@dallasbar.org.
SATURDAY, APRIL 21
THURSDAY, APRIL 19 Noon
Appellate Law Section “Finding the One Thing That Wins the Appeal,” Professor William V. Dorsaneo, III, Samara Kline, and Brent Rosenthal; moderator: Robert Gilbreath. (MCLE 1.00)*
Minority Participation Committee
Christian Legal Society
UPL Subcommittee
TUESDAY, APRIL 24 Noon
Probate, Trust & Estate Section “Federal Tax Law Update,” Prof. Stanley Johanson. (MCLE 1.00)*
DAYL Aid to the Homeless Committee
4:00 p.m. Senior Lawyers Committee 6:00 p.m. Dallas Hispanic Bar Association Meeting
WEDNESDAY, APRIL 25
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group 11:15 a.m. Justinian Awards Luncheon honoring G. Michael Gruber. For reservations, contact Tina Gwinn at 214-526-9828 or tina@gwinn.net. Noon
Sports & Entertainment Law Section “Want to Write a Blockbuster Novel? Start With a Blockbuster Brief,” Robert Dugoni. (MCLE 1.00)*
Legal Ethics Committee
DVAP New Lawyers Luncheon. For more information contact reed-brownc@lanwt.org.
DAYL Equal Access to Justice Committee
DVAP Elder Law Clinic “Elder Exploitation and What a Civil Attorney May Need To Know,” Donna Strittmatter and Amy Croft. (MCLE 1.50)* RSVP to reed-brownc@lanwt. org.
THURSDAY, APRIL 26 Noon
Collaborative Law Section Topic Not Yet Available (MCLE 1.00)*
Criminal Law Section “Common Mistakes by Criminal Lawyers in Immigration Matters,” Paul Zoltan (MCLE 1.00)*
Environmental Law Section “Discussion of National Solid Wastes Management Assoc., et al. v. City of Dallas, et al. (N.D. 2012),” James Harris. (MCLE 1.00)*
Dallas Gay & Lesbian Bar Association
3:30 p.m. Board of Directors Meeting 5:30 p.m. State of the County Forum County Judge Clay Jenkins and Sheriff Lupe Valdez. Open to the public. RSVP to sevans@ dallasbar.org
FRIDAY, APRIL 20
FRIDAY, APRIL 27 Noon
Intellectual Property Law Section Topic Not Yet Available (MCLE 1.00)*
Noon
DAYL CLE Committee
8:00 a.m. Federal Bar Association
Friday Clinic – Belo “Wills and Living Trusts – Useful Clauses and Forms, New Laws and a Touch of Taxes,” James V. Roberts. (MCLE 1.00)* RSVP to kzack@ dallasbar.org Transition to Law Practice Committee
Mentoring Committee DAYL Lunch & Learn. For more information contact: cherieh@dayl.com.
MONDAY, APRIL 30 11:30 a.m. Dallas Democratic Forum Noon
DAYL Solo & Small Firm Committee
Speak to Dallas ISD Students! Speak to Dallas ISD students during May 2012 in celebration of Law Week. DISD schools are hosting various Career Days and speakers are requested. Speakers are encouraged to address the audience about Law Day, the rule of law or similar topics. The time commitments and class sizes vary. Sign-up by Friday, April 20 to Amy Smith at asmith@dallasbar.org.
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.
April 2 0 1 2
Focus
D al l as Bar A ssoci ati on l Headnotes 3
Family/Probate, Trusts & Estates
Risks Involved With Witnessing Documents By Donna J. Yarborough
Imagine a setting where you have gone to visit a friend or a loved one in a hospital or nursing home. While you are there, someone you do not know approaches you and asks if you would be a witness to legal documents that one of the patients or residents is going to execute. Perhaps it is a new will that is being signed or a new power of attorney . . . any kind of document that requires someone to witness the signing and attest to the activities that are taking place. Maybe the person who requests your help looks very nice or is dressed very professionally, and you want to be of help to them because they appear to need assistance. So you pause for a second and then, to be a Good Samaritan, you agree to witness the legal document. What you do not know is that you may have hurt yourself in the process. If you sign as a witness in a hospital or nursing home setting, in many instances it can result in you being pulled into a law-
suit. It may be years after you have signed as a witness. When the legitimacy of that document is brought into question, you will be a crucial witness to what occurred during the execution ceremony. You might be called and interviewed by attorneys, subpoenaed for a deposition or trial, all at your own expense, just to give testimony about what happened that day. Perhaps your memory is not too keen on what occurred, but the attorney examining you will have little sympathy, and you will be required to go through grueling or perhaps even embarrassing questioning. Being a Good Samaritan and signing as a witness may require you to miss days of work to sit at the courthouse waiting to testify. You certainly could not have imagined such an outcome when you agreed to help someone out. The problem with the execution of documents in the hospital or nursing home setting is that the “index of suspicion” rises sharply in those settings, particularly with regard to whether the person signing the
documents knew what was happening. First, the person may be unable to understand either the legal effect of the documents they are signing or the actual content of the documents because of an illness or being under the influence of medications. Without knowing the person or all of the details of the situation you do not know whether the person has testamentary capacity to execute a will, contractual capacity to revoke a previous power of attorney or execute a new one, or why the family members or friends are presenting such documents to them in an unorthodox setting. If you are unfortunate enough to be pulled into a lawsuit regarding the documents you signed as a Good Samaritan, some of the areas that you could be required to testify about include the formalities of what was done, whether you were put under oath, whether you signed the notary book, whether the document was read aloud or whether the sick or elderly person even expressed any interest in signing a legal document that day. You also will be questioned about how
the person looked, how they acted, what they said, what others said to them, who was in the room or any of a myriad of other questions about the actual facts of what occurred. Again, if your memory is not very sharp, you could find your deposition or trial appearance to be very uncomfortable. You will probably also be asked about the other people in the room, what they were doing, what they said, whether they touched the person’s hand or “helped” them to sign and numerous other inquiries that the attorneys will use to try to show either that the person executing the documents was being improperly influenced or that he was not acting voluntarily. When balancing all of the things that could lie ahead for you as a witness to legal documents in a hospital or nursing home setting, you would probably be wise to decline becoming involved in that HN exercise. Donna J. Yarborough is a solo practitioner who can be contacted at djy-law.com.
COMMUNITIES FOUNDATION OF TEXAS & SMU DEDMAN SCHOOL OF LAW PROFESSIONAL SEMINAR SERIES 2012
May 8, 2012
2012 Trends and Implications in Estate and Charitable Planning featuring:
Jonathan Ackerman Join us for a lively discussion as Jonathan Ackerman highlights election year developments in Washington and the real world and explores their implications for charitable and estate planning. He will address charitable planning strategies in turbulent markets and will provide case studies, analysis, and recommendations. Sponsored by:
Communities Foundation of Texas Mabel Peters Caruth Center • 5500 Caruth Haven Lane $75/person registration fee • Seating is limited Continental Breakfast - 7:30 a.m. • Program - 8 a.m. to 11:15 a.m. CLE/CPE/CFP 3-hour credit pending
To register, visit www.cftexas.org, or call (214) 750-4213
Jonathan Ackerman For the past 25 years, Jonathan Ackerman has developed considerable experience in the areas of charitable gift planning, taxexempt organizations, charitable solicitation laws, federal taxation, estate planning and probate, and IRS practice and procedure. Jonathan represents donors and tax-exempt organizations on a national basis. His advice is often sought by families who desire to integrate philanthropy into their financial and estate planning and he also represents these clients regarding legislative and regulatory tax matters at all levels of government.
