Dallas Bar Association
HEADNOTES Focus Corporate Counsel/Securities
November 2016 Volume 41 Number 11
Perkins Coie – Paying it Forward As a national law firm with over 1,000 attorneys, Perkins Coie believes that it is incumbent upon it to provide top-quality legal service on a pro bono basis to those who need it most. In fact, in 2015 alone, Perkins Coie attorneys and legal staff stepped up to do just that, providing roughly 63,000 pro bono hours. The firm’s clients range from children seeking lawful immigration status to seniors trying to ensure that what little they have left is given to their families, from active-duty military personnel and veterans who served in combat to those working to preserve the heroic efforts of a deceased hero, from nonprofit organizations struggling to protect their intellectual property to micro entrepreneurs forging ahead to create a new business and future out of poverty, and many others in between. Ensuring access to justice for under- Steve Smith served and disadvantaged individuals and communities is at the core of Perkins Coie’s pro bono program. And it is because of this deep commitment to pro bono and service to the communities in which we work that the Dallas office of Perkins Coie wanted to participate in this year’s annual Access to Justice Campaign benefitting the Dallas Volunteer Attorney Program (DVAP) in a meaningful way. “By donating to DVAP, we are able to help spread the availability of free legal services to countless residents that are in desperate need of legal services,” said Steve Smith, Dallas Office Managing Partner. “DVAP gets this accomplished by being on the front lines, with programs such as its successful neighborhood legal clinics.” Since the office opened in 2010, Perkins Coie attor-
neys in Dallas have volunteered their time and efforts on behalf of DVAP, as well as Catholic Charities, Human Rights Initiative of North Texas, Turtle Creek Recovery Center, and Vogel Alcove, among others, and believe that their efforts on behalf of their pro bono clients have helped make a difference in our community for the better. Dallas attorneys have also participated in larger systemic litigation pro bono projects across the firm on behalf of the indigent and involving civil rights matters. In two impact cases, one of which challenged unconstitutional practices in Arizona’s prison system and another which challenged the inadequate reimbursement of foster care families in Washington, Perkins Coie received awards of attorneys’ fees. The firm uses portions of the fees recovered in pro bono cases to fund other public service initiatives. Funds not donated to nonprofit organizations are funneled back into the firm’s pro bono program and other public service initiatives and expenditures. Many of these funds have already been dedicated to be used for programs or gifts that would have a significant and longlasting impact on the individuals or groups being served. Perkins Coie is proud of the incredible devotion of our attorneys and staff. Through our pro bono legal work and other public and community service efforts, we continue to change lives and transform our communities. The attorneys in the Dallas office of Perkins Coie were committed to pledge a portion of these funds to support the Dallas Volunteer Attorney Program with a gift of $30,000, which will help DVAP continue the important work that it is known for—helping to ensure that the poor have access to our justice system, the support of legal counsel, and equality before the law.
“One of the most attractive aspects of the Perkins Coie culture is the willingness of its attorneys to take on tough cases and to step up to serve those $1 who truly need our services Million but cannot afford them,” said Mr. Smith. $900,000 Shortly after joining the firm, Mr. Smith himself worked on an $800,000 asylum case, in conjunction with others in the firm and Human Rights Initiative, that involved $700,000 a Coptic Christian from Egypt. “The work was challenging $600,000 and difficult at times, but the underlying facts of our client’s $500,000 case were compelling, which made the successful result that $400,000 much more satisfying for all of us,” he said. $350,000 Perkins Coie is grateful to be a part of a legal community that takes seriously its obligation to $300,000 serve those in need in Dallas, and it encourages other firms and $250,000 practitioners to give generously to the Campaign as well. $200,000 The Dallas Volunteer Attorney Program is a joint pro bono $150,000 program of the Dallas Bar Asso$50,0000 ciation and Legal Aid of NorthWest Texas. The program is the only one of its kind in Texas and brings together the volunteer resources of a major metropolitan bar association with the legal aid expertise of the largest and oldest civil legal aid program in North Texas. To learn more or make a gift, contact Alicia HernanHN dez at ahernandez@dallasbar.org or 214-220-7499. To Give: www.dvapcampaign.org.
STAFF REPORT
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*:
PLATINUM ($10,000) Anonymous Dallas Association of Young Lawyers DBA Corporate Counsel Section Exxon Mobil Corporation Gary & Donna Fowler The Hartnett Law Firm Haynes and Boone, LLP Jackson Walker LLP Jones Day Kastl Law, PC Koons Fuller, PC Mike McKool Margaret & Jaime Spellings
PRESIDENT’S COUNCIL ($30,000) Connatser Family Law Crain Lewis Brogdon, LLP Perkins Coie LLP
CHAIRMAN’S COUNCIL ($25,000) Anonymous Foundation AT&T Services, Inc. Payne Mitchell Law Group
GOLD ($5,100+) DBA Business Litigation Section DBA Probate, Trusts & Estates Law Section DBA Real Property Law Section Godwin Bowman & Martinez Gruber Elrod Johansen Hail Shank LLP Hartline Dacus Barger Dreyer LLP McKool Smith Squire Patton Boggs Robert L. Tobey Waters, Kraus & Paul, LLP Winstead PC *Donors as of press time.
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.
Inside 8 Pro Bono Awards 13 Court of Chancery Upholds ETE’s Right to Terminate Deal 16 2016 Bench Bar Conference 21 The Servicemember’s Civil Relief Act
DBA MEMBER REMINDER – RENEW ONLINE TODAY! You may renew your 2017 DBA Dues online starting TODAY! Go to the DBA website and under the Membership tab, click on Renew Online. Or if you prefer to mail in your payment, log in and select the 2017 Dues Statement option to print and mail in a copy of your 2017 DBA DUES STATEMENT with payment. Your 2017 DBA DUES must be paid by December 31, 2016 in order to continue receiving ALL your member benefits. 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 2016
Calendar November Events
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.
NOVEMBER 4-BELO Noon
MONDAY, NOVEMBER 14
FRIDAY CLINICS
“The Addicted Lawyer: Tales of The Bar, Booze, Blow and Redemption,” Brian Cuban. (Ethics 1.00)* RSVP to kzack@dallasbar.org. Co-sponsored by the CLE and Peer Assistance Committees.
Noon
NOVEMBER 11-NORTH DALLAS** Noon
“The Do’s and Don’ts of the Grievance Process,” Kristin Brady, Jason Friedman, Robert Hinton and Kent Krause. (Ethics 1.00)* RSVP to kzack@dallasbar.org. Update,” Hon. Joseph Cox, Hon. Jeff Boyd and Hon. Jeff Brown. (MCLE 1.00)*
Noon
Legal History Discussion Group “They Hang Horse Thieves, Don’t They? History of the Death Penalty: An Examination of Texas Executions,” Chuck Lanehart. (MLE 1.00)*
Tort & Insurance Practice Section “Texas Supreme Court Update,” Hon. Debra Lehrmann. (Ethics 1.00)* Morris Harrell Professionalism Committee
6:00 p.m. DAYL Board of Directors Meeting
Media Relations Committee
WEDNESDAY, NOVEMBER 2
DAYL Business & Career Development Committee
11:00 a.m. SBOT Private Exchange Insurance CLE Employee Benefits & Executive Compensation Section “PBGC Matters,” Harold J. Ashner. (MCLE 1.00)*
Noon
Antitrust & Trade Regulation Section “Teladoc and the Texas Medical Board: Denial of State Action Immunity in the Fifth Circuit,” Matt Dow and Josh Romero. (MCLE 1.00)* International Law Section “Entering the Cuban Market: the American Airlines Experience,” Steffen Horlacher, Larry Pascal and Robert Wirick. (MCLE 1.00)* Mergers & Acquisitions Section “What makes Public M&A Special,” Louis Matthews and Jay Tabor. (MCLE 1.00)*
Family Law Section “How To Handle Tax and Financial Issues in a Family Law Case,” Guy Rodgers. (MCLE 1.00)*
MONDAY, NOVEMBER 21 Noon
DVAP New Lawyers Luncheon. For more information, contact reed-brownc@lanwt.org.
