Dallas Bar Association
HEADNOTES November 2015 Volume 40 Number 11
Focus Labor & Employment
Crain Lewis Brogdon Supports Access to Justice with $30,000 Pledge Crain Lewis Brogdon, LLP has donated $30,000 to the Equal Access to Justice Campaign benefitting the Dallas Volunteer Attorney Program. The firm, with a criminal defense and personal injury practice, has supported DVAP since 2004 with over $130,000 in donations to the program. “We represent regular people who are facing major life challenges, and our job is to help them get their lives back on track,” said Rob Crain, one of the firm’s founders. “DVAP’s clients are regular people too who are just trying to support their families, raise their kids, and make a better life for themselves. They hit a stumbling block with their legal problems, and DVAP is there to help.” Chris Lewis agreed: “DVAP is on the front lines and is often the first stop for people when they are desperate for help. Although we handle different types of cases at our firm, our mission is the same—to help people when they need it most.” In the last year, Quentin Brogdon, a 26-year trial attorney, joined the firm as a named partner. Mr. Brogdon, like Mr. Crain, has a personal injury practice and has a long history of helping people recover and move on with their lives. Being on the front lines is something that DVAP is familiar with. The South Dallas Legal Clinic at the Martin Luther King, Jr. Community Center is teaming with clients on the first, second, and fourth Tuesday evenings of the month. DVAP paralegals and volunteers set up shop. A hall, small offices, and break room are ground zero for people needing legal help on everything from a simple divorce to evictions, a fraudulent consumer deal, and a protective order. Although crowded and fast-paced initially, a calm sets over the clinic as one by one clients are screened and interviewed, and given an opportunity to meet with an attorney. DVAP was built on the clinic model and being accessible in the communities where the program’s clients live. Law firms, corporate legal departments, bar association groups, and individuals volunteer to help. Recently, the Dallas Bar Association’s Pro Bono Activities Committee sponsored the South Dallas Clinic with 11 committee members helping out. Pam St. John, an attorney with AT&T Services, Inc. and avid pro bono lawyer, coordinated the effort. “The clinics allow us to immediately impact someone’s life. We are likely the first attorneys they have ever met,” said Ms. St. John. “We have an opportunity to give the applicants a voice, encourage them where needed, give them valuable advice or even closure. We are the front door to start them
(Left to right): Rob Crain, Chris Lewis, Quentin Brogdon
on a meaningful process to have an attorney represent them when they otherwise would not have access to the justice system.” A joint program of the Dallas Bar Association and Legal Aid of NorthWest Texas since 1997, DVAP is the most comprehensive pro bono legal program in Dallas, providing assistance to low-income people on civil matters. While DVAP is known for its work in the family law area, DVAP also helps clients with consumer, housing, landlord-tenant, wills, probate, and expunction cases. In addition to being on the front lines and continuing its successful neighborhood legal clinics and referrals to volunteers, DVAP is also always trying to develop new ways to reach its clients and partner with others to do so. During 2015, DVAP worked on several programs intended to expand and diversify the assistance it provides and be more helpful to the community. One of these programs is DVAP’s new Expunction and Non-Disclosure Legal Clinic. Started in June 2015, the clinic’s goal is to help people who may qualify for an expunction or a non-disclosure of that record. Volunteers provide legal advice, and, if a person meets the legal requirements for obtaining an expunction or order of non-disclosure, he will be referred to a pro bono attorney for representation. Over 80 people have applied for help from this clinic since June. DVAP also provides support to other programs in town, and, this year, teamed up with the W.W. Caruth, Jr. Child Advocacy Clinic and Institute for Children’s Rights at SMU
Dedman School of Law to help grandparents and other relatives obtain conservatorship of children placed in their care by Child Protective Services. Diane Sumoski, the Clinic’s Director, and DVAP staff have worked together to sponsor two continuing legal education pro$600,000+ grams to recruit and train volunteers to represent clients on these cases. The goal is to sta$550,000 bilize the lives of children who have been removed from their $500,000 parent’s homes and placed with relatives. Legal Aid and pro bono pro$450,000 grams across the state are encouraged to collaborate with other $400,000 agencies and the courts. Three years ago, DVAP and members of the Pro Bono Activities Com$350,000 mittee developed a brochure for pro se litigants practicing in the $300,000 Dallas County family courts. Through a grant from the Communities Foundation of Texas, $250,000 20,000 copies were printed and most have been distributed $200,000 through the courts. DVAP is currently planning a reprinting of the brochure, including a Span$150,000 ish translation so that copies can $100,000 be distributed again through the Dallas County Family Courts. $50,0000 DVAP’s work in the community and its ability to branch out are the result of support from Crain Lewis Brogdon and donors like them. Every client, every volunteer, and every clinic is the result of the support DVAP and the Equal Access to Justice Campaign have from the legal community. “DVAP is our pro bono program,” said Mr. Crain. “Whether you donate your time, your money, or both, please HN help.”
To Give: www.dvapcampaign.org.
by Alicia Hernandez
Alicia Hernandez is the director of the Dallas Volunteer Attorney Program and the DBA director of community services. She can be reached at ahernandez@dallasbar.org.
THANK YOU TO OUR MAJOR DONORS | Equal Access to Justice Campaign Kicks Off The Dallas Bar Association and Legal Aid of NorthWest Texas kicked off their annual Equal Access to Justice Campaign benefitting the Dallas Volunteer Attorney Program. A number of Dallas firms, corporations, and friends have committed major support. Please join us in recognizing and thanking the following for their generous gifts to the Campaign*:
PRESIDENT’S COUNCIL ($30,000) Connatser Family Law Crain Lewis Brogdon, LLP
PLATINUM ($10,000) Andrews Kurth LLP Exxon Mobil Corporation Fish & Richardson W. Gary Fowler Haynes and Boone, LLP Jackson Walker L.L.P. KASTL LAW, PC KoonsFuller, PC Mike McKool, Jr. Texas Lawbook The Hartnett Law Firm Vinson & Elkins LLP
CHAIRMAN’S COUNCIL ($25,000) Anonymous DIAMOND ($15,000) Jerry C. Alexander AT&T Services, Inc.
*Donors as of press time.
GOLD ($5,100+) Anderston Tobin PLLC Carrington, Coleman, Sloman & Blumenthal, L.L.P. Dallas Association of Young Lawyers Laura Benitez Geisler Greenberg Traurig, LLP McKool Smith Lewis Sifford Texas Lawyer The Mike and Barbara Lynn Philanthropic Fund Jeff Tillotson Robert L. Tobey Victor & DeNette Vital Joel & Terilyn Winful
Law firms, corporations, and individuals wishing to make a pledge will be prominently recognized beginning at the $5,000 level each month through January. To donate, contact Alicia Hernandez, ahernandez@dallasbar.org. For more information about the Campaign see www.dallasbar.org/dvapcampaign.
8 Pro Bono Awards
Inside
11 Lessons Regarding the Use of Conviction Records in Hiring 13 What You Need to Know About Young v. UPS 17 Most Workers Are Employees: New Guidance From DOL
DBA MEMBER REMINDER RENEW BY DECEMBER 31, 2015!
You may renew your 2016 DBA Dues online starting TODAY! Go to the DBA website and under the Membership tab, click on Renew Membership. Or if you prefer to mail in your payment, log in and select the View your 2016 Dues Statement option to print and mail in your 2016 DBA DUES STATEMENT with payment. Your 2016 DBA DUES must be paid by December 31, 2015 in order to continue receiving ALL your member benefits. Need help with your renewal? Contact Kim Watson, kwatson@dallasbar.org or (214) 220-7414 Thank you for your support of the Dallas Bar Association!
2 He a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2015
Calendar November Events NOVEMBER 6-BELO Noon
FRIDAY CLINICS
“What Corporate Counsel Want You to Know about Handling Their Disputes,” Marty Lowy. (MCLE 1.00)*
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
TUESDAY, NOVEMBER 10 Noon
Business Litigation Section “Recent Developments in the Texas AntiSLAPP Statute,” Jonathan Childers. (MCLE 1.00)*
TUESDAY, NOVEMBER 17
Mergers & Acquisitions Section/ Professionalism Committee “Behavior That ‘Sit-Down Lawyers’ Shouldn’t Stand For,” Jack Balagia, Samantha Crispin, Tino A. Ramirez and Frank Stevenson. (Ethics 1.00)*
Noon
Antitrust & Trade Regulation Section Topic Not Yet Available
International Law Section “Advising Foreign Investors in U.S. Real Estate, or How to Be a Modern Renaissance Attorney,” Martin Camp. (MCLE 1.00)*
Community Involvement Committee
Entertainment Committee
NOVEMBER 13-NORTH DALLAS** Noon
“Negative Social Media: Business Remedies and Statutory Exemptions,” Joshua Sandler. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to kzack@dallasbar.org.
NOVEMBER 20-BELO Noon
“Texas Lawyers Assistance Program: Courage, Hope, Help,” Bree Buchanan. (Ethics 1.00)* Co-sponsored by CLE and Peer Assistance Committees. RSVP to kzack@dallasbar.org.
MONDAY, NOVEMBER 2 Noon
Tax Law Section “Proposed Regulations under JOBS Act, Section 704(c) Layers and Mandatory Basis Adjustments,” William P. Bowers and Patrick L. O’Daniel. (MCLE 1.00)*
TUESDAY, NOVEMBER 3 Noon
Business Litigation/Tort & Insurance Practice Sections “What Lawyers Can Learn From Cowboys,” Pat Long. (Ethics 1.00)* Corporate Counsel Section “Be Prepared: Working to Prevent Work Place Incidents and Conducting Investigations When They Happen,” Paul Nason and Karin Torgerson. (MCLE 1.00)* Morris Harrell Professionalism Committee
Judiciary Committee Topic Not Yet Available
Family Law Section Board Meeting
Pro Bono Activities Committee
DAYL In-House Lawyers CLE. For more information, contact cherieh@dayl.com.
Noon
Employee Benefits & Executive Compensation Law Section Topic Not Yet Available
Solo & Small Firm Section Topic Not Yet Available
Construction Law Section “2015 Case Law Update,” Jeffery Rusthoven. (MCLE 1.00)*
Criminal Law Section “2015 Legislative Update,” Stephanie Luce. (MCLE 1.00)*
WEDNESDAY, NOVEMBER 11 7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group 11:30 a.m. House Committee Walk Through Noon
Family Law Section “Protecting Client Privacy,” Kenneth Raggio. (MCLE 1.00, Ethics 0.50)*
DAYL Elder Law Committee
4:00 p.m. DAYL Swearing-In Ceremony 6:00 p.m. Dallas Hispanic Bar Association
WEDNESDAY, NOVEMBER 18 Noon
Energy Law Section “Lawyer or Landman? Ethical Pitfalls,” Jordyn J. Christian-Gingras and Randy Johnston. (Ethics 1.00)*
DVAP New Lawyers Luncheon. For more information, contact reed-brownc@lanwt.org.
DAYL ACE Committee
Law Day Committee
FRIDAY, NOVEMBER 6
DAYL Lunch & Learn CLE. For more information, contact cherieh@dayl.com.
Non-Profit Law Study Group
Dallas Asian American Bar Association
Noon
Friday Clinic-Belo “What Corporate Counsel Want You to Know About Handling Their Disputes,” Marty Lowy. (MCLE 1.00)*
3:30 p.m. DBA Annual Meeting
MONDAY, NOVEMBER 9
Alternative Dispute Resolution Section “A View Through the Lens: A discussion with 3 experienced Dallas mediators,” Suzanne Duvall, Will Pryor and Budd Silverberg. (MCLE 1.00)*
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
THURSDAY, NOVEMBER 12
Noon
Appellate Law Section “Mandamus Review of New-Trial Orders: The New Frontier,” Scott P. Stolley. (MCLE 1.00)*
Criminal Justice Committee
Collaborative Law Section Topic Not Yet Available
Law in the Schools & Community Committee
DBA Community Service Fund Board Meeting
Publications Committee
Minority Participation Committee
Christian Lawyers Fellowship
Dallas Gay & Lesbian Bar Association
DVAP Veterans Legal Issues CLE “Dallas Veterans Legal Clinic and the Corresponding Legal Issues That Veterans Encounter,” Winifred Cannon, Dustin Mauck, Michael Regitz, Jonathan Rosamond and Ralph Santos. (Ethics 1.00)*
3:30 p.m. DBA Board of Directors Meeting
Peer Assistance Committee
6:00 p.m. J.L. Turner Legal Association
JLTLA Presidential Series CLE Speaker L. Clifford Davis (MCLE 1.00)*
FRIDAY, NOVEMBER 13
Enjoy pictures with Santa, toy trains, clown, magician, face-painting, tap dancing by Class Act, sing-alongs and more!
