Dallas Bar Association
HEADNOTES June 2011 Volume 36 Number 6
Focus
Ethics Fest
Focus Labor & Employment Law
Labor & Employment Law
Beware of the Scratch of the Cat’s Paw by Natalie Arbaugh
DBA members attended the annual evening Ethics Fest May 12, with opening speaker Justice Phil Johnson of the Texas Supreme Court. Topics included an ethics panel discussion from the perspective of a first-time judge, legal malpractice from the insurer’s perspective and wellness and ethical problems of impaired lawyers. Pictured are (left to right) DBA President Barry Sorrels, David A. Surratt, Legal Ethics Committee Co-Vice Chair, Justice Johnson, Kelli Hinson, Committee Co-Chair, and Bob Luxen, Committee Co-Vice Chair
Focus
Under the “cat’s paw” theory, an employer may be liable when a decisionmaker who makes the decision to fire an employee or take some other adverse action is influenced by a subordinate’s discriminatory animus. The cat’s-paw theory has received favorable reception in many of the circuits around the country, but the threshold for imputing liability to the employer has varied widely among the circuits. In March, the Supreme Court endorsed the cat’s-paw theory in Staub v. Proctor Hospital, 131 S. Ct. 1186 (U.S. 2011), holding that an employer may be liable when a biased supervisor’s action is the proximate cause of a worker’s termination. Vincent Staub worked for Proctor Hospital until 2004 when he was fired. He was a member of the Army Reserve, which periodically required him to be absent from work. His supervisors were hostile to his military obligations, because his coworkers had to “bend over backwards” to cover his schedule while he was away. Staub was placed on corrective action for
failing to be at his desk as required. In April 2004, his supervisor informed HR that he was away from his desk without notifying his supervisor, in violation of the corrective action. Staub disputed the corrective action, as well as the claim that he did not notify his supervisor. The HR Manager reviewed the accusations and Staub’s personnel file, but did not speak with Staub about them. Relying on the cat’s-paw theory, Staub sued under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which prohibits discrimination on the basis of military service. A jury found in favor of Staub, but the Seventh Circuit reversed, holding that Proctor was entitled to judgment as a matter of law. The court determined that the case could not proceed unless the biased supervisors exercised “singular influence” over the HR manager’s decision to terminate Staub. While the HR manager’s investigation could have been “more robust,” it was enough for the court that the HR manager was “not Continued on Page 12
Labor & Employment Law
The NLRA’s Impact on Non-Union Employers by Monica F. Ramirez and Mark Simon
Many employers mistakenly believe that the National Labor Relations Act (NLRA) does not apply to their businesses because their employees have no established union. But the NLRA applies to almost all private employers regardless of whether there is a union presence. Section 7 of the NLRA grants employees several rights including the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” An employer violates Section 8(a)(1) of the NLRA when they “interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7.” An employee is considered to be engaged in “concerted activities” when the employee acts for the purpose of benefiting a group of employees. The National Labor Relations Board (NLRB) has ruled that non-union employers commit an unfair labor practice by maintaining employee policies or handbooks containing confidentiality policies that restrict the ability of employees to discuss their wages. Other potential NLRA violations found in employee handbooks include requiring an employee to follow the company’s
grievance policy, restricting employees from making negative statements about the employer, and prohibiting employees from soliciting union information or distributing it to other employees. If an employer terminates or disciplines an employee for defying one of these company policies, the employee may bring a charge against the employer. This article addresses how a non-union employer can structure its policies to avoid violating the NLRA. The NLRB begins its inquiry into whether an employer’s policies violate the NLRA by determining whether the rules would reasonably tend to chill employees in the exercise of their Section 7 rights. An employee may charge an employer with an unfair labor practice if the employer maintains overly broad policies that restrict employees from discussing certain matters at work. For instance, an employer violated the NLRA when a supervisor told employees to stop gossiping about a potential sexual harassment claim. Ellison Media Co., 344 NLRB 1112 (2005). Similarly, where an employer’s confidentiality policy could reasonably “chill” an employee’s ability to discuss wages with other employees, an NLRA violation under Section 7 existed even though the employer never enforced
this policy. Cintas Corp. v. NLRB, 482 F.3d 463 (D.C. Cir. 2007). Email is another area where employers may commit an unfair labor practice. For example, an employer violated the NLRA by arbitrarily enforcing its policy of prohibiting employees from using company email for non-job-related solicitations. Guard Publ’g Co., 351 NLRB 1110 (2007). An employer has the right to control its property and prohibit employees from using company email for non-work-related communication. But if an employer allows employees to send non-work-related emails about outside groups or organizations, such as the sale of Girl Scout cookies or beauty products, the employer must allow communication about work conditions or union activity. Essentially, if an employer maintains an email policy, the employer must not discriminate in enforcing that policy. Because of the prevalence of technology in society, many employers now have social media policies in their handbooks. Recently, the NLRB brought a charge against an employer who terminated an employee for posting disparaging statements about her supervisor on Facebook. Am. Med. Response of Connecticut, Inc., NLRB Case No. 34-CA-12576. The NLRB
Inside 3 Penny-Wise Employers Should Not Be Pound-Foolish 5 Why Your Clients Need Anti-Retaliation Training—PRONTO! 7 Social Media and Employment Law
deemed the employee’s posting a protected, concerted activity. The employer maintained a “Blogging and Internet Posting Policy” that barred employees from “making disparaging, discriminatory, or defamatory comments when discussing . . . the employee’s superiors.” The parties reached a settlement in February so the case leaves many unanswered questions. But it is evident that employers who wish to avoid an unfair labor charge should evaluate their social media policies. In drafting its confidentiality policy, an employer should specifically focus on how it operates and not include any language regarding wages or working conditions. Additionally, the employer should simply state that nothing in the employee handbook prohibits employees from discussing the terms and conditions of their employment. All employers should be advised to review their current policies. In most cases, a non-union employer can prevent action by the NLRB by rejecting boilerplate language and carefully drafting its HN employee handbook. Monica F. Ramirez graduated from SMU Dedman School of Law in May. She can be reached at mframirez@smu.edu. Mark Simon, a partner at Scheef & Stone, L.L.P., practices labor and employment law. He can be reached at mark.simon@solidcounsel.com.
NEED BILLABLE HOURS? Join the DBA Lawyer Referral Service Log on to www.dallasbar.org/dallas-lawyer-referral-service or call (214) 220-7499.
2 He a d n o t e s l D a l l a s B a r A s s o ciation
Calendar
June Events
JUNE 3 – BELO Noon
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
FRIDAY CLINICS
“Expert Witness,” Hon. Jim Jordan. (MCLE 1.00)*
JUNE 10 – North Dallas** Noon
“What to do When Someone You Know Gets Arrested,” Kevin Ross. At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy, Suite 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building; food is allowed inside the conference room. Thank you to our sponsor Griffith Nixon Davison, P.C. (MCLE 1.00)* RSVP to kzack@dallasbar.org. “Insurance Coverage for Litigators,” Amy Stewart. (MCLE 1.00)*
July 1 – Belo Noon
“Advanced Arbitration Considerations: The Changing Face of Arbitration in Texas,” Mike Lynn and Mark Whittington. (MCLE 1.00)*
WEDNESDAY, JUNE 1
8:00 a.m. Solo & Small Firm Section “National Solo & Small Firm CLE Success Tour,” Rjon Robbins. (MCLE 6.00, including Ethics 2.00)* Two half-day sessions available. Noon
Employee Benefits/Executive Compensation Section “Employee Benefits and Executive Compensation Issues in Mergers & Acquisitions,” Scott Austin. (MCLE 1.00)*
Public Forum Committee
DAYL Judiciary Committee
5:30 p.m. Bankruptcy and Commercial Law Section “Chapter 11: Plan Feasibility, Cram Down Interest Rates/Terms and Related Case Update,” Paul French, III and Kevin Lippman. (MCLE 1.00)* 5:30 p.m. Bar None Production Company Rehearsals
THURSDAY, JUNE 2 Noon
Construction Law Section “Residential Construction Liability,” Mark McQuality. (MCLE 1.00)*
Judiciary Committee “A Conversation with Civil Court Judges, Hon. Mark Greenberg and Hon. Gena Slaughter.” (MCLE 0.75)*
Family Law Section Board Meeting
DAYL CLE Committee 5:30 p.m. Bar None Production Company Rehearsals
FRIDAY, JUNE 3 Noon
Friday Clinic-Belo “Expert Witness,” Hon. Jim Jordan. (MCLE 1.00)*
Pro Bono Summer Clerks Luncheon (MCLE 1.00)* To register, contact Alicia Perkins at perkinsa@lanwt.org.
11:30 a.m. DAYL Lawyers Serving Children
MONDAY, JUNE 6 Noon
Tax Law Section “Recent Developments in Federal Income Tax,” Ira Shephard. (MCLE 1.00)*
Peer Assistance Committee
Labor & Employment Law Section “ADAA Regulations,” Angelina LaPenotiere and Mike Birrer. (MCLE 1.00)*
Christian Lawyers Fellowship
DAYL Elder Law Committee
2:00 p.m. Law Student Professionalism Program Keynote speaker: Linda Thomas. RSVP to mdilda@dallasbar.org.
