December 2009 Headnotes by Jessica Smith

Dallas Bar Association

HEADNOTES

Focus Tax Law & Employee Benefits

December 2009 Volume 33 Number 12

Kim Askew Honored With MLK Award by Mike Keliher

At the DBA Annual Meeting Nov. 6, members elected Ike Vanden Eykel (seated) as the 2010 president. Other members of the executive committee include (left to right) Barry Sorrels, president-elect; Christina Melton Crain, immediate past president; Paul K. Stafford, first vice president; Sally Crawford, second vice president; and Wesley Young, secretary/treasurer. See article on page 6.

TARP Trends By Nellie Strong

he rules of executive compensation are changing. With severely contracted liquidity in the global credit markets and insolvency threats to investment banks and other institutions, the United States government passed the Emergency Economic Stabilization Act of 2008 on October 3, 2008, to strengthen the financial sector. This Act established the Troubled Asset Relief Program, allowing the Department of Treasury to purchase up to $700 billion of troubled assets from financial institutions. To participate in TARP, financial institutions had to agree to comply with strict new limits on executive compensation. During the period that a financial institution participates in TARP, the following restrictions apply: (1) The financial institution’s compensation structure must exclude any incentives for its five most highly-paid executives (referred to as the “senior executive officers”) to take unnecessary and excessive risks that threaten the value of the financial institution. In addition, the compensation structure cannot encourage manipulation of the reported earnings of the financial institution to enhance the compensation of any of its employees. To satisfy these requirements, the financial institution must establish a compensation committee that reviews and evaluates the compensation structure at least every six months. The committee must also provide a narrative description of how the financial institution is meeting these requirements in the annual

Compensation Committee Report required by securities law. (2) Any bonus, retention award or incentive compensation paid to a senior executive officer and any of the next 20 most highlycompensated employees must be subject to a provision for recovery or “clawback” by the financial institution if the award was based on statements of earnings, revenues, gains or other criteria that are later found to be materially inaccurate. (3) The financial institution may not make any golden parachute payments to a senior executive officer or any of the next five most highly-compensated employees. For purposes of the Act, a golden parachute payment includes any payment to the executive upon his termination from the financial institution for any reason, or any payment due to a change of control of the financial institution. (4) The financial institution may not pay or accrue any bonus, retention award or incentive compensation to the most highlycompensated employee (and up to the 20 next most highly-compensated employees, depending on how much assistance the financial institution received). However, long-term restricted stock that does not fully vest while the financial institution participates in TARP and is not more than a third of the total amount of the executive’s annual compensation may still be granted. (5) The financial institution must adopt an excessive or luxury expenditures policy, provide this policy to the Treasury Departcontinued on page 12

Inside 8 Changing Employment? What about your 401(k) balance? 10 Reducing the Income Tax Cost of Debt Cancellations 14 Tech Toys for Lawyers

s the nation watched last summer, Kim Askew testified at Justice Sonia Sotomayor’s confirmation hearings. Askew, the 2010 recipient of the DBA’s Martin Luther King, Jr. Justice Award, was at the hearing representing the American Bar Association in her capacity as chair of the ABA Standing Committee on the Federal Judiciary. “That moment was an embodiment of Martin Luther King’s dream,” said Ms. Askew. “Dr. King dreamed of a society in which a Black woman raised in the segregated south might be the lawyer testifying at the hearKim Askew ing of a Hispanic woman as she was confirmed to the highest court in our country.”

The DBA MLK Justice Award

Since 1993, the Dallas Bar Association has honored local heroes whose lives inspire and reflect the values of education, religion, community, and service embodied in the sermons and speeches of Dr. Martin Luther King, Jr. While born into a segregated world, Ms. Askew’s career and achievements embody the positive ideals of the society Dr. King envisioned. “Kim Askew is a truly incredible and remarkable person,” commented Ike Vanden Eykel, DBA’s 2010 president. “She has already done more in her career than most people dream of doing in a lifetime, and she is not even close to being finished. When she speaks, people listen—and do so carefully. Ms. Askew is known across our country as a leader. That she is a role model for those who come behind her goes without saying.”

Positive Influences in Formative Years

Askew, the eldest of four girls, was born in Savannah, Georgia, when “separate but equal” was still the law of the day. Her home embraced the civil rights leader’s policy of non-violent resistance to segregation. “My parents followed the work of Dr. King, knew when he was jailed, and talked about developments of the day at the dining room table. They actively participated in the civil rights struggle. They translated Dr. King’s messages of justice, equality and peace to us as children,” stated Ms. Askew. “We heard Dr. King’s words regarding ‘living together as brothers’ throughout my childhood.” Ms. Askew’s family lived at the forefront of desegregation. They were one of the first families of color to move into a formerly segregated neighborhood. In seventh grade, Ms. Askew was bused as part of a desegregation scheme. She recalls that it was the parents, not the students, who were most hostile. The children learned to get along. Throughout these tumultuous times, Ms. Askew’s parents focused her on the importance of education and the need to excel. “My mother firmly believed that education was the great equalizer.”

Becoming a Lawyer

Ms. Askew experienced in her formative years what Dr. King referred to as the “human rights revolution.” Early on she saw that lawyers had the power to shape the lives of people and their times. Lawyers were leading advocates of civil rights in the Savannah community. Ms. Askew reflects that “Dr. King often spoke of justice. I came to understand that lawyers helped to bring about justice and I started to believe that I could make a difference as a lawyer.” She attended Knoxville College, graduating summa cum laude, and went on to Georgetown Law School. Upon graduating, she moved to Dallas to clerk for the late Judge Jerry Buchmeyer. Ms. Askew began her career with Hughes & Hill, which is now part of her continued on page 9

2 H e a d n o t e s l D a l l a s B a r A s sociation

Calendar

December Events FRIDAY CLINICS

DECEMBER 4 - Belo Noon

“Attacking Stress, Depression, Alcohol or Substance Abuse Head On in the Legal Profession,” Dr. Bill Edwards, Ph.D. and Dr. Judith Hunter. (Ethics CLE 1.5 pending).

MONDAY, DECEMBER 7 – Belo

9 a.m.

Masters of Trial Seminar “Top Trial Lawyers Try A Case,” Charla Aldous, Randy Johnston, Rod Phelan, and Mark Werbner. Judge Catharina Haynes presiding. Judge Craig Smith will moderate a discussion on Jury Selection. Kacy Miller of CourtroomLogic Consulting will facilitate a post-trial discussion on trial strategies. Up to MCLE 6.00. DBA members: $20; Nonmember Fee: $50. For more information, contact ktarangioli@dallasbar.org. (MCLE 6.00)*

DECEMBER 11 – North Dallas**

Noon

“Identity Theft,” Tricia DeLeon. At Two Lincoln Centre is located at 5420 Lyndon B. Johnson Frwy., Suite 240 Dallas, Texas 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor, Griffith Nixon Davison, P.C. (MCLE 1.00)*

TUESDAY, DECEMBER 1 Noon

Corporate Counsel Section Topic Not Yet Available

Tort and Insurance Section “If You’re Going to the Courthouse, Please File This For Me: Ten Documents Which Must Be Filed in the Trial Court to Preserve Error for Appeal,” Chad Ruback. (MCLE 1.00)*

Morris Harrell Professionalism Committee DAYL Foundation Annual Luncheon

6 p.m.

DAYL Board of Directors

WEDNESDAY, DECEMBER 2 Noon

Employee Benefits/Executive Compensation Section “Qualified Plan Update/Current Developments”

Solo and Small Firm Section “Insurability of Punitive Damages,” Leane Medford. (MCLE 1.00)*

Mentoring Committee Public Forum Committee DAYL

5 p.m.

Bankruptcy & Commercial Law Section “What is on the Bankruptcy Judges’ Minds?” A Panel Discussion from Dallas, Fort Worth and Plano. (MCLE 1.00, including .5 Ethics)*

FRIDAY, DECEMBER 4

Noon

Friday Clinic – Belo “Attacking Stress, Depression, Alcohol or Substance Abuse Head On in the Legal Profession,” Dr. Bill Edwards, Ph.D. and Dr. Judith Hunter. (Ethics CLE 1.5 pending).

Intellectual Property Law Section Topic Not Yet Available

MONDAY, DECEMBER 7

Noon

Tax Section “Ethics & Liability Issues Arising from Representing Multiple Parties,” William D. Elliott and Daniel Baucum. (MCLE 1.00)*

Peer Assistance Committee

TUESDAY, DECEMBER 8

THURSDAY, DECEMBER 3

Noon

Business Litigation Section “What is New at the Supreme Court for Business Litigators?” Joe Cox and Hon. Scott Brister. (MCLE 1.00)*

5:30 p.m.

Mergers and Acquisitions Section “M & A Negotiation Trends: An Update

Noon

D ecem ber 2009

Family Law Section Board St. Thomas More Society

Collaborative Law Section Holiday Party

2010 INAUGURAL OF IKE VANDEN EYKEL

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

from the 2009 ABA Private and Public Target Deal Point Studies,” Wilson Chu, Larry Glasgow and Jim Griffin. (MCLE 1.00)*

4 p.m.

DVAP New Lawyer Luncheon DAYL Equal Access to Justice

6 p.m.

Home Project Committee

Noon

Real Property Law Section Topic Not Yet Available

Community Service Fund Board DVAP

6 p.m.

DBA Holiday Party

Senior Lawyers Committee

WEDNESDAY, DECEMBER 9 7:45 a.m.

Dallas Area Real Estate Lawyers Discussion Group

Noon

Family Law Section Topic Not Yet Available

Criminal Law Section Topic Not Yet Available

CLE Committee Dallas Hispanic Bar Association Christian Lawyers Fellowship

5:15 p.m.

LegalLine

TUESDAY, DECEMBER 15 Noon

Franchise & Distribution Law Section Topic Not Yet Available

DAYL Elder Law Committee

WEDNESDAY, DECEMBER16

THURSDAY, DECEMBER 10

Noon

Annual Clerk and Coordinator Awards Contact ktarangioli@dallasbar.org for more information.

Environmental Law Section “U.S. Greenhouse Gas Legislation,” Patrick Larkin. (MCLE 1.00)*

Admissions & Membership Committee Publications Committee Speakers Committee Dallas Asian American Bar Association DAYL Barristers for Babies

6 p.m.

J.L. Turner Legal Association

FRIDAY, DECEMBER 11

Noon

MONDAY, DECEMBER 14

Friday Clinic – North Dallas “Identity Theft,” Tricia DeLeon. At Two Lincoln Centre is located at 5420 Lyndon B. Johnson Frwy., Suite 240 Dallas, Texas 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor, Griffith Nixon Davison, P.C. (MCLE 1.00)* Trial Skills Section “Developing an Effective Trial Story,” Mark Werbner. (MCLE 1.00)*

Noon

Energy Law Section “Area of Mutual Interest Agreements,” Allen D. Cummings. (MCLE 1.00)* Library Committee Pro Bono Activities Committee Municipal Justice Bar Association Non-Profit Law Study Group

5:15 p.m.

LegalLine

THURSDAY, DECEMBER 17 Noon

Appellate Law Section Topic Not Yet Available

Minority Participation Committee Dallas Gay & Lesbian Bar Association J. Reuben Clark Society

DAYL Lunch and Learn What Every Young Lawyer Should Know About…Setting up a Law Practice

3:30 p.m.

DBA Board of Directors

TUESDAY, DECEMBER 22 Noon

American Immigration Lawyers Association DAYL Aid to the Homeless

THURSDAY, DECEMBER 24 DBA Office Closed for Christmas Eve

FRIDAY, DECEMBER 25 DBA Office Closed for Christmas

THURSDAY, DECEMBER 31

No DBA events scheduled; offices close at 1 p.m.

FRIDAY, JANUARY 1

DBA office closed for New Year’s Day

* Attention Young Lawyers! Learn From the Trial Masters * Watch These Top Trial Lawyers Try a Case with Judge Catharina Haynes as Presiding Judge

A T T HE B ELO M ANSION Charla Aldous Aldous Law Firm

Randy Johnston Johnston * Tobey, P.C.