4 He a d n o t e s l D a l l a s B a r A s s o ciation
A pri l 2012
Headnotes
President's Column
The Art of Collaboration By Paul K. Stafford
The practice of law is as much statute as it is style, precision as it is persuasion, contention as it is collaboration, and science as it is art. But, what is “art”? When asked, a fifth grader described art as “a way to express what cannot be explained”. An artist described it as “the convergence of all aspects of universal experience”. A prominent lawyer described it as “a unique, distinct creation reflecting the thoughts and imagination of its creator“, and another described it as “a means by which we search for what we are connected to and express what is often only in the depths of our souls“. Consider the art of that which surrounds us daily. Each April, we witness flora announce the annual arrival of Spring. Flora flourishes as well - not just the flowers, but the street which traverses the nineteen contiguous blocks of our city known as the Dallas Arts District. The Arts District is the largest urban arts district in the United States and is the subject of national and international interest and acclaim for its urban integration, innovative architectural designs, renowned art collections, and unmatched artistic performances. On the edge of the Arts District sits a stately neo-classical style mansion known as the Belo Mansion, that our prominent Bar has the privilege to call its home. Every day, the Bar’s dedicated staff and members utilize this beautiful facility to conduct the business of the Bar, provide legal education to DBA members, and to serve the community. In addition, the Bar continuously collaborates internally and with other groups to provide excellent programming and to enhance the quality of services to its members and to the community. Thus far in 2012 alone, the DBA has opened its home and its Annual Martin Luther King, Jr. Justice Award Luncheon to the Dallas Black Dance Theater Junior Performance Ensemble, the Carter High School Choir, and the Dallas ISD student winner of the Gardere MLK Oratorical Contest. At the DBA Inaugural in January, the DBA announced a record sum ($800,000) raised through its Equal Access to Justice Campaign, and continues to collaborate with Legal Aid of NorthWest Texas to raise funds and provide legal counsel to those less fortunate members of our community in need of pro bono legal services. In February, the DBA collaborated with ALPFA (the Association of Latino Professionals in Finance and Accounting) and Deloitte to conduct an informative seminar on “Regulatory Considerations in CrossBorder Business”, and will host another program with ALPFA in conjunction with PriceWaterhouse Coopers on April 19 covering “Transitioning Closely-Held Corporations”. In March, the DBA (in collaboration with high schools, the local judiciary, and countless volunteer judges) hosted the annual Texas High School Mock
Trial Competition State Championship. Also in March, the DBA’s Public Forum Committee hosted two U.S. Senatorial Candidate presentations intended to inform our members and the public. The DBA launched its Trial Academy in March as well, and the Academy is off to a great start due to the collaborative efforts of the DBA, the sister bars, the judiciary, and the academic community. The collaborative efforts of the Dallas Bar continue in April with “Arts Month” and with the Marshall Forum. Arts Month is a collaborative effort between The Dallas Arts District and the DBA to promote awareness of the arts as well as awareness of venues, programming, and performances within The Dallas Arts District. DBA members will be encouraged to learn about the Arts District and to participate in the activities within the Arts District. In addition, members of the arts community and patrons of the arts will be invited to the Belo Mansion for the Law Day Luncheon on May 4, 2012, which will feature, the Honorable Sam A. Lindsay, as well as the annual art contest by Dallas ISD students. For additional information on the activities in the arts district, please visit www.thedallasartsdistrict.com. The German Marshall Fund is a non profit transatlantic entity dedicated to promoting transatlantic relations and collaboration in the spirit of the post-World War II Marshall Plan. Each year, GMF hosts a Marshall Forum, which is an annual gathering of Marshall fellows and thought –leaders from the United States, Europe, and elsewhere. Marshall Forum participants discuss a variety of issues salient to promoting transatlantic communication and cooperation. This year, Dallas has the honor of hosting the Marshall Forum, April 26-29th, 2012. The theme is “The New Economy, A New Reality”, and GMF is working with a variety of local organizations including the World Affairs Council of Dallas Fort Worth, the Dallas Committee on Foreign Relations, and the Dallas Bar Association. Specifically, the DBA’s Business Litigation Section and International Law Section, as well as the Public Forum Committee will lend their expertise to various panels and presentations throughout the Forum. In addition, several DBA members are Marshall Memorial Fellows and will be participating in the Forum. For additional information, please visit www.gmfus.org. The collaborative spirit of the Dallas Bar Association is made evident through its programming and initiatives, and the art of that collaborative effort will be on continuous display in 2012 HN and beyond.
CHECK OUT WHAT’S GOING ON IN THE ARTS DISTRICT! www.thedallasartsdistrict.org
• DBA Night at the Crow Collection of Asian Art – April 24 Start with happy hour at the Belo 5:30; tour is at 6:30 p.m. rsvp rthornton@dallasbar.org • Dallas Art Fair – April 12-15 www.dallasartfair.com • DBA Members get 15% off Tigers Be Still at the Wyly 4/1-5/13 Use DALLAS BAR promo code to purchase tickets at http://tickets.attpac.org/single/EventDetail.aspx?p=24304 • PublicArtWalk (See the art and buildings in the Arts District) http://www.publicartwalkdallas.org/en/index.shtml
JOIN THE 2012 DBA 100 CLUB Membership is Now Open! The Dallas Bar Association 100 Club is a special membership recognition category that reflects a commitment to the advancement of the legal profession and the betterment of the community. To become a member of the DBA 100 Club, every attorney in your Dallas office must be a member of the Dallas Bar Association. Firms, government agencies, law schools with two or more lawyers as well as corporate legal departments that become a DBA 100 Club member will be listed in Headnotes and in the 2013 DBA Pictorial Directory, receive a Certificate of Appreciation as well as recognition at our Annual Meeting in November.
This is the perfect time to encourage your newly hired attorneys to join the DBA and take advantage of our many member benefits—such as 400 FREE CLE programs offered each year, 29 substantive law Sections, numerous networking opportunities and community projects, plus many other member benefits as well as the opportunity to qualify for the DBA 100 Club. The DBA 100 Club is open for renewal annually to every firm. We do not automatically renew a firm’s membership due to changes in firm rosters from year to year. Please submit a request to our Membership Department for consideration. To become a 2012 DBA 100 Club member, please submit your request via email including a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and once approved, your firm will be added to the 2012 DBA 100 Club membership list! If we receive your list by May 4th, your firm will be included in the June, July and August DBA 100 Club listing in our Headnotes publication.
Play Golf and Support Pro Bono
Save the date for the 20th Annual Pro Bono Golf Classic, benefitting the Dallas Volunteer Attorney Program. Thursday, May 3, 2012 at Brookhaven Country Club Entertain clients with a golf game, while helping a family in need. Registration includes lunch, dinner and refreshments on the course. The tournament is a 4-person scramble format — limited to the first 128 golfers. Lots of prizes, plus great goody bags, raffle and other fun games! Check-in and use of the practice range begins at 11 a.m. and shotgun start is at 1:30 p.m. A reception and awards dinner will follow the tournament at 5:30 p.m. For more information, visit www.dallasbar.org. For more information on sponsorships, contact Rhonda Thornton at rthornton@dallasbar.org.
Published by: DALLAS BAR ASSOCIATION 2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Paul K. Stafford President-Elect: Sally Crawford First Vice President: Scott McElhaney Second Vice President: Brad C. Weber Secretary-Treasurer: Shonn Brown Immediate Past President: Barry Sorrels Directors: Jerry Alexander (Chair), Kim Askew (At-Large), Chip Brooker (President, Dallas Association of Young Lawyers), Wm. Frank Carroll, Victor Corpuz (President, Dallas Asian American Bar Association), Rob Crain, Laura Benitez Geisler, Lori Hayward (President, J.L. Turner Legal Association), Hon. Martin Hoffman, Michael K. Hurst, Michele Wong Krause, Karen McCloud, Christina McCracken (At-Large), Hon. Kenneth Molberg ( Judicial At-Large), Carlos Morales (President, Dallas His-panic Bar Association), Mary L. Scott, Diane M. Sumoski, Robert L. Tobey and Aaron Tobin (At-Large). Advisory Directors: Angelina LaPenotiere (PresidentElect, Dallas Hispanic Bar Association), Mandy Price (President-Elect, J.L. Turner Legal Association), Sarah Rogers (President-Elect, Dallas Association of Young Lawyers) and Jennifer Wang (President-Elect, Dallas Asian American Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Douglas S. Lang Directors, State Bar of Texas: Andy Payne, Christina Melton Crain, Beverly Bell Godbey, Ike Vanden Eykel, Frank E. Stevenson, II HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Advertising: Karla Howes PUBLICATIONS COMMITTEE Co-Chairs: Vincent J. Allen and Lea Dearing Vice-Chairs: Natalie L. Arbaugh and Dawn Fowler Members: Timothy G. Ackermann, Kevin Afghani, Favad Bajaria, Matthew Baker, Jody Bishop, Lisa Blackburn, Jason Bloom, Kandice Bridges, William Brown, Lance Caughfield, Sally Crawford, James Crewse, Joel Crouch, G. Edel Cuadra, David Dodds, Adam Dougherty, Sabeen Faheem, Enrique Flores, Megan George, Susan Halpern, Zachary Hoard, James Holbrook, Ezra Hood, Mary Louise Hopson, Dyan House, Michael Hurst, Michelle Jacobs, Jessica Janicek, Taylor Jerri, Soji John, Douglas Johnson, Adam Kielich, Michelle Koledi, Susan Kravik, Scott McElhaney, Nick Nelson, Jenna Page, Kirk Pittard, Laura Anne Pohli, Robert Ramage, Jared Slade, Thad Spalding, Paul K. Stafford, Jeanette Stecker, John C. Stevenson, Scott Stolley, Michael Sukenik, Robert Tobey, Peter S. Vogel, Suzanne R. Westerheim and B. Joyce Yeager DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Coordinator: Rhonda Thornton Executive Assistant: Michelle Dilda Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Amy E. Smith Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Lakeshia McMillan, Andrew Musquiz, Tina Douglas Program Assistant: Patsy Quinn Copyright Dallas Bar Association 2012. 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 Execu-tive 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. Fea-ture articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informa-tional and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
April 2 0 1 2
Focus
D al l as Bar A ssoci ati on l Headnotes 5
Family/Probate, Trusts & Estates
Estate Planning Considerations in Divorce by Carol P. Dabner and Laurel Arnold Clement
As a marriage ends, it is critical to address spouses’ estate planning needs. The basic estate planning needs are: (1) Will; (2) Durable Power of Attorney for finances; (3) Medical Power of Attorney; (4) Advanced Directive; (5) HIPAA Release; and (6) Declaration of Guardianship. This article is too brief to go into each of these needs in great detail but will address the most critical needs of each phase of divorce—pre-divorce, mid-divorce and post-divorce. The first phase is pre-divorce. The spouses have determined to dissolve the marriage but have not implemented formal legal proceedings. If the couple is conciliatory, all estate planning needs/issues can be addressed jointly. Although these needs could be addressed jointly, it is not recommended because of the potential conflict. Each individual will need to address and/or protect his/her estate planning needs. In short, certain steps need to be taken immediately to protect his/her respective interests in the event there is a death or temporary or permanent incapacitating injury or illness pre-final divorce. First, both spouses should determine who will serve as executor under their respective Wills and how they will dispose of their separate and community property (and create Wills if they have not already). Next, it is critical
to select an individual to make health care decisions through a Medical Power of Attorney (MPOA), because without one a spouse generally may make health care decisions. Financial accounts should also be changed to limit access by the spouse and/or grant access to third parties in the event one becomes incapacitated. It may also be advisable to have a Declaration of Guardianship, which nominates a guardian in the event of incapacity. The Declaration places the nominated person before all others, including the spouse, who would otherwise have highest priority. The second phase is mid-divorce, which is after legal proceedings have been implemented, but before finalization of the divorce. The same considerations discussed above apply; however, the spouses’ ability to make changes may be limited by the Court. For instance, while there is no automatic restriction concerning the making of or amending a Will during divorce, such restrictions may be placed in court orders. Court orders may also impose a restriction/prohibition on the changing or amending of beneficiary designations on a life insurance policy on the life of either party or the life of the parties’ children. If they have not already, an MPOA should be created or amended during the mid-divorce phase. A surrogate decision-maker has authority to make health care decisions for a person who is incapacitated or cannot communicate unless an MPOA exists. A spouse has first priority as the surrogate decision-maker, so it is critical to have a
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named agent under the MPOA by this phase. Depending on the circumstances, a probate can be cheaper than a divorce, so make sure your client has the necessary agent to make healthcare decisions should a problem or accident occur during this phase. Individuals should also address minor and/or incapacitated distributees under the Will by creating testamentary trusts. Although a parent is the natural guardian of the person for a minor child, the court will appoint a guardian of the estate to manage the child’s property. At this stage, the Durable Power of Attorney (DPOA) must also be addressed. Temporary orders in a divorce may or may not protect a party from the other party’s or his/her own incapacity, and a DPOA can be most effective for this purpose. The Family Code provides for payment of lifetime alimony, called “spousal maintenance” in Texas, for substantial physical or mental disability of a spouse before finalization of divorce. If the recipient of lifetime spousal maintenance becomes incapacitated, the recipient would need a guardian of the estate to manage his/her funds. Future incapacity can be addressed through a Declaration of Guardianship or DPOA.
It is not legally necessary to amend the Declaration of Guardianship during divorce. Although under a Declaration the nominee has first priority over any other proposed guardian, if a spouse is the proposed guardian, he/she would likely be disqualified because his/her interest is adverse to the proposed ward. The post-divorce phase begins when a divorce is final. If they have not already, the former spouse should be removed as executor or beneficiary under the Will. The beneficiary designations on any life insurance policies should also be altered to reflect any present desires or final decrees. All powers of attorney should be reevaluated to ensure that agents reflect the party’s choice, and notice sent to all third-party providers. A party should also complete a notice of declination of appointment/agent to prevent the former spouse from seeking to act. Whenever a person enters the predivorce phase, he/she should coordinate with an estate planning attorney to address all the necessary and imminent estate HN planning considerations. Carol P. Dabner and Laurel Arnold Clement are attorneys at Underwood Perkins, P.C. They can be reached at cdabner@ uplawtx.com and lclement@uplawtx.com, respectively.
Need someone to help take on the ‘unwanted’ office work? Will your busy office need some quality help this summer? Let our Summer Law Intern Program help you fill the position – Part-time or Full-time for either 4-wks or 8wks – the choice is yours! We have goal-oriented DISD high school seniors interested in gaining law firm experience by assisting you for a nominal fee. Employers can also interview and select these goal-oriented students from a large pool - expect the best.
Program: June 11-Aug. 3. For more information, please contact Amy Smith at asmith@dallasbar.org or (214) 220-7484 or visit our website www.dallasbar.org/summerlawinternprogram
6 H e a d n o t e s l D a l l a s B a r A s s o ciation
A pri l 2012
Agreed Appeals from Interlocutory Orders by Russell J. DePalma, Esq.
In the 2011 Texas Legislative session, the Legislature enacted, and Governor Rick Perry signed, House Bill 274. In the bill, the Legislature created new procedures intended to streamline the litigation process and lower costs. The bill also revised a tool for parties to use the appeals process to hasten the conclusion of their case: the Appeal of Controlling Question of Law under Civil Practice and Remedies Code Section 51.014(d). This option has existed in Texas since 2001, but has been of little use. Only about 80 appellate decisions in Texas since 2001 even mention the section, and many of those do so only to explain why the parties failed to
meet its most stringent prerequisite-party agreement. As originally enacted, the controlling question of law appeal allowed a district or county court to certify one of its orders for interlocutory appeal if: (1) the parties agreed that the order “involves a controlling question of law as to which there is a substantial ground for difference of opinion” such that (2) “an immediate appeal from the order may materially advance the ultimate determination of the litigation,” and, (3) the parties agreed to the order allowing the appeal. Effective for cases filed on or after September 1, 2011, Section 51.014(d) now allows any trial court, either on
Elder Exploitation and What a Civil Attorney May Need to Know April 25, 2012, noon at Belo. MCLE 1.50 Speakers: Donna Strittmatter and Amy Croft Presented by DVAP and the DBA Probate, Trust & Estate Section For registration and more information contact reed-brownc@lanwt.org.
the motion of a party or its own initiative, to certify an interlocutory order for appeal if the order concerns a “controlling question of law for which there is a substantial ground for difference of opinion,” and resolving the issue on appeal “may materially advance the ultimate determination.” The necessity for the parties’ agreement to both availability and validity of the appeal has been eliminated--one party can no longer block an appeal by refusing to agree. Actions under the Family Code are exempt. The courts of appeals now have a mandatory gatekeeper function in the process—newly enacted section 51.014(f) requires them to accept or deny the appeal. To invoke the appellate court’s jurisdiction, the appealing party must file an application for interlocutory appeal in the appellate court by the 15th day after the trial court signs the appealable order. The appellant must also explain “why an appeal is warranted under Subsection (d).” Thus, the appellant must show in a pleading akin to a petition for review that the order determines a controlling question of law, for which there is substantial ground for difference of opinion and resolution of the question can materially advance the determination of the case. Appeals accepted under section 51.014(f) are accelerated appeals under the Texas Rules of Appellate Procedure. There is no automatic stay of the trial court proceedings although Section 51.014(e) allows the parties to agree to a stay or seek one from the Court of Appeals. The substantive model for the original and current versions of Section 51.014(d)-(f) is 28 U.S.C. Section 1292(b), which contains the same
three legal prerequisites as section 51.014(d). In the past three years, the Fifth Circuit has permitted about 70% of the requested appeals under section 1292(b) (35 of 51 from 2009 through August 2011). Thus, Texas courts could look to federal court precedents to determine whether to allow appeals. This means practitioners should bear the following in mind: (1) a “controlling question of law” can mean outcome-determinative on the instant case or potentially precedential for many cases; (2) “substantial ground” for differing opinions exists where there is an existing conflict among courts of appeals, or the district court’s decision is contrary to precedent, if novel issues are presented or if the question concerns a complicated issue of non-Texas law; and (3) “materially advancing” the case should mean the interlocutory appeal will speed up trial court proceedings. See Ryan v. Flowserve Corp., 444 F. Supp 718, 723 (N.D. Tex. 2006) (citing references and applying the criteria). Moreover, all possible reasons for overturning the trial court order should be presented in the court of appeals. This is because, like 28 U.S.C. section 1292(b), CPRC section 51.014(d) allows review of an order not just the controlling legal issue. See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996). The revision of Section 51.014(d) and enactment of Section 51.014(f) now allow trial lawyers to seek meaningful interlocutory appeal of important trial court orders—an improved tool to streamline the litigation pro HN cess. Russell J. DePalma is a partner at FSB FisherBroyles, LLP, where he practices business litigation and appellate law. He can be reached at depalma@fsblegal.com.
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A pril 2 0 1 2
Focus
D al l as Bar A ssoci ati on l Headnotes 7
Family/Probate, Trusts & Estates
Parenting Facilitation: When Parents Don’t Play Well Together by Peggy Pasquini and Dawn Fowler
Parenting Facilitation is the newest and often best option in a judge’s toolbox when faced with “War of the Roses” parents. Parenting Facilitation is a process in which high-conflict parents are ordered or agree to take the argument out of the courtroom in an attempt to achieve settlement of child-related issues with the help of a trained parenting facilitator. Although it is similar in many respects to its legal cousin, Parenting Coordination, there are substantial differences that are beyond the scope of this article. However, the most important differences are the qualifications and duties of the professionals and the inability of a parenting coordinator to testify in court. See Texas Family Code Sections 153.601 through 153.611 for specific information about these important tools. The Parenting Facilitation process is completely transparent. Everything discussed in facilitation sessions must be revealed to counsel for both parties. Additionally, unlike most forms of non-judicial conflict resolution, facilitators are authorized to testify in court upon the request of either party or the judge. An order appointing a parenting facilitator specifies the duties the facilitator undertakes in each case. These duties include (1) identifying disputed issues; (2) reducing misunderstandings; (3) clarifying priorities; (4) exploring possibilities for problem solving; (5) developing methods of collaboration in parenting; (6) understanding parenting plans and reaching agreements about
issues; (7) complying with the court’s order concerning conservatorship or possession of and access to the child; (8) implementing parenting plans; (9) obtaining training regarding problem solving, conflict management and parenting skills; and (10) settling disputes regarding parenting issues and reaching a proposed joint resolution or statement of intent regarding those issues. Additionally, a facilitator may be charged with monitoring compliance with court orders. A parenting facilitator may be appointed at any time during a suit relating to children, including divorce, modification or enforcement. The rights and duties of each parent, periods of access and possession, residency restrictions and allocation of costs for the children may all be discussed. Decisions, as they are made, are reported to the parties’ attorneys for proper drafting and filing with the court as applicable. Through this process, parents are allowed and encouraged to customize their solutions without the limitations that exist in a litigious trial environment. However, no agreements reached in facilitation divest the court of the exclusive jurisdiction to determine issues of conservatorship, support and possession of and access to the child. Additionally, the court may, and often does, appoint a parenting facilitator at the conclusion of a case to assist the parents going forward. Facilitation allows parents who do not communicate well to meet with the facilitator when decisions need to be made. Often these decisions include a change in a parent’s or a child’s schedule that necessitates adjustments in possession
schedules, decisions regarding schools, extracurricular activities, discipline or a myriad of other problems inherent when children are being raised in two separate households. Facilitators receive extensive training in methods and means to assist parents in communicating and reaching consensus in the best interest of their children. A facilitator must hold a license to practice in Texas as a social worker, licensed professional counselor, licensed marriage and family therapist, psychologist, or attorney. Additionally, the parenting facilitator must have completed at least 8 hours in family violence dynamics training provided by a family violence service provider; 40 classroom hours in dispute resolution training; 24 classroom hours of training in family dynamics, child development and family law; and 16 hours of training
in the laws governing parenting facilitation and the multiple styles and models of service. Although the facilitator must be trained in mediation, this process is not mediation, nor is it therapy. Facilitation is a means for the parents to actively participate in making decisions for their children without the necessity of acrimonious and often expensive litigation. Research has consistently shown that children can recover from a divorce, but continue to suffer when their parents continue to fight. Parenting Facilitation is a new approach to an age-old problem that is yielding posi HN tive results. Peggy Pasquini and Dawn Fowler are trained parenting facilitators and coordinators. They practice family law at Peggy Pasquini, PC, and Keane, Fowler & Donohue, respectively and may be reached at ppasquini@pasquinilaw.com and dfowler@kfd-law.com.
‘BAR NONE’ AUDITIONS Tuesday, April 3 ~ 5:30 to 7 p.m. ~ Belo Mansion
Auditions for Bar None XXVII will take place April 3 in the Hughes & Luce ballroom at the Belo! All who audition will be cast. The Bar None show, to be held at the Greer Garson Theater June 6-9, benefits the Sarah T. Hughes Diversity Scholarships. Questions? Contact Bar None’s Director, Martha Hardwick Hofmeister, at (214) 780-1400 or mhofmeister@shacklaw.net.
8 He a d n o t e s l D a l l a s B a r A s s o ciation
A pri l 2012
Credit Card Security in your Law Firm The term “PCI Compliance” generally elicits one of three responses—complete confusion, vague recognition or mild panic. You are not alone. From the moment the Payment Card Industry Security Standards Council rolled out these credit card regulations, attorneys have been struggling with how to understand their meaning and adhere to them.
What is PCI Compliance?
In 2006, the major credit card brands (Visa, Mastercard, Discover, American Express and JCB) formed a security council. The goals of the Security Council were to ensure the safety of cardholder data at all times and reduce credit card fraud by developing standardized regulations (Payment Card Data Security Standards or PCI-DSS), the entire credit card processing industry must follow. It applies to any business that processes, transmits or stores credit card data. (https://www.pcisecuritystandards.org/) The bottom line is if you accept credit card payments, you also accept the responsibility to protect sensitive card holder information.
Is it the Law?
The PCI-DSS, is not a federal law; however, several states have mandated compliance to many of the provisions. In 2007, Minnesota became one of the first states to adopt a set of enforceable standards which protect credit card data. Since then, Nevada,
Washington and Massachusetts have also adopted similar laws. Many other states are currently looking at similar legislation. There are several pieces of federal legislation that are under consideration such as the Data Accountability and Trust Act, Commercial Privacy Bill of Rights Act of 2011, and the Safe Data Act. In addition, these regulations are also enforced by the banks and by the card brands*.
How Does it Apply to My Law Firm?
Your day is already filled with mission critical tasks, so taking on compliance is not something you want to think about. It’s understandable. Perhaps your law firm only processes a few credit card transactions a month, you have a trusted staff, and you use a compliant gateway for your transactions. You’re credit card data is safe….right? PCI Compliance is actually comprised of several key pieces—how credit cards are processed, who you use as service providers and how you handle credit card information within the walls of your office. Think for a moment about how credit card data flows through your law firm. Do your clients pay online? Do they fax credit card authorization forms to your office? Are there copies of credit card numbers in client files? Those are just a few practical security points addressed by the Security Standards. The good news is that implementing
Sustaining Members of the Dallas Bar Association The DBA sincerely appreciates the support of its Sustaining Members whose financial contributions enhance the preservation of the historic Belo Mansion. As of February 2, 2012 Randolph D. Addison Addison Law Firm P.C. R. Dallas Addison, Jr. Addison Law Firm P.C. David Carlock Carlock-Gormley-Hight Timothy J. Clow Addison Law Firm P.C. Al Ellis Sommerman & Quesada, L.L.P. James J. Hartnett, Jr. The Hartnett Law Firm Kathleen E. Irvin Attorney at Law
Sawnie A. McEntire Beirne, Maynard & Parsons, L.L.P. Mike McKool, Jr. McKool Smith P.C. Tahira Khan Merritt Tahira Khan Merritt PLLC Nancy Arnole Nasher NorthPark Development Company Richard D. Pullman Kessler Collins, P.C. Michael L. Riddle Middleberg, Riddle & Gianna Scott R. Seideman The Seideman Law Firm
Justice Tom James
Daniel J. Sheehan, Jr. Daniel Sheehan & Associates, L.L.P.
Kristina N. Kastl Kastl Law, P.C.
Peter S. Vogel Gardere Wynne Sewell LLP
Matthew C. Martin Addison Law Firm P.C.
small changes can have a major impact on your security. There are guidelines in the PCI-DSS that address internet security and payment applications, and also ones that address how businesses handle credit card data on a physical level. Assessing your vulnerabilities is a great way to fix potential issues and educate your staff. According to the 2011 Data Breach Investigations Report by Verizon Business, 96 percent of breaches could have been prevented by fairly simple measures. Office security policies that define procedures for changing passwords, storing information, and disposing of credit card data can make the difference between compliance and non-compliance.
Why Now?
Until recently, most of the focus has been on major retailers that process in excess of 6 million Visa transactions per year. All merchants, regardless of credit card processing volume, must now comply with the regulations. Failure to meet requirements can result in security breaches, costly fines, and forensic audits. Accepting credit cards is a great way to offer a flexible payment option for your clients and improve your cash flow; consequently, this means handling sensitive information that is very desirable to criminals. By following the Payment Card Industry Data Security Standards (PCI-DSS) guidelines, you greatly reduce your vulnerability to a security breach. Most firms have found taking steps to become PCI Compliant is a productive, beneficial “house-keeping” exercise for their office.
Becoming PCI Compliant sends a strong message to your clients that you are doing due diligence in protecting their sensitive information. The PCI process can also create a greater level of awareness with your staff when they handle credit card information, limiting the potential for a security breach and ultimately reducing the overall liability to your law firm.
How Do I Become Compliant?
There are several steps every merchant must complete to validate PCI Compliance: • Identify Validation Type (this is based on how credit card transactions are processed) • Complete the SAQ (Self Assessment Questionnaire) • Provide evidence of a passing vulnerability scan, if necessary, from an approved vender on a quarterly basis. • Complete the Attestation of Compliance • Submit the SAQ/ Attestation of Compliance and evidence of a passing scan (if required) to acquirer. • Create comprehensive Security Policies and Procedures • https://www.pcisecuritystandards.org/merchants/how_to_be_compliant.php Regardless of how you choose to comply with PCI regulations, it is important to keep the ultimate goal in mind—protecting your clients and your law firm. By taking the time to evaluate the flow of cardholder data through your office and addressing security issues, you can achieve that goal. *Check with your merchant bank for additional deadlines
Income Tax Considerations in Divorce CONTINUED FROM PAGE 1
not be taxable events. In a divorce context, it may be possible to distribute partnership assets with no tax effect and thereby assist in the division of the marital estate. Assets distributed from partnerships will generally have a carryover tax basis to the partner receiving the distribution. S Corporations. S Corporations are also “pass-through entities” with transactions characterized similar to partnerships. However, distributions of property from S Corporations can produce very different results. In most situations, distributions of appreciated property will be treated as if the S Corporation sold the asset for fair market value thereby causing gain to be recognized.
Tax Attributes
Net operating losses are created when individual or business expenses exceed income. Generally net operating losses were allowed to be carried back 2 years and forward 20 years. If individuals or businesses have net operating losses that have not been carried back
to obtain a tax refund, then this asset should be considered in the overall division of marital assets. Additional tax attributes include capital loss carryover, passive loss carryover, at risk loss carryover, charitable contribution carryover, investment interest carryover, and AMT credit carryover.
Planning Considerations for Allocation of Tax Attributes
The Family Code allows partitioning of income (including retroactive allocations) in the year of divorce. This can provide for optimum tax planning and the ability to recharacterize income to be reported only by one spouse. In addition, it may eliminate the exchange of tax information for the year of divorce. The “value” of tax attributes can be considered in the overall division of the marital estate. Lastly, if various tax attributes can be traced to separate assets or funds, they may be allocated HN entirely to one spouse.
Jerri L. Hammer, JD, CPA and Janet E. Stigent-Burns, CPA, CVA, ABV, CFF are Partners at TravisWolff, LLP. They can be reached at jhammer@ traviswolff.com and jburns@traviswolff.com, respectively.
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A pril 2 0 1 2
Focus
D al l as Bar A ssoci ati on l Headnotes 9
Family/Probate, Trusts & Estates
Wiretapping, GPS Tracking and Eavesdropping by Tom Greenwald
The ready availability of GPS tracking devices and spyware cause some individuals to perceive their use as “legal” in family law cases. It is easy to empathize with those unable to resist the temptation of using these technologies to put to rest suspicions of a dishonest spouse. This article provides a brief overview of the law applicable to electronic surveillance in the context of family relations. It is crucial to understand the specific facts and the law before providing advice to a family law client concerning these matters. Though electronic surveillance has always been heavily regulated, the attacks of September 11 and new technologies triggered major revisions to the law. The Patriot Act, for instance, extended the applicability of the Federal Wiretap and Stored Com-
munications Acts to voicemails and emails. Similarly, the Federal Communications Commission passed regulations requiring cell phone carriers to provide the ability to track calls to a location within one hundred meters or less. These carriers have now integrated GPS technology into cell phones. As a result, we have the ability to use cell phones to track the whereabouts of a “loved” one. These federal statutes apply to different conduct and/or technologies. The Wiretap Act prohibits any person from intercepting a wire, oral or electronic communication without court order or the consent of one of the parties to the conversation. Thus, it applies to tape-recorded conversations, videorecorded conversations and intercepted emails. An interesting nuance of the Act is only the interception of emails while in transit is prohibited. The Act does not apply to an email once it is in “post-transmission stor-
2012 Texas High School Mock Trial
Prestonwood Christian Academy of Plano won the State High School Mock Trial Championship. Dallas Bar Association members presided over and served as “jurors” for the final competition on March 3. From left to right in the front row are Lori Hayward, Michele Wong Krause, the Honorable Barbara M.G. Lynn, and the Honorable Lana Myers. Standing from left to right are Robert L. Tobey, DBA President Paul Stafford, James L. Young, Thomas Goranson, Scott McElhaney, and Victor Corpuz.
presents
age.” Thus, the retrieval of an email stored on a computer’s hard drive may not be a violation of the Act, although there could be a violation for breaching computer security or liability could exist for invasion of privacy. Though the Act provides for the exclusion of illegally obtained wire and oral communications, it does not provide for the exclusion at trial of illegally obtained emails. The Wiretap Act also provides exceptions for consent, vicarious consent and spousal consent. Thus, it is lawful to intercept a communication if one party to the communication gives consent; however, some states require the consent of all parties to the communication. Hence, it may be unlawful to intercept a communication if one of the parties is not in Texas. The Act also recognizes that parents and guardians of minors may have the authority to consent for their children. This exception should be dealt with carefully as different courts have limited its applicability. Also, other courts have carved out a spousal consent exception which is not recognized in Texas. The Stored Communications Act addresses the access to stored electronic communications without authorization. The Act makes it a crime to intentionally access an electronic server facility—a phone company or Internet Service Provider. It also prohibits a service provider from divulging stored communications to an unauthorized person. A violation of the Act can result in imprisonment, but unlike the Wiretap Act,
Winning Tips From Top Trial Lawyers
Tom Greenwald, a partner in Goranson, Bain, Larsen, Greenwald, Maultsby & Murphy, PLLC, handles family law matters. He can be reached at tgreenwald@gbfamilylaw.com.
CONTRARY TO POPULAR BELIEF
LAWYERS AREN’T ALWAYS PREPARED
Clients, Cases and the
Courtroom
the evidence can be admissible at trial. In addition to the federal statutes, Texas has its own state statutes governing these issues. Texas law also makes it a crime to place a tracking device in a vehicle owned or leased by another person or to access a computer, computer network or computer system without the consent of the owner. If the vehicle is owned or leased by the tracked spouse, then this conduct would be prohibited by Texas Penal Code section 16.06. But, if both spouses co-own the vehicle, the analysis becomes more complicated. Nonetheless, if the tracked spouse regularly drives the vehicle, the other spouse may be prosecuted for stalking. Often conduct not within the purview of the federal and state statutes may result in a cause of action for invasion of privacy. Though determining whether there is a “reasonable expectation of privacy” in the family context may be a challenge. This is a complex area of the law that is constantly changing. Clients should consult with their attorney before engaging in any electronic surveillance. Attorneys should proceed with caution in assessing the legality of the use of these technologies, especially in the context of family affairs. Misapplication of the law may subject a client to sanctions, HN fines and/or jail time.
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Ted M. Akin Voted # 1 Best Individual Mediator/Arbitrator in Dallas - Texas’ Best Survey
Lisa Blue
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May 23, 2012 CityPlace Conference & Event Center — Dallas 8 a.m. to 10 a.m. Join Texas Lawyer’s editorial department and noted Texas trial lawyers W. Mark Lanier and Lisa Blue as they discuss winning litigation tips and techniques, the best approach to settlement negotiations, and how to handle discovery, jury selection and expert witnesses, among other things. Texas Lawyer Subscribers: $50 Nonsubscribers: $60 At the door: $70 To register, visit www.TexasLawyerEvents.com or call 214.744.7764.
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10 H e a d n o t e s l D a l l a s B a r A s s o ciation
In the News
A pri l 2012
April
KUDOS
Christopher C. White with Lewis Brisbois Bisgaard & Smith LLP has been promoted to Partner. Tom Melsheimer of Fish & Richardson has been selected as a Fellow in the International Academy of Trial Lawyers. Christopher I. Clark of David, Goodman & Madole, P.C. has been promoted to Shareholder. Mark Shank with Gruber Hurst Johansen Hail Shank LLP has been elected as Chair of Dallas Habitat Board of Directors. Tamera H. Bennett of Bennett Law Office, PC has been selected as a legal contributor to BILLBOARD magazine. Josiah Daniel of Vinson & Elkins has published “LBJ v. Coke Stevenson: Lawyering for Control of the Disputed Texas Democratic Party Senatorial Primary Election of 1948” in The Review of Litigation. Robert C. Wiegand with Godwin Ronquillo PC has been named the Firm’s Chief Operating Officer. J. Patrick Bredehoft, Bryan D. Garner, Jessica Hammons and Nicole Williams
Michael H. Myers has joined the firm of Ganci, L.L.P.
with Thompson & Knight LLP, have been elected as Partners. G. Luke Ashley, Max Ciccarelli, Greg W. Curry, Joseph S. Pevsner, Elizabeth A. Schartz, Shad E. Sumrow and Arthur J. Wright have been elected to serve on the firm’s Management Committee for 2012. Emily A. Parker has been recognized as the 2012 Outstanding Texas Tax Lawyer by the State Bar of Texas Tax Section. Matthew P. Harper has been named to the Board of Directors of the Greater Dallas Council on Alcohol and Drug Abuse.
Nicole L. Sparks and Deborah Toney have joined the PepsiCo, Inc. Plano office as Technology Counsels.
Billie J. Ellis Jr. with Locke Lord received the 2012 Texas Exes Teaching Award from University of Texas. Paul Nason has been elected to the firm’s 2012 Board of Directors.
Jonathan Clark and Adam Hawkins have joined Fish & Richardson, P.C. as staff attorneys; Rex Mann has joined as an associate.
Elliott DeRemer, Matthew Leung, Drew Mosier, and Sam Peca have joined Weil, Gotshal & Manges LLP as Associates.
Laura Russell has joined Hermes Sargent Bates, LLP as an associate.
Aaron Stendell has joined Tollefson Bradley Ball & Mitchell LLP as an associate.
Ted Lyon of Ted B. Lyon & Associates, P.C. has been awarded the Teddy Roosevelt Conservationist of the Year Award by Big Game Forever. Richard Gary Thomas with Thomas, Feldman & Wilshusen, L.L.P., has been inducted into the American College of Construction Lawyers.
MOVE
William P. Davis and Bejan (BJ) Ghatrehee have opened a branch office of Calvo Fisher & Jacob LLP, at 12221 Merit Dr., Suite 820, Dallas 75251. Phone: (469) 375-4553.
Sarah M. Paxson has joined Thompson & Knight LLP as Partner; Anthony Miller and Justin Welch have joined the firm as Associates. William Holston has joined the Human Rights Initiative of North Texas as Executive Director.
Donna J. Yarborough has opened Donna J. Yarborough, PLLC located at Highland Park Place, 4514 Cole Avenue, Suite 600, Dallas, Texas 75205. Genevra Williams has joined The Dallas Foundation as Planned Giving Officer and Associate Legal Counsel. Charles W. “Trey” Branham III has opened Branham Law Group, LLP located at 3900 Elm Street, Dallas, TX 75226. (214) 722-5590.
Becky Gregory has joined Curran Tomko Tarski as Of Counsel. Rachel Crockett and Jennifer Gurevitz have joined Looper, Reed & McGraw, P.C. as Associates. Robert M. Bolton and David B. Dyer have joined Scheef & Stone, L.L.P.
Carol Payne and Bert Wyn Williams have joined Taber Estes Thorne & Carr PLLC as Partner and Associate respectively. Holly Robbins has joined Winstead PC as an Associate. 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.
Justinian Award continued from page 1
DVAP’s Finest Kendall Hayden
Kendall Hayden is a Member at Cozen O’Connor. Since beginning her legal career in 2003, Kendall has volunteered an average of 60 hours each year representing pro bono clientele. Because Kendall enjoys working with Spanishspeaking clients and is bilingual, 95 percent of Kendall’s pro bono clients speak Spanish as their primary language. Her pro bono experience includes staffing DVAP legal clinics in order to counsel Spanish-speaking prospective clients, and representing clients in probate, family law and commercial litigation matters. Her representative cases include regularly translating testamentary documents into Spanish, successfully filing and obtaining petitions for non-disclosure, completing name changes for adults and minors, finalizing divorces and successfully litigating commercial litigation cases on behalf of Spanish-speaking clients. Thank you for all you do, Kendall!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
ing on my feet and discussing the importance of the law in people’s lives. Nancy saw something that made her think I might make a good lawyer, and urged me to take the SAT exam.” That support led to Mike receiving a four-year scholarship to SMU, and later his J.D. from SMU Law School. The wrenches and spray gun may have been put away, but Mike never forgot the importance of helping young people improve their lives through education, as well as the impact one person’s intervention can make. Mike currently chairs the Children’s Education Fund, which has raised more than $8 million since its inception in 1994 to provide private, grade-school education for 7,000 Dallas-area children. Since 2005, he has served as chairman of An Evening Under the Stars, the annual Dallas benefit for St. Jude Children’s Research Hospital. Mike also is chairman of Dream Dallas, a program of Dallas Habitat for Humanity, in coordination with 60 other non-profit organizations, to raise $100 million for the revitalization of five at-risk South Dallas neighborhoods. He has served as a founding director of the North Texas Entrepreneurs Foundation, which partners with the Communities Foundation of Texas to encourage young business people to engage in philanthropy. He also has devoted his time as a director of Big Brothers Big Sisters, and the Dallas-Fort Worth Hospital Council. A founding partner of the business litigation firm of Gruber Hurst Johansen Hail Shank, Mike has achieved a distinguished legal career with a record of success that includes significant verdicts, judgments and settlements on behalf of his clients. He is consistently recognized by various publications and serves as one of the top attorneys in Texas, and is Board Certified in Civil Trial Law by the Texas Board of Legal Specialization. He has also led a number of the Dallas Bar Association’s committees. Mike was the 2011 recipient of the Award of Excellence from the Dallas Association of Young Lawyers, and has published a two volume treatise, Texas Litigation Plans and Forms. All of Mike’s accomplishments would not be possible without the support of his wonderful family. He has been married for 33 years to (as he calls her) “the saintly Diane,” who he knew in high school but didn’t date until their college days at SMU. “You have to realize that Diane was a high school cheer-
leader, while I was spending my time in a body shop. You could safely say we ran in different circles.” They spend every weekend they can on their ranch in Bosque County. Mike and Diane have three children: Michael, better known as “Grubes,” a producer for local sports radio station The Ticket (“he makes me laugh and gets me to rock concerts”); Becky, a sky-diving enthusiast and soon-to-be graduate of Texas A&MCommerce (“she encourages me to take risks: an occasional skydive; flying lessons; scuba diving”); and Chris, an “intellectually curious” sophomore at Lynn University in Florida (“he keeps me honest and forces me to think”). Mike joins a prestigious group of Justinian Award recipients, including Louis A. Bedford Jr., Michael M. Boone, George Bramblett, Sam P. Burford Jr., Adelfa B. Callejo, George W. Coleman, Marshall J. Doke Jr., Edward J. Drake, Henry Gilcrest, Don Glendenning, Al Ellis, Vester T. Hughes, Darrell Jordan, Ron Kirk, John Andrew Martin, P. Mike McCullough, Harriett E. Miers, Forrest Smith, Sidney Stahl, Robert Hyer Thomas, and T. Michael Wilson. Please make plans to honor Mike as he receives the 30th Justinian Award at 11:45 a.m. on Wednesday, April 25th in the Pavilion at the Belo Mansion. Author Mark Curriden will be the keynote speaker and his remarks titled Lions of the Bar: the Stories of Seven Legendary Trial Lawyers and What Made Them Famous will earn one CLE credit in ethics for luncheon attendees. Distinguished judges for the 2012 Justinian Award were Tracie Fraley, principal at Booker T. Washington High School for the Performing Arts; Robyn Flatt, executive artistic director of the Dallas Children’s Theater; Skip Hollandsworth, executive editor of Texas Monthly; Michael Meadows, president and chief executive officer of the Dallas Zoological Society; and J.C. Montgomery Jr., president of Scottish Rite Hospital. Kim Pearson and Joan Nye are serving as co-chairs for the Justinian Awards Luncheon, and Susan McCombs is president of the Dallas Lawyers Auxiliary. Tickets to the event are $100 per person or $1,000 per table with the proceeds supporting scholarships at the SMU Dedman School of Law and the Now You Are 18 pamphlet given to graduating high school seniors in Dallas County. For reservations or additional information, contact Tina Gwinn at 214-526-9828 or tina@ HN gwinn.net.
A pril 2 0 1 2
Dal l as Bar A ssoci ati on l Headnotes 11
Classifieds
April
OFFICE SPACE
Free Office to Joint Venture Counsel! Young lawyer with huge personal injury or business tort case? Want to learn from working with exceptional joint-venture law firm instead of handing it off? Maybe need a stipend? Come visit our beautiful and fully-furnished office in NW Dallas and see if we’re a fit. Marc Lenahan 214.295.1008 Law@Lenahan.com www.SevereInjuryLawFirm.com Office Space available for rent. Executive lawyer office with corner windows and view of the city and paralegal office in the Uptown area in a Class A building. Office sharing arrangement offering receptionist, telephone system, high-speed internet, color copier, fax capability, conference rooms and fully stocked kitchen. AV rated Personal Injury Law Firm looking for a solo criminal or family attorney. Potential for referral business exists. Call or email for further information and rates; lweir@ewlawyers. com and phone: 214-378-6669. Upscale, furnished office space available within small litigation boutique off Central and Walnut Hill. Two large partner offices and two associate offices with builtin secretary station. Total of approximately 2000 sq. ft. Also available are the use of a kitchen, conference room, reception area and office services with copier, scanner and facsimile. Email admin@bcallp.net or call (972) 371-5252
North Dallas Tollway (Galleria area) office space. Hardwood floors and ornate mahogany paneled walls in common areas. Several offices available in different sizes, all with built-in mahogany secretarial carrel (located in outer office area). All have access to three conference rooms, copier, postage meter, high speed internet, phones and two kitchens. Receptionist services also available. Please call Kim at 972-934-4100. Large furnished office space available within small real estate law firm located at 4054 McKinney Avenue. Shared conference and break room, copier, fax, DSL & phone equipment are available if needed. There is a possibility of overflow real estate work. No long term commitment and a monthly rate of $650.00. Call 214-520-0600 For Lease or Sale – Condo Office(s) In Preston Tower. Shared amenities (kitchen, conference room, reception area, and bathroom). Near Preston Center, 10 minutes from courthouse. Call (214) 369-1171 or email herbhooks@aol.com Boutique Collin County law office – McKinney- has office spaces for lease. Prefer specialized practice lawyers who want to help grow a thriving law firm. Great location. All amenities included. Immediate availability with space for assistant. Email inquiries to dale@mckinneylaw.com
DOUGLAS BRINKLEY TO SPEAK ON NEW BOOK, CRONKITE Wednesday: June 13, 2012 6:30 p.m. • The Belo Mansion Cost: $20 for DBA members; $25 after June 8 www.dfwworld.org
Douglas Brinkley, professor of history at Rice University and Contributing Editor of Vanity Fair presents the definitive, revealing biography of an American legend: renowned news anchor Walter Cronkite. An acclaimed author and historian, Brinkley has drawn upon recently disclosed letters, diaries, and other artifacts at the recently opened Cronkite Archive to bring detail and depth to this deeply personal portrait. Sponsored by DBA and the World Affairs Council of DFW
DBA Annual Senior Lawyers Appreciation Dinner Wednesday, May 16 ~ The Belo Mansion Cocktails at 5:30 p.m. ~ Dinner at 6:30 p.m.
Tickets $40 ~ Tables available $400 • Keynote Speaker: Mayor Mike Rawlings To RSVP or for more information regarding sponsorship opportunities, contact Kathryn Zack at kzack@dallasbar.org. Sponsored by the DBA Senior Lawyers Committee
POSITION AVAILABLE
mitment and no overhead. Excellent references. attorney3503-7615@yahoo.com
Oak Lawn business, commercial, bankruptcy, and construction litigation firm seeks experienced, stable, and hard-working civil litigator. Appellate and actual trial and deposition experience required. Excellent writing skills necessary. Some portable clientele a plus, along with insurance defense experience. Firm offers first rate office environment and tenured support staff. Compensation negotiable. This is an excellent opportunity for the right attorney. Respond to oaklawnfirm@aol.com
SERVICES
Experienced Freelance Paralegals and Legal Assistants for traditional and digital transcription, document management, deposition summaries, drafting pleadings, discovery responses and more. Smart, economical solution for overflow work, staff shortages, sole practitioners. See www.TNTlegalresources. com for additional information or email Info@TNTlegalresources.com.
The Bassett Firm has 3 attorney positions available (Civil, Family, and Criminal Defense). 5+ years’ experience. No portable business needed for Civil position. Other requirements: ready for hard work; no ego. Competitive salaries and benefits. Send resume to nmenchaca@thebassettfirm.com
Economic Damages Experts - Thomas Roney has more than twenty years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, valuation and divorce matters. Mr. Roney and his experienced team of economic, finance, and CPA experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney, Barry Seldon, PhD. or Syd Thompson, MBA in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com.
Small AV Rated Business Transaction and Litigation boutique seeks established transactional attorney with portable business. Experienced regulatory healthcare and transaction lawyers to help with overflow business and “AV Preeminent” litigation attorneys to handle litigation needs. Seeking compatible persons for “Of Counsel” position and potential partnership. Email admin@bcallp.net or call (972) 371-5252 Dallas Associate Position. Established 30+ attorney firm seeking attorneys with 2-5 years of experience in civil litigation in its Dallas and Decatur offices. Primary case load will consist of defense litigation. Young firm with offices throughout Texas offers associates substantial responsibility in a congenial work environment at a competitive compensation level and good benefits. Please forward resume and references to hr_lawfirm@yahoo.com.
Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210)2229494. dlopez@pulmanlaw.com PLACE YOUR AD HERE! For affordable classified advertising rates call Judi Smalling at: (214) 220-7452.
POSITION WANTED
Contract Attorney. Experienced, AVrated commercial litigation attorney available on an hourly basis for research, writing, drafting motions, pleadings and briefs, discovery, and trial preparation. High quality work product for your firm with no com-
Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.
SPORTING CLAY ENTHUSIASTS Elm Fork Shooting Sports – 467 acres of shooting fun!
10751 Luna Road 75220 Date: Saturday, April 21, 2012 Time: Check-in at 8:30 a.m.; Competition starts at 9:30 a.m. Cost: $150 per person (Price includes: instructions, range gun use, targets, ammunition, golf carts, eye and ear protection, snacks and lunch) Teams of men and women at all levels will travel from station to station by golf cart. This was a sell-out last year! You are encouraged to register early. Contact rthornton@dallasbar.org. Hosted by the DBA Entertainment Committee
Spanish for Lawyers Register Now!
Spanish for Lawyers Eight Week Summer Course, May 1-June 21, 2012. Beginning Level – Tuesdays Intermediate Level – Wednesdays Beginning Level IV – Thursdays All classes at Belo from 6:30 to 7:00 p.m. Cost $150. Contact Teddi Rivas at trivas@dallasbar.org for more information.
12 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
A pri l 2012
Family/Probate, Trusts & Estates
Attorney’s Fees in Dallas County Probate Courts by Barkley T. Miller and J. Ellen Bennett
“A lawyer’s time and advice are his stock in trade.” As Abraham Lincoln, who gave attorneys of his day this sage counsel, knew, time and advice form the basis of compensation for legal services. We shall share with you aspects of Texas law, procedural standards of the three Dallas County Probate Courts, and some pitfalls to avoid along the road to obtaining your compensation in Dallas County probate and guardianship cases. Texas Probate Code Section 242 entitles personal representatives of estates to “all reasonable attorney’s fees, necessarily incurred,” on “satisfactory proof to the court.” Sections 665 and 665A-D set forth the standards for reasonable compensation in guardianship cases. In weighing the reasonableness of fees, our Probate Courts consider factors described in Texas Rules of Professional Conduct Rule 1.04, including the time and labor involved in the case, difficulty or nov-
elty of the work performed and customary hourly rate of attorneys with similar education and skills performing similar services. When a Dallas County Probate Court must approve your fees, the attorney filing the petition bears the burden of proving the reasonableness of professional compensation. Our Probate Courts have formulated standards to assist attorneys in this process, which can be found in the “Guidelines for Court Approval of Attorney Fee Petitions” (Guidelines) located in Appendix “A” to the Dallas County Probate Practice Manual (available for purchase from the DBA’s Probate, Trusts and Estates Section). Three noteworthy components of the Guidelines stand out for our purposes: the rate of compensation for attorneys and staff, what events are billable and how attorneys are compensated. The Guidelines specify particular rates at which attorneys practicing before Dallas County Probate Courts may be compensated. If you represent a fiduciary or serve as an attorney ad litem or guardian ad litem,
State of the County Forum Thursday, April 19, 5:30 p.m. at Belo Speakers: Clay Jenkins, Dallas County Judge Lupe Valdez, Dallas County Sheriff Open to the public. RSVP to sevans@dallasbar.org. Sponsored by the Public Forum Committee
the Guidelines stipulate that your fees are based upon your years practicing probate and guardianship law and whether you have earned Board Certification in Probate and Estate Planning. Further, if you are acting as a fiduciary, the Guidelines set forth differing rates of compensation for fiduciary work and legal work. The attorney in such cases must file a Notice of Intention to Request Dual Compensation and submit detailed records of all time expenditures for both types of work. Finally, fees for paralegals and legal assistants are reimbursable at a set rate, depending on factors such as certifications; experience in probate, estate planning and guardianship; and CLE courses attended. Two potential pitfalls merit discussion as you determine what billable events to include on fee statements. First, if an attorney ad litem is appointed for an indigent party, the attorney’s fee is set at the countypay rate, which varies based on the experience of the ad litem and the complexity of the case. Because certain ad litem expenses may not be reimbursable in county-pay cases, a prudent practitioner should check with the Probate Court’s administrative assistant before incurring large expenses. Second, you cannot charge for basic legal research, fee petition preparation, conversations with the Probate Courts and their staffs (unless special circumstances
exist), photocopies exceeding $.20 per page, or fax charges. Once you have determined the appropriate rate of compensation and billable events, you must draft and file your fee application. To facilitate review of fee applications, our Probate Courts require the filing of statements wherein attorneys itemize a description of the service performed, the time spent on each service and the corresponding charge. For fees between $1,000 and $2,500, the requesting attorney must sign and file a supporting fee affidavit. If the fee exceeds $2,500, the requesting attorney must not only sign and file an affidavit, but also file supporting fee affidavits signed by two attorneys not in the applicant attorney’s firm. In decedent’s estates, a fee application must be signed by the attorney and by the personal representative of the estate. Mr. Lincoln’s advice holds true today: time and advice form the basis of compensation for your legal services. Billing based upon a working knowledge of Texas statutes and the Guidelines will ensure that you are compensated for your stock in trade in Dallas County probate and guard HN ianship matters. Barkley T. Miller & J. Ellen Bennett handle estate planning, probate, and guardianship matters. They can be reached at barkleymiller@ sbcglobal.net and ellen@jebennettlaw.com.
IOLTA Prime Partners “Banking on Justice” The Supreme Court of Texas requires attorneys to place IOLTA accounts at eligible banks—those that pay interest rates comparable to other similarly situated accounts. To see a list of committed banks or for more information on Prime Partners, contact the Texas Access to Justice Foundation at www.teajf.org or 512-3209-0099.
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