DAYL Animal Welfare Committee
Trial Skills Section “Admitted! Creating and Offering Great Trial Demonstratives,” Britta Stanton. (MCLE 1.00)*
CLE Committee
Publications Committee
11:30 a.m. Inspiring Women: Humor & War Stories to Reach the Top of Your Game. Featured panelists: Debbie Branson, Nina Cortell, Harriet Miers, Mary Murphy, Sarah Saldana, Julia Simon and Karen Gren Johnson, moderator. (Ethics 1.00)* RSVP to Judi Smalling at jsmalling@dallasbar.org. Noon
Tort & Insurance Practice Section “Attorney Conduct and/or Activities Which Rise to the Level to be Reported to the State Bar of Texas,” Al Ellis, Robert Hinton and Suzanne Westerheim. (Ethics 1.00)* Government Law Section “The Rhyme and Reason of Public Pension Plans: What Can and Can’t be Changed in Texas,” Gary Lawson. (MCLE 1.00)*
Lawyer Referral Service Committee
Morris Harrell Professionalism Committee
DAYL Networking Program
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group Noon
Family Law Section “Guns and Orders,” Frederick Adams. (MCLE 1.00)*
Friday Clinic – North Dallas** “What to do When Someone You Know Gets Arrested,” Kevin Ross. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy, Suite 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building; food is allowed inside the conference room. Thank you to our sponsor Griffith Nixon Davison, P.C. (Ethics 1.00)*
MONDAY, JUNE 13 Noon
Alternative Dispute Resolution Section “The Amended Ethical Guidelines for Mediators, Texas Supreme Court, Effective June 1, 2011,” Suzanne Duvall and Mel Wolovits. (Ethics 1.00)*
Real Property Law Section “Written in Reverse? Foreclosure Process and Reverse Mortgages in Texas,” Mark G. Torabi. (MCLE 1.00)*
DAYL Foundation Board Meeting
6:00 p.m. DAYL Board of Directors Meeting
WEDNESDAY, JUNE 8
J.L. Turner Legal Association
FRIDAY, JUNE 10
TUESDAY, JUNE 7 Noon
TUESDAY, JUNE 14 Noon
Business Litigation Section “Proving and Defending Lost Profits Damages,” Hon. Marty Lowy. (MCLE 1.00)*
DAYL Equal Access to Justice Committee
House Committee Walk Through
6:00 p.m. Home Project Committee
DAYL Lunch & Learn CLE
DWLA Board Meeting
WEDNESDAY, JUNE 15
5:15 p.m. LegalLine—Volunteers welcome. Second floor Belo. 5:30 p.m. DWLA Professional Attire Program. www. dallaswomenlawyers.org/events.html.
THURSDAY, JUNE 9
MONDAY, JUNE 20 Noon
Noon
6 p.m.
JUNE 17 – BELO Noon
June 2011
Noon
Energy Law Section “Takings,” Ira Shupe. (MCLE 1.00)*
Health Law Section “Constitutionality of Healthcare Reform,” Bruce F. Howell. (MCLE 1.00)*
Library Committee
Pro Bono Activities Committee
Municipal Justice Bar Association
Non-Profit Law Study Group
5:15 p.m. LegalLine—Volunteers welcome. Second floor Belo.
THURSDAY, JUNE 16 Noon
Appellate Law Section “Don’t Be Ugly: Basic Typography and Document Design for the Legal Writer,” Kendall Gray and Robert Gilbreath. (MCLE 1.00)*
Minority Participation Committee
Christian Legal Society
Dallas Gay & Lesbian Bar Association
DAYL Freedom Run Committee
3:30
DBA Board of Directors Meeting
FRIDAY, JUNE 17 Noon
Friday Clinic-Belo “Insurance Coverage for Litigators,” Amy Stewart. (MCLE 1.00)*
Minority Clerkship Luncheon Panelists: Tino A. Ramirez, Kim Askew, Leon Carter, Sean Hamada and Barry Sorrels, moderator. RSVP to bavina@dallasbar.org.
St. Thomas More Society
Transition to Law Practice Committee
TUESDAY, JUNE 21 Noon
Antitrust & Trade Regulation Section “Defending the Criminal Antitrust Case,” Paul Coggins. (MCLE 1.00)*
Franchise & Distribution Law Section Topic Not Yet Available
International Law Section “Treating Offshore Insomnia,” Anthony Daddino. (MCLE 1.00)*
DAYL Elder Law Committee
DAYL Animal Welfare Committee
WEDNESDAY, JUNE 22 Noon
Sports & Entertainment Law Section “Parasitic Innovation and the Rogue Sites Legislation,” Chris Castle. (MCLE 1.00)*
Legal Ethics Committee
DVAP New Lawyers Luncheon. RSVP to Chris Reed-Brown at reed-brownc@lanwt.org.
12: 30p.m. St. Thomas More Society
THURSDAY, JUNE 23
11:30 a.m. Judicial Appreciation Luncheon “Practical Tips for Practicing in the Northern District of Texas: Views from the Bench,” Hon. Jane J. Boyle, Hon. Sidney A. Fitzwater, Hon. Barbara J. Houser, Hon. Jeff Kaplan, Hon. Sam A. Lindsay. Co-hosted by the DBA Judiciary Committee and the Dallas Chapter of the Federal Bar Association. (MCLE 1.00)* Noon Criminal Law Section “Prosecution of Child Pornography,” Camille Sparks. (MCLE 1.00)* Environmental Law Section “Wind Topic,” Becky H. Diffen. (MCLE 1.00)*
FRIDAY, JUNE 24 Noon
Intellectual Property Law Section “Therasense—Discussion of Federal Circuit’s En Banc Decision in Therasense v. Becton Dickinson,” Paul Storm. (MCLE 1.00)*
DAYL Leadership Steering Committee
MONDAY, JUNE 27
11:30 a.m. Securities Law Section “Practicing Law and Wellness: Modern Strategies for Lawyers Dealing with Anxiety, Addiction and Depression,” Sally Crawford and “Trends in SEC Comment Letters,” Charlie Haag. (MCLE 1.50, including Ethics 0.45)* Noon
DAYL Solo & Small Firm Committee
TUESDAY, JUNE 28 Noon
Transition to Law Practice Committee
6:00 p.m. Dallas Hispanic Bar Association
WEDNESDAY, JUNE 29 No DBA events scheduled.
THURSDAY, JUNE 30 Noon
Collaborative Law Section “Innovative Ways to Incorporate InternetBased Negotiation into Your Law and Mediation Practices,” John Lande, Isidor Loeb and Camille Milner. (MCLE 1.00)*
Senior Lawyers Committee
FRIDAY, JULY 1 Noon
Friday Clinic – Belo “Advanced Arbitration Considerations: The Changing Face of Arbitration in Texas,” Mike Lynn and Mark Whittington. (MCLE 1.00)*
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.
June 2 0 1 1
Focus
D al l as Bar A ssoci ati on l Headnotes 3
Labor & Employment Law
Penny-Wise Employers Should Not Be Pound-Foolish by Michael E. Coles
Whether you represent employers or employees, the topic of the economy seems to dominate current conversations. Doubtless, in today’s business climate, penny-pinching is the name of the game. Cutting costs in some cases means losing valuable assets or forgoing potentially rewarding opportunities. Trimming costs, however, should never yield increased expenses. Yet many employers take seemingly simple steps to reduce overhead only to find their “simple solution” actually created a more complex problem. For instance, many employers see staff reductions as an obvious opportunity to reduce costs. Reducing staff, however, rarely reduces work. Instead, employers do more with less. In cutting staff, employers should avoid two common mistakes: first, do not eliminate Human Resources altogether. At first blush, your HR staff looks like a cost center with no associated revenue. HR’s real value comes in managing employee-related issues and (hopefully) avoiding costly litigation. Seeing the real value of HR requires considering HR as a value center, not a cost center. Second, staff reductions pose an additional threat. When employers reduce lower-level staff, remaining managers often gain additional work.
Using managers to perform lowerlevel work could convert these exempt (i.e., no overtime) managers into nonexempt (i.e., overtime eligible) workers. Cutting staff at $15/hour only to convert $30/hour exempt managers into employees who earn $45/hour for overtime hardly sounds like good fiscal management. Converting employees into independent contractors is another common employer cost-cutting measure. Employers pay no employment-related taxes for independent contractors and do not pay for health insurance or other fringe benefits for independent contractors. These reduced costs may seem like attractive and convenient ways to trim a budget. What initially seems attractive and convenient, however, can quickly become burdensome and expensive. When one of those “independent contractors” loses his job and files for unemployment, the Texas Workforce Commission shows no wages reported. Rest assured a wage audit will follow. Pseudo-independent contractors may file claims seeking compensation for denied fringe benefits or overtime compensation. Any one of these scenarios could impose costs in excess of any potential savings; together, these claims could force a company to close its doors. Finally, some companies face cashflow issues and ultimately decide to
Bar None presents
“Bleep My Lawyer Says”
delay payroll. Aside from the obvious snowball-effect of delaying paychecks, this decision exposes the employer to various claims. First, a failure to pay any wages at all constitutes a violation of the federal minimum wage law. Second, failing to pay exempt employees converts those employees into nonexempt employees. Third, failing to pay wages creates a claim that includes a right to attorney’s fees for the aggrieved employee(s). Simply put, today’s economy
demands tightening our belts, both collectively and individually. Employment laws and regulations, however, require that cost-conscious employers exercise care in selecting areas ripe for costcutting measures. A smart employer knows how to save the pennies…and HN the pounds. Michael Coles is a Shareholder at The Coles Firm P.C., represents employers and employees in state and federal courts, and is a member of the DBA Labor & Employment Section. He can be reached at mikec@colesfirm.com.
Mayoral Forum at Belo
On April 26, the Dallas Bar Association’s Public Forum Committee hosted a Mayoral Forum for candidates for Mayor of the City of Dallas. (Left to right) DBA President Barry Sorrels, Ron Natinsky, Mike Rawlings, David Kunkle, Edward Okpa, Shawn Williams, moderator, and Aaron Tobin, Committee Chair.
June 15-18 at the Greer Garson Theatre on the SMU Campus All proceeds benefit the Sarah T. Hughes Diversity Scholarships. To buy tickets, visit www.barnoneshow.com or contact Elizabeth Philipp at (214) 220-7487 or ephilipp@dallasbar.org.
DVAP’s Finest Eric Navarrette
Eric Navarrette is an associate with the Denton office of KoonsFuller. Prior to moving to Dallas, Eric was recognized as the John Crews Pro Bono Lawyer of the Year by the Lubbock County Bar Association and the Legal Aid of Northwest Texas Equal Justice Volunteer Program. He began volunteering with DVAP in January 2010, and has focused his pro bono efforts on compelling family law cases. He strives to continue representing those in need throughout the year. Most recently, he had the good fortune of representing a dedicated father in a custody case. But for DVAP, his client may not have had access to the representation necessary to ensure that he would not be separated from his beautiful daughter. In Eric’s experience, the gratitude pro bono clients express can be characterized by the following quote: “To the world you may be one person, but to one person you may be the world.” – Anonymous. Thank you for all you do, Eric!
ll.M.