Judge Catharina Haynes Fifth Circuit

Saturday, January 23, 2010 The Dallas Bar Association will inaugurate its 101st President, Ike Vanden Eykel, at the inaugural ball on Saturday, January 23, at our home and yours: The Belo Mansion. The ball will include dinner, dancing and entertainment. Seating is limited | Tickets $140; Tables $1,400 | Judiciary $100 To reserve your ticket, contact Shawna Bush at (214) 220-7453 or sbush@dallasbar.org .

Rod Phelan Baker Botts L.L.P.

Judge Craig Smith 192nd District Court

Mark Werbner Sayles Werbner P.C.

Kacy Miller, CourtroomLogic Consulting

* Judge Craig Smith Moderator of Jury Selection Panel * Monday, December 7; 9 a.m. at The Belo Mansion Up to 6 hours CLE pending

$20 DBA Members; $50 Non-Members; $25 Members On-Site Registration; $55 Non-Members On-Site Registration Jury consulting services provided by CourtroomLogic Consulting. Technology provided by Beal Research and Digital Verdict, Inc.

RSVP by Dec. 1, 2009 to Kathryn Tarangioli at KTarangioli@dallasbar.org to receive your materials by mail.

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.

De c e mb e r 2 00 9

Dal l as Bar A ssoci ati on l Headnotes 3

Special Mentoring Highlight

It Takes a Village To Raise a Child by Jessica D. Smith

nder the leadership of Christina Melton Crain, the newly created DBA Mentoring Committee led by Mary Goodrich Nix and Paul K. Stafford, oversaw and coordinated mentoring activities this year. DBA member volunteers readily donated their time, money and skills to make a positive affect on the lives of young students. Four key programs this year gathered enormous support from the membership and community.

Amachi Texas

Amachi Texas is a mentoring program which uses faith-based and secular partners to match children of offenders with adult role models to break the intergenerational cycle of incarceration. Amachi Texas became the first of its kind to go statewide and it was named the Best Pro Bono Project for 2009 by the Dallas Observer. By forming a partnership with Big Brothers Big Sisters of North Texas, the response for volunteers has been overwhelming. The DBA currently has 70 mentors matched with children. “When you explain to people that a child with one or both parents in prison has a 70 percent probability of going to prison themselves they are shocked and appalled, yet intrigued by the fact that simply placing a positive role model in these young lives can break that cycle,” said Amachi Texas Co-Chair Rob Roby. During 2009, children in the Amachi program had the chance to partake in pursuits such as a tour of the FBI facilities in Dallas, a trip to the Dallas Cowboys Stadium and many more activities. With the help of DBA Amachi Texas Co-Chairs

Harriet Miers and Mr. Roby, and Big Brothers Big Sisters Lauren Hoofnagle, the DBA Amachi Texas program made newspaper headlines and was the focus of numerous television news stories.

Juvenile Justice Program

The Juvenile Justice Program brings DBA members to the Henry Wade Juvenile Justice Center to tutor young students who are in confinement. The weekly tutoring program is coordinated through the DBA’s Juvenile Justice Committee Co-Chairs David C. Indorf, Paula J. Miller and Hon. Cheryl Lee Shannon. In addition to tutoring, the Juvenile Justice Committee held two brown bag lunch CLE programs at the Henry Wade Center and a CPS training in November. Also this year, Ms. Miller and DBA past president Rhonda Hunter hosted a “Winner’s Reading Camp” for at-risk juveniles. The camp, a 6-week structured event, focused on improving literacy. “It doesn’t matter what they’ve done,” said Ms. Miller. “They’re still just kids, and with encouragement and education, they can grow up and make a contribution to the world around them.”

E-Mentoring Esq.

E-Mentoring, Esq. is the award-winning program designed to create e-mailbased relationships between legal or business professionals and at-risk students in the Dallas ISD who will be the first in their family to go to college. The purpose of the program is to provide these students with support and encouragement, as well as a little insight into college life. Led by CoChairs Everett New and Stephanie Zaleskin, and with support from Dallas ISD

Superintendent, Dr. Michael Hinojosa, numerous corporate law firms and the many volunteer members at the DBA, the program is currently managing relationships at seven Dallas ISD high schools. While mentors are only required to send e-mails to students, some professionals choose to visit schools to meet their mentees at annual “meet and greet” events; attend the end-of-year banquets at the Belo Mansion; or meet their mentees one-on-one for breakfast or lunch at their school. “The students are thrilled with the opportunities that e-mentoring provides them to have access to professionals in our community,” said Ms. Nix. For more information about E-Mentoring, Esq., visit www.dbamentor.org.

Transition to Law Practice

The Transition to Law Practice Program pairs recently licensed lawyers with experienced lawyers for a 12-month mentoring experience. Led by Co-Chairs Justice Douglas S. Lang and Laura Benitez Geisler, the “guide”/mentors and beginning lawyers participate in six CLE seminars that focus on practical skills and ethical values and professionalism and meet six additional times to discuss those matters addressed during the seminars. The success of the DBA’s Transition to Law Practice Program prompted the SBOT President Roland Johnson to designate as one of his projects a statewide Transition to Law Practice Program. “It is not an overstatement to say that some of the opportunities beginning lawyers have had through the program have been life-changing,” said Justice Lang. “With the Transition Program having been taken state wide by the State Bar of Texas,

the DBA membership can be very proud of, once again, being leaders and innovators.”

Making a difference

Through the DBA’s established programs such as the Texas High School Mock Trial Program, the Law in the Schools & Community and the Summer Law Intern Program, the DBA is able to reach and make a positive impact on the lives of more than 6,000 young students each year. These programs could not be possible without the generous support of the Dallas Bar Foundation, led by Chair, Justice Mary Murphy. “I was recently at an event sponsored by the DBA Minority Participation Committee where legal trailblazer Marcos Ronquillo spoke of the Samoristas Creed, which states, ‘Carry willingly the burden of leadership and responsibility to serve others; always strive to give back to the community; and make sure that you appreciate the good work, selfless sacrifices and heroic efforts of past generations,’” said Ms. Crain. “In participating in the DBA’s mentoring initiatives this year, members have readily used their education, knowledge and talents to better themselves, while at the same time passing along to future generations what they have learned, ultimately enhancing our community. Their actions ultimately help us all and I am forever grateful for their efforts this year and in the future.” This is just a highlight of a few of the many mentoring opportunities offered by the Dallas Bar Association. For more information on these programs or other available opportunities, log on to www.dallasbar.org. HN

Jessica D. Smith is the DBA’s Communications/Media Director.

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4 H e a d n o t e s l D a l l a s B a r A s sociation

D ecem ber 2009

Headnotes

President's Column

Published by: DALLAS BAR ASSOCIATION

Thankful for You! by Christina Melton Crain

t the mere age of 33, Thomas Jefferson was called upon by his contemporaries to pen the Declaration of Independence— the document that would put colonists at odds with the Crown and lay the groundwork for the great American experiment. What could have possibly prepared and empowered Jefferson for such a task at such a relatively young age? Some credit might be attributed to George Wythe. History gives George Wythe credit for many accomplishments. He is known to be the nation’s first law professor, serving at the College of William and Mary for 10 years. Additionally, he held positions as a judge, Virginia’s attorney general, the mayor of Williamsburg, a drafter of the Constitution, and a delegate who signed the Declaration of Independence. But Wythe may be best known as the man who mentored giants including Jefferson, James Monroe, Henry Clay and Chief Justice John Marshall. From the time Jefferson was 19 until the age of 24, he studied law under Wythe, who was about 16 years older than his pupil. Jefferson called him “my faithful and beloved Mentor in youth, and my most affectionate friend through life.” Their friendship lasted four decades. We are told that Wythe accepted law students as boarders in his home and treated them as if they were the sons that he never had. Years after the death of his mentor, Jefferson said of Wythe: “He directed my studies in the law, led me into business, and continued, until death, my most affectionate friend … as far as I know, he never had an enemy.” Mentorships were not uncommon in Colonial days. The Fairfaxes of Virginia and Robert Dinwiddie offered sage advice and unique opportunities to a young man who was left fatherless at the age of 11. This youngster did not benefit from the elite education that his older brothers received because of their father’s early demise. Yet, the guidance of key mentors surely empowered this young man to develop his trade as a surveyor, lead the Continental Army to victory, and eventually become the first president of a young republic. Undoubtedly, these influential mentors in the life of Gen. George Washington contributed to his successful life and reputation as a fair and capable leader. Clearly, some of the most notable figures in history realized the value of mentors. Over the years, the Dallas Bar Association has created phenomenal mentoring programs for school children, law students and new lawyers. But during 2009, we stepped up those efforts. And, I truly mean “we.” So many of you answered the challenge I issued many months ago to “mentor the next generation.” I cite several great examples: Nearly 200 of you volunteered to participate in a year-long program and offer guidance to new lawyers as they “transitioned to law practice.” This initiative has been spearheaded by the Hon. Douglas S. Lang and Laura Benitez Geisler. Now the program has gone statewide through the State Bar of Texas, now led by our neighbor and friend Roland Johnson, to benefit thousands of recent law school graduates. One of the DBA’s new programs, one that is particularly special to me, is the Amachi Texas program. Having chaired the Texas Board of Criminal Justice for many years, witnessing firsthand the misfortune faced by thousands of children whose parents are incarcerated, a team developed a mentoring program that interjects a caring adult into the lives of these children. Scores of DBA mem-

Thank you for all you do!

bers embraced the Amachi project in 2009. Busy lawyers and judges carved out a few hours each month to change the predictable and daunting odds these youngsters face, to show them that their life’s path doesn’t have to lead to prison. I salute Harriet E. Miers and Rob Roby (Amachi Co-Chairs), as well as Katie Bandy, Jenna Wright, the Hon. Tena Callahan and the Hon. Martin Hoffman, who have each spent countless hours coordinating this project and recruiting volunteers. And, I thank our friends at Big Brothers Big Sisters of North Texas, specifically Lauren Hoofnagle, Olivia Eudaly and Charles Pierson, whose partnership has been invaluable. Other elements of our 2009 mentoring challenge include the incredibly successful E-Mentoring, Esq. program, Co-Chaired this year by Everett New and Stephanie Zaleskin. This program touched the lives of hundreds of high school students, giving them encouragement to achieve their dreams and not be deterred. And, the Juvenile Justice Tutoring program which gave DBA members the opportunity to tutor juvenile delinquents has been successfully led by David Indorf, Paula Miller and the Hon. Cheryl Lee Shannon. The Chairs or Co-Chairs of the 34 DBA Committees, 28 Sections and DBA special projects have all contributed to improving the community in which we live and the profession in which we practice. They are each to be commended for their amazing work this year. My sincere thanks go to each and every Chair, Co-Chair and member that stepped up to make the 2009 DBA year a true success. Your hard work and tenacity is what makes this Association the “Best Bar Association in the United States” (as has been stated on many an occasion by DBA Past President Nancy Thomas). In addition, I would be remiss if I did not thank the phenomenal DBA Board of Directors, as well as the staff members of the DBA, DBF, Lawyer Referral Service, Dallas Volunteer Attorney Program and Culinaire International for all that they do for our Association on a daily basis. The gratitude I feel for those who accepted the challenge to lead this year is overwhelming. And, I sincerely thank the many members who executed the plans of these leaders by actively serving on a DBA committee, section or being involved in a special project this year. Through your remarkable efforts, you have changed lives and have made an impact and a difference for more people than you will ever know. You all make me proud to be a lawyer and to work with the finest professionals around. It has been my distinct honor and privilege to serve as your President – a year I will never forget and will always cherish and hold dear. As Thomas Jefferson stated, “I had the good fortune to become acquainted very early with some characters of high standing, and to feel the incessant wish that I could ever become what they were. Under temptations and difficulties, I would ask myself what would Dr. Small, Mr. Wythe, Peyton Randolph, do in this situation?” This is how Jefferson viewed the roles of his life’s mentors. YOU are each “characters of very high standing” with whom others have had and will continue to have “the good fortune of becoming acquainted”. You stepped up to the proverbial plate this year to positively influence the lives of students, new lawyers, our profession and community. I offer my heartfelt thanks to each of you for serving this year, and I challenge all of you to find your place on a DBA committee, section or project in 2010. Remember—a future president may be watching YOU and YOU could be the one person that influences and makes a difference in their life. Thank you from the bottom of my heart. HN