5:30 p.m. Bankruptcy & Commercial Law Section Topic Not Yet Available
THURSDAY, NOVEMBER 3 Construction Law Section “Construction Claim Diagnostic Analytics: Breaking Down and Building Up the Claim,” E.J. Janik. (MCLE 1.00)*
DAYL Lunch & Learn CLE 5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
THURSDAY, NOVEMBER 10 Noon
Criminal Justice Committee
TUESDAY, NOVEMBER 22 Noon
Family Law Section Board Meeting
DAYL Elder Law Committee
5:00 p.m. Lawyer Referral Service Committee Reception
FRIDAY, NOVEMBER 4
3:30 p.m. DBA Annual Meeting
MONDAY, NOVEMBER 7 Tax Law Section “Tax Obstruction Crimes: Is Making the IRS’ Job Harder Enough,” G. Thomas Rhodus. (Ethics 1.00)*
Energy Law Section “All QCDs - No BFPs,” George Snell. (MCLE 1.00)* Health Law Section “Indemnification Provisions: Liability, Drafting, and Selecting the Right Insurance Coverage,” Darrell Armer. (MCLE 1.00)*
6:00 p.m. J.L. Turner Legal Association
Friday Clinic—Belo “The Addicted Lawyer: Tales of The Bar, Booze, Blow and Redemption,” Brian Cuban. (Ethics 1.00)* Co-sponsored by the CLE and Peer Assistance Committees. RSVP to kzack@dallasbar.org.
Courthouse Committee American Immigration Lawyers Association
WEDNESDAY, NOVEMBER 23 No DBA Events Scheduled
DBA Offices Closed in Observance of Thanksgiving Holiday
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group
Christian Lawyers Fellowship
Lawyer Referral Service Committee
Probate, Trusts & Estates Law Section “Drafting and Enforcing Arbitration Clauses in Wills, Trusts and Settlement Agreements,” W. Cameron McCulloch. (MCLE 1.00, Ethics 0.25)*
WEDNESDAY, NOVEMBER 16 THURSDAY, NOVEMBER 24 Noon
Publications Committee
Labor & Employment Law Section “Hiring Competitors’ Employees and Protecting the Company When Competitors Hire Yours,” Jeffrey Harvey, Mary Goodrich Nix and Ann Marie Painter. (MCLE 1.00)* Senior Lawyers Committee
Community Involvement Committee
6:00 p.m. An Evening With Bob Woodward VIP Reception at 6:00 p.m.; Dinner at 7:15 p.m. 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 Clinic—Belo “The Do’s and Don’ts of the Grievance Process,” Kristin Brady, Jason Friedman, Robert Hinton and Kent Krause. (Ethics 1.00)* RSVP to kzack@dallasbar.org. DAYL Lawyers Against Domestic Violence Committee
Entertainment Committee Noon
Public Forum Committee
Noon
TUESDAY, NOVEMBER 15
WEDNESDAY, NOVEMBER 9
Minority Participation Committee
Noon
Noon
4:00 p.m. DAYL Swearing-In Ceremony
6:00 p.m. Home Project Committee
Solo & Small Firm Section Topic Not Yet Available
Noon
FRIDAY, NOVEMBER 18
Peer Assistance Committee
TUESDAY, NOVEMBER 1
Noon
Real Property Law Section “Botched Real Estate Transactions – Tips from the Bench and Bar to Avoid the Courthouse,” Chris Chauvin, Hon. King Fifer, Julie Pettit, Neal Suit, and Hon. Martin Hoffman, moderator. (MCLE 1.00)*
“Legal Ethics to Help Clients (and Law Firms) Deal with Cyber Attacks,” Peter Vogel. (Ethics 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 18-BELO Noon
Alternative Dispute Resolution Section “Trends and Developments in Healthcare ADR,” Jonathan Herman, Laura Klempay and Joe Don Ridgell. (MCLE 1.00)*
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.
FRIDAY, NOVEMBER 25 DBA Offices Closed in Observance of Thanksgiving Holiday
FRIDAY, NOVEMBER 11
Law Day Committee
MONDAY, NOVEMBER 28
Pro Bono Activities Committee
Noon
Noon
DWLA Board of Directors Meeting
Friday Clinic—North Dallas** “Legal Ethics to Help Clients (and Law Firms) Deal with Cyber Attacks,” Peter Vogel. (Ethics 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.
Non Profit Law Study Group 5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
Securities Section “Hot Issues for Investment Fund Managers,” James Deeken and George Lee. (MCLE 1.00)*
THURSDAY, NOVEMBER 17 Noon
Appellate Law Section “Appellate Mediation,” Deborah Hankinson and Hon. Mark Whittington. (MCLE 1.00)* Minority Participation Committee
Computer Law Section “Functional Claiming in the United States: Evolving Law and Best Practice,” Aamir Haq. (MCLE 1.00)*
Law in the Schools & Community Committee
TUESDAY, NOVEMBER 29 Noon
DBF Board of Directors Meeting
TUESDAY, NOVEMBER 8
Government Law Section Topic Not Yet Available
Christian Legal Society DAYL CLE Committee
WEDNESDAY, NOVEMBER 30
Noon
Trial Skills Section “Cross Examination: The Main Event,” Eric Pinker. (MCLE 1.00)*
Dallas LGBT Bar Association
Noon
Business Litigation Section “Confirming Two Justice Jeffs and One Ordinary Joe for a Supreme Court of Texas
3:30 p.m. DBA Board of Directors Meeting
DBA CSF Board of Directors Meeting Municipal Justice Bar Association
2017 INAUGURAL OF ROB CRAIN A T T HE W ESTIN G ALLERIA D ALLAS
Saturday, January 14, 2017
The Dallas Bar Association will inaugurate its 108th President, Rob Crain, at the inaugural ball on Saturday, January 14. The black-tie ball will include dinner, live music by Whiskey Pants, and a silent auction. Cocktails 6:30 p.m. | Dinner 7:30 p.m.
Tickets $150; Tables $1,500 | Judiciary $100 To reserve your ticket, contact Shawna Bush at (214) 220-7453 or sbush@dallasbar.org. Visit www.dallasbar.org for more information!