Exclusively online in
eMployMent law
Now enrolling for August 2011, Atlanta’s John Marshall Law School offers an innovative, graduate-level program for busy practitioners seeking to develop or strengthen an employment law practice. Tailored to meet the needs of working attorneys, this part-time program offers: Distance Learning Small Cohorts Interactive Coursework
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
Apply online: www.johnmarshall.edu/LLM (404) 872-3593
4 He a d n o t e s l D a l l a s B a r A s s o ciation
June 2011
Headnotes
President's Column
Published by: DALLAS BAR ASSOCIATION
Honoring the Profession by BARRY SORRELS
Summer is here, and school is out in Dallas. To those of you who participated in the 2010-2011 school year as a mock trial judge, mentor, law in the schools presenter, or any other type of volunteer for Dallas Independent School District, thank you. It is very important that our youth have positive experiences with attorneys. I appreciate our members who devoted their time to helping our local students and who have shown these kids what it means to be a lawyer in our community.
E-Mentoring
One of our very successful programs is the E-Mentoring Program. This program is a joint initiative of the Dallas Bar Association, Dallas Association of Young Lawyers, and Dallas Independent School District administered by five directors and 15 committee members. The five directors are Allen Butler, Bria Smith-Hofland, Everett New, Mary Goodrich-Nix, Tracy Wolf and Stephanie Zaleskin, and they work this program year in and year out. We are very lucky to have such passionate and involved directors. Thank you for your hard work. In this program, students from 10 different Dallas ISD high schools are paired with local attorneys. Generally, the students involved in the program are seeking to become the first members of their family to go to college, and the purpose of the program is to provide the students with adult resource who will encourage them to stay in school, graduate, and go on to college. Whenever possible, the E-Mentoring program tries to keep mentors with the same students from year to year. Right now, we have 275 lawyers mentoring 455 students. The primary form of communication between mentors and their students is email, but the best results occur when the mentors take the time to go out to the school periodically to meet with their kids face to face. These positive and well-developed relationships make a difference. For example, at W.W. Samuell High School this year, each and every one of the 24 graduating seniors who participated in the E-Mentoring Program will be attending college in the fall. This is quite an accomplishment for the students and for the mentors who committed themselves to these young men and women. If you would like to join the program and become an E-Mentor or if you are a mentor and would like to serve on the committee, please log on to www. dbamentor.org. The summer is a great time to get on board for the next school year.
Law Students and Summer Clerks
As schools close their doors for the summer, we members of the Dallas Bar will open ours and invite high school and law
school students into our offices for summer clerkships and into the Belo Mansion for a number of special summer events. First, the Pro Bono Activities Committee, chaired by Amanda Todd of Cash America International, Inc., will host the Law Student Pro Bono Luncheon on June 3, 2011 to introduce summer clerks to the pro bono opportunities in Dallas. Then, the Morris Harrell Professionalism Committee, co-chaired by Rhonda Hunter of the Law Office of Rhonda Hunter, and Hon. Douglas Lang of the Fifth District Court of Appeals, will put on the Law Student Professionalism Program on June 9, 2011, to discuss professionalism issues and expose future lawyers to the expectations of the Dallas legal community. On June 17, the Minority Participation Committee, chaired by Tino Ramirez, will host the first of two Minority Clerkship Luncheons to welcome our summer clerks to the Dallas and encourage them to return to Dallas to practice law. Thank you to all our members who have put time into these events for our summer clerks and law students. On a personal level, I really like these programs. I enjoy making contact with law students before they enter the workforce, inviting them to practice law in Dallas, and teaching them how we practice law in Dallas. I want them to will feel welcome here, and I hope they will want to work here when they become lawyers. As the Dallas Bar lays out the welcome mat at Belo for the youth of our profession, I encourage you to do the same thing at your offices and to bring your clerks for these important events.
2011 Academy of American and International Lawyers Reception
I must extend a special thank you to Tino Ramirez of Ramirez & Associates, chair of the DBA International Law Section, all the members of the International Law Section, and Dedman School of Law for hosting a reception on May 19, 2011, for the lawyers participating in the 2011 Academy of American and International Law of the Center for American and International Law in Plano. The reception was attended by a number of our members, law students, and an elite group of international lawyers who are in town for a six-week course which serves as an introduction into American law and process. I am thrilled we were able to co-host this event and bring together lawyers from around the globe and let them know they are welcome in Dallas, Texas, and that the Dallas Bar wants to be a part of the global legal community.
Thank You
Thank you all for your hard work in 2011 to make this year HN special and successful.
Board of Directors Roundup Brad Weber, Chair, called the April 21 meeting to order
and welcomed and introduced guests. He then called on Laura Geisler to introduce Home Project Committee Co-Chairs David Diaz and Brad Johnson. Mr. Diaz reported that the construction of the 20th DBA Habitat for Humanity home was going well and introduced the home owner, Mahogany Buchanan, who thanked the Board for its support. Mr. Diaz then encouraged everyone to participate in Board, Judges and Minority Bar Day at Habitat on May 7. Beverly Godbey then reported on the funding issue for legal services currently pending in the Texas State legislature, explaining that the shortfall may be as high as $23 million. She encouraged the Board to contact the senators and congressmen they know. John Goren, Chair of the Solo & Small Firm Section, reported that his Section has upgraded their webpage and obtained co-sponsorships for several programs. He also stated that membership is up 3 percent. Reporting on the Community Involvement Committee, Paul Herring, Co-Chair, updated the Board on the numerous projects the committee has undertaken for the year. He also stated that the committee is active in Legalline, the Home Project, Jewish Family Services and the International Rescue Committee. Judge Martin Hoffman and Monica Latin gave a brief report on the review and possible updates on the Dallas County Civil District Court Rules. Sally Crawford reported on the Peer Assistance Committee. She stated that the committee continues to present outstanding CLEs and encouraged everyone to watch the newest peer assistance video prepared by the State Bar of Texas. DBA President Barry Sorrels presented the proposed guidelines for the operations of the newly formed Rapid Response Team. After a brief discussion, the guidelines were approved. There being no further business, the meeting was adjourned.
Minority Clerkship Luncheons Friday, June 17, Noon Panelists: Tino A. Ramirez, Kim Askew, Leon Carter, Sean Hamada and Barry Sorrels, moderator
Friday, July 8, Noon At the Belo Mansion For more information or to RSVP, e-mail BAvina@dallasbar.org.
Need someone to help take on the ‘unwanted’ office work?? Let our Summer Law Intern Program help you fill the position – Part-time or Full-time for either 4-wks or 8wks – the choice is yours! We have goal-oriented DISD high school seniors interested gaining law firm experience by assisting you for a nominal fee. Program: June 13-Aug. 5. For more information, contact Amy Smith at asmith@dallasbar.org or (214) 220-7484 or visit www.dallasbar.org/summerlawinternprogram
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: Barry Sorrels President-Elect: Paul K. Stafford First Vice President: Sally Crawford Second Vice President: Scott McElhaney Secretary-Treasurer: Sean Hamada Immediate Past President: Ike Vanden Eykel Directors: Brad C. Weber (Chair), Jerry C. Alexander (Vice Chair), Kim Askew (At-Large), Penny Brobst Blackwell (President, Dallas Association of Young Lawyers), Eric Blue (President, J.L. Turner Legal Association), Hon. Rob Canas ( Judicial At-Large), Wm. Frank Carroll, Rob Crain, Laura Benitez Geisler, Hon. Martin Hoffman, Michael K. Hurst, Monica Latin (At-Large), Karen McCloud, Eunice Kim Nakamura (President, Dallas Asian American Bar Association), Mary Scott, Hon. Teresa Guerra Snelson (President, Dallas Hispanic Bar Association), Diane M. Sumoski; and Michele Wong Krause. Advisory Directors: Chip Brooker (President-Elect, Dallas Association of Young Lawyers, Victor N. Corpuz (President-Elect, Dallas Asian American Bar Association), Lori Hayward (President-Elect, J.L. Turner Legal Association) and Carlos Morales (President-Elect, Dallas Hispanic Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Douglas S. Lang Directors, State Bar of Texas: Talmage Boston, Christina Melton Crain, Beverly Bell Godbey, Robert R. Roby, Frank E. Stevenson, II HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications / Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Advertising: Karla Howes PUBLICATIONS COMMITTEE Co-Chairs: Vincent J. Allen and Timothy G. Ackermann Vice-Chairs: Lea N. Clinton and Natalie L. Arbaugh Members: H. Joseph Acosta, Kevin Afghani, Nelson Akinrinade, Vance L. Beagles, Jason Bloom, Barbara Boudreaux, Jeremy Camp, Noel Chakkalakal, Y.W. Peter Chen, Ryan Cosgrove, Sally Crawford, Weston Davis, Pat Driscoll, David Drummer, Dawn E. Fowler, Jennifer Gajak, Constance Hall, James Holbrook, Dyan House, Victor Johnson, Harold Jones, Adam Kielich, Michelle Koledi, Cherika Latham, Jamie McKey, Patrick McLain, Thomas L. Mighell, Clay Miller, Jennifer Mitchell, Heather Bailey New, Emmanuel Obi, Jenna Page, Kirk L. Pittard, Elizabeth Pletan, Irina B. Plumlee, Laura Anne Pohli, Robert Ramage, Juan Renteria, Bryon Romine, John Roper, Gregory W. Sampson, Mary Scott, Barry Sorrels, Thad Spalding, Paul K. Stafford, John C. Stevenson, Amy E. Stewart, Scott Stolley, Roxana Sullivan, Sherry Talton, Peter S. Vogel, Suzanne R. Westerheim, Elisabeth Wilson, Sarah Q. Wirskye, Sarah Woodell, Angela Zambrano and Viktoria Ziebarth DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications / Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Coordinator: Rhonda Thornton Executive Assistant: Michelle Dilda Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Amy E. Smith Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Lakeshia McMillan, Andrew Musquiz, Jigna Gosal, Tina Douglas Data Entry/Office Support: Patsy Quinn Copyright Dallas Bar Association 2011. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar. org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Associationís sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
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D al l as Bar A ssoci ati on l Headnotes 5
Labor & Employment Law
Why Your Clients Need Anti-Retaliation Training—PRONTO! by Mary Goodrich Nix
The Old Testament’s biblical injunction “Eye for eye; tooth for tooth; …” [Ex. 21:23-25] is one of the first recorded laws against retaliation, meant to curtail excessive vengeance that might have provoked a spiral of retaliatory attacks. Retaliation laws figure prominently in modern employment law. While most practitioners think of unlawful retaliation in terms of Title VII prohibitions, there are a range of retaliation claims contained in a variety of federal and state laws. Both because of the broad reach of retaliation laws and the increased likelihood that your clients will face a retaliation lawsuit, your clients need anti-retaliation training— pronto! To be successful, an employee must typically prove three elements: (1) a “protected activity;” (2) an “adverse employment action;” and (3) the adverse employment action would not have occurred but for the protected
activity. Examples of protected activity include filing a discrimination charge, assisting others in filing a charge, opposing unlawful employment practices by complaining about discrimination and being a witness in an investigation. A common misunderstanding is that a plaintiff who claims retaliation for making a complaint about an employment practice must prove that the conduct at issue was actually illegal. This is not true. The employee must only have a reasonable and good faith belief that the conduct was illegal. And, in March, the Supreme Court ruled in Kasten v. Saint-Gobain Performance Plastics that oral, as well as written, complaints could lead to retaliation. Historically, laws have prevented retaliation against the person who engaged in a protected activity. The Supreme Court recently extended Title VII’s anti-retaliation protection in Thompson v. North American Stainless, LP, holding that adverse actions taken against a person closely associated with
Wrongful Convictions: Causes & Solutions
The Dallas Bar Association’s Criminal Law Section hosted a Wrongful Convictions: Causes and Solutions forum. Attendees included (left to right) DBA President Barry Sorrels, exonoree Billy James Smith, exonoree James Lee Woodard, exonoree Patrick Waller and Gary Udashen, Chair, DBA Criminal Law Section, which hosted the forum.