THURSDAY, NOVEMBER 19
CLE Committee
Real Property Law Section Topic Not Yet Available
Monday, December 14 6:00 to 8:00 p.m. at the Belo Mansion
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
Noon
THURSDAY, NOVEMBER 5 Noon
6:00 p.m. Home Project Committee
Noon
5:30 p.m. Bankruptcy & Commercial Law Section “Recent Developments in Second Lien Financings, Restructurings and Bankruptcies in the Oil Patch,” Bob Albergotti, Autumn Highsmith and Jarom Yates. (MCLE 1.00)*
DAYL Lawyers Promoting Diversity
2:00 p.m. Appellate Law Section “Joint Appellate Seminar-DBA & Tarrant County Appellate Sections.” At the Old Red Musuem. (MCLE 3.00, Ethics 0.75)*
6:00 p.m. DAYL Board of Directors Meeting
WENDESDAY, NOVEMBER 4
Lawyer Referral Service Committee
9:00 a.m. Trial Skills Section Nuts & Bolts Seminar “13 Building Blocks for Becoming a Great Trial Lawyer.” (MCLE 6.50, Ethics 1.00)* Free to DBA members.
5:30 p.m. DBA New Member Reception. Honoring our New DBA Members and Newly Licensed Attorneys. For more information, contact Kim Watson at kwatson@dallasbar.org or (214) 220-7414.
Noon
Friday Clinic—North Dallas** “Negative Social Media: Business Remedies and Statutory Exemptions,” Joshua Sandler. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to kzack@dallasbar.org. Government Law Section “EEOC Mediation Process,” John Ross. (MCLE 1.00)* Trial Skills Section “Discovery and Trial in a Reptile Case,” Randy Johnston, Rod Phelan, Dick Sayles, Linda Turley and Victor Vital, moderator. (MCLE 1.00)*
MONDAY, NOVEMBER 16
Christian Legal Society DAYL Animal Welfare Committee
6:30 p.m. An Evening With David McCullough Benefiting the Sarah T. Hughes Diversity Scholarships. Hosted by the Dallas Bar Foundation. Tickets $300. To purchase, log on to www.dallasbarfoundation.org or call (214) 220-7487.
FRIDAY, NOVEMBER 20 Noon
Friday Clinic-Belo “Texas Lawyers Assistance Program: Courage, Hope, Help,” Bree Buchanan (Ethics 1.00)* Co-sponsored by CLE and Peer Assistance Committees. RSVP to kzack@dallasbar.org.
DAYL Diversity Forum. For more information, contact cherieh@dayl.com.
DAYL Lawyers Against Domestic Violence
MONDAY, NOVEMBER 23 Noon
Computer Law Section “Intellectual Property Issues in Standards Settings Organization,” Roshan Mansinghani. (MCLE 1.00)*
TUESDAY, NOVEMBER 24 Noon
Probate, Trusts & Estates Law Section “Administering Estates with a Surviving Spouse and Multiple Creditors,” Jeff Wolff. (MCLE 1.00, Ethics 0.25)*
Courthouse Committee
American Immigration Lawyers Association
Noon
Health Law Section “The Big “E” in the Big “D”: Ebola in Dallas, One Year Later,” Chris Bowers and Don Knight. (MCLE 1.00)*
Labor & Employment Law Section “Working With Different Federal, State & Local Agencies When Bringing a Discrimination Charge,” Lowell Keig, Robert Lee and Belinda McCalister. (MCLE 1.00)*
WEDNESDAY, NOVEMBER 25
Securities Section “SEC Enforcement Trends regarding Whistleblowers Post Dodd Frank,” Arnold Spencer. (MCLE 1.00)*
DBA Offices Closed in Observance of Thanksgiving Holiday
Senior Lawyers Committee “Ethical Considerations in Closing Down a Law Practice,” John Goren. (Ethics 1.00)*
MONDAY, NOVEMBER 30
Noon
Municipal Justice Bar Association
THURSDAY, NOVEMBER 26 FRIDAY, NOVEMBER 27
DBA Offices Closed in Observance of Thanksgiving Holiday
Noon
DAYL Solo & Small Firm Committee
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.
N ove mb e r 2 0 1 5
Focus
D al l as Bar A ssoci ati on l Headnotes 3
Labor & Employment Law
Independent Internal Investigations: the NFL, Conflicts, & You by James Albert Jennings and Teresa Holland
Employers of all sizes can learn from the storm of public criticism as to both the NFL and its Commissioner, Roger Goodell, regarding the conduct of an allegedly “independent” investigation, well known to the public as the “Deflategate” investigation. Much of the criticism arose as a result of hiring the NFL’s usual outside counsel to conduct the investigation. A great deal of such controversy was directly avoidable. As a general matter, a prior counsel’s relationship and its financial connection with the party sponsoring the investigation can readily be criticized as creating—or at least appearing to create—the risk that a law firm’s personal interests might have affected the outcome of an investigation. Such a perceived conflict is inherent in the situation. No assertion (nor even the reality) of complete integrity on the part of such an investigator eliminates that apparent, perceived conflict. A further, deeper conflict arises when an investigator has given prior advice or been previously consulted on the specific situation being investigated. The perceived severity of the conflict increases if the investigating firm or attorney has assumed the additional role of counselor or advocate for the company at any point in the investigation. Such situations are not unheard of and can result in a potential violation of the Code of Professional Responsibility; legal action against the attorney/firm by the client; and arbitral or judicial suspicion or outright rejection of the results of the investigation. Of course, in the real world, such legitimate conflict concerns are often brushed aside by counsel, whose fear of alienating a long-time or key client
by refusing to do such an investigation as requested by them outweighs better judgment. But seasoned counsel recognize their personal legal relationships and the financial repercussions of advising a client to hire an “outsider” are far outweighed by the great danger, on many fronts, to the client of conducting a non-credible investigation. The independence of internal investigations is a fundamental expectation of parties with an interest in the outcome— whether employees and corporate boards or government agencies and the judiciary. If an investigation even appears to be “conflict tainted,” the credibility of the results will be undermined. A mistrusted investigation is often a far worse outcome than having made no investigation at all—even where one was clearly warranted. To the extent an internal investigation involves an employee, all employees aware of the situation will be keenly interested in fairness. The key is procedural fairness. It is not enough that an investigation be fair; it must be perceived as fair. If not, the results will be a “hard sell” to the employees. Some of these adverse employee-related consequences include severe employee morale problems, a generalized suspicion of the company in a broader range of matters, and inciting employees to look outside the company for redress. Again, any perceived conflict of interest of either the investigation or any particular investigator will materially affect the credibility of the findings. Such a flawed process may even be perceived as a “white wash,” or perhaps even a “witch hunt” designed to satisfy someone within management and to scapegoat some unfortunate employee. Even worse, the result of an investigation that appears less than independent will
often be viewed by employees, and even outsiders, as being a mere tool to exonerate management or its favorites or as an abject cover-up of misdeeds. In particular, judges who doubt an investigation’s findings will also then tend to doubt the credibility of all other evidence the company may produce before them—a reality noted in many a decision. And jurors themselves, who often tend to start out with bias against companies, will be even further prejudiced by any apparent biased findings. All this is bad enough when the investigation at issue is fairly low profile. But in those where media interest is a factor, the stakes grow exponentially, and all bets are off. Major corporations and those in the public eye have even greater concerns with promoting the appearance of a truly independent investigation. Press accounts of a particular situation will undoubtedly emphasize and seize upon any apparent
Tuesday, November 17, 9:00 a.m.-5:00 p.m. at Belo MCLE 6.50, Ethics 1.00 | Free to DBA Members
Speakers: Natalie Arbaugh • Quentin Brogdon • Shonn Brown • Aimee Fagan • Charles Fowler Michael Hurst • David Kent • Ed Krieger • Hon. Marty Lowy • Bill Mateja • Hon. Irma Ramirez Mary Scott • Britta Stanton • Amy Stewart • Robert Tobey • Victor Vital Topics: Discovery 101 • Preparing Your Witness to Testify • Preparing to Take Depositions • Avoiding Malpractice • Dos and Don’ts of Summary Judgment Practice • And More!
Top 100 Attorneys in Texas Top 50 Women Attorneys in Texas (Thomson Reuters 2014-15) Board Certified in Family Law (Texas Board of Legal Specialization )
“...AUBREY IS OUR COACH ON THE FIELD ...” AUBREY CONNATSER HAS EMERGED AS THE GO-TO DIVORCE ATTORNEY for Dallas-area professionals in law, medicine, business and sports and their spouses. The last two years, she has been selected among the Top 100 Attorneys in Texas as well as one of the Top 50 Women Attorneys in the state. “In sports terms, Aubrey is our coach on the field,” says Connatser Family Law attorney Mike DeBruin. “She knows her role as a top litigator, but she also understands how to get the best out of everyone in cases that involve
To retain Aubrey M. Connatser for a family law matter, call 214 306-8441 or email aubrey@connatserfamilylaw.com.
AUBREY M. CONNATSER, PLLC 300 Crescent Court, Suite 270, Dallas, TX 75201 214 306-8441 | connatserfamilylaw.com info@connatserfamilylaw.com
James Albert Jennings is Principal Shareholder at Erhard & Jennings, P.C., and can be reached at jjennings@erhardjennings. com. Teresa Holland is of counsel at the firm and can be reached at tholland@erhardjennings.com.
13 BUILDING BLOCKS FOR BECOMING A GREAT TRIAL LAWYER
AUBREY M. CONNATSER
one attorney or the entire team.”
wrongdoing by the company and even the smallest appearance of a biased investigation will be the headline. These problems can be avoided in large measure by utilizing a truly independent, experienced third party attorney to conduct internal investigations. Someone who has no prior relationship with the business and its executives and no interest in the outcome will lend substantial credibility and perceived procedural fairness to the investigative results. Why even create the potential for a perception of a conflict of interest? Hire an experienced independent attorney to investigate a matter any time a conflict HN could be perceived.
4 He a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2015
Headnotes
President's Column
Big Shoes to Fill Brad Weber
DBA Executive Director Cathy Maher recently announced her plans to retire at the end of next year. For a DBA President, this is the news that you hope to never hear. Cathy is the equivalent of a Tony Award winning Producer for a successful Broadway show. She works behind the scenes making sure that every DBA event and program runs smoothly and all the actors on stage look good. She makes our jobs easy. Cathy joined the Dallas Bar Association back in 1978 when she was hired as an interviewer for the DBA’s Lawyer Referral Service. Over the next 37 years, Cathy successfully worked her way up through the ranks of the Association—first as the Membership Assistant, then as the Director of the Dallas Bar Foundation, later as the Associate Executive Director, and finally as the Executive Director beginning in 1994. While serving as Executive Director, Cathy worked day-in and day-out with the past 21 DBA Presidents. The Dallas Bar Association has come a long way during Cathy’s tenure, and much of its success is directly attributable to her. When she started with the DBA, its small, cramped offices were located in the Adolphus Hotel. A year later the Association moved its headquarters to the historic Belo Mansion. By the year 2000, the DBA’s membership had grown dramatically and it was in desperate need of more space. Cathy helped lead the $14 million campaign to build the new Pavilion, which opened in 2003. Today, because of the Belo Mansion and Pavilion, the DBA is able to keep its membership dues low and provide over 400 free CLE programs for its members each year. Cathy’s leadership as Executive Director also has contributed to the creation of several new DBA sections, committees, and programs. Those include the award-winning Law Student Professionalism program, Appealing to the Public program, Law Jam, Transition to Law Practice program, and DBA Trial Academy, just to name a few. In addition, under her guidance, the Dallas Volunteer Attorney Program was created as a joint venture between the DBA and Legal Aid of Northwest Texas. Through the collaborative fundraising efforts of these two organizations, over $1 million was raised last year alone for the support of DVAP and its mission of providing pro bono legal services in the Dallas area.
SAVE THE DATE
2015 new DBA members and newly licensed attorneys are invited to join us for the Dallas Bar Association Fall Fiesta Thursday, November 12, 2015 5:30 - 8:00 p.m. | The Belo Mansion Complimentary food and beverages Music and raffle drawings RSVP today, membership@dallasbar.org.
Law firms wishing to be listed as a sponsor, Please send request to Kim Watson, kwatson@dallasbar.org or (214) 220-7414.
Now that Cathy has announced her plans to retire, I often hear from our members that “those are some big shoes to fill!” I have seen Cathy’s shoes, and in her defense, they are not that big. Figuratively speaking, though, Cathy’s shoes will be hard to fill. She has the respect and admiration of the entire DBA staff and the many DBA members who have worked with her over the years. Upon hearing the news about Cathy’s planned retirement, former DBA President Sally Crawford commented that “You have enriched so many lives through your service to the Bar, especially the lives of the DBA Presidents.” Those sentiments were shared by former DBA President Harriet Miers, who thanked Cathy “for all you have accomplished and many wonderful memories you have helped create for so many,” and by former DBA President Frank Stevenson, who said, “You have set the standard for bar executives.” Preparing for “life after Cathy” already has begun. In her typical farsighted approach to things, Cathy assembled a detailed notebook containing a timeline and suggestions for the search process and the transition phase between Cathy and her successor. The first step in the process is the appointment of a Search Committee, which I will announce in November. That committee will be composed of current DBA officers, former DBA Presidents, and other respected bar leaders. One of the first tasks assigned to the committee will be the establishment of job qualifications that the new Executive Director should possess. Although the details of the search process are still being finalized, it is likely that the search for Cathy’s successor will be national in scope. The position of Executive Director for the Dallas Bar Association is highly regarded among executives of nonprofit organizations and should draw the interest of many qualified candidates, including some who are local. Ideally, the new Executive Director will be announced in August 2016 to allow for a sufficient transition period before Cathy officially retires. I am hopeful that the new DBA Executive Director will possess the same work ethic, organizational skills, friendly personality, and leadership ability that Cathy has displayed over the years. As one DBA officer recently remarked, “we just need to clone Cathy.” And whoever ultimately is selected for this position, I hope that the person has large feet, because those certainly are HN some big shoes to fill.
Published by: DALLAS BAR ASSOCIATION 2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873
The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.
OFFICERS President: Bradley C. Weber President-Elect: Jerry C. Alexander First Vice President: Rob D. Crain Second Vice President: Michael K. Hurst Secretary-Treasurer: Victor D. Vital Immediate Past President: Scott M. McElhaney Directors: Wes Alost, A. Shonn Brown, Jonathan Childers (President, Dallas Association of Young Lawyers), Laura Benitez Geisler (Chair), Hon. Harlin “Cooter” Hale (Judicial At-Large), Hon. Martin Hoffman, Krisi Kastl, Michele Wong Krause, Monica Lira (President, Dallas Hispanic Bar Association), Bill Mateja, Karen McCloud, Cheryl Camin Murray (At-Large), Courtney Barksdale Perez (At-Large), Bill Richmond (President, Dallas Asian American Bar Association), Ebony Rivon (President, J.L. Turner Legal Association), Mary Scott, Diane M. Sumoski, Robert L. Tobey (Vice-Chair) and Aaron Tobin Advisory Directors: Stephanie Gause (President-Elect, Dallas Association of Young Lawyers), Rocio Cristina Garcia (President-Elect, Dallas Hispanic Bar Association), Emmanuel Obi (President-Elect, J.L. Turner Legal Association), and Monika Sanford (President-Elect, Dallas Asian American Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Wm. Frank Carroll, Leon Carter, John Jansonius, Florentino A. Ramirez and Scott Stolley 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 Display Advertising: Deni Ackerman, Annette Planey, Jessica D. Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Jared Slade and Meghan Hausler Vice-Chairs: Paul Clevenger and Keith Pillers Members: Timothy Ackermann, Jerry C. Alexander, Vincent Allen, Natalie Arbaugh, Jody Bishop, Lisa Tomiko Blackburn, Jillian Bliss, Jason Bloom, Andrew Botts, Lance Caughfield, Chhunny Chhean, Stephen Clarke, Shannon Conway, Joel Crouch, David Dummer, Christopher Elam, Alexander Farr, Daniel Felz, Dawn Fowler, Robin Ghio, Basheer Ghorayeb, Kimberly Gonzalez, Andrew Gould, Susan Halpern, Jeremy Hawpe, Zachary Hilton, Ezra Hood, Mary Louise Hopson, Michael K. Hurst, Ashley Johnson, Amanda Kelley, Sara Krumholz, Margaret Lyle, Thomas Maddrey, Orly Mazur, Jodi McShan, Ethan Minshull, Paige Montgomery, Jessica Nathan, Jeffrey Novel, Eugene Olshevskyy, Mason Parham, Aimee Pingenot, Kirk Pittard, Laura Anne Pohli, Lisa Prather, Michelle Reed, David Ritter, Carl Roberts, Lantis Roberts, Eugenie Robichaux, Joshua Sandler, Chandrika Shori, Micah Skidmore, Stefan Smith, Bradley Smyer, Thad Spalding, Elizabeth Stanley, John Stevenson, John Ting, Paul Tipton, Pryce Tucker, Peter Vogel, Tracey Wallace, Brad Weber, Philip Worley 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 Director: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Avina, Marcela Mejia Law-Related Education Coordinator: Melissa Garcia Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Monique Scott, Zach Watkins Program Assistant: Patsy Quinn Secretary: Ellie Pope Copyright Dallas Bar Association 2015. 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 Association’s 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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Focus
D al l as Bar A ssoci ati on l Headnotes 5
Labor & Employment Law
FCRA Compliant Pre- and Post-Employment Background Checks by Ann Marie Painter
Many employers have discovered the hard way that the federal Fair Credit Reporting Act (FCRA) concerns more than just credit reporting. It governs the manner in which employers gather and use pre- and post-employment background checks when the employer pays a third party to prepare them. Class actions alleging FCRA violations with regard to background checks have been on the rise. Most of these class actions focus on two issues: (1) failure to give proper notice to, and obtain authorization from, the individual to conduct the background check; and (2) failure to give the appropriate notices when the employer plans to take and then does take an adverse personnel action based, in whole or in part, on the information in the background check. Both kinds of claims can be avoided easily. What is commonly referred to as a background check is a consumer report (CR) under the FCRA. A CR is “any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer’s eligibility for . . . employment purposes.” See 15 U.S.C. § 1681a. A “consumer reporting agency” (CRA) is “any person which, for monetary fees, dues, or on a cooperative nonprofit
basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.” In order to obtain a CR, an employer must have a “permissible purpose.” An “employment purpose” constitutes a permissible purpose. “Employment purposes” include evaluations of the consumer for “employment, promotion, reassignment or retention as an employee.” However, certain reports of employee misconduct or investigations into compliance with an employer’s rules or policies are excluded from this definition. Note that the regulations construe the notion of employment broadly, which means that this definition may cover independent contractors. Once these requirements are met, the employer may obtain a CR to use for employment decisions. Many employers make mistakes at the disclosure and authorization stage. The disclosure and authorization must be in a standalone document. It may not be incorporated into an employment application or other document. Another common mistake is to include verbiage in the standalone document that is not prescribed by the regulations, such as a release and waiver of claims by the individual who is the subject of the CR. The next stage at which employers make mistakes is when the CR reveals information that is the basis for an adverse personnel action. Before the employer may take the adverse action, whether it be declining to hire or terminating employment, the employer
must provide a notice that advises the individual, among other things, of this fact, provides information about the CRA, and is accompanied by copies of the CR and the “FCRA Summary of Rights” document. The purpose of this requirement is to allow the individual to correct any errors in the CR before the employer takes the adverse action. Many employers skip this step altogether or collapse it into the actual notice of the adverse action itself. Either way, the omission is a violation of the statutory requirements. There is no bright-line rule about the number of days that must pass after an employer has given pre-adverse action notice and before the adverse action is taken, but it has been suggested that as few as five business days may be acceptable. What is reasonable will vary depending on the circumstances. Damages are available to a party about whom a CR has been generated
without proper disclosure and authorization or about whom an adverse employment action has been made without the proper pre-adverse action and adverse action notices. Damages depend on whether the noncompliance was negligent or willful. For negligent noncompliance, a claimant may recover actual damages plus reasonable costs and attorneys’ fees. For willful noncompliance, a claimant may recover actual damages or statutory damages up to $1,000 plus punitive damages and reasonable costs and attorneys’ fees. “Willfulness” in this context is a knowing or intentional violation or a violation in reckless disregard of the law. Claims must be brought two years after the date of discovery of the violation or five years after the date of HN the violation.
Spanish for Lawyers: Sign Up Now!
Professionalism Tip
10-Week Course Spring 2016 | Cost: $180 January 12-March 22, 2015 For more information, contact Yedenia Hinojos at yhinojos@dallasbar.org or (214) 220-7447
Ann Marie Painter is a partner at Perkins Coie LLP. She may be reached at ampainter@perkinscoie.com.
I will not engage in any conduct which offends the dignity and decorum of proceedings. –Excerpt from the Texas Lawyers Creed Find the complete Creed online at http://txbf.org/texas-lawyers-creed/.
6 H e a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2015
Emeritus Members The Dallas Bar Association honors members who have contributed to the legal profession for 50 or more years. All 50 year members are invited to attend the DBA Annual Meeting on Friday, November 6, 2015 at 3:30 p.m. to be recognized. To RSVP, please contact Mary Ellen Johnson at (214) 220-7474 or mjohnson@dallasbar.org. Licensed in 1939 Lawrence W. Anderson Bernard Hirsh Licensed in 1941 Royal H. Brin, Jr. Licensed in 1942 Frank Ripy McWhorter Licensed in 1946 James R. Alexander Robert E. Rain, Jr. Jean L. White Licensed in 1947 Joseph W. Geary George Hopkins John F. Wilson Licensed in 1948 George Ashley Thomas T. Barnhouse H. Gene Emery Florence K. Fletcher Lionel E. Gilly Paul Harkey Licensed in 1949 Jack E. Brady William N. Hamilton Harold L. Hitchins Cecil G. Magee Hon. Ted Z. Robertson Licensed in 1950 George C. Anson Albert L. Bartley, Jr. Harold B. Berman D. Louise Boucher Hon. Dean M. Gandy Charles C. Garner Henry Gilchrist Wayne Hancock William C. Herndon H. Louis Morrison, Jr. A.W. Patterson, Jr. Ralph W. Pulley, Jr. F.W. Reese Robert G. Vial Licensed in 1951 Ramsey Clark M. Wayne Cummings Zack E. Mason Joseph W. McKnight John L. Roach Hon. Thomas B. Thorpe H.E. Walker, Jr. J. Ralph Wood, Jr.
Licensed in 1952 Robert F. Ashley John H. Chiles James E. Coleman, Jr. Vester T. Hughes, Jr. Jerry N. Jordan Graham R.E. Koch William (Bill) H. Tinsley James A. Williams Richard S. Woods Licensed in 1953 Joe Don Denton Roy W. Howell, Jr. Hon. James W. Mast William R. McGarvey Licensed in 1954 Frederick H. Benners Paul M. Brewer Hon. Ben F. Ellis Charles W. Hall John M. Hamilton Harold F. Kleinman J. Redwine Patterson Benjamin E. Pickering Allen P. Schoolfield Maxel (Bud) Silverberg James C. Tubb John R. Wright Licensed in 1955 Hon. Ted M. Akin Dennis G. Brewer, Sr. Charles D. Cabaniss Eugenio Cazorla Thomas N. Griffith Lawrence P. Hochberg Jack Pew, Jr. Forrest Smith Robb Stewart Lee D. Vendig Licensed in 1956 Benjamin R. Collier John L. Estes Frank Finn Merle R. Flagg Richard A. Freling Joseph J. French, Jr. Roger A. Hansen Frank S. La Barba, Jr. Marvin L. Levin Wilmer D. Masterson Elton M. Montgomery Hobert Price, Jr. Sidney Stahl Claude R. Wilson, Jr. Gerry N. Wren Licensed in 1957 Barton E. Bernstein
William F. Bowles Bill H. Brister Don T. Cates Frank W. Elliott Jerry C. Gilmore V. Rock Grundman Ivan Irwin, Jr. Tom James William C. Koons Edward J. Lynch Bernard C. McGuire Kenneth J. Mighell Harold E. Moore Neil J. O’Brien William D. Powell Ronald Roberts Merlyn D. Sampels J. Richard Sanderson Clay C. Scott, Jr. Carl A. Skibell Jason B. Sowell, Jr. Hon. Milton Sturman Robert H. Thomas Louis J. Weber, Jr. Licensed in 1958 Walton P. Bondies, Jr. R.W. Calloway Leland W. Carter Robert C. Cox Robert Edwin Davis Hon. John M. Duhe F. Lynn Estep, Jr. Robert (Jim) Foreman Ben A. Goff John W. Hicks Jr. Bill C. Hunter Jerry Lastelick John E. Lawhon John T. McCully John H. McElhaney Robert H. Power William T. Satterwhite Harry R. Shawver, Jr. Dan W. Stansbury Jack R. Wahlquist Emory L. White, Jr. Barney T. Young Norman A. Zable Licensed in 1959 Tom A. Blakeley, Jr. Allen Butler Durwood D. Crawford Marshall J. Doke, Jr. Robert A. Fanning A.D. “Gus” Fields Frederick W. Fraley, III Larry L. Gollaher James J. Hartnett Jack W. Hawkins
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Norman P. Hines, Jr. Herbert L. Hooks Richard A. Lempert Aglaia D. Mauzy George David Neal Donald F. Padgett Burton H. Patterson Paul L. Salzberger Edwin M. Sigel Joe A. Stalcup Charles M. Supple Robert C. Taylor Licensed in 1960 E. Karl Anderson Anthony Atwell Lester V. Baum P. Oswin Chrisman Edward A. Copley David S. Curtis Alan D. Feld Paul L. Fourt Lawrence W. Jackson Leo J. Jordan, Sr. John L. Lancaster, III Joe H. Loving Jr. Hon. Robert B. Maloney Hon. Pat McDowell Hon. Robert C. McGuire Hon. Don Metcalfe Robert L. Meyers, III Robert F. Middleton Hon. Robert O’Donnell Jerome L. Prager William M. Ravkind Cecil A. Ray, Jr. Rust E. Reid James B. Sales Malcolm L. Shaw C. Freeman Stallings, Jr. Donald A. Swanson, Jr. Arthur I. Ungerman William D. White, Jr. Licensed in 1961 Arch A. Beasley, Jr. John F. Boyle, Jr. William T. Burke, Jr. Roy C. Coffee, Jr. Jim E. Cowles Albert B. Fenton John A. Gilliam David G. Glickman Jay Rodney Kline Larry M. Lesh Warren C. Lyon Clark J. Matthews, II Donald C. McLeaish Stan McMurry John W. Payne Paul W. Phy Virgil E. Rogers James T. Rudd Miles L. Schulze Wade C. Smith Simeon R. Trotter
Paul B. Underkofler Fred D. Ward Christopher M. Weil Ben B. West Licensed in 1962 Frederick P. Ahrens Reyburn U. Anderson Bernard B. Athey, Jr. Bruce Baldwin Charles G. Barnett John H. Boswell Joseph T. Cain George C. Chapman George C. Dixie Robert E. Edwards Raymond J. Elliott Christie S. Flanagan Houston E. Holmes, Jr. A. Holt Irby Jimmy D. Ivy Tim K. Kirk Hon. William F. Kortemier, II David R. Latchford O. Fred Lohmeyer Donald J. Malouf Lawrence R. Maxwell, Jr. Hon. John P. McCall Frank E. McLain William H. McRae Curtis W. Meadows, Jr. William C. Roberts, Jr. Norman R. Rogers John Q. Stilwell, JD, PhD Mark A. Troy James A. Walters Licensed in 1963 Douglas Adkins Joseph E. Ashmore, Jr. Buford P. Berry Jerry W. Biesel Kenneth E. Blassingame John Willard Clark, Jr. George W. Coleman A.B. Conant, Jr. William (Bill) P. Davis James A. Donohoe Lawrence B. Gibbs Major Cyrus Ginsberg Jay L. Gueck R, Brooks Hamilton William M. Hayner Ronald M. Holley Joe T. Hood Bernard P. Malone P. Mike McCullough Walter E. (Rip) Parker Harry M. Roberts, Jr. Michael E. Rohde Edward V. Smith, III G. Dennis Sullivan Roy J. True J. Glenn Turner, Jr. Robert W. Turner Bill R. Womble
Licensed in 1964 James F. Bowen Charles Lee Caperton Ernest Conner Dale F. Crowder James W. Deatherage Jim F. Evans Ernest E. Figari Lawrence Fischman John M. Gillis Kenneth R. Glaser Charles (Mickey) M. Hunt Darrell E. Jordan William D. Jordan Paul E. Lokey Donald J. Lucas John H. Marks Douglas D. Mulder Morton D. Newman Thomas W. Oliver Charles W. Spencer Joe H. Staley Peter M. Tart Maridell Templeton Hon. Howard Tygrett Jim A. Watson John H. Withers Licensed in 1965 Scottie H. Ashley, Jr. G. Ward Beaudry Bruce J. Caldwell, Jr. Dennis R. Cassell John E. Collins William R. Creasey David L. Fair John P. Gargan Herbert Garon, Jr. Hugh G. Hart, Jr. Joel Held John A. Martin Patrick F. McGowan Robert G. Mebus Norman L. (Happy) Nelson, Jr. Charles R. Nixon Erle A. Nye Jarrell B. Ormand William B. Pasley William B.C. Pittenger Florentino Ramirez Arthur Raphael Robert S. Rendell Patrick A. Robertson Larry L. Schoenbrun Winfield W. Scott Douglas M. Smith John M. Stephenson, Jr. T. McCullough Strother Stephen D. Susman Windle Turley Peter Winstead
United States Postal Service -- PS Form 3526 Statement of Ownership, Management, and Circulation
(1) Publication Title: Headnotes. (2) Publication Number: 1057-0144. (3) Filing Date: September 23, 2015. (4) Issue Frequency: Monthly. (5) Number of Issues Published Annually: 12. (6) Annual Subscription Price: $30. (7) Complete Mailing Address of Known Office of Publication: 2101 Ross Ave., Dallas, TX 75201-2768. Contact Person: Jessica D. Smith. Telephone: 214-220-7477. (8) Complete Mailing Address of Headquarters or General Business Office of Publisher: 2101 Ross Ave., Dallas, TX 75201. (9) Full Name and Complete Mailing Address of Publisher: Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Full Name and Complete Mailing Address of Editor: Cathy Maher, Executive Editor, 2101 Ross Ave., Dallas, TX 75201. Full Name and Complete Mailing Address of Managing Editor: Jessica D. Smith, Editor, 2101 Ross Ave., Dallas, TX 75201. (10) Owner: Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. (11) Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities: None. (12) Tax Status: Has Not Changed During Preceding 12 Months. (13) Publication Title: Headnotes. (14) Issue Date for Circulation Data: September 1, 2015. (15) Extent and Nature of Circulation. (First number is Average No. Copies Each Issue During Preceding 12 Months; Second number is No. Copies of Single Issue Published Nearest to Filing Date). (15a) Total Number of Copies (net press run): 11,730; 15,403. (15b1) Mailed Outside-County Paid Subscriptions Stated on PS Form 3541: 11,622; 1,599. (15b2) Mailed In-County Paid Subscriptions Stated on PS Form 3541: 9,154; 9,077. (15b3) Paid Distribution Outside the Mails Including Sales Through Dealers and Carriers, Street Vendors, Counter Sales, and Other Paid Distribution Outside USPS: 0; 0. (15b4) Paid Distribution by Other Classes of Mail Through the USPS: 0; 0. (15c) Total Paid Distribution: 10,776; 10,676. (15d1) Free or Nominal Rate Outside-County Copies Included on PS Form 3541: 349; 1,795. (15d2) Free or Nominal Rate In-County Copies Included on PS Form 3541: 477; 2,731. (15d3) Free or Nominal Rate Copies Mailed at Other Classes Through the USPS: 33; 52. (15d4) Free or Nominal Rate Distribution Outside the Mail: 56; 88. (15e) Total Free or Nominal Rate Distribution: 915; 4,666. (15f) Total Distribution: 11,691; 15,342. (15g) Copies not Distributed: 39; 61 (15h) Total: 11,730; 15,403. (15i) Percent Paid: 92.17%; 69.59%. (16) Electronic Copy Circulation. 0 (17) Publication of Statement of Ownership. Publication required. Will be printed in the November 1, 2015, issue of this publication. (18) Signature and Title of Editor, Publisher, Business Manager, or Owner: Jessica D. Smith, Editor. Date: September 23, 2015. I certify that all information furnished on this form is true and complete. I understand that anyone who furnishes false or misleading information on this form or who omits material or information requested on the form may be subject to criminal sanctions (including fines and imprisonment) and/or civil sanctions (including civil penalties).
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D al l as Bar A ssoci ati on l Headnotes 7
8 He a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2015
Andrews Kurth Recognized as Pro Bono Law Firm of the Year Natalie Smeltzer Named Pro Bono Lawyer of the Year Staff report
Each year, the Dallas Volunteer Attorney Program (DVAP), a joint project of the Dallas Bar Association and Legal Aid of Northwest Texas, honors the lawyers, judges, and other legal professionals who donate pro bono legal services. At the Annual Pro Bono Awards
Reception on October tives is “The World’s Chil21, the Dallas office of dren,” through which for Andrews Kurth LLP was the past year and a half, recognized as Pro Bono partners in Andrews Kurth Law Firm of the Year for in Dallas have assisted providing more than 1,800 Alexis Hefley in the forhours of pro bono sermation of Empower Afrivices—800 of which went can Children, a nonprofit to DVAP clients. organization which proAndrews Kurth encourvides education and supages all lawyers to parport to AIDS orphans in ticipate in pro bono work Uganda. Nearly 25 percent of the children of the once they are admitted to country are orphans. practice, as a way to give Natalie Smeltzer, of back to the legal commu- Natalie Smeltzer nity. One of the firm’s pro bono initia- Weil, Gotshal & Manges, LLP, was
named Pro Bono Lawyer of the Year. Ms. Smeltzer contributed more than 600 hours of pro bono service through her participation in the DVAP LendA-Lawyer Program. The program created by Weil, Gotshal & Manges, LLP in 2006 gives young lawyers an opportunity to learn about pro bono over a three-month period by serving fulltime at the DVAP offices. An associate at Weil, Ms. Smeltzer practices corporate law, focusing on mergers and acquisitions and private equity transactions. DVAP congratulates Andrews Kurth LLP and Natalie Smeltzer!
Pro Bono Activities Committee Year in Review by Maria Fernandez
At a time when the demands of the legal profession place a premium on pro bono hours, the Pro Bono Activities Committee (PBAC) continues to fan the service flame by facilitating service opportunities for Dallas attorneys to assist citizens in need of access to legal services. The PBAC offers dozens of opportunities to serve throughout the year—all varying in scope, nature, and complexity and each centered around the unifying mission of providing quality access to justice for low income and disadvantaged people in and around the Dallas community. PBAC’s commitment is no less visible in its subcommittees which have expended considerable time and effort hosting and staffing various events this year. Among the list of active subcommittees is the Veterans Outreach Subcommittee (VOS), which will be capping off another successful year
with the Veteran’s Legal Clinic (VLC) on November 6. The VLC is celebrating its sixth anniversary this year; it facilitates an open and collaborative environment for Dallas attorneys to engage, render counsel and represent the ever-increasing number of veterans in need of legal assistance. Thanks to the Dallas Volunteer Assistance Program (DVAP), the VOS has recently obtained additional funding to help the VLS extend its reach and expand its mission. Additionally, VOS Chair, Dustin Mauck, will be hosting a free CLE on November 9 in conjunction with Veterans Day. Attorneys and law students are invited to spend their lunch hour listening to speakers address a host of legal issues affecting veterans and receive an hour of ethics credit (pending). The success of VOS (and the VLS), like all of PBAC’s subcommittees and events, depends on its sustaining members and volunteers. For this reason, VOS will continue to promote
•2015 Pro Bono Awards• Lawyer of the Year Natalie Smeltzer, Weil, Gotshal & Manges, LLP Lawyer Firm of the Year Andrews Kurth LLP Gold Award for Pro Bono Service Manning & Meyers Weil, Gotshal & Mangers LLP Baker Botts L.L.P. Haynes and Boone, LLP Silver Award for Pro Bono Service MedAssets, Inc. Hunton & Williams LLP Vinson & Elkins LLP Gardere Wynne Sewell LLP Bronze Award for Pro Bono Service Cozen O’Connor Squire Patton Boggs Norton Rose Fulbright LLP Locke Lord LLP Hartman Judicial Pro Bono Service Award Hon. Drew Ten Eyck, 301st District Court Pro Bono Coordinator of the Year Debbie McComas, Haynes and Boone, LLP Pro Bono Appreciation Award Brad Weber, Locke Lord LLP Outstanding Clinic Sponsor AT&T Ken Fuller Outstanding Mentor Attorney Susan Morris, Attorney at Law
Outstanding Clinic Attorney Volunteers West Dallas Clinic Martin LeNoir, Attorney at Law
Garland Clinic Jeremy Aleman, Grau Law Group, PLLC South Dallas Clinic Lisa Shirley, Simon Greenstone Panatier Bartlett, P.C. East Dallas Clinic Artoush Varshosaz, K&L Gates LLP Outstanding Veterans Clinic Attorney Jim Sargent, Attorney at Law Lois Bacon Special Services Award Bill Lamoreaux, Law office of Wm. Lamoreaux Pro Bono Court Reporter of the Year Elizabeth Griffin, Dallas County Courts Outstanding Court Personnel Jeffrey White, Dallas County Courts Outstanding Support Volunteer Allen Mihecoby, Kimberly-Clark Outstanding Corporate Attorney Jeffrey Moore, Verizon Enterprise Solutions
and recruit volunteers to staff the VLC and other events through articles, publications, CLE programs, and presentations to sections of the Dallas Bar Association in hopes that their efforts will spark an interest and increase the list of attorneys, corporations and law firms that staff these clinics and assist our veterans. Contact Mr. Mauck at dustin@regitzmauck.com for more information on ways you can contribute. Members of the PBAC Corporate Counsel Subcommittee have also kept busy this year. In addition to their quarterly member luncheons featuring presentations by local pro bono service providers on service opportunities for in-house legal professionals (including a providers’ Roundtable in February), they have co-hosted several clinics with Texas C-Bar, including a Small Business Advice Only legal clinic, which not only brought together these two groups, but over a dozen local area practitioners (both in-house and otherwise). The attorneys who volunteered their time had the opportunity to assist more than 20 local small business owners with legal questions on topics such as labor and employment, intellectual property, tax, and entity formation landlord-tenant law. The next Small Business Advice Only clinic will take place on October 28 from 3:30 to 5:30 p.m. at Belo and all volunteers are welcome. Additionally, the Corporate Counsel Subcommittee members are scheduled to staff a Legal Aid intake clinic on December 10. For more information on ways you can help, please contact Alex
Farr at afar@velaw.com or Anne Shuttee at anne.shuttee@shutteelaw.com. Recognizing that we are only as strong as our numbers and the community’s growing need for access to legal services, the PBAC’s Section Outreach Committee has also been working hard this year to recruit members across various sections of the Dallas Bar Association. Thanks to their efforts, the PBAC has been able to staff and host legal clinics across various Dallas-area locations, including the West Dallas Clinic, which is held at the West Dallas Multipurpose Center off Singleton on the second and fourth Thursday’s of each month. Participation at other clinics like the Garland Legal Clinic and the South Dallas Legal Clinic are beginning to ramp-up. For more information on these clinics or ways in which you can help with recruitment efforts, please contact Pamela St. John at Pamela.st.john@att. com. Finally, in anticipation of National Pro Bono Week, PBAC will be hosting various group meetings at the Belo, including a Law Fair on October 27. Approximately 16 pro bono groups will be in attendance to provide information to attorneys, law students and other legal professionals on ways they can contribute to their community. This event will take place in the Belo atrium from 11:30 HN a.m. to 1:30 p.m. Maria Fernandez currently serves as Corporate Counsel and Assistant Secretary to COPsync, Inc. She can be reached at mfernandez0814@gmail.com.
Veteran’s Legal Issues CLE Please join us for a CLE focusing on the Dallas Veterans Legal Clinic and the corresponding legal issues that our veterans encounter on a daily basis. Monday, November 9, Noon at Belo • Ethics 1.00
DVAP’s Finest Bill Lamoreaux
Bill Lamoreaux is a sole practitioner who focuses his practice in the areas of labor and employment law, probate and estate planning, commercial litigation, and arbitration. He has been a dedicated DVAP volunteer for many years and has accepted more than 80 DVAP cases, in the areas of estate planning, employment, housing, benefits, and custody. He also regularly volunteers at the Belo Legal Clinic and the Wills Clinics. He has received awards from DVAP and Legal Aid of NorthWest Texas dating back to 1986. Thank you for all you do, Bill!
Pro Bono: It’s Like Billable Hours for Your Soul. To volunteer or make a donation, call 214/748-1234, x2243.
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D al l as Bar A ssoci ati on l Headnotes 9
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
Column
Novem ber 2015
Ethics
Client Communications & Employer Devices: Ethics & Cybersecurity by Sara Romine
Employment lawyers often are asked to represent an executive or employee against his or her current employer. In the course of representing the executive or employee, however, many of those lawyers never think to ask the client how they plan to communicate. Certainly, very few get into the nitty gritty of the specific device the employee intends to use, the device the lawyer will use, the mechanism by which those devices will transmit information, and where information relating to the representation will be stored. But as cybersecurity and legal ethics concerns evolve, these questions are becoming increasingly important and, depending on the jurisdiction, must be answered. To avoid potential ethical and legal pitfalls later, lawyers should consider addressing these issues at the
outset of the representation, perhaps in the engagement letter. I. The Ethical Duty to Warn a Client About Using Employer Technology to Communicate Privileged Information Both the American Bar Association and the State Bar of Texas have issued ethics opinions suggesting that lawyers may, under some circumstances, need to advise or caution a client regarding the dangers inherent in communicating via devices accessible to a third party. See The Professional Ethics Committee for the State Bar of Texas, Opinion No. 648 (April 2015); American Bar Association Formal Opinion 11-459 (Aug. 2011). This obligation is derived from the Texas Disciplinary Rules of Professional Conduct, which prohibit a lawyer from knowingly revealing client confidential information (Texas Rule 1.05(b)), and the ABA Model Rules of Professional Conduct, which require a lawyer to make
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reasonable efforts to prevent the inadvertent or unauthorized disclosure of client information (ABA Model Rule 1.6(c)). This issue frequently comes up in the representation of an employee in a matter adverse to his or her existing employer. For example, in addressing the circumstances under which a lawyer may need to warn the client about security and confidentiality concerns or consider alternative methods of communication, the Texas Bar opinion gave the following examples of situations that merit attention: • Sending an email to an individual client at that client’s work email address, particularly if the communication relates to the client’s dispute with his employer; • Sending an email from a public or borrowed computer or where the lawyer knows that incoming emails are monitored or read; • Sending an email if the lawyer knows the email recipient is accessing the email on devices that are potentially accessible to third persons or are not protected by a password. The issue, however, extends beyond email communications on an employerowned email account. The same concerns arise when an employee uses a company smart phone to text or email, or when the employee uses a company scanner to transmit documents relating to the representation. Likewise, confidentiality concerns may be triggered when an employee uses an employer-provided computer or computer network to access his or her personal web-based email account. Given the prevalence of employer policies permitting the employer to access information received, stored, or transmitted on the employer’s net-
work or devices, a lawyer representing an employee should caution the client regarding the use of the employer’s devices and network for any communications or document storage. ABA Ethics Opinion 11-459 instructs lawyers to “assume that an employer’s internal policy allows for access to the employee’s emails sent to or from a workplace device or system.” For this reason, lawyers representing an employee in a matter adverse to his or her current employer would be well-advised to warn the employee up front about confidentiality concerns relating to potential methods of communication. II. The Need to Stay Current on Confidentiality and Cybersecurity Concerns. Although many of these examples arise in the employment context, these concerns are not unique to representations of employees or executives. Instead, in virtually all representations, lawyers may want to assess and discuss with clients the planned methods of communication and the security risks inherent in those methods. The ethics opinions from the Texas Bar and the ABA explicitly note that a lawyer’s practices should continue to evolve as security and confidentiality risks develop. The ethics opinions make clear that, upon accepting a new representation, lawyers should assess security concerns, reasonably inform the client regarding those concern, and— if either the lawyer or the client wishes to proceed with a particular method of communication—obtain the client’s HN informed consent. Sara Romine is an associate at Carrington, Coleman, Sloman & Blumenthal, L.L.P. She can be reached at sromine@ccsb.com.
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GIVE FOR GOOD! Celebrate this holiday season with Giving for Good cards and inspire others to give back. Giving for Good cards offer a great gift option for family, friends, and clients. The cards work like other retail gift cards, but they are redeemed as a donation to the recipient’s favorite charity, such as homeless shelters, arts organizations, houses of worship, and food banks – anywhere across the United States. Giving for Good cards may be customized with a company’s logo or message, and the purchaser receives a tax deduction for the full dollar amount.
Visit dallasfoundation.org to order cards online or call The Dallas Foundation at 214-741-9898 for more information.
Runner-Up Receives:
New Orleans Jazz & Dining Package (Three-night stay at Hyatt French Quarter with airfare for 2) Raffle tickets are $100 each — or 6 tickets for $500. Proceeds benefit the Dallas Volunteer Attorney Program, Purchase raffle tickets online at https://www2.dallasbar.org/dbaweb/dvap/raffle.aspx or at the DBA offices at the Belo Mansion (2101 Ross Avenue, Dallas, TX 75201). Drawing will be held at the DBA Inaugural Ball on January 16, 2016. The winner need not be present to win. The winner is responsible for all taxes, title and licensing. Prize is non-transferable. No cash option is available.
N ove mb e r 2 0 15
Focus
Dal l as Bar A ssoci ati on l Headnotes 11
Labor & Employment
Lessons Regarding the Use of Conviction Records in Hiring by Nicholas D. Palmer
In addition to banning intentionally discriminatory employment practices based on race, color, religion, sex, or national origin, Title VII of the Civil Rights Act prohibits unintentional discrimination in the form of facially neutral employment policies that have a discriminatory effect on a protected group—so-called disparate impact discrimination. In April 2013, the EEOC published a new Enforcement Guidance explaining how the use of applicants’ conviction records in hiring decisions often results in disparate impact discrimination based on race and national origin. The EEOC is aggressively pursuing litigation against employers under this theory, having filed numerous lawsuits against large companies throughout the country. Counsel assisting clients in pursuing or defending against such suits can benefit from the EEOC’s prosecution of these claims, as the cases teach important lessons in litigation strategy. Where disparate impact exists, the Enforcement Guidance primarily focuses on an employer’s defense based on the policy being job related and consistent with business necessity. However, case law emphasizes that a plaintiff must first establish disparate impact before the job relatedness/business necessity defense comes into play. The case that perhaps best illustrates counsel’s responsibilities in handling such disparate impact claims at this first stage is EEOC v. Freeman, 961 F. Supp. 2d 783 (D. Md. 2013), aff’d 778 F.3d 463 (4th Cir. 2015). In Freeman, the court awarded summary judgment to the defendant-employer because the EEOC failed to (1) sufficiently identify the particular aspect of the employer’s background check policy being challenged; and (2) substantiate its dispa-
rate impact claims with reliable statistical support. A plaintiff must first pinpoint the specific aspect of an employer’s use of criminal history that purportedly results in a discriminatory impact. For example, many employers treat felony and misdemeanor convictions differently in their hiring policies. Under these policies, applicants with only misdemeanor convictions are frequently eligible for hire (or eligible for hire sooner) while applicants with felony convictions are not. To challenge such a practice on a disparate impact theory, the plaintiff must point to the particular aspect of the policy that excluded her. It is insufficient to simply complain that the employer utilized criminal histories in its hiring decisions generally. The plaintiff must also show that the challenged portion of the policy caused a discriminatory impact. Thus, it is crucial that counsel for spend time in discovery isolating the portion of the employer’s policy being challenged. Second, a plaintiff must establish the challenged practice had a disparate impact upon her protected group. This is one area where the courts have, at least implicitly, been particularly critical of the new Enforcement Guidance. In explaining how to establish disparate impact in its Enforcement Guidance, the EEOC pointed to the fact that there are a disproportionately high number of African-Americans and Hispanics in the American criminal justice system. According to the EEOC, this fact alone necessarily “supports a finding that criminal record exclusions have a disparate impact based on race and national origin.” In this regard, the EEOC’s Enforcement Guidance attempts to burden employers with solving the statistical imbalances of the penal system.
Courts have uniformly rejected the EEOC’s approach, requiring plaintiffs to prove their disparate impact claims with statistics. This is another critical juncture in disparate impact lawsuits. Plaintiffs must provide expert statistical evidence showing the challenged employment policy has a statistically significant disparate impact upon a protected category. Importantly, a plaintiff’s statistical evidence must be reliable. If a statistical expert’s methodology is deemed unreliable by the court, the plaintiff cannot use the expert’s findings to support her claim. Therefore, plaintiff’s counsel must carefully select their experts or run the risk of having summary judgment entered against their client should
the expert’s opinion and conclusions be deemed unreliable. Conversely, attorneys for employers should meticulously assess the reliability of the plaintiff’s expert as a possible avenue to success. As the EEOC’s efforts to curb employers’ use of applicants’ conviction histories in hiring show, disparate impact claims are always complex. Attorneys must be fiercely diligent in their representation at every stage of a disparate impact claim. Failure to do so could have grievous consequences for HN their clients. Nicholas D. Palmer is a Senior Assistant City Attorney in the Dallas City Attorney’s Office, Employment Litigation Division. He can be reached at nicholas.palmer@dallascityhall.com.
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12 H e a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2015
Pirates in the Navy: A Retrospective on Law Firm Innovation by Billie J. Ellis and William T. Ellis
Creating an Army of Elite Lawyers
The end of the 19th century saw a capitalist revolution in progress. Never was a class of Americans so wealthy or powerful as the giant capitalists of this time. Cornelius Vanderbilt once said, “Why do I care about the law? Ain’t I got the power?” The notorious statement was only half hyperbole. His power, though extensive, was fueled by a new kind of law firm. Small firms lacked the resources to serve capitalist titans like Vanderbilt and Morgan. The complex holding company and trusts of the latter part of the 19th century required a deep understanding, and even re-conceptualization, of tax and corporate law. The transactional lawyer came to have an everincreasing role over the litigator. From 1890 to 1900, virtually every major city showed an increase in the growth of the large firm. Yet despite this new growth, tradition dictated who was hired, how they were hired, and how they were trained. In the early 1900s, upon passing their boards, most young lawyers did not have a job waiting for them. They would often simply show up at a law firm and ask for work. The more fortunate among them was the son of a client or blessed with another important social connection. Many of them, hailing from the leisured upper class, lacked a hearty work ethic. Once hired, they usually did not receive an income until they proved themselves useful. A lawyer named Paul Cravath set out to change this system. He felt clients needed a new kind of lawyer for the new times. He wanted superior training and knowledge to be the hallmarks of his new lawyers. To Cravath’s partners and competitors, changing the system seemed an odd, useless, and expensive undertaking. Corporate lawyers were well paid and riding high.
No economic imperative, the thinking went, demanded that successful firms train, attend to, or even initially pay their young lawyers. But Cravath recognized that legal work was becoming increasingly complex, demanding, and high stakes. In response to this emerging trend, he developed what became known as the Cravath System. The new system addressed two primary questions: How to get the best legal talent, and how to maximize that talent once acquired? His answer began with the premise that a strong emphasis on academic pedigree, intelligence, and work ethic creates the foundation for an excellent lawyer. He focused on academic meritocracy as opposed to social connections or charming personalities. He wanted to ensure that every new hire possessed this proper foundation before they joined the firm. Further, he believed that talent and work ethic should be honed, mentored, and rewarded. In this way, his firm would forever retain a loyal, dedicated army of elite lawyers. He paid well over market to attract the best talent out of the law schools. Competitors wondered why he was willing to pay top dollar for brand new, wholly inexperienced lawyers. Cravath saw the value in potential. His competitors viewed the hiring of newly minted lawyers as an occasionally unavoidable nuisance; Cravath saw it as a rich opportunity. A clean slate meant better molding. It meant they could all be trained in the same way, the proper way, and thereby also better assimilated into a strong firm culture. The strategy worked. Cravath’s willingness to ignore the status quo laid the predicate not only for his firm’s survival for another 100 years, but to its evolution as one of the leading firms in the world. The Cravath System, once revolutionary, has now become a new status quo. Even in the 21st century, large firms tend to run on some variation of the Cravath model.
Band of Misfits
In the eyes of many, law firms in the mid-20th century operated in a kind of professional golden age. Lawyers were respected, the ABA was making inroads as a powerful organization, and law firms were growing in size and profits at a measured and pleasant pace. Lawyers faced plentiful job opportunities and once hired, promotion to partnership was virtually assured. Lawyers were considered learned gentlemen. Yet this portrait ignores the harsh reality of discrimination and bigotry that made working in law firms a privilege of a very select few. The top established firms excluded Jews, Catholics, racial minorities, women, and anyone from a less than top tier law school. In 1948, a third year law student named Joseph Flom could not find a job, despite excellent grades from Harvard Law School. In the estimation of his potential employers, he lacked family connections, the proper background, and failed to carry himself in the right way. Rough around the edges, he was not considered gentlemanly. Most damning, he was Jewish. But a small new firm expressed great interest in the young man. In fact, it wanted the 24-year-old so badly that during the firm’s first year, when money was tight, the partners paid him and took no draw for themselves. The hiring of Flom turned out to be a stupendous decision. He quickly became a pivotal firm leader. The new firm learned a valuable lesson: hire differently, much differently. Status quo firms were looking for the right combination of ability, background, and personality. Under Flom’s leadership, the firm only concerned itself with ability. It hired Jews and Catholics, Democrats and Republicans, and people with less than sterling upbringings. It hired people from nonIvy League law schools. In 1959, it hired a female lawyer; a revolutionary decision for the time. The firm took pride in valuing lawyers other firms did not.
Guided by this non-elitist mentality, the firm’s democratization of hiring developed alongside a democratization of their legal services. This fledging firm not only faced the challenge of competing with the established firms for legal talent, it also needed to attract top tier legal work despite its status as a nontop tier firm. The solution was to proactively and creatively help clients solve business problems, rather than merely give legal advice, as other firms confined themselves to doing. This approach is considered an ideal today, but at the time, law firms felt this kind of involvement with their clients’ business superseded their narrow role and expertise. Included in this strategy was a willingness to provide new forms of legal services other firms were not willing to offer, a practice best exemplified in the realm of hostile corporate takeovers. Most corporate lawyers opposed take-overs. Wall Street firms did not favor legal work associated with them, viewing the whole business as un-gentlemanly and unsavory. But Flom was ideologically agnostic about the practice, focusing instead on simply helping his clients. He also saw rich opportunity in this new form of legal practice, predicting their increased commonality and importance. His firm began to handle more and more of them. When takeovers became standard practice, as he predicted, the larger firms, now eager to handle them but lacking the expertise, began to outsource the work to Flom. This brought the firm an avalanche of business and established it as the lone expert in a very lucrative field. Today, this firm is known as Skadden Arps, and it’s grown into one of the most powerful and profitable HN firms of the country. This is the second in a 3-part series. Part III will be in the December issue. Billie J. Ellis is a partner at Locke Lord and can be reached at bjellis@lockelord.com. William T. Ellis, of The Law Office of William T. Ellis, can be reached at will@willellislaw.com.
Keep Credit Card Payments Simple and Reduce Credit Card Fees with LawPay by Tracey Gavin
Even with the low risk of credit card fraud in the legal industry, your firm should still adhere to security guidelines. The following is a quick guide to fraud preventing payment trends:
NFC
NFC or Near Field Communication are payments made through credit cards stored on smart phones. Charges are made by tapping, waving or simply getting close enough for a NFC credit card machine to read the digital signal from the card. The benefit to merchants has been debated due to the high cost of hardware. The most popular NFC program is ApplePay which requires the card holder to be present, or close enough for the credit card terminal to read the signal. This means your firm can only accept ApplePay when a client is in your office. Decide if NFC provides any real cost savings before rushing out to buy a new point-of-sale system. For most traditional law firms, NFC does not make sense as a payment solution because your client must be present for payment.
EMV
EMV or Europay-MasterCard-Visa or sometimes known as “pin and chip” cards is a credit card embedded with an electronic chip, and considered a key security feature in preventing the use
of counterfeit credit cards. Similar to NFC, EMV cards are mostly processed by a card machine. EMV technology has been largely focused on mid-size to large retailers. As a law firm, you have an advantage over traditional retailers because you know the identity of your clients, which drastically reduces the risk of accepting a counterfeit credit card.
PCI
PCI DSS, or Payment Card Industry-Data Security Standards has come to broadly represent the overall compliance and security when accepting credit cards. PCI has been required for law firms that accept credit cards since January 2015 and required by Visa, MC, Discover regardless of the method you choose to accept credit cards (i.e card present or card not-present). PCI is managed through a series of self-assessed security questions. Usually, law firms can reduce the security requirements and protect their firms by implementing a few small changes. To become PCI compliant, firms should eliminate the need to see, collect or store any credit card data from clients. If no one in your office touches, records or handles a client credit card, or the credit card number, then the risk for card fraud is almost eliminated. With a service like LawPay www.LawPay.com/dallasbar this can be done by using a secure web-based system that securely encrypts the credit
card. Programs are available to add secure payment links to your website or send electronic invoices directly to clients. Your client may then pay online. These methods also eliminate the need for traditional credit card machines, thus further reducing your risk.
About LawPay
The LawPay program, is a custom payment solution designed for attorneys and complies with ABA and
state requirements for managing client funds. As a member benefit of the Dallas Bar Association, law firms save up to 25 percent off standard credit card fees. If you are currently accepting credit cards, we encourage you to compare your current processor and its fees with LawPay. To learn more contact (866) 376-0950 or www.LawPay. HN com/dallasbar. Tracy Gavin is the Marketing Director for LawPay. She can be reached at tgavin@affinipay.com.
N ove mb e r 2 0 15
Focus
D al l as Bar A ssoci ati on l Headnotes 13
Labor & Employment Law
What You Need to Know About Young v. UPS by Courtney Barksdale Perez and Stacey Cho
In Peggy Young v. United Parcel Service, the U.S. Supreme Court announced a framework for analyzing claims brought by pregnant women who were denied accommodations in the workplace. 135 S. Ct. 1338, 1354 (2015). Young, a UPS driver, requested light duty on recommendation from her physician after she became pregnant. UPS denied Young’s request because she did not qualify for accommodations under its then-existing policy, which only accommodated those workers injured on the job, those with a disability under the Americans with Disabilities Act (ADA), and those who lost their commercial driver’s certification. Because Young fit none of those categories, she went on unpaid medical leave and sued UPS for discrimination under the Pregnancy Discrimination Act (PDA). The district court granted the employer’s motion for summary judgment and the Fourth Circuit affirmed. On appeal, Young argued that under the PDA, if an identified group of workers get lighter duty or easier assignments because they are temporarily disabled, the same opportunity should be available to workers whose doctors limit the kind of work they can do during pregnancy. UPS argued that the PDA simply defines sex discrimination to include pregnancy discrimination and that it does not prohibit denying accommodations to pregnant women under a pregnancy-neutral policy. In a 6-3 decision, the Supreme Court rejected both interpretations, holding that Young’s interpretation was too broad and would grant pregnant workers a “most favored status” under the law, while UPS’s interpretation was too narrow and would
eviscerate Congress’s intent in passing the PDA. Instead, the Court held that UPS’s pregnancy-neutral policy was not per se impermissible, and laid out the elements required to establish a prima facie case: (1) the plaintiff belongs to a protected class; (2) she sought an accommodation; (3) the employer did not accommodate her; and (4) the employer accommodated others outside her protected class who were similar in their ability or inability to work. In other words, a plaintiff bringing a claim under the PDA must still prove in each instance that she was treated less favorably than others who were similar in their inability to work. To make this showing, the employee must demonstrate that her employer’s policies impose a “significant burden” on pregnant workers, and that the employer has not raised a “sufficiently strong” reason to justify that burden. An employee may show that a significant burden exists by providing evidence that the employer accommodates a large percentage of non-pregnant workers without accommodating a large percentage of pregnant employees. The Court also held that the McDonnell Douglas burden-shifting framework for disparate treatment discrimination under Title VII also applies to pregnancy accommodation claims brought under PDA. Once the plaintiff has established a prima facie case, the employer must establish a legitimate, non-discriminatory reason for the failure to accommodate. This reason must, however, be more than a claim that it is more expensive or less convenient to accommodate pregnant women. If the employer offers a legitimate, non-discriminatory reason, the burden then shifts back to the employee to establish that the proffered reason is pretext for discrimination. Applying this framework to the facts,
the Court vacated the lower court’s decision and remanded Young’s case for further consideration as to whether UPS provided more favorable treatment to at least some employees whose situation could not reasonably be distinguished from Young’s. Although employers can take some comfort following this decision in knowing that pregnancy-neutral policies can withstand scrutiny if a plaintiff fails to meet her burden under the traditional McDonnell Douglas framework, it should be noted that when this case arose, the 2008 amendments to the ADA had not yet become effective. While pregnancy itself is a not a “disability” under the Act, the amendments require employers to accommodate pregnancy-related medical conditions that qualify as a “disability” under the Act. That most pregnancy-related condi-
tions qualify as a “disability” under the ADA may account for the fact that while this case was still pending, UPS changed its policy to accommodate its pregnant workers. This decision should serve as a reminder to employers that they cannot treat pregnant workers needing accommodations because they are pregnant or suffer from a pregnancy-related medical condition less favorably than other workers seeking accommodations. Employers should review their leave, disability, and accommodation policies to ensure that they are equally applied to pregnant and non-pregnant employees HN with work restrictions. Courtney Barksdale Perez and Stacey Cho are associates at Carter Scholer Arnett Hamada & Mockler. They can be reached at cperez@ carterscholer.com and scho@carterscholer.com, respectively.
Court of Appeals at Belo
On September 14, justices from the Fifth District Court of Appeals heard a live oral agreement at the Belo Mansion in front of over 300 DISD students. DBA President Brad Weber (far right) is shown with the justices (left to right) Hon. Lana Myers, Hon. David Bridges, Chief Justice Carolyn Wright and Hon. Elizabeth Lang-Miers.
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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
Novem ber 2015
It is a Disease, Not a Disgrace: Understanding Addiction by Amara Durham
We would like to believe that it takes a special person to persevere through law school and to prepare for the bar exam. We hope that we are more ambitious than our peers, working the long hours required to make partner or principal in a law practice. In that effort, the average attorney works 60-80 hours each week. People who work 50+ hours each week are three times more likely to abuse alcohol than those who work less. The average depression rate for lawyers is 20 percent and 40 percent for law students, yet 6.5 percent of U.S. adults suffer from depression. In fact, attorneys are 3.6 times more likely to suffer from depression compared to most other professionals. Though society is doing something to address these alarming rates, there are certain factors that get in way of treating these matters. Recent surveys show that 70 percent of lawyers who are dependent on drugs or alcohol strongly believe that they can actually handle chemical dependency on their own. Equally alarming is that 40 percent of
lawyers fear that getting treatment will have a negative impact on their career and reputation. Fortunately, there are different treatment options and solutions for lawyers, all of which are confidential. Each state is equipped with an effective Lawyer Assistance Program, which is dedicated to providing confidential help for lawyers, law students and judges who have problems with chemical abuse/dependency and/or mental health issues. These programs also connect suffering professionals with those who are living in long-term recovery and who can provide much needed support to those in need. There is an adage that if you think that there may be problem, there usually is. The most recent publication of the Diagnostic and Statistical Manual of Mental Disorders (DSM) outlines criteria for substance dependence for someone who experienced three or more of the following within a 12-month period. The criteria are: Tolerance, as defiined by either of the following: 1. a need for markedly increased amounts of the substance to achieve intoxication or desired effect.
Texas Lawyers Assistance Program: Courage, Hope, Help Friday, November 20, Noon, at Belo Speaker: Bree Buchanan, State Bar of Texas Ethics 1.00 RSVP to sevans@dallasbar.org. Sponsored by the CLE and Peer Assistance Committees.
2. markedly diminished effect with continued use of the same amount of the substance. Withdrawal, as manifested by any of the following: 1. the characteristic withdrawal syndrome for the substance. 2. the same (or a closely related) substance is taken to relieve or avoid withdrawal symptoms. 3. The substance is often taken in larger amounts or over a longer period than was intended. 4. There is a persistent desire or unsuccessful efforts to cut down or control substance use. 5. A great deal of time is spent in activities necessary to obtain the substance, use the substance, or recover from its effects. 6. Important social, occupational, or recreational activities are given up or reduced because of substance use. 7. The substance use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance. Legal partners and associates often join family members in the notion that they caused, can control, or can cure someone dependent upon drugs and alcohol. This is misguided. When these well-intended individuals begin to ignore the needs of the clients, the firm, and the family, a cycle of codependency has begun. The co-dependent becomes addicted to the addiction, serving in a role of rescuer and enablers despite the best of intentions. Management and love cannot “cure” chemical dependency. The Dallas Bar Association Peer Assistance committee held a CLE during which some signs and symptoms of co-dependency were shared. Signs of
co-dependency include workaholism, perfectionism, inability to set boundaries, and striving for achievement (at any cost). Visit www.dallasbar.org/ content/peer-assistance-committee to learn more and for a list of resources. Research indicates that 25 percent of lawyers facing disciplinary action suffer from mental illness and are abusing drugs or alcohol. Rule 8.03 allows a lawyer “suspecting” another lawyer of being “impaired by chemical dependency on alcohol or drugs (or by mental illness)” to “report the individual to an approved peer assistance program rather than to an appropriate disciplinary authority.” This is a rule protecting the dependent, the firm and its associates. The caller, whose identity is protected, also is protected from liability. The bar is issuing a clear invitation to support its members. Calls made to TLAP are not shared with the Disciplinary Counsel and no records are kept. There are over 23 million people impacted by chemical dependency. Those in recovery are eager to help. The same drive and ambition which propels attorneys to accomplishment propel them to help. Make a call. Call TLAP at (800) 343-8527 24 hours/day, 7 days a week. To help combat this growing problem, the DBA’s Peer Assistance Committee is sponsoring a CLE on November 20, noon, at Belo on the topic of the Texas Lawyers Assistance Program (TLAP), with speaker Bree Buchanan of the State Bar of Texas’ Lawyers Assistance Program. HN All members are invited. Amara Durham, attorney at law, is co-founder of At the Helm, a non-profit dedicated to Helping, Educating, Leading, and Motivating families and their loved ones in need of academic, mental health, and dependency support. She can be reached at AmaraDurham@gmail.com.
2016 INAUGURAL OF Jerry C. alexander MICHAEL F. PEZZULLI
A T T HE W ESTIN G ALLERIA D ALLAS
HAS JOINED HOLMES FIRM PC AS A SHAREHOLDER TO LEAD THE TRIAL PRACTICE GROUP *Board Certified in Civil Trial law since 1986 *AV Rated by Martindale-Hubble for more than 30 years *Texas Super Lawyer (Thomson Reuters) 2003-2015 *Top 100 Trial Lawyers (The National Trial Lawyers) *Best Attorneys in Texas (Best Lawyers) 2015 *The Best Lawyers in America 2015 *Tier One Lawyer (U.S. News and World Report) 2014
Saturday, January 16, 2016 The Dallas Bar Association will inaugurate its 107th President, Jerry C. Alexander at the inaugural ball on Saturday, January 16. The black-tie ball will include dinner, dancing to music by the band New Ground and silent and live auctions.
Cocktails 6:30 p.m. | Dinner 7:30 p.m. Tickets $150; Tables $1,500 | Judiciary $100 14911 QUORUM DR., DALLAS, TX 75254 | 469-916-7700 WWW.THEHOLMESFIRM.COM
reserve your ticket online now! Visit www.dallasbar.org for more information!
Nov e mb e r 2 0 1 5
Focus
Dal l as Bar A ssoci ati on l Headnotes 15
Labor & Employment Law
Drivers of Whistleblower Expansion & Compliance Strategies by Michelle Brookshire and Russell Zimmerer
Several factors are driving an exponential increase in whistleblower complaints. These factors include expanded whistleblower protections in reaction to highly publicized scandals, payment of significant bounty awards, and a cultural backlash against corporations in light of corporate scandals. Given the increased focus on this area, it is important for companies to develop a reliable investigation system that welcomes internal complaints and promptly and fully addresses them. In recent years, there has been an expansion of whistleblower rights. The Sarbanes-Oxley Act (SOX)—the most well-known statute protecting whistleblowers—protects employees who raise claims of securities fraud by publicly traded companies. Similarly, the DoddFrank Wall Street Reform and Consumer Protection Act, which contains bounty and whistleblower protection provisions, covers publicly traded corporations and businesses in the financial industry. Since the passage of Dodd-Frank in 2010, and the subsequent creation of the Office of the Whistleblower (OWB) within the U.S. Securities and Exchange Commission (SEC), the SEC has shown support for whistleblowers through monetary awards and enforcement actions. In its Annual Report to Congress on the Dodd-Frank Whistleblower Program, the SEC reported that both the number of whistleblower claims and the magnitude of the financial awards stemming from those claims “were recordbreaking” in fiscal year 2014. According
to the Report, the SEC’s OWB received 3,620 whistleblower tips, an increase of more than 20 percent in two years. On September 22, 2014, the SEC authorized an award of more than $30 million to a whistleblower “who provided key original information that led to a successful enforcement action.” This is the SEC’s largest whistleblower award to date. Another example of the SEC’s increased focus on whistleblower rights is a cease-and-desist order issued on April 1, 2015. The SEC declared illegal a company’s use of a confidentiality agreement that prohibited employees interviewed during an internal investigation from discussing, inside or outside the company, without legal approval, the substance of their interviews involving potentially illegal or unethical conduct by the company or its employees. The company was also penalized $130,000. Areas where a company’s use of a confidentiality agreement could draw an SEC attack include: release agreements, stand-alone confidentiality or non-disclosure agreements, internal policies regarding complaints of unethical or unlawful practices, and investigation protocols. The Supreme Court has also taken a broad view of whistleblower protections. A recent example is Lawson v. FMR, LLC, 571 U.S. __, 134 S. Ct. 1158 (2014), in which the Court held SOX’s whistleblower protections apply to contractors of publicly traded companies. The practical effect of Lawson could expand coverage of SOX from about 6,000 publicly traded U.S. corporations to millions of business entities that enter into contractual relationships with those corporations. The Second Circuit Court of Appeals
also just extended Dodd-Frank’s antiretaliation protections to employees who suffer retaliation for reporting alleged securities violations internally, even if they did not report them outside the company or to the SEC. See Berman v. Neo@Ogilvy LLC, No. 14-4626, 2015 WL 5254916 (2d Cir. Sept. 10, 2015). Given the continued expansion of whistleblower protections, it is imperative for companies to take measures to foster a “speak up” culture wherein employees are encouraged to raise concerns in a non-retaliatory environment. Encouraging employees to raise concerns fosters the early resolution of potentially large problems. It also helps to reduce legal and public relations risks, improves employee engagement, and provides a concrete way for employees to contribute to organizational success. Companies should work with counsel to address the following critical issues: 1. Review audit agreements containing confidentiality clauses to ensure they preserve the employee’s right to file claims and disclose information regarding the company’s business practices to an enforcement agency. These rights should apply to any government agency charged
with enforcement of any law, not just employment laws. 2. Update and strengthen anti-retaliation policies and procedures. 3. Ensure that supervisors at every level are trained in the employer’s antiretaliation policies. There needs to be a clear commitment from leadership to hear and resolve such claims and otherwise act aggressively to prevent retaliation. 4. Ensure a clear process to manage internal reports of retaliation. The reporting system should include multiple avenues for reporting; opportunities to report outside the chain of command; a hotline, including anonymous reporting; and the ability to elevate to higher levels. 5. Develop an investigation protocol, and use it. 6. Ensure that organizational commitment to ethics and compliance are properly addressed by the company’s Code of Conduct. 7. Secure confidential information and limit its dissemination to those who HN need to know. Michelle Brookshire and Russell Zimmerer are associates of Littler Mendelson P.C. They can be reached at mbrookshire@littler.com and rzimmerer@littler.com, respectively.
DAYL Charity Ball Saturday, November 14, 2015 7:00 p.m. at 3015 Trinity Groves Benefiting EPIC and Dallas Habitat for Humanity Tickets available at www.daylcharityball.com.
CLIENT: Communities Foundation of Texas JOB#: CFOT-14-011 Brand Campaign
Health Care Is Under a Microscope.
TRIM: 5"w x 7.75"h LIVE: 5"w x 7.75"h BLEED: n/a COLOR: CMYK PUB: Headnotes CONTACT: Jessica D. Smith, Headnotes Editor Communications/Media Director (214) 220-7477 jsmith@dallasbar.org RELEASE: 3/10/15 INSERTION: April
Jody Rudman Has Seen It All.
JODY RUDMAN
Health care providers need experienced legal counsel in responding to the increase in Accusations of regulatory and coding violations Fraud allegations Criminal investigations
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For estate planning attorney Larry Wolfish and his wife, Sally, their positive experience as donor-advised fund holders at Communities Foundation of Texas (CFT) has provided insight into how to better serve his clients. “I know firsthand that CFT bends over backwards to help their donors,” said Larry. “When I introduce my clients
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16 H e a d n o t e s l D a l l a s B a r A s s o ciation
Novem ber 2015
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Focus
Dal l as Bar A ssoci ati on l Headnotes 17
Labor & Employment Law
Most Workers Are Employees: New Guidance From DOL by Isabel Crosby
Over the summer the Department of Labor’s (DOL) Wage and Hour Division issued new guidance in the form of Administrator’s Interpretation Memorandum No. 2015-1 related to independent contractor misclassification. The DOL took the position that most workers are employees under the Fair Labor Standards Act (FLSA). Employees who are misclassified as independent contractors may not receive federal or state mandated workplace protections like minimum wage; overtime compensation; workers’ compensation; health insurance and other benefits; and unemployment insurance. The cost to employers may include back pay, punitive damages, and attorneys’ fees under the FLSA, in addition to other potential damages and tax liabilities. The DOL affirmed the use of the multifactor “economic realities” test previously applied by courts in interpreting the FLSA to determine whether a worker is an employee or independent contractor. The test weighs the following six factors: (1) the extent to which the work performed is an integral part of the employer’s business; (2) the worker’s opportunity for profit or loss depending on his managerial skill; (3) the extent of the relative investments of the employer and the worker; (4) whether the work performed requires special skills and initiative; (5) the permanency of the relationship; and (6) the degree of control exercised or retained by the putative employer. Ultimately, the central focus of the “economic realities” test is whether a worker is economically dependent on the putative employer (thus rendering the worker an employee), or is really in business for himself (thus rendering the worker an independent
contractor). In considering the first factor regarding the integration of the worker within the employer’s business, if the worker generally performs work that is integral to the business of the putative employer, it is more likely than not that the worker should be classified as an employee. The second factor relates to managerial skill and requires an analysis of whether the worker’s managerial skills affect the worker’s opportunity for profit and loss beyond the worker’s current job. Importantly, while the amount of work available from the putative employer and the worker’s ability to work additional hours may impact the amount of money the worker makes, those considerations have nothing to do with “managerial skill” and thus are not dispositive in analyzing this factor. The third factor considers the financial investment made by the worker. Mere investment in tools and equipment may not be sufficient to tip the scale towards a determination of independent contractor status. Instead, the investment made by the worker should, according to the DOL, be significant in both nature and magnitude relative to the investment made by the putative employer in its overall business. In analyzing the fourth factor regarding skill and initiative, the DOL cautions that the mere fact that a worker has specialized skills does not necessarily indicate that he is in business for himself, but rather requires an exhibition by the worker of business skills, judgment, and initiative such that he can establish that he is economically independent from the putative employer. The fifth factor relates to the permanency of the relationship. Those workers who have permanent relationships with the putative employer are likely employees. However,
those who lack such permanence do not necessarily meet the test for independent contractors under this factor. The lack of permanence or indefinite nature of the relationship must be the result of the worker’s own independent business initiative in order to lead to a finding of independent contractor status. The sixth and final factor is control. Workers must have actual control over meaningful aspects of the work they perform to qualify as independent contractors. Those who simply control things such as the number of hours worked or their own schedules do not exhibit the requisite control to qualify as independent contractors under this factor. None of these factors are dispositive. Indeed, the DOL cautions that companies should apply the “economic realities” test in a qualitative rather than quantitative way in
order to answer the ultimate question of economic dependence. Ultimately, any analysis of the six factors should, according to the DOL, be guided by the principle that the FLSA should be liberally construed to provide broad coverage to all workers. In light of the new guidance, employers should evaluate all existing independent contractor arrangements to analyze the economic realities of those relationships. In so doing, employers must also consider that tests promulgated by state and federal agencies such as the Texas Workforce Commission and the Internal Revenue Service may utilize different factors in analyzing indepen HN dent contractor status. Isabel Crosby is an associate at Andrews Kurth LLP. She can be reached at isabelcrosby@akllp.com.
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18 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
Novem ber 2015
Labor & Employment Law
Employee Handbooks are in the Crosshairs of the NLRB by Jason Weber
There is a common misconception that the National Labor Relations Act (NLRA) only confers rights on unionized employees. In actuality, the NLRA applies to most private-sector employees, regardless of whether they are unionized. Many private-sector employers have begun to discover this reality firsthand as the National Labor Relations Board (NLRB)—the administrative agency charged with the enforcement of the NLRA—increasingly has targeted unlawful employee handbook rules. To promote awareness of this issue, in March of this year, the NLRB issued an advice memorandum (Memorandum GC 15-04) that identified common employment policies that may run afoul of the NLRA. The bedrock of the NLRA is Section 7, which guarantees employees the right to “engage in concerned activities,” including the right to discuss their terms and conditions of employment (e.g., compensation, working conditions) with each other. An employer engages in an unfair labor practice
when it denies or limits the Section 7 rights of its employees. Within the context of employment policies, an unfair labor practice is not limited to instances in which a rule explicitly restricts protected concerted activity. Rather, a well-intentioned employment policy may violate the NLRA if employees would reasonably construe the rule’s language to prohibit Section 7 activity.
Confidentiality Policies
While private-sector employers are lawfully permitted to implement policies that are intended to safeguard the privacy of certain business information, this right is not unfettered. A confidentiality policy can easily encroach on an employee’s Section 7 rights—and thereby become an unfair labor practice—if the policy could reasonably be construed to restrict Section 7-protected communications, such as the discussion of wages, hours, and other workplace complaints among co-workers. For example, a policy that prohibits an employee from disclosing “the Employer’s or another’s confidential or proprietary information” would likely
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be held unlawful because it does not make clear that communications to discuss the terms and conditions of another’s (i.e., an employee’s) employment are exempted. Conversely, a policy that generically prohibits the “unauthorized disclosure of business secrets or other confidential information” would likely be found lawful because it does not reference information regarding employees or otherwise contain language that would reasonably be construed to prohibit Section 7 communications.
Employee Conduct Policies
In a similar vein, while employers have a legitimate interest in ensuring employees act professionally and courteously in their dealings with co-workers, customers and other third parties, overly broad policies risk running afoul of the NLRA. An employer’s ability to regulate employee conduct depends upon the interaction at play. With respect to employee-employer conduct, an employer is within its right to implement policies that prohibit insubordinate or threatening conduct; however, it may not restrict an employee’s right to criticize or protest its labor policies or treatment of employees. For example, a policy that requires employees to “be respectful to the company, other employees, customers, partners and competitors,” would likely be unlawful because it bans conduct that does not rise to the level of insubordination. With respect to employee-employee conduct, an employer must similarly be careful not to implement a policy that would chill an employee’s right to debate with co-workers about unions, management, and the terms and conditions of
their employment. For example, a rule that prohibits sending “unwanted, offensive, or inappropriate e-mails” would be deemed unlawful because of its overly broad scope, which might encompass communications regarding management or labor disputes.
Personal Electronic Device Policies
Employees also have a Section 7 right to photograph and make recordings in furtherance of their protected concerted activities. Cognizant of this right, the NLRB has been especially critical of bans that restrict the use of personal electronic devices (e.g., cell phones) at work. For example, a rule that prohibits employees from “wearing cell phones, making personal calls or viewing or sending texts while on duty” would be deemed unlawful by the NLRB because employees could reasonably interpret “on duty” to include non-work time (e.g., breaks and meals).
Takeaway
In sum, employee handbooks are likely to be at the forefront of NLRB scrutiny for years to come. A seemingly innocuous workplace rule that is well-intentioned is no defense if the rule could reasonably be interpreted to restrict the exercise of an employee’s Section 7 rights. Narrowly restricting workplace rules and providing context are key to minimizing the risk of an employee handbook becoming the basis of an unfair labor practice charge. For this reason, “less is better” is the new HN mantra.
Jason Weber is an associate at Thompson, Coe, Cousins & Irons, LLP. He can be reached at jweber@thompsoncoe.com.
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N ove mb e r 2 0 15
Classifieds
Dal l as Bar A ssoci ati on l Headnotes 19
November
EXPERT WITNESS
Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 222-9494. dlopez@pulmanlaw.com. Economic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, business valuation, credit damage and divorce matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com. “We Count.”
OFFICE SPACE
North Dallas - Lincoln Centre. Law firm located at Lincoln Centre has one partner size office and cubicle available. Located at LBJ and the Tollway; two conference rooms; break room/kitchen; copier; Email: dallasipfirm@gmail.com for more information. Uptown – North Central Expy. Prime location at 4144 N. Central Expressway. Affordable window office available December 1st, conference room, kitchen, Internet service, area for assistant if needed, free garage parking. Email lynn@ qlynnlaw.com or call (214) 552-1349. Austin - 816 Congress Avenue. Sublease law firm space; approximately 1845 RSF to 4125 RSF. Class A building with security. Two blocks from, and outstanding views of, Capitol. Fitness center with lockers and showers. Parking available. Sublease space or executive-suite arrangement (e.g., telecom, fax, copier, furnished office(s)). (512) 474-1492 or email: AustinCongressAveSubLeaseSpace@ gmail.com. Far North Dallas - Tollway & Frankford Rd. Office Space Available, 2588 square feet, ready to go! Includes 7 Large Carpeted Private offices. Reception Area, Large Conference Room, Large Kitchen, Storage and Utility Rooms, Ample Parking. Lease rate $11.75 per sq. ft. One block east of Dallas North Tollway. Contact Kevin at (214) 770-4063 or kevin@kevinodavis.com. North Dallas/Farmers Branch - Law firm has several offices for lease. $400/month. Includes use of furniture, Internet, fax, parking, conference rooms, and kitchen. Convenient location. No lease required. Please contact Ilene Smoger at (972) 243-5297 or ilene@texasinjurylaw.com. Uptown Dallas. 1200 square foot four office suite with conference room and reception area in well maintained small office building one block from Crescent with high ceilings, wood floors, large windows and other amenities. Contact Owner @ (214) 8550127 or jackcirwin@earthlink.net. Galleria Tower. Law firm has a window office available Sept. 1 in newly renovated space. Amenities include: access to law library, large and small conference rooms, kitchen, copy room, high speed color copier, phone, phone service, Internet, and file room. Free garage parking and 24/7 access. For additional information, please call Diana at (972) 934-4110 or Diana@travislaw.com.
Downtown Dallas - Arts District. Offices available for rent with law firm located in Downtown Dallas Class A, Arts District building. Amenities include conference room, law library, secretarial station, kitchen, parking garage, photocopy/scanner/postage/facsimile and related amenities. Contact Laura at (214) 922-9265. Ready To Practice Law “Like A Boss”? No Law Firm Required. Independent business attorneys and litigators need a professional, secure place to work, meet clients, and network - NOT just another executive suite, sublease, home office or coffee shop. VENUE is a “working clubhouse” built BY attorneys, exclusively FOR attorneys. Occupying two top floors in a landmark downtown building, VENUE provides the resources, training and support attorneys need to launch their firms and accelerate their practices. In addition to workspaces and offices, VENUE members will have access to: 30+ hours CLE & management/ development training annually, exclusive networking & social events, and an elite network of 100+ local partner-level peers. VENUE is the “Practice of Law Made Perfect.” For info or to schedule a tour: www.attorneyvenue.com. Furnished single office with secretarial space available if needed within small real estate law firm located at 4054 McKinney Avenue. Shared conference and break room, furniture, copier, fax, DSL & phone equipment are available if needed. No long term commitment and a monthly rate of $850.00. Call (214) 520-0600. Sublease at Campbell Centre I - Central Expressway & Northwest Highway area. Nice window office space ($1,900/ mo) with separate space for assistant (addt’l $500 / month); 12th floor. Space includes shared use of three conference rooms, kitchen, and covered parking garage spaces. Amenities include shared receptionist, phone system, copier, scanner, and fax. Please contact Mr. Hall at (214) 691-7781. Downtown Dallas – Office available, located in the historic KATY Building directly across from the Dallas County Courthouses. Receptionist, phone system, conference room, Wi-Fi, fax and copier available for tenants use. No lease required. Please inquire at (214) 748-1948. Park Cities/Preston Center/Toll Road – Spacious window office with adjoining conference room or secretarial space in recently built office suite. Amenities include additional large conference room, receptionist, fax, high speed color scanner/copier/printer, parking garage, Internet–wired and Wi-Fi. Email rick@ tubblawfirm.com or call (214) 965-8535.
POSITIONS AVAILABLE
Civil Litigation Attorney. Business litigation firm in Turtle Creek seeks attorney with 0-5 years’ civil litigation experience. Strong academic record and writing skills required. Salary negotiable. Send cover letter and resume in confidence to oaklawnfirm@aol.com. Commercial Litigation Attorney. Boutique law firm serving construction community seeking a contract attorney with 2 to 4 years commercial litigation. Heavy discovery and motion practice. Excellent computer skills a must. Construction experience a plus. Possibility of full time employment. Please send resume and desired hourly rate to Dallas Bar Association, Box 15-11, 2101 Ross Avenue, Dallas, TX 75201. Experienced Commercial Litigation Attorney. Well established Dallas, Texas law firm In the Uptown area seeks an attorney with 5 to 10 years’ experience. We
are seeking a candidate with exceptional research and writing skills with commercial Litigation experience. Some existing hourly clientele a plus. Salary commensurate with experience, excellent benefits. Please respond with cover letter and resume to: bill@beckham-group.com. Experienced Paralegal. Uptown Dallas boutique firm with a sophisticated corporate and real estate transactional practice seeks experienced paralegal with a minimum of 3 years law firm (or equivalent) work. Thorough knowledge of Windows 8, Microsoft Word and Outlook is required. Candidate will work closely with attorneys to draft and proof documents, handle filings, manage closings, and perform title and survey review. Must have strong ability to learn and work independently. Excellent salary commensurate with experience. Please send resumes to aoppliger@exallwood.com. Legal Assistant - Paralegal. Seeking a qualified legal assistant for a position in the legal department of the DII Asbestos Trust. An ideal candidate will be certified as a paralegal and have three or more years of litigation experience. Requirements include: a critical thinker who is detailoriented, organized, self-motivated, and proficient with Microsoft Office. Excellent writing, analytical, research, and presentation skills are important. Our new team member will work closely with attorneys tracking claims, coordinating calendars, responding to discovery requests, reviewing claim documents, and preparing claims for mediation and arbitration, among other things. The office is located in North Dallas with a Monday through Friday work schedule, competitive compensation, and attractive benefits. Please send resumes to Sharon Coston at scoston@diiasbestostrust.org. Field Office Director. ACT (Advocates for Community Transformation), a new model of ministry using the justice system to empower inner-city residents to fight crime on their streets while sharing with them the hope of the gospel, has an immediate opening for an Attorney who will serve as a Field Office Director (Dallas area). This leadership position requires previous management, litigation and inner-city experience, as well as other traits consistent with ACT’s values/ purpose. The ideal candidate will be passionate about social justice and have a desire to actively develop and engage a collaborative neighborhood strategy. Fluency in Spanish is desired. For more information, please visit http://actdallas. org/join-our-team/attorney. Deputy Director of Litigation for Legal Aid of NorthWest Texas (LANWT). Requirements: Licensed to practice law in Texas 5 years +; Minimum ten years of progressive litigation experience, including jury trials; Able to work well with people from diverse cultures and backgrounds; Board Certification in Family Law or Civil Litigation, strongly preferred; Spanish is a plus. Benefits: $75,000 and up based on qualifications and experience. Excellent benefits package. Apply at www.lanwt.org. Please submit all of your material here: E-mail: careers@lanwt.org; or Fax to (817) 649475. If applying by e-mail, please include
the job title in the subject line. LANWT is an equal opportunity employer. Veterans are encouraged to apply. Legal Aid of NorthWest Texas (“LANWT”) currently has various openings throughout its firm at various locations. We are a Section 501(c)(3) nonprofit Texas Corporation. LANWT provides free civil legal services to eligible low-income residents in 114 Texas Counties. If you are interested in joining a great team that offers you the opportunity to rapidly develop litigation skills in court, a generous health benefits package, and the ability to be of service to others, we encourage you to visit LANWT’s career site at www.lanwt.org.
POSITION WANTED
Real Estate and Finance Attorney. Over fifteen years major firm experience representing lenders, buyers and sellers of commercial real estate, including multistate portfolios. Full or part time. Willing to maintain own health insurance. Greater Dallas/North of Dallas area. cpant@verizon.net.
SERVICES
Trial Preparation Stress Relief: Licensed litigation attorney (20 years) available for hourly projects: court appearances, trial preparation, drafting pleadings/discovery/ motions, attending depositions, mediations. Large firm and complex litigation experience, first and second chair trials and arbitrations, law review. (972) 665-9834. Helping trial lawyers win cases. Attorney with outstanding research and writing skills available for hourly projects. More than 30 years’ experience; law review, former judicial clerk. (972) 2438444; www.trialassistance.com. Credentialed Forensic Genealogist & Attorney – hire an experienced attorney and credentialed forensic genealogist to ethically find next of kin and missing heirs for intestacy, probate, guardianship, property issues, and more. Reasonable hourly rate. See www. ProfessionalAncestryResearch.com. Wanda Smith, (972) 836-9091. Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089. Energy Acquisition(s): I buy any size royalty(ies), mineral(s) , working interest(s) and try to reach (and pay) the sellers asking price. I am a licensed attorney and have been making oil and gas purchases for 35 +/- years. E-mail to bleitch@prodigy.net or call Brenda at 1-800-760-9890 or (214) 720-9890 for a friendly and quick analysis and response. To place an affordable classified ad here, contact Judi Smalling at (214) 2207452 or email jsmalling@dallasbar.org.
Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.
Need Help? You’re Not Alone. Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 More resources available online at www.dallasbar.org/content/peer-assistance-committee
20 H e a d n o t e s l D a l l a s B a r A s s o ciation†KM_HN_2015 Nov_092915b.pdf
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Kelly practices exclusively in the area of matrimonial law, and is Family Law Board Certified by the Texas Board of Legal Specialization at
W W W . M C C L U R E - L A W G R O U P. C O M
Novem ber 2015