Dallas Bar Association
HEADNOTES April 2010 Volume 34 Number 4
Focus Environmental Law
st Century: Law in the 21 Al Ellis—the 2010 Emerging Challenges and Enduring Traditions Justinian Award U.S. District Judge Barbara M.G. Lynn Keynote Speaker
by Jan Lamoreaux
A
l Ellis’ life represents what makes the Dallas Bar Association such an important leader in our community. His philosophy of life and service to the legal profession and community is: To live is to become involved; to become involved is to care; to care is the essence of being. So, do all you can, in the time you have, in the place you are. Through his unselfish volunteer service, commitment and actions, Al represents the very best of the legal profession. From his early days as a Jaycee and Dallas Golden Gloves Tournament Director, to his later years as a Habitat for Humanity volunteer (getting his hands dirty week after week), he has continuously devoted his time to helping people less fortunate, content to Al Ellis stay out of the limelight, without expectation of recognition or reward. Because Al has unselfishly given his time and considerable energy to help individuals, families and our community through his incredibly deep sense of justice and service to others, Dallas Lawyers Auxiliary is honored to present him the prestigious 2010 Justinian Award for community service on April 28. The award is presented annually to a member of the Dallas Bar Association who is or has been a practicing attorney for the major portion of his or her life, and who has actively demonstrated a long-standing dedication to volunteer service in the Dallas community. Judges for the award were prominent Dallas civic leaders — Paul M. Bass, Jr. (recently deceased), Barbara Hunt Crow, Roy Gene Evans, Michael A. Jenkins and John McCaa. Following graduation with honors from South Oak Cliff High School and the University of Texas at Arlington and a tour of duty in Vietnam as an Airborne/Infantry officer, Al obtained his J.D. from Southern Methodist University. While attending SMU, he was student chief counsel for the SMU Legal Clinic and on the staff of the Journal of American Law and Commerce. As a board certified personal injury trial lawyer for 38 years, Al has tried more than 175 jury trials. For his work in the trial arena, he has been selected as a member of the prestigious International Academy of Trial Lawyers. He advocates with grace and dignity for those who need his help. He is currently “Of Counsel” with Sommerman & Quesada, L.L.P. He and wife, Sandy, have three children: Joshua Kyle Ellis, Mike Fahey and Jennifer Fahey. Past leadership roles include Tournament Director of Dallas Regional Golden Gloves Tournament (1976-1996), and presidencies of the Dallas Bar Association, Dallas Trial Lawyers Association, Dallas Association of Young Lawyers, American Board of Trial Advocates (Dallas chapter), Texas Center continued on page 14
by Jamie J. McKey
I
t is fitting that the theme for Law Day 2010 deals with the timeless battle between balancing new challenges with eternal traditions. As the entire world came together to witness the equilibrium between new competition and unchanging folklore at the 21st Winter Olympic games we were reminded that, like past Olympians, we too grapple with maintaining balance in our non-Olympian lives. Like Olympians from all over the world who compete in gaming events today as they did in ancient times, the American Bar Association offers that those involved in the law must remain committed to “the enduring principles of law, Hon. Barbara M.G. Lynn
become knowledgeable about other legal systems, recognize the need to adapt our practices and acquire new cultural understandings.” In 1958, President Dwight D. Eisenhower issued a proclamation declaring the first Law Day. As he so eloquently stated, “In a very real sense, the world no longer has a choice between force and law. If civilization is to survive it must choose the rule of law.” The basic underlying premise of the law is the same today as it was when President Dwight D. Eisenhower issued the proclamation, “the people of this Nation should remember with pride and vigilantly guard the great heritage of liberty, justice and equality under law which our forefathers bequeathed to us.” President Eisenhower believed that the “universal application of the principles of the rule of law in the settlement of international disputes would greatly enhance the cause of a just and enduring peace.” In its more than 50-year history, Law Day has encouraged the public to embrace this sentiment. One of the goals of Law Day is to assure that today’s youth are equipped with the understanding and the skills necessary to effectively function within our country’s continued on page 6
DISD H.S. Mock Trial Team Heads to National Competition by Jessica D. Smith
I
s the Yarbro Hoffseal guilty of causing the death of one Robin McConnagal because of its in-dash AzureTooth texting option? During an afternoon drive, Jamie Tiguan driving his 2009 Hoffseal, struck a bicycle, killing the rider Robin McConnagel. Should the Yarbro company be held responsible for the incident because it disabled the safety option on the Hoffseal’s texting feature, thus allowing the driver to text while driving? These and other “fictitious facts” were examined and argued by 2,000 students statewide who have participated in the High School Mock Trial Competition since last fall. Students at nearly 150 schools scrutinized witness statements and exhibits, as 24 teams advanced to the 31st Annual Texas High School Mock Trial Competition held in Dallas in March. Schools representing the DFW area at the state competition included: Booker T. Washington Arts Magnet High School (Dallas), Carrollton Creekview High School, North Hills Prep (Irving), Richardson High School, Skyline High School (Dallas) and Ursuline Academy (Dallas). After four rounds at the Frank Crowley Courts Building, the final championship round—between Booker T. Washington and Carrollton Creekview—was held Saturday, March 6, at the Earle Cabell Federal Court Building, and presided over by U.S. District Judge Barbara M.G. Lynn. Taking top honors at this year’s state competition was Booker T. Washington High School. The eight-member team prevailed in the championship round and will rep-
Inside 3 How to Select and Use Environmental Consultants 6 Voluntary Disclosure and Privilege Waiver 10 Social Networking and Lawyers
Booker T. Washington High School bested its competition and was named the winner of the 31st Annual Texas High School Mock Trial Competition on March 6 at the Earle Cabell Federal Courthouse.
resent Texas at the National High School Mock Trial Championship in Philadelphia next month. The win marks the second time in 2 years that a Dallas ISD school won the competition. Coming in second place was Carrollton Creekview High School, and third-place trophies and scholarships were presented to Monsignor Kelly Catholic High School of Beaumont and Ursuline Academy of Dallas. The Judy Yarbro Professionalism Award, underwritten continued on page 9
‘Experience Exchange’ Mentoring Dinner: 20 Years In 2 Hours Tuesday, April 13 ~ 6 - 8 p.m. ~ The Belo Mansion Sponsored by the DBA Minority Participation Committee. An exchange of ideas and experiences between attorneys of color—to build relationships within the minority legal community. Ideal for lawyers licensed less than 10 years. Registration Fee: $20 for lawyers (or $10 for law students). Includes dinner and parking. Registration deadline: Friday, April 9. Contact ahernandez@dallasbar.org or (214) 220-7499.
2 H e a d n o t e s l D a l l a s B a r A s sociation
Calendar
April Events
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
FRIDAY CLINICS April 9 – North Dallas
Noon
“If You’re Going to the Courthouse, Please File This for Me: Ten Documents Which Must be Filed in the Trial Court to Preserve Error for Appeal” Chad Ruback. Two Lincoln Centre is located at 5420 Lyndon B. Johnson Frwy., Suite 240 Dallas, Texas 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Thank you to our sponsor, Griffith Nixon Davison, P. C. (MCLE 1.00)*
April 16– Belo Mansion Noon
“Environmental Law Considerations in Business and Real Property Transactions,” Jon Bull. (MCLE 1.00)*
THURSDAY, APRIL 1
Public Forum Committee
Noon
Construction Law Section “Case Law Update,” Joseph F. Canterbury, Jr. (MCLE 1.00)*
DAYL Environmental Awareness Committee
Texas General Counsel Forum
Family Law Section Board
5 p.m.
DAYL Judicial Orientation
Judiciary Committee
St. Thomas More Society
5:30 p.m.
Bankruptcy & Commercial Law Section “DIP Franchising,” David Weitman, Judith Ross and Lynette Warman. (MCLE 1.00)*
Tort & Insurance Practice Section “Insurance Law Basics—What You Need to Know,” Lisay Songy, Mike Huddleston and Beth Bradley. (Ethics 2.00)*
DAYL CLE Committee
FRIDAY, APRIL 2
DBA offices closed for Good Friday.
MONDAY, APRIL 5
Tax Section “Bankruptcy Tax Issues,” Manuel Lena. (MCLE 1.00)*
Noon
A pri l 2010
Peer Assistance Committee
TUESDAY, APRIL 6 11:30 a.m.
Federalist Society
Noon
Tort & Insurance Practice Section “What You Need to Know About the Stowers Doctrine,” John Tollefson, Mark Kincaid and Michael Quinn. (MCLE 1.00)*
Morris Harrell Professionalism Committee
5:30 p.m.
Bar None Auditions. Annual variety show in June includes skits and songs poking fun at lawyers, the law and current events, and benefits the Sarah T. Hughes Diversity Scholarships at SMU Dedman School of Law. For more information, contact mhardwick@shacklaw.net.
6 p.m.
DAYL Board of Directors
WEDNESDAY, APRIL 7 Noon
Employee Benefits & Executive Compensation Section In-House Employee Benefits Counsel Presentation,” David B. Blake, Marc Schoenecker, Jarrett R. Andrews. (MCLE 1.00)*
Solo & Small Firm Section “Going Paperless,” Gary Fitzsimmons. (MCLE 1.00)*
Legal Ethics Committee “Nine Treacherous Ethical Pitfalls in Settlements and Mediations,” Corbet Bryant. (Ethics 1.0)*
THURSDAY, APRIL 8 11:30 a.m.
DAYL Barristers for Babies
Noon
Collaborative Law Section “Limited Scope Services: Providing Value to Clients on their Terms,” Larry Hance. (Ethics 1.0)*
Legal History Discussion Group “Postbellum Blain Amendments,” Prof. Richard Fossey. (MCLE 1.00)*
Publications Committee
DAYL Freedom Run Committee
6 p.m.
J. L. Turner Legal Association
FRIDAY, APRIL 9
8:45 a.m.
Dallas Minority Attorney Program Learn more about business development and practice management for the solo, small firm, and minority attorney. RSVP to Alicia Hernandez at ahernandez@ dallasbar.org. (MCLE 7.00)*
Noon
Friday Clinic – North Dallas “If You’re Going to the Courthouse, Please File This for Me: Ten Documents Which Must be Filed in the Trial Court to Preserve Error for Appeal” Chad Ruback. Two Lincoln Centre is located at 5420 Lyndon B. Johnson Frwy., Suite 240 Dallas, Texas 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Thank you to our sponsor, Griffith Nixon Davison, P. C. (MCLE 1.00)*
Trial Skills Section “Preparing a Successful Trial Strategy
Annual Evening Ethics Fest Thursday, May 13, The Pavilion at the Belo Mansion Check-In and Dinner begins at 4:45 p.m., Program begins at 5:30 p.m. (3.0 Ethics) • “Experts on Ethics” (Judges Panel) • “Ten Ways to Avoid Getting Sued for Malpractice” (Bill Cobb, Coyt Randall Johnston) • “Avoiding Big Problems for Small Firms” (Suzanne Raggio Westerheim, Florentino Ramirez, Sr.) • “Current Issues in Multiple Party Representations” (William D. Elliott, George W. Coleman, Prof. Linda Eads)
Online registration available at www.dallasbar.org For more information, contact Alicia Hernandez at (214) 220-7499 or AHernandez@dallasbar.org.