Mel Wolovits
Helping Parties Negotiate and Resolve
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an employee who has engaged in a protected activity could violate Title VII (termed “Associational Retaliation”). Thompson alleged that he was terminated in retaliation for his fiancé’s EEOC charge against their employer. Notably, the Supreme Court refused to define a “fixed class of relationships” at issue, acknowledging only that termination of a close family member would “almost always” trigger protection, while a mild disciplinary action of an acquaintance would “almost never do so.” Employers commonly believe that retaliation only applies to terminations. It never has. Retaliation laws are very broad in their reach. The Supreme Court held, in Burlington Northern & Santa Fe Railroad Co. v. White, that retaliation includes any materially adverse action by the employer, even where the traditional terms and conditions of employment are not impacted. A few examples of adverse actions include reassignment to a less desirable position or schedule; transfer to another location; litigation conduct (filing suit, counterclaims, asserting certain defenses); exclusion from events which might impact an employee’s professional development or advancement; and even lower performance evaluations. Retaliatory conduct can also be found for actions which occur after termination of the employment relationship. Most retaliation claims turn on evidence of a causal connection between the adverse employment action and the protected activity. Summary judgment is difficult, however, because courts often find a fact issue in favor of the plaintiff. Examples are brief time intervals between the protected activity and the
adverse action; failure to document performance warnings; a sudden surge in performance warnings; failure to follow disciplinary or termination procedures; or treating other employees differently for engaging in similar conduct. Historically, the largest percentage of charges to the EEOC have been race and gender discrimination claims— until 2007, when retaliation claims exceeded the number of gender discrimination claims. Last year, retaliation claims ranked number one, exceeding the number of charges made on any other basis. Consider that there were 7,900 claims of retaliation filed in 1991. In 2010, there were 36,258 retaliation charges filed. A common question by the EEOC: When was the last management training conducted? The EEOC believes that employers who fail to train their managers on anti-retaliation laws are not taking all the steps necessary to prevent it and are showing a reckless disregard for the law (an argument used in favor of punitive damage awards). Your clients must be proactive in establishing training for both management and employees, and in regularly conducting training sessions to keep employees informed. When compared to the increasing risk of a retaliation claim and the defense costs of $25,000-$500,000+ associated with such a claim (not including judgment or settlement), a few thousand dollars on annual training HN would be money well spent. Mary Goodrich Nix is Co-Managing Partner of the Dallas office of Gordon & Rees, LLP. Ms. Nix is Board-Certified in Labor and Employment Law. She can be reached at mnix@gordonrees.com.
6 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
June 2011
Pro Bono Golf Tournament On May 5, more than 100 golfers participated in the 20th Annual Pro Bono Golf Classic at Cowboys Golf Club to benefit the Dallas Volunteer Attorney Program and Legal Aid of NorthWest Texas. With the support of nearly 40 sponsors, early projections show proceeds of more than $40,000 was raised to help provide pro bono legal services to low-income residents of Dallas. Thank you to all of our sponsors! We appreciate you!
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D al l as Bar A ssoci ati on l Headnotes 7
Labor & Employment Law
Social Media and Employment Law by Vanessa Griffith
The use of social media by employees, including social networking sites, microblogs and blogs, wikis, and other online services is prevalent and increasing. As the usage of such services increases, the law is struggling to catch up. In the meantime, as the law evolves, employers and employees will face uncertainties in understanding the legal consequences of social media usage. Employers are particularly concerned that their employees’ online postings could lead to liability for employment claims. For example, could an employee’s off-duty online statements about a co-worker or subordinate result in a harassment claim against the employer? In most instances, the answer is “no.” An employer cannot be held liable for conduct that occurs outside of workplace by off-duty employees unless there is some nexus between the conduct and the work environment. The recent decision in Summa v. Hofstra University, (EDNY Apr. 7, 2011), illustrates this point. The plaintiff brought discrimination and harassment claims against her employer, relying in part on an offensive Facebook posting by an athlete with whom she worked. The court concluded that the posting was unconnected to her work
and would be considered only because it had been reported by the plaintiff to her employer. Even then, the court indicated the posting was of limited relevance. Nonetheless, employers should not assume that off-duty, online harassment could never give rise to a claim, particularly if the offending statements are brought to the employer’s attention or have some connection to workplace. Moreover, such commentary could be relevant to show bias if a decision-maker posts discriminatory comments online, regardless of the circumstances of the posting. Other claims that could potentially be brought against employers based on an employee’s online activity include torts such as defamation, invasion of privacy and, in some states, infliction of emotional distress. Under Texas law, employers could be vicariously liable for such statements, even if unauthorized, if the employee was acting within the scope of his authority, and for the benefit of the employer. In light of these and other related concerns, employers must decide whether to implement a specific social media policy. For most employers, the answer to the first question is a qualified “yes.” Qualified because social media policies are currently under scrutiny by the National Labor Relations
Judicial Appreciation Luncheon “Practical Tips for Practicing in the Northern District of Texas: Views from the Bench” Panelists include: Hon. Jane J. Boyle, Hon. Sidney A. Fitzwater, Hon. Barbara J. Houser, Hon. Jeff Kaplan, Hon. Sam A. Lindsay MCLE 1.00
Board for potential violations of employee rights to engage in concerted activity—a right that extends to employees regardless of whether they are represented by a union. The National Labor Relations Act protects employees’ right to communicate with co-workers about the terms and conditions of employment. The Board has found, for example, that an employee who was fired for calling his manager offensive and vulgar names had engaged in statutorily-protected activity. Consistent with this view, the Board has filed complaints against employers whose social media policies allegedly interfered with their employees’ rights under the NLRA by prohibiting disparaging remarks about supervisors. One of these complaints was recently settled when the employer agreed to narrow the scope of restricted activities in its social media policy. Unfortunately, this means that employers are still without definitive guidance as to the permissible scope of such actions. Employer-implemented social media policies face practical challenges as well. Many employees mistakenly believe that their online activity is both private and protected by the First Amendment and, therefore, should not be regulated by employerissued policies. Of course, regardless of what privacy settings employees use, there is little to prevent postings from being shown, copied, or redistributed by the intended recipients to third parties. Moreover, courts
are increasingly receptive to permitting discovery of online activity, provided the party seeking such information has a reasonable basis for the request. As for the First Amendment, it provides little protection for most employees. The First Amendment restrains only government action and does not restrict private sector employers from taking disciplinary action based on their employees’ online conduct. Moreover, although the First Amendment does apply to public employers, they still have wide latitude to regulate their employees’ online speech provided the content of the speech is not a matter of public concern. Most employee online activity that discusses work-related issues will fall outside this category and will lack First Amendment protection. Although employees may find no recourse under the constitution, a limited number of states (not including Texas) have enacted statutes that prohibit adverse employment action based on an employee’s lawful off-duty conduct. These statutes were enacted primarily to prevent employers from firing employees for smoking, but may protect employees whose online conduct offends their employer but does not other HN wise violate the law. Vanessa Griffith is a partner in Vinson & Elkins LLP who specializes in representing employers in labor and employment matters. She can be reached at vgriffith@velaw.com.
After Hours Rick Kopf
Thursday, June 23, Noon at Belo
RSVP to Kathryn Zack at kzack@dallasbar.org. Sponsored by the DBA Judiciary Committee and the Dallas Chapter of the Federal Bar Association
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OPINIONS — AVA I L A B L E D A I LY ON T E X A S L AW Y E R .C OM Click on “Daily Case Alert” to see the most recent case law or click on “Appellate Court Opinions” to search by practice area.
No Mountain Too High for Rick Kopf by Sarah Woodell
If you thought e-discovery was a challenge, try plowing through 40 miles of snow in the dark at subzero temperatures. Finishing the Grand Traverse backcountry ski race from Crested Butte to Aspen, Colorado, is the latest in Rick Kopf’s series of adventures. Mr. Kopf, a founder of Munsch Hardt Kopf & Harr, P.C., recently finished the Grand Traverse with his brother and teammate, Chris. “We had two goals,” said Mr. Kopf, “the first goal was to survive and the second goal was to finish.” The Grand Traverse follows an intense course of historic mail routes connecting former mining towns. Skiers compete in teams of two and start the race at midnight to minimize the risk of encountering avalanches. Part of the challenge is to navigate through the rugged terrain, so the course is unmarked. “The most challenging part of the race was not knowing where we were,” said Mr. Kopf. “Every time we would look at a hill up ahead and think it was the last one, we would get to the top and there would be another.” To train for the event, Mr. Kopf raced around White Rock Lake on “roller skis,” essentially snow skis on top of skates. He tore through two sets of boots and bindings train-
ing for the competition, “but there was no way to know if I was doing enough.” Finishing the Grand Traverse adds to Mr. Kopf’s collection of adventure stories, including the Hood to Coast Relay in Oregon, climbing Mount Rainer and Mount Baker, the Texas Water Safari (a 260-mile canoe event), five marathons (including Boston) and three triathlons. “I would encourage people to set goals and to strive to reach them,” he said. “The key is having a goal that is a challenge and is something you are going to strive for, whether it’s physical or mental or getting involved in the community.” Mr. Kopf is still very active in the leadership of Munsch Hardt and is currently the firm’s Vice Chairman. He finds that competition translates into his law practice as a real estate attorney and leader. “I don’t consider myself to be a great athlete, but I consider myself to be someone who is very determined and going to put forth the effort to train and compete in an event. In law, there are a lot of hard issues. Sticking your nose to the grindstone and figuring out how to solve the problems is something that HN carries over.” Sarah Woodell is an associate in Financial Restructuring at Akin Gump Strauss Hauer & Feld LLP and a member of the DBA Publications Committee. She can be reached at swoodell@akingump.com.