Tina Douglas – Paralegal Jigna Gosal – Paralegal Torsha McCarty – Paralegal DBA 2009 Board of Directors: Lakeshia McMillan – Paralegal Ike Vanden Eykel – President-Elect Andrew Musquiz – Paralegal Barry Sorrels – First Vice President Alicia Perkins – Paralegal Paul K. Stafford – Second Vice President Chris Reed-Brown – Recruiter Bill Mateja – Secretary/Treasurer Ellis Pope – Secretary Frank E. Stevenson II – Immediate Past President 2009 DBA Committee Chairs: Sally Crawford – Board Chair Admissions and Membership – Rob Roby Scott McElhaney – Board Vice Chair Advisory – Frank E. Stevenson II Jerry Alexander - Director Bar None Production Company – Martha Hardwick Hofmeister and Tom Art Anthony – President, JL Turner Legal Association Mighell Kim J. Askew – At-Large Director & ABA Delegate Bench Bar Conference – Hon. Tena Callahan, Hon. Rob Canas, Paul Hon. Tena Callahan –Judicial At-Large Director Genender, Monica Latin, Scott M. McElhaney, Mary Scott, Hon. Craig Frank Carroll - Director Smith and Will Snyder E. Leon Carter - At-Large Director Bylaws – Hon. Elizabeth Crowder Rob Crain - Director Community Involvement – Anna Marie Holmes and Meyling Ly Hon. Elizabeth Crowder - Director Continuing Legal Education – Mary Scott Laura Benitez Geisler - Director Courthouse – Quentin Brogdon and Hon. Ken Tapscott Hon. Marty Lowy - Director Criminal Justice – Kevin Ross Patsy Yung Micale – President, Dallas Asian American Bar Association Entertainment – Laura Benitez Geisler, Michele Wong Krause and Mark Sales Mary Scott - Director Fee Disputes – Tod B. Edel Diane Sumoski - Director Golf Tournament – Teresa Evans, Bill Mateja and Barry Shelton Dena DeNooyer Stroh – President, Dallas Association of Young Lawyers House – Rob Roby Debra K. Thomas - Director Judicial Investiture– Rob Roby Christie Villarreal – President, Dallas Hispanic Bar Association Judiciary – Tino Ramirez and Bradley C. Weber Bradley C. Weber - Director Juvenile Justice – David Indorf, Paula Miller and Hon. Cheryl Lee Shannon Hon. Douglas S. Lang – ABA Delegate Law Day – Kirby Drake, James Holmes and Hon. Teresa Guerra Snelson Talmage Boston – SBOT Representative Law in the Schools & Community – David Anderson and Cheryl Camin Beverly Godbey – SBOT Representative Lawyer Referral Service – Lee Baldwin Tim Mountz – aSBOT Representative Legal Ethics – Hon. Mark Greenberg, David Kent and Anne Shuttee Rob Roby – SBOT Representative Legalline – Katie Anand and Ramsey Patton Mark Sales – SBOT Representative Library – Hon. Anne Ashby, Hon. Elizabeth Crowder and Susan Hays Travis Vanderpool – SBOT Representative Hope Shimabuku – President-Elect, Dallas Asian American Bar Association Media Relations – Kara Altenbaumer-Price and Jenna Wright Jennifer Duncan Edgeworth – President-Elect, Dallas Association of Young Memorial & History – Linda Dedman and Cara Pierce Mentoring – Mary Goodrich Nix and Paul Stafford Lawyers Minority Participation – Samir Bhavsar, Audrey Moorehead and Diane Jose Ortiz – President-Elect, Dallas Hispanic Bar Association Sumoski Karen McCloud – President-Elect, JL Turner Legal Association Mock Trial – Steve Gwinn and Hon. Lana Myers P. Michael McCullough – DBA Tax Counsel Morris Harrell Professionalism – Brian Melton and Bob Mow Dallas Volunteer Attorney Program: Peer Assistance – Gaylynn Gee, Michael Hurst and Hon. Sheryl McFarlin Alicia Hernandez – Director Pictorial Directory – Shonn Brown Michelle Alden – Managing Attorney Pro Bono Activities – Barkley Miller and Thomas Stutz Kristen Salas – Mentor Attorney Public Forum – Chris Lewis, Jim Mitchell and Frank White Katherine Saldana – Mentor Attorney Publications – Tim Ackermann, Anne Pohli and Suzanne Westerheim Marco Bacanegra – Paralegal Senior Lawyers – Florentino Ramirez Whitney Breheny – Paralegal

Speakers – Rob Crain and Frank Giunta Strategic Planning – Sally Crawford Summer Law Intern Program – Lea Clinton, Everett New and Hope Shimabuku 2009 DBA Section Chairs: Alternative Dispute Resolution – Tamar Meeks Antitrust & Trade Regulation – Bill Whitehill Appellate Law – Samar Kline Bankruptcy & Commercial Law – Corky Sherman Business Litigation – Sally Helppie Collaborative Law – William B. Short, Jr. Computer Law – Brooks W. Taylor Construction Law – David Surratt Corporate Counsel – Patrick Owens Criminal Law – Keith Dean Employee Benefits & Executive Compensation – Thomas Hoffman Energy Law – Scott Goldberg Environmental Law – Brendan Lowrey Family Law – Jana Wickham Franchise & Distribution Law – Lauren Becker Health Law – Gerald Connor Intellectual Property Law – William R. Cohrs International Law – Tino Ramirez Labor & Employment Law – Gary Fowler Mergers & Acquisitions – John Wesley Probate, Trust & Estate – Greg W. Sampson Real Property Law – Jay Settle Securities – David Dodds Solo & Small Firm – Jack Sheedy Sports & Entertainment Law – Michael Farris Tax – Grover Hartt, III Tort & Insurance Practice Skills – David Kent Trial Skills – Mike Sawicki 2009 DBA Special Projects Chairs: Amachi Texas – Harriet E. Miers and Roby Roby Appealing to the Public with Texas Court of Criminal Appeals – David Anderson and Cheryl Camin Clerks & Coordinators Symposium – Chuck Aris and Hon. Martin Hoffman Equal Access to Justice Campaign (2010) – Scott M. McElhaney Development of DBA Government Law Section – Chris Bowers E-mentoring – Stephanie Zaleskin/Everett New Justice in Education Symposium – Hon. Marilea Lewis Law Jam 2 – Martha Hardwick Hofmeister Rule of Law Seminar – Cheryl Camin and Anne Shuttee State Bar of Texas Annual Meeting (Dallas) – Talmage Boston Transition to Law Practice Program – Hon. Douglas S. Lang and Laura Benitez Geisler

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: Christina Melton Crain President-Elect: Ike Vanden Eykel First Vice President: Barry Sorrels Second Vice President: Paul K. Stafford Secretary-Treasurer: Bill Mateja Immediate Past President: Frank E. Stevenson II Directors: Jerry C. Alexander, Arthur Anthony (President, J.L. Turner Legal Association), Kim Askew (at-large), Hon. Tena Callahan, Wm. Frank Carroll, Leon Carter, Rob Crain, Sally L. Crawford, Hon. Elizabeth H. Crowder, Laura Benitez Geisler, Hon. Marty Lowy, Scott McElhaney, Patsy Yung Micale (President, Dallas Asian-American Bar Association), Mary Scott, Paul K. Stafford, Dena DeNooyer Stroh (President, Dallas Association of Young Lawyers), Diane Sumoski, Debra K. Thomas, Christie Villarreal (President, Dallas Hispanic Bar Association) and Brad C. Weber. Advisory Directors: Jennifer Duncan Edgeworth (President-Elect, Dallas Association of Young Lawyers), Karen McCloud (President-Elect, J.L. Turner Legal Association), Jose Angel Ortiz (President-Elect, Dallas Hispanic Bar Association) and Hope Shimabuku (President-Elect, Dallas Asian American Bar Association). Delegates, American Bar Association: Kim J. Askew, Hon. Douglas S. Lang Directors, State Bar of Texas: Talmage Boston, Beverly Bell 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 Tarangioli In the News: Judi Smalling Art Director: Laura E. Heymann Advertising: Karla Howes PUBLICATIONS COMMITTEE Co-Chairs: Anne Pohli, Timothy G. Ackermann and Suzanne Raggio Westerheim Vice-Chairs: Vincent J. Allen and Lea N. Clinton Members: H. Joseph Acosta, Natalie Arbaugh, Sorana Ban, Heather Barbieri, Barbara Boudreaux, Scott Beckman, Lance Caughfield, Paul R. Clevenger, Christina Melton Crain, Linda Dedman, Tobey S. Elliott, Jennifer A. Green, Floyd R. Hartley Jr., Thomas M. Hoffman, Mary Louise Hopson, Young Jenkins, David F. Johnson, Victor Johnson, Lisa Kivett, Susan P. Kravik, Thomas L. Mighell, Clay Miller, Hon. Jim Moseley, Susan D. Nassar, Heather Bailey New, Kirk L. Pittard, Irina B. Plumlee, Christopher A. Robison, Bryon L. Romine, Andrew Ryan, Gregory W. Sampson, Barry Sorrels, Paul K. Stafford, Scott B. Stahl, J. Allen Sullivan, Claire Swann, Sherry L. Talton, Debra K. Thomas, Edith Miller Thomas, Mark Toronjo, Ike Vanden Eykel, Paul Watler, Jenna P. Wright and Paul F. Wright. 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 Thorton Executive Director, DBF: Elizabeth Philipp Law-Related Education & Programs LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Coordinator: Amy E. Smith Membership Coordinator: Kimberley Watson Projects & Communications Assistant: Kathryn Tarangioli 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. 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 wel-come. 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.