Sponsored by the DBA Legal Ethics Committee
and Making it Work at Trial,” Ladd Hirsch, Jason Fulton, Andy Ryan, and Paul Malouf. (MCLE 1.00)*
MONDAY, APRIL 12 Noon
Alternative Dispute Resolution Section “Lawsuit Settlements: Seven Ways to Get There Faster, Better and Cheaper,” John DeGroote, Esq. (MCLE 1.00)*
Real Property Law Section “Nonjudicial Real Property Foreclosures: Legal Considerations and Documentation,” David W. Tomek. (MCLE 1.00)*
TUESDAY, APRIL 13 Noon
Business Litigation Section “The Emperor’s New Clothes: Exposing the Truth from Watergate to 9/11,” Richard Ben-Veniste. (MCLE 1.00)*
Mergers and Acquisitions Section/ Corporate Counsel Section “An Independent Director’s Practical Guide to Selling a Company.” John McKnight, John S. Davis, W.C. Hammett. (MCLE 1.00)*
DAYL Equal Access to Justice Committee
4 p.m.
Senior Lawyers Committee
5:30 p.m.
Government Law Section “From the Client’s Perspective: The Role and Practice of Government Lawyers,” Hon. Angela Hunt, Tommy Gonzalez, Darryl Martin. (MCLE 1.00)*
6 p.m.
‘Experience Exchange’ Mentoring Dinner. Sponsored by the DBA Minority Participation Committee. Deadline to register is Friday, April 9. Contact ahernandez@dallasbar.org.
Home Project Committee
WEDNESDAY, APRIL 14 7:45 a.m.
Dallas Area Real Estate Lawyers Discussion Group
Noon
Family Law Section “Retirement Plans for Business Owners. Accessing Retirement Funds Prior to Age 59 1/2 without a Penalty,” Christy Adamcik Gammill. (MCLE 1.00)*
CLE Committee
House Committee
DAYL Lunch and Learn—Professionalism
DAYL Judiciary Committee
J.L. Turner Legal Association “The Grievance Process,”Panel: David Small, Andrea Plumlee, Leora Olorunnisomo. Moderated by Rhonda Hunter. (Ethics 1.00)* Pending
5:15 p.m.
LegalLine
6:30 p.m.
Courthouse Committee
Christian Lawyers Fellowship
THURSDAY, APRIL 15
Noon
Appellate Law Section “Electronic Filing in the Dallas Court of Appeals,” Justice Robert M. Fillmore. (MCLE 1.00)*
Minority Participation Committee
Dallas Criminal Defense Lawyers Association
Dallas Gay & Lesbian Bar Association
UPL Subcommittee
3:30 p.m.
DBA Board of Directors
FRIDAY, APRIL 16
Noon
Friday Clinic – Belo “Environmental Law Considerations in Business and Real Property Transactions,” Jon Bull. (MCLE 1.00)*
MONDAY, APRIL 19 Noon
Labor & Employment Law Section “Retaliation Update,” Amy Gibson. (MCLE 1.00)*
DAYL Foundation Board
TUESDAY, APRIL 20 Noon
Franchise & Distribution Law Section “License Agreements: Avoiding the Pitfalls of Accidental Franchise,” Lauren Becker. (MCLE 1.00)*
International Law Section Commercial Dispute Resolution in Australia,” Beth Thornburg. (MCLE 1/00)*
Speakers Committee
DAYL Elder Law Committee
WEDNESDAY, APRIL 21 Noon
Energy Law Section Topic Not Yet Available
Health Law Section “Medicare Secondary Payer Act (MSPA),” Sharon Kolbet. (MCLE 1.00)*
Law Day Committee
Pro Bono Activities Committee
Municipal Justice Bar Association
Non-Profit Law Study Group
5:15 p.m.
LegalLine
THURSDAY, APRIL 22 Noon
Criminal Law Section Topic Not Yet Available
Environmental Law Section “What is happening in North Texas with Businesses and the Environment,” Judge Margaret Keliher and Jonathan Shapiro. (MCLE 1.00)*
Mentoring Committee
FRIDAY, APRIL 23 9 a.m.
DVAP Domestic Violence Committee
Noon
Intellectual Property Law Section “Impact of Bankruptcy on IP Litigation and Licensing,” Mark C. Howland. (MCLE 1.00)*
Media Relations Committee
MONDAY, APRIL 26 Noon
Computer Law Section “Brand Enforcement of Social Networking Sites,” Darin M. Klemchuk. (MCLE 1.00)*
Securities Section “Current Issues Regarding Federal Sentencing Guidelines,” Victor Vital. (MCLE 1.00)*
TUESDAY, APRIL 27
Probate, Trusts & Estates Section “Judges Panel,” Hon. Robert E. Price, Hon. Michael E. Miller and Hon. John B. Peyton.” (MCLE 1.00)*
Courthouse Committee
Summer Law Intern Program Committee
6 p.m.
American Immigration Lawyers Association
Dallas Hispanic Bar Association
Noon
DAYL—Diversity of Thought: Moving Beyond Discussions of Black and White and Into the Gray.
WEDNESDAY, APRIL 28 7:45 a.m. 11:30 a.m.
Dallas Area Real Estate Lawyers Discussion Group
Noon
Sports & Entertainment Law Section “Elements of Film Production Contracts,” Justin Winebaugh. (MCLE 1.00)*
Juvenile Justice Committee
DVAP New Lawyer Luncheon. For more information, contact Chris Reed-Brown at reed-brownc@lanwt.org.
Justinian Award Luncheon, honoring Al Ellis. For reservations, contact Tina Gwinn at tina@gwinn.net or 214-526-9828.
THURSDAY, APRIL 29 No DBA meetings scheduled.
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 KTarangioli@dallasbar.org.
April 2 0 1 0
Focus
Dal l as Bar A ssoci ati on l Headnotes 3
Environmental Law
How To Select and Use Environmental Consultants by Jill A. Kotvis
F
our factors will define a Phase I environmental site assessment (ESA) and ultimately determine how useful it is in helping to identify environmental risks and liabilities: the quality and experience of the environmental consultant; the scope of work; the contract terms; and how the report is drafted.
Selection and Qualification
Environmental consultants are not all alike. They are as diverse in their expertise as lawyers. If you want a Phase I ESA that complies with the “All Appropriate Inquires” environmental due diligence standard (AAI) and one that will fully develop the information necessary to determine the environmental risks on a property, then you must engage an appropriate environmental consultant. Considerations in selecting qualified environmental consultants include the quality of the consultants’ reports and their agreement to meet your requirements for report content, their willingness to agree to your contract terms, their ability to fully meet your scope of work and interpretation of the AAI standard, the experience of persons who will be conducting
the site assessment, their reputation for integrity and competence and their ability to meet your insurance requirements.
Contracting
Because consultants can both generate and help to minimize environmental liability, it is always necessary to modify their standard contract terms or to propose your own. It is also prudent to use environmental counsel to do so and to define and coordinate the consultant’s scope of work and written reports. Several of the key contract terms that require a critical eye and that generally require modification or inclusion are discussed below. You should not use consultants who refuse to include these terms in their contracts. • Liability Limitation . Do not agree to a limitation of liability less than the amount of the consultant’s errors and omissions insurance coverage, which should be a minimum amount of $1 million. • Due Diligence Standard. Provide that consultant will fully (not generally) comply with the AAI standard. • Document Ownership . Provide that all documents generated, gathered or received by the consultant during the performance
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of the investigation belong to the client and will be returned to the client at its request. • Confidentiality and Nondisclosure. Require that the consultant maintain all information provided by or developed on behalf of the client as confidential and not disclose it to any third party, including governmental agencies. • Verbal and Draft Reports . Provide that consultant initially give findings, conclusions and recommendations verbally. Written reports should thereafter be provided in draft form for review and discussion with the client. Only upon a request of the client should the report be made final and signed. • Report Contents. Reports should be limited to findings and conclusions falling within the agreed scope of work. Recommendations, if requested by the client, should be provided in a separate document. • Third Party Reliance. Environmental reports usually state that no third party may “use” or rely on the reports without their permission. It is important to delete any “use” limitation and to specify who is entitled to rely on the report. Broad language is recommended to include members, partners, officers, directors, employees, attorneys, parents, subsidiaries, successors and lenders, as appropriate.
Report Review Because environmental consultants tend to create and maintain documents, you should worry about what is in them and whether they will be discoverable. Under the adage “an ounce of prevention is worth a pound of cure,” initial reports should always be verbal. This is preeminent because once committed in writing, initial and adverse language can work persuasively against the client with other parties, the government, the lender, in subsequent transactions, and in litigation. Written reports should always be provided in draft form for review by the client and its attorney. A draft report may need to be modified to make it more readable, to use more neutral language, or to correct errors. Differences in opinion usually are resolved through discussion, additional investigation of the issue in question or the advice of other professionals. The report should avoid gratuitous commentary, over-statement, speculation and unqualified conclusions, and should offer conclusions only on issues within the scope of the work. Written recommendations should be provided only upon specific request and when provided should be set forth in a sepa HN rate document. Jill Kotvis is a solo practitioner. She can be reached at jak1@nova1.net.
Does your busy office need some help this summer? Let our Summer Law Intern Program help you fill the position—Part-time, Full-time, 4-wks or 8wks—the choice is yours! We have goal-oriented DISD high school seniors interested in assisting you and gaining more law experience. Attorneys and employers interview and select these goal-oriented students from a large pool—expect the best. Program: June 14 — Aug. 6. For more information, please contact Amy Smith at ASmith@dallasbar.org or (214) 220-7484 or log on to www.dallasbar.org/summerlawinternprogram.
Mel Wolovits
Helping Parties Negotiate and Resolve
Great Walls of Conflict
‘Bar None’ Auditions
Tuesday, April 6 ~ 5:30 to 7 p.m. ~ The Belo Mansion
Mel Wolovits at the Great Wall of China
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Beijing, China
t
December 2009
1SFQBSFE r $SFBUJWF r 5FOBDJPVT 214.373.3777 MediateNegotiate.com
Bar None XXV is looking for actors, singers and dancers! All who audition will be cast, per historical “policy.” The annual Bar None show consists of skits and songs poking fun at lawyers, the law and current events—and benefits the Sarah T. Hughes Diversity Scholarship at SMU Dedman School of Law. To be considered for solo or small group musical numbers, bring sheet music for the furnished pianist. Those wishing to dance should be prepared to discuss their dance background with the show’s choreographer, and those wishing to act should be prepared to read “cold” or perform a 2- to 3-minute acting piece of their choice.
The show will take place June 16-19; rehearsals will begin May 1. For more information, contact Martha Hardwick Hofmeister, the show’s director, at mhardwick@shacklaw.net.
4 H e a d n o t e s l D a l l a s B a r A s sociation
A pri l 2010
Headnotes
President's Column
Serving the Community by ike vanden eykel
A
s promised in a prior column, I would like to highlight several of the standing committees in the Dallas Bar Association that currently offer numerous and varied opportunities to directly serve the people in our community. Our committees are made up of volunteers from within our membership who want to make a difference for the Dallas Bar Association and in the lives of those less fortunate in our city. Typically, each committee is led by a pair of individuals who serve as Co-Chairs of the group. Backing them up are two Vice-Chairs who not only help run the committee, but also provide continuity of leadership the following year when they move up to serve as Co-Chair. The overall continued success of the Dallas Bar Association is due directly to the hard work and commitment of those members willing to participate in and run the standing committees of our organization. They are definitely the fuel that keeps our motor running in top shape! The first committee that I would like to single out for attention is the Community Involvement Committee. This group has a long list of annual projects that have direct and immediate impact on our community. It is led this year by Co-Chairs Katie Anand and Meyling Ly. Their Vice-Chairs for 2010 are Lia R. Hayes and Kimberly S. Ratcliff. Among the many programs this committee sponsors each year on behalf of our Association, the Home Project for Habitat for Humanity, led this year by Scott Conrad and David Diaz, stands out in the minds of many. The Dallas Bar Association has the longest-running full home project in Dallas. We have proudly sponsored the construction of a Habitat Home for the past 19 years. This is a distinction that we can all take pride in as an organization, and there is always room for more volunteers for the project. This committee also organizes and staffs the Halloween Blood Drive at the Belo Mansion, Christmas in July (a clothes drive for charity), a can sort for the North Texas Food Bank, the Trinity River Mission tutoring, the Mi Escuelita program, which teaches English at seven locations, an eye glasses/cell phone collection for Genesis Women’s Shelter and many more each year. The Law in the Schools & Community Committee is also a gem in the TEAM DBA lineup. This committee coordinates the Appealing to the Public program that began under the leadership of Mark Sales when he was DBA President. The program has grown every year since it began and the level of involvement by the Dallas Independent School District continues to advance annually, as well. The committee is Chaired this year by Adam L. Seidel. He is backed up Vice-Chair Mark A. Melton. This committee coordi-
nates a number of programs in the classrooms of the DISD and puts many Dallas Bar members in direct contact with the students in Dallas schools, and we are having a major impact on the youth in our community. We are extremely proud of the work being done by this committee. They also can use as many volunteers as they can get. The Law Day Committee is another program that works very closely with the Dallas Independent School District. This committee is Co-Chaired for 2010 by Kirby B. Drake and James A. Holmes, and the Vice-Chair is Joe Miguez. In addition to the task of planning and staging the Law Day luncheon celebration, this group coordinates the placement of Dallas Bar members in the classrooms of the DISD every year as a part of the Law Day festivities. They also help run the annual Essay, Editorial, Art and Photo Contests in conjunction with the DISD. There are many direct contacts with the students and teachers of the school district in this committee’s work. The Dallas Bar Mentoring Committee also has a major impact on our city. The Co-Chairs of the committee this year are Aubrey Connatser and Michael K. Hurst. Their able backup is Vice-Chair Everett L. New. This group has been given the responsibility for overseeing several major projects of our Bar. The E-Mentoring Program, started by our Past President Brian Melton, has grown every year since its creation. This program pairs students with DBA members for an entire school year, and often runs longer by choice. The impact on the youth of our city and the efforts by the DISD to keep children in school is immeasurable. We are proud partners with the school district on this worthy project.The E-mentoring program is run by Everett L. New. The Mentoring Committee also is responsible for the Amachi Program, started in 2009 by Immediate Past President Christina Melton Crain, and she currently chairs the program. Amachi matches a DISD mentor with a child of an incarcerated adult in an effort to provide mentoring and to break the cycle of crime and prison in families. This committee also includes the work of the Transition to Law Program chaired this year Laura Benitez Geisler. This fabulous program matches DISD veterans with new attorneys in a program instigated by Past President Frank Stevenson during his term. Transition to Law, started by the Dallas Bar by the inspiration and vision of former President Justice Douglas Lang, is now being implemented by the State Bar of Texas. We are proud that the DBA has again led the way on an important and groundbreaking issue. These are but a few of the highlights of what is going on in the committees of the Dallas Bar. More information on the work of our members will follow in future columns. We owe a lot to the members of our committees who pro HN vide the fuel for the efforts of TEAM DBA!
Play Golf and Support Pro Bono Register for the 18th Annual Pro Bono Golf Classic, benefitting the Dallas Volunteer Attorney Program. Registration fee of $255 includes lunch, dinner and refreshments on the course. The tournament is a 4-person scramble format — limited to the first 128 golfers. Lots of prizes, plus great goody bags, raffle and other fun games! Check-in and use of the practice range begins at 11 a.m. and shotgun start is at 1 p.m. A reception and awards dinner will follow the tournament at 5:30 p.m. Thursday, May 6, 2010 at The Golf Club of Dallas Entertain clients with a golf game, while helping a family in need. For registration information, visit www.dallasbar.org. For more information on sponsorships, contact Rhonda Thornton at rthornton@dallasbar.org.
Published by: DALLAS BAR ASSOCIATION
2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Ike Vanden Eykel President-Elect: Barry Sorrels First Vice President: Paul K. Stafford Second Vice President: Sally Crawford Secretary-Treasurer: Wesley Young Immediate Past President: Christina Melton Crain Directors: Scott M. McElhaney (Chair), Brad C. Weber (Vice Chair), Jerry C. Alexander, Hon. Jane J. Boyle (At Large), Wm. Frank Carroll, E. Leon Carter, Rob Crain, Jennifer Edgeworth (President, Dallas Association of Young Lawyers), Laura Benitez Geisler, Michael K. Hurst, Hon. Marty Lowy, Michele Wong Krause, Karen McCloud (President, J.L. Turner Legal Association), Jose Ortiz (President, Dallas Hispanic Bar Association), Mary L. Scott, Hope Shimabuku (President, Dallas Asian American Bar Association), Scott P. Stolley (At Large), Diane M. Sumoski, Debra K. Thomas and Michelle Wong Krause. Advisory Directors: Penny Brobst Blackwell (PresidentElect, Dallas Association of Young Lawyers), Eric Blue (President-Elect, J.L. Turner Legal Association), Eunice Kim Nakamura (President-Elect, Dallas Asian American Bar Association) and Hon. Teresa Guerra Snelson (President-Elect, Dallas Hispanic Bar Association). Delegates, American Bar Association: Kim J. Askew, Hon. Douglas S. Lang Directors, State Bar of Texas: Talmage Boston, Beverly B. Godbey, Timothy W. Mountz, Robert R. Roby, Mark K. Sales HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications / Media Director & Headnotes Editor: Jessica D. Smith Calendar: Kathryn Zack In the News: Judi Smalling Art Director: Laura E. Heymann Advertising: Karla Howes PUBLICATIONS COMMITTEE Co-Chairs: Vincent J. Allen, Timothy G. Ackermann and Suzanne Raggio Westerheim Vice-Chairs: Lea N. Clinton, Paul R. Clevenger Members: H. Joseph Acosta, Natalie L. Arbaugh, Wesley J. Bailey, Heather J. Barbieri, Vance L. Beagles, Eric Blue, Barbara Boudreaux, Quentin Brogdon, Lance E. Caughfield, Pat Driscoll, Dawn E. Fowler, Floyd R. Hartley Jr., John Thomas Hayes, Paul W. Herring, Arshil A. Kabani, Mike Keliher, Jamie McKey, Elizabeth Jo McShan, Thomas L. Mighell, Mitchell S. Milby, Clay Miller, Jennifer Mitchell, Hon. Jim Moseley, Sonia Navia, Heather Bailey New, Jenna Page, Kirk Pittard, Irina B. Plumlee, Laura Anne Pohli, Robert D. Ramage, Andrew Baxter Ryan, Gregory W. Sampson, Steven D. Sanfelippo, Barry Sorrels, Paul K. Stafford, Scott B. Stahl, Amy E. Stewart, Sherry L. Talton, Debra K. Thomas, Ike Vanden Eykel, Peter S. Vogel, Thomas Williams, Courtney Willis, Elizabeth A. Wilson, Sarah Q. Wirskye. DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications / Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Coordinator: Rhonda Thornton Executive Assistant: Michelle Dilda Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Amy E. Smith Membership Coordinator: Kimberly Watson Projects & Communications Assistant: Kathryn Zack Publications Assistant: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Lakeshia McMillan, Andrew Musquiz, Jigna Gosal, Tina Douglas. Data Entry/Office Support: Patsy Quinn Copyright Dallas Bar Association 2010. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Associationís sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
April 2 0 1 0
Dal l as Bar A ssoci ati on l Headnotes 5
New Corporate Donors help Campaign Soar to New Heights by Jessica D. Smith
E
ach year, for the past 16 years, the members of the Campaign for Equal Access to Justice Committee have made it their goal to raise funds to help provide free legal aid to those who would otherwise not be able to afford it. They have had much success. The Campaign has raised more than $4.8 million for legal aid to the poor. Little by little, each year the numbers increase. But the 2009 Campaign, led by Chair Scott McElhaney, and Vice-Chair Jerry Alexander, rocketed to new levels and set a record with $596,746 pledged — almost $100,000 more than the previous year. “The success of the 2009 Campaign for Equal Access to Justice is a very proud moment for the Dallas Bar Association,” said DBA President Ike Vanden Eykel. “The Dallas Bar Association, on behalf of our profession, is showing that we care about the less fortunate in our community. The success of the campaign can be credited to three things primarily: the organizational skills of our Chair Scott McElhaney and Vice Chair Jerry Alexander; the hard work by the campaign committee early on to target new sources for the fundraising effort; and
the continued commitment of our association to help those less fortunate in our community.” The annual fundraising campaign supports the Dallas Volunteer Attorney Program, a joint program of the Dallas Bar Association and Legal Aid of NorthWest Texas. DVAP recruits, trains and supports pro bono attorneys in providing free, civil legal aid to the poor in Dallas. The program’s services are provided to low-income residents who meet financial eligibility guidelines. To receive legal services, the gross annual income of a family of four must be less than $27,563. This program would not be possible without the support of its volunteers and numerous donations. The success of the 2009 program is a combination of hard work, innovative ideas and new corporate donors. “These activities are probably the most direct input many attorneys in the Dallas Bar Association have in possibly changing a needy person’s circumstances for the better,” said Mr. Alexander. “Whether by making a contribution to the Campaign or handling a pro bono case—or hopefully both—the attorney members of the Dallas Bar Association are at their best in assisting in these endeavors.”
Attorney Interviewers Needed Help students get “real world” experience by interviewing them for the upcoming Summer Law Intern Program. Interviews are held at each DISD high school and can be completed in about 2 hours. Dates available: May 11, 12 & 13 at 1:30 p.m.
One new idea this year was to give the raffle grand prize winner a few options, and have a first- and secondrunner up prize. The grand prize winner had his choice of cars from Sewell—an Infiniti G37 Sedan, Lexus IS350 or Cadillac CTS. The grand prize winner was Rob Crain of Crain Lewis, L.L.P. Mr. Crain chose the Lexus IS350. Michael Knapek, of Jackson Walker LLP, was the first runner up and received, from Neiman Marcus, a $1,000 gift card, lunch for four at NM Café and a custom Natura Bisse gift basket. Second runner-up, Ellen Vanden Eykel, received a Bachendorf ’s stainless steel all Swiss automatic day-date, waterresistant watch. In addition to new ideas, numerous phone banks and many personal calls asking for donations, there are also two people who work tirelessly behind the scenes for the project full time and keep it on track—Alicia Hernandez, Attorney and Director, Dallas Volunteer Attorney Program and Community Services, and Sam Prince, Attorney and Director, Legal Aid of NorthWest Texas. Also in 2009, the Campaign was fortunate enough to have several new corporate donors who not only contributed money, but also put in an extra effort by thinking up fun, new ways for their companies to get involved. AT&T donated $10,000, but didn’t stop there, as they have also been very active in supporting DVAP and other Dallas Bar Association pro bono activities. They hosted DVAP’s Pro Bono Opportunities CLE program
Honorable Barbara M.G. Lynn
Friday, May 7 at noon (doors open at 11:45 a.m.) Honoring our State & Local Judiciary
DVAP’s Finest
Tickets: $35. Must be purchased in advance. For more information, visit www.dallasbar.org or contact Michelle Dilda at mdilda@dallasbar.org
Janice McCorkel
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
A joint legal aid program of the Dallas Bar Association and Legal Aid of NorthWest Texas (formerly Legal Services of North Texas).
Jessica D. Smith is the DBA’s Communications/Media Director. She can be reached at jsmith@dallasbar.org.
DBA LAW DAY LUNCHEON
For more information, please contact Amy Smith at ASmith@dallasbar.org or (214) 220-7484 or log on to www.dallasbar.org/summerlawinternprogram.
Janice McCorkel is a sole practitioner in Mesquite, specializing in family and probate law. She has also served as a part-time municipal judge in Mesquite for the past seven years. She assists DVAP in adoption and custody cases through the DVAP Conflict Panel, often as a guardian ad litem. Her goal is to always be working on one or two cases at a time. Janice is appreciated by the DVAP staff as she is willing to take cases on short notice and has never turned down our requests for help. Thank you, Janice!
in September 2009, and are planning to host a Family Law Nuts & Bolts CLE program in the coming months and the company is hoping to partner with their outside counsel on pro bono cases through DVAP. The law firm of Kelly Hart & Hallman LLP honored American Airlines Legal Department with a $5,000 gift to the campaign in the name of American Airlines. To add to that, the American Airlines Legal Department launched an in-house fundraising effort to raise money for DVAP, including a happy hour reception and a silent auction where members of the Legal Department pledged charitable contributions to DVAP and bid on auction items to raise money for the campaign. They also approved a Legal Department Jeans Day where people donated $3 to wear jeans and $5 to wear jeans and tennis shoes. The event was so successful, they are in the process of putting into motion a corporate headquarters-wide Jeans Day, with all proceeds going to DVAP. Other corporate donors include: Exxon Mobil ($10,000), A.H. Belo Corporation ($2,550), Pegasus Solutions Inc. ($1,000) and Dr. Pepper Snapple Group, Inc. ($510)—for a total of more than $25,000. To find out more about the Campaign for Equal Access to Justice, log on to www.dallasbar.org/dvap/equal_ justice.asp. To find out more about DVAP, or to volunteer, log on to www. HN dallasbar.org/dvap.
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6 H e a d n o t e s l D a l l a s B a r A s sociation
Focus
A pri l 2010
Environmental Law
Voluntary Disclosure and Privilege Waiver by Walter D. James
T
he Environmental Protection Agency’s (EPA) policy regarding voluntary disclosure has been around since 1986. The Department of Justice (DOJ) also has had an evolving prosecutorial guideline for determining when and how cooperation under a voluntary disclosure should be handled. One would think that after all of this time, there would be a clear set of standards to follow when you represent a party that wants to voluntarily disclose an environmental non-compliance to the EPA and how that would interface with a voluntary waiver of privilege to the DOJ for cooperation credit. Unfortunately, that is not the case. The EPA self-disclosure policy has changed a bit over the years and can be viewed at www.epa.gov/compliance/ incentives/auditing/auditdisclose.html. Similarly, the DOJ’s policy has evolved over the years as well, from a requirement of waiver to a policy that no waiver will be required. You can see the latest version at www.justice.gov/dag/ speeches/2006/mcnulty_memo.pdf. The McNulty Memorandum makes it clear that the waiver of the attorneyclient privilege and the work-product exemption is not necessarily a prerequisite for cooperation credit. Currently, prosecutors can only request waiver of the attorney-client privilege and the work-product exemption when there is a demonstrated legitimate need for the information to fulfill the law enforce-
ment obligation. The McNulty Memorandum sets out the laundry list of what needs to be demonstrated before waiver can be requested. In short, it is the least intrusive means to conduct a complete and thorough investigation. Some are of the opinion that the current DOJ policy provides an incentive for a prosecutor to pursue an implicit “don’t ask, don’t tell” policy. If the prosecutor does not explicitly seek a privilege waiver, the prosecutor will not have to seek written permission from superiors. A more discreet way to proceed is for the prosecutor to simply inquire whether the client intends to provide the results of a protected internal investigation as part of cooperation. As a practical matter, this is the way it often occurs. How do you decide whether or not to waive privilege and what does one do in the trenches? Why waive privilege and work product? Is it simply a way to save time and effort on the part of the government? First, review the rules concerning privilege and exemptions. The attorneyclient communication privilege protects communications for the purpose of obtaining legal advice. It does not apply to facts. The attorney work-product exemption protects documents prepared in anticipation of litigation. Make sure that everyone involved, including experts, knows and understands the privileges and exemptions and the difference in the waiver of each. Second, assume that all documents and communications will be disclosed.
Law in the 21st Century continued from page 1
democracy. In addition, it teaches the youth of today to become engaged in the law and to consider how the law can better serve the needs and interests of the people. The Dallas Bar Association implements the principles of Law Day by coordinating with the Dallas Independent School District and conducting student essay, editorial, art and photography contests. Sponsored by the Law Day Committee, co-chaired by Kirby Drake and James Holmes, the May 7 luncheon will celebrate and honor our judicial system and present the following awards: DAYL Outstanding Young Lawyer, DAYL Outstanding Mentor and DAYL Liberty Bell Award. In addition, DISD students recognized for their contest entries which epitomize this year’s Law Day theme: Law in the 21st Century: Emerging Challenges and Enduring Traditions. The 2010 Law Day luncheon keynote speaker is U. S. District Judge Barbara M. G. Lynn. Judge Lynn graduated from the University of Virginia, majoring in Southern American History and
a minor in Russian History. She was in the first class of women admitted to the University of Virginia. While at the university, she was also the first woman to win the University’s coveted oratory contest. In 1976, Judge Lynn graduated summa cum laude from Southern Methodist University School of Law. After graduation, she became the first female associate at Carrington, Coleman, Sloman & Blumenthal. In 1983, Judge Lynn became the first female partner at the firm. Judge Lynn remained at Carrington, Coleman until 2000 when she was appointed by President Bill Clinton to the United States District Court. The Law Day luncheon begins at noon. Tickets are $35 per person and can be purchased through the DBA Web site at www.dallasbar.org. For more information, please contact Michelle Dilda at (214) 220-7474 or MDilda@ HN dallasbar.org. Jamie J. McKey is an appellate attorney for The Bassett Firm in Dallas, Texas, and a member of the DBA Publications Committee. She can be reached at jmckey@thebassettfirm.com.
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State Bar of Texas Annual Meeting June 10-11 in Fort Worth ~ The Omni Hotel For more information, visit http://www.texasbar.com/annualmeeting.
Every step of an internal investigation should be documented, especially every method utilized to ensure the confidentiality of the investigation, including how draft investigatory documents are treated. Because of the assumption of disclosure, the waiver issue should be a key discussion point up front. You can then structure the investigation with waiver in mind. The downsides are that the waiver is complete. The waiver of privilege may be determined to be a complete waiver so that disclosure of some facts may destroy protections as to all facts—a so-called subject-matter waiver. This may also lead to a waiver of analytical work product. Third, separate fact-gathering from analysis. Waiver of the first will not be
a waiver of the second. Fourth, try to disclose the information in steps pursuant to a confidentiality agreement. You can make an oral presentation to the government, and you can steer the government toward information or inquiries that are the most relevant. Keep in mind that a company can cooperate without waiving important privileges, by making witnesses available and voluntarily producing documents. In other words, cooperation is not inconsistent with a company’s decision not to waive privileges. HN Walter James practices in Grapevine, focusing on environmental enforcement issues. He is a current member, and the past chair, of the ABA’s Environmental Enforcement and Crime Committee. He can be reached at walter.james@jamespllc.com.
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DBA Annual Senior Lawyers Appreciation Dinner Keynote Speaker: Mayor Tom Leppert Tuesday, May 11 • Cocktails at 5:30 p.m. ~ Dinner at 6:30 p.m. • The Belo Mansion Tickets $40, Tables available $400 Send checks to 2101 Ross Ave., Dallas, TX 75201 For more information, contact Kathryn Zack at kzack@dallasbar.org or 214-220-7450. Sponsored by the DBA Senior Lawyers Committee.
DBA Hosts Judicial Investitures The Dallas Bar Association hosted the judicial investitures of two judges in the month of February. Judge Jennifer Balido (center), a judge in the 203rd Criminal District Court, was sworn in by Justice Lana Myers (left). DBA President Ike Vanden Eykel (right) presided at the event, held on February 11.
On February 26, Chief Justice Carolyn Wright (left) delivered the oath of office to Justice Lana Myers of the Fifth District Court of Appeals. Justice Myers was introduced by U.S. District Court Judge Ed Kinkeade.
April 2 0 1 0
Focus
Dal l as Bar A ssoci ati on l Headnotes 7
Environmental Law
Privilege Tips for In-House Counsel with Dual Legal Roles Privilege Analysis
By Carrie L. Huff and David A. Dodds
I
t is often difficult to predict whether a court will characterize a given communication involving in-house counsel as protected by the attorney-client privilege, particularly when in-house counsel acts in both legal and business capacities. This article sets forth examples of how courts have analyzed such communications and provides recommendations for in-house counsel to maximize the protections afforded by the attorney-client privilege.
Business Advice vs. Legal Advice In deciding whether privilege applies to a communication with inhouse counsel, courts will examine the circumstances to determine whether the in-house counsel was acting as a lawyer rather than as a business advisor. Generally, communications made by and to an in-house counsel with respect to business matters are not protected by the attorney-client privilege. However, the mere fact that business considerations are weighed in the rendering of legal advice by in-house counsel does not vitiate the privilege. In the corporate context, legal and business issues are often inextricably intertwined. Most courts have held that the legal aspects of the communication must predominate for the attorney-client privilege to apply. Stated another way, the communication must be primarily for the purpose of rendering legal advice or assistance.
Communications involving regulatory issues. The court in In re Vioxx Products Liability Litigation, 501 F. Supp. 2d 789 (E.D. La. 2007), rejected a pharmaceutical company’s assertion of the attorney-client privilege under a “pervasive regulation” theory. Specifically, the company had argued that virtually every communication sent through its legal department was privileged by virtue of the pervasive nature of governmental regulation of the drug industry. The court rejected this theory but agreed that privilege protection should be afforded to in-house counsel’s internal comments on legal instruments, such as patent applications or contracts, and to internal drafts and communications of in-house counsel regarding preparation of the company’s response to warning letters issued by the Food and Drug Administration. Communications among non-legal employees, where in-house counsel has been copied. An internal company communication among non-legal employees is not automatically considered to be privileged simply by virtue of the fact that in-house counsel has also been copied on the communication. Courts have typically held that the privilege does not apply unless the claimant can prove that the communication would not have been made but for the client’s need for legal advice and services. Communications from in-house counsel distributed to non-legal employees. A communication from an attorney to a corporate employee with respect to legal advice given the corpo-
rate client may be privileged. However, caution must be used to protect confidentiality and avoid disclosure of the privileged communication to employees who do not have responsibility for the subject matter of the communication.
Protecting the Attorney-Client Privilege In-house counsel should consider the following guidelines to maximize the protections afforded to privileged communications: • Whenever possible, separate legal and business communications. • Consider the organization’s corporate structure and, if possible, place in-house counsel within the organization’s legal department and/or working for the organization’s general counsel. • Use the title of legal counsel when communicating about legal matters. • Designate legal communications as “privileged.” But do not designate all communications as “privileged” to avoid losing the unique
designation. • Review corporate policies for any corporate committees with legal counsel representation. Emphasize in such policies the role of legal counsel to provide legal advice to the committee and the purpose of the committee to act on such legal advice. • Avoid disseminating privileged communications to outside thirdparties. • Limit internal distributions of privileged communications to only those employees who have direct responsibility over the subject matter of the communication. • Consider retaining outside counsel to handle particularly sensitive matters. Confidential communications with outside counsel are more likely to be characterized as legal advice as opposed to busi HN ness advice.
Carrie L. Huff is a partner, and David A. Dodds is of counsel, in the White Collar/Antitrust and Securities Litigation Practice Group with the law firm of Haynes and Boone, LLP. The authors can be contacted at carrie.huff@haynesboone.com and david.dodds@haynesboone.com, respectively.
Spanish for Lawyers 10 Week Course Summer 2010 • Classes begin April 20 All courses are a continuation of spring semester. Class cost: $180 For more information, contact Teddi Rivas at TRivas@dallasbar.org or (214) 220-7447.
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8 H e a d n o t e s l D a l l a s B a r A s sociation
A pri l 2010
Increase Your Cash Flow
T
he Law Firm Merchant Account is the Dallas Bar Association’s newest member benefit. As the only payment solution recommended by more than 50 state and local bar associations, it complies with ABA and state requirements for managing client funds. Unlike traditional merchant accounts, it correctly handles earned and unearned fees. Therefore, you can accept credit and debit card payments from your clients for services rendered or retainers. Call (866) 376-0950 or visit www.affiniscape. com/DallasBar.
Why it Pays to Accept Credit Cards Credit and debit card acceptance is an essential practice management tool that is often overlooked as a means to increase revenue and cash flow. Many clients, including prospective clients, prefer the convenience of paying with credit or debit cards as opposed to checks. Opening a merchant account for your firm is a simple process and immediately gives more control of your receivables. Why turn away a prospective client who wants to use your law firm’s services and has the means to pay promptly?
Cash Flow 101 Once considered taboo by attorneys, accepting credit cards for payment is allowing a grow-
ing number of law firms to benefit from immediate cash flow. It also helps eliminate “the check is in the mail” syndrome and other common delay tactics. With most merchant accounts, credit card payments are available to you within 24-48 hours. Clients depend on your firm for assistance with legal matters, not a credit line. It makes fiscal sense to let the Visa and MasterCard banks manage credit lines, handle collections and potential late payments. Accepting credit cards saves time, frustration and energy in order to do what attorneys do best…practice law and help clients.
Law Firms and Credit For the most part, law firms do not have an approval or “underwriting” process when accepting new clients. They generally do not review credit history, check credit scores or report late payments to major credit agencies. As a result, attorneys do not have a clear view of a client’s ability to pay. Every time an invoice goes unpaid or a payment is late, the reality is you are extending credit to your clients putting your receivables at risk. From a consumer and client perspective, a legal bill is one of the easiest expenses not to pay on time. The simple fact is banks do underwriting, attorneys don’t. Take advantage of the banks underwriting department. If a Visa or MasterCard bank does not approve an individual credit line, then a law
firm certainly should not extend the same credit on their own.
Merchant Account Basics If you are considering credit card services or already accept credit cards in your firm, make sure the credit card processing company you choose understands the specific needs of a law firm. Most law firms prefer to accept payment in a professional manner. Law firms do not have a check-out lane, do not need high speed systems and find asking a client to enter their pin number into a credit card machine is not conducive to the manner in which they run their office. As such there are many custom options available to law firms, which include webbased programs and specific terminal programs designed for attorneys. You will find fees for a merchant account range from 2 to 3 percent of the transaction depending on the type of card used.
Separating Earned and Unearned Fees One key feature to consider when opening your merchant account is the ability to separate earned and unearned fees when accepting credit cards. In order to stay in compliance with the American Bar Association and most state guidelines for credit acceptance, a merchant account must correctly separate
earned and unearned fees into operating and trust accounts, thus preventing the commingling of funds. Most importantly, a compliant merchant account enables an attorney to designate which account should be used for withdrawals of all processing fees.
The Bottom Line A merchant account can be the secret weapon to resolving payment issues. It provides payment flexibility, as well as convenience. In addition, offering credit cards as a payment option can attract clients and win new business. Now you can spend less time chasing down collections and more time practicing law. The next time a prospective client attempts to pay with a credit card, just say yes! Remember, as a DBA member you will receive discounted member fees and your law firm can save up to 20–25 percent off standard credit card fees. If you are currently accepting credit cards, compare your current processor with the Law Firm Merchant Account. When you team up with Affiniscape, you not only gain a credit card merchant, you increase your firms ability to guarantee payments for services rendered. Affiniscape Merchant Solutions, the exclusive provider of the Law Firm Merchant Account™, professional payment solution for attorneys and their clients. For more information, visit www.affiniscape.com/DallasBar.
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Dal l as Bar A ssoci ati on l Headnotes 9
High School Mock Trial continued from page 1
by the Gwinn Family Foundation, was presented to Lubbock Monterrey High School. Though characters and scenarios are fictitious, the lesson is real. The Mock Trial program helps students gain a deeper understanding of the law and judicial process. Students spend hours studying materials provided by the Dallas Bar Association to learn their parts— whether defense attorneys, prosecutor or witness. The competition not only teaches the rules of law, but also helps students cultivate their public speaking and presentation skills. Nearly 200 Dallas-area lawyers and judges served as “jurors” in the mock trials, and selected the teams that were best prepared and who demonstrated exceptional presentation skills. Each year, the “case” is written by local attorneys on the DBA Mock
Trial Committee, co-chaired by Steve Gwinn and Hon. Lana Myers. Committee co-vice chairs for 2010 are Prater Monning and Steven Russell. A distinguished panel of “jurors” decided the final round of the Texas High School Mock Trial Competition, including: DBA President Ike Vanden Eykel; Jennifer Edgeworth, DAYL President; Michele Wong Krause, DBA Director; Karen McCloud, JL Turner Legal Association President; Scott McElhaney, DBA Board of Directors Chair; Eunice Kim Nakamura, DAABA President-Elect; and Jose Ortiz, DHBA President. “The students who competed in the Mock Trial program make anyone observing them stop and take notice,” said DBA President Ike Vanden Eykel. “They are truly inspiring in their level of commitment and hard work. Their performance breaks the mold of how people look at today’s youth. The Dal-
Outstanding Advocate Christopher Clark, Booker T. Washington High School.
Steve Gwinn and Outstanding Witness Andrew Reynolds, Waco High School.
Speak to Dallas ISD Students! Volunteers are requested to speak to Dallas ISD students during the week of May 10-14, Other opportunities (Career Days, etc.) are also available throughout the month as well. Speakers are encouraged to address the audience about Law Day, the rule of law or similar topics. The time commitment is just one class period on one day. Sign-up by Friday, April 30 by emailing your available dates/times to Amy Smith at ASmith@dallasbar.org.
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Get Involved! Join a DAABA Committee! Be a part of one of these exciting new committees: Awards Event Committee, Communications Committee, Corporate Counsel Committee, Corporate Governance Committee,Program Committee, Public Relations Committee, Service Committee, Social Committee For more information or to sign up, visit www.daaba.org or contact Hope Shimabuku (hshimabuku@rim.com) or Eunice Kim Nakamura (enakamura@vilolaw.com).
The “jurors” who decided the final round of the Texas High School Mock Trial Competition included (standing) Eunice Kim Nakamura, DAABA President-Elect; Karen McCloud, JL Turner Legal Association President; Ike Vanden Eykel, DBA President; Scott McElhaney, chair of the DBA board of directors; and Jose Ortiz, DHBA President. (seated) Michele Wong Krause, DBA Director; U.S. District Judge Barbara M.G. Lynn (who presided over the mock trial) and Jennifer Edgeworth, DAYL President.
las Bar Association is honored to be a long term partner in this program.” Each year, two students are recognized for their exemplary presentations by being named the Outstanding Advocate and Outstanding Witness in the state tournament. The Outstanding Advocate Award and scholarship, funded by the DBA Tort and Insurance Practice Section, was presented to Christopher Clark of the Booker T. Washington High School; and the Outstanding Witness Award and scholarship, funded by DBA member Peter Malouf, was presented to Andrew Reynolds of Waco High School. The Dallas Bar Foundation and Dallas Lawyers Auxiliary provide additional funding for the High School Mock Trial Competition program. The High School Mock 5/22/09 Trial 9:02:52 pro- AM Commercial Properties Ad_finalHR.pdf gram began in Dallas in the mid-1970s,
to increase awareness and respect for the law and its role in society among students. In 1979, a city-wide mock trial competition was initiated by the DBA’s Law in a Changing Society Committee (now referred to as the Mock Trial Committee), the Dallas Bar Foundation and the Dallas Independent School District. A national competition began in 1985. In its 31-year history, the Texas High School Mock Trial Competition has had approximately 120,000 participants and has awarded more than $300,000 in scholarships at the local, regional and state levels. Planning for the 2011 competition begins soon. To become involved, contact Amy Smith, Law-Related Education and Programs Coordinator, at ASmith@ HN dallasbar.org. Jessica D. Smith is the DBA Communications/Media Director.
10 H e a d n o t e s l D a l l a s B a r A ss ociation
A pri l 2010
Column The Business of Law
Social Media Networking and Lawyers: The Good, the Bad and the Ugly by Mary Louise C. Hopson
Part 1 of a 2-part series.
T
here’s a great wave sweeping the world today, and it’s called social media networking. Used by many to stay in touch with personal friends, social networking sites are increasingly used for business purposes, and lawyers are no exception. Facebook, Twitter, YouTube, LinkedIn, blogging—Social networking provides fast and easy communication. Utilized by all ages for different purposes, these tools can provide an extra method to contact and stay in touch with clients and prospects. As with other forms of communication, lawyers must be mindful of professional responsibility and ethical considerations when using social media. The State Bar of Texas Advertising Review Committee issued a revised interpretive comment providing additional guidelines on the use of social media by lawyers, which appears in the March 2010 Texas Bar Journal. DBA member John Browning knows a lot about lawyers and social networking sites: He is busy working on a book, The Lawyer’s Guide to Social Networking, which will cover ethical implications of social networking and marketing tips. A frequent speaker and writer on social networking and its effects on the practice of law and a partner at Thompson, Coe, Cousins & Irons, L.L.P., he has studied the use of social networking sites to obtain evidence in court cases (see sidebar), and the professional responsibility aspects of their use.
Author of the syndicated weekly column, Legally Speaking, published nationally in print and online, he has also received many journalism awards, including the DBA Philbin Award for Excellence in Legal Reporting for three consecutive years. In 2009, he received the Burton Award for Distinguished Achievement in Legal Writing and the Texas Press Association Award for Outstanding Newspaper Column. He was named Print Journalist of the Year by the Houston Press Club and received its Lone Star Award for both newspapers and magazines. “Lawyers are using social media, as indicated by the sheer numbers,” Mr. Browning said. “The LexisNexis Martindale-Hubbell Networks for Counsel Survey found in 2008 that almost 50 percent of responding lawyers were members of a social networking site. In 2009 that number increased to more than 60 percent, and is even higher in younger age groups. The founder of Facebook noted recently that its fastest growing demographic is the 35–54 age group. There is also rapid growth in the senior community with social networking. “Social media is an increasingly important tool for attorney advertising and communications with clients. Of the AMLAW 100 law firms, one third are on Facebook and Twitter. One technology company sent out requests for proposals to law firms using only Twitter, promising to ignore responses that came back using other forms of communication. A key criterion of that company was to find a firm that was up to speed on social media.”
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Support the DBA Home Project Help us reach our goal of $60,000 to build our 19th house for Habitat for Humanity. For more information, log on to www.dbahp.com or contact Co-Chair Scott Conrad (sconrad@settlepou.com, 214-520-3300) or David Diaz (ddiaz@kbdtexas.com, 214-521-8800). Make checks payable to Dallas Area Habitat for Humanity and mail donations: c/o Teddi Rivas, Dallas Bar Association, 2101 Ross Avenue, Dallas, TX 75201
To donate, log on to www.dbahp.com.
Professional Responsibility Implications “Social networking is just another form of communication, and the same ethical rules that apply to other forms of communication apply to social media,” said Mr. Browning. “The State Bar of Texas supports the use of new technology by lawyers and has no problem with including true, factual information, such as educational background and contact information,” said Mr. Browning. Concerning the Texas Disciplinary Rules of Professional Conduct, he notes that “Rule 7.07 covers attorney Web sites and filing requirements for advertising of all sorts. Social media networking is likely to be interpreted as falling under that rule. But the inclusion of general factual information does not necessarily trigger a filing requirement. “One issue of concern, however, is the testimonial feature of such sites as LinkedIn,
which is targeted to a more business-oriented community. Testimonials are banned in some states; Texas doesn’t prohibit their use, but an attorney should be careful with testimonials. For example, Rule 7.02 prohibits comparison to other lawyers’ services unless the information is verifiable by other data. So lawyers may need to tone down certain comments regarding testimonials.” Another requirement that applies to social media, as with other forms of advertising, is to not designate oneself as having special competence in an area if one is not recognized as such by the Texas Board of Legal Specialization. “LinkedIn has a field for specialties, so lawyers need to be careful there,” added Mr. Browning. “Just because you concentrate your practice in certain areas, you may not necessarily be able to represent yourself as a HN specialist on a site.” Veteran marketing consultant Mary Louise Hopson is a past Co-Chair of the Publications Committee. She can be reached at mlhops@sbcglobal.net.
Case Investigation Using Social Media
L
awyers are using information found on the Internet to help their cases. The American Academy of Matrimonial Lawyers recently released a study that found that 66 percent of divorce lawyers use Facebook for this purpose. Beyond lawyer marketing and advertising, these tools are even affecting the ways juries assimilate information to reach verdicts, prompting a re-examination of how information flows to juries. A big pitfall is using social media inappropriately to obtain information in the investigation of a case, said Mr. Browning. He stressed the importance of adhering to rules regarding not misrepresenting whom one is when making contacts regarding case development. A Philadelphia Bar Association opinion dealt with an attorney inquiry about the ethics of contacting a witness in a case via social networking, but without disclosing who he was or by using a paralegal to contact the witness. “The bar association said one cannot do that,” said Mr. Browning. “Lawyers can’t deceive or otherwise misrepresent who they are, and this principle holds true in Texas as well.” Mr. Browning added that social networking is merely another form of communication. “If one is prohibited from using another form of communication to accomplish the same end, one has committed an ethical violation with the use of social networking,” he said. “It’s no different if the communication happens in cyberspace. For example, pretexting, such as ‘friending’ someone on Facebook just to get information, is an ethical no-no, as is using a third party to obtain the information. “So much information is available to the public, usually because of the ignorance of the user or just apathy. The younger generation seems to care less about how much they put out there about themselves. Using this information is acceptable, and keeps one away from the gray areas.”
April 2 0 1 0
Focus
Dal l as Bar A ssoci ati on l Headnotes 11
Environmental Law
Environmental Enforcement—The Government Strikes Back by Craig Pritzlaff and Jason Ross
A
wise creature named Yoda once quipped, “do or do not, there is no try.” The same is true for companies facing increasingly stringent environmental requirements: comply or else. In environmental law, strict liability is the general rule. Entities are presumed to know which requirements apply to their operations and ignorance of the applicable requirements is never an excuse. In a time when companies are focusing more attention on the environment and “sustainability,” the government is also focusing more attention on ensuring strict compliance with existing environmental rules. Companies—even those that believe they are operating in compliance— may face a greater likelihood of finding themselves within the government’s environmental compliance crosshairs.
Administrative Enforcement
Administrative enforcement actions may follow a regular compliance inspection, an inspection and investigation arising from a citizen complaint, an inhouse review of submitted reports or voluntary self-disclosure by an entity. Although strict liability is the general rule, the degree and severity of the government’s response to a violation will depend upon a variety of factors, including the degree of actual or threatened harm to the environment or the regulatory process, the company’s history of compliance and the degree of culpability or attitude of the company. Many enforcement actions require that a company commit significant
time and money to defending or resolving the case. In almost all cases where the government prevails, the result will include a monetary penalty or fine. When determining the appropriate level of a penalty, the government typically relies upon statutory requirements and penalty policies that detail various factors upon which the government must base its proposed penalties, each of which will offer an entity a measure of negotiating room. However, the amount paid in a penalty is only one aspect of the cost of enforcement. The time and money spent resolving or challenging the matter may result in a greater financial burden than the actual penalty amount. In addition, the regulatory position asserted by the government may result in significant new compliance costs for a company. Furthermore, some enforcement actions result in temporary work stoppages, adding to the financial burden. Finally, in states like Texas, an additional consequence of enforcement is its negative effect on a facility’s compliance history which, if severe enough, could affect the facility’s ability to renew existing permits (or obtain new ones). When determining how to respond to an enforcement action the company must take all of these factors into account in its costbenefit analysis.
Criminal Enforcement
While monetary penalties are daunting in their own right, criminal prosecution is probably the most potent enforcement tool available to a regulatory agency like the Environmental
Protection Agency (EPA). When EPA believes violation of an environmental statute warrants criminal prosecution, it will refer the case to the Department of Justice (DOJ). DOJ makes the final determination on whether to pursue criminal charges and will prosecute the case in court with the assistance of EPA. When determining whether to pursue criminal charges, the government considers factors such as the size of the harm, the deliberate nature of the conduct, the history of the defendant’s violations, and efforts to conceal. The government also takes into account any efforts to remedy the situation, including voluntary disclosure, cooperation, remediation and compliance programs, and internal disciplinary measures against responsible persons. While most criminal environmental charges require the government to prove some element of intent, as with civil cases, ignorance of the law will not excuse a defendant from criminal culpability. It is usually not necessary that the government prove that the defendant actually knew about a specific statute that was violated, but only that the defendant had a general awareness that the conduct was wrongful or likely illegal. Moreover, some environmental statutes allow conviction merely by showing that the defendant negligently violated the statute. For example, negligent violation of the Clean Water Act may result in a fine of up to $25,000 per day of violation and one year of imprisonment. The environmental statutes are not the only basis for pursuing criminal charges. DOJ regularly includes fraud and false statement charges in pursuing offi-
cers or employees of companies where a violation has occurred. A false statement charge is a broad and powerful weapon: it criminalizes knowingly making a false statement that is given to the federal government or used as part of a federal program. The result is that an employee who signs even a routine federal compliance form containing false information can be convicted of a felony and impris HN oned for up to five years. Craig Pritzlaff, an associate with Curran Tomko Tarski LLP, handles environmental and commercial litigation matters. He is Treasurer of the Environmental Section of the DBA and can be reached at cpritzlaff@cttlegal.com. Jason Ross, a partner at Curran Tomko Tarski LLP, handles defense of white-collar criminal matters. He can be reached at jross@cttlegal.com.
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12 H e a d n o t e s l D a l l a s B a r A ss ociation
A pri l 2010
Column Writing on Writing
Starting Strong by Scott P. Stolley
H
ow’s this for a question with a seemingly obvious answer: Is it better to start strong or with a whimper? Strangely, most legal writers seem to prefer starting with a whimper. For example, motions in trial courts often start with a formulaic anachronism like this: “To the Honorable Judge of Said Court: Come Now Defendants ABC Services, L.L.C., d/b/a Ace Brick Co., and Superior Home Products, Ltd., and file this, their Cross-Motion for Summary Judgment, Response to Plaintiffs John and Joan Smith’s Motion for Summary Judgment, Motion to Strike Plaintiff’s Summary-Judgment Evidence, and Alternative Motion for Continuance, and for grounds would respectfully show unto the Court as follows: . . . .” What follows is usually a tedious recitation of the case’s procedural history, followed by an overly detailed and barely less tedious recitation of facts. Notice that the judge still doesn’t know what he or she is being asked to decide. If there is an issue statement at all, it is buried several pages deep in the motion. Now tell me, what rational judge would be moved by that kind of opener? Yet, isn’t your goal to move the judge to rule in your favor? There is a serious disconnect here. Journalists and other professional writers snapped to this a long time ago. They know that a strong opener is paramount. As James J. Kilpatrick said, a “conclusive ending is desirable and a
well-developed middle is essential, but it is the lead that can make or break a composition.” The lead must lure the reader in and inspire him or her to read more. So how can you achieve the legalwriting equivalent of a strong opener? Legal-writing expert Bryan Garner advises that you must make your primary point within 90 seconds. Within that brief minute and a half, the judge should understand the basic question, the answer and the reasons for that answer. If you can do that, the judge will usually be moved to keep reading. But how can you apply the 90-second rule when you have to start with a formulaic opener like the one above? Well, first, no rule says you have to start with a symbolic nod to “the Honorable Judge of Said Court.” You don’t have to say “Comes Now” or even “Now Comes.” And no rule says you have to repeat the title of the document right below the title itself. In place of the formulaic opener, you should put the issue up front. As author Edward Re has said, “The court should not be forced to guess, even for a moment, what question it is asked to decide.” And as Rufus Choate pointed out in the 19th Century, “The best argument on a question of law is to state the question clearly.” By starting with a clear issue, you set the table to draw the judge into your arguments. Here is an example of how you could phrase the issue in a motion for summary judgment in a case involving alleged vicarious liability for an assault: “While working for a local moving company, Michael Brown (a convicted
felon) helped move Plaintiff Kevin Thomas to a new apartment in the same complex. Eleven days later, after being fired for stealing some of Thomas’s property, Brown assaulted Thomas in Thomas’s apartment. The overarching issue on summary judgment is whether Defendant Acme Van Lines is vicariously liable for Brown’s assaultive conduct, when Acme’s only connection to Brown was a contract under which the local mover sometimes acted as Acme’s agent for interstate moves.” This opener gives some facts, identifies the players, and sets the table for the legal arguments that follow, while also suggesting that Acme cannot be vicariously liable. It quickly presents the court with the question, suggests
the answer and suggests that the reason for the answer is the lack of a connection between Acme and Brown. This technique can also be adapted for multi-issue cases. For example, you can lead with this: “In deciding this motion, the court need address only the following three issues: . . ..” Again, you are setting the stage for the judge to quickly understand and become interested in your case. You are also making a promise about the arguments that follow. So, it will be important to deliver the goods in the HN rest of your motion. Scott P. Stolley is the leader of the Appellate Practice Group at Thompson & Knight. 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 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 and corporate legal departments with two or more lawyers that become a DBA 100 Club member will be listed in Headnotes, receive a Certificate of Appreciation, recognition in the 2010 DBA Pictorial Directory and at our Annual Meeting in November. This is the perfect time to encourage your newly hired attorneys to join the DBA and take advantage of our many member benefits—such as 400 FREE CLE programs each year, 29 substantive law Sections, numerous networking opportunities and community projects, plus many other member benefits as well as the opportunity to qualify for the DBA 100 Club. The DBA 100 Club is open for renewal annually to every firm. We do not automatically renew a firm’s membership due to changes in firm rosters from year to year. You must submit a request to our Membership Department for consideration. To become a 2010 DBA 100 Club member, please submit your request via fax or email including a list of all lawyers in your Dallas office to Kim Watson (fax: 214.220.7465 or e-mail: kwatson@ dallasbar.org). We will verify your list with our membership records and once approved, your firm will be added to the 2010 DBA 100 Club membership list! If we receive your list by April 30, your firm will be included in the June, July and August DBA 100 Club listing in Headnotes. Send in your list TODAY!
Don’t Miss Out on this Great Opportunity!
Justinian Award Luncheon Wednesday, April 28, 2010 The Pavilion at the Belo Mansion The Dallas Lawyers Auxiliary will present its prestigious Justinian Award to Al Ellis, of Sommerman & Quesada, L.L.P. The Justinian Award is presented annually to a DBA member who has actively demonstrated a long-standing dedication to volunteer service in the Dallas community. Judges for the selection of the award are prominent Dallas civic leaders.
FOR RESERVATIONS Contact Tina Gwinn at tina@gwinn.net or (214) 526-9828
Bar None Crawfish Boil! Saturday, April 10, 1 to 5 p.m. • Jacks’ Backyard, 2302 Pittman St., Dallas Tickets: $25 at the door or at www.dallasbarfoundatioin.org/barnonexxv All the crawfish and fixins’ you can eat, plus beer and silent auction. For more information, call Elizabeth Phillip at (214) 220-7487.
April 2 0 1 0
Focus
Dal l as Bar A ssoci ati on l Headnotes 13
Environmental Law
Climate Change Litigation: The Next Frontier Or A Passing Fad? (2d Cir. 2009); Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009); and Native Village of Kivalina v. ExxonMobil Corporation, 2009 WL 3326113 (N.D. Cal. Sept. 30, 2009). Each of these cases was dismissed at the district court level based upon lack of standing and/or the political question doctrine. Two of them—State of Connecticut and Comer—have been reversed and remanded. Native Village is unique in that, at the time the district court ruled, it had the benefit of the Second Court’s analysis in State of Connecticut. The Native Village court, however, rejected the Second Circuit’s analysis as “sanguine,” and dismissed the case. These three cases continue to wind through the appellate courts. So the decisions in each are not final. Regardless, they illustrate some of the procedural hurdles climate-change plaintiffs face Climate-change plaintiffs also face potential substantive hurdles, the biggest of which will be the Herculean task of proving causation. As the Fifth Circuit recognized in Comer, the causation necessary for standing is far different than the causation needed to succeed on the merits of a tort claim Comer illustrates the difficulty in
by Steven D. Sanfelippo
O
ver the years, mass tort litigation has covered the gamut from asbestos to tobacco. The next frontier may be climate change litigation. This will depend, however, on whether such cases can overcome a myriad of obstacles. The first set of obstacles is procedural. One such hurdle is standing, which is a component of subject matter jurisdiction. For standing to exist, the plaintiff must establish: (1) an injury in fact; (2) causation; and (3) redressability. Causation is met if there exists “a fairly traceable connection between the alleged injury in fact and the alleged conduct of the defendant.” A second procedural hurdle is the political question doctrine. This doctrine, which dates back to Marbury v. Madison, holds that federal courts should not exercise jurisdiction over a dispute if the case raises questions which are better left to the political branches of government. These two procedural hurdles have already tripped up the plaintiffs in a trio of bellwether climate-change cases: State of Connecticut v. American Electric Power Company, 582 F.3d 309
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proving substantive causation. The Comer plaintiffs alleged that the Defendants were liable because they produced “massive amounts of greenhouse gasses and thereby injure[d] both plaintiffs and the general public by contributing to global warming, which caused the sea level to rise and added to the ferocity of Hurricane Katrina, the combined effect of which resulted in the destruction of the plaintiffs’…property. While these allegations may be sufficient to show the “fairly traceable” connection necessary to prove standing, it remains to be seen whether courts will find this connection sufficient to raise a fact issue as to proximate cause for purposes of establishing tort liability. Foreshadowing the potential fight to come, the Comer court expressly refused to “hazard, at this early procedural stage…[a] guess into whether the alleged chain of causation satisfies the proximate cause requirement” to recover in tort. Even if it does, plaintiffs face the additional hurdle of finding scientifically reliable evidence to
Snow Day at Belo
support their theories of causation. Finally, there is the risk that legislation closes the door on climate change litigation. The most obvious threat could come from federal legislative or executive action. As the Comer court recognized, “in the future, Congress may enact laws, or federal agencies may adopt regulations” that would preempt state and federal common law tort claims. In addition, states themselves could pass laws placing limits on climate change cases, as Texas and other states have done in the field of asbestos litigation. These are just a few of the obstacles climate-change plaintiffs face. Environmental lawyers on both sides of the docket will be watching the twists and turns the bellwether cases take to see whether climate change litigation is the next frontier in mass tort litigation, HN or simply a passing fad. Steve Sanfelippo is a partner in the law firm Rose Walker, L.L.P., and a member of the Dallas Bar Association’s Appellate Section. Rose Walker specializes in complex litigation. He can be reached at ssanfelippo@rosewalker.com.
14 H e a d n o t e s l D a l l a s B a r A ss ociation
In the News
A pri l 2010
April
ON THE DAIS
tors for Empowering Women as Leaders.
Nicole Emmons, of Baker & McKenzie LLP, recently spoke on “Combating Trademark Counterfeiting on the Internet - Strategies to Protect Brands in Cyberspace” hosted by Strafford Publications, Inc. Steven L. Russell of Russell & Wright, PLLC spoke on “The Rise and Fall of Entrepreneurial Silica Litigation” at the 35th Annual Meeting of the American Industrial Hygiene Association’s Yuma Pacific-Southwest Section in Los Angeles, CA.
W. Joseph (Joe) Miguez of Littler Mendelson has been named shareholder and Jennifer A. Youpa of the firm, has been named Office Managing Shareholder. Joseph Acosta, with Looper Reed and McGraw, was selected to serve as a cochair on the education committee for the Commercial Finance Association. Stephen Baer with The Baer Law Firm has been elected to membership in the Fellows of the Texas Bar Foundation.
William O. Holston Jr. of Sullivan & Holston spoke on Political Asylum Law at Jesuit High School Human Rights Education Day.
Elizabeth Durso Branch of the firm McCurley Orsinger McCurley Nelson & Downing, L.L.P has been promoted to partner.
Jonathan K. Hustis, of Phillips & Reiter PLLC, spoke on Incentive Compensation and Fringe Benefits at the North Texas Enterprise Center Professional Services. He also spoke at UT Dallas School of Management on the topic of Legal Entity Choice and Formation.
Cathy F. Bailey and Katherine L. Laws with Steed Flagg, LLP have become partners of the firm.
KUDOS
Susan I. Jordan with Jordan Law PLLC has been elected to membership in the Fellows of the Texas Bar Foundation.
Vincent J. Ansiaux of Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., John A. Greco of Touchstone, Bernays, Johnston, Beall, Smith & Stollenwerck, LLP, and Amy E. Stewart of Amy Stewart PC have been elected to leadership positions with The North Texas Association of Insurance Counsel. Nichol Bunn with Wilson, Elser, Moskowitz, Edelman & Dicker, L.L.P., Diane Parker with Allied World Assurance Company and Kathleen Turton with Southern Methodist University have been elected to the board of direc-
Michael C. Smith of Cobb Martinez Woodward, PLLC has been named partner.
Martin Valko with Chavez & Valko, LLP was appointed by the Government of the Slovak Republic as its Honorary Consul to the State of Texas. The consulate is scheduled to open in the offices of Chavez & Valko in early May 2010. David T. Moran of Jackson Walker L.L.P. has been named Managing Partner of the firm’s Dallas office. Christopher Rourke with the firm has been appointed to the State Board of Exam-
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iners for Speech Language Pathology & Audiology by Governor Rick Perry. David M. Vereeke of The Law Offices of David M. Vereeke, P.C. has been accepted for membership in the American Board of Trial Advocates. Virginia A. Moore, of the Law Offices of Virginia A. Moore, was recently board certified in Oil, Gas and Mineral Law by the Texas Board of Legal Specialization.
Meghan Cook, Kellie Johnson, and John Kane have joined Kane Russell Coleman & Logan PC as associates. Brian A. Colao has joined Dykema Gossett PLLC. Eric Buether and Chris Joe have opened the law firm of Buether Joe & Carpenter, LLC located at 1700 Pacific, Suite 2390, Dallas, TX 75201. (214) 466-1272.
Anthony P. Daddino with Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. has been named partner and Stephen A. Beck has become Board Certified in Tax Law by the Texas Board of Legal Specialization.
William H. Tinsley has joined the firm Scheef & Stone, L.L.P. as Of Counsel.
Katherine Staton of Jackson Walker L.L.P. has been elected President of the International Aviation Womens Association.
Jessica Hall Janicek has joined Koons, Fuller, Vanden Eykel & Robertson P.C.’s Southlake office. Eric A. Navarrette and Amber A. Rechner have joined the Denton office.
Jason P. Loden with Thompson & Knight LLP has been elected to partner. Neil J. Orleans with Goins, Underkofler, Crawford & Langdon, L.L.P. has been appointed to a 4th term on the City of Richardson Arts Commission. Byron Henry with Cowles & Thompson, P.C has been named a shareholder in the firm’s Appellate Law section.
ON THE MOVE
Larry “Max” Maxwell, Senior Attorney with the Adventist Health System, has relocated his principal office to Huguley Memorial Medical Center, 11801 S. Frwy., Fort Worth, TX 76115. Phone (817) 568-5489. Patrick K. Fox and Ron J. Hoyl with Rockpoint Group, L.L.C. have relocated the Dallas office to Woodlawn Hall at Old Parkland, 3953 Maple Ave., Suite 300, Dallas, TX 75219. Phone (972) 934-0100. Jim Chester and Casey L. Griffith have joined Klemchuck Kubasta LLP as partners.
George W. Coleman joined Bell Nunnally & Martin as Of Counsel and Craig J. Cox has joined as partner.
Lindsay Goodner has joined Chamblee & Ryan, P.C. as associate. Stacie Cargill, Kelly McDonald, Lane Morgan and Charles Persons have joined Weil, Gotshal & Manges LLP. Alexander H. Bailey, Leslie R. Chaggaris, Andrew C. Cookingham, Carla C. Crapster, Ashleigh Everett, Scott A. Kitner, and Jessica S. Morrison have joined Thompson & Knight LLP as associates. Collin Stuart Lensing has joined Winn, Beaudry & Winn, L.L.P. as an associate. Charla Aldous and the Aldous Law Firm have moved to 2311 Cedar Springs Road, Suite 200,Dallas, TX 75201. Kyle Harneck has joined Hermes Sargent Bates LLP. George L. Lankford has joined Martin, Disiere, Jefferson & Wisdom, LLP as partner.
Justinian Award Winner continued from page 1
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for Legal Ethics and Professionalism, Law Focused Education, Inc., DISD Magnet for Law and Public Service, Dallas Council on Alcoholism and Dallas All Sports Association. As president of the Dallas Bar Association, he led efforts to have the DBA become more involved in community service by forming the Community Involvement Committee, which initiated the DBA Home Project. He also led efforts to increase minority involvement in the DBA through the development of the DBA’s Plan for Inclusion. Al’s numerous honors include the Dallas Jaycees Distinguished Service Award, Dallas All Sports Association Distinguished Service Award, Dallas Trial Lawyers Distinguished Community Involvement Award, Leon Jaworski Award for Teaching Excellence, Nancy Garms Memorial Award for Outstanding Contribution to Law-Focused Education, Texas Monthly Super Lawyers 2003-2009, Best Lawyers in America 20032010, Texas Bar Foundation Dan Price Memorial Award, DAYL Excellence in Profession Award, J. L. Turner Legal Association C. B. Bunkley Community Service Award and William “Mac” Taylor Inn of Court Judith Sinclair Radman Award. Whether working on the board of Dallas Habitat for Humanity or some other organization, his service does not stop at traditional board responsibili-
ties. He recently returned to Vietnam to build Habitat for Humanity homes with the Carter Work Project. Because of his wise counsel, sense of humor and ability to mobilize diverse constituents around a common cause, organizations have grown. He has a unique ability to take on a volunteer activity and immerse himself in it so that all of those around him rise to his level of professionalism, dedication, passion and example. He has been an active fundraiser for multiple causes, including the Dallas Volunteer Attorney Program, the Sarah T. Hughes Diversity Fellowships, Dallas Area Habitat for Humanity, Texas Bar Foundation and others. Most recently, upon the death of his friends, John Howie in 2002 and Fred Baron in 2009, he raised the necessary funds to build a Habitat home as a lasting memorial to each. John G. Browning, a partner in the Dallas office of Thompson, Coe, Cousins & Irons, L.L.P., will be the keynote speaker at the Justinian Award luncheon at The Pavilion in the Belo Mansion on April 28. His topic will be “Foiled by Facebook.” One hour of Ethics CLE HN credit will be given. Jan Lamoreaux is chairman of the 28th annual Justinian Award Committee. Marianne Gwinn and Tina Gwinn are serving as cochairs. Joan Nye is president of Dallas Lawyers Auxiliary. To make reservations to attend the Justinian Award presentation at the Belo Mansion on April 28, please contact Tina Gwinn at tina@gwinn.net or (214) 526-9828.
April 2 0 1 0
Classifieds
Dal l as Bar A ssoci ati on l Headnotes 15
April
FOR SALE
Various office furniture for sale. Good condition. Please call Lori King at (214) 752-2222 or e-mail lking@curtislaw.net. Complete, Texas Black Statutes-Books updated to 2004. Beautiful! 2 brown bookshelves. Call to see and offer. Home (972) 235-6299, e-mail kipkugler@tx.rr.com.
14.5’ x 19’ with built-in mahogany secretarial carrel (located in outer office area), one approx. 12.5’ x 14.5’. Both have access to three conference rooms, copier, postage meter and two kitchens. Receptionist services available. Please call Kristi at (972) 934-4100.
Up to 5,000 square feet of office space @ Lincoln Centre for lease. Includes use of three conference rooms, receptionist, telephone system, copiers, fax and high-speed Internet. Call: Lydia @ (972) 458-5350 or e-mail: law@strombergstock.com.
Galleria Area: Law firm located at Lincoln Centre has exterior window offices and interior secretarial offices available. Offices can be rented individually or as a package. Includes use of 2 conference rooms, 2 copiers/scanners, postage meter, fax, VoIP, T1 Internet phone service, 2 kitchens, reserved garage parking. On-site gym and restaurants. E-mail bcollette@dalpat.com for details.
Office Space Available: 6116 N. Central Expressway across from SMU, formerly known by Dallasites as the “Dallas Cowboy Building.” Two window offices available individually or as a pair. Secretarial area available. Space includes access to conference rooms, receptionist, kitchen, computer network, Internet, phones and copier. Contact John Withers, Jr. at (214) 363-2095 or johnjr@witherslaw.com.
Northpark/Central Expwy—Law firm has two offices for sublease in Class A building. Best views in town overlooking downtown and Park Cities. Great location with excellent finish out, elevator exposure and easy access to/from Central Expwy. Includes use of large conference room, secretarial space and kitchen. High-speed DSL, telephones, copier/scanner and on-site storage also available. Call (214) 292-4202.
OFFICE SPACE
Growing North Dallas (Galleria Area) law firm has 1 office for sublease at $600.00 and cubicles available for rent. Intellectual Property law firm seeks self sustaining relationship with Partner level attorneys. First Class office, all amenities. Call Heather at (214) 2105940, ext. 105 for information. Downtown AV rated law firm has a brand new window office with carol, use of conference room and kitchen at Republic Bank Center. Call Mark or Vicki at (214) 752-0400. Walnut Glen Tower (Walnut Hill/Central) Beautiful, new, spacious offices in Class A building with views of downtown over lake with fountains. Lobby with glass elevators, 18-story atrium, waterfall, trees and true outdoors feeling indoors. Practice in a relaxed yet professional 4-lawyer environment which includes administrative stations, conference room, kitchen, copier, phone system, DSL, reserved garage parking, on-site restaurant and other amenities. Why not have quality of life while you practice? Please call (214) 750-1600 for details. Six-person law firm has offices for lease. Class A Building in N. Dallas near Forest & Central. Amenities available include receptionist, administration, oversized conference rooms, kitchen, copiers, Westlaw & other office support; medium to large window offices. Call Anita at (972) 489-3473 for more information. Sublease opportunity in law office in Richardson. Two window offices, one interior office and one legal assistant area available. Office environment is quiet and friendly with new furnishings and updated technology. Receptionist, telephone system, Internet, three conference rooms, two kitchens, free parking with 24-hour access to building. Please e-mail Jennifer Som at Jennifer@ baalegal.com or call (214) 570-0700. Campbell Center: AV law firm has 4 offices (2 exterior) for sublease. New space with exceptional finish out and elevator exposure, amenities included. Law firm also has overflow business litigation work for associate level attorney. Call Joy (214) 361-1262. North Dallas Tollway (Galleria area) office space. Hardwood floors and ornate mahogany paneled walls in common areas. Two available: one approx.
Hidden in the shadow of CityPlace. For Lease ±3,000 ft. second floor, 4225 Office Parkway, two blocks east of Central, one block north of Haskell. Recently remodeled. $12.75 full serve + 40% electric. Some covered parking, nice reception, conference and kitchen. (972) 367-6540 or (972) 3676527 or pbogner@stoneeagle.com. Executive suites. All amenities bundled at one reasonable rate including conference, kitchen, high-speed Internet, T-1 phone rates, Internet fax, receptionist, 24/7 HVAC, 24/7 access, etc. Beautiful garden building in Richardson directly at the DART stop near 75 Central and Spring Valley. Current tenant roster is largely attorneys. (972) 367-6540 or (972) 367-6527. pbogner@stoneeagle.com Five offices available for rent in our historic West End building with a secretarial area available as well. Each of the two downstairs offices rent at $650 each and the secretarial area would be an additional $500. The three upstairs offices are $750 each. All offices can rent individually or as a package. Contact Craig Miley at (214) 692-8800 or craig@mileybrown.com. SMU (Yale)/Central. Partner office and secretarial space. Beautiful 12th floor view of SMU/Park Cities. Professionally decorated, beautifully furnished. Receptionist, elegant conference room, kitchen, DSL, door signage, restaurant, bank, barber, parking, DART. Long term lease available. $1395.00/month (214) 369-9888.
POSITION AVAILABLE
Boutique Downtown Dallas Law Firm seeking part time accountant. Eight to 10 hours per week. Competitive Hourly Salary. For more information or to apply please e-mail lking@curtislaw.net. Fort Worth Not-For-Profit Association is seeking an attorney who has practiced for at least five years and has significant experience in probate, real estate and administrative law. Excellent In-House opportunity with competitive salary and benefit package. Respond confidentially by e-mail to pbishop@bishoppayne.com. Partner-Level: Patent law boutique, consisting of prep/pros lawyers with large-law firm experience, working in an “eat what you kill environment”, is seeking partner-level patent attorney with prosecution experience. A self-support-
"#$%!&'($)*+%+,-!.#)/0! ! 1*!23%*!"+'4! NOW is the time to reserve AD SPACE or participate in the NEW “Legal Resource & Expert Witness Guide” for the 2010 DBA Directory (Print & Online). For rates/availability, contact Patty-Joan ‘pj’ Hines (214) 321-3238, Ext.142 or pjhines@legaldirectories.com “The Directory Used Daily by Dallas Attorneys” Deadline: April 16, 2010
ing book of portable business is a positive, but not imperative. Please e-mail your resume to bcollette@dalpat.com. 27-attorney downtown Dallas firm seeks corporate/transactional associate with 2-5 years private practice experience in business acquisitions and divestitures, private offerings of securities, contract drafting and negotiation, and general corporate work. Strong academic history is required. Please send resume to Hallett & Perrin, P.C., Attn: Recruiting Coordinator, 2001 Bryan Street, Suite 3900, Dallas, TX 75201 or to sgay@hallettperrin.com. Working harder and making less money. Carrying non-productive partners in various stages of semi-retirement. Not at this 10-man firm. Currently seeking one attorney with portable business. The economics of this AV Rated firm will increase your net. Please send resume to rhall@bennettweston.com. Downtown Dallas law firm seeks a commercial litigation attorney with 5 to 9 years experience and a tort litigation attorney with 3-5 years experience. Trial experience preferred. Compensation negotiable. Reply to: kmighell@ cowlesthompson.com. Cobb Martinez Woodward seeks a litigation associate with at least 3 years experience. Experience must include motion practice, drafting and responding to discovery and defending and taking depositions. Outstanding written and verbal communication and presentation skills, as well as precise analyti-
cal, organizational and time management skills are required. Send resumes to: ktennant@cobbmartinez.com.
SERVICES
Mexican Law Expert—Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues - forum non conveniens, Mexican claims/defenses, personal injury, moral damages, Mexican contract law. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez (210) 222-9494 / dlopez@pulmanlaw.com. Comprehensive Psychological Evaluations. Court Testimony. Family-Medical Malpractice-Criminal. Reasonable Rates. Offices Located in Downtown Dallas. Dr. Susan Ann Talmage. Licensed Psychologist Lic #2-4635. Call for More Information: (214) 760-1964 Foreign Legal Consultant Nodgar Piranian. Admitted to the practice of law in ARGENTINA 4925 Greenville Avenue, 2nd Floor, Dallas, Texas 75206. E-mail: nodgar.piranian@charter.net. Phone: (214) 507-7025 Legal Billing Services- Professional, detailed billing done in a timely fashion. Save time, increase profitability and become more efficient. We provide superior service, have several references and 10 years of experience in Timeslips. Call toll free at (866) 943-5151 or www. mybillingdepartment.com. PLACE YOUR AD HERE! For affordable classified advertising rates call Judi Smalling at: (214) 220-7452.
Classified Advertising – 2010 Rates & Deadlines Headnotes is mailed monthly to approximately 10,000 attorneys in the Dallas area, and is ideal for announcing available office space, job openings, items for sale, services, etc. DBA Member Rates: 40 words or less $80; 41-60 words; $112; 61-100 words $140. Non-Member Rates: 40 words or less $128; 41-60 words; $160; 61-100 words $190. Web Page Rates: Classified ads which run in Headnotes can also be posted on the DBA Web site for an additional fee of $40 for a 30-day period, or $60 for non-members. Web-only ads are also available. Ads are posted at www.DallasBar.org/members/classifieds.asp. Deadlines: Ad text and payments are due on the 10th of the month prior to the issue date. For instance, ads for the May 2010 issue of HEADNOTES are due April 10. Payment must be made at time ad is submitted. Mail items to Judi Smalling c/o Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. For additional information: Request rate card and details from JSmalling@dallasbar.org.
16 H e a d n o t e s l D a l l a s B a r A ss ociationâ€
A pri l 2010