N ove mb e r 2 0 1 6
Focus
D al l as Bar A ssoci ati on l Headnotes 3
Corporate Counsel & Securities
What to Do When (Not If) Your Company Gets Hacked BY PETER VOGEL AND ERIC LEVY
Clearly, the Internet has transformed the world. Not only can we now communicate with one another through our computer or mobile phone, but our televisions, portable health devices, and even our refrigerators are connected to the Internet. As technology becomes more and more sophisticated, so too do hackers’ efforts to steal and misuse the personal information of millions of individuals, not to mention company trade secrets, executive-level communications, and intellectual property. In a study done a few months ago, the Identity Theft Resource Center stated that the United States was averaging between two and three data intrusions per day, and that is only counting the reported ones. The statistics reveal that less than 20 percent are reported in the first place. With the number of data intrusions only set to increase over the next decade, it is not a question of “if” your company is going to get hacked but “when.” This article will offer some practical tips on developing and implementing an incident response plan that will effectively deal with a data intrusion and minimize potential financial and reputational fallout. Perhaps the most important thing to include in an incident response plan (IRP) is a clear delineation of who is doing what. When an intrusion is eventually discovered, a lot of things need to get done, and the last thing you want is to spend days, weeks or even hours debating who is responsible for handing these various areas. A dedicated Internal Response Team (IRT) is essential to making an IRP work.
At the core of the IRT is the Executive Committee, which should be staffed by one person from IT information security, one person with a compliance/risk/ legal background, and one person with institutional executive authority (to serve as the liaison with the company’s leadership team and clear the way and arrange financing for the various remediation tasks required). The Executive Committee drives and directs the initial response and investigation by the Company and receives reports several times a day until the problem is fixed and the extent of the damage is understood. Depending on the nature of the attack/exposure, the IRT may include representatives of human resources, sales/ marketing, or facilities management if any of these functions is directly affected by or directly targeted by the data loss. While authority for big decisions concerning the infusion must ultimately lie with company leadership, the Executive Committee will handle the day to day minutiae of the incident. The IRP should also identify which member of the Executive Committee is responsible for each step. The IRP should also identify any outside entities that will be retained or contacted once the intrusion is discovered. These would include (1) outside legal counsel to deal with the myriad of divergent intrusion and breach reporting requirements found in federal, state, and international data breach laws (and to cloak communications surrounding the intrusion and breach in the attorney-client privilege); (2) an independent IT security firm to impartially investigate the causes of the intrusion and breach and to help the
company come up with technical measures for minimizing the chance of future intrusions and breaches; and (3) a PR firm that can help the company craft a message that provides relevant information while minimizing reputational loss. Amidst the potential chaos of a data intrusion and breach, you do not want to be flipping through the digital equivalent of the Yellow Pages to find outside assistance. Regular reporting, in writing, is also essential—once per day or once every other day while investigation and remediation of the intrusion and breach are taking place and at least once a week while other aspects of the intrusion and breach (like notification) are being resolved. Even if there does not appear to be anything substantive to report, creating a paper trail to demonstrate how diligently the company responded to the incident can go a long way in any future legal or reputational battles.
Finally, and most importantly, test the IRP before you actually have to implement it. It does absolutely no good to waive your well-crafted IRP in front of everyone involved in the process if they have never seen it before, did not know they were part of the IRT (or worse, the Executive Committee) and do not understand precisely what they need to do. Providing training to participants in incident response and conducting table-top exercises (or even a live simulation of a data intrusion) with all key players involved will not only make everyone feel more comfortable and confident in their roles, it will also identify any weaknesses in the plan in time for them to be addressed HN before the real thing occurs. Peter Vogel is a Partner at Gardere Wynne Sewell LLP and a DBA Past President. Eric Levy is a Senior Attorney at the firm. They can be reached at pvogel@gardere.com and elevy@gardere. com, respectively.
Monday, December 12, 6:00 to 8:00 p.m. at the Belo Mansion Enjoy pictures with Santa, magician, sing-alongs, clown, face-painting, tap dancing by Class Act, and more!
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 2016
President's Column
Headnotes Published by: DALLAS BAR ASSOCIATION
Big Plays Late in the Third Quarter BY JERRY ALEXANDER
I am not sure if any of the last 25 Presidents of the Dallas Bar Association have written an entire year of columns without quoting Tom Landry at least once. This President is certainly not going to go the entire year without quoting Coach Landry. Coach Landry said that every Super Bowl that he had been a part of was decided late in the third quarter by two or three big plays. Not getting off to a good start in the first quarter, and not Hail Mary’s in the fourth quarter, but two or three big plays late in the third quarter. The Dallas Bar Association had three big plays late in the third quarter of 2016 that, while they may not have won the game or the year (I am not sure you can actually “win” a year), certainly proved the second part of Coach Landry’s quote, which was, “because for some reason that I am still not sure about, a team’s true character shows itself late in the third quarter.” I think the three big plays (hereafter “Programs”) that the Dallas Bar Association had late in September, the third quarter of 2016, the “Day of Civility” program, the “Philbin Awards Luncheon,” and the “Appealing to the Public” program exemplified the true character of the DBA as well as anything it has done this year. Perhaps even more importantly, these three Programs are exemplars of how the great work of the DBA goes on because of its longstanding and hard-working Committee members and Section members that continue the successful programs and innovate new ones, some of which have such great success that they become continuing programs in their own right. The first of these Programs was an Innovation. The “Day of Civility,” which was conceived by the Professionalism Committee, would not have happened without the hard work of Michael Hurst, Chair of the DBA Professionalism Committee. This idea was brought to Michael by DBA members Pat Long, President of the Dallas ABOTA Chapter, and Justice Doug Lang, of the Dallas Court of Appeals. Michael then had the talent, influence, and good sense to call on all the right people who were capable of putting the Program together. Michael drafted a letter of Judicial Endorsement for civil conduct among lawyers and between lawyers and the Judiciary. It was signed by all 13 Presiding Judges in Dallas and the Northern District, Federal, State, and County, and was actually displayed in many courtrooms. For those who could not attended the Day of Civility Program, there were a number of remarkable things. First of all, over 330 attorneys showed up on a Friday afternoon to hear discussions from three panels, one of lawyers, one of judges, and one of media representatives about civility, ethics, and the general state of conduct in Courts and litigation. It was a beautiful day and there were as many people still in the room listening to the last panel at 4:00 p.m. as had been there at the beginning. The mood in the room as the day went on, to me, seemed to lighten and brighten almost to the tenor of a tent revival. There were 300+ lawyers in the room listening to people talk about ways to be basically “nice” to each other, and how helpful that was to lawyers, judges, and most importantly, the litigants. The second remarkable thing was the comments made by the lawyers and the judges about the Program after its conclusion were almost identical. In addition to the hoped-for, “this was a really good program,” there were the comments, “I think I really connected with the attorneys in the room” and “I thought the Judges were absolutely ‘right on’ in their comments.” Most importantly there were comments from everyone that they would look for ways to make the litigation process easier and more efficient for everyone through civility. Presently the DBA is inquiring if the State Bar of Texas is interested in rolling something like this out state-wide. The second big play late in the third quarter was a program that is not new. As a matter of fact it has continued for 33 years! For the annual Stephen Philbin Awards Luncheon, members of the media who report on legal matters are invited to submit articles to a panel
of media and law experts to be reviewed and judged. Jessica Smith, the Communications and Media Director for the DBA does a tremendous job each year assisting the Media Relations Committee, led this year by Chair Cheryl Camin Murray, of Winstead PC, and Vice Chair Chrysta Castañeda, of The Castañeda Firm, in staging this Awards Luncheon. This year’s keynote speaker, DBA member Charles “Chip” Babcock, of Jackson Walker L.L.P., was nothing short of terrific, and the way the awards were presented created a lot of interest. As each award was given, a picture of the actual article was shown on the big screen in the Belo Pavilion. Along with its title there was usually a photograph of some person or thing of interest also displayed. Additionally, a brief description of what the articles were about was presented. After the ceremony, many lawyers came and asked how they could get copies of the actual articles to read. That has been arranged by links to the actual articles themselves having been placed on the DBA website. This Program was started in 1983. Fully half of the 11,000 members of the Dallas Bar Association were not even licensed to practice law when that Philbin Awards Program started! The Continuity of this Program is remarkable. The third big play late in the third quarter occurred in the Belo Pavilion on Monday, September 26, 2016 in the form of the “Appealing to the Public” program. In this Program the Dallas Court of Appeals sits in an actual session and hears an oral argument at Belo. This oral argument is not staged or scripted. It is an actual oral argument and anyone can attend. The special guests at this program were from the Dallas Independent School District. They are high school students, many of them who are participating through their schools in the DBA-sponsored Mock Trial Competition, which involves thousands of high school students from across the state. Non-panel member Justice Liz Lang-Miers first gave introductory remarks and talked to the students about an overview of the legal system and where the Court of Appeals fits into that system. She explained what would occur from a procedural standpoint (who goes first, etc.) at an oral argument before the Court of Appeals. When she finished, Justice Lang-Miers asked the Bailiff to call the Court into session. The Bailiff did so in a loud, booming voice. The Justices on the panel—Justice Molly Francis, Justice David Bridges, and Justice Bill Whitehill—ceremoniously filed in and took their seats on the “bench,” a raised dais against the windows of Belo Pavilion. The panel then began to hear oral arguments in an actual appeal from a probate court. The facts were very interesting and involved two sets of potential beneficiaries, a sizeable estate, and a slight change to a will with large consequences. The lawyers who argued the case, DBA members Nina Cortell, of Haynes and Boone, LLP, and Jim Hartnett, of the Hartnett Law Firm, both made wonderful arguments and represented our profession well before hundreds of high school students and other observers. At the conclusion of the oral argument, the Court was formally recessed, and the justices ceremoniously filed out. After the justices had left the Pavilion, the two adversaries demonstrated their civility by shaking hands in front of all of the students and then sat side by side at a table and answered the students’ questions. The questions were very pointed and very informed. Because of the way this court session was presented, the way the arguments were made, and the manner in which the justices were engaged, the argument was not only interesting, but had the Civility and Majesty that the law deserves. It was a great day for our profession and a fabulous example of lawyers, courts, and justices for these students to witness. The Dallas Bar Association had three big plays late in the third quarter of 2016 that as Coach Landry predicted “showed its true character”: INNOVATION, CONTINUITY, CIVILITY, AND MAJESTY. Thanks to all! See you at the Belo! Jerry HN
SAVE THE DATE
2016 NEW DBA MEMBERS AND NEWLY LICENSED ATTORNEYS ARE INVITED TO JOIN US FOR THE DALLAS BAR ASSOCIATION FALL FIESTA THURSDAY, NOVEMBER 17, 2016 | 5:30 UNTIL 8:00 P.M. | THE BELO MANSION COMPLIMENTARY FOOD AND BEVERAGES, AND RAFFLE DRAWINGS THROUGHOUT THE EVENING! RSVP TODAY, MEMBERSHIP@DALLASBAR.ORG
Law firms wishing to be listed as a sponsor, please send request to kwatson@dallasbar.org or (214) 220-7414.
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: Jerry C. Alexander President-Elect: Rob D. Crain First Vice President: Michael K. Hurst Second Vice President: Laura Benitez Geisler Secretary-Treasurer: Sakina Rasheed Foster Immediate Past President: Bradley C. Weber Directors: A. Shonn Brown, Hon. Rob Cañas, Jonathan Childers, Dawn Estes, Rocio Cristina Garcia (President, Dallas Hispanic Bar Association), Stephanie Gause (President, Dallas Association of Young Lawyers), Hon. Martin Hoffman, Krisi Kastl, Bill Mateja, Karen McCloud, Kate Morris, Cheryl Camin Murray, Emmanuel Obi (President, J.L. Turner Legal Association), Monika Sanford (President, Dallas Asian American Bar Association), Diane M. Sumoski, Robert L. Tobey (Chair), Aaron Tobin (Vice Chair) and Victor D. Vital Advisory Directors: Christopher Kang (President-Elect, Dallas Asian American Bar Association), Angelina LaPenotiere (President-Elect, Dallas Hispanic Bar Association), Tramaine Scott (President-Elect, J.L. Turner Legal Association), and Paul Simon (President-Elect, Dallas Association of Young Lawyers) Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Leon Carter, John Jansonius, Gregory Sampson and Brad Weber
HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Josh Garza Display Advertising: Annette Planey, Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Meghan Hausler and Keith Pillers Vice-Chairs: Alexander Farr and Carl Roberts Members: Timothy Ackermann, Logan Adock, Jerry C. Alexander, Wes Alost, Jason Bloom, Andrew Botts, Charles Coleman, Shannon Conway, Jess Davis, James Deets, Leiza Dolghih, Dawn Fowler, Susan Halpern, Jeremy Hawpe, Mary Louise Hopson, Lindsay Hedrick, Brad Jackson, Andrew Jones, Kristi Kautz, Amanda Kelley, Michelle Koledi, Kevin Koron-ka, Susan Kravick, Lawrence Maxwell, R. Sean McDonald, Tyler Mendez, Terah Moxley, Jessica Nathan, Eugene Ol-shevskyy, Kirk Pittard, Laura Anne Pohli, Charles Price, Kathy Roux, Jared Slade, Thad Spalding, Shana Stein, John Stevenson, Scott Stolley, Amy Stowe, Ashely Swenson, Michael Tristan, Pryce Tucker, Peter Vogel, Suzanne Westerheim, Yuki Whitmire 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 & Programs Coordinator: Melissa Garcia Membership Director: 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, Miriam Caporal, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins Program Assistant: Patsy Quinn Secretary: Taylor Piereira Copyright Dallas Bar Association 2016. 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 publica-tion. 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 nec-essarily 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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D al l as Bar A ssoci ati on l Headnotes 5
CONNATSER FAMILY LAW MEANS BUSINESS
The reputation of Connatser Family Law for handling highly complex property issues and division of business interests in a divorce is enhanced by the addition of veteran family lawyer Douglas A. Harrison to the firm. For more than 40 years, Doug has handled complex divorce cases in North Texas with an extraordinary level of competence, integrity and business acumen. He joins veteran family lawyers Mike DeBruin and Aubrey Connatser in an alliance rich with legal expertise, talent and creativity.
“I am honored and humbled to have Doug join our firm,” Aubrey says. “Having worked with and against him during my career, I know the quality of his advocacy, ethics and example as a person and lawyer. In divorce, Doug is a master of complex business and property matters. I couldn’t be more proud to have him on my team.”
MIKE DEBRUIN
DOUG HARRISON
AUBREY M. CONNATSER, PLLC 300 Crescent Court, Suite 270, Dallas TX 75201 214 306-8441 | connatserfamilylaw.com info@connatserfamilylaw.com DIVORCE
CHILD CUSTODY
COMPLEX SETTLEMENTS
AUBREY CONNATSER
Mike DeBruin was selected to the Texas Super Lawyers list (2003-16) Douglas A. Harrison was selected to the Texas Super Lawyers list (2004-16) Aubrey Connatser was selected to the Top 100:Texas Super Lawyers (2014-15) and Top 50: Women Lawyers list (2014-16) All lists by Thomson Reuters MARITAL AGREEMENTS
PATERNITY
MODIFICATIONS
COLLABORATIVE LAW
6 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 2016
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 4, 2016 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 Bernard Hirsh Licensed in 1941 Royal H. Brin, Jr. Licensed in 1942 Frank Ripy McWhorter Licensed in 1946 James R. Alexander Jean L. White Licensed in 1947 John F. Wilson Licensed in 1948 George Ashley Florence K. Fletcher Lionel E. Gilly Paul Harkey Licensed in 1949 Jack E. Brady William N. Hamilton Harold L. Hitchins Hon. Ted Z. Robertson Licensed in 1950 George C. Anson Albert L. Bartley, Jr. Harold B. Berman D. Louise Boucher Charles C. Garner Henry Gilchrist Wayne Hancock William C. Herndon 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 John L. Roach Hon. Thomas B. Thorpe H.E. Walker, Jr. Licensed in 1952 Robert F. Ashley John H. Chiles James E. Coleman, Jr. Vester T. Hughes, Jr. Jerry N. Jordan William (Bill) H. Tinsley James A. Williams 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 John R. Wright Licensed in 1955 Hon. Ted M. Akin Dennis G. Brewer, Sr. Eugenio Cazorla Thomas N. Griffith Lawrence P. Hochberg Jack Pew, Jr. Forrest Smith Robb Stewart Lewis T. Sweet, Jr. 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 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 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 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 H. McElhaney William T. Satterwhite Harry R. Shawver, Jr. 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 Norman P. Hines, Jr. Herbert L. Hooks Jerry D. Kelly Richard A. Lempert Aglaia D. Mauzy George David Neal Burton H. Patterson Paul L. Salzberger Edwin M. Sigel Joe A. Stalcup Charles M. Supple Licensed in 1960 Joe B. Abbey 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 Albert J. Leviton 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 P. Mike McCullough Walter E. (Rip) Parker James E. Price 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 Don M. Sallinger Joe H. Staley Peter M. Tart Maridell Templeton Jim A. Watson Dennis L. White 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 Larry L. Schoenbrun Winfield W. Scott Douglas M. Smith John M. Stephenson, Jr. T. McCullough Strother Stephen D. Susman Windle Turley Peter Winstead Licensed in 1966 Nathan Allen J. Michael Amis James P. Barklow Andrew Barr John R. Bauer Jerrold (Jerry) M. Bell Ronald W. Bradley Donald Campbell Regis W. Campfield Dewey M. Dalton Jack H. Davis Michael G. Denton William C. Dever Cal L. Donsly Hon. Kerry P. FitzGerald Richard A. Fogel Carl Allen Generes Robert G. Hallam R. Chris Harvey Walter J. Humann Gene L. Jameson Stephen W. Johnson H. Norman Kinzy William A. Kramer Robert H. Kroney W. (Nick) Kuntz Michael Lowenberg Jay J. Madrid Jack Manning Joe N. McClendon David G. McLane Paul McNutt Michael P. Metcalf Durward D. Moore Raymond D. Noah David R. Noteware Vincent W. Perini Edward A. Peterson Robert F. See James A. Showers Arthur Skibell Annette Stewart David H. Tannenbaum Jay M. Vogelson Robert E. Wilbur
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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 2016
Norton Rose Fulbright Named Pro Bono Law Firm of the Year hours in their annual bonus program for associates and pay some costs associated with this work. The firm’s lawyers and staff provide assistance to charitable, nonprofit organizations, community development projects, and legal service programs for the poor in the United States, the United Kingdom and internationally. Samuel Peca, of Weil, Gotshal & Manges, LLP, was named Pro Bono Lawyer of the Year. Mr. Peca contributed more than 360 hours of pro bono service through his 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 full-time
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 25, the Dallas office of Norton Rose Fulbright US LLP was recognized as Pro Bono Law Firm of the Year for providing more than 2,000 hours of pro bono services—1,271 of which went to DVAP clients. Norton Rose Fulbright donates thousands of hours to pro bono matters each year. The firm encourages their people to use their legal knowledge and professional skills to help those who are disadvantaged, underprivileged, or who lack access to legal advice. “We use our skills and knowledge where we can make a difference, whether it is for our clients or for our wider communities,” said Peter Mar-
Samuel Peca
tyr, Chief Executive, Norton Rose Fulbright. According to their website, to encourage lawyers’ participation, Norton Rose Fulbright considers pro bono
2016 Pro Bono Awards Lawyer of the Year Samuel Peca Weil, Gotshal & Manges LLP
Outstanding Small Firm Lawyer Tanner Hartnett The Hartnett Law Firm
Lawyer Firm of the Year Norton Rose Fulbright US LLP
Outstanding Solo Practitioner Margaret Spellings
Pro Bono Appreciation Award Jerry C. Alexander Passman & Jones, P.C. Gold Award for Pro Bono Service Morgan, Lewis & Bockius LLP Andrews Kurth Kenyon LLP Baker Botts L.L.P. Haynes and Boone, LLP Silver Award for Pro Bono Service Cozen O’Connor Hunton & Williams LLP Akin Gump Strauss Hauer & Feld LLP Thompson & Knight LLP Bronze Award for Pro Bono Service Bracewell LLP Sidley Austin LLP Jones Day Locke Lord LLP Hartman Judicial Pro Bono Service Award Hon. Tena Callahan 302nd Family District Court Pro Bono Coordinator of the Year Kathleen Tarbox Munoz Andrews Kurth Kenyon LLP Outstanding Clinic Sponsor Southwest Airlines Outstanding Support Volunteer Gordon Hunter
at the DVAP offices. Mr. Peca spent two months working full-time with DVAP on a variety of cases, including family law, probate, and expunction matters. He also assisted at numerous DVAP clinics. After his time as a Lend-A-Lawyer ended, Mr. Peca continued to coordinate connecting Weil volunteers with DVAP needs. Prior to his experience as a Lend-A-Lawyer, Mr. Peca assisted DVAP by attending several intake clinics and accepting and resolving an advertised DVAP pro bono matter. An associate at Weil, Mr. Peca practices in the areas of private equity and mergers & acquisitions. DVAP congratulates Norton Rose Fulbright US LLP and Samuel Peca! HN
Outstanding Clinic Attorney Volunteers West Dallas Clinic William Milne, Attorney at Law Garland Clinic Casey Meyers, Manning & Meyers South Dallas Clinic Jack Manning, Manning & Meyers East Dallas Clinic David Weiner, Rosenthal Weiner, LLP Outstanding Veterans Clinic Attorney Jonathan Rosamond Baker & McKenzie, LLP Lois Bacon Special Services Award Raechel Parolisi Attorney at Law Pro Bono Court Reporter of the Year Tenesa Shaw 192nd Civil District Court Outstanding Court Personnel Twyla Weatherford 302nd Family District Court Outstanding Corporate Attorney Ashlie Alaman Stamper Luminant Energy
DAYL CHARITY BALL Saturday, November 12, 2016 7:00 p.m. at 3015 Trinity Groves Benefiting the DAYL Foundation Tickets available at www.daylcharityball.com.
THE 2016 DBA MEMBERSHIP DIRECTORY IS NOW AVAILABLE IN PRINT & ONLINE. Check out the directory and legal resource guide used by Dallas attorneys! To view the Online Directory and Legal Resource & Expert Witness Guide, go to www.dallasbar.org/pictorial and login. To request a copy of the new directory, contact pictorial@dallasbar.org.
Justice Stephen Breyer In Dallas — December 13 “There are loads of countries that have nice written constitutions like ours. But there aren’t loads of countries where they’re followed.” – Supreme Court Justice Stephen Breyer Tuesday, December 13, 2016 At the Hyatt Regency Dallas 11:30 a.m. VIP Reception Noon Luncheon, Program & Book Signing
Purchase tickets online at www.dfwworld.org/register/StephenBreyer Sponsored by the Dallas Bar Association, DFW World Affairs Council, Haynes and Boone, LLP, and Texas A&M University School of Law
DVAP’s Finest Margaret Spellings Margaret Spellings practiced corporate and securities law after graduating from law school in 1986. In 2013, she retired from private practice but was not ready to stop practicing law. She decided to take some cases through DVAP, even though she had no courtroom experience! Since then, she has completed two name change cases, six divorces, and one nonparent child custody case. She is currently working on a property tax suit, three divorces, and two nonparent child custody cases. She has enjoyed learning family law, which is totally new to her. The DVAP mentor attorneys are always available to answer her questions, and she has found working with DVAP very rewarding. Thank you for all you do, Margaret!
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
Welcome to a new and different type of law firm. Steeped in a rich tradition of family law excellence, McCurley Bell Cruz is a team of extraordinary legal talent experienced in divorce and child custody litigation as well as the full range of civil and criminal matters faced by families. Mike and MaryJo McCurley have decades of experience with complex matrimonial law matters. Trial lawyer James Bell joins the firm with extensive experience in business litigation, white-collar criminal defense and family law. Monica Cruz, like the McCurleys, is board certified in family law by the Texas Board of Legal Specialization. “We are a team for the benefit of families,” says Mike McCurley. “When we handle a complex divorce case, there may be a business litigation issue that has to be resolved. Or a family member may have an issue of criminal law to be adjudicated.” Wherever life takes the family, McCurley Bell Cruz is there to help.
FAMILY LAW [ BUSINESS MINDSET ]
214 668-9000 | info@mcbclegal.com 3811 Turtle Creek Blvd., Suite 800 Dallas, Texas 75219
DIVORCE LITIGATION | CHILD CUSTODY AND VISITATION | COMPLEX PROPERTY SETTLEMENTS | PATERNITY | DECREE MODIFICATION MARITAL AGREEMENTS | MEDIATION | COLLABORATIVE LAW | CRIMINAL DEFENSE | BUSINESS DISPUTES
10 H e a d n o t e s l D a l l a s B a r A s s ociation
Novem ber 2016
DBA Athletic Director
Service, Fitness, and Fun BY KENNETH G. RAGGIO
As many readers are aware, the theme for this year has been based upon the book Younger Next Year. This column will celebrate some of the concepts and lawyers featured in prior columns, feature lawyers who will be doing things in the future, and review the life lessons that I hope we have learned through some of these columns. The theme of the book is: use it or lose it. Use it six days a week with vigorous exercise, of which two days should be weight lifting. Aerobic exercise ensures a long life; weightlifting makes it a life worth living, because the aging body works better with the continuing call for growth and renewal that weightlifting triggers in our bodies. Another theme of the book is to care and commit—about ourselves physically, about ourselves mentally, about others on a personal level, and about our neighborhood, city, or society outside of our immediate vision. Most of you who read this are deeply appreciative of the work that is tirelessly done on a continuous basis by your Bar leaders. Rob Crain was the “boss dog” for the Freedom Run for several years before continuing up the ladder to become the President-Elect of the Dallas Bar Association. He showed up and ran in the 2016 Freedom Run both for his own fitness and forPhoto the 1cause. Paul Simon was involved with many committees and other projects before he became the President-Elect of the Dallas Association of Young Lawyers. He showed up and ran in the Freedom Run this year for his own fitness and to support the cause. In addition to these two leaders of your bar, approximately 60 lawyers
showed up as volunteers to put on what was a very well run race. There were 900 participants in the one-mile walk and the 5K, raising even more money for the Assist the Officer Foundation. This is a good example of the caring and commitment that the book espouses in addition to the commandment of physical fitness.
routines. Rachel Khirallah and Michelle May determinedly used regular running to shape up and lose scores of pounds. Diane Cochrane and the Goranson Bain and Andrews Kurth stairclimbing teams, and yours truly, skate or sprint, using the fast twitch muscles in addition to our endurance muscles. Terry Oxford and Roger
(Left to Right): Rob Crain, DBA President-Elect; Ken Raggio, DBA Athletic Director; and Paul Simon, DAYL President-Elect.
The book promotes, in addition to daily vigorous exercise, that we do one long slow day workout a week. Many of the lawyers featured in previous columns do a lot more than one long day. We have featured Judge John Roach, Mayor Brian Loughmiller, Felicia Finstron, Nicole Studer, Weldon Moore, Mike Lynn, and the Strasburger relay team who regularly undertake triathlons, marathons, or ultra-distance events (including a 600-mile hike) as part of their “required (for themselves)” goals or
Shore Chan DePumpo LLP is pleased to announce that Christopher L. Evans has been named a Partner of the Firm.
During his career, Mr. Evans has litigated numerous complex, multi-party patent infringement cases as well as other federal and state cases. Mr. Evans recently completed a successful ten-day patent infringement trial in Boston that resulted in a jury verdict in favor of his client. In recognition of Mr. Evans’s trial SUR¿FLHQF\ DQG FRQWULEXWLRQV WR WKH ¿UP RYHU WKH SDVW six years, the Firm is proud to announce that 0U (YDQV KDV EHHQ HOHYDWHG WR D SDUWQHU Shore Chan DePumpo LLP | www.shorechan.com | Bank of America Plaza 901 Main Street, Suite 3300 | Dallas, Texas 75202 | 214-593-9110
Crabb get the long slow regular exercise in a non-weight bearing manner by cycling long distances. All will tell you a “necessity” regular exercise is instrumental to their wellbeing, Photo 2 and how they really “pay” when they are unable to exercise regularly. What can you do? It starts with a first step—or stair—after the obligatory check with your doctor. Get baseline blood work done, and as you ease into some kind of exercise routine, a retest will show you how much you have improved. See how
much farther you have moved yourself from possible diabetes, heart disease, and arthritis. And how much better you feel. Ask Jerry Alexander. Despite his busy schedule as a trial lawyer and President of the DBA, he is in better shape now than at the beginning of his Bar year. And he will tell you he still has a ways to go. Need a challenge? Get on a Stairmaster at your gym—the one with the real moving steps. The new machines now have “courses” where you climb up, say the Eiffel Tower. Or part of the way up. And you have a goal for the next time you try it. The book reminds us that the quads—the muscles you use the most to climb stairs—are the biggest and most essential muscles we have. When they are gone, you are toast. I have found that if you have enough flexibility in your knees to ride a bike or walk up one flight of stairs, that such stair exercise is the most efficient (translated harder than walking) and least stressful to your joints. And you can also pause for a rest. You want to eventually be at the place where you actually drip sweat onto the machine during your workout. (Or drip sweat on some other machine or track or street.) When you are ready, there are events that raise money for the Leukemia Society, like the Big D Climb (www.bigdclimb. com) on January 28, 2017 at the Bank of America Tower downtown. It is 70 stories, but you can choose to do just 20, 30, or 40 if that is your goal level. Mr. Alexander and Mr. Simon will be leading the DBA and DAYL teams. Please join us! Your fitness level will be very glad you did! HN Kenneth G. Raggio is a partner at Raggio & Raggio, P.L.L.C. and can be reached at kenneth@raggiolaw.com.
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D al l as Bar A ssoci ati on l Headnotes 11
Board Certified Family Lawyer Joins Dallas’ Lisa E. McKnight P.C.
Tamika Jones Abendroth It became clear why Tamika Jones Abendroth needed to be a lawyer—and a really good one—while sitting in a courtroom as an intern for the Dallas District Attorney’s Office. Most of the people in the audience looked like her she said, while the people at the counsel table didn’t. “I realized that most of the people who needed help looked like me,” Abendroth said. “And when people deal with the legal system, they need to see someone who looks like them.” Now a 12-year lawyer, Abendroth spent most of her career as a staff attorney at Legal Aid of NorthWest Texas representing low-income women with children who were often fleeing abusive marriages. While working there, Abendroth became certified in family law by the Texas Board of Legal Specialization in 2012. She’s one of three African American attorneys in Dallas who’ve reached that achievement. The board certification is more than just an accolade to Abendroth—it was a way to grow as a lawyer and a professional. Abendroth now joins Lisa E. McKnight P.C., a growing Dallas family law firm where she focuses on custody disputes. Her clients have changed, but her passion for representing them in tough cases hasn’t. “I care about my clients and I’m not afraid to go to court,” she said. “I can bring just the right amount of passion and advocacy.” Lisa E. McKnight P.C. is one of the most effective and unusual law firms in the city. Located in a 1909 historic home a mile east of downtown, it has a reputation for winning tough jury trials and is the only family law firm with a professional counselor on its staff to assist in custody cases and clients in crisis. The firm now has three attorneys, including founder and veteran family attorney Lisa E. McKnight and Gene Sollows, a seasoned lawyer with 20 years’ of experience.
Lisa E. McKnight
4807 Gaston Avenue, Dallas, TX 75246 | 214-528-4191 www.lisamcknight.com
12 H e a d n o t e s l D a l l a s B a r A s s ociation
Column
Novem ber 2016
Veterans Services
The Importance of Military Divorce Planning BY CONSTANCE A. MIMS AND DWAYNE I. LEWIS II
Divorces involving current or former military members often involve unique circumstances governed by a myriad of state and federal laws, as well as several independent military policies. Understanding these nuances is necessary to effectively represent a service member or a nonservice member spouse in divorce proceedings. This article provides a general overview of several issues unique to military divorces, and how to avoid the common pitfalls associated with those issues.
Gathering Documents and Information
To properly divide military retirement benefits, attorneys in military divorce cases must understand the procedures involved, the current or prospective pay of the service member, and the benefits available to, or at risk for, the non-service member spouse. Early in the discovery process, attorneys should obtain Leave and Earning Statements,
Retiree Account Statements, Disability Rating Decision Letters, and other relevant military documents. These documents should provide most of the information necessary to determine the value of the community portion of the service member’s retirement pay.
Serving Active Duty SMs
One party’s status as an active duty service member can complicate service of process in military divorces. Completing service effectively and efficiently requires at least a basic understanding of topics like exclusive federal jurisdiction, the restrictions imposed by federal statutes like the Posse Comitatus Act, and the procedural requirements of applicable international laws and treaties. If the non-service member spouse’s attorney is unaware of these issues, it can greatly increase costs and cause delays of several weeks.
Divisible BeneďŹ ts
The Uniformed Services Former Spouses’ Protection Act (USFSPA), which empowers states to divide military retired pay incident to divorce, does not provide uniform guidelines instructing states how to divide military
The Addicted Lawyer: Tales Of The Bar, Booze, Blow and Redemption Speaker: Brian Cuban, Author.
Friday, November 4, Noon at Belo | Ethics 1.00 RSVP to sevans@dallasbar.org Hosted by the Peer Assistance Committee
retired pay. Accordingly, practitioners need to be aware of several issues unique to the division of military retirement benefits that can expose clients to significant financial losses if overlooked. First, when calculating the value of the service member’s military retirement, practitioners must remember to account for Costof-Living Adjustments (COLAs). COLAs protect military retired pay against inflation by annually increasing the amount of retired pay by a small percentage. If a spouse is awarded a fixed amount of monthly income, or the attorney fails to consider these annual adjustments when calculating the net present value of the military pension, then the spouse will not receive their fair share of the retirement distribution. In addition to a portion of the service member’s military pension, attorneys representing the non-service member should understand the Survivor Benefits Plan (SBP). This is important because unlike a traditional pension, when a service member passes away their retirement pay ceases entirely, including any amount awarded to a former spouse in divorce. The SBP allows a retirementeligible service member to provide a lifetime annuity to the designated beneficiary when they die. The attorney for the non-service member spouse should encourage SBP coverage, or some acceptable alternative, to provide continued support should he or she outlive the service member spouse.
BeneďŹ ts Available After Divorce
One of the most notable benefits non-service member spouses receive during marriage is enrollment in TRICARE, an available medical insurance and treatment program. It is extremely valuable because in many situations there are no enrollment fees, no deductibles,
and no co-pays associated with the program. However, the non-service member spouse’s access to TRICARE ends on the date of the divorce unless certain conditions are met. Under the 20/20/20 Rule, an unmarried non-service member former spouse is eligible to receive TRICARE coverage for the rest of their life if the following conditions are met: (1) they were married to a service member for at least 20 years; (2) the service member spouse served at least 20 years in the military; and (3) there is at least 20 years of overlap between those two time periods. Alternatively, assuming the first two conditions are also met, a non-service member former spouse can qualify for one additional year of TRICARE coverage if there is at least 15 years of overlapping time. If neither of these rules apply, a non-service member former spouse may still qualify for continuing coverage under the Continued Health Care Benefit Program. Attorneys should advise their clients of these options as early in the process as possible so that the non-service member spouse has time to weigh their options and select the one that best suits his or her needs.
Conclusion
The more experience you gain, the more familiar you become with the intricate procedural pitfalls that befall attorneys who attempt to tackle a military divorce without proper preparation. If you’re new to the world of military divorce, seek the assistance of an attorney who specializes in family law and HN focuses on military issues.
Constance A. Mims is the Senior Managing Attorney at the Beal Law Firm, PLLC and is Board CertiďŹ ed by the Texas Board of Legal Specialization, in Family Law. She can be reached cmims@dfwdivorce. com. Dwayne I. Lewis II, attorney at law, helped with this article.
Texas
Discovery:
JENNIFER Thunder Chicks Robotics Club at a Young Women’s Preparatory Network School, a grantee of the High-Tech High Heels Fund at Communities Foundation of Texas
A Guide to Taking and Resisting Discovery Under the Texas Rules of Civil Procedure
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D al l as Bar A ssoci ati on l Headnotes 13
Corporate Counsel & Securities
Court of Chancery Upholds ETE’s Right to Terminate Deal BY ELIZABETH C. BRANDON
The Delaware Court of Chancery’s recent decision in The Williams Companies v. Energy Transfer Equity, L.P C.A. Nos. 12168, 12337-VCG (Del. Ch. June 24, 2016) authorized Dallas-based Energy Transfer Equity (ETE) to terminate ist merger agreement with Tulsa-based The Williams Companies (Williams)—a deal initially valued at $38 billion before depressed oil prices caused the deal value to plummet. In September 2015, ETE and Williams entered into a merger agreement whereby Williams would merge into a subsidiary of ETE in a mixed-consideration transaction. The merger was subject to several conditions, including the issuance of an opinion by ETE’s tax attorneys at Latham & Watkins (Latham) that the merger transactions “should” be treated as a tax-free exchange under Section 721(a) of the Internal Revenue Code (Tax Opinion). As a publicly traded partnership (referred to as a Master Limited Partnership or MLP), ETE was structured to be treated as a tax pass-through entity. The merger agreement was the culmination of a tumultuous, months-long courtship beginning in February 2014 where ETE actively sought a strategic combination with Williams. Prior to executing the September 2015 merger agreement with ETE, the Williams board of directors had previously rejected multiple offers from ETE, approved a strategic combination with its own MLP affiliate, and faced mounting criticism and lawsuits from its shareholders challenging
the board’s decisions and the direction of the company. When ETE and Williams finally announced that they had reached an agreement to form one of the world’s largest energy infrastructure operators, it appeared the parties’ relationship was on the mend. But slumping oil prices quickly diminished the deal value and put pressure on ETE to generate the $6.05 billion in cash that it was obligated to pay in connection with the deal. By early 2016, public reports highlighted mounting troubles. ETE conducted a private offering in March 2016, which ETE stated was necessary to generate cash to pay debt to close the deal. Williams, who had previously rejected ETE’s proposal to hold a public offering and did not participate in the private offering, construed the private offering as a breach of the merger agreement that placed certain ETE unitholders in a preferential position over the Williams stockholders. In April 2016, Williams sought to unwind the private offering by suing ETE in Delaware for breach of contract and suing ETE’s Chairman and CEO in Texas for tortious interference. After the Texas court enforced the mandatory forum selection provision in the merger agreement, Williams dismissed its Texas lawsuit and was forced to exclusively proceed in Delaware. In a third lawsuit filed in May 2016, Williams again sued ETE in Delaware to stop ETE from terminating the deal for failure to secure the required Tax Opinion. After a two-day trial, the Delaware Court of Chancery issued its opinion and concluded that ETE was entitled to
terminate the merger agreement because Latham was unable to issue the Tax Opinion due to the substantial decline in ETE’s units from slumping oil prices. Although Williams questioned Latham’s good faith in connection with identifying the tax issue earlier and alleged that Latham was improperly influenced by ETE, the court was unconvinced that ETE “materially breached its contractual obligation to undertake commercially reasonable efforts to receive [the Tax Opinion] from Latham.” The court determined that ETE “submitted itself to an objective standard–that is, it bound itself to do those things objectively reasonable.” Because ETE retained Latham to provide the Tax Opinion, the court scrutinized Latham’s good faith. Under a subjective good faith standard, the reasonableness of the decision is irrelevant. The court explained: “it is Latham’s subjective good-faith determination that is the condition precedent.
As a result, it is not appropriate for me to substitute my judgment on the [tax] issue for that of Latham; my role is to determine whether Latham’s refusal, thus far, to issue a ‘should’ opinion is in good faith, that is, based on Latham’s independent expertise as applied to the facts of the transaction.” It was not enough for Williams to establish deficiencies or flaws in Latham’s process. Indeed, Latham’s expertise and reputation, coupled with the similar conclusion reached by the tax lawyers at Morgan Lewis that were also retained by ETE, led the court to conclude that Latham acted in good faith. Accordingly, the court concluded that ETE could terminate the merger agreement based on Latham’s inability to issue the required Tax Opinion. Several days later, ETE formally terminated the merger agreement. HN Elizabeth C. Brandon is a partner at Barnes & Thornburg, LLP. She can be contacted at ebrandon@btlaw.com.
JOURNEY TO CUBA WITH THE DBA! APRIL 2017 A cross-cultural Educational Exchange organized by Cuba Cultural Travel See page 23 for details. For more information, contact Judi Smalling at jsmalling@dallasbar.org
14 H e a d n o t e s l D a l l a s B a r A s s ociation
Novem ber 2016
Of Princes and Paupers BY ANN MARIE PAINTER AND HAYDEN SCHOTTLAENDER
Federal law permits impoverished parties to litigate in federal court without paying filing fees. Such litigants proceed in forma pauperis (IFP), and doing so requires them to file an affidavit with the court detailing their financial status by disclosing their assets, incomes, and expenses. If, based on that affidavit, the court determines that they are sufficiently impoverished, then IFP status will be granted, and fees will be waived. While all litigants would be intrigued by the avoidance of fees, proceeding in forma pauperis is not without peril. Federal law provides that if—at any time—a court determines that “the allegation of poverty is untrue,” then it “shall dismiss the case[.]” 28 U.S.C. § 1915(e)(2). The statute’s use of “shall” makes dismissal mandatory. Thus, an untrue allegation of poverty poisons a plaintiff’s case from the outset. So what does it mean for an allegation of poverty to be “untrue”? The obvious example of an untrue allegation of poverty is where a wealthy litigant knowingly understates her resources in the IFP affidavit so as to obtain IFP status. For example, a court dismissed one lawsuit where an accountant, married to another accountant, and represented by counsel, understated her assets by over $562,000. A prince in pauper’s clothing is subject to mandatory dismissal in every federal jurisdiction. A more divisive situation is where a litigant indisputably omitted resources from an IFP affidavit, but contends that she was nevertheless actually impoverished under the statute because the court would have granted IFP status even if she had included those resources in the application. There is limited case law on the issue (the Fifth
Circuit Court of Appeals has not addressed it), and the courts that have addressed it, including the Seventh and Eighth Circuit Courts of Appeals, have reached different conclusions. The Seventh Circuit holds that a lawsuit must be dismissed if there is a falsity in the IFP affidavit, regardless of the litigant’s actual poverty, because the mandatory dismissal is a sanction for perjury. Conversely, the Eighth Circuit focuses on the litigant’s actual financial status to determine whether to dismiss the lawsuit if a portion of the IFP affidavit is untrue. Regardless of just how “untrue” an IFP affidavit needs be to result in mandatory dismissal, the federal statute and applicable case law provide valuable practice tips to both IFP litigants and their opponents. A litigant should not apply to proceed in forma pauperis unless she truly cannot afford to bring her lawsuit without the fees being waived. A litigant will avoid a dangerous landmine for her lawsuit if she can come up with the money to pay her litigation expenses. If she absolutely must proceed in forma pauperis, then she should be as thorough and exhaustive as possible in preparing each portion of her IFP affidavit. Any slight understatement of income or assets, or overstatement of expenses, could result in a dismissal of the lawsuit with prejudice. And if her financial situation improves after she files her IFP application, she should amend her IFP affidavit as quickly as possible, and offer to pay the filing fee if she is able to do so. On the other side, a lawyer opposing an IFP litigant has been handed a unique and independent defense that would not only permit—but mandate—dismissal if the lawyer can find any falsehoods in her opponent’s IFP affidavit. Again, in at least some jurisdictions, even the slightest misstatement of the IFP litigant’s finances could provide the basis for a mandatory dismissal
motion, regardless of whether the litigant is actually impoverished. Further, even without the availability of mandatory dismissal, this area of the law is valuable for the discovery opportunities it offers. Because discovery is permitted into any matter relevant to any party’s claim or defense, the IFP affidavit provides a solid foundation for obtaining information and documents. Each line item in an IFP affidavit may reveal a category of records or data to request in discovery, and the information gleaned from those
requests could be useful in the substantive litigation, regardless of its ultimate impact on any IFP dismissal. While the benefit of avoiding fees is obvious, litigants should remain wary of the potential risk exposure inherent in obtaining in forma pauