Dallas Bar Association
HEADNOTES
Focus Real Property/Environmental Law
May 2012 Volume 37 Number 5
The Girl With the File-Stamp Habitat for Humanity Build Day Tattoo Arrives in June By Kandice Bridges
Join the cast and crew of Bar None June 6-9 as they present The Girl With the File-Stamp Tattoo. This is the 27th year for the Bar None variety show and it promises to be the best show yet. Watch Dallas area lawyers and judges sing, dance and make you laugh so hard your sides hurt. As much as the cast and crew love making people in the audience cry from laughing so hard, their real motivation is to support the Sarah T. Hughes Diversity Scholarship program. The scholarship program was established in honor of U.S. District Judge Sarah T. Hughes, a former trustee of the Dallas Bar Foundation, who devoted herself to improving the rights of women and minorities. The Hughes Scholarship at the Dedman School of Law at SMU provides tuition and fees for deserving minority students each year. The Dallas Bar Foundation takes its responsibility for finding deserving recipients seriously. If you’ve ever met a Hughes Scholar, you know how impressive these students are. Support them by coming to Bar None. Thousands of volunteer hours go into putting on such a large production each year. The hours come from lawyers all over the metroplex, including 27-year veteran Director Martha Hardwick Hofmeister and Producer Tom Mighell, as well as the choreographers, script writers, committee members, actors and numerous behindthe-scenes staff. All of these Bar Noners share a passion for making a difference in the lives of the Scholars, our legal community and, for a few hours, the audience members. Show your support for the Dallas legal community and the Hughes Scholars by heading to the Greer Garson Theatre on the SMU Campus June 6-9. To purchase tickets, visit www.barnoneshow.com. Contact Elizabeth Philipp, Dallas Bar Foundation Executive Director, at (214) 220-7487 or ephilipp@dallasbar. HN org for sponsorship and ticket information. Kandice Bridges is a Senior Director in the Compensation and Benefits Practice of Alvarez & Marsal Taxand, LLC and Chair of the Marketing Committee of the Bar None Production Company. She can be reached at kandicebridges@sbcglobal.net.
On Saturday, February 18, the DBA Community Involvement and Home Project Committees sponsored a “warehouse” build day at the Habitat for Humanity facility in West Dallas. The constructed walls and other portions of the house were ultimately delivered to this year’s home site. Sunbelt Reporting and Litigation Services provided lunch for the volunteers.
Focus
Real Property/Environmental Law
Real Estate Commissions for Brokers and Attorneys By Lisa Tomiko Blackburn
Most lawyers know that the statute of frauds applies to real estate conveyances. However, many are not aware that the statute of frauds also extends, by statute, to real estate sales commissions. This article will discuss case development in 2011 applicable to brokers, a statutory amendment in 2011 applicable to lawyers, and general guidance that is critical to ensuring that attorneys and clients can enforce real estate commission agreements and get paid.
Background History
The Statute of Frauds has royal origins, deriving from “An Act for the Prevention of Frauds and Perjuries” under the reign of King Charles II of England in 1677. The Statute of Frauds was enacted by the Congress of the Republic of Texas in 1840. An iteration of the statute appeared in the Texas Revised Civil Statutes in 1925, and was later codified in Texas’ Business and Commerce Code in 1967. In 2003, the Texas Real Estate License Act (RELA) incorporated a version into Texas Occupations Code (TOC)
Inside 3 Fracking Update 7 New OSHA Guidance on Indoor Air Quality 9 Loan Modifications: A Few Considerations 11 Merger Clauses and Fraudulent Inducement Claims
Section 1101.806(c) to prevent “frauds” in the context of real estate sales commissions. With its longstanding history, one might assume that interpretation of the statute of frauds, as applied to “dirt law,” is well established. Perhaps surprisingly, this area continues to evolve.
Brokers’ Commissions
In May 2011, the Dallas Court of Appeals interpreted RELA’s statute of frauds provision in Neary v. Mikob Properties, Inc. 340 S.W.3d 578, (Tex. App.—Dallas 2011, no pet.). The case reinforced a strict constructionist trend in interpreting Section 1101.806(c). To fulfill the requirements of RELA, an agreement for commission should: (1) be in writing, and be signed by the person charged with the commission. Notably, Texas courts have largely refused to extend equitable statute of frauds exceptions—such as part performance—to the interpretation of Section 1101.806(c). In Neary, the Court declined to enforce a term sheet (that both identified “Seller” as the commission obligor and was
signed by the property-selling defendant), in part because the defendant was not explicitly defined as “Seller.” The commission obligor should execute a written commission agreement and be clearly identified as the party responsible for paying commission. (2) promise that a definite commission will be paid or refer to a written commission schedule. If the evidence supporting a commission enforcement action is comprised of a non-binding term sheet, the plaintiff’s prospects are grim. A commission agreement should include (or incorporate) unequivocal commission terms. (3) state the name of the broker to whom commission shall be paid. Neary underscored a factor critical to numerous Texas decisions: the commission-earning party identified in the agreement must be a licensed broker when services commence. This means if a person is a broker, that person’s designee (who is not a broker) may not be listed as the broker in the commission agreement. A party who is not licensed at the time continued on page 7
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2 He a d n o t e s l D a l l a s B a r A s s o ciation
Calendar
May Events
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
MAY 11-NORTH DALLAS** Noon
May 2012
“Behind the Façade – How the Practice of Law Impacts the way Attorneys Handle Depression and Grief,” Brett Stalcup and Dr. Adele Hurst. (Ethics 1.00)* Sponsored by the CLE and Peer Assistance Committees. 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.
FRIDAY, MAY 11 Noon
MAY 18-BELO Noon
“Retirement Plan and Pension Strategies for Small Business Owners,” David Ralston. (MCLE 1.00)*
TUESDAY, MAY 1 Noon
Corporate Counsel Section “The Nuts and Bolts of Drafting Minutes,” Andy Louis, Steve Milton and Rob Kibby. (MCLE 1.00)*
Government Law Section “State and Local Government Enforcement of Federal Immigration Laws: Illegal or Merely Undocumented?” P. Michael Jung, Nina Perales and James S. Renard. (MCLE 1.00)*
Tort & Insurance Practice Section “From Mass Disaster to Mass Payment or Trial - The BP Oil Spill MDL Rocket Docket,” Mikal Watts. (MCLE 1.00)*
Bench Bar Conference Committee
Morris Harrell Professionalism Committee
FRIDAY, MAY 4
11:45 a.m. S old out Annual Law Day Luncheon Keynote speaker: Hon. Sam Lindsay. To purchase tickets, visit www.dallasbar.org, or contact asmith@dallasbar.org.
MONDAY, MAY 7 Noon
Tax Law Section “Series LLCs: Pitfalls and Possibilities,” Brent Clifton and Steve Quiring. (MCLE 1.00)*
Peer Assistance Committee
TUESDAY, MAY 8 Noon
6:00 p.m. DAYL Board of Directors Meeting
WEDNESDAY, MAY 2 Noon
Employee Benefits & Executive Compensation Section “International Benefits Update,” Danny A. Martin, Jr. (MCLE 1.00)*
Solo & Small Firm Section “How to Close the Deal: Secrets of Persuasion,” Maura Schreier-Fleming. (MCLE 1.00)* Legal History Discussion Group The Most Important Lawyers of the Past Fifty Years: Leon Jaworski and James A. Baker, Talmage Boston. (Ethics 1.00)*
DAYL Judiciary Committee
THURSDAY, MAY 3
WEDNESDAY, MAY 9
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group Noon
Family Law Section Topic Not Yet Available
Admissions & Membership Committee
Bench Bar Conference Committee
DAYL Lunch & Learn. For more information, contact cherieh@dayl.com.
5:15 p.m. LegalLine—Volunteers welcome. Second floor Belo.
THURSDAY, MAY 10
11:30 a.m. D AYL Lawyers Serving Children Noon
Construction Law Section “Tips on Avoiding Malpractice for the Construction Lawyer,” Cara Kennemer. (Ethics 1.00)*
DVAP/Real Property Law Section “Landlord-Tenant Law: 2012 Update,” (MCLE 1.00)* Co-Sponsored by the Housing Crisis Center. For registration and more information, please contact reedbrownc@lanwt.org or perkinsa@lanwt.org or call (214) 243-2243.
Judiciary Committee “A Conversation With Civil Court Judges,” Hon. King Fifer, Hon. Eric V. Moye and Hon. S. Craig Smith. (MCLE 1.00) RSVP to kzack@dallasbar.org.
CLE Committee
Publications Committee
Christian Lawyers Fellowship
Family Law Section Board Meeting
Dallas Asian American Bar Association
Lawyer Referral Service Committee
DAYL Freedom Run Committee
St. Thomas More Society
5:00 p.m. Annual Evening Ethics Fest Registration deadline: May 4, 5:00 p.m. Pricing: $65 DBA members/$135 nonmember. Register online at www.dallasbar. org or contact ahernandez@dallasbar.org. (Ethics 3.00)*
1:30 p.m. DBA Golf Tournament at Brookhaven Country Club, Dallas, TX
Trial Skills Section “Top 10 Trial Tips,” Charla G. Aldous. (MCLE 1.00)*
Business Litigation Section Topic Not Yet Available
SUNDAY, MAY 13
10:30 a.m. M other’s Day Brunch at Belo. Adults: $39, Children 6-12: $13. RSVP to Linda Werner at (214) 220-7470 by May 7.
MONDAY, MAY 14 Noon
Alternative Dispute Resolution Section “Ethical Considerations in Family Law Negotiations,” Jeff Coen, Esq., Shannon Lynch, Esq. and Tom Railsback, Esq. (Ethics 1.00)*
Real Property Law Section “Changes in Texas Indemnity and Lien Laws,” Mike Albers. (MCLE 1.00)*
DAYL Lawyers Against Domestic Violence
Entertainment Committee
6:00 p.m. Home Project Committee
Public Forum Committee
5:00 p.m. Bankruptcy & Commercial Law Section “What Bankruptcy Lawyers Should Know About the WARN Act,” Arlene Switzer Steinfield. (MCLE 1.00)*
Noon
Mergers & Acquisitions Section “M&A Involving Offshore Companies: Essentials for Doing Global Deals from Deep in the Heart of Texas,” Stephen James and Simon Raftopoulos. (MCLE 1.00)*
6:00 p.m. J.L. Turner Legal Association
Friday Clinic-North Dallas** “Behind the Façade – How the Practice of Law Impacts the way Attorneys Handle Depression and Grief,” Brett Stalcup and Dr. Adele Hurst. (Ethics 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.
TUESDAY, MAY 15 Noon
Antitrust & Trade Regulation Section “The Even Braver New World of Class Certification in Antitrust Cases,” Barry Barnett and Bill Katz. (MCLE 1.00)*
International Law Section “U.S./Canada Cross Border Litigation – Key Considerations for U.S. Lawyers,” JonDavid Giacomelli and Chris McLeod. (MCLE 1.00)*
Community Involvement Committee
Speakers Committee
DAYL Animal Welfare Committee
DAYL Elder Law Committee
WEDNESDAY, MAY 16 Noon
Energy Law Section “A Primer on Midstream Contracts: Gathering & Processing,” Robert L. Theriot,” (MCLE 1.00)*
Health Law Section “Health Care and Independent Contractors: How to Avoid Being a Target,” Joel N. Crouch. (MCLE 1.00)*
Law Day Committee
Pro Bono Activities Committee
Non-Profit Law Study Group
5:15 p.m. LegalLine—Volunteers welcome. Second floor Belo.
Transition to Law Practice Program For more information or to register, contact ahernandez@dallasbar.org.
MONDAY, MAY 21 Noon
Labor & Employment Law Section Topic Not Yet Available
Securities Section “SEC Comment Letters,” Joe Blice and Wayne Gray. (MCLE 1.00)*
Criminal Justice Committee
DAYL Criminal Bar Involvement Committee
DAYL Solo & Small Firm Committee
TUESDAY, MAY 22 Noon
Probate, Trusts & Estates Section “Texas Case Law Update,” Prof. Gerry Beyer. (MCLE 1.00)*
E-Mentoring Committee
Courthouse Committee
American Immigration Lawyers Association
1:00 p.m. DVAP Guardianship Ad Litem Certification Course. (MCLE 3.00)* For more information, contact perkinsa@lanwt. org or reed-brownc@lanwt.org. Register online at www.dallasbar.org. 6:00 p.m. Road to Executive Leadership Program Speakers: David Huntley, AT&T; Shauna Martin, GC Strategic Solutions; Richard Cheng, GC Senior Care Centers; and Hyatte Simmons, Former GC DART. For more information, or to register, contact ahernandez@dallasbar.org.
WEDNESDAY, MAY 23 7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group Noon
Sports & Entertainment Law Section “Series LLCs and Their Use in Music and Film/TV Deals,” Kellie Stokes. (MCLE 1.00)*
Legal Ethics Committee
DVAP New Lawyer Luncheon. For more information, contact reed-brownc@lanwt.org.
DAYL Equal Access to Justice Committee
THURSDAY, MAY 24
Noon
Criminal Law Section “Post-Traumatic Stress Disorder and Traumatic Brain Injury Evidence in Criminal Cases,” Kathy Finch. (MCLE 1.00)*
Environmental Law Section “Streamlining Superfund Site Management,” Chip Duffie. (MCLE 1.00)*
Summer Law Intern Program Committee
Dallas Gay & Lesbian Bar Association
DBA Community Service Fund Board Meeting
FRIDAY, MAY 25 Noon
Intellectual Property Law Section “Lesson Learned, Lessons Applied: The Judge & The Lawyer,” Judge Everingham (MCLE 1.00)*
DAYL CLE Committee
5:30 p.m. Annual Senior Lawyers’ Appreciation Dinner. Keynote speaker Mayor Mike Rawlings; tickets $40, tables $400. Contact Kathryn at kzack@dallasbar.org or (214) 220-7450.
MONDAY, MAY 28
THURSDAY, MAY 17
Noon
Noon
Appellate Law Section Topic Not Yet Available
Media Relations Committee
Minority Participation Committee
Christian Legal Society
DBA Board of Directors Meeting
FRIDAY, MAY 18 Noon
Friday Clinic-Belo “Retirement Plan and Pension Strategies for Small Business Owners,” David Ralston. (MCLE 1.00)*
DBA Closed in Observance of Memorial Day
TUESDAY, MAY 29
Senior Lawyers Committee DAYL Aid to the Homeless Committee
6:00 p.m. Dallas Hispanic Bar Association
WEDNESDAY, May 30 Noon
Municipal Justice Bar Association
THURSDAY, May 31 Noon
Collaborative Law Section “Soft Landings: Capturing Benefits from the Collaborative Process Even When a Case Doesn’t Settle,” Jeffery H. Shore and Curtis W. Harrison. (MCLE 1.00)*
2:00 p.m. Law Student Professionalism Program. RSVP to ahernandez@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.
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D al l as Bar A ssoci ati on l Headnotes 3
Focus
Real Property/Environmental Law
Fracking Update by James Payne
Recent success by natural gas producers in Texas is due to horizontal drilling and hydraulic fracturing (fracking) in shale formations. According to the Texas Railroad Commission’s (Commission) definition, fracking is the “treatment of a well by the application of hydraulic fracturing fluid under pressure for the express purpose of initiating or propagating fractures in a target geologic formation to enhance production of oil and/or natural gas.” Much of the news regarding the practice of fracking has not been favorable to the gas production industry. Among other reasons, disputes have arisen from allegations that fracking may be contaminating underground drinking water supplies. These concerns have been heightened because some gas producers have not disclosed the various chemicals used in their fracking fluids. In June 2011, Texas passed legislation requiring the Commission to adopt a disclosure rule for hydraulic fracturing fluids by July 2013. The Commission acted quickly and adopted a comprehensive chemical disclosure rule for hydraulic fracturing fluids in December 2011. Texas’ new Hydraulic Fracturing Chemical Disclosure Rule applies to hydraulic fracturing performed on wells with initial drilling permits issued on or after February 1, 2012. The new rule requires fracking fluid suppliers and service companies to provide the well operator with the identity of each chemical ingredient intentionally added to the hydraulic fracturing fluid used in a well. This disclosure
requirement also includes identifying the trade name, supplier and a brief description of the intended use or function of each ingredient in the fracking fluid. Additionally, the actual or maximum concentration of each chemical ingredient and the Chemical Abstracts Service number for each chemical ingredient must be disclosed. The new rule requires that this disclosure be made to the well operator “as soon as possible, but not later than 15 days following the completion of hydraulic fracturing treatment(s) on a well.” Using the information provided by suppliers and service companies, well operators must complete a Chemical Disclosure Registry form and upload the form onto the website known as FracFocus. FracFocus was developed, in part, by a national association of state groundwater agencies. The FracFocus website, http://fracfocus.org, was created to provide the public access to reported chemicals used for hydraulic fracturing. The Chemical Disclosure Registry form is to be uploaded on or before the date a well completion form is submitted to the Commission. The chemical disclosure requirement is not absolute. Suppliers and service companies may still claim trade secret protection with regard to the identities or amounts of chemical ingredients used in their fracking fluids. The new disclosure rule allows a claim of trade secret protection to be challenged by one or more of the following: (1) the landowner on whose property the relevant wellhead is located; (2) adjacent landowners; or (3) a department or agency of Texas with jurisdiction over a matter to which the claimed
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trade secret information is relevant. A challenge to a trade secret claim must be filed within 24 months following the filing of the well completion report, after which the right to challenge is lost. The Office of the Attorney General makes the initial determination on the validity of a trade secret claim. An adverse ruling by the Office of the Attorney General may then be appealed within 10 business days to a district court of Travis County. Notwithstanding any claim of trade secret protection, suppliers, service companies and well operators may not withhold information related to the chemical ingredients of fracking fluids from any health professional or emergency responder who needs the information for diagnostic, treatment or other emergency response purposes. Health care providers to whom trade secret information is disclosed must hold the information confidential. At a public hearing regarding the new rule, Dr. Andrew Barron, the
Welch Chair of Chemistry at Rice University, testified, “It is my belief that the proposed rule offers significantly greater information and hence better protection to the public than the FDA provides with the labeling of common food and drink.” Railroad Commission Chairman Elizabeth Jones has stated, “With the passage of this mandatory Hydraulic Fracturing Disclosure Rule, Texans can be assured they will know more about what is going into the ground for fracturing than what goes into a can of soda.” As a result of the new disclosure rule, Texans may soon know more about the chemicals being used in fracking fluids. However, it remains to be seen as to whether such increased knowledge lessens the controversy over fracking in Texas. James Payne, a partner in Guida, Slavich & Flores, P.C., handles environmental litigation. He is the Secretary of the Environmental Law Section of the DBA. He can be reached at payne@gsfpc.com.
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4 He a d n o t e s l D a l l a s B a r A s s o ciation
May 2012
Headnotes
President's Column
Published by: DALLAS BAR ASSOCIATION
Speaking of the Law… By Paul K. Stafford
John Adams famously stated ours is a “government of laws, and not of men”. Accordingly, you have rights—guaranteed in the Constitution, exercised by individuals and protected by the courts. Courts administer Justice. Justice facilitates Freedom. Freedom ensures Democracy. Democracy preserves the Republic. Among other rights, you have the right to worship, speak and read about what you or others think and say. You can gather together in groups for peaceful purposes, or you can stay at home and feel free from intrusion, searches or seizures from the government. If you feel that you have been wronged by the government, you have the right to request that the government address any wrong-doings. If you are accused of wrong-doing, you have the right to remain silent, secure a lawyer and ensure that the government carries the burden to prove the accusations against you before a jury of your peers. If you are convicted of a crime, you do not have to endure cruel or unusual punishment. You have the right to be a slave to no one, as well as the right to due process and equal protection of the laws. At 18 years of age, you have the right to vote, and to duly elect your representatives. Yes, you have rights…and a system of courts to protect those rights. So, if someone inquires of you as to why we as a society have courts, you have the right to tell them what you wish…but as members of the legal profession, you may want to remind them that we have courts because courts are the cornerstone of our society. Our criminal courts and proceedings afford more rights and protections to the accused than anywhere else in the world. Our civil courts stand between order and lawlessness. Our system of laws is established through our collective conscience and our moral convictions. Without courts and a system of justice, people would take matters into their own hands with little societal recourse. And, if you are asked what happens when people of conscience fail to act with conviction, or when courts fail to act, you have a right to ignore the question and carry-on about your daily life. But you may mention that if the courts don’t act—or if we don’t provide adequate resources, support and respect to our courts—justice is not served, freedom is compromised, and the integrity of the courts system is diminished. If the courts system is diminished, folks would not be able to receive justice, and would lose faith in the system and in themselves. And, if someone tells you about that friend, relative or neighbor who presumably did not receive justice, you certainly have the right to hear his or her story, join in, and recount similar incidents of injustice— real or perceived. But faith in our coun-
Annual Evening Ethics Fest Thursday, May 10, at the Belo Mansion Check-In and Dinner begins at 4:45 p.m.
try of laws, our courts system, our quest for justice and freedom continue to endure because society is committed to the belief that, although imperfect, the American Justice system is the best in the world. You could tell them that our courts system has its basis in ancient tribunals, councils, commandments, codes and laws, but our current federal court system was reinforced during the 1787 Constitutional Convention. Tell them that when the Constitution was completed and became effective in 1788, it contained something in it called the Preamble, which says: “We the People of the United States, in order to form a more perfect Union, establish Justice…and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish the Constitution of the United States.” It also stated that the judicial power of the United States is vested in the Supreme Court, which is the highest court of the land. All of this was done in an effort to establish a courts system which promotes Justice and protects Liberty. Tell them that you took an oath as an attorney to protect and uphold the Constitution, and that you strive to do so daily. Perhaps even non-attorneys should strive to do the same. Remind folks that in 1789 additional provisions and protections—also called the “Bill of Rights”—were added to the Constitution, and in 1791 when this Bill of Rights was ratified, certain rights were articulated for the citizens. Tell them that over the years certain Amendments have been added to this living document and that consequently our Constitution endures as the oldest written constitution in the world (and one of the shortest, if one chooses to read it). That’s what can be said about our Constitution, our courts, justice, freedom and the rule of law. As lawyers, it is my belief that we have a unique ability, and in fact an obligation, to articulate the fundamental nature of our profession and of ourselves as professionals. Let us not surrender that opportunity, or become derelict in that duty, to continuously strive to uphold and administer the law while also striving to educate and inform others about its societal significance. In order to recognize this nation’s commitment to the rule of law, in 1958 President Dwight D. Eisenhower established Law Day. Each year, Law Day has a theme, and this year, the American Bar Association’s theme for Law Day is “No Courts, No Justice, No Freedom.” As in years past, the Dallas Bar Association has encompassed the ABA’s annual theme into its Law Day programming. This year’s DBA’s Law Day Luncheon, with the Honorable Sam A. Lindsay as speaker, will be held on Friday, May 4, 2012, at noon at Belo. You are encouraged to attend and to commemorate Law Day. You are also encouraged to commemorate the law daily. To purchase your Law Day Luncheon tickets, log on HN to www.dallasbar.org.
Road to Executive Leadership Program
Program begins at 5:30 p.m. (3.00 Ethics)
Tuesday, May 22, 6:00 – 8:00 p.m. at Belo
$65 DBA member early registration/$95 DBA member late registration
Speakers:
$135 non-member early registration/ $155 non-member late registration
David Huntley – AT&T Shauna Martin – GC Strategic Solutions
For more information, log on to www.dallasbar.org
Richard Cheng – GC Senior Care Centers
or contact Alicia Hernandez at
Hyatte Simmons – Former GC DART
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: Mary Ellen Johnson 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.
(214) 220-7499 or AHernandez@dallasbar.org. Sponsored by the DBA Legal Ethics Committee
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Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
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D al l as Bar A ssoci ati on l Headnotes 5
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
May 2012
New IRS Section 6050W: What is it, and How it Affects Attorneys It is estimated there are over 10,000 credit card transactions made every second around the world. This astonishing number results in over $7.5 trillion in credit card payments per year (American Bankers Association). If you are one of the lucky businesses processing these transactions, congratulations, you are now subject to the newest IRS requirement–Section 6050W.
Commentators on the final regulations suggested “defining ‘gross amount’ as net sales, taking into account credit transactions, chargebacks and other adjustments, on the ground that gross amount is not a true indicator of revenue.” The Treasury rejected these suggestions because “[t]he information reported on the return required under these regulations is not intended to be an exact match of the net, taxable, or even the gross income of a payee.”
legal name to IRS records. Due to technology limitations with most Visa and MasterCard processors, merchant statements are usually limited to only 25-35 characters. As such, many law firms’ merchants have either abbreviated their name or used an acronym for their merchant account. If this is the case, you will need to contact your processor to assure that your legal name on your merchant exactly matches the legal name you use to file your tax returns.
What is 6050W?
What about my IOLTA?
Painful Penalty
by Tracey Gavin
Section 3091(a) of the Housing Assistance Tax Act of 2008 (the Act) added section 6050W to the Code requiring merchant acquiring entities and third party settlement organizations to file an information return for each calendar year reporting all payment card transactions and third party network transactions with participating payees occurring in that calendar year. It was created in an effort to further reduce the estimated $345 billion tax gap from the business sector by providing additional information to the IRS on aggregate credit card transactions. Effective January 2012, all credit card processors (i.e. LawPay, First Data, TSYS, etc) and 3rd party payment aggregators (PayPal & Square) will be required to report gross card transactions to the IRS. This means the gross dollar amount of all transactions will be reported on a special 1099-K, regardless of returns or any processing fee deductions. The amount to be reported to the IRS with respect to each lawyer is the total gross amount of all of the transaction made for that lawyer in the calendar year. The preamble to the final regulations under section 6050W makes clear that the amount reported is to be the total gross amount “without regard to any adjustments for credits, cash equivalents, discount amounts, fees, refunded amounts, or any other amounts.” 75 FR 49821-01, 2010 WL 3207681 (August 16, 2010).
In the case of attorneys, Section 6050W does not make a distinction between credit card transaction deposits made to a trust or IOLTA bank account and an attorney’s operating bank account. This has many attorneys concerned the IRS will view these transactions incorrectly as income. However, there are two important items to note: (1) the new 1099-K is only intended to be “informational,” (2) your processor should include a merchant industry code on your 1099-K identifying you as a law firm or provider of legal services. The reporting requirements under section 6050W require credit card processors to report to the IRS on Form 1099-K the total gross amount of payment card transactions processes for each client over the calendar year, without reduction to account for amounts deposited into IOLTAs. Although there are few instructions from the IRS informing taxpayers on how to account for discrepancies between 1099-Ks issued to them and amounts reported on the taxpayer’s return, it is clear that the IRS does not intend the Form 1099-K to match net, taxable, or even gross income. Thus, the amount shown on the Form 1099-K will not in all instances be required to be reported as income.
Match or Mis-Match?
In addition to the gross volume reporting, Section 6050W also requires processors to verify and match your federal tax ID and
Originally set to begin January 2012, the IRS has decided to use the 2011 tax year as a “trial run” for reporting on 1099Ks. Due to system and reporting limitations with both the IRS and virtually all card processors, the timeline for matching legal names and TINs has been extended until the 2012 tax year. The bad news however, is beginning January 2013, the IRS will impose a 28 percent withholding penalty on all credit card transactions if the merchant information on file is not an exact match with their records.
Fees for 6050W?
It seems anytime the IRS changes a policy or tax requirement, a new fee is created by the banking institutions to reclaim their own costs. As a merchant, you will be happy to know Section 6050W specifically states processors may not charge for implementing the 1099-K process. Beware of new 6050W charges disguised as “Government Fees” or “Tin-Matching Fees” that may have been recently added to your merchant account.
No Need for Alarm
The intent of Section 6050W is to assist the IRS in identifying businesses not filing accurate tax returns. Requiring a taxpayer to account for discrepancies between amounts reported on Form 1099-K and the taxpayer’s return would be consistent with
reporting on Form 1099-Misc. In the case of Form 1099-Misc, a taxpayer reporting business income on Form 1040 reports only amounts that are “properly shown” on the 1099-Misc. In the case of deviations, the taxpayer is instructed to “attach a statement explaining the difference” (See 2010 Instructions for Schedule C: Profit or Loss From Business). Thus, it would be consistent with IRS policy in other areas to similarly require a taxpayer reporting a return amount different from the amount shown on Form 1099-K to attach a statement showing the reason for the difference. In the case of a lawyer depositing amounts into an IOLTA, the statement would show the amount of such deposits over the year which is excludable from gross income. Fortunately, the IRS has recently provided guidance for the 2011 tax filing year through a notice to Tax Filers dated January 31, 2012 entitled “Clarification to the instructions for Schedule C, E & F on Reporting 1099-K Amounts” (www.irs.gov/ formspubs/article/0,,id=253098,00.html). Not only has the requirement to report the amounts of Gross Credit Card Transactions been deferred for the tax year 2011, there are other indications that the IRS may NOT require small business tax filers to reconcile the differences between 1099-K amount and income for future tax years. While LawPay is taking a very proactive approach to these new rules from the IRS by validating all Attorney Merchants, not every processor is following suit. Don’t wait for your credit card processor to contact you! The IRS has assigned the reporting requirements on the credit card processors, but the ultimate liability lies squarely with you and your firm. For more information on Section 6050W visit www.IRS.gov or consult HN directly with your tax advisor. Tracy Gavin is the Marketing Director for LawPay. She can be reached at tgavin@affinipay.com.
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May 2 0 1 2
Focus
D al l as Bar A ssoci ati on l Headnotes 7
Real Property/Environmental Law
New OSHA Guidance on Indoor Air Quality by Jill A. Kotvis
“Please send us a copy of ‘Landlord’s OSHA Plan’ ”—so goes the typical request received in 2011 by several of my clients who own buildings. Such requests were motivated by the Occupational Safety and Health Administration’s (OSHA) new 2011 indoor air quality (IAQ) guidance (OSHA Guidance). OSHA 3430-04, Indoor Air Quality in Commercial and Institutional Buildings (2011). The OSHA Guidance recommends “that building owner/managers develop and implement an IAQ Management Plan to address, prevent and resolve IAQ problems” (e.g. mold, asbestos, chemical pollutants in building materials and vapor intrusion from soil and groundwater contamination), and it recommends to employers who
lease space that they “should be familiar with the building management’s program and methods for mitigating or resolving indoor air quality problems.” Although IAQ is not generally regulated under the Occupational Safety and Health (OSH) Act of 1970, 29 U.S.C. §§ 651 et.seq. (1970), specific types of potential IAQ issues are regulated, and depending on the terms of each lease, those regulations may be the responsibility of a building owner/ landlord or the employer/tenant. In general, however, the responsibility for a safe and healthy workplace environment under the OSH Act lies with the employer/tenant. Employers are responsible for complying with OSHA safety and health standards and regulations and, under what is known as the General Duty
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Clause of the OSH Act, providing a workplace free from recognized hazards that are causing or are likely to cause death or serious harm. OSH Act, 29 U.S.C. § 654 (1970). As referenced in the OSHA Guidance, the Centers for Disease Control and Prevention (CDC) estimate that the majority of Americans spend approximately 90 percent of their time indoors, and that office workers on average spend approximately 40 hours each week in office buildings. Because of this potential for chronic exposure to whatever may be in the indoor air, the United States Environmental Protection Agency (EPA) has identified IAQ as one of top five most urgent environmental risks to public health. The OSHA Guidance is OSHA’s and EPA’s latest effort to encourage the commercial real estate industry to focus on IAQ issues. The OSHA Guidance follows the 1997 EPA guidance, An Office Building Occupants Guide to Indoor Air Quality, and the 1991 publication, Building Air Quality, A Guide for Building Owners and Facility Managers, issued by the EPA in conjunction with the CDC, National Institute for Occupational Safety and Health (NIOSH). More recently in 2002, EPA issued a detailed IAQ guidance tool for building owners and managers, and efforts
Jill A. Kotvis is a solo practitioner practicing environmental law. She can be reached at jak1@nova1.net.
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continue today at EPA to finalize a draft guidance on vapor intrusion into indoor air by the fall of 2012. This latest effort by OSHA appears to be an effort to shift some of the OSH Act responsibility for the health and safety of the workplace environment from employer/tenant to the building owner/landlord. OSHA Guidance disclaims any attempt to create new or alter existing legal obligations. In effect, however, it provides a platform for tenant/employers to draw the building owner/landlord into management and resolution of workplace environment IAQ problems. As such, it may be used as an official OSHA advisory supportive of potential personal injury claims of tenants and their employees against building owner/landlords. Real estate investors and building owners should become familiar with the details of the OSHA Guidance, and laws, regulations and standards relating to the various IAQ issues. Indepth knowledge of IAQ issues and related government guidance is critical for building owner/landlord’s and real estate investor’s informed decisions on this issue and to minimize IAQ liability risks in negotiating lease and pur HN chase and sale agreements.
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partnerships for medical clients, you need to consult • Medical Insurance Disputes Medical aAgreements health lawyer to ensure your client isn’t•committing a federal felony. Federal Agents are cracking and Litigation • State and Federal Regulations • down Stark on statutory violations. In our experience, the first thing theCompliance client is going to tell federal agents, is that Kickback • Medical Negligence Defense • he entrusted the matter to you. At Martin Merritt, Lease Negotiations • Medical Equipment Leases we provide the independent health law consult. You keep the client. We•draft the provisions which Partnership Agreements Medical Insurance Disputes make the contract legal. Call or stop by our webBusiness Lawsite andfor Litigation • State and Federal more information.
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continued from page 1
the services commenced, but who later becomes licensed, also does not qualify for commission under RELA. (4) either itself or by reference to another existing writing, identify with reasonable certainty the land to be conveyed. While precise metes and bounds descriptions are unnecessary, the location of the property must be clear for a commission agreement to be enforced.
Attorneys’ Commissions
Through August 31, 2011, TOC Section 1101.005 provided the following exemption from RELA: “This chapter does not apply to . . . an attorney licensed in any state.” After that date, RELA’s exemption applies merely to “an attorney licensed in this state,” meaning that only Texas licensed attorneys may conduct Texas real estate brokerage activities without complying with RELA. However, this exemption does not mean that a Texas attorney attempting to collect commission will avoid the court’s scrutiny. In fact, attorneys seeking real estate commissions often navigate even more complicated issues, including avoidance of:
(A) conflict of interest issues, if the attorney’s self-interest in pursuing a real estate commission compromises his or her fiduciary duty to a legal client; (B) compliance issues, where an attorney is exempt from RELA, but the broker on the other side of the transaction must still comply with RELA’s prohibition on the fee-spitting by brokers with non-licensed parties (including attorneys); and (C) violations of other states’ real estate licensing statutes, in the event real estate brokerage activities (as defined in the applicable brokerage statutes) take place, in whole or in part, outside of Texas. An attorney seeking a real estate commission would be well advised to adhere to all guidelines—for brokers and attorneys—above. In addition, full disclosure of the attorney’s functions and capacity, and the commission-paying client’s voluntary and knowing consent, should be HN memorialized in writing. Lisa Tomiko Blackburn is General Counsel at Cypress Equities. She handles real estate and corporate transactions and litigation across the United States and Caribbean. Lisa is a member of DBA’s Publications, Speakers, and Media Relations Committees, and can be reached at Lisa.Blackburn@cypressequities.com.
Dallas, Texas 75201 • (214) 459-3131
8 He a d n o t e s l D a l l a s B a r A s s o ciation
May 2012
Column Writing on Writing
Reclaiming Your Writer’s Ethos by Scott Stolley
Quality writing is done by people of quality. — George Kennedy One of the best quotations from Strunk and White’s classic book, The Elements of Style, is “No writer long remains incognito.” By this, Strunk and White meant that a writer’s personality will manifest in the writing, despite the writer’s best efforts to the contrary. It is simply inevitable that your writing will reflect your personality. As Carolyn Myss observed, “The world behind the eyes creates the world in front of the eyes.” In short, what you put on paper reflects your inner world. That said, it’s amazing how much legal writing is devoid of personality. Law school and the early years of law training combine to bleach the personality right out of us. This is a leading cause of dull and wretched briefs and other legal papers. But our legal training is only one cause of the problem. It is also a function of the lawyer personality. Law firm consultant Dr. Larry Richard has studied lawyer personalities and arrived at some troubling conclusions. For example, Richard found that two-thirds of lawyers are introverts, compared with only one-fourth of the general population. Lawyers have a 90 percent score on the “skepticism” trait, versus 50 percent in the general population. Lawyers score 82 percent on abstract reasoning, versus 50 percent in the general population. With respect to “resilience” (defined as the ability to weather criticism),
lawyers are at 30 percent, compared to 50 percent in the general population. Worst of all, lawyers score only 7 percent on the “sociability” trait, versus 50 percent in the general public. So lawyers as a whole are introverted, nonsociable skeptics, who are skilled at abstract reasoning, but terrible at accepting criticism. Talk about a prescription for bland and lifeless (even deadly) legal writing. It’s downright scary when you combine those traits with legal training. This sad state of affairs collides head-on with a fundamental tenet of persuasion. Expert after expert has said that the key to persuasion is to sell yourself. F.L. Lucas said about writing that “Soul is more than syntax. If your readers dislike you, they will dislike what you say.” James Raymond observed, “Most people will be persuaded neither by reason nor by emotion, but by the ethos—the character—of the author.” John Trimble commented, “If you do not persuade [your readers] to accept you, it’s doubtful that you will persuade them to buy the ideas you’re proffering.” So it comes down to this—the writer’s personality and character (ethos) is a key to persuasion. But the lawyer personality, combined with legal training, often produces barren, dreary, lackluster writing without personality. Lawyers are missing out on a great opportunity to persuade by not letting their ethos shine through. Here are some suggestions to reclaim your writer’s ethos and inject it into your writing: • Be Yourself—Let your own per-
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sonality light up your writing. Do not settle for the standard, accepted style of legal writing. If you can do this, you will, as William Zinsser says, “stand out as a real person among the robots . . . .” • Study Good Writing—In developing your own style, study other good writers, but do not try to copy them. Learn from them, but develop a style that is authentic to you. • Have a Theme—Trial lawyers have known for years that their case must have a theme. Your writing will have more personality if you build your persuasion around a theme. • Tell a Story—A theme is great, but it must fit within a story. Human beings naturally gravitate toward a good story. Be human and you will attract other humans. • Have a Heart—As Arthur QuillerCouch declared, “[T]he first and last secret of a good Style consists in thinking with the heart, as well as with the head.” Lawyers have to restrain their analytical mindset and think more compassionately. • Be Credible—Credibility with the court is paramount; so be scrupulously honest. Even if no other part of your personality shines through, you want
to project an ethos of credibility. • Listen to Your Writing—Some experts advocate reading your words out loud, to make sure you have the right tone. Even saying the words silently in your head is a useful way to ensure that your tone is consistent with your ethos. • Moderate Your Skepticism—We are paid to be skeptical of the other side’s arguments. But you do not have to be outraged by them. Keeping your comments moderate will cast the ethos that you are a reasonable person. • Be Resilient—Let trusted colleagues critique your work and tell you when you have deviated from your ethos. Lloyd Paul Stryker concluded, “The success or failure of an advocate comes down at last to this: What manner of man [or woman] is it who is speaking?” Lawyers can be more successful advocates if they can overcome the lawyer personality and legal training to reclaim and project their true ethos. HN Scott P. Stolley is the leader of the Appellate Practice Group at Thompson & Knight LLP in Dallas. He is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization. He can be reached at Scott.Stolley@tklaw.com.
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.
RECONCILE.
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.
RESOLVE.
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.
RESULTS.
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 June 6th, your firm will be included in the July and August DBA 100 Club listing in our Headnotes publication. Send in your list TODAY! Don’t Miss Out on this Great Opportunity!
With more than 20 years as an attorney, Jeff Rasansky has the diverse experience required to achieve an efficient and fair resolution for all parties. Visit www.dallasmediationlawyer.com or call 214-651-6100 to make your appointment today.
PARKING OPTIONS AROUND BELO Please plan to arrive at your noon meetings early. Parking is limited at Belo during the noon hour. To view other parking options in the area, log on to: www.thedallasartsdistrict.org/plan-your-visit/parking/index.htm
May 2 0 1 2
Focus
D al l as Bar A ssoci ati on l Headnotes 9
Real Property/Environmental Law
Loan Modifications: A Few Considerations by Laura McClellan
Modifying a mortgage loan requires careful thought and attention to prudent processes. During real estate downturns, commercial mortgage loans may be difficult to refinance, and borrowers often suffer from insufficient cash flow to service their debt. In some cases, lenders might prefer to modify delinquent or nonperforming loans rather than foreclose and take on the headaches of owning property that it cannot dispose of quickly. By granting temporary or permanent concessions, the lender sometimes can prevent a default and enable the borrower to continue servicing the debt. In return, sometimes the lender’s security can be enhanced, perhaps by obtaining additional collateral. While not comprehensive, following is a list of some factors that should be considered when modifying a commercial mortgage loan: Seek junior lienholders’ consent, where appropriate, in order to preserve lien priority. Even if the recorded mortgage or deed of trust expressly reserves the lender’s right to modify, the prudent lender will carefully evaluate the potential claims of any junior lienholders. A modification that could impair a subordinate lienholder’s ability to collect on its lien could result in the senior mort-
gagee’s loss of priority unless the junior lienholder consents. This is particularly relevant if the proposed modification will increase the interest rate or the principal amount of the debt, or will shorten the time for repayment. On the other hand, a modification that extends the time for repayment or reduces the monetary obligations (e.g., interest rate or principal amount) might actually benefit the junior lienholders. Nevertheless, the prudent lender will carefully review the title to the real property that secures the loan, and seek consent from any junior lienholders if and where appropriate. Protect the lender’s title insurance coverage. Lender title policies expressly exclude coverage for any post-issuance modifications to the insured deed of trust. Most jurisdictions, however, provide for the issuance of an endorsement to the lender’s policy to assure the lender that its title insurance coverage will not be impaired by the execution and delivery of the modification. Under appropriate circumstances, Texas title companies can issue a T-38 endorsement. This endorsement insures that “the company will not claim that the policy coverage has terminated or that policy coverage has been reduced solely by reason of the execution of the modification agreement described in the endorsement.” As a condition
to issuing this endorsement, the title company will want to review the proposed agreement to confirm that it falls within the parameters of the types of modifications that can be insured by means of this endorsement. Obtain the consent of any guarantors. In general, a guarantor will be released from liability under its guaranty if the principal obligation is modified without the guarantor’s consent, often regardless of whether the guarantor waived notice of modification in his or her guaranty. The best practice is to have the guarantor(s) sign the modification, acknowledging and consenting to the modified terms and reaffirming the obligations under the guaranty for the loan as modified. Record the executed modification promptly in the real property records of the county where the real estate is located. This will put the public (and thus future lien claimants) on notice of the loan’s modified terms. Again, the goal is to preserve the modified mortgage lien’s priority over subsequent liens. Consider bankruptcy implications. For example, if the lender requires additional collateral in return for concessions, the receipt of that additional collateral might be deemed a preferential transfer under the bankruptcy code. The modification agreement should
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include a borrower warranty that no bankruptcy proceedings are pending or contemplated, and the lender should evaluate the borrower’s financial condition to satisfy itself as to the risk of a bankruptcy filing soon after the modification is filed. Clean up the record. Each modification is an opportunity to review the loan file and correct any oversights or errors in the original loan documentation. Review the file carefully to understand the current status of the loan documentation, including any prior modifications. Everything can be corrected in the modification agreement, including incorrect dates, recording data, omission of key waivers, warranties, or other provisions. If a party’s notice addresses have changed, the record can be updated to reflect current information. Check for the need for UCC continuations or amendments. Confirm the authority of the borrower parties who are consenting to the modification, including the entities’ legal existence and good standing status. Check whether relevant organizational documents have been amended HN since loan origination.
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
May 2012
I Don’t Know What You Do and It’s Your Fault by Dana C. Palmer, Esq.
I conducted an experiment. I asked lawyers a very simple question: “What do you do?” A lot of lawyers clearly have not prepared an answer to that icebreaker question and it is a problem. Let me show you what I mean. Here are some poor, but common, answers that I frequently get: “I do… “transactions,” “family law,” “personal injury,” “I am a litigator.” I get even worse answers from lawyers who do a bunch of things or have long-winded, unspecific answers. Because I am space limited I will leave those to your imagination, but you will need an extra drink coupon for some of them. A bad response to the simple question, “So what do you do?” foregoes a
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real opportunity to differentiate yourself and develop someone’s interest in further conversation. The real opportunity presented when asked what you do is to answer the questions: “If you could wave a magic wand, what could you do for me?” and “Why should I care besides simple politeness?” They are asking you to give them your “magic” statement. Here are some of the best answers so you can see what I mean: “I fight to keep the cops hands off your blood!” - Bill Clanton, San Antonio. “I help my clients with their soap opera situations.” -Kimberly Wright, Dallas. “I help entrepreneurs do the deals they want without the taxes they don’t.” - Christopher Cunningham, Dallas. Bill’s “magic” statement instantaneously associates the words “cops” and “blood” with Bill’s name. Any time anyone is confronted with—or even hears about—a cop taking someone’s blood they are going to think of Bill and call him if they are in trouble. His credibility is instantaneously established and people know he is passionate and will fight for them if they are in that situation. So, how do you get a magic statement? Here are some basic rules: Ask yourself “Who do you help?” If you’re a transactional lawyer and you want entrepreneurs as clients, try “I structure deals for entrepreneurs.” If you are a litigator, try “I defend entrepreneurs who have been sued.” Use verbs like, “protect,” “defend,” “fight for” and “help.” Keep it simple. Lawyers tend to be complex and long winded. Boil it down and boil it down and boil it down. Be concise, to the point and interesting! Make it great for both lawyers and non-lawyers and say it the same way to everybody so it becomes conversational. Do a role-play. You have to practice saying your magic statement out-loud. Literally. Try it and refine it. Remember, it is not a brochure, it is a hook. Your magic statement should get someone that you would want to do business with excited about doing business with you. It is also not designed to sell the service. It should be designed to create an image that triggers a memory of you in their mind. When they are confronted with a specific situation in the future a day, a week or a year from now, they will think of you.
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One of the most important first steps is to PICK A NICHE! Other lawyers as well as lay people like lawyers with a niche. It is easier to remember. You get instantaneous credibility and every other lawyer in town can send you cases without worrying that you are going to take a case in their niche away from them in the future. Referrals multiply! In my case, my answer once was, “I do personal injury, car wrecks, slipand-falls, criminal defense (mostly DWI), divorces, write wills and occasionally do traffic tickets.” That answer was terrible! In the past, no DWI lawyers would send me any divorce cases because it could cost them a DWI client in the future. Now, “I help people get a Soft Divorce …because divorce doesn’t have
to be so hard!” I use it as a trademark and by the time I mention “softdivorce. com” in the follow-up conversation they smile and remember it forever. Now that I no longer defend DWI’s, I get referrals from my DWI lawyer friends. I also fill a need for them because I send them my DWI clients and they have someone to take care of their divorce referrals. Win for me, win for them and win for the clients. If you develop a great magic statement, then people will remember you. When fellow lawyers have a client who asks for a referral in your niche, your name will immediately come to mind. HN So, “what do you do?” Dana C. Palmer is the owner of the Law Offices of Dana C. Palmer, P.L.L.C. He can be reached at dana@softdivorce.com.
Future DBA President? Jane Vanden Eykel, granddaughter of DBA Past President Ike Vanden Eykel, shows her support of the DBA.
May 2 0 1 2
Focus
Dal l as Bar A ssoci ati on l Headnotes 11
Real Property/Environmental Law
Merger Clauses and Fraudulent Inducement Claims by Tracye McGaughy and Laura Keith Tapply
Recently, the Texas Supreme Court issued its opinion in Italian Cowboy Partners, Ltd. v. Prudential Insurance Co. of America, 341 S.W.3d 323 (Tex. 2011), clarifying existing case law relative to waivers of fraudulent inducement claims. The Court held that the acknowledgment by a tenant in a lease that the landlord made no representations about the leased premises except as set forth in the lease did not prevent the tenant from bringing claims for fraudulent inducement for pre-lease misrepresentations regarding the premises. In Italian Cowboy, the landlord, Prudential, leased premises to Italian Cowboy Partners, Ltd. for restaurant use. The landlord’s agent repeatedly made representations to the tenant’s owners and operators, Francesco and Jane Secchi, that the agent was familiar with the premises and knew of no problems with the property. After signing the lease and beginning renovations on the premises, the Secchis learned that the previous tenant, also a restaurant, had experienced persistent problems with a sewage odor in the building. The Secchis contacted the landlord’s agent, who said she knew nothing about the odor. Although the Secchis and the landlord attempted to remedy the source of the odor, their efforts were unsuccessful. The tenant briefly opened for business but was unable to draw customers. The Secchis then learned that the previous tenant had informed the landGRP1203-DallasBarAd-10_25x7_75-F.pdf lord’s agent of the persistent odor on 1
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several occasions. The Secchis ceased paying rent, closed the restaurant, and filed suit for fraudulent inducement, among other claims. At trial, the landlord relied on a merger clause, arguing that the tenant had acknowledged in the lease both that the landlord had made no representations except as set forth in the lease, and that the lease contained the entire agreement of the parties. The landlord contended that the tenant was therefore precluded from bringing claims for fraudulent inducement. The trial court found that the landlord was aware of the odor and found for the tenant. The appellate court reversed and rendered a take-nothing judgment. The Texas Supreme Court reversed the appellate court’s judgment, holding that the lease did not contain clear and unequivocal language showing that the tenant intended to waive reliance on any representations made or otherwise specifically waive fraudulent inducement claims and, therefore, did not prevent the tenant from bringing a fraudulent inducement claim. Although the lease stated that the tenant acknowledged that neither the landlord nor the landlord’s agents had made any representations with respect to the premises and that the lease constituted the final agreement between the parties, the Court found that a plain reading of these two provisions merely indicated the parties’ intent to include a standard merger clause that would supersede any previous agreements and would negate the apparent authority of an agent to later modify the contract terms. The Court cited 4/13/12 11:19 AM long standing case law holding that a
merger clause can be avoided by fraud in the inducement and that the parol evidence rule “does not stand in the way of proof of such fraud.” To preclude claims for fraudulent inducement, there must be clear and unequivocal language disclaiming reliance on any representations that were made or clearly expressing the parties’ intent to waive fraudulent inducement claims. The lesson appears clear for those drafting leases on behalf of landlords that a provision including clear and unequivocal language disclaiming reliance on any representations by a landlord or landlord’s agents or an express release of claims for fraudulent inducement, should be included in the lease. However, it is also clear, as stated in the Court’s holding, that a disclaimer standing alone will not necessarily preclude a fraud claim. A disclaimer may not be enough to protect a landlord if it knows about material defects
in the premises that it fails to disclose or if the landlord makes misrepresentations about the premises. A tenant, of course, will want to avoid a release of fraudulent inducement claims, and may want to require the landlord to represent either that it knows of no material defects in the premises or to provide a disclosure of all known defects. While Italian Cowboy involved a lease contract, the same lessons apply to the negotiation and drafting of most other types of contracts, as demonstrated by the holdings of Texas courts in subsequent cases extending this principle to other types of contracts. Care should always be taken to ensure that the parties’ intent is clearly expressed HN in the contract. Tracye McGaughy is an associate at Higier Allen & Lautin, P.C. and can be reached at TMcGaughy@higierallen.com. Laura Keith Tapply is Corporate Counsel for Genghis Grill and can be reached at Lori@genghisgrill.com.
Dallas Volunteer Attorney Program Presents
GUARDIANSHIP AD LITEM ATTORNEY CERTIFICATION COURSE (MCLE 3.00) Tuesday, May 22, 1:00-4:00 p.m., Belo Pavilion Speakers include: Hon. Michael E. Miller, Hon. Brenda Hull Thompson, Hon. Chris Wilmoth, Hon. John Peyton, and experienced probate, guardianship and elder law practioners. Register online at www.dallasbar.org. For more information, contact Alicia Perkins, perkinsa@lanwt.org, or Chris Reed-Brown, reed-brownc@lanwt.org.
12 H e a d n o t e s l D a l l a s B a r A s s o ciation
LAW DAY 2012 No Courts, No Justice, No Freedom
May 2012
Maroyce Harvey , 12th Grade First-Place Winner H. Grady Spruce High School
Each year, the American Bar Association sponsors Law Day, and regional bar associations, including the Dallas Bar Association, host various events, programs and contests to commemorate the chosen theme. Law Day not only educates students and citizens about our government, but also the legal system itself. One of its main goals is to focus students’ attention on important constitutional principles. As part of the DBA’s Law Day celebration, the association sponsors essay, art and photography competitions for Dallas ISD students in grades K-12. This year’s winners depicted the Law Day theme of “No Courts, No Justice, No Freedom.” Here are some of this year’s winning entries. You can see all the entries at the Law Day Luncheon on Friday, May 4, at the Belo Mansion with keynote speaker Hon. Sam Lindsay, where the DBA will honor our judiciary and recognize the winners of this year’s Law Day contests.
Tera Skinner, 2nd Grade First-Place Winner Henry B. Gonzalez Elementary
Kendric Goodloe, 3rd Grade First-Place Winner R.C. Burleson Elementary
May 2 0 1 2
Focus
Dal l as Bar A ssoci ati on l Headnotes 13
Real Property/Environmental Law
Texas Supreme Court Amends Home Equity Foreclosure Rules by Mark Torabi
On December 30, 2011, the Texas Supreme Court issued its Amended Final Approval of Amendments to Texas Rules of Civil Procedure 735 and 736 governing foreclosure of certain liens, which became effective January 1, 2012. These rewritten rules include significant new requirements for both the form and contents of the application for order allowing foreclosure of home equity loans, reverse mortgages and home equity lines of credit. Additionally, the Supreme Court expanded the scope of the rules to include foreclosures of transfer tax, or tax loan liens, as well as certain property owner association assessment liens. Notable procedural changes also include a new requirement for issuance of separate citations for each respondent and occupant, with service and returns to be completed by the clerk of court. Several key areas affected by the
amendments to the rules are highlighted below.
Required Contents of Application and Affidavit
Though applicants have always been required to attach a supporting affidavit with evidence proving up the existence of a default, the rules now specifically require that the application describe or state as of a date not more than 60 days prior to the date the application is filed: 1) number of months in default; 2) amount required to cure the default, and; 3) the amount required to pay off the lien. If the default is non-monetary, the affidavit must establish the facts creating the default. In addition, documents establishing the lien, including any necessary assignments, must be attached to the affidavit. Finally, legible copies of all required notices and associated proofs of mailing must also be attached to the supporting affidavit.
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.
Procedural Changes
Whereas under the former rule, it was the applicant who prepared and mailed the required notices to respondents, the clerk of court must now issue separate citations for each respondent named in the application along with a citation addressed to the ‘occupant’ of the property. The clerk of court must serve all citations by regular and certified mail and complete a return of service in accordance with Rule 107, except that the return of service need not contain a return receipt. The new rules have also been expanded to include applications for foreclosure of liens securing tax lien transfer or property tax loans in accordance with Section 32.06 (c-1)(1) of the Tax Code, as well as foreclosure of certain property owner association assessments under Section 209.0092 of the Property Code.
Time Lines for Courts to Act
The new rules provide definitive time lines for courts to act. If a response is filed, the court must schedule a hearing. The hearing must be scheduled no earlier than 20 days, but no later than 30 days after a request for hearing by any party. However, courts can no longer require a hearing if no response has been filed. Upon the filing of a motion for default, the court must grant the order within 30 days if the application and returns are in compliance with the rules.
Automatic Stay and Dismissal
Upon the granting of an order allowing foreclosure, the amended rules eliminate the need for respondents to file a last minute temporary restraining order to stop a scheduled foreclosure sale pursuant to a Rule 736 order. The sale is automatically stayed if respondent files a separate suit putting any matter relating to the application in issue prior to 5:00 p.m. on the Monday before the scheduled foreclosure sale. Any foreclosure sale held after such automatic stay is in place is void. On the other hand, if no order has been signed by the court at the time such suit is filed, the court must dismiss a pending proceeding upon timely motion by the respondent. In conclusion, the amendments to Rules 735 and 736 place greater emphasis on procedure and timing for both applicants and the courts. Notice procedures have been substantially modified, now requiring issuance of separate citations for each respondent and occupant, with service and returns completed by the clerk of court. Applications must include all documents establishing the lien along with all requisite notices and proof of mailing. Thus, for any applications submitted in conformity with the new rules, both applicants and the courts should be rewarded with a quicker, more efficient, and potentially less costly, application HN process.
Mark Torabi, of Pite Duncan, LLP, can be reached at mtorabi@piteduncan.com.
Judge Barbara M.G. Lynn Receives Fellows Award
Sponsored by DBA and the World Affairs Council of DFW
DVAP’s Finest Ilene Breitbarth
Ilene Breitbarth has been a volunteer attorney with the Dallas Volunteer Attorney Program Conflicts Panel since August 2011. These matters include pure conflicts, those cases where a DVAP or Legal Aid attorney is representing one of the parties and there is a need for an Attorney Ad Litem to be appointed to represent a missing respondent, or a Guardian Ad Litem is needed to represent a child in a matter in family law court, or a party who has been declared incompetent in probate court. Her responsibilities include creating new files for Conflict matters, and doing related data entry in the Conflicts database. She also sends status inquiry letters to volunteer attorneys to check the status of the conflict cases they are handling and helps close files when matters have been concluded. Ilene currently spends two days per week volunteering with DVAP. Thanks for all you do, Ilene!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
In March, the Dallas Bar Foundation presented Judge Barbara M.G. Lynn with the Fellows Award. In attendance were (left to right) DBF Fellows Chair Karen Gren Johnson; Judge Lynn; and DBF Chair Russ Coleman.
14 H e a d n o t e s l D a l l a s B a r A s s o ciation
In the News
May
FROM THE DAIS
David B. Moseley, Jr. of Glast, Phillips & Murray, PC presented “Have Gun, Will Travel – Dealing with Concealed Firearms in the Hospitality Industry” at the 2012 Hospitality Law Conference. Todd Basile, of Klemchuk Kubasta LLP, taught intellectual property fundamentals to Fort Worth’s Eastern Hills High School.
KUDOS
Abby Gregory, of McClure Law Group, has been named an Associate. Gary Lawson, of Strasburger & Price, LLP, was elected Chairman of the Board of Directors of Snowball Express. He is ViceChairman of America’s Huey 091 Foundation and is a member of the Board of Directors of FIRST in Texas. John M. Cox, of John M. Cox & Associates, P.C., served on the faculty of the Texas Association of Defense Counsel 2012 Trial Academy at the South Texas College of Law in Houston. Michael V. Powell, of Locke Lord LLP, has become a Fellow of the American College of Trial Lawyers. Rhonda Hunter, of Farrow-Gillespie & Heath LLP, has been named this year’s winner of the Distinguished Alumna Award by Women in Law, SMU Dedman School of Law. Robert M. (Bob) Clark, of Eddleman & Clark, has been elected as the 98th President of the Texas Society of the Sons of the American Revolution. Terrell R. Miller and C. Scott Tuthill, of Gardere Wynne Sewell LLP, have been
May 2012
. . . . . . DBA In the News . . . . . . During the past few months, your DBA has been highlighted in the following media:
Receive MLK Award, DVAP Hosts Free Divorce Legal Clinic; Equal Access to Justice Campaign Raises $800,000 PRLog.com: 2012 DBA Board of Directors Elected, DVAP Hosts Free Divorce Legal Clinic, Equal Access to Justice Campaign Raises $800,000
Worthy Walker, of Elrod, PLLC, has been named Partner.
Dallas Business Journal: DBA’s Habitat for Humanity, 2012 DBA Board of Directors Elected, DBA President Paul K. Stafford, Dr. Sutton to Receive MLK Award, Slack & Davis Donates $15,000 to EAJ Campaign
ON THE MOVE
Dallas Examiner: MLK Luncheon
promoted to Partner. Randy Gordon, also of the firm, has released the book “Rehumanizing Law: A Theory of Law and Democracy.” Thomas G. Jacks, of Chalker Flores, LLP, has been named Partner.
Rhonda Hunter has joined FarrowGillespie & Heath LLP as Partner T. Hunter Lewis has joined Kinser & Bates, LLP as Associate. Brandon Bartee has joined Winstead PC as Associate. Bryan Green and Julia Jones have joined Hermes Sargent Bates, LLP as Associates. Candice Carson has joined Weil, Gotshal & Manges LLP as Associate. Chris Fuller has joined Wick Phillips Gould & Martin, LLP as Partner. Christian S. Kelso has joined Malouf Lynch Jackson & Swinson, P.C. as Of Counsel. J. Allen Sullivan Jr. has joined the Birmingham office of Burr & Forman as Associate. Lawrence T. Bowman, Wade L. McClure and Alan L. Rucker have joined Kane Russell Coleman & Logan PC. McClure and Rucker joined the firm as Directors. Marybeth Conlon has formed The Conlon Law Firm, P.C., located at 8333 Douglas Ave., Suite 1414, Dallas, Texas 75225.
Dallas Morning News: Legalline, MLK Luncheon, Transition to Law Program, Equal Access to Justice Campaign Raises $800,000, Senate Candidate Forums DallasSouthNews.org: DVAP Hosts Free Divorce Legal Clinic Focus Daily News: 2012 DBA Board of Directors Elected, Equal Access to Justice Campaign Raises $800,000 Fort Worth Star Telegram: Senate Candidate Forums, Legalline Mesquite News: Clinic, Legalline
DVAP
Divorce
Metro Latino Magazine: State of the County Forum North Dallas Gazette: Dr. Sutton to Receive MLK Award, DVAP Hosts Free Divorce Legal Clinic OpenPR.com: 2012 DBA Board of Directors Elected, Dr. Sutton to
Royse City Herald Banner: Philbin Awards Rowlett Lakeshore Times: Legalline, DVAP Hosts Free Divorce Legal Clinic SBOT newspaperclips.com: 2012 DBA Board of Directors Elected; Dr. Sutton to Receive MLK Award, Equal Access to Justice Campaign Raises $800,000 State Bar of Texas website: Dr. Sutton to Receive MLK Award Texas Bar Blog: DVAP Hosts Free Divorce Legal Clinic Texas Bar Journal: Receives MLK Award
Dr. Sutton
Texas Lawyer: Sally Crawford elected President-Elect, 2012 DBA Board of Directors Elected ThinkProgress.com: Senate Candidate Forums White Rock Weekly: Past President Darrell Jordan named Chairman of DSM
Thank You Judges!
Thank you to our Criminal, Family, Probate and Civil Court Judges for their participation in the DBA’s Dallas Minority Attorney Program. (left to right) Hon. Doug Skemp, Hon. Elizabeth Frizell, Hon. Elizabeth Crowder, Hon. Carter Thompson, Hon. Ernest White and Hon. Robert Burns.
Our mediation office in Dallas, Texas serves clients in an atmosphere of fairness and excellence. Focused on Resolution
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Mike McCullough works to resolve
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9400 N. Central Expwy., Suite 1305
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Dallas, TX 75231
(left to right) Hon. Tena Callahan, Hon. Kenneth Molberg, Hon. Michael Miller, Hon. Carlos Cortez, Hon. King Fifer and Hon. Dale Tillery.
(214) 365-9000
Dedication of DBA’s Habitat for Humanity House Saturday, May 5, 10:00 a.m. at 3807 Jamaica, Dallas, TX • Please join us as we turn over the keys to the homeowner. DBA Home Project Wrap Party • Thursday, May 24, 6:00 p.m. St. Pete’s Dancing Marlin, 2730 Commerce Street, Dallas, TX Still Need to Make Your Donation? • The DBA’s Home Project is building its 21st house for Habitat for Humanity, and your contributions are needed. To donate, log on to www.dbahp.com or make checks payable to Dallas Area Habitat for Humanity and mail to Teddi Rivas, c/o DBA, 2101 Ross Ave., Dallas, TX 75201.
May 2 0 1 2
Classifieds
Dal l as Bar A ssoci ati on l Headnotes 15
May
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 or email: Law@Lenahan.com. www.SevereInjuryLawFirm.com. 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. Unfurnished office space for rent with Uptown family law/business litigation firm. Great location at Cedar Springs and Maple. Two window offices plus an open workspace. Total of approximately 485 sq. ft. Rent includes underground parking, receptionist, and access to shared kitchen and conference rooms. Postage meter, copier, scanner, and fax also available if needed. Possibility of referral work. Please call (214) 520-7494 or email: cfaust@sullivancook.com for details. 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. Addison office space available within small boutique firm. Great location. Includes use of conference room and kitchen. Phone system, copier, scanner, and fax available. Reception area. Space for assistant. Call (972) 239-3330 or admin@slnlegal.com. 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.
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. Plano Law Firm has one furnished office available in Class-A Space. Located near Park and Preston it includes a dedicated phone line, nationwide long distance, high-speed fiber optic internet with wifi and shared conference space. Contact: James@GiriesLaw.com, (972) 905-7570
POSITION AVAILABLE
Stinnett Thiebaud & Remington LLP a law firm specializing in medical malpractice defense and healthcare law is seeking to hire a 2-5 year attorney with medical malpractice defense experience. Send your resume to Christine Santosuosso, Adm. Mgr., Stinnett Thiebaud & Remington LLP, 1445 Ross Ave., Ste. 4800, Dallas, TX 75202 or e-mail to csantosuosso@strlaw.net or fax to (214) 754-0999. Small AV firm seeks real estate attorney with at least four years’ experience. Email resume to tom@smithcollinslaw.com or mail to 4054 McKinney Avenue, Suite 310, Dallas, Texas 75204. 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. 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.
POSITION WANTED
Downtown Dallas AV Rated Litigation Law Firm seeks experienced lateral partners with portable business in the areas of energy, health care, intellectual property, and commercial litigation. Firm offers excellent office location and support staff. Compensation negotiable. This is an excellent opportunity for attorneys who wish to get away from the large law firm environment. Respond to firmjustice2012@gmail.com.
SERVICES
Associate Attorney - Business Planning and Business Transactions. Bourland, Wall & Wenzel, P.C., a twenty-four attorney law firm located in downtown Fort Worth, Texas, is looking for an exceptional individual who enjoys intellectual challenges, is committed to learning and growing, and strives for a higher standard. We value intelligence, independence, imagination, enthusiasm, a strong sense of purpose, and the ability to get along well with clients and colleagues. Practice Areas: Business Planning and Business Transactions. Experience: 0-2 Years of Experience. Requirements: Strong academic credentials; ties to North Texas; Texas law license or license pending based upon passing February, 2012 Texas Bar Exam. Benefits: Group Health Insurance (for attorney, spouse and dependents), Life Insurance, Disability Insurance, Medical Reimbursement for certain expenses, access to a 401(k) Retirement Plan, and Parking. Applications: Please send cover letter explaining connection to North Texas, resume, undergraduate, law school transcripts and writing sample to e-mail address: operationsmanager@bwwlaw.com or fax (817) 810-0463. Website: For more information about the firm, please visit our website at www.bwwlaw.com. United States Magistrate Judge. Northern District of Texas. The U.S. District Court for the Northern District of Texas is seeking qualified applicants for a full-time magistrate judge position in Dallas. Annual salary: $160,080. The full notice is available at the offices of the U.S. District Clerk throughout the Northern District of Texas and on the court’s Internet website at www. txnd.uscourts.gov. Application forms will be available on the website on or after April 13, 2012. Applications must be submitted to Karen Mitchell, Clerk of Court, U.S. District Court, Northern District of Texas, 1100 Commerce Street, Room 1452, Dallas, TX 75242. Application deadline: June 12, 2012. The Court reserves the right to modify the conditions of or to withdraw this job announcement.
AV rated and Board Certified Commercial Real Estate attorney in Dallas with 30+ years of experience with significant portable business in Commercial Litigation, Real Estate, Family Law, Estate Planning, Bankruptcy and Oil and Gas is seeking to join a small to medium size firm in the North Dallas. Please send emails to legalopportunity@yahoo.com. Diamond And Gold Buyer. Buying all types of Diamonds, Immediate Cash Paid. Consignment terms available @ 10 -20% over CASH. For consultation and offers please call (214) 739-0089. 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. 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. 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. Phone: (972) 495-6272. PLACE YOUR AD HERE! For affordable classified advertising rates call Judi Smalling at: (214) 220-7452 or email her at jsmalling@dallasbar.org.
Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.
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
Mark Your Calendar for the SBOT 2012 Annual Meeting The 2012 State Bar Annual Meeting is in Houston June 14-15. For more information and to register, visit www.texasbar.com/annualmeeting.
16 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
Figure It Out
May 2012
Fight It Out
GoransonBain has the resources and the talent you need to get you through your divorce, regardless of the direction it takes. Whether at the courthouse or the negotiation table, GoransonBain will work with you to develop the strategy that best meets your objectives, and then aggressively protect your interests. Since 1987, we’ve successfully guided our clients through virtually every issue of Family Law. Whatever issue you may be facing, contact GoransonBain for the skill and experience you need to help you achieve the best possible outcome. gbfamilylaw.com.
Goranson Bain, PLLC :: Dallas 214.373.7676 :: Plano 214.473.9696 :: gbfamilylaw.com Front Row :: Aimee Pingenot :: Thomas Greenwald :: Angeline Bain :: Beth Maultsby :: Lindley Bain :: Jim Mueller :: Natalia Duque Back Row :: Patrick Kelly :: Jeff Domen :: Kathryn Murphy :: Thomas Goranson :: Paula Larsen :: Curtis Harrison :: Clint Westhoff