Dallas Bar Association
HEADNOTES May 2010 Volume 34 Number 5
Focus Criminal Law
Preparing for the Punishment After 50 Years, Atticus Finch Still Phase of Trial Sets the Mark for Lawyers by Justice Molly Francis
Prepare for Punishment Phase Like Guilt/Innocence. Although the second phase of a trial seems far removed from the first phase, preparation for punishment should be every bit as comprehensive. If a guilty verdict is returned, the range of punishment applicable will have serious consequences for the defendant, and the time needed to investigate and research the admissibility of prior offenses will have long since passed. A cautious attorney should not just rely on her client for this information and assume the State’s paperwork will be in order but, early on, should independently determine what the prior record is and what documents and court jackets need to be ordered and reviewed. Recent decisions regarding adequacy of notice by the State (no bright-line rule) and the sufficiency of the evidence to prove enhancement paragraphs (evidence of prior plus link to defendant) can make pretrial preparation essential.
To Voir Dire the Jury on Enhancements? Whether or not to ask about enhanced punishment during voir dire is often a decision made by the trial court or the State, who both address the jury panel before the defense. Although
attempts to be general are preferred, there was no error based upon the State’s voir dire of visual aids entitled “Range of Punishment” and “Repeat or Habitual Offender.” Hanson v. State, 269 SW3d 130 (Tex. App.–Amarillo 2008, no pet.). Where both documents were relevant, tracked appropriate statutory language and the explanation was hypothetical, both the State and defense could properly discuss all applicable aspects of the law. To take the sting out of the discussion, be prepared to explain why all aspects of the law must be covered during jury selection.
Plead Not True to Enhancement Paragraphs. Pleading true just to be a nice guy is not your job; representing your client is. While many good reasons do exist to plead true, be sure you can articulate that reason before you waive potential error. The State carries the burden of proving the prior convictions were sequential and final. And when there is no evidence to show that the offenses were committed and became final in the proper sequence, the defendant’s sentence may not be enhanced under the State’s habitual offender statutes. Generally, if you plead true, the sufficiency of the evidence will not be an issue on appeal, and you might even have to address an ineffective assistance continued on page 11
Justice Lang Receives Fellows Award
On March 31, amid a packed ballroom at the Pavilion in the Belo Mansion, Justice Douglas S. Lang was presented with the 2010 Dallas Bar Foundation Fellows Award. Also in attendance were (left to right) Mark Shank, DBF Chairman, and State Bar of Texas President Roland Johnson.
by Gregory W. Sampson
S
ince it was published in 1960, Harper Lee’s classic To Kill a Mockingbird has won numerous awards and a lot of American hearts. It has also had a profound impact on the legal profession and many prominent lawyers. So it is fitting in this 50th anniversary year to reflect on why this story has been such a great inspiration. Harper Lee tells the story of a virtuous white criminal defense lawyer, Atticus Finch, doing the right thing in the face of opposing social mores by defending an innocent black man against charges of raping a white woman in a small Alabama town in the 1930’s. For lawyers, the central character is Atticus Finch. Gregory Peck won an Oscar for his portrayal of this single father raising his young daughter, Scout, and son, Jem, amid the sometimes harsh reality of racial and social clashes of that day. Atticus’ uncommon effort to save his client, help his children understand those times and develop true compassion for their fellow men established Atticus as one of the most revered movie characters of all time. In one of many casual fatherly lessons, Atticus tells his daughter, “If you just learn a single trick, Scout, you’ll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view--until you climb into his skin and walk around in it.” Imparting such wise principles makes it easy to see why Atticus is admired as a good man and a father. But what is it about Atticus that he can launch a legal career for young men and women and drive them to reach their own career pinnacles as so many have said? Morris Dees, co-founder of the Southern Poverty Law Center and first recipient of the DBA’s Courageous Advocacy Award, is said to have cited Atticus Finch as the reason he became a lawyer, and many other legal icons have said they were similarly inspired. Kim Askew, a respected litigator and recognized leader in national, state and local bar associations spoke of the importance of Atticus Finch to our profession in her 2006 Opening Statement as ABA Section of Litigation Chair, “Beyond the Moral Archetype,” published in the fall 2006 ABA Litigation magazine. She said, “I have long admired Atticus for the reasons most lawyers do. Atticus represents the best in us. He is the ultimate: the lawyer and person every lawyer wishes to be. He inspires us to greatness because he believed in justice and equality. He embodies our highest ideals and represents the nobility of the profession.” When asked why she wanted to lead the ABA, President Carolyn Lamm reflected, “When I was much younger, I remember watching the film “To Kill a Mockingbird” for the first time. I remember watching Atticus Finch, standing alone in the courtroom. I remember wanting to stand beside him, to stand for what he stood for, to help him fight and to win.” In another memorable moment, Atticus gives a lesson on true courage that has spoken to the heart of many who see the practice of law as a virtuous mission worthy of pursuit regardless of the outcome. He tells Scout, “I wanted you to see what real courage is … It’s when you know you’re licked before you begin, but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do.” Beyond words, both the book and the movie provide many images that can inspire those of us living in the trenches of legal battle every day. Take the moment in the movie when Atticus is leaving the courtroom in defeat and the balcony gallery rise to their feet in reverence to this humble man’s courageous struggle; I suspect many lawyers feel a lump in their throats at that moment. Like real life, the book also reveals that even the most virtuous lawyers can still be challenged by ethical dilemmas. For example, there is a scene at the end of the book when the sheriff asks Atticus “to lay hush on” the truth of how Mr. Ewell died to protect the hero Boo Radley. How Atticus ultimately resolves that ethical dilemma upon later reflection, or how his legal career ends, will never be written by Harper Lee. But perhaps that is the chapter we are now writing--the story of the future of our profession. Kim Askew reminds us that Atticuses do still exist and closes her Opening Statement with this encouragement. “Our legal system faces unprecedented challenges, but we are up to the task. As you answer the call to duty, just look around and remember that Atticuses are some HN where close by. Applaud them and follow their examples. Atticus can be you.”
Gregory W. Sampson is a shareholder at Passman & Jones and Co-Chair of the DBA Legal Ethics Committee. He can be reached at sampsong@passmanjones.com.
Inside 5 Recent Developments on Disclosure of Exculpatory Information 8 25 Years of Bar None 13 Court Restricts Access to Computer Hard Drives
DBA LAW DAY LUNCHEON
Honorable Barbara M.G. Lynn Friday, May 7 at noon Honoring our State & Local Judiciary Tickets: $35 Must be purchased in advance. For more information contact Michelle Dilda at mdilda@dallasbar.org
2 H e a d n o t e s l D a l l a s B a r A s sociation
Calendar
May Events
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
FRIDAY CLINICS May 14 – North Dallas**
Noon
“Recent Trial Science: What Studies Show About Persuading Jurors,” Dr. Scott McWilliams. At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy, Suite 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building; food is allowed inside the conference room. Thank you to our sponsor Griffith Nixon Davison, P.C. (MCLE 1.00)*
May 21 - Belo Mansion
Noon
“Everything You Wanted to Know About Property Tax, but Didn’t Know Who to Ask,” John Brusniak. (MCLE 1.00)*
MONDAY, MAY 3
Tax Section “Transfer Planning in the Shadow of Transfer Tax Reform Efforts,” Steve Akers. (MCLE 1.00)*
Noon
Peer Assistance Committee
TUESDAY, MAY 4 Noon
Corporate Counsel Section “Reductions in Force: Not Over Yet?” Jennifer Youpa and Allan King. (MCLE 1.00)*
Tort and Insurance Practice Section “How to Effectively Utilize Physicians in Tort Cases,” Michael Sawicki, Colleen Carboy, Amy Witherite, Charles Bell, Joel Steed, Max Freeman and Charla Aldous. (MCLE 1.00)*
Morris Harrell Professionalism Committee
5:30 p.m.
Bar None Production Company Rehearsals
6 p.m.
DAYL Board of Directors
WEDNESDAY, MAY 5
Noon
Employee Benefits/Executive Compensation Section “Health Care Reform: Implications for Employers, Health Plans and Employee Benefits Practitioners,” Cynthia Marcotte Stamer. (MCLE 1.00)*
Solo & Small Firm Section “Wrongful Foreclosure Litigation,” Mark D. Cronenwett. (MCLE 1.00)*
Lawyer Referral Service Committee
Public Forum Committee
DAYL Environmental Awareness Committee
5:30 p.m.
Bankruptcy and Commercial Law Section “Hamp and the Homestead: Can You Lower Mortgage Payments in a Chapter 13?” Erin Shank. (MCLE 1.00)*
Bar None Production Company Rehearsals
THURSDAY, MAY 6 Noon
Construction Law Section “Recent Developments in Residential Construction Litigation: The Sunset of the TRCCA,” Tim R. Sherry. (MCLE 1.00)*
Legal History Discussion Group. “Texas’ First Federal Judge: John C. Watrous,” Diego Pena. (MCLE 1.00)*
“Fiduciary Risk Management for Alternative Investments,” Adam Taback and Steve Orr. At Communities Foundation of Texas (5500 Caruth Haven Lane, Dallas 75225). Sponsored by the Probate, Trusts, & Estates Section. (MCLE 1.00)*
DAYL CLE Committee
Family Law Section Board of Directors
St. Thomas More Society
1 p.m.
DBA Golf Tournament
5:30 p.m.
May 2010
Bar None Production Company Rehearsals
FRIDAY, MAY 7 9 a.m.
DVAP/Catholic Charities Free program on Employment Law and Immigrations. (MCLE 3.00)* For more information, contact Matt Khirallah at mkhirallah@ccicsdallas.org.
11:45 a.m.
Annual Law Day Luncheon Keynote speaker: Hon. Barbara M.G.
Lynn. To purchase tickets, visit www.dallasbar.org, or contact mdilda@dallasbar.org.
J. Reuben Clark Society
MONDAY, MAY 10 Noon
Alternative Dispute Resolution Section “Lawsuit Settlements: Seven Ways to Get There Faster, Better and Cheaper,” John DeGroote. (MCLE 1.00)*
Real Property Law Section “Understanding Collaborative Law,” Sherrie R. Abney. (MCLE 1.00)*
5:30 p.m.
Bar None Production Company Rehearsals
Government Law Section “Ethical Concerns for Government Lawyers,” Christopher Caso. (Ethics 1.00)*
TUESDAY, MAY 11 Noon
Business Litigation Section “U.S. Supreme Court Update 20092010,” Prof. Erwin Chemerinsky. (MCLE 1.00)*
Mergers and Acquisitions Section Topic Not Yet Available
DAYL Equal Access to Justice Committee
5:30 p.m.
Annual Senior Lawyers Appreciation Dinner Keynote speaker is Mayor Tom Leppert; tickets $40. Contact Kathryn at 214220-7450.
6 p.m.
Bar None Production Company Rehearsals Home Project Committee
WEDNESDAY, MAY 12
George W. Coleman and Prof. Linda Eads. (Ethics 3.00)*
6 p.m.
J.L. Turner Legal Association
FRIDAY, MAY 14 10 a.m.
Family Law Nuts & Bolts CLE sponsored by the Dallas Volunteer Attorney Program
Noon
Friday Clinic – North Dallas** “Recent Trial Science: What Studies Show About Persuading Jurors,” Dr. Scott McWilliams. At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy, Suite 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building; food is allowed inside the conference room. Thank you to our sponsor Griffith Nixon Davison, P.C. (MCLE 1.00)*
Trial Skills Section “Adventures in Error Preservation,” Scott Stolley. (MCLE 1.00)*
DAYL 2010 Leadership Steering Committee. For more information, contact Cherie Harris at cherieh@dayl.com.
MONDAY, MAY 17 11:30 a.m.
Dallas Bar Foundation
Noon
Labor & Employment Law Section “Hot Topics Involving the ADA and FLSA Class Actions,” Robert Lee, Derek Braziel. (MCLE 1.00)*
5:30 p.m.
Bar None Production Company Rehearsals
TUESDAY, MAY 18
Noon
Antitrust & Trade Regulation Section “Helping Your Client: Calling DOJ to the Rescue,” William H. Stallings and Jerry L. Beane. (MCLE 1.00)*
International Law Section “Current International Events: Law vs. Fiction,” Cym Lowell. (MCLE 1.00)*
Community Involvement Committee
Entertainment Committee
Law in the Schools and Community Committee
DAYL Animal Welfare Committee
DAYL Elder Law Committee Bar None Production Company Rehearsals
7:45 a.m.
Dallas Area Real Estate Lawyers Discussion Group
5:30 p.m.
Noon
Family Law Section “Social Security Benefits in Divorce,” Coury Jacocks. (MCLE 1.00)*
Noon
Energy Law Section Topic Not Yet Available
CLE Committee
House Committee Walk Through
Christian Lawyer Fellowship
Health Law Section “The Road Ahead: The Challenges Providers Will Face Regardless of the Status of Healthcare Reform,” Frank Sheeder. (MCLE 1.00)*
DAYL Lunch and Learn: Depositions (MCLE 1.00)* For more information, contact Cherie Harris at cherieh@dayl.com.
Law Day Committee
5:15 p.m.
LegalLine
5:30 p.m.
Bar None Production Company Rehearsals
THURSDAY, MAY 13 11:30 a.m.
DAYL Barristers for Babies
Noon
Collaborative Law Section “Role of a Facilitator in the Collaborative Process of Dispute Resolution: How to Maximize the Facilitator’s Effectiveness,” Mary Ann Kildebeck. (MCLE 1.00)*
Admissions and Membership Committee
WEDNESDAY, MAY 19
3:30 p.m.
DBA Board of Directors
5:30 p.m.
Bar None Production Company Rehearsals
FRIDAY, MAY 21 8 a.m.
Juvenile Justice Committee
10 a.m.
Family Law Nuts & Bolts CLE sponsored by the Dallas Volunteer Attorney Program
Noon
Friday Clinic – Belo “Everything You Wanted to Know About Property Tax, but Didn’t Know Who to Ask,” John Brusniak. (MCLE 1.00)*
MONDAY, MAY 24 Noon
Computer Law Section “Combating Counterfeit Products,” Ken Thomas. (MCLE 1.00)*
Securities Section Topic Not Yet Available
Criminal Justice Committee
5:30 p.m.
Bar None Production Company Rehearsals
TUESDAY, MAY 25 Noon
Probate, Trusts & Estates Section “Transfer Tax Developments,” Stephen R. Akers. (MCLE 1.00)*
Courthouse Committee
Summer Law Intern Program Committee
American Immigration Lawyers Association
5 p.m.
DAYL Swearing–In Ceremony
5:30 p.m.
Bar None Production Company Rehearsals
6 p.m.
Dallas Hispanic Bar Association
WEDNESDAY, MAY 26 7:45 a.m.
Dallas Area Real Estate Lawyers Discussion Group
Noon
Sports & Entertainment Law Section “Player Contract and Labor Relations in Major League Soccer,” Todd Durbin. (MCLE 1.00)*
Juvenile Justice Committee
DVAP New Lawyers Luncheon. RSVP to Chris Reed-Brown at reed-brownc@ lanwt.org. DAYL Aid to the Homeless Committee 5:30 p.m. Bar None Production Company Rehearsals
THURSDAY, MAY 27
Noon
Criminal Law Section “10 Things Every Lawyer Should Know,” Reed Prospere. (MCLE 1.00)* Criminal Law Section “Leaves from the Diary of an Environmental Attorney,” Kinnan Goleman. (MCLE 1.00)*
Minority Participation Committee
Pro Bono Activities Committee
2 p.m.
Law Student Professionalism Program
Municipal Justice Bar Association
FRIDAY, MAY 28
Non-Profit Law Study Group
Community Service Fund Board
Intellectual Property Law Section Topic Not Yet Available
DAYL Judiciary Committee
Noon
5:15 p.m.
LegalLine
DVAP Ad Litem Certification
5:30 p.m.
Bar None Production Company Rehearsals
MONDAY, MAY 31
THURSDAY, MAY 20
Publications Committee
Noon
Appellate Law Section “What Every Appellate Lawyer Should Know About Family Law,” Jimmy Vaught. (MCLE 1.00)*
Dallas Asian American Bar Association
Minority Participation Committee
Federal Bar Association
Summer Law Intern Program Committee
Christian Legal Society
5:30 p.m.
Ethics Fest 2010 Speakers include Bill Cobb, Coyt Randall Johnson, Suzanne Raggio Westerheim, Florentino Ramirez, Sr., William D. Elliott,
Media Relations Committee
DBA offices closed for Memorial Day.
TUESDAY, JUNE 1
Corporate Counsel Section “ADR—Pros and Cos and Different Avenues,” Stan Eigenbrodt (MCLE 1.00)*
Dallas Criminal Defense Lawyers Association
Noon
Dallas Gay & Lesbian Bar Association
5:30 p.m.
Bar None Production Company Rehearsals
UPL Subcommittee
6 p.m.
DAYL Board of Directors
Tort and Insurance Practice Section Topic Not Yet Available Morris Harrell Professionalism Committee
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KTarangioli@dallasbar.org.
May 2010
Dal l as Bar A ssoci ati on l Headnotes 3
Focus
Criminal Law
The Challenges of Electronically Stored Evidence by Michael Gibson and David Medders
L
itigators are increasingly challenged with the use and admissibility of electronically stored evidence. Whether at the discovery or trial phase, it is important to recognize and understand the basic issues created by this type of evidence. The term electronically stored evidence is probably more accurately described as electronically generated and stored evidence, which is found as emails, spreadsheets and business records, digital images or chat logs. All of the issues regarding the admissibility and authenticity of such electronically stored evidence (ESI) are too myriad to list or adequately address in this article. As courts continue to struggle with a uniform standard, however, two courts have set out workable frameworks to guide the parties for now. The Federal Rules of Evidence do not separately or specifically address the admissibility of electronic evidence. Rather it is a combination of rules covering authenticity, hearsay and relevance that must be considered before electronic evidence is admitted. In Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007), Chief Magistrate Judge Grimm provided a comprehensive analysis of the evidentiary rules that govern the admission of electronic evidence at trial.
Under that analysis, whenever ESI is offered as evidence, one must consider the following rules: 1. Is it relevant as determined by Rule 401; 2. If relevant, is it authentic as required by Rule 901(a); 3. If offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is there an applicable exception; 4. Is it in a form that is being offered as an original or duplicate under the original writing (or “best evidence”) rules, Rules 1001-1008; and 5. Is the probative value substantially outweighed by the danger of unfair prejudice under Rule 403. Of those five factors, the authenticity and best evidence rules are the most important. Our understanding of authenticity under Rule 901 is tested when applied to electronic evidence. In the past, one dealt only with how the records or information were kept. When dealing with computers, we also have to account for the processes, hardware and software used, and the capacity of the computer process to produce accurate results. In In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005), the Bankruptcy Appellate Panel of the Ninth Circuit held that the bankruptcy court did not abuse its discretion by refusing to admit ESI showing the bankrupt customer’s credit card debt. The proponent lacked
Dedication of DBA’s Habitat for Humanity House Saturday, May 22, 10:00 a.m. at 3515 Mojave, Dallas, TX Please join us as we turn over the keys to the Fuery family. DBA Home Project Wrap Party Thursday, May 27, 6:00 p.m. St. Pete’s Dancing Marlin, 2730 Commerce Street Still Need to Make Your Donation? The DBA’s Home Project is building its 19th house for Habitat for Humanity, and your contributions are needed. To donate, log on to www.dbahp.com or make checks payable to Dallas Area Habitat for Humanity and mail to Teddi Rivas, c/o DBA, 2101 Ross Ave., Dallas, TX 75201
Mel Wolovits
Helping Parties Negotiate and Resolve
Great Walls of Conflict
Mel Wolovits at the Great Wall of China
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the foundation—specifically “the retention and retrieval of information contained in the documents”—from a qualified witness to verify the authenticity of the records. Vinhnee adopted an 11-step analysis for the appropriate authentication of a process or system. It was the fourth step, however, that was found most important. The court stressed that a custodian of records must have specific knowledge of the “built-in safeguards to ensure accuracy and identify errors.” The custodian’s testimony must include computer policy and system control procedures, including control of access to the database, control of access to the program, recording and logging of changes, as well as backup practices and audit procedures to assure the continuing integrity of the records. Once the proponent of ESI clears the authenticity hurdle there is the issue of whether it is admissible as an original or copy. The best evidence rule provides that the original of a “writing, recording, or photograph” is needed to prove its contents. Rule 1002. And where the evi-
dence is a business record, like a general ledger or report, it is that content that the proponent seeks to have admitted. An original is the writing or recording itself, or “[i]f data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately.” Rule 1001(3). Where the rule applies, the proponent must produce the original or a duplicate, or explain its absence. Rule 1002, 1003, and 1004. United States v. Bennett, 363 F.3d 947 (9th Cir. 2004). The requirement of an “original” can present a formidable challenge, for example, if the original files were corrupted or the computer was reformatted. Without an original for comparison, however, how does the proponent show that the data contained in the copy is accurate? Ultimately the best practice for every litigator facing these issues is to use an experienced professional early in HN the process. Michael P. Gibson is a partner and Carl David Medders is an associate at Burleson Pate & Gibson. They practice white collar defense and federal criminal law.
INPUT ON DALLAS COUNTY LOCAL RULES REVISION Sponsored by the DBA Judiciary Committee If you have input concerning proposed revisions to the Local Rule of the Civil Courts of Dallas County, please send comments and questions to, localrulessuggestions@dallascourts.org. An organizational meeting will be held noon, Wednesday, June 9 at Belo. All members are invited to attend. Proposed revisions are subject to approval by the local judiciary and final approval by the Texas Supreme Court.
4 H e a d n o t e s l D a l l a s B a r A s sociation
May 2010
Headnotes
President's Column
. . . More On Our Committees by ike vanden eykel
I
n my last column I highlighted the work of several of our standing committees at the Dallas Bar Association that deal directly with the public and provide varied opportunities for service to our community. I would like to continue to spotlight the work of our membership in several more committees that do tremendous work and keep our association in the lead of bar associations across our state and the nation. The incredible work done by our Admissions & Membership Committee is to be applauded. It is headed this year by Rob Roby as Chair, and Adam Connatser, Aubrey Connatser and Artie Errisuriz, as Co-Vice Chairs. This group is in charge of the daunting task of overseeing recruitment and retention of members, which is no small task in an organization as large as the Dallas Bar. They hold phonea-thons to contact members who are not current on their membership and also sponsor the New Member Reception each year at the Belo Mansion. Our continued growth past 10,000 members is a tribute to the precision operation of this committee. The recent success of this committee is in large part due to the tireless effort of Kimberly Watson on our Dallas Bar staff and the innovations she has brought to this effort. Another committee that should be recognized is the Bench Bar Conference Committee. The 2010 Co-Chairs of this committee are Hon. Elizabeth H. Crowder, Hon. Denise Garcia, Kent Hofmeister, Hon. Jeanine Howard, Jeff Levinger, Hon. Michael E. Miller, Hon. Lorraine A. Raggio, Hon. Emily G. Tobolowsky and Hon. Staci Williams. The Co-Vice Chairs are Steve Bolden, Dawn Estes, Hon. Elizabeth Frizell, Andrew Payne, Deborah Perry and Rudy Rodriguez. This is a committee that literally works throughout the year to coordinate our annual Bench Bar Conference. If you have never attended this event you have truly missed a valuable benefit of your bar membership. It is an unparalleled opportunity, especially for new lawyers, to interact on an informal basis with the judiciary of Dallas County, and also mingle with other members of our association in a relaxed setting. The DBA is very proud of this event with good cause. I invite all who are curious to give it a try for 2010 on October 14 and 15 at Horseshoe Bay. You will not be sorry! Enough cannot be said for the work of our CLE Committee at the Dallas Bar. It is Co-Chaired by Wes Alost and Patrick McLain. The Vice Chairs of the committee
Board of Directors Roundup
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cott McElhaney, chair, called the March 18 meeting to order and welcomed and introduced guests. Bob Black and Debbie Bullion, candidates for President-Elect of the State Bar of Texas reported to the Board why they were the best candidates for the position. Erin Peirce and Ryan McFarlin, co-chairs of the Summer Law Intern Program (SLIP), reported to the board that the need is critical for law firms to hire Dallas ISD students as summer interns for four- or eight-week experiences in their firms. Reporting on the Legal History Discussion Group, Josiah Daniel explained that the informal group’s programs have been outstanding and well-attended. Philip Kingston, co-chair of the Public Forum Committee, reported that the committee is in the planning stages of their second “Dallas Tomorrow” program on the future of the city and also hopes to have a Gubernatorial Candidate Forum this year. Reporting on the Pro Bono Activities Committee, co-chair Christina McCracken explained the committee has a number of sub-committees that host a variety of activities such as Bankruptcy Assistance Project, Mentoring Project and Pro Bono Week. Dallas State Bar Directors Tim Mountz and Mark Sales updated the Board on the activities of the State Bar of Texas, including the issue of Professional Liability Insurance. Mr. Mountz reported that Talmage Boston is running for SBOT Chair of the Board. Mr. McElhaney reported that the Campaign for Equal Access to Justice was very successful. There being no further business, the meeting was adjourned.
are Robert Udashen and Diane Sumoski. The free CLE provided by the Dallas Bar is legendary around the country among bar associations. It is easy to state it clearly: No one does it like the Team DBA! We not only have the finest bar facility in the country, but we are also able to provide over 400 hours free CLE—which other bar associations dream about. We have also expanded the CLE programs to include a North Dallas facility to help us better serve our members with offices in the northern part of our city. In addition to the regular Friday clinics, this committee also coordinates evening CLE programs and special seminars. This aspect of the DBA is truly one of the pillars of our association. Another committee that deserves recognition is our Lawyer Referral Service Committee. This group is chaired for 2010 by Lee Baldwin. The committee Vice Chair is Tom C. Lochry. It is the task of this committee of the Dallas Bar to oversee our service that takes calls from people in our community who are seeking the services of an attorney. The Lawyer Referral Service is responsible for more than 25,000 calls each year and over 14,000 referrals are made annually. This is a critical service to our community and is a fabulous opportunity for our association to be in the public’s eye in a very positive way. Another committee of the Dallas Bar, that touches our community in many ways and casts a very big and positive shadow, is the Minority Participation Committee which is Co-Chaired by Artie Errisuriz and Schalyece M. Harrison. The Co-Vice Chairs for 2010 are Corey Admire and Shelli Neal. This energetic group is responsible for a variety of activities, including planning the minority clerkship luncheons, the minority attorney business development programs and many more. We are very grateful for the work and effort by this committee. A relatively new committee in the DBA is the Public Forum Committee. This year the Chair of this group is Philip T. Kingston. The Vice-Chair is Aaron Tobin. The decision was made several years ago that significant events and community forums should be held in the Pavilion at the Belo Mansion. This committee has taken that idea and made it a reality in a big way. Our DBA headquarters has been the site for many important forums, including several highly publicized political debates. Our hats are off to this group for their fine effort on the behalf of Team DBA. As you can easily see, there are many people contributing to the continued success of our organization. The Dallas Bar Association is fueled by our committees and we have our HN track record to prove it.
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
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.
May 2010
Focus
Dal l as Bar A ssoci ati on l Headnotes 5
Criminal Law
Recent Developments on Disclosure of Exculpatory Information by Sarah Q. Wirskye
I
n Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court created a constitutional duty on the part of prosecutors to turn over “evidence favorable to an accused … where the evidence is material to either guilt or punishment.” Over the last year, there have been several significant developments regarding Brady law, in part spurred by the Brady violations in the Ted Stevens prosecution. Two of the more significant developments are several newly-issued memoranda for Justice Department prosecutors and the American Bar Association Formal Opinion 09-454.
Memoranda for Justice Department Prosecutors On January 4, 2010, Deputy Attorney General David W. Ogden sent Department of Justice (DOJ) prosecutors three memoranda regarding discovery in criminal matters. These policies, like other DOJ policies, provide guidance but, as stated, do not have the force of law or confer any rights, privileges or benefits. The first memorandum addresses requirements for local-office discovery policies in criminal matters. The document begins by stating that no new disclosure obligations are created by the policy
guidelines and that the disclosure obligations are already set forth in Federal Rules of Criminal Procedure 16 and 26.2, Brady, Giglio and the Jencks Act. Although DOJ policy provides for broader disclosure than Brady and Giglio, the directive requires each office to establish a discovery policy. The second memorandum pertains to issuance of guidance and a summary of actions taken in response to the report of the DOJ Criminal Discovery and Case Management Group. Finally, the third memorandum contains four steps for prosecutors regarding criminal discovery. The first step is gathering and reviewing discoverable information. Prosecutors should look at the “prosecution team” (for which the guidelines provide criteria in defining) when gathering and reviewing discoverable information. The review process should cover the following areas: 1. The investigating agencies’ files; 2. Confidential informant, cooperating witness, human source and source files; 3. Evidence and information gathered during the investigation; 4. Documents or evidence gathered by civil attorneys and/or regulatory agencies and parallel civil investigations; 5. Substantive case related communication;
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6. Potential Giglio information regarding law enforcement witnesses; 7. Potential Giglio information relating to non-law enforcement witnesses; and Federal Rule of Evidence Declarants; and 8. Information obtained in witness interviews. The second step for the prosecutor is to establishing who should conduct the review. The policy states that while it would be preferable for prosecutors themselves to review information, such a review may not be feasible or necessary. Step three is making the disclosure. Prosecutors are encouraged to provide broad and early discovery consistent with any countervailing considerations. The fourth step is for prosecutors to make a good record regarding disclosure.
opinion 09-454. Under the opinion, there is no materiality or admissibility requirement, as required under the Constitution. While a prosecutor must disclose known information, he has no duty to search for exculpatory information; however, he cannot close his eyes to the obvious. Disclosure must also be timely so that, for example, a defendant can make an informed decision regarding a plea offer. The opinion further states that the defendant cannot waive his right to exculpatory information in exchange for leniency. Exculpatory information regarding sentencing must also be disclosed. Finally, supervisory lawyers in a prosecutor’s office have an obligation to ensure that their lawyers comply with these obligations.
ABA Formal Opinion 09-454 Conclusion On July 8, 2009, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 09-454, entitled “Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense.” Notably, the opinion is more demanding than any Constitutional obligations. Opinion 09-454 is based upon the Model Rules of Professional Conduct, which are the basis for lawyer ethics codes in every state except California. However, ABA Opinions are advisory, and thus do not have the force of law. States and judges can, however, incorporate the ABA’s new interpretation into their Rules and Orders. Indeed, U.S. District Judge Emmet Sullivan in Washington D.C. has already issued a standing order that incorporates
While there have been significant developments regarding the disclosure of exculpatory information, some practitioners believe progress still needs to be made. Although the DOJ policies and memoranda and the ABA opinion contain more expansive discovery obligations, they do not have the force of law. Many defense attorneys believe that codification of these policies would be helpful while most governmental entities believe it is not necessary. It remains to be seen what the effects of this recent guidance will be and whether there will be a further push to codify more expansive disclosure of excul HN patory material.
Sarah Wirskye is a Partner at Meadows, Collier, Reed, Cousins, Crouch & Ungerman, LLP and is also a CPA. She can be reached at swirskye@meadowscollier.com.
6 H e a d n o t e s l D a l l a s B a r A s sociation
Focus
May 2010
Criminal Law
A Primer on Contempt Proceedings by Kevin B. Ross
T
he contempt power is used by judges to ensure that conduct in court proceedings is respectful and to deter conduct that does or may obstruct the proper administration of justice. The general contempt statute is found in Section 21.002 of the Texas Government Code. There are two types of contempt: direct contempt and constructive contempt. Direct contempt occurs when conduct is known to the court firsthand, even if it did not occur in front of the trial judge. Direct contempt can occur in the courtroom, around the jury or in the jury room in which the business of the court is being engaged. When direct contempt occurs, the trial judge has the power to act immediately if the circumstances are exigent, such as to quell a disturbance, outburst or disrespect toward the court. Constructive contempt occurs when the contemptuous conduct happens outside of the presence of the court. In such a case, the court needs testimony or the production of evidence to make a contempt determination. Typically, constructive contempt is alleged when a party has failed to comply with a valid court order. Contempt can be either civil or criminal in nature. The procedural requirements are determined by the nature of the proceeding. The purpose of the penalty to be imposed (coercive or punitive) determines whether the proceeding is criminal or civil. A Commercial civil contempt order is coercive Properties Ad_finalHR.pdf 5/22/09 9:02:52 AM in nature and designed to force the con-
temnor to obey an order of the court. If the contemnor satisfies the court’s order, then he can avoid punishment. The penalty stays in effect until the contemnor complies with the order. Inability to comply with the order is, however, a defense to civil contempt. Thus, a civil contempt order resulting in imprisonment is void if the contemnor cannot comply with the conditions of the order. In contrast, criminal contempt is ordered for the purposes of punishment or deterrence. Most criminal contempt orders arise from acts the court has prohibited the offending party from doing. Because criminal contempt is for past acts, resulting in potential punishment, a valid criminal contempt order requires compliance with procedural safeguards. Because a contempt proceeding is quasi-criminal in nature, due process requirements, such as notice and a fair hearing, must be afforded to the contemnor. This is especially true in constructive contempt proceedings. Before holding a person in contempt, it must be shown that: (1) the respondent had knowledge of the court order disobeyed; (2) the court had jurisdiction to have entered the order; and (3) the court order at issue was clear, specific and unambiguous regarding what was required of the offending party. In addition, there must be actual and sufficient notice to the respondent, including notice of when, how and by what means the defendant has been guilty of the alleged contempt. Moreover, the respondent must be personally served with a valid order to show
cause or the movant must establish that the alleged contemnor had knowledge of its contents. Sufficient notice must be given to allow time for the respondent to hire an attorney, investigate the allegations, subpoena witnesses and prepare for trial. The alleged contemnor has a right to be present at trial and confront witnesses in a contempt proceeding, whether it be civil or criminal in nature. Other constitutional rights, such as the Fifth Amendment right to be free from self-incrimination and double jeopardy, also apply in a contempt proceeding. Whether an alleged contemnor has a right to a jury trial is determined by whether the offense is classified as “serious” or “petty.” An offense is considered serious if the punishment can be greater than six months confinement. This can occur if there are two or more
allegations of contempt that are aggregated. An offense is considered petty if the punishment does not exceed six months confinement. The right to a jury trial can be waived, but the waiver must be clear on the record. The contempt powers of the court are necessary to enforce its orders, promote dignity and respect for the courts and to ensure the proper administration of justice. Such powers are to be used cautiously and come with procedural safeguards promoting fairness and justice. For a more thorough discussion of contempt, see “Contempt of Court” by Senior District Judge Paul Davis, In Chambers Magazine, at www.yourhonor. com/IC-Online/IC_Spring08/Final_ HN Contempt.html. Kevin B. Ross is an associate with Sorrels, Udashen & Anton. He also serves as a mentoring attorney in DVAP for expunctions and non-disclosures. He can be reached at kbr@sualaw.com.
Office Supply Drive Until May 9th 2010 Benefiting the Hugh O’Brian Youth Leadership Organization of North Texas The DBA is collecting the following to provide to 250 seminar attendants: 3 inch white binders; Legal Pads; Pens; Markers; Office Supply Gift Cards (any amount) Drop off donations at the 2nd floor offices of Belo. For more information, contact Puja Maharaj at puja.maharaj@bankofamerica.com or (817) 688-8146. Sponsored by Dallas Bar Association Community Involvement Committee. Benefiting the Hugh O’Brian Youth Leadership of North Texas. For more information on HOBY or to volunteer please visit www.HOBYTexasNorth.org. HOBY is a registered 501(c)3 corporation and all donations will be acknowledged with a receipt.
Dallas Minority Attorney Program
On April 9, the Dallas Minority Attorney Program, sponsored an all-day event, led by Michelle Wong Krause and Rhonda Hunter, which hosted 12 speakers covering various topics. In addition, two judiciary panel discussions were presented. Judges who participated in the event included Hon. Jennifer Balido, Hon. Tena Callahan, Hon. Rob Canas, Jr., Hon. Lynn Cherry, Hon. John Creuzot, Hon. King Fifer, Hon. Elizabeth Frizzel, Hon. Carl Ginsberg, Hon. Randall Grubbs, Hon. Martin Lowy, Hon. Larry Mitchell, Hon. Kenneth Molberg, Hon. John Peyton, Hon. Mark Stoltz.
May 2010
Dal l as Bar A ssoci ati on l Headnotes 7
The Electronic Transactions Act by Kevin M. Kerr
T
he Texas legislature adopted the Electronic Transactions Act 10 years ago with little fanfare. The ETA governs electronic contracts, such as a signature on a card reader at a retail store or a “point and click” online purchase. However, the ETA also applies to casual e-mail exchanges between parties with surprising results. The ETA was originally codified in Chapter 43 of the Texas Business and Commerce Code, but was recently moved to Chapter 322. The purpose of the ETA is to expand the use of computer transactions (§ 322.006). However, the ETA does not apply to wills, testamentary trusts, or most provisions of the UCC (§ 322.003). The gateway into the ETA is a requirement that parties agree to conduct business by electronic means (§ 322.005). The comments indicate that an e-mail exchange will meet this requirement. While many attorneys still include contractual language authorizing fax, e-mail or other notice, the ETA appears to apply to any electronic exchange, even if the documentation does not contain the express authorization. The ETA cannot be waived by an agreement. Section 322.007 is the most important section of the ETA. It broadly declares that a contract cannot be
denied legal effect merely because it is an electronic record. An electronic record is the same as a paper record and an electronic signature is the same as an ink signature. Like all uniform acts, the ETA contains technical definitions that must be carefully reviewed. A. An “electronic record” is any information stored electronically that is retrievable in a perceivable form. Examples include an e-mail message, a recorded phone call or a text message. “Signature” is defined very broadly. An “electronic signature” is “an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record” (§ 322.002(8). Some might argue that an e-mail has to have a name at the end to be a signature (in a logical sense) but the inclusion of the “process attached to” the electronic record could mean that merely hitting the send button is sufficient. The definition requires a proponent of the contract to prove that the sender had contractual intent in signing the contract. However, § 322.005(e) provides that merely having an electronic record and electronic signature will not override any additional legal requirements for a contract. For example, a contract to sell real estate must contain a sufficient legal description and price. If the e-mail exchange does not include price,
then the contract fails under substantive law, despite the ETA’s establishment of a “paper/signed” contract. Also, the ETA does not over-ride the requirements of proper authority to execute a contract. If a junior employee of a real estate company accidentally exchanges e-mails that give rise to a contract but he is not an authorized signatory, and the seller, a limited partnership, has not taken the necessary vote to approve the sale, then the contract will fail. While certainly not the best practice, the ETA authorizes an electronic signature to be notarized with an electronic notary signature that is attached to or associated with the record (§ 322.011). The ETA expressly provides that an electronic record or electronic signature may not be excluded from evidence in a trial merely because it is electronic (§ 322.013). The court may exclude the electronic record on other procedural or evidentiary rules. The following footer may be helpful: “This communication does not constitute an intention by the sender to conduct a transaction or make any agreement or contract by electronic means.” But, given the broad purpose of
the ETA, if the body of the e-mail contains the necessary elements of a contract and expressed the required intent, the footer might be disregarded Another concern is that that transmitting a document could be construed as signing a final contract, even though the unexpressed intent was that it was merely a draft. Suggestions for preventing an unintended contract included adding “draft” as an electronic watermark across the pages and clearly stating the document is a draft or subject to final approval. The only relevant Texas case on the ETA is Brooks v. Metiscan Technologies, Inc., 2009 WL 3087258 (Tex. App.Dallas, 2009), an employment case where parties disputed whether there was a binding settlement. The Court concluded that the e-mail exchange did not contain all of the essential terms and, therefore, was not a contract. However, it serves as a warning that any e-mail exchange can, under the right circumstances, become an unintended HN contract. Kevin Kerr is a former chair of the State Bar Real Estate Forms Committee and Past President of the DBA Real Property Section. He can be reached at kevin@kkerrlaw.com.
DBA Annual Senior Lawyers Appreciation Dinner Keynote Speaker: Mayor Tom Leppert
Fiduciary Risk Management for Alternative Investments (MCLE 1.00)
Speakers: Adam Taback, Steve Orr Thursday, May 6, Noon Communities Foundation of Texas 5500 Caruth Haven Lane For more information, Greg Sampson at sampsong@passmanjones.com. Sponsored by the Probate, Trusts, & Estates Section
Tuesday, May 11 ~ The Belo Mansion Cocktails at 5:30 p.m. ~ Dinner at 6:30 p.m. Tickets $40, Tables available $400, Gold Sponsorships $100. 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.
8 H e a d n o t e s l D a l l a s B a r A s sociation
May 2010
Alice in BarNoneLand: Martha Hardwick Hofmeister and Rhonda Hunter are “Silver Survivors.” They are the only two members of the original cast and crew of Bar None I, staged in 1986, to have continued to be active in the show, now about to celebrate its “silver anniversary” with the June production of “Alice In BarNoneLand: 25 Years Through the Looking Glass.” Headnotes caught up with Martha and Rhonda recently to ask them about their combined 50 years of directing and choreographing lawyers. HN: How did you come to be involved with Bar None? Rhonda: I was transported to a meeting where frustrated thespians turned lawyers hatched a plan to live as divas for eight weeks. The people seemed kind of strange, but I had done college theatre and taught dance since high school, so I was used to weird. And, they said we would raise money for a good cause. Martha: I was first licensed in November of 1984 and signed up to become a member of the Dallas Bar Association starting that next January. I also volunteered for the Entertainment Committee, as I thought that sounded relatively non-taxing. The Entertainment Committee was asked that year to produce, for the first time, a variety show as a fundraiser for the Dallas Bar Foundation’s support of the Sarah T. Hughes scholarships at SMU. I signed up for that subcommittee and missed the first meeting of same. At that meeting, someone reported to the group that I had directed Assault and Flattery at UT Law the spring of 1984, and I was drafted to direct the show that would become known as Bar None. It was several days before I received the letter (remember, it was the Dark Ages) advising me of the production team’s members and, specifically, of my assignment. HN: Why do you continue to direct/ choreograph after all these years? Rhonda: They know where I live. Martha: Four reasons: it’s the way I feed my “theatre Jones;” it provides a really significant service to our community (over $1.2 million dollars for the scholarship over the last 24 years); I have
Never again.) Our writing “staff” has lots of diversity (we are no longer required to steal things from Assault & Flattery or the Pulaski County Bar Show). The venue at Greer Garson, while not ideal, is vastly superior to the SMU Student Center, the Bob Hope Auditorium or Union Station. The individual headset microphones actually allow the audience to hear–and understand–the words to the songs and skits.
met a number of my closest friends via Bar None and don’t think I would see nearly so much of them without it; and (recognizing that this sounds immodest) I think that I have a gift for pulling these people together to do this thing in a short period of time. HN: What are some of your favorite on-stage memories? Rhonda: My favorite day is the Saturday we go into the theatre. That’s when you know it’s do or die. I remember the impossible numbers like “Done” (Chorus Line) and Oh! Go Home Now (Oklahoma) and “You Can’t Stop BarNone” (Hairspray). I enjoyed the year we got an infusion of eight new young lawyers who set the stage on fire with their talent. Most of them became writers for the show. Watching the ad libs take a skit to a new level from “Antiques Road Show” to “BarNonlet” is fun. I especially enjoyed seeing guest choreographers challenge my dancers in “Devil Went Down to Dallas” and “Thriller.” But I also still laugh at the good old days of “Eyewitness News” and “the Lounge Lizard.” Watching Martha turn printed words to live theatre is like seeing magic. It’s great fun. Martha: Justice Henry Politz’ guest appearance years ago: he told several Boudreaux jokes and had a great time. The sight of all those male cast members in frumpy dresses, wigs, and heels in the opening number of Bar None IX: “Everyone’s Gonna Wear Dresses (for Sarah T. Hughes).” ME (Norwood) Anderson as Johnnie; her facial expressions were always priceless. Watching the audience watch Tom Alleman as Moe. Kent Hofmeister’s “long guitar songs.” The Bar
HN: If you could change one thing about Bar None, what would that be? Rhonda: I would find a way for the employers, the bosses, the judges and the loved ones to give a break to the people who give six weeks (the cast) or three months (the writers and directors) and add doing this show to already impossible schedules. If you’ve ever been in the show you understand when they say, ‘I have to go. I am doing ‘Bar None.’ ’ Same goes to the producers who find a way to raise the money to finance this show as quality theatre, while getting these scholarships funded. It’s a labor of love that requires lots of labor and invokes lots of love. Martha: That’s easy: I would increase the size of our audiences and the number of our sponsors. We have a quality product and, with more audience members and sponsors, we could raise more money for the scholarships.
None Boys trying to do cool dance steps in unison. HN: What are some of your favorite off-stage memories? Rhonda: I refuse to answer on the grounds it may tend to incriminate me. Lets just say there was a lady standing on a table, a pink skirt, a hot tub, four weddings, a low speed chase, a hockey game, show tunes and shrimp involved. Martha: Justice Henry Politz partying with the cast at some bar on McKinney, drinking out of a “fishbowl” cocktail with many others, and leading the conga line. Tasking Matt Anderson with taking care of ME Norwood one night at Club Dada, post-show. Attending Matt’s and ME’s wedding several years later! Some of the cast going with me on my first trip to Las Vegas on the occasion of my 40th birthday. The rest should stay shrouded in mystery.
HN: What is it like to “manage” 40 or 50 lawyers for six weeks per year? Rhonda: It’s like giving birth. Look at all the children I’ve had in 25 years. Martha: It’s like herding cats who can talk back.
HN: What are some of the changes/ improvements you’ve made to the show over time? Rhonda: The first year we were at Union Station on 10 risers, with no backstage and hand built sets that the cast had to take apart when the show finished. Then we moved to the student center where the cast had to go out the back door, rain or shine, to get to the stage. We had more elaborate hand made sets that we still had to dismantle when the show finished. Now we are in Greer Garson with follow spots, sound, a stage and professional dressing rooms suitable for my divas. Martha: I have an abundance of assistant directors (Year One I directed everything by myself, from start to finish.
HN: What are your hopes for Bar None’s future? Rhonda: Fresh blood, hair dye, a new venue, lighting and lots and lots of Sarah T. Hughes Scholars. Martha: I hope for bigger audiences, more sponsors, greater visibility to the Dallas community and a place where old Bar Noners can retire together and watch videos of their glory days. Both: Thanks to all of our casts, crews, and audiences these 25 fabulous years!
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Dal l as Bar A ssoci ati on l Headnotes 9
25 Years Through the Looking Glass
Alice In BarNoneLand: 25 Years Through the Looking Glass Greer Garson Theatre on SMU Campus June 16 and 17 at 7:30 p.m. June 18 and 19 at 8 p.m. www.BarNoneShow.com
10 H e a d n o t e s l D a l l a s B a r A ss ociation
May 2010
Column The Business of Law
Social Media Networking and Lawyers: The Good, the Bad and the Ugly by Mary Louise C. Hopson
Part 2 of a 2-part series
A Casual Form of Communication One important aspect of networks is their casual nature, which can lure lawyers to use social media in ways that might run afoul of guidelines, according to DBA member John Browning. For example, lawyers must take care not to inadvertently communicate any information that is confidential to a client through casual posts, such as those on Twitter, Facebook or blogs. “Just because it’s easy and casual, it doesn’t mean that lawyers are not bound by ethics when communicating in these ways,” Mr. Browning said. “Don’t discuss defense strategy, client communications or other information that can be used to ascertain information about your client.” Anti-solicitation rules also must be observed. “Rule 7.03 says that we cannot solicit business via communications by regulated telephone or other electronic content,” he added, “which could cover chat rooms, Facebook, Twitter, etc.” There are a number of reasons why attorneys use social media. For instance, in-house counsel use social media to keep legal costs down, often accessing networks of other in-house attorneys to communicate about best practices, forms and other tips. It’s a mutually cooperative system, and a good way to exchange information.
Social Media and Relationships Ashley Forbes Kellogg is a business development expert who helps professionals grow their business through stronger relationships and networking contacts “Every site offers something almost irresistible to most humans: The opportunity to be known by a wider audience,” Ms. Kellogg said. “To make social media work for you requires you to think, ‘How do you want to be known?’ Once you have given some thought to that, you can figure out the behaviors that translate.” Social media, moreover, is much like the apple that hung from the tree in the Garden of Eden. People tend to believe information when it is delivered by a person they know,” Ms. Kellog added. “Both accurate and inaccurate information can easily take root. Social media has provided us with the ultimate third party, one that moves at lightning speed. A casual comment can be overheard and scattered to the winds, taking root where you would least expect it to grow. Think before you Tweet. Do you want your behavior, choices or opinions to be communicated that widely? What are the professional consequences?”
One Lawyer’s Approach to Social Media Notwithstanding these concerns about social media, it remains a useful tool for many lawyers to stay in touch
with clients. Longtime DBA member and business lawyer Grant Seabolt had a long to-do list when he started his new post in January as Senior Counsel at Underwood, Perkins, and Ralston, P.C. But one of his first priorities was to connect with his social networking community, to tell them about his new firm. “It was important for me to use networking sites to inform clients and contacts of my new position, location and contact information,” he said. He has a personal Web site and provided information for his new firm’s Web site. He recently joined Facebook, which affords another method of communication, and has a presence on LinkedIn. “It’s important to take charge of your situation,” Mr. Seabolt said. “You need to think about what your natural markets are. For me, as a former Marine judge advocate, one of my markets is former military and patriots.” Mr. Seabolt started up a group named Dallas Veterans Business “Morning Formation” on www.meetup.com, a networking site where people interested in a common topic can schedule meetings to get to know like-minded individuals. “People can generally only remember the lawyer they heard of in the last 30 days,” he added. “My strategy is to get on their radar once every 30 days. It’s important to offer something legitimate that is
useful and relevant to what they do. But, besides content, they will see my name. It’s a way to continually refresh their recollection of my availability as a lawyer, a reminder in case they need a lawyer or have an opportunity to recommend one. Keeping one’s name at the top of their recollection and creating a current awareness are the goals.”
The Value of Social Media
Social media networks are valuable in many ways beyond client development. “Getting clients from social media is a happy by-product,” said Mr. Browning. “It’s great if it happens, but there are other things to learn from social media: Effective communication, sharing of ideas, being a good ambassador for the profession. Lawyers who obsess with the number of their Facebook friends or Twitter followers may be missing the point.” The Internet and social media networking are not going to go away. Lawyers need to stay abreast of rapidly changing developments in the online world, and the relevant rules of professional responsibility, to enhance their contact with clients and to benefit their HN practices.
Veteran marketing consultant Mary Louise Hopson is a past Co-Chair of the Publications Committee. She can be reached at mlhops@sbcglobal.net.
Play Golf May 6 Register for the 18th Annual Pro Bono Golf Classic, benefitting the Dallas Volunteer Attorney Program. Registration fee of $255 includes lunch, dinner and refreshments. 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.
U.S. Magistrate Judge Sanderson Retires
The Hon. William F. Sanderson, (center), United States Magistrate Judge, was honored at a ceremony March 26 at The Belo recognizing his recent retirement. He is shown here with (clockwise) Brad Weber; DBA President Ike Vanden Eykel and Hon. Paul D. Stickney; and Hon. Jane Boyle and Hon. Sidney A. Fitzwater.
May 2010
Focus
Dal l as Bar A ssoci ati on l Headnotes 11
Criminal Law
Preparing for Punishment CONTINUED FROM PAGE 1
of counsel claim. Even without a pretrial objection to the indictment, on a plea of not true, a defendant can argue for the first time on appeal that the evidence is insufficient to support the enhancement of his punishment. Jordan v. State, 256 SW3d 286, 292 (Tex. Crim. App. 2008). And the State’s failure to meet its burden of proof is never harmless. While a juvenile felony adjudication for conduct occurring after January 1, 1996, is not a bar to eligibility for probation, it can be used to enhance punishment. Thompson v. State, 267 SW3d 514 (Tex.App.– Austin 2008, pet. ref’d).
Remember: Things Could Actually Get Worse if You Win on Appeal. After a defendant was convicted of state jail evading arrest in a motor vehicle, with no deadly weapon allegation in the indictment, the jury found two enhancement paragraphs true and sen-
tenced him to an unaggravated 15 years in prison for this now second-degree felony. On appeal, one of the prior convictions used to enhance punishment was determined to have not been final at the time of the commission of the new offense. On remand for punishment only, the State enhanced the state jail evading arrest charge to a thirddegree felony with a deadly weapon finding based on the motor vehicle. The State then further enhanced punishment with proof of one prior conviction. The defendant now found himself in the same second-degree felony position he faced pre-reversal, except now he had the added bonus of a deadly weapon finding giving him aggravated time. And the jury again sentenced him to 15 years in prison. While it’s difficult, if not impossible, to anticipate what could happen in the event of a successful appeal, take care to admonish your client of the poten HN tial risk. Hon. Molly Francis serves as a justice on the Fifth Court of Appeals. She can be reached at molly.francis@tx.rr.com.
2010 DAABA Dragon Boat, Kite and Lantern Festival May 16 at Lake Carolyn in Irving This outdoor festival will feature a variety of food from all over Asia, remarks by North Texas mayors, cultural dance performances and several demonstrations and classes, all in celebration of Asian Heritage Month. For more information, contact Bill Richmond at bill.richmond@sdma.com or Monika Sanford at monika.sanford@haynesboone.com.
Team DBA MVPs: 15 Year SLIP Supporters Shine by Jessica D. Smith
T
hroughout the Dallas Bar Association you will find numerous committees, sections and volunteers. Each member of the DBA helps to promote the association’s mission and vision, and together, our members form Team DBA— the 2010 theme of DBA President Ike Vanden Eykel. Oftentimes, members work tirelessly behind the scenes, year after year, supporting a cause or committee. The DBA would like to recognize the firms of Baker Botts L.L.P., Locke Lord Bissell & Liddell LLP and Strasburger & Price LLP, and the Morgan Management Corporation. Each of these four companies have supported, and actively participated in, the DBA’s Summer Law Intern Program (SLIP) for the past 15 years. Though the SLIP program has more than 100 participating firms and corporations, these four firms have employed a DISD high school student each summer—since the program’s inception. “Frank Stevenson, a partner at Locke Lord and a past DBA president, is one of the people who was instrumental in starting the program in 1994,” said Bradley Weber, DBA Board of Directors ViceChair and partner at Locke Lord Bissell & Liddell. “Since then, our firm has continued to participate in the SLIP program and we’ve had really good luck with the interns assigned to our firm. The ones I’ve known personally have gone on to college and been very successful. The quality of their work has been excellent. Overall, it’s been a good experience for our firm.” The Dallas Bar Association, in partnership with the DISD, launched this project during the summer of 1994. Now, each summer for either four or eight weeks
during the months of June and July, high school juniors work in law firms and corporate legal departments throughout the Dallas area. The SLIP program helps expose these students to many experiences, such as trips to the courtroom or boardroom or other venues where they learn about real world interaction between attorneys and the community. “This is one of the most outstanding programs that the Dallas Bar sponsors each year,” said Mr. Vanden Eykel. “I am proud to have my firm participating this year. We have the opportunity to make a major impact on a student’s education, and in return, we get hard work from a quality young person. All the players win in this situation.” By participating in the program, the students gain self-esteem, self-confidence and a sense of pride and professionalism. The interns are also introduced to the professional opportunities available to them if they continue to apply themselves in their school and other activities. “The program teaches students responsibility and shows them what it’s like to be a professional,” said Mr. Weber. “I think it’s been an incentive for these students to go on to college and become lawyers or other professionals.” The program runs from June 14 to August 6. For more information, contact Amy Smith at (214) 220-7484 or ASmith@dallasbar.org, or visit www.dallasbar.org/summerlawinternprogram. Thank you Baker Botts L.L.P.; Locke Lord Bissell & Liddell LLP; Morgan Management Corporation; and Strasburger & Price LLP. We appreciate your continued HN support! Jessica D. Smith is the DBA’s Communications/Media Director. She can be reached at jsmith@dallasbar.org.