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Dal l as Bar A ssoci ati on l Headnotes 5

The Dallas Bar Association From 2001-2009 Editor’s Note: As the Dallas Bar Association celebrates the inauguration of its 100th president, Christina Melton Crain, we will reflect each month on the bygone eras the organization has experienced. Darwin Payne’s book, As Old As Dallas Itself: A History of the Lawyers of Dallas, the Dallas Bar Associations, and the City They Helped Build, has been used as a source in these articles. It is available from the Dallas Bar Foundation for $25. Contact Elizabeth at ephilipp@dallasbar.org.

ith the new millennium came excitement and hope. The year 2000 was designated the International Year for the Culture of Peace, a theme that was easily accepted by the lawyers of Dallas. Throughout the beginning of this new century, Dallas Bar Association presidents helped usher this theme along with their work in the community and within the association. As president of the Dallas Bar Association in 2001, Mark A. Shank, selected “Celebrate Our Members” as his theme. During his tenure, the fundraising effort for expanding the Belo Mansion began. It was the most ambitious such project in DBA history, with more than $14 million being raised to build the Pavilion at the Belo Mansion. Mr. Shank was past president of the Dallas Association of Young Lawyers. Nancy A. Thomas, DBA president in 2002, worked as a briefing attorney for Chief Justice Clarence A. Guittard of the 5th District Court of Appeals before entering private practice. Among her many activities for the DBA, Ms. Thomas was construction chair for the Pavilion project in 2000-2002 before being elected DBA president. During her presidency, the Texas Historical Commission approved the construction of the Pavilion, and ground was broken for the project. A sixth-generation Texas and native Dallasite, Brian D. Melton ascended to the presidency of the DBA after an exten-

sive involvement in its activities, including the co-chairmanship of the Goals for Professionalism Conference. During his year as president, in 2003, he started the Morris Harrell Professionalism Committee, the first annual Community Symposium for Justice in Education, the Senior Lawyers Committee, the New Members Committee and adopted the Creeds for Integrity and Professionalism in Judicial Elections. The first African American president of the Dallas Bar Association, Rhonda Hunter, had served the organization as secretary, treasurer, vice president and chairman of the board. She is past president of the J.L. Turner Legal Association, past president of the Dallas Association of Black Women Attorneys and past president of the DBA’s Community Service Fund. In 2007, she was given the DBA’s Martin Luther King Jr. Justice Award. During her year as president, 2004, she held several events marking the 50th anniversary of the landmark decision Brown v. Board of Education. She has served on the board of directors for many organizations, including Young Audiences of Dallas and Dispute Mediation Service. Inspired by Morris Harrell to become involved in service to the bar, Timothy Wilson Mountz became active in the Dallas Association of Young Lawyers, the Texas Association of Young Lawyers and chaired a number of DBA committees before being elected to the DBA board in 1998, serving as president in 2005. As DBA president, Mr. Mountz urged emphasis on the legal profession’s core values, professionalism and service, hoping to promote these values and pass them on to other lawyers. He also founded the annual Law Students and Professionalism program. Mark Keith Sales was president of the Dallas Association of Young Lawyers in 1994, served as a director of the State Bar of Texas, is a fellow of the Texas Bar Foundation and of the Dallas Bar Foundation. He

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also served as a fundraising chair for the Pavilion project. Mr. Sales’ key projects during his term as DBA president in 2006 included Law Jam, Appealing to the Public and E-Mentoring. He is a member of the Knights of Columbus and plays lead guitar in a classic rock ‘n’ roll band—the Catdaddies. As president of the Dallas Bar Association in 2007, Beverly Bell Godbey announced a theme of “Maximum Impact,” aiming at community service, education and professional endeavors. Her year as DBA president was unique for women in the fact that women were also presidents of all the sister bar associations, the State Bar of Texas and the American Bar Association. She is a partner with Gardere, Wynne & Sewell, and she is a Fellow of the Dallas Bar Foundation and the State Bar of Texas. Ms. Godbey is also a past president of the Dallas Association of Young Lawyers. Frank Earl Stevenson II was inaugurated as the 99th president of the Dallas Bar Association on January 19, 2008. He was the first chair of the DBA’s Summer Law Intern program, and he chaired the Campaign for Equal Access to Justice and the New Member committees. During his

tenure, the Judicial Evaluation Poll was reinstated. His theme during his presidential year was “A Bar For All.” In 1995, he received the Jo Anna Moreland Outstanding Committee Chairman Award. He is a fellow of the Dallas Bar and the Texas Bar Foundation. In his younger days, Mr. Stevenson achieved the rank of Eagle Scout, and his son John has also gained that rank. The Dallas Bar Association’s 100th president, Christina Melton Crain, has a long list of accomplishments in a career that is still in its early stages. Among them is her past service on the Texas Board of Criminal Justice. Having been appointed to the position in 2001 by Governor Rick Perry, she became the first female Chairman of the Board in 2003, holding that position until 2008, after which a women’s prison unit at Gatesville, Texas, was name in her honor. One of her special accomplishments in recent years was her involvement in establishing Amachi Texas, which became the first statewide mentoring program for children of the incarcerated. Her late grandfather, Allen Melton, was a signatory to the charter of the Dallas Bar Association. HN

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Runner-Up Receives From Neiman Marcus $1,000 Gift Card, Lunch for Four at NM Café And Custom Natura Bisse Gift Basket Second Runner-Up Receives From Bachendorf’s A Bachendorf’s Stainless Steel All Swiss Automatic Day-Date Water-Resistant Watch Raffle tickets are $100 each — or 6 tickets for $500. Proceeds benefit the Dallas Volunteer Attorney Program, which provides legal services to the less fortunate in our community. No more than 1,500 tickets will be sold. Purchase raffle tickets online at https://www.dallasbar.org/dvap/raffle.asp or at the DBA offices at the Belo Mansion (2101 Ross Avenue, Dallas, TX 75201).

Drawing will be held at the DBA Inaugural Ball on January 23, 2010. The winner need not be present to win. The winner is responsible for all taxes, title and licensing. Prize is non-transferable. No cash option is available.

6 H e a d n o t e s l D a l l a s B a r A s sociation

D ecem ber 2009

Special State Bar

DBA State Bar President’s Update by Roland Johnson

e have been reflecting lately about what it means for us as lawyers to be professional, about how we interact with each other, with judges and with clients. The Dallas Bar Association has long been at the forefront of promoting professionalism, establishing its own guidelines for professional civility and courtesy in 1987. Two years later, the Supreme Court of Texas and the Court of Criminal Appeals adopted the Texas Lawyer’s Creed. As we celebrate the 20th anniversary of the Creed, we are faced with several issues regarding the direction of our profession. It is important for all of us to reflect on what it means to be a professional and what it means to be a Texas lawyer.

Professional Liability Insurance Disclosure

The Supreme Court has asked the State Bar Board of Directors to make a recommendation to the Court on whether lawyers have a duty to disclose to clients whether they have professional liability insurance, and, if so, how that information should be disclosed. The Board anticipates making a recommendation at its January 2010 meeting. To gain input from the legal community and the public, the State Bar held seven public hearings throughout the state in October and November. The Dallas hearing, held at the Belo Mansion on Oct. 28, brought out more than 50 lawyers and members of the

public for a lively, engaged discussion on the issue. I want to thank those of you who were able to attend. Several State Bar directors were on hand, including Steve Bolden, Talmage Boston, Beverly Godbey, John Jansonius, Dan Micciche, Tim Mountz and Mark Sales of Dallas. The State Bar has created a clearinghouse of information on the topic at www.texasbar.com/plidisclosure. There, you will find written summaries and audio recordings of the hearings, as well as the reports of a State Bar task force and Supreme Court committee that previously studied the issue. I encourage you to provide input on this important issue. Email me at statebarpresident@texasbar. com or post a comment to the Texas Bar Blog (http://blog.texasbar.com).

Proposed Changes to Disciplinary Rules

Texas lawyers are also being asked to consider proposed changes to the Texas Disciplinary Rules of Professional Conduct. The Supreme Court is receiving public comment through Dec. 31. The proposed changes were published in the November Texas Bar Journal and are available in redline version on the State Bar Web site at www. texasbar.com. Please take time to review the proposed changes and send your comments to the Court’s Rules Attorney.

Access to Justice

One of our main ongoing responsibili-

to justice. I am pleased to report that more than $618,000 has been raised — a record amount.

Mentoring Programs

ties as lawyers is providing access to justice for those who cannot afford legal services. The National Pro Bono Celebration, held Oct. 25-31, helped spotlight the many attorneys who work for legal services providers or volunteer their time to ensure our low-income citizens receive the help they need. During October, the Texas Bar Blog featured daily profiles of Texas lawyers who provide pro bono services to the community. Among those featured were Ken Fuller of Koons, Fuller, Vanden Eykel & Robertson, P.C. and Mandy Childs of Jones Day, both of whom are invaluable volunteers through the Dallas Volunteer Attorney Program. There’s never been a better time to follow their example and volunteer to take a case. In addition, your June 2009 State Bar dues statement included the option to make a voluntary contribution to access

On Nov. 16, we inducted our newest members into the profession, but there is so much more we can do to ensure they make a successful adjustment from law school to law practice. Transition to Practice offers mentoring opportunities for local bar associations and corporate and governmental legal departments. The DBA’s successful pilot program was instrumental in developing the statewide initiative. For more information on Transition to Practice or if you would like a copy of the program materials, visit the State Bar Web site at www.texasbar.com or contact the State Bar Local Bar Services Department at (800) 204-2222, ext. 1517. Law students sitting for the Texas Bar exam in February 2010 are the focus of another State Bar mentoring initiative, AfterTheBarExam.com. The Web site is designed to provide those who are waiting for their results with resources they can use to figure out what path they want to take as a lawyer, improve their practical skills and knowledge, learn more about ethics and professionalism and find ways to network with attorneys in their community. I hope you will join with me in encouraging these soon-to-be lawyers to take advantage of all this program has to offer them. HN A shareholder with Harris, Finley & Bogle, P.C. in Fort Worth, Roland Johnson is the 2009-2010 president of the State Bar of Texas.

Dallas Bar Members Choose 2010 Officers by Jessica D. Smith

embers of the Dallas Bar elected its 2010 officers during the Annual Meeting on November 6. The officers are Ike Vanden Eykel, president; Barry Sorrels, president-elect; Paul K. Stafford, first vice president; Sally Crawford, second vice president; Wesley Young, SecretaryTreasurer; and Christina Melton Crain, as immediate past president. Mr. Sorrels was elected to the office of president-elect by acclamation, following nominating speeches by Hon. Elizabeth H. Crowder of County Criminal Court No. 7, and 2005 DBA Past President Tim Mountz of Baker Botts L.L.P. Additionally, candidates were nominated to fill the expiring directors’ positions on the DBA Board. The names listed on the ballots sent to members were Rob Crain, Laura Benitez Geisler, John Goren, Michael Hurst, Michele Wong Krause, Scott McElhaney, Bill Mateja, Audrey Moorehead, Florentino A. Ramirez, and Mary Scott. Ballots were due back to the DBA on November 23 (results were not available at press time). Upon election by the membership, six of

these nominees will assume positions on the 2010 Board of Directors. The presidents of the Dallas-area minority bar associations will also serve on the 2010 board. Numerous past presidents of the DBA attended the Annual Meeting and were recognized, as were emeritus members who have been licensed to practice law more than 50 years. Ms. Crain announced that the association has grown to 10,162 members. John Goren, vice-chair of DBA Memorial & History Committee, led members as the association honored the 28 DBA members who have passed away in the past 12 months. Each year, the Texas Center for Legal Ethics & Professionalism co-sponsors the presentation of the Morris Harrell Professionalism Award, along with the DBA. In accepting this year’s award, Florentino “Tino” Ramirez, of Ramirez & Associates, P.C., said he was extremely honored to receive the award and noted that he feels “professionalism is nothing more than the rules of civility and how that civility is applied to our profession.” The award was created in 1999 in honor of DBA Past President Morris Harrell

Past President Rhonda Hunter, Minority Participation Committee Co-Chair Audrey Moorehead, DBA President Christina Melton Crain and Dorothy Shead, Magistrate of the Criminal District Court.

Professionalism Award winner Florentino Ramirez, center, had a show of family support as he received his award at the DBA Annual Meeting.

to recognize an attorney who best exemplifies, by conduct and character, truly professional traits who others in the bar seek to emulate. The Jo Anna Moreland Outstanding Committee Chair Award is presented annually to dedicated individuals who perform a remarkable job as committee chairs. This year, the award was presented to the leaders of two committees. Gaylynn Gee, Michael Hurst and Judge Sheryl McFarlin, co-chairs of the DBA Peer Assistance Committee, have worked diligently on programs to inform the membership about issues relating to stress, dependence and depression. The committee’s projects included a new Web site, preparations of Help Hotline Cards, and various seminars, including a judges-only program that focused on helping judges deal with lawyer who may be impaired. Additionally, the Jo Anna Moreland Outstanding Committee Chair Award was presented to Brian Melton and Bob Mow, co-chairs of the DBA Morris Harrell Professionalism Committee, who did an exemplary job conducting outstanding CLE programs on Professionalism—many of which had record-breaking attendance. To honor the work of exceptional DBA sections, the Special Section Rec-

ognition Award is presented to a section for advancing the professional interests and legal education of its members—a group that exceeds simply conducting CLE programs once a month. This year, the DBA presented the award to the Business Litigation Section chaired by Sally Helppie. In addition to hosting numerous CLE programs, the section also provided volunteers to the Amachi Program, the E-Mentoring Program and to DVAP—to which they recently voted to make a $10,000 donation. Since 2002, the DBA has recognized a minority bar leader for outstanding commitment, participation and dedication to the DBA. This year, the award was presented to Arturo Errisuriz, who is with Texas Wesleyan School of Law, for his for his extensive contributions to successful events, including his support of the Law Clerk Program and his assistance with the DBA Courthouse Committee’s efforts to collect historical photos for the court house. Presidential Citations were also presented to behind-the-scenes members who have faithfully performed often timeconsuming tasks for the association. HN Jessica D. Smith serves as the DBA’s Communications/Media Director.

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Dal l as Bar A ssoci ati on l Headnotes 7

8 H e a d n o t e s l D a l l a s B a r A s sociation

Focus

D ecem ber 2009

Tax Law & Employee Benefits

Changing Employment? What about your 401(k) balance? By Jerri Hammer, Gary W. Wyatt, Jane Ellington and Melissa Morgan

hether it’s your idea or your employer’s distressed circumstances, changing employment is common these days. But what becomes of your 401(k) plan balance? You may be able to leave your balance in your old plan and let it continue to grow. Your former employer may be able to cash you out, however, if your 401(k) has a balance less than $5,000. If you like the investment options in your new employer’s plan and feel the management and investment fees are reasonable, you can transfer your balance to it in one of two ways. First, roll over your balance directly to your new employer’s plan to avoid income tax withholding. Second, withdraw the balance yourself and make a rollover contribution to the new plan within 60 days, thereby avoiding taxation on the distribution (although income tax withholding may apply). If you don’t want to move your old balance into a new 401(k) account, you can roll it to an IRA, which is also a nontaxable distribution. Rolling to an IRA is a good option if you are still seeking employment or if you dislike the investments, fees, expenses or payout options on your new employer’s 401(k) plan. If you become selfemployed, you may want to set up your own qualified plan. Finally, of course, you can take the distribution from your plan and spend it, but you will have to pay income tax on amounts withdrawn. Also, if you are

younger than 59 ½, there is a 10 percent penalty on the distribution, with a few limited exceptions. If you have taken a loan against your 401(k) plan, and not repaid it before leaving employment, the situation is more complex. In most situations, your participant loan goes into default upon your departure from the sponsoring employer. Your loan becomes payable in full. One option is to pay off the loan, if resources are available. Another option is to let the loan default. This will cause a loan offset upon distribution, or a deemed distribution if no actual distribution occurs. That is, the defaulted amount is treated by the Internal Revenue Service as a taxable distribution. As a third option, the loan may be moved to another qualified retirement plan (but not an IRA) under a limited set of circumstances. There are two alternative methods to accomplish this. The first method requires several steps. Take out a “bridge” loan to bridge the gap from the old plan to the new plan. Perhaps you could tap your credit card or some other consumer credit source—it won’t be for long. Or perhaps your new employer will make a short-term loan to you. Use this bridge loan to repay the original loan when you terminate your old employment. Roll over your account balance to your new employer’s plan. Take out a loan of the same amount in your new employer’s 401(k) plan. Use the new loan to repay the bridge loan. You are now back where you started; you have a loan from your 401(k) plan, just as you did before.

~ In Memoriam ~ Since 1875, the DBA has honored recently deceased members by passing resolutions of condolences. This tradition continues through the work of the DBA Memorial & History Committee. To view the Memorial Resolutions presented to the families of deceased members, visit http://www.dallasbar.org/inmemoriam. As of November 6, 2009 Harold C. Abramson (1928-2009), a 1949 graduate of the University of Texas Law School Lois C. Bacon (1927-2009), a 1970 graduate of SMU Law School Stephen L. Bowman (1964-2009), a 1992 graduate of Brigham Young University Law School William M. “Bill” Boyd (1938-2009), a 1963 graduate of SMU Law School Hon. Jerr y Buchmeyer (1933-2009), a 1957 graduate of the University of Texas Law School Sidney H. Davis, Jr. (1954-2009), a 1979 graduate of the University of Texas Law School Shirley A. Fr yman a 1975 graduate of Texas Tech University Law School Gilbert L. Hampton (1912-2009), a 1957 graduate of the University of Oklahoma Law School William D. Harris, Jr. (1929-2009), a 1957 graduate of the University of Oklahoma Law School Hon. Leonard E. Hoffman, Jr. (1919-2009), a 1947 graduate of the University of Texas Law School Richard M. Hull (1940-2009), a 1964 graduate of SMU Law School Shannon Jones, Jr. (1926-2009), a 1950 graduate of SMU Law School Mark G. Magilow (1943-2009), a 1968 graduate of Harvard Law School Elbert M. Morrow (1928-2009), a 1950 graduate of SMU Law School

In fact, even if your loan is offset against a distribution made to you, you have 60 days in which to roll over the loan itself. You can roll the loan and you can roll your plan account. This is the second method. According to Treasury Reg. §1.402(c)-2, Q&A-9, a loan offset is an eligible rollover distribution. The principles of this alternative are illustrated in an IRS Private Letter Ruling, PLR 200617037. The rollover of the loan offset is a non-taxable distribution. In fact, according to this Private Letter Ruling, regardless of how the distributing plan codes the 1099-R, if the terminated participant rolls an amount equal to the loan into a new plan within 60 days, taxation is avoided. Be sure to tell your tax preparer about the loan offset when you provide the 1099-R. For example, if your plan account balance is $50,000 and your loan is $20,000, as long as you put $70,000

into your new account within 60 days of the distribution from your old plan, there are no income tax consequences. It isn’t easy; your old employer has withheld income tax at a 20 percent rate on the distribution, so you actually received only $40,000 ($50,000 plan balance - $10,000 withheld) and you must come up with the additional $30,000 cash to avoid taxation. With some forethought and discussion with your Human Resources Department or your plan administrator, good results for both your 401(k) plan and any loan against HN your 401(k) plan are possible. Jerri L. Hammer (tax partner) and Gary W. Wyatt (retirement plan and employee benefits partner), Jane Ellington (senior tax accountant) and Melissa Morgan (senior manager) are all of the firm Travis Wolff & Company, L.L.P., Advisors and Accountants. They can be contacted at jhammer@traviswolff.com,

Amachi students get the chance to visit the Dallas Cowboys Stadium.

DVAP’s Finest Greg Sampson

Greg Sampson is a board certified estate planning and probate attorney at Passman & Jones, P.C. Greg has been working with DVAP since its inception. During that time, Greg has served as a probate mentor to non-probate attorneys taking DVAP probate and guardianship cases and as a probate mentor at DVAP staff meetings to help select cases to be assigned to volunteer attorneys. Greg created the Pro Bono Committee of the DBA Probate, Trusts and Estates Section and initiated the program for donations to DVAP from sales of Probate Manuals and for free manuals to go to attorneys who volunteer to take cases. Greg has spoken at several DVAP training seminars for attorneys taking probate and guardianship cases. Greg has also taken on several probate cases for representation and given advice to applicants at various wills clinics. Greg says he is glad to help and hopes that his work has helped to inspire others to devote time to volunteering with DVAP. Thank you, Greg!

Michael A. O’Neil (1940-2009), a 1967 graduate of DePaul University College of Law Robert Payne (1924-2009), a 1949 graduate of the University of Texas Law School Sam M. Passman (1912-2009), a 1936 graduate of the University of Texas Law School Trevor Wm. Rees-Jones (1923-2009), a 1948 graduate of the University of Texas Law School Peter J. Riley (1956-2009), a 1981 graduate of SMU Law School

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

Richard Lanier Thomas (1926-2009), a 1955 graduate of SMU Law School Lawrence R. Taylor (1926-2009), a 1949 graduate of the Indiana School of Law-Bloomington Hon. Bill Sheehan (1928-2009), a 1950 graduate of Baylor Law School Cher yl B. Snyder (1970-2009), a 1996 graduate of the University of Texas Law School Hon. Robert E. (Bob) White (1914-2009), a 1938 graduate of the University of Texas Law School

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

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Dal l as Bar A ssoci ati on l Headnotes 9

Tax Law & Employee Benefits

Revisiting Choice of Entity: Three New Considerations pation in a trade or business. Until recently, there was a question about whether LLC interests should be treated the same as limited partner interests for purposes of the passive activity rules. Courts, however, have found that, unlike limited partners, who may be prohibited by state law from materially participating in the limited partnership’s business, a member of an LLC may materially participate in the LLC’s business. Accordingly, a member’s interest in an LLC will not be presumptively passive. An LLC should, therefore, be considered if a taxpayer wants a better chance of avoiding the passive activity loss limitations.

By Kim Szarzynski and Troy Christensen

any of us are familiar with the usual considerations when helping clients choose a form of entity for their business. Following are three newer considerations to add to the list.

1. Passive Activity Losses

Courts have recently held that a membership interest in a limited liability company (LLC) is not treated the same as a limited partner interest in a limited partnership for purposes of applying the passive activity loss rules. Generally, a taxpayer cannot deduct losses from passive activities if they exceed the taxpayer’s income from passive activities. Passive activities include any trade or business in which the taxpayer does not “materially” participate. There are certain tests to determine whether a taxpayer materially participates in a trade or business for purposes of these passive activity rules. Federal tax law presumes that limited partners in a limited partnership are engaging in a passive activity and automatically subjects limited partners to a more rigorous test to establish material partici-

2. Series LLCs

Texas law now permits the formation of series LLCs. A series LLC is a form of entity that allows a single LLC to establish one or more series of members, managers, membership interests, or assets, each of which has separate rights, powers, or duties related to specified property or obligations of the LLC. For example, LLC X, with members A and B, could form series LLC X-1 in which A and B share profits 60/40 from activity 1 and form series LLC X-2 in which A and B share profits 30/70 from activity 2.

Living the Dream Every Day

serves on the Council of the American Law Institute whose mission is to produce scholarly work to clarify, modernize, and otherwise improve the law. Her 2009 presentation on “Texas State and Federal Privileges” was recognized as one of the state’s leading CLE presentations. Ms. Askew is a long-time leader in the State Bar of Texas, the American Bar Association and the Dallas Bar Association. She was the first African-American lawyer to chair the State Bar Board and the ABA Section of Litigation. She serves in the American Bar Association’s House of Delegates and on the Board of Directors of the Dallas Bar Association. In the community Askew serves on the governing bodies of multiple educational, charitable and cultural organizations. She has been recognized numerous

continued from page 1

current firm K&L Gates LLP, where she has been a partner since 1991.

Contributions to the Community

Ms. Askew has been an outstanding advocate for her clients. Her practice focuses on complex commercial and employment litigation. She believes that “lawyers have a special responsibility to do pro bono work and to be involved citizens in their communities. Lawyers have a unique ability to ensure justice for others.” Ms. Askew’s contributions to our community and profession are numerous. She is a widely published author and national speaker on a range of commercial litigation and employment law topics. She

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A series LLC is expected to provide limited liability protection to the members of each series and eliminate the expense of forming multiple entities for members that want to segregate assets and liabilities of different activities. (In the example above, series X-1 and X-2 would not be liable for each other’s debts.) The Internal Revenue Service has not issued formal guidance on the federal tax treatment of a series LLC, so there is uncertainty concerning the federal income tax treatment of certain aspects of series LLCs (such as intercompany transfers). The IRS, however, has issued a private letter ruling that treats each series as a separate entity for federal income tax purposes. Although a private letter ruling can only be relied on by the person to whom it was issued, it is still helpful in providing some guidance on how the IRS will treat series LLCs in other cases. Texas law does not, however, permit the formation of a series partnership. As a result, if a client wants to form a series entity in Texas, an LLC must be used.

3. Texas Margin Tax

With proper planning, a partnership may provide a benefit over an LLC for purposes of the Texas margin tax.

times as a Texas Super Lawyer, as one of the “Best Lawyers” in Dallas, and as one of the top fifty women lawyers in the state. She received the 2007 Profiles in Leadership Award from the SMU Annual Women’s Symposium in recognition of her significant impact on the city of Dallas and the quality of life for women overall.

Commitment to the Future

Ms. Askew understands that the need to improve our society is never complete. She advocates education and “creating a mindset that anything is possible” for young people. She mentioned in particular how much she enjoys the DBA Law Day Committee’s program of teaching in the Dallas ISD classrooms. “It reminds me of what Dr. King said was always the most urgent question, ‘What

Absent an exemption, a limited liability entity that is doing business in Texas is subject to the margin tax. “Passive entities,” however, are exempt from the margin tax. An entity generally is passive for a taxable period if it is a general or limited partnership or a non-business trust and at least 90 percent of its federal gross income during such taxable period consists of “passive income,” (e.g., dividends, interest, distributive shares of partnership income, net capital gains from the sale of real property). An LLC cannot qualify as a passive entity for purposes of the margin tax. Therefore, a partnership should be considered if there is a chance the entity can qualify as a passive entity during any taxable year and avoid being subject to the Texas margin tax. Although an entity might not normally meet the 90 percent passive income test, it still might make sense to consider using an LLC in anticipation of the entity having an unusual event (such as the sale of all of its real estate) that might enable it to meet the 90 percent test in a particular year. HN Kim Szarzynski and Troy Christensen are both associates in the tax practice group at Haynes and Boone, LLP. Kim can be reached at kim.szarzynski@haynesboone.com, and Troy can be reached at troy.christensen@haynesboone.com.

are you doing for others’.” Ms. Askew reflects on the MLK Justice Award as she thinks of the Sotomayor hearing. “Dr. King envisioned the day when people of all races would be afforded opportunities on the basis of their talents and their contributions. So—we are living the dream, every day. I work to make the dream real . . . every day.” Members of the DBA and the community are invited to attend the Martin Luther King, Jr. Luncheon on January 18 to honor Ms. Askew. To make reservations for the luncheon contact Biri Avina at bavina@dallasbar.org. A plated lunch will be served ($12.76). HN Mike Keliher, after practicing law for many years, is now a financial, accounting and damages expert at his firm Keliher Consulting. He can be contacted at mkeliher@keliherconsulting.com.

10 H e a d n o t e s l D a l l a s B a r A ss ociation

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D ecem ber 2009

Tax Law & Employee Benefits

Reducing the Income Tax Cost of Debt Cancellations By Kathryn W. Lyles and Stephen A. Beck

ver the last eighteen months, the economic recession has resulted in a sharp increase in defaults of both consumer and commercial loans. In response to the defaults, lenders and borrowers are entering into loan modifications and other agreements that lead to the cancellation of debt. If you have a client who has negotiated a reduction in the amount of debt, your client could be required to report cancellation of indebtedness income (COD income) on a federal income tax return. This increases the client’s tax liability for the year in which the cancellation occurred, unless the client qualifies for the relief provisions discussed below. While taxpayers may recognize the risk of COD income from the complete forgiveness of a debt, many taxpayers do not realize that a loan modification could produce similar results. For tax purposes, a modification of a loan is deemed an exchange of the old debt for a new debt. The modification may occur through an express agreement, the conduct of the parties, or otherwise. Thus, a formal agreement between a lender and borrower is not necessary to effect a modification giving rise to taxable COD income; their conduct can result in a modification if their actions do not match the obligations and duties of the debt instrument.

Code Section 108(a) Exclusions The Internal Revenue Code (the Code), provides relief through which qualifying taxpayers can exclude COD income from the amount of income reported on

a federal income tax return. Code Section 108(a)(1) provides five categories of exclusions, of which the most commonly applicable are: (i) a discharge occurring in a Title 11 (i.e., bankruptcy) case; or (ii) a discharge occurring when the taxpayer is insolvent (i.e., the taxpayer’s outstanding liabilities exceed the fair market value of the taxpayer’s assets). It is important to note that, if the exclusion of COD income results from bankruptcy or insolvency, the taxpayer will be required to reduce certain tax attributes, such as the taxpayer’s depreciable tax basis in its assets. I.R.C. § 108(b). As a result, the COD income exclusion and reduction of tax attributes generally has the combined effect of tax deferral, as opposed to a complete reduction of tax. In other words, the exclusion will enable the taxpayer to avoid recognizing COD income immediately, but the taxpayer will generally incur additional taxes in later years as a result of the reduction of the tax attributes.

he Lawyer’s Creed and the Guidelines of Professional Courtesy are attempts to put the word “civility” back into the practice of law, advance the administration of justice and elevate the legal system to the exalted plateau it deserves. True professionalism cannot be legislated. Ethical conduct can be codified, but professionalism must come from within the lawyer. A lawyer can be ethical, but not professional. If we want professionalism to be a reality, then we must be willing to make a commitment that professionalism will not only be reflected in our daily conduct, but will be enshrined in our hearts, as well. In 1987, in response to widespread discovery abuse and so-called “Rambo tactics,” the Dallas Bar Association implemented its “Lawyer’s Creed” and its “Guidelines of Professional Courtesy.” Several other Texas cities followed with creeds or guidelines, including Houston, Austin, San Antonio and Corpus Christi. In 1988, the Texas Trial Lawyers Association and the Texas Association of Defense Counsel adopted their joint guidelines for professionalism. In Dondi Properties Corp. v. Commerce Sav. and Loan Ass’n, 121 F.R.D. 284 (N.D. Tex. 1988), that same year, the judges of the United States District Court for the Northern District of Texas, sitting en banc, adopted certain of the DBA’s guidelines and creed as “standards of litigation conduct for attorneys appearing in civil actions in the Northern District of Texas.” The en banc

in which the reacquisition occurs and each subsequent year until the deferred COD income has been fully reported in income. As discussed above, the Code provides mechanisms for alleviating the harsh federal income tax effects that generally result from debt cancellations. Determining which mechanism is more favorable for a particular taxpayer will require careful analysis of the Code Section 108 provisions and their potential impact in the taxpayer’s particular facts and circumstances. Therefore, a taxpayer who has negotiated a reduction of debt should consult a tax advisor. HN Stephen Beck and Kathryn Lyles are associates with Meadows, Collier, Reed, Cousins & Blau, L.L.P. Their practice concentrates on tax planning for entrepreneurs and small businesses. They can be reached at sbeck@meadowscollier.com and klyles@meadowscollier.com, respectively.

Code Section 108(i) Deferral Election Congress recently provided taxpayers with another means of avoiding the immediate recognition of COD income by enacting Code Section 108(i). It provides that a taxpayer who reacquires an “applicable debt instrument” in either 2009 or 2010 can elect to defer the reporting of the COD income resulting from such reacquisition until 2014. The taxpayer can then report a portion the COD income ratably each year from 2014 to 2018 To take advantage of Code Section 108(i), the following requirements must be satisfied. First, the transaction must involve an “applicable debt instrument,” which basically means any debt instru-

The Texas Lawyer’s Creed by James H. “Blackie” Holmes, III

ment issued in connection with business activities. Second, there must be a “reacquisition” of the debt instrument. The definition of a “reacquisition” is exceedingly broad and covers many transactions, such as paying cash in satisfaction of the debt, issuing a new debt instrument in cancellation of the old, a debt modification as described above, or even the complete forgiveness of the debt by the lender. Third, the debt reacquisition must occur during either 2009 or 2010. Absent further Congressional action, a debt reacquisition occurring after December 31, 2010 will no longer qualify for the deferral election. Last, the debtor must affirmatively elect to defer COD income by including the requisite statement on the debtor’s federal income tax return for the year

court emphasized that “a lawyer’s conduct, both with respect to the court and to other lawyers, should at all times be characterized by honesty and fair play.” In December 1996, the late Honorable Jerry Buchmeyer, by Special Order No. 2-36, enacted Local Rule 13.3 relating to attorneys not admitted to practice in the Northern District. Under this rule, when a lawyer applies to practice in the Northern District in a civil case, the lawyer must affirm in writing that he has read the Dondi case and the local rules of the Northern District and that the attorney will comply with the standards of practice adopted in Dondi and with the local rules. In November 1989, the Supreme Court of Texas and the Texas Court of Criminal Appeals jointly adopted “the Texas Lawyer’s Creed—A Mandate for Professionalism.” To celebrate the fifth anniversary of the creed, Jim Branton, then President of the State Bar of Texas, created the Lawyer’s Creed Committee to study ways to further advance the creed, review the creed for possible changes or additions, study ways of increasing attorney awareness of the creed and its purpose, and to seek means of motivating attorneys to comply with the creed. As we celebrate the 20th anniversary of the Lawyer’s Creed, one must remember—the practice of law is a most prestigious profession, one which all lawyers should proudly embrace, and in doing so, remember the words of the late Honorable Barefoot Sanders who said, “We should act more nobly.” HN James H. “Blackie” Holmes, III is a senior partner with Burford & Ryburn. He can be contacted at jholmes@brlaw.com.

On Tuesday, October 20, the DBA hosted the first Texas Rule of Law Conference with guest speakers Joe W. “Chip Pitts, III of Stanford Law School (center), and Dean John Attanasio of SMU Dedman School of Law (not pictured).

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Dal l as Bar A ssoci ati on l Headnotes 11

Joan Nye Leads Dallas Lawyers Auxiliary By Barbara Boudreaux

oan Nye has taken the helm as president of the Dallas Lawyers Auxiliary (DLA), an 84-yearold civic, philanthropic and social organization with more than 100 members enjoying a rich history and treasured relationship with the Dallas Bar Association. The DLA strives to promote public awareness and appreciation for the American legal system and lends its support to educational and civic enterprises, particularly those which are law-related and promote welfare to the community. The organization also seeks to bring Dallas lawyers and their spouses into closer fellowship with one another. Joan is the wife of Charlie Nye, an attorney with FelCor Lodging Trust located in Las Colinas. She received a bachelor’s degree from Southern Methodist University in 1982 and Executive MBA from SMU Cox School of Business in 1991. Joan currently works as a financial advisor. She is active at Christ the King School and Jesuit College Preparatory School. Joan lives in Dallas with her husband and two children. “I am excited to be president of DLA for this coming year,” Joan said. “Our officers have worked hard to create fun programs and meetings. I have tried to use my business experience to bring not only dynamic speakers, but also attract new members to the organization.” DLA is well-known for its financial contributions to the SMU Dedman School of Law Endowed Scholarship Fund and provides annual scholarships to students demonstrating academic excellence. At its September 23, 2009 general meeting,

held at Fearing’s restaurant, the DLA presented three awards to the 2009 scholarship recipients. In line with its organizational purpose, the DLA also publishes and distributes Now You Are 18, a 24-page teaching booklet, to high school seniors. The booklet details the legal rights and responsibilities upon reaching legal age in Texas. Approximately 1.75 million free booklets have been distributed throughout the state of Texas since the inception of the project in 1987. Joan notes that the DLA is proud to share their headquarters at the Belo Mansion with the DBA. She recounted the contribution DLA members have provided to the Belo, including securing the period furniture during the restoration of the Belo to ensure historical integrity. Each year, DLA members decorate the Belo for the winter holiday season and assist with the Dallas Bar Association’s Family Christmas Party. The DLA also provides docents for tours of the historic building. On February 28, 2010, the DLA will hold a fundraiser at the Belo Mansion with a presentation by Patricia Brady, author of Martha Washing-

Friday CLE Clinic Self-Medicating Your Stress: Is Your ‘Self-Diagnosis’ & ‘Treatment’ Helping or Increasing Stress? CLE 1.50 Ethics (pending)

Speakers: Dr. Bill Edwards, Ph.D. and Dr. Judith Hunter

Left to right: Joan Nye, DLA President, is accompanied by scholarship recipients Alexandra Farish, Assistant Dean Virginia Keehan, Assistant Dean Martin Camp, Ashley Sullivan, Rachel Harrison and DLA past president Beverly Holmes.

ton: An American Life, chronicling the remarkable, yet not widely studied, life of America’s first First Lady. Each spring, the DLA presents the prestigious Justinian Award honoring a member of the Dallas Bar Association for his or her superior volunteer commitment to the Dallas community. Nominations for the 2010 Justinian Award will be solicited during the upcoming months with the recipient to be announced at the April award luncheon. In May, the DLA will present its “Teacher of the Year” Award to a Dallas county public or private high school teacher who has made significant contributions to law-related education. Nominations for both awards may be submitted via the DLA website, listed below.

Members of the DLA are also involved in many other philanthropic activities and non-profit organizations, including the Dallas Children’s Advocacy Center, Girls Inc., Senior Citizens, and Community Partners of Dallas, and serving as Court Appointed Special Advocates (CASAs). Joan encourages all who are interested in joining the DLA to attend the group’s general meetings, open to all members and guests. For information regarding upcoming meetings and activities, please visit www.dallaslawyersauxiliary.org. HN Barbara Boudreaux is an associate in the Corporate Finance Group of Munsch Hardt Kopf & Harr, PC. She can be contacted at bboudreaux@munsch.com.

Presented by the Peer Assistance Committee. December 4 noon-1:30 p.m. at Belo. For more information, contact Sherri Evans at sevans@dallasbar.org.

Justinian Award Nominations Due Soon The 28th Annual Justinian Award will be presented in April 2010 at the Belo Mansion. The Dallas Lawyers Auxiliary is seeking nominations for this prestigious award which is given annually to a member of the Dallas Bar Association who has dedicated his or her career to volunteer service through civic, educational, health, welfare or philanthropic endeavors in the Dallas community. Please consider nominating one of the many outstanding attorneys in the community for the Justinian Award. Past recipients include lawyers from large and small firms, solo practitioners and corporate attorneys. Nominations must be submitted in writing no later than January 1, 2010, to Jan Lamoreaux, 3883 Les Lacs Ave., Addison, TX 75001, or by e-mail at janlam@tx.rr.com.

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12 H e a d n o t e s l D a l l a s B a r A ss ociation

Focus

D ecem ber 2009

Tax Law & Employee Benefits

TARP Trends Continued from page 1

ment and its primary regulatory agency, and post the text of this policy on its Web site. This provision is intended to eliminate excessive executive spending, like that of a CEO who spent more than a million dollars renovating his office. (6) Shareholders must be provided a separate vote on a non-binding resolution to approve executive compensation at any annual or other meeting of the shareholders occurring while the financial institution participates in TARP.

The above restrictions are only binding on financial institutions that receive financial assistance under the TARP program. However, these restrictions are having a broad impact. For instance, the requirement that shareholders approve executive compensation (referred-to as “say on pay”) has become the basis for the Investor Protection Act of 2009, a bill submitted to Congress by the Treasury Department which would require all public companies to put their executive compensation to a non-binding advisory vote by the company’s shareholders at any annual meeting held after December 15, 2009. In a

similar measure, the House of Representatives passed the Corporate and Financial Institution Compensation Fairness Act of 2009 on July 31, 2009, which generally requires the same non-binding shareholder vote on all executive compensation, but without the December 15, 2009 limitation. In addition, on September 25, 2009, taking note of the TARP restrictions on payment of any bonus except for longterm restricted stock, the Financial Stability Board at the G-20 Summit recommended that a substantial portion of an executive’s compensation be deferred for no fewer than three years.

Finally, like the clawback feature of the TARP restrictions, the Federal Reserve has proposed executive compensation restrictions that would require clawbacks of any executive compensation which the Federal Reserve determines to be too risky. As indicated by this recent legislation, TARP has become the trend-setter for executive compensation across multiple industries and nations. HN Ms. Strong is an associate in the Employee Benefits and Executive Compensation practice group of Haynes and Boone, LLP, and a member of the Employee Benefits and Executive Compensation section of the Dallas Bar Association. She can be contacted at Nellie.Strong@haynesboone.com.

DBA Family Holiday Party Monday, December 14 6-8 p.m. at the Belo Mansion Enjoy pictures with Santa, face-painting, tap-dancing, toy trains and more! PLEASE BRING AN UNWRAPPED TOY TO BE DONATED TO CHARITY. The Hon. Linda B. Thomas, (left), Chief Justice of the Fifth District Court of Appeals at Dallas and the longest serving judge in Texas, was honored at a luncheon Nov. 4 at The Belo recognizing her recent retirement. Also pictured, DBA President Christina Melton Crain (center) and Commercial Properties Ad_finalHR.pdf 5/22/09 9:02:52 AM newly appointed Chief Justice Carolyn Wright.

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Dal l as Bar A ssoci ati on l Headnotes 13

Tax Law & Employee Benefits

IRS Granted Access By Ron Kerridge

itting en banc, the First Circuit has held that the attorney work-product doctrine does not protect from an IRS summons the tax accrual workpapers prepared by in-house lawyers in connection with a corporation’s computation of tax reserves for its audited financial statements. U.S. v. Textron, No. 07-2631 (1st Cir. Aug. 13, 2009). The U.S. District Court for Rhode Island, and a divided panel of the First Circuit, ruled in Textron’s favor. But, by a 3-2 margin, the full court reversed. The First Circuit has issued a stay of its mandate while Textron petitions for a writ of certiorari to the Supreme Court. Even if the Court denies the petition, the case is important not only for the interaction of corporate taxpayers with the IRS, but also for the contours of the broader work-product doctrine. If the Supreme Court takes up the matter, it could prove to be a watershed decision. Since the Supreme Court’s decision in U.S. v. Arthur Young & Co., 465 U.S. 805 (1983), it has been clear that there is no accountant work-product privilege protecting tax accrual work papers. What distinguished Textron’s situation was that its internal tax lawyers prepared the analyses at issue. These work papers listed items on Textron’s tax returns that involved issues on which the tax laws were unclear (in the opinion of counsel), gave percentage estimates of Textron’s chances of prevailing in litigation over these issues, and set out the dollar amounts reserved to reflect the possibility that Textron might not prevail in such litigation. The IRS has followed a “policy of restraint,” under which it generally does not request tax accrual work papers during an audit. Since 2002, however, the IRS’s practice has been to request such workpapers if it learns that the taxpayer has engaged in more than one “listed transaction,” i.e., tax shelter. One of Textron’s 190 subsidiaries entered into nine listed transactions during 2001. The IRS agent issued an administrative summons for Textron’s tax accrual workpapers and sought to enforce the summons in district court when Textron refused to comply. The controversy focused on the scope of Fed. R. Civ. P. 26(b)(3)(A), which protects “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its

representative.” The en banc First Circuit determined that “the immediate motive of Textron in preparing the tax accrual work papers was to fix the amount of the tax reserve on Textron’s books and to obtain a clean financial opinion from its auditor.” In other words, “the purpose of the work papers was to make book entries, prepare financial statements and obtain a clean audit.” Relying on precedent stating that the work product doctrine does not protect “documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of the litigation,” the First Circuit held for the IRS. More holistically, the court explained: “Every lawyer who tries cases knows the touch and feel of materials prepared for a current or possible (i.e., ‘in anticipation of’) law suit. . . . No one with experience of law suits would talk about tax accrual work papers in those terms.” The court stated that the focus of work product protection is on “materials prepared for use in litigation.” The vigorous dissent asserted that the First Circuit departed from that circuit’s precedent and the majority rule among the circuits. Under that test, the work-product doctrine protects documents prepared “because of” existing or expected litigation, even if they “are intended to inform a business decision influenced by the prospects of the litigation.” U.S. v. Adlman, 134 F.3d 1194, 1197 (2d Cir. 1998). The dissent argued that, but for the prospect of litigation with the IRS, the workpapers would not have been prepared, making them entitled to protection. The Fifth Circuit does not apply the “because of” test. In U.S. v. El Paso, 682 F.2d 530 (5th Cir. 1982), the court ruled that the work-product doctrine protects only documents that are “primarily motivated to assist in future litigation.” As the dissent in Textron pointed out, this formulation appears quite similar to the analysis that the en banc majority actually employed. If the Supreme Court takes up the case, it may resolve the existing conflict among the circuits. In such a scenario, El Paso might be overruled, resulting in a significant expansion of work product protection in the Fifth Circuit. HN Ron Kerridge, a partner in K&L Gates LLP, handles tax controversies. He is the Secretary-Treasurer of the Tax Section of the DBA. He can be reached at Ron.Kerridge@klgates.com.

Carolyn Wright Appointed as Chief Justice By Jessica D. Smith

overnor Rick Perry appointed Justice Carolyn Wright as the next chief justice of Texas’ Fifth District Court of Appeals. Her term became effective October 31 and will expire at the next general election. She is the first African American to serve as chief justice of any intermediate appellate court in Texas. “Carolyn Wright is the type of judge who makes you proud to be an attorney,” said Ike Vanden Eykel, the Dallas Bar Association’s 2010 president. “She has the respect of the entire bar and dignifies her office by her perforCarolyn Wright mance.” At the time of her appointment, Justice Wright was an associate justice of the Fifth District Court of Appeals, where she served for 14 years. She is a fourth generation Texas who “broke into a new frontier” when she began her law career in private practice in Dallas at a time when there were no African-American attorneys practicing in major law firms. As a young attorney, Ms. Wright was both advocate and mentor to the youth she frequently represented in court. She believes that “justice is as much about the appearance of justice as it is actual fairness.” She also believes that a diverse judiciary greatly enhances the perception that our legal system is fair and just to all. With that in mind, Justice Wright quickly made it her goal to ensure greater diversity in the ranks f the Dallas Judiciary. In 2009, Ms. Wright was awarded the Dallas Bar Association’s MLK Justice Awards, which recognizes a member whose practice, community service and overall life’s experience exemplifies the life and legacy of Dr. Martin Luther King, Jr. In addition, she is a member of numerous associations and foundations where she volunteers her time. HN

Weil Gotshal’s Lend-a-Lawyer Benefits Low-Income Clients by Claire E. Swann

or many, the summer is an opportunity to escape work and enjoy vacation. But for Weil Gotshal & Manges LLP, each summer is an opportunity for one associate attorney to participate in the firm’s Lend-a-Lawyer Program, working to provide increased pro bono legal services to low-income residents in Dallas County. The firm launched its Lend-a-Lawyer program in 2005, the first program of its kind in Dallas. The program is unique because the firm commits to pay one associate attorney’s normal salary and benefits while that attorney works in-house for the DBA’s Dallas Volunteer Attorney Program (DVAP). DVAP is an organization dedicated to increasing and enhancing pro bono legal services to the poor in Dallas through the recruitment, training and support of volunteer attorneys. “The Lend-a-Lawyer program is uniquely situated to assist those pro bono clients from DVAP’s clinics, whom require immediate attention,” said Michelle Alden, managing attorney for DVAP, who also made sure to point out that Weil Gotshal’s dedication to the Lend-a-Lawyer program was “truly exemplary.” This summer, the firm selected Brian D’Amico as their 2009 Lend-a-Lawyer. Mr. D’Amico is a fourth-year associate in the firm’s Complex Commercial Litigation group. A graduate of Southern Methodist University, he stated that as a young lawyer it was important for him to work for a firm, “where a strong pro bono ethic is part of the firm’s culture.” Mr. D’Amico also said that the firm’s creation and continued support of the

Lend-a-Lawyer program reflects its’ commitment to helping the communities in which it practices, “while providing its associates with the opportunity to make a significant personal commitment to the community and gain valuable legal experience at the same time.” While Mr. D’Amico worked at DVAP, he represented low-income clients in a variety of general litigation matters, including probate matters, landlord-tenant disputes, adoptions, divorces and custody cases. He said that by working exclusively on pro bono matters for a three-month period, he was able to see his efforts make a difference. He further explained that the externship allowed him to gain valuable experience, including interviewing clients, preparing pleadings, motion practice, oral arguments, trial work and settlement negotiations. It also allowed him to spend a significant amount of time in the courtroom. Mr. D’Amico believes this experience will benefit his private practice and hopes that he will be able to supervise other associates at the firm in their pro bono efforts, thereby expanding the breadth of pro bono opportunities available to other attorneys in the firm. When asked how participating in the Lend-a-Lawyer program has changed his perspective on the practice of law, Mr. D’Amico stated, “I have learned that we can all make a difference. One lawyer can make a difference handling pro bono representations one client at a time. I will never forget that with a few hours here and there, a lawyer can change the course of a person’s life. I am very thankful for the opportunity.” HN Claire Swann is an associate attorney in the municipal law section of Abernathy, Roeder, Boyd, Joplin P.C. She can be contacted at cswann@abernathy-law.com.

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D ecem ber 2009

Tech Toys for Lawyers – 2010 Edition by Tom Mighell

s the days get shorter, and the air gets cooler (slowly but surely), our thoughts can only be turning to one thing—tech toys! It’s time to forget about our desktops and printers, and start thinking about the ways that technology can bring joy into our lives during the holiday season. This past year we’ve witnessed a literal explosion of new gadgets for good little lawyers—let’s take a look at some that you might want to add to your wish list this year. I traditionally begin this article with a discussion on smartphones. This year is much harder, however, because there are so many good phones from which to choose. Although I still love my iPhone and would highly recommend it to anyone, I have to give equal time to some worthy competitors. My smartphone picks this season include: iPhone 3GS ($299, AT&T, http://bit.ly/30uwt)—the new version includes video recording and voice dialing, but what really sets the iPhone apart is the App Store—as of this writing, over 100,000 applications are available in just about every category imaginable. Blackberry Tour 9630 ($149, Verizon, http://bit.ly/19bRgW)—for those of you who are still Crackberry addicts, the newest Blackberry combines the best features of the Bold and the Curve. This phone has great capabilities for international roaming, as well as Bluetooth, GPS and a nice camera. Palm Pre ($749, Sprint, http:// bit.ly/1FXrI—Palm gets back in the smartphone game with the compact (if

pricy) Pre. The Pre probably has the best multi-tasking capabilities of any device, allowing you to work in different applications at once. HTC Touch Pro2 ($349, T-Mobile, http://bit.ly/zVGrP)—I’m not a big fan

of phones that run on Windows Mobile, but this device is getting some good buzz for its conference call management tools and call quality. Motorola Droid ($199, Verizon, http:// bit.ly/2yEPEB)—this brand-new phone runs on Google’s fantastic Android system, providing a fast Web browser, navigation with Google Maps, and great call quality. There are a lot of great smartphones out there now, so before you run out

Benefits Of Membership In

The Dallas Bar Association Profession *Free MCLE *Headnotes and DBA Online *Peer Assistance *Mentoring Program *Lawyer Referral Service Panel

Social & Community *Pro Bono Opportunities with DVAP *Networking Opportunities *Committee Membership *Family Activities

Office Resources NEW

*ABA Publication Discounts *Affiniscape Law Firm Merchant Account *Discounted Office Supplies *Pictorial Directory

Personal Perks *Bank of America Credit Card *Fitness Center Discounts *Country Club Membership *Clothing Discounts (Brooks Brothers, JoS A. Bank) *Hotel Discounts *Texas Rangers Game Tickets

The Belo Mansion Use of Belo Mansion – Members are encouraged to bring guests for the daily lunch buffet. The Belo Mansion can also be rented for other occasions. Visit www.specialeventcatering.com, or call 214-220-0239.

Visit http://www.dallasbar.org/members/benefits.asp for more information, or call (214) 220-7414.

and buy one, head over to CNet’s Cell Phone Buying Guide (http://bit. ly/3qAPm) for guidance on making the right choice. Next up is the e-book reader. Since Amazon’s Kindle debuted last year, a number of other devices have hit the scene. I upgraded to the Kindle 2 ($259, http:// bit.ly/3qAPm) this past year, and I love it—it’s only a third of an inch thick, and holds over 1,500 books. If you want an e-book reader with a bigger screen, Amazon’s got you covered there, too; the Kindle DX ($489, http://bit. ly/467pub) has an autorotating screen that shows pages in full size. And with the free wireless service that accompanies the Kindle, you can download books wherever you can get a signal, in just seconds.

Amazon’s competition is not far behind, however. In October Barnes & Noble introduced the Nook ($259, http://bit.ly/4nS6pU), which offers

more titles than the Kindle and allows users to “loan” their e-books to other Nook owners. Beware, though—when you loan out a book, you are blocked from using it until the other user “returns” it. Finally, I want to make a few quick recommendations about some hot new technologies you should be trying this time of year: Netbooks. Want to take a computer with you on vacation or just out to the porch, but don’t need that heavy laptop? A netbook looks like a smaller laptop, with just enough power to do the basics—work on documents, check your e-mail and surf the Internet. Best of all, they come at a great price; one of the better-reviewed devices is the Asus Eee 1005HA ($389, http://bit.ly/3Yn9Kp). Logitech Squeeze Box Radios. These radios connect to your wired or wireless Internet to provide access to thousands of Internet radio stations, as well as Pandora, Last.fm and SiriusXM Radio. (Squeezebox Radio, $199, http://bit.ly/Fs5w9; Squeezebox Boom, $279, http://bit.ly/fGxY). HP TouchSmart 600 ($1,199, http://bit.ly/262LAE). Multi-touch technology is all the rage these days— no keyboard necessary! This device is great for the kitchen, providing access to recipes, television, movies and music. But don’t take my word for it—go out and try these gadgets yourself. And no matter whether you find yourself buying a new tech toy this year, or sticking with the toys you already have, be sure to have a HN safe and joyous holiday season. Tom Mighell is a Senior Manager at Fios, Inc., an electronic discovery services provider, as well as a confirmed gadget addict.

De c e mb e r 2 00 9

Classifieds

Dal l as Bar A ssoci ati on l Headnotes 15

December

OFFICE SPACE

Hidden in the shadow of City Place. For Lease ±4,000 ft. second floor of garden office building at 4225 Office Parkway, two blocks east of Central, one block north of Haskell. Recently remodeled. $13.25 full serve + 40% electric on minimum twoyear lease. Some covered parking, nice reception, conference and kitchen. 972367-6540 or pbogner@stoneeagle.com. Executive suites. All amenities bundled at one reasonable rate including conference, kitchen, high-speed Internet, T-1 phone rates, Internet fax, receptionist, 24/7 HVAC, 24/7 access, etc. Beautiful ‘A’ garden building in Richardson directly at the DART stop near 75 Central and Spring Valley. Current tenant roster is largely attorneys. 972-367-6540 or 972367-6527. 3 offices available located Hwy 75 at NW Hwy prime first floor location $500 a month. Month to month or longer term if desired. Call 214-987-0455 or 214-9873300. Three offices available upstairs and 2 offices available downstairs with a sec-

retarial area available downstairs as well. Historic West End building in downtown Dallas is over 100 years old (was first city jail) and has been renovated and is charming. The offices can rent individually or as a package. Contact Sarah Brown, Craig Miley or Tonya Spears at 214.692.8800 or sarah@mileybrown.com or craig@mileybrown.com. High-rise views at low-rise rates. Panoramic views from 63rd floor. Class-A downtown space close to courthouse, AVrated law firm. Access to large conference room, library, kitchen. Secretarial, clerical, reception available. Three offices available with very nice secretarial stations. Negotiable. Call Kay 214-761-6463. Great furnished sublease opportunity in newly constructed Saint Ann Court at 2501 No. Harwood for 2,000 to 3,300 RSF, including 7 exterior offices. This space will be available on January 1, 2010 and will be competitively priced. This is 1st generation space in Uptown and has Elevator Lobby exposure with a Double Glass Door entrance. It is highly finished space with unobstructed views on the 18th floor. For information, contact Ed Nash or

Bill Zei at McLeod-Zei Commercial Real Estate Advisors at 214-523-9093, enash@ mcleodzei.com or bzei@mcleodzei.com. Unfurnished private office LBJ/High Five atrium style building, easy freeway access, small law office, conference room, reception, secretarial area, free parking, free internet, fax, negotiable term & rate, Call Paula 972-385-3952. Office space available in 3-story Victorian house converted to offices in Uptown. Relaxed, yet professional environment with receptionist area, conference room, kitchen, law library, phone lines and internet access. Call Jodi at 214226-2289 for details. North Dallas—Spring Valley & Toll Road: North Dallas law firm has 3 offices and 1 work station for lease. 12th floor of the Centura Building. Granite floors and wood paneling. Full service. Attorneys practice commercial litigation and real estate. Contact Amy Fryar at afryar@lawyerstitleusa.com or Sam Carter at Scarter@ carter-holmes.com. Uptown Knox Street area Garden Offices. 5 large private offices available individually or as suite - up to approx 3100 sq. ft. Exceptional quality, atrium, hardwoods, plantation shutters, French doors, conference room, secretarial, reception, kitchen, work room, private baths. 214219-7771, jhunterlp@sbcglobal.net. Walnut Glen Tower (Walnut Hill/Central) Beautiful, new, spacious offices in Class A building with views of downtown over lake with fountains. Lobby with glass elevators, 18-story atrium, waterfall, trees and true outdoors feeling indoors. Practice in a relaxed yet professional 4-lawyer environment which includes administrative stations, conference room, kitchen, copier, phone system, DSL, reserved garage parking, on-site restaurant and other amenities. Please call (214) 7501600 for details. 1-3 Office Spaces for rent on Historic Downtown Carrollton Square. Great Building. Walking distance to 6 restaurants, next to DART Rail Station opening Dec. 2010. $400 per office. T1 Internet included. Belt Line & I-35. Easy access for clients. 2 miles from George Bush T’pike. 3 miles from LBJ. Ph# 972.960.0000. cindy@oharelawfirm.com. North Dallas Tollway (Galleria area) office space. Hardwood floors and ornate mahogany paneled walls in common areas. One office (approx. 13.5 x 13.5) with builtin mahogany secretarial carrel (located in outer office area). Access to three conference rooms, copier, postage meter and two kitchens. Receptionist services available.

Please call Kristi at 972-934-4100. Up to 5,000 square feet of office space @ Lincoln Centre for lease. Includes use of three conference rooms, receptionist, telephone system, copiers, fax and highspeed internet. Call: Lydia @ 972-4585350 or email: lwitherspoon@stromberglawfirm.com. Northpark/Central Expwy—Law firm has two offices for sublease in Class A building. Best views in town overlooking downtown and Park Cities. Great location with excellent finish out, elevator exposure and easy access to/from Central Expwy. Includes use of large conference room, secretarial space and kitchen. High-speed DSL, telephones, copier/scanner and on-site storage also available. Call 214-292-4202.

POSITION AVAILABLE

FIFTH DISTRICT COURT OF APPEALS PART-TIME RESEARCH ATTORNEY; Salary: $27,500 Closing Date: When Filled. Assists in the preparation of opinions, orders and judgments. Requires superior academic credentials, excellent analytical and research skills; proven writing ability; Licensed Texas Attorney with minimum of four years of legal experience, or two years of legal experience with significant, proven appellate expertise. State of Texas job application required. Send application w/law school transcript and legal writing sample to: Gayle Humpa, Business Admin, 600 Commerce, Suite 200, Dallas, TX 75202. Please call for reasonable work place accommodations. EOE/AA.

POSITION WANTED

15+ year attorney with first-chair trial, firstchair appellate, and general-counsel experience seeks permanent or contract opportunities in Dallas or Frisco areas. Please respond to dallas.lawyer68@gmail.com.

SERVICES

MEXICAN LAW EXPERT — Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues - forum non conveniens, Mexican claims/defenses, personal injury, moral damages, Mexican contract law. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez 210-222-9494 / dlopez@pulmanlaw.com. Process Servers - Texas Court Process Service — Dallas, surrounding northern Texas counties, all Texas, U.S.A. New company comprising former Deputy Constables, Deputy Sheriffs, experienced Agents. LOW rates, FAST service: $65 local; Mention ad- receive $50 rate; Lower, volume-depending. 214-769-4750; service@texcps.com.

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D ecem ber 2009