8 He a d n o t e s l D a l l a s B a r A s s o ciation
June 2011
Texas Lawyer Assistance Program by Ann Foster, Executive Director
Mission: The Texas Lawyers’ Assistance Program (TLAP) continues to fulfill its mandate to provide confidential peer assistance to attorneys, judges and law students whose lives, practices and studies are affected by alcoholism, substance abuse, depression, mental health issues, stress, and similar conditions. TLAP provides assistance to both attorneys and concerned others; crisis intervention; peer support and encouragement; and referrals to appropriate resources, professionals, counselors, therapists and facilities. Staff: Ann D. Foster, JD, LPCIntern, Cameron Vann, JD and Bree Buchanan, JD operate the confidential Hotline (800-343-8527), 24 hours a day, 7 days a week, 365 days a year. Assistance provided: During the 2009-2010 fiscal year (June 1 – May 31), TLAP received over a thousand calls for assistance from attorneys, family members, friends, judges, office staff, law partners and associates. TLAP provided confidential, respectful and discrete assistance to 550 attorneys, 261 concerned others and 44 EAP contacts during the 2009-2010 fiscal year. Support systems: TLAP utilizes the generous assistance of the members of the State Bar of Texas Lawyers Assistance Committee and a statewide network of more than 500 peer assistance volunteers to help attorneys, judges and law students in their recovery and rehabilitation. TLAP works with the Texas Lawyers Concerned for Lawyers organization to produce the annual TLCL Convention where volunteers receive training and education in such areas as substance abuse, other addictive and mental health disorders, interventions, and monitoring. TLAP helps to support 15 lawyer support group meetings around the state, created to provide peer support for attorneys recovering from substance abuse, depression and other mental health related illnesses. TLAP also helps administer the Patrick Sheeran & Michael J. Crowley Memo-
rial Trust, a source of financial assistance for addiction and mental health services for lawyers without financial resources and no health insurance. Educational Outreach: This past year, TLAP staff, SBOT Lawyers’ Assistance Committee members and lawyer volunteers have made over 100 presentations at local and specialty bar association meetings, CLE events, and conferences about the ethical, personal and professional implications of impairments in the legal profession and the confidential help available through TLAP and other resources. In addition to these specific educational outreach opportunities, TLAP continued to reach readers of the Texas Bar Journal and a variety of local bar associations through its publication of articles and advertisements throughout the year. TLAP maintains an active presence on the Internet through its webpage at www.texasbar.com/tlap and receives an increasing number of requests for assistance via this medium. TLAP has distributed over 1500 copies of its 2010 DVD, “Practicing Law and Wellness: Modern Strategies for the Lawyer dealing with Addiction, Anxiety and Depression” to individuals and organizations across the United States and Texas. Monitoring: At the request of the Texas Board of Law Examiners (BLE) and the Chief Disciplinary Counsels Office (CDC), the TLAP staff and Committee have also contacted, recruited and trained attorney monitors to verify compliance of recovery conditions as part of the probationary licensing program of the BLE and the disciplinary probations from the CDC and Commission on Lawyer Discipline. TLAP provides these services to the BLE and CDE while maintaining and protecting confidentiality as required under the Texas Health& Safety Code, Chapter 467. In its work with the BLE and CDC, TLAP does not advocate for or against a lawyer involved in those HN systems.
Want to Know More? If interested, the DBA Peer Assistance Committee can offer a one-hour Ethics CLE for your firm, practice group or organization. For more information, contact Sherri Evans at sevans@dallasbar.org.
Signs of Depression 1. Consistent feelings of sadness or hopelessness 2. Lack of interest in people, things or activities previously enjoyed 3. Increased fatigue or loss of energy 4. Increased restlessness or irritability 5. Noticeable change in appetite or weight 6. Noticeable change in normal sleep pattern 7. Isolation from family and friends 8. Feelings of guilt or worthlessness 9. Diminished ability to remember, think, concentrate or make decisions 10. Thoughts of death or suicide
TLAP: Providing Confidential, Discrete and Respectful Assistance Since 1989 by Cameron Vann, TLAP Attorney
The Texas Lawyers’ Assistance Program is a confidential crisis counseling, peer assistance and referral program that helps Texas law students, lawyers and judges challenged by substance abuse and other mental health issues, including depression, anxiety and stress. TLAP staff, TLAP Committee members and TLAP volunteers are able to help by providing discrete and respectful personal outreach, appropriate referrals and ideas for concrete solutions. TLAP can help save lives and careers. One of the foundations supporting TLAP is its statutory confidentiality under the Texas Health and Safety Code, Chapter 467. In spite of that, many in the legal community fail to seek help or make referrals because of the mistaken belief that “someone will find out” or “calling TLAP will get the lawyer in trouble.’” Not so. By statute all communications with TLAP are confidential. TLAP staff, TLAP committee members and TLAP volunteers sign a confidentiality acknowledgement that details both the policy and statutory requirements concerning TLAP and confidentiality.
As most lawyers know, there are limited exceptions to this confidentiality, such as when an individual is a danger to himself or others, but in 99.9 percent of cases, the information remains confidential. In addition to statutory confidentiality, TLAP staff, committee members and volunteers personally pledge to keep all information confidential and many volunteers also follow the principles of 12-step recovery, established by Alcoholics Anonymous, wherein anonymity and confidentiality are the spiritual foundations of the programs. A TLAP volunteer best summed it up by saying, “We never talk.” TLAP lawyer support group meetings, operating in the major cities in Texas to provide group support for lawyers with substance use and depression issues, also fall under the confidentiality umbrella of TLAP services and adhere to the philosophy of “who we see here, what we hear here, let that stay here when we leave.” In Dallas, there are two lawyer support groups that meet on a regular basis. The Texas Lawyers’ Assistance Program is confidential. Really, it is! You can reach TLAP at (800) 343-8527 (Lawyers’ Hotline) or (800) 219-6474 (Judges’ Hotline).
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D al l as Bar A ssoci ati on l Headnotes 9
DBA State Bar President’s Update by Terry Tottenham
As my year as State Bar President comes to an end, I want to thank you for the opportunity to serve our profession. I am especially proud of the successes our initiatives and programs have achieved this year, and my hope is that they continue to benefit lawyers and the public for years to come.
Practicing Law and Wellness
“I believe there is no more important topic to be considered by the Bar than the mental health of its members.” So wrote a fellow lawyer to me recently. Considering the high-pressure nature of our profession—attorneys are ranked No. 1 on the list of most-depressed occupations—I felt it was imperative to increase the focus on lawyer health and wellness. Under Berry Crowley’s able leadership, we have been able to build awareness of the resources and recovery strategies available to those struggling with mental health or substance abuse problems through our wellness initiative. Texas lawyers are fortunate to have a wonderful resource in the Texas Lawyers’ Assistance Program (TLAP). Since 1989, TLAP has provided crisis counseling and referrals for lawyers, judges, and law students facing substance abuse disorders or mental health issues, such as depression, anxiety and stress. Funded solely by the State Bar, TLAP offers free and confidential support, accessible 365 days a year, 24 hours a day. TLAP services include access to specially trained staff members, individual assistance, employer consultation, peer intervention, law school outreach, referral sources and more. TLAP also introduced a new video this year, Practicing Law and Wellness: Modern Strategies for Lawyers Deal-
ing with Anxiety, Addiction, and Depres- maintain a law practice, job search tech- the State Bar’s Public Information Office sion, to provide practical solutions and niques, or how to improve networking by calling (800) 204-2222, ext. 1800. For the second year in a row, the resources for lawyers wanting to reduce skills. To learn more or to register for a Texas Access to Justice Commission stress and anxiety and to achieve a bet- webcast, visit www.texasbarcle.com. dedicated funds raised at its gala to benter work/life balance. In addition, TLAP efit civil legal services for low-income had the opportunity to make ethics preTexas veterans and their families. This sentations on wellness solutions at more year’s gala, held in Austin on April 26, than 50 advanced CLE courses this year. Since the launch of Texas Lawyers for raised $377,950, more than $100,000 As a result, TLAP reports a significant increase in calls from lawyers and judges Texas Veterans last summer, more than over last year’s total. 30 local bar associations have organized referencing the wellness initiative. pro bono veterans legal clinics, with reguI am also pleased to lar clinics established in all report that both applicaMake your plans to attend this year’s major metropolitan areas. tions and contributions State Bar Annual Meeting in San AntoThe Dallas Bar Association have increased to the Pat nio on June 23-24. We’ve got an excitand Dallas Volunteer AttorSheeran and Michael J. ing event planned for you, with two days ney Program have been at Crowley Memorial Trust, the forefront of this initia- of interesting speakers, a full slate of ethwhich provides financial tive, providing monthly ics courses, and more than 40 participatassistance to colleagues clinics at the Dallas VA ing State Bar Sections. struggling to get back on Our featured speakers include former Medical Center. These their feet from substance Navy SEAL and Medal of Honor recipiclinics wouldn’t be possible abuse or mental health disent Mike Thornton, who will speak on without the many dedicated orders. If you would like to his time as a Navy SEAL and how those volunteer attorneys who help your fellow lawyers experiences relate to the legal profession give their time and expertise in need, I encourage you to help our military veterans and our lives today, and noted historians to contact TLAP Director receive the legal services and authors Douglas Brinkley, Edmund Ann Foster at (800) 343- Terry Tottenham they need. Additionally, the Morris and H.W. Brands. 8527 for more information I hope you will check out all the Annual Texas Young Lawyers Association, led by or to make a donation. Meeting has to offer, from premium CLE For more information about TLAP’s President Jennifer Evans Morris of Dalto fellowship with friends and colleagues. services or to obtain a copy Practicing las, produced two invaluable pamphlets To register online or for more information, Law and Wellness, you can call the TLAP that provide resources for veterans seeking visit www.texasbar.com/annualmeeting. help and lawyers who are assisting veteroffice at (800) 343-8527 or visit www. HN texasbar.com/tlap. There is also a toll- ans. The pamphlets are available through free hotline for judges seeking assistance for themselves or other judges at (800) 219-6474. Many Texas lawyers may be facing other struggles, such as searching for a job or trying to build a law practice in a sluggish economy. For lawyers who are Texas Mental and Safety Code, Section 467 and TLAP’s strong internal unemployed or underemployed, Texasconfidentiality procedures protect you as you get help for yourself or BarCLE offers a free monthly webcast series, “Practice Tips in Good Times and your colleagues. www.texasbar.com/tlap. Bad.” Each one-hour webcast provides practical advice on ways to build and
Texas Lawyers for Texas Veterans
Annual Meeting
TLAP Confidentiality
10 H e a d n o t e s l D a l l a s B a r A s s o ciation
Bar None: Entertaining and Fun! Mark your calendars for June 15-18 for the 26th annual Bar None variety show. Bar None XXVI presents *Bleep* My Lawyer Says. While the show offers an abundance of comedy and side-splitting laughter, Bar None’s serious side is really about creating a cycle of success in the Dallas community. Through the generosity of the Bar None donors who have given financial support, the Dallas Bar Foundation has been able to award numerous scholarships through the Sarah T. Hughes Diversity Law Scholarship program. The scholarship program was established in honor of U.S. District Judge Sarah T. Hughes, a former trustee of the Dallas Bar Foundation, who devoted herself to improving the rights of women and minorities for more than half a century. The DBF selects the recipients of the Sarah T. Hughes Diversity Scholarship, which covers the entire cost of
tuition and fees for several minority students each year. The scholarship is renewed for the second and third years, provided the student remains in good standing. There are many people involved in putting on such a large production—from 26-year veterans Director Martha Hardwick Hofmeister, Choreographer Rhonda Hunter and Producer Tom Mighell to the actors and the numerous behind-the-scenes staff—the cast and crew all have all have one thing in common: a passion for making a difference in our legal community and in someone’s life. And you can make a difference, too: Join us for Bar None June 15-18, and help support the legal community in Dallas. To purchase tickets, visit www.barnoneshow.com. Or contact Elizabeth Philipp at (214) 220-7487 or ephilipp@ dallasbar.org for sponsorship and ticket information.