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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
May 2010
LAW DAY 2010
Law in the 21st Century: Emerging Challenges and Enduring Traditions The American Bar Association sponsors Law Day each year, and regional bar associations — including the Dallas Bar Association — host various events and programs to commemorate the chosen theme. Law Day educates students and citizens about our government and legal system by focusing their attention on important constitutional principles. As part of Law Day activities, Dallas ISD schoolchildren participate in essay, art and photography competitions. In these categories, students in grades K-12 have the opportunity to create works depicting the Law Day theme. This year’s winners have shared their perspectives on the theme of Law in the 21st Century: Emerging Challenges and Enduring Traditions. We hope you enjoy reviewing one of this year’s winning essays and illustrations to view the idea of law from a youngster’s perspective. Children who won the various contests will be honored at the Annual Law Day Luncheon on Friday, May 7, at the Belo Mansion. Additionally, at least 100 DBA members will become “school teachers” for a day as they meet with middle school social studies classes in May to discuss the legal and constitutional issues through the annual DBA Lawyers in the Classroom project. Thousands of students in the Dallas ISD will be impacted as these attorneys share real-life experiences and insights about the American legal system. The Dallas Bar Association is proud to continue its partnership with the Dallas ISD through this program. Kirby Drake and James Holmes Co-Chairs, DBA Law Day Committee
T
he three branches of the Federal Government can affect social challenges in many ways by proposing laws, passing laws and enforcing the laws. The Executive Branch can come up with ideas and give leadership to the social challenges facing this nation by providing direction and getting input from the various (both the economic and racial) parties concerning social issues. The President can use the power
of the office to help persuade people in the way they vote in Congress. He can also talk with the leaders of other countries to get agreements made to help those countries and also ours. The global warming issue could be an example of this. The legislative branch, consisting of both houses of Congress, can come up with a bill that can be voted on and then be turned into law. Members of Congress can get ideas from the vot-
ers in their districts. These thoughts can be brought before Congress and used in the making of new laws that can benefit the United States. These beliefs should include people from every race in this country and all economic groups. Health care improvement is one of the big issues facing all of us. If a bill can be written so that both parties in Congress can agree, the President would sign it and then the bill would become a law. This can
Cathy Rosas, age 10
Gabriel Bosen, age 7
First-Place Winner (3rd to 5th Grade)
First-Place Winner (K to 2nd Grade)
Harry Stone Elementary School
Seagoville Elementary School
only happen if the people would negotiate and come up with some ideas on how to make health care better for all people. The judicial branch can help social change in this country by the enforcement of the laws passed by the Congress and the President. The courts can help in making sure that staying very active in the cases involving social changes in this country. All three branches of the Federal Government are very important in all of the challenges that face the United States. If people do not talk and exchange ideas, the country will not move forward. It takes leadership and the ability of people to make decisions that will help all economic and ethnic groups. Rebekkah Dowd, 7th grade First-Place Winner T.C. Marsh Middle School
May 2010
Dal l as Bar A ssoci ati on l Headnotes 13
Texas Supreme Court Restricts Access to Computer Hard Drives by Chip Brooker
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he rising volume of electronic communications and electronic data storage has changed the game in complex commercial litigation. Today, the party that knows the electronic data the best generally wins. It is no longer enough to simply know how to review documents on your computer rather than in a warehouse. Instead, parties must go the extra step and maximize the evidence found through computer forensics, leaving no electronic rock unturned. Computer forensics can lead to the discovery of relevant and admissible evidence that your opponent attempted to delete or that would have remained hidden in your opponent’s metadata, free space, or fragments. However, the biggest hurdle to successfully using computer forensics is forcing the production of your opponent’s electronic data. In In re Weekley Homes, L.P., No. 08-0836, 2009 WL 2666774, at *1 (Tex. Aug. 28, 2009), the Texas Supreme Court recently raised the bar on that hurdle. The question in Weekley Homes was whether the trial court abused its discretion by compelling the production of the defendant’s employees’ computer hard drives to forensic experts to image and copy the hard drives and to search for deleted e-mails. Reversing the trial and appellate courts, the Texas
Supreme Court held that the trial court did abuse its discretion. It then established the proper procedure for seeking electronic discovery under Texas Rule of Civil Procedure 196.4. HFG Enclave Land Interests, Ltd. (HFG) sued Weekley Homes, L.P. under several theories for its involvement in a residential real estate development. HFG requested that Weekley Homes produce e-mails by and among four relevant employees regarding a third-party engineering report. That engineering report suggested that Weekley Homes knew—before contractually representing to HFG otherwise—that certain lots were unsafe and needed remedial measures. Weekley Homes claimed that it had only one responsive e-mail between those employees concerning the report. Unconvinced, HFG moved the trial court for limited access to Weekley Homes’ computers. HFG asked that computer forensic experts be allowed to image the computer hard drives at issue and search them for emails using search terms. Then, the responsive emails would be produced initially to Weekley Homes for a privilege and responsiveness review. Finally, Weekley Homes would produce the responsive, non-privileged emails to HFG. The trial court compelled Weekley Homes to produce its computer hard
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 and recognition at our Annual Meeting in November. This is the perfect time to encourage your newly hired attorneys to join the DBA and take advantage of our many member benefits—such as 400 FREE CLE programs 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 May 31, your firm will be included in the July and August DBA 100 Club listing in Headnotes. Send in your list TODAY!
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drives under this protocol. And, in a brief memorandum opinion, the appellate court denied Weekley Homes’ mandamus petition. The Court held that Rule 196.4 applied to HFG’s request for deleted emails. The Court also clarified that, to ensure compliance with Rule 196.4 and to avoid confusion, parties should expressly request the production of deleted e-mails. The Court then analyzed relevant federal precedent and distinguished the leading Texas case to-date, In re Honza, 242 S.W.3d 578 (Tex.App.—Waco 2008, pet. denied), on its facts. Ultimately, the Court announced procedures for requesting and compelling electronic information under Rule 196.4: 1. The party seeking to discover electronic information must make a specific request for that information and specify the form of production. 2. The responding party must then produce any electronic information that is “responsive to the request and … reasonably available to the responding party in its ordinary course of business.” 3. If “the responding party cannot— through reasonable efforts— retrieve the data or information requested or produce it in the form requested,” the responding party must object on those grounds. 4. The parties should make reasonable efforts to resolve the dispute without court intervention. 5. If the parties are unable to resolve the dispute, either party may request a hearing on the objection, at which the responding party must demonstrate that the requested information is not reasonably available because of undue burden or costs. 6. If the trial court determines the requested information is not reasonably available, the court may nevertheless order production upon a showing by the requesting party that the benefits of production outweigh the burdens imposed, subject to Rule
192.4’s discovery limitations. 7. If the benefits outweigh the burdens of production and the trial court orders production of information that is not reasonably available, sensitive information should be protected and the least intrusive means should be employed. The requesting party must also pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information. 8. Finally, when determining the means by which the sources should be searched and information produced, direct access to another party’s electronic storage devices is discouraged, and courts should be extremely cautious to guard against undue intrusion. It remains to be seen how Texas courts will apply the procedures outlined by In re Weekley Homes, but diligent trial lawyers may test this standard by seeking to overturn every electronic rock during HN the course of discovery. Chip Brooker is a business trial lawyer with Haynes and Boone, LLP. He can be reached at Chip.Brooker@ haynesboone.com.
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Cowles & Thompson Gardere Wynne Sewell LLP Jones Day Kelly Hart & Hallman Locke Lord Bissell & Liddell McKool Smith Munsch Hardt Kopf & Harr, P.C. Reyes Bartolomei Browne Rose Walker, LLP SoftLayer Technologies, Inc. Storm LLP Bronze Sponsors: Chief Justice Carolyn Wright Adorno Yoss White & Wiggins Alston & Bird LLP Architel Holdings LLC Bell Nunnally & Martin LLP DFW Asian American Citizens Council Diamond McCarthy Dykema Gossett Fish & Richardson P.C. Gibson, Dunn & Crutcher LLP Greenberg Traurig, LLP Jackson Walker Jones Carr McGoldrick, LLP K&L Gates LLP Loren Hsiao-Texas Financial Group Overseas Chinese Americans-DFW Chapter Sonnenschein Nath & Rosenthal LLP Vincent Lopez Serafino & Jenevein, PC Vinson & Elkins Complete list at www.daaba.org.
DAABA Officers: Hope Shimabuku, President Eunice Kim Nakamura, President-Elect Patsy Yung Micale, Immediate Past President Rosa A. Shirley, Treasurer Jennifer C. Wang, Secretary Board of Directors: Victor Corpuz Sean Hamada Sean Liu David Owens Albert C. Tan
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
May 2010
May
FROM THE DAIS
Marcos G. Ronquillo, with Godwin Ronquillo PC, spoke on the continued importance of diversity during the economic downturn during the ABA’s National Conference on Equal Employment Opportunity Law in San Antonio. He also served as Honorary Chair of the 6th Annual Texas Diversity & Leadership Conference. David E. Colmenero, with Cousins of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke at the University of Texas 2010 Texas Margin Tax Conference in Austin, Houston and Dallas on “How to Survive an Audit.” William R. (Trey) Cousins, of the firm, spoke for the Dallas Estate Planning Council on “IRS Attacks on Estate Planning Techniques.” Joel N. Crouch, with the firm, spoke on “Tax Disputes Before the IRS: Audit, Appeal & Tax Litigation” at a National Constitution Center Audio Conference. Alan K. Davis, with the firm, spoke to the Filipino American Chamber of Commerce on “Estate Taxes.” Josh O. Ungerman spoke on “The IRS Wealth Squad– Holistic Taxpayer Analysis” at the ABA 2010 Midyear Meeting in San Antonio. Ungerman also spoke to the Central Estate Planning Council in Austin, TX on “Preparing for and Defending the Examination of Estate and Gift Tax Returns.” Sarah Q. Wirskye was a panelist at the ABA White Collar Crime Conference in Miami, FL, on “Criminal Procedure in White Collar Crime Cases.” Judge Jeanine Howard, with the Dallas Criminal District Court No. 6, spoke for the American Airlines “Women in Aviation Conference,” on “Bright Horizons: Investing in Yourself.”
KUDOS
Mark A. Shank, of Gruber Hurst Johansen Hail, LLP, has been selected by the Texas Board of Legal Specialization to a three-year term with the Civil Trial Law Exam Commission. Michael P. Haggerty, of Jackson Walker L.L.P., has been elected as Board Chair for the YMCA of Metropolitan Dallas. Jeffrey Hamilton, of the firm, has been elected Board President of Heart House Dallas. Lee White, also with the firm, was appointed to the board of directors for Downtown Dallas Inc. Drew N. Bagot, of Cowles & Thompson, P.C., has been elected to the Fellows of the Texas Bar Foundation Frank L. Branson, III, of The Law Offices of Frank Branson, has been named as a recipient of the 2010 SMU Dedman School of Law Distinguished Alumni Award for Private Practice. Allen Dickey, Nolan C. Knight, Amy L. Rickers and David J. Mizgala, with Munsch Hardt Kopf & Harr, P.C., have been named new Shareholders. Michael Ma, with Burford & Ryburn, L.L.P., and his team of SMU Dedman School of Law students placed as finalists in the second annual Moot Court National Championship competition. Jenifer Balch Grace and Jason M. Ross, with Curran Tomko Tarski LLP, have been promoted to Partner. K. Brock Bailey, of Bracewell & Giuliani LLP, has been named managing partner of the Dallas office.
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Steven Lockhart, Peter Loh and Jeremy Williams, with Gardere Wynne Sewell LLP, have been elected as partners.
Jim F. Chester, James E. Davis and Casey L. Griffith have joined Klemchuk Kubasta LLP as equity partner, of counsel and partner, respectively.
Joel N. Crouch, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., has been elected the Fellows of the Dallas Bar Foundation.
George T. Lee, III and Evan D. Stone have formed the law firm of Lee & Stone LLP at 2626 Cole Avenue, Ste. 400, Dallas, TX 75204, (214) 3774850
Eric L. Johnson, with Helms, Johnson & Diaz LLP, was elected as State Representative in House District 100. With no general election opponent, State Representative-elect Johnson will be representing House District 100.
ON THE MOVE
Soren Lindstrom has joined K&L Gates LLP as partner. Gage A. Waggoner and Joseph D. Zopolsky have joined Glast, Phillips & Murray, P.C.
William P. Davis and Christopher Kyle W. Johnson started a solo-pracC. Haltom have joined Kroney Morse tice at 8004 Brentwick Circle, Plano, Lan PC as a Shareholder and Associ- TX 75024. (469) 277-1939. ate, respectively. J. Ellen Bennett and Barkley T. Miller Kevin Afghani has moved his prac- have formed Miller and Bennett, Attortice to The Greystone Building, 4115 neys and Counselors, North Dallas Bank Tower, 12900 Preston Road, Suite 325, Rawlins Street, Dallas, TX 75219 Dallas, TX 75230-1364. Phone: (972) B.J. Thompson has joined Jenkins | 934-0178. Babb, LLP as Of Counsel. Georganna L. Simpson and Jeremy C. William (Bill) Stark and Steven Martin have formed the partnership of Walkowiak have joined Greenberg Simpson Martin, LLP at 1349 Empire Central Drive, Woodview Tower, Ste. Traurig, LLP as associates. 600, Dallas, TX 75247-4042. (214) 905Lindsey L. Reinhardt has joined 3739. Goins, Underkofler, Crawford & Langdon, LLP as an associate. Henry S. Wehrmann has joined the firm as of counsel. Karen Richman has joined the firm of Dykema Gossett PLLC as an associate. John Dugdale and Dudley G. Jordan have joined Gordon & Rees, LLP as Partner and Senior Counsel respectively. Brandon Lee Starling has joined Shackelford, Melton & McKinley, LLP as a construction litigation associate. Brent R. Walker has joined the Aldous Law Firm. Kara Altenbaumer-Price has joined USI Southwest in Dallas as Director of Complex Claims and Consulting.
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Irv Queal is a sole practitioner who has worked with DVAP for years representing clients in adoption and divorce proceedings. As part of his representation of divorce clients, Irv assists with DVAP’s divorce prove-ups on the second Tuesday of each month. Additionally, Irv has contributed to DVAP’s attorney training program by speaking at the DVAP family law training session. Irv counts it a privilege to work with the DVAP staff to assist the many people who seek help through DVAP. Thank you, Irv!
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May 2010
Dal l as Bar A ssoci ati on l Headnotes 15
Classifieds
May
OFFICE SPACE
692-8800 or craig@mileybrown.com.
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) 3632095 or johnjr@witherslaw.com. 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 highspeed Internet. Call: Lydia @ (972) 4585350 or e-mail: law@strombergstock.com 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)210-5940, ext. 105 for information. 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. 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)
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 Two offices and a secretarial bay in nicely appointed office suite within a two minute walk of the Plano Federal Courthouse for rent. Send resume to: Dallas Bar Association, Box 05-10A, 2101 Ross Ave., Dallas, TX 75201. Furnished Office Space: Central and Walnut Hill, beautiful views of downtown. Up to three window offices and secretarial space available. Space includes access to two conference rooms, kitchen, copier, internet and phones. Free parking. Contact Cassie Thames (214)369-0361 or cthames@jhflegal.com. Plano Law Office is looking for other professionals to sublease a portion of our beautiful space located at Spring Creek Parkway, west of Custer. We have two window offices and an interior office available. Space includes access to conference rooms, library, kitchen, Internet, phone system, and copier. Plenty of parking for tenants and visitors. E-mail amicklaw@ yahoo.com or call (214) 473-8383. North Dallas Tollway (Galleria area) office space. Hardwood floors and ornate mahogany paneled walls in common areas. Two available: one approx. 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. Sublease opportunity in Richardson. Three window offices, one interior office and one legal assistant area available. Receptionist, telephone system linked with your desktop, internet, three conference rooms, two kitchens & free parking with 24 hour access to building. Office environment is friendly and quiet and has updated furnishings and technology. Contact Jennifer Som at Jennifer@baalegal.com or at (214) 570-0700 for more information.
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It Just Did! 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”
advising and counseling this fast growing telecommunications carrier on a variety of transactional matters, including wireless data services, consulting agreements, logistics contracts, compliance and general technology work. Must be licensed in the State of Texas with eight to 10 years of relevant law firm or in-house transactional experience. MetroPCS is a provider of unlimited wireless communications service for a flat-rate with no signed contract. Visit us at www.metropcs.com to learn more about our company and www.metropcs.com/careers to view the job description and to apply. Partner-Level: Patent law boutique, consisting of prep/pros lawyers with largelaw firm experience, working in an “eat what you kill environment”, is seeking partner-level patent attorney with prosecution experience. A self-supporting book of portable business is a positive, but not imperative. Please e-mail your resume
North Dallas (Galleria Area) growing law firm has 2 partner and 2 associate size office and cubicles for sublease. Free parking; easy access; conference rooms; break room/kitchen; phone; copier; postage; fax. E-mail dallasipfirm@gmail.com 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. Richardson-based MetroPCS Communications, Inc. (NYSE: PCS) seeks an inhouse transactional counsel to add to its six person attorney staff. Position involves
to bcollette@dalpat.com.
SERVICES
Mexican Law Expert—Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issuesforum 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 PLACE YOUR AD HERE! For affordable classified advertising rates call Judi Smalling at: (214) 220-7452.
NEW! Summer Interns for Hire 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.
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. Onsite gym and restaurants. E-mail bcollette@dalpat.com for details.
POSITION AVAILABLE 800.460.7248 www.sbotit.com
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Mother’s Day Brunch At the Pavilion at the Belo Mansion
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Sunday, May 9, 2010
oin us for a culinary tour at the beautiful Pavilion at the Belo Mansion as you celebrate Mother ’ s Day. Dine in the ballroom or on the exquisite terrace overlooking the Arts District and enjoy complimentary champagne and mimosas. A bountiful selection of fresh fruit, breakfast breads, chilled seafood station, carved prime rib, omelets and eggs cooked to order, a variety of pies, bread pudding and the ever-popular children ’ s buffet. Serving hours from 10:30 a.m. to 2:30 p.m. Adults: $38.00; Children 6-12: $13.00 Garage parking available ( from Olive Street ) Taxes, gratuities and parking not included Reservations Required by May 7. Call: ( 214 ) 220-7470 or e-mail lgist@dallasbar.org. Limited seating. Sponsored by the DBA Entertainment Committee.
16 H e a d n o t e s l D a l l a s B a r A ss ociation
May 2010
Family Law. It’s who we are. And we are much more. We are the team to call on when you need action. When you need to take a stand. Or when you just need to talk. And above all else, we work toward positive outcomes to your complicated emotional, financial and legal issues. We are
blgwlawfirm.com
Congratulations
Dallas Texas
�214� 744�4440
BLGW of Counsel Georganna L. Simpson,
who in addition to having been consistently recognized since 2003 as a "Texas Super Lawyer," has recently been recognized for 2010 as one of the "Best Lawyers in America" and as one of the "Best Women Lawyers in Dallas." She also ha s thir ty�two published appel late opinions primaril y in the area of famil y law.