June 2011
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Dal l as Bar A ssoci ati on l Headnotes 11
DBA 100 CLUB—Get on the LIST! The Dallas Bar Association would like to recognize the following Firms, Government agencies, and corporate legal departments for their support of the DBA along with their commitment to the advancement of the legal profession and the betterment of the community. The DBA 100 Club is a distinguished membership recognition category that consists of Firms and Government agencies with two or more attorneys as well as corporate legal departments that have 100% membership in the DBA. Recognition for 100% support is given to the 2011 DBA 100 Club members in our June, July and August Headnotes and at our Annual meeting in November. Not a DBA 100 Club member yet? This is the perfect time to encourage your newly hired attorneys to join the DBA and take advantage of our many member benefits—such as 400 FREE CLE programs each year, networking opportunities, community projects and many other member benefits as well as the opportunity to qualify for the DBA 100 Club. Please note that the DBA 100 Club is open for renewal annually to every firm. We do not automatically renew a firm’s membership due to changes in firm rosters from year to year. How do you get on the list? To become a 2011 DBA 100 Club member, please submit your request via email and include a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and if you qualify, your firm will be added to the 2011 DBA 100 Club! If we receive your list by June 10th, your firm will be included on the July and August DBA 100 Club recognition list in Headnotes. Send in your list TODAY! DBA 100 Club Members As of May 16, 2011 Law Firms With 6 or More Attorneys Ackels & Ackels, L.L.P. Addison Law Firm P.C. Anderson Tobin, PLLC Andrews Barth & Harrison, PC Ben Abbott, P.C. Blanscet Sutherland Hooper & Hale, LLP Brown & Hofmeister, L.L.P. Burford & Ryburn, L.L.P. Carrington, Coleman, Sloman & Blumenthal, L.L.P. Carstens & Cahoon, LLP Condon Thornton Sladek Harrell LLP Cowles & Thompson, P.C. Curran Tomko Tarski LLP David, Goodman & Madole, P.C. ELROD, PLLC Fletcher, Farley, Shipman & Salinas, LLP Ford, Nassen & Baldwin, P.C. Fulbright & Jaworski L.L.P. Godwin Ronquillo PC Goranson, Bain, Larsen, Greenwald, Maultsby & Murphy, PLLC Griffith Nixon Davison, P.C. Gruber Hurst Johansen Hail Shank LLP Guida, Slavich & Flores, P.C. Hankinson Levinger LLP
Haynes and Boone LLP Hiersche, Hayward, Drakeley & Urbach, P.C. Johnson, Jordan, Nipper & Monk, P.C. KoonsFuller Kroney Morse Lan, PC Little Pedersen Fankhauser LLP Littler Mendelson, P.C. Loewinsohn Flegle Deary L.L.P. Lynn Tillotson Pinker & Cox, L.L.P. Malouf Lynch Jackson & Swinson, P.C. Matthews, Stein, Shiels, Pearce, Knott, Eden & Davis, L.L.P. McCurley, Orsinger, McCurley, Nelson & Downing, L.L.P. McKool Smith P.C. Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. Munsch Hardt Kopf & Harr, P.C. Passman & Jones, P.C. Riney Palter PLLC Scheef & Stone, L.L.P. Sorrels, Udashen & Anton Staubus & Randall, L.L.P. Stinnett Thiebaud & Remington L.L.P. Susman Godfrey L.L.P. Taber Estes Thorne & Carr PLLC The Hartnett Law Firm The Law Offices of Frank L. Branson, P.C. Thompson, Coe, Cousins & Irons, LLP Zelle Hofmann Voelbel & Mason LLP Winstead PC
Law Firms With 2 to 5 Attorneys A. William Arnold III & Associates, P.C. Abigail & Berthoff Fernandes PLLC Ackerman & Savage, L.L.P. Adair, Morris & Osborn, P.C. Aldous Law Firm Alexander Dubose & Townsend LLP Anderson & Brocious P.C. Ashcraft Law Firm Ashley & Laird Atkins, O’Toole & Briner, L.L.C. Badmus Law Firm Barnett • McNair • Hall, L.L.P. Brousseau Graham & Dooley Brown Fox PLLC Busch Ruotolo Simpson LLP Collins Law Group PC Crain Lewis, L.L.P. Daniel Sheehan & Associates, LLP Deans & Lyons, LLP Dedman & Handschuch PLLC Dement, Roach & Stern, PLLC Diamond | Apgar, LLP Edwards & de la Cerda, L.L.C. Eggleston & Chambers, L.L.P. Ellis & Tierney, LLP Fair & Watts, P.C. Hamilton & Squibb, LLP Hance & Wickham, P.C. Holmes Firm PC
Law Day Luncheon
On May 12, local judiciary and attorneys attended the 2011 Law Day Luncheon at which Hon. Sidney Fitzwater, Chief Judge of the U.S. District Court, was the keynote speaker. (Above): Judge Fitzwater, DBA President Barry Sorrels and Tim Mountz, who introduced Judge Fitzwater. (Below) President Sorrels presents Judge Fitzwater with a DBA gift.
Horton & Archibald, P.C. Jameson & Powers, P.C. Johnson Noriega PLLC Johnston H Tobey, P.C. Judd & Associates, PLLC Kapioltas & Forni, PLLC Keane, Fowler & Donohue Kelly, Durham & Pittard, LLP Koning Rubarts LLP Koons Real Estate Law Law Office of Emily Horton PLLC Lewis Brisbois Bisgaard & Smith LLP Lidji Dorey & Hooper Lillard Wise Szygenda PLLC Maris & Lanier, P.C. McShane & Davis, L.L.P. Milby, PLLC Miller and Bennett, Attorneys and Counselors Miller Mentzer, P.C. Mills & Williams L.L.P. Mincey-Carter, PC Mitchell, Goff & Mitchell, LLP Rasansky Law Firm Reese Gordon Marketos, LLP Schuerenberg & Grimes, P.C. Sheils Winnubst, PC Sherman & Yaquinto, L.L.P. Smith, Stern, Friedman & Nelms, P.C. Stacy & Conder, L.L.P. Suggs Law Firm, P.C.
The Bhatti Law Firm, PLLC The Elliott Law Firm, P.C. The Foret Law Firm The Law Offices of Richard A. Gump, Jr., P.C. Tillman Betanzos LLP Tobolowsky & Burk, P.C. Vela | Keller P.C. Walker & Long Winn, Beaudry & Winn, L.L.P. Woodward & Shaw Yarbrough & Elliott, P.C. Zaby & Associates Corporate Legal Departments Alon USA Energy Inc. Austin Industries, Inc. Baptist Foundation of Texas Belo Corp. Contran Corporation Front Burner Restaurants, LP Genesco Sports Enterprises Hexter-Fair Title Company MetroPCS Communications, Inc. Morgan Management Corporation ORIX USA Corporation Tenaska Power Services Co. Government Agencies City of Irving
12 H e a d n o t e s l D a l l a s B a r A s s o ciation
June 2011
5 Tips for Filing an Application for a Post-Judgment Writ of Garnishment by Y.W. Peter Chen
Pursuant to CPRC §63.001(3), a post-judgment writ of garnishment is available if “a plaintiff has a valid, subsisting judgment and makes an affidavit stating that, within the plaintiff ’s knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the judgment.” In light of what appear to be relatively simple requirements, the process often becomes routine and relegated to a form filing. However, Texas courts have long held that garnishment is a summary and harsh remedy, requiring strict compliance with the statutory provisions and related rules. See Beggs v. Fite, 106 S.W.2d 1039 (Tex. 1937). Unlike a writ of execution, a postjudgment writ of garnishment may be applied for and issued immediately after entry of a final judgment. TRCP 657. Thus, post-judgment garnishment actions are often quick-strike opportunities, as a debtor will likely withdraw assets from any suspected target of collection actions. Accordingly, it is vitally important that a post-judgment garnishor get it right the first time
around. The following are five common, though not exclusive, errors to be avoided: 1) Affidavits that merely regurgitate the statutory language are insufficient. The rules require that the affidavit be either based on personal knowledge, “set[ting] forth such facts as would be admissible in evidence;” or based on information and belief, provided “the grounds of such belief are specifically stated.” Often, affidavits merely state that “within the plaintiff ’s knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the judgment.” Unsupported, this assertion is inadequate, and any garnishment premised on such a bald assertion cannot be sustained. Wilson v. HPSC, Inc., 2010 WL 1713998 (Tex. App.—Dallas April 28, 2010, no pet.). 2) In cases where the underlying judgment is against multiple defendants, an affidavit that addresses only one defendant is insufficient. In such cases, “the application for garnishment must state that the garnishment has not been brought to injure either of the defendants and that neither of the defendants has property within the
affiant’s knowledge, subject to execution, within the State, which was sufficient to satisfy the garnisher’s claim.” Kisro v. Heard, 547 S.W.2d 322 (Tex. Civ. App.—Houston [1st Dist.] 1977, no writ). 3) A writ of garnishment that does not issue from the court that issued the underlying judgment is defective. Post-judgment garnishment rights derive from the existence and validity of the underlying judgment; accordingly, proceedings may be “brought in no other court than the one in which the original suit was brought.” King & King v. Porter, 252 S.W. 1022 (Tex. 1923). Note that when instituting garnishment proceedings that arise from a judgment rendered in another state, this requirement necessitates domestication of the foreign judgment under the Uniform Enforcement of Foreign Judgments Act, CPRC chapter 35. 4) A writ served on the garnishee by a private process server cannot be sustained. Only a sheriff or constable may serve the writ of garnishment on the garnishee. Absent proper service, a garnishee “never [has] control or custody of any funds belonging to the judg-
ment debtors.” Moody National Bank v. Riebschlager, 946 S.W.2d 521 (Tex. App.—Houston [14th Dist.] 1997, no writ). Likewise, the trial court does not acquire jurisdiction over any funds until the writ is properly served. 5) Without service on the debtor, a garnishment cannot be sustained. The rules require that a copy of the writ be served on the judgment debtor “as soon as practicable following the service of the writ.” Although this rule does not provide an explicit deadline, a fifteenday delay before serving the debtor does not satisfy the strict requirements of rule 663a. Lease Finance Group, LLC v. Childers, 310 S.W.3d 120 (Tex. App.— Fort Worth 2010, no pet.). In contrast to the requirements for service on the garnishee, the rules allow for service on the debtor as provided in TRCP 21a. And, it is worth noting that “[a]ctual knowledge or a voluntary appearance by the debtor is insufficient and does not waive rule 663a’s requirement of service.” Y.W. Peter Chen is an associate at Munsch Hardt Kopf & Harr, P.C. and an active member of the Dallas Asian American Bar Association. He can be reached at pchen@munsch.com.
Beware of the Scratch of the Cat’s Paw Continued from page 1
wholly dependent on a single source of information and conduct[ed] her own investigation into the facts relevant to the decision.” The Supreme Court reversed, holding that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.” The court refused to adopt a “hard and fast rule” that an employer may insulate itself from liability by showing that the decision maker conducted an independent investigation. The Court did not, however, foreclose the possibility that such an investigation might curtail liability, explaining that “if the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action . . . then the employer will not be liable.” Staub makes clear that its reasoning applies beyond USERRA cases, expressly not-
ing that TitleVII also uses the “a motivating factor” causation standard. The Court’s rejection of the Seventh Circuit’s stringent cat’s-paw standard in Staub largely is a victory for employees. Mere investigation by a decision-maker will not per se insulate the employer from liability. And because the Court’s focus is on intent and proximate cause, one can argue that employers will have a tougher time obtaining summary judgments in cat’s-paw cases. On the other hand, proximate cause is not an easy standard. An employee will still have to show that the supervisor was motivated by discriminatory intent, which resulted in adverse action by the ultimate decision maker. While the Court did not close the door on investigations providing a possible defense for an employer, it now will be left for the lower courts to flesh out the parameters of this standard. Meanwhile, employers can take certain steps to protect themselves from the reach of the cat’s paw. Employers should not merely rubber stamp a supervisor’s request to take an adverse
action, which Staub makes clear will not suffice. A meaningful investigation should be conducted to independently determine whether a supervisor’s actions are justified—one which looks at more than just the personnel file and digs into both sides of the story. Employers need to train their supervisors and HR managers on how to conduct a proper investigation. As always,
employers should also train supervisors on the laws and do everything possible to detect and take steps to eliminate discriminatory animus in the work HN place. Natalie Arbaugh is a Principal in the Litigation and Dispute Resolution section of Fish & Richardson P.C. and a Co-Vice Chair of the Publications Committee. She can be reached at Arbaugh@fr.com.
City of Dallas Mayoral Runoff Public Forum David Kunkle and Mike Rawlings Monday, June 6, Noon at Belo RSVP to sevans@dallasbar.org Sponsored by the DBA Public Forum Committee
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Dal l as Bar A ssoci ati on l Headnotes 13
Get Paid…Faster Than A Speeding Bullet Technology and trends are changing faster than most non-superheroes can keep up with, much less an attorney attempting to run both a law practice and a business. How do you defend yourself against the onslaught of new technology with options changing on a weekly basis? One of the most critical areas where this holds true is how attorneys accept payments, especially in regards to credit card processing. Historically, law firms have not considered themselves as “traditional businesses” but as professionals practicing law. While it is true attorneys have an ethical and sometimes higher calling to uphold justice, in reality, they have to run a successful business first, which involves getting compensated for their work.
Money Talks
With technology, attorneys now have the ability to finally control cash flow through the use of credit cards and electronic payments. By doing so, you gain control of your accounts receivables and ultimately your overall practice. Traditionally, law firms do not perform credit checks or report delinquent clients to credit agencies. By allowing your firm to accept credit card payments, you can effectively shift your receivables to the card-issuing banks. Visa and MasterCard banks have already established the creditworthiness and financial capability of your clients. Credit cards and debit cards are becoming the payment of choice among consumers. As an example; there are an estimated 10,000 payment card transactions made every second around the world. (Source: American Bankers Association, March 2009). Based on these emerging trends, attorneys can no longer ignore the impor-
tance of accepting credit cards, nor the risks associated with bad debts.
The Law Firm Merchant
In the world of merchant accounts, law firms are unique business entities. Unlike a restaurant or retail store, law firms have special considerations when dealing with credit cards and client funds. Whether you are considering accepting credit cards or already offer an electronic payment option, using state-of-the-art technology will ensure you are paid quickly and securely. Some other tips to ensure a successful transition to the modern ways of getting paid as a Law Firm Merchant: 1. Protect your trust and IOLTA accounts. Do not allow your merchant provider access to your trust account. Most merchant agreements will require you to give access to this account in the event of a chargeback or fraud. There are merchant services specific to law firms that correctly protect and safeguard your trust accounts. 2. Communicate to your Clients. Let clients know what your payment expectations are on the front end by including due dates, late fees and payment options as part of your fee agreement. It is much easier to establish these guidelines while your client is new and eager to get started. More importantly, continue to communicate to your clients what payment options you provide by including credit card logos or adding ‘Major Credit Cards Accepted’ to your invoices and website. 3. Use the Technology You Have. Once you make the decision to accept credit cards, be sure to use the payment option that best suit your needs. Depending on your area of practice, and more importantly where you interact with your client there are different choices to accept payment. For exam-
ple, there are many options to accept credit cards with smart phones, including iPads and laptops. 4. Let Your Clients do the Work. By taking time to establish payment options on your website, clients can run their own credit cards. Not only does this provide a convenience to clients, but frees up the time you would normally spend processing credit card payments.
What Checkbook?
Like the Internet, credit cards and other forms of electronic payments have become an integral part of our nation’s commerce and the way many people prefer to pay. In 2009, credit cards officially surpassed paper check transactions in the U.S. Last year, over $60 billion was processed through debit
and credit cards. Perhaps it is time to rethink the way your firm handles billing and collections.
You Don’t Have to be Superman to be a Super Lawyer
It is not necessary to be a website developer or have a degree in computer science to embrace credit card payments, just a smart attorney that knows how to get paid. By using technology as a payment tool, you give clients flexible payment options while allowing yourself to get paid quickly and securely. So, with technology moving at a rate that is “faster than a speeding bullet,” throw on your super-lawyer cape and take back control of your receivables and ultimately your prac HN tice.
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14 H e a d n o t e s l D a l l a s B a r A s s o ciation
In the News
June 2011
June
FROM THE DAIS
Robert F. Brown, Terrence S. Welch and James R. Schnurr, of Brown & Hofmeister, L.L.P., spoke at the University of Texas 2011 Land Use Planning Fundamentals CLE Conference in Austin, Texas. Sally Helppie and Mike Farris, of Vincent Lopez Serafino Jenevein, P.C., were presenters at the Dallas International Film Festival’s “Filmmaking and the Law” panel. Chad Baruch, a solo practitioner, spoke to the appellate judges at 2011 Texas Judicial College in Austin. Brian P. Lauten, of Sawicki & Lauten, LLP, spoke to the Dallas Trial Lawyers Association.
KUDOS
has been appointed by the Commissioners Court to serve on the Dallas County Trail and Preserve Program Board. Richard T. Cheatham, of Holman Robertson Eldridge PC, has been elected President of Dallas Safari Club and elected to the Board of Directors of Friends of the Trinity Strand Trail. James C. Ho, of Gibson, Dunn & Crutcher LLP, received the Outstanding Attorney Achievement Award from the SMU Asian Pacific American Law Students Association, at its recent annual banquet. Michele Wong Krause, of Wong Krause & Associates, has been elected by the State Bar Section Chairs to represent them on the Board of Directors of the State Bar of Texas.
Frank E. Sheeder III, with Jones Day, has been elected president of Health Care Compliance Association.
Christina Melton Crain, solo practitioner, has been appointed by Governor Rick Perry as a Director to the Trinity River Authority of Texas.
Beverly Godbey, of Gardere Wynne Sewell LLP, has been elected Chair of the State Bar of Texas Board of Directors. Michael Lowenberg, with the firm,
Ann Massey Badmus, of Badmus Law Firm, was presented a Distinguished Alumni Career Award by the University of Delaware.
Mock Trial Team Place 5th in Nation
ON THE MOVE
The Dallas office of KoonsFuller, P.C. has moved to 1717 McKinney Ave., Suite 1500, Dallas, TX 75202-1236. Kodie Bennion, Nicole Michael and Aimee Williams have joined Godwin Ronquillo PC. Bennion and Michael join as Associates and Williams joins as a Partner in the firm. Sarah A. Cardwell and Jason A. Copling, of Munsch Hardt Kopf & Harr, P.C., have been named new Shareholders. Lisa Duffee and Melinda Eitzen have
opened the firm Duffee + Eitzen with offices in Dallas and Plano. The Dallas office is located at 4311 Oak Lawn Ave., Suite 600, Dallas, TX 75219, (214) 4169010 and the Plano office is at 6860 N. Dallas Pkwy., Suite 200, Plano, TX 75024, (972) 403-1200. Dale Butler and John T. Mitchell have joined Winstead PC as Shareholders. News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org.
. . . . . . DBA In the News . . . . . .
During the past two months, your DBA has been highlighted in the following media: Arlington Star Telegram: Legalline Colleyville Courier: Legalline
dBusinessNews: Mayoral Candidates Forum, DBA Past President Beverly Godbey elected Chair of SBOT; Americas High School Mock Trial Team Wins 5th in National Competition, Dallas Bar Association To Dedicate 20th Habitat for Humanity House, Dallas Bar Association Offers Lawyer Referral Service Dallas Business Journal: DBA President-Elect Paul Stafford, Law Day Luncheon Dallas Morning News: Mayoral Candidates Forum announcement, past president Harriet Miers, Legalline, Exonoree Forum, Mayoral Candidates article; Law
Day Luncheon
Dallas South News: Mayoral Candidates Forum KERA: DBA President-Elect Paul Stafford North Dallas Gazette: Americas High School Mock Trial Team Wins 5th in National Competition OpenPR.com: Dallas Bar Association Offers Lawyer Referral Service Park Cities News: DBF Fellows Award to Charles Matthews SBOT newspaperclips.com: DBA President-Elect Paul Stafford, DBA Past President Beverly Godbey elected Chair of SBOT; DBA to Dedicate 20th Habitat for Humanity House, Americas High School Mock Trial Team Wins 5th in National Competition
Americas High School of El Paso, Texas, won fifth place in the 2011 National High School Mock Trial Competition. Out of 48 teams, including several from Guam, the Northern Marianna Islands, South Korea and Australia, the Texas team finished fifth—marking the first top-10 finish for a Texas team since 2007.
(Left to right) Participants in the DBA Mock Voir Dire included Kirby Drake, Law Day Committee Co-Chair; Kirk Willis, of Helms & Greene, LLC; Lisa Blue of Baron & Blue; Judge Martin Hoffman, of the 68th Civil District Court; Dick Sayles of Sayles Werbner; DBA President Barry Sorrels; and Michael Lyons, of Deans & Lyons, L.L.P.
DBA Hosts Mock Voir Dire By Kirby Drake
Law Day is a yearly celebration of the U.S. justice system. One of the highlights for the Law Day Committee each year is sponsoring a mock voir dire program for Dallas ISD high school students. This program gives high school students the opportunity to visit the Dallas County courthouse, learn about the jury system and participate in a voir dire demonstration by several accomplished trial lawyers. The mock voir dire was held at the George C. Allen Courts building on May 6, 2011. Approximately 300 high school students from nine different high schools participated. DBA President Barry Sorrels and Hon. Martin Hoffman (68th Civil District Court) each welcomed the participating high school students. Michael Lyons, of Deans & Lyons, L.L.P., then moderated a panel discussion concerning the importance of the jury system. Panel participants included Judge Hoffman, as well as Lisa Blue, of Baron & Blue, Dick Sayles, of Sayles Werbner, and Kirk Willis, of Helms & Greene, LLC.
The high school students were then treated to a demonstration of the voir dire process by several of Dallas’ finest trial lawyers—Ms. Blue; Mr. Sayles; Mr. Willis; Lea Dearing, of Munsch Hardt Kopf & Harr PC; Luis Bartolomei, of Reyes Bartolomei Browne; and Shelley Greco, of Eberstein Witherite LLP. The high school students played roles as members of the jury panel. Judge Hoffman along with Hon. Mark Greenberg (County Court at Law No. 5) and Hon. D’Metria Benson (County Court at Law No. 1) presided over the mock voir dire proceedings. Following the demonstration, the high school students were given an opportunity to ask questions of the lawyers and the judges. The Law Day Committee would like to specially thank Judge Hoffman’s interns, Shay Powell and Caleena Svatek, for their assistance in putting this program HN together. Kirby Drake is a Senior Associate at Klemchuk Kubasta LLP and CoChair of the DBA Law Day Committee. She can be reached at kirby. drake@kk-llp.com.
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Dal l as Bar A ssoci ati on l Headnotes 15
Classifieds
June
OFFICE SPACE
Time is Money! 3 miles from County Courthouse—2 miles to downtown! Quality office space at lower than market prices—$18/sf. Includes electricity and free garage parking. 9 miles to Love Field Airport. Minutes to DART rail, Baylor University Medical Center, Dallas Arts District, SMU, Oak Lawn, West Village. Centrally located on major thoroughfares. Uptown Tower. 4144 N. Central Expressway. (972) 490-7348. 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. Offices available with very nice secretarial stations. Negotiable. Call Kay (214) 761-6463. Downtown Garland office space. $500.00 per month, rent or lease, for 240 square feet. Next to Garland City Hall. Near Downtown Garland Dart rail station, 5th Street Crossing and Richland College Garland Campus. New carpet and paint. Free parking at front door. Normal utilities included. Call Allan at (214) 235-0898. 3 Months Free Rent. Executive or private offices available in Preston Tower. Shared amenities (kitchen, conference room, reception area, bathroom). Secretarial and paralegal assistance available. Near Preston Center, 10 minutes from courthouse. Call (214) 369-1171 or email herbhooks @ aol.com. 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 envi-
ronment which includes administrative stations, conference room, kitchen, copier, phone system, DSL, reserved garage parking, on-site restaurant and other amenities. Why not have quality of life while you practice? Please call (214) 750-1600 for details.
attorney and one experienced family law attorney. Applicants should have substantial portable business. The firm’s compensation formula allows attorneys to keep a substantial portion of their fees. See the firm’s website at www.pamlaw.com. Please reply to spalmer@pamlaw.com.
Office space available within small real estate law firm located at 4054 McKinney Avenue. Shared conference and break room, furniture, copier, DSL & phone equipment are available if needed. No long term commitment and a total monthly rate of $550.00. For inquiry, please call (214) 520-0600.
Our exclusive client, a fast growing national firm, is seeking commercial litigation and corporate partners to join their Dallas and Denver offices. They offer a client centric, collaborative culture and clear differentiation in a crowded market. For a confidential consultation call Marcus Ollig at (303) 825-4456 or visit http://www.targetedlegal.com for a full listing of opportunities at The Advocates.
Free Rent-SMU(Yale)/Central. Partner office and secretarial space. Beautiful 12th floor view of SMU/Bush Library/Park Cities. Professionally decorated, beautifully furnished. Overflow business. Receptionist, elegant conference room, kitchen, DSL, door signage, restaurant, bank, parking, DART. Office $1,095.00/mo., secretarial space $300.00/mo. (214) 369-9888.
POSITION AVAILABLE
Duke Realty, one of the most successful commercial real estate and development companies in the United States, has an outstanding opportunity for a Corporate Attorney in our Dallas, Texas, office. The Corporate Attorney will represent the Company in a broad range of real estate matters and transactions, including leasing, land acquisition, disposition and entitlement; property development; property management issues; lease enforcement; and other duties as assigned. Please apply online at http://www.dukerealty.com/company/careers. Palmer & Manuel, LLP, a 12-attorney firm in Campbell Centre, seeks one experienced estate planning and probate
Save the Date! The DBA Business Litigation Section will present documentary film maker Ken Burns, who will talk about his new PBS series, Prohibition. Wednesday, August 17, 6:30 p.m. at Belo Details to come soon. Visit www.dallasabar.org for the latest information.
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Summer Law Clerks Pro Bono Luncheon
Friday, June 3, Noon at Belo Learn about the many pro bono opportunities in Dallas. Co-sponsored by the DBA Pro Bono Committee and DVAP. RSVP to perkinsa@lanwt.org. (MCLE 1.00).
Health Law Attorney Needed. Experience in healthcare regulatory and payment matters—Medicare, Medicaid, licensing, transactional or criminal law services to healthcare providers. We prefer a problem solver with a disciplined work ethic, excellent writing skills, good attitude who is self-motivated and will participate in marketing & seminar presentations. Please email resume to markskennedylaw@msn. com. Well established Texas law firm with offices throughout the state seeks an attorney with 3-6 years’ experience for its Dallas office. Seeking an academically superior candidate with exceptional research and writing skills for assistance with commercial insurance coverage and bad faith consultation and litigation and related risk management transactional work. Salary commensurate with experience, performance bonus program and full benefits available. Send your resume in confidence to dloyd@dloydlegalrecruiting.com. Trust and Estate Advisor. Lawyer position open at Comerica Bank Wealth Management in Dallas in Estate Administration Dept. Will handle all aspects of settling decedent’s trusts and estates, including legal issues, probate, taxes and distributions. High client contact. Apply online at www.comericajobs.com. The U.S. District Clerk’s Office for the Northern District of Texas is recruiting for the position of Executive Assistant to the Clerk. The district encompasses 100 coun-
ties across north central and west Texas and has 7 places of holding court. The Clerk’s Office headquarters is in Dallas. The Executive Assistant reports directly to the Clerk of Court and serves as the Clerk’s liaison to judicial staff, staff in federal agencies, attorneys, and the general public. The Executive Assistant also assists in formulating and monitoring the strategic plan for the Clerk’s Office, oversees executive records management, assists with planning and executing district-wide court functions, maintains the Clerk’s calendar, and prepares and certifies official paperwork on behalf of the Clerk. Additionally, the Executive Assistant provides staff support to various committees as assigned. See the complete job posting at http://www.txnd. uscourts.gov/pdf/jobs/11-08.pdf. Seven years of progressively responsible experience in a court or professional work environment is required, and a bachelor’s degree is preferred. Salary ranges from $44,169 to $78,883, DOE.
POSITION WANTED
Experienced, Board Certified family law attorney seeks permanent position. Please reply to bienfang@airmail.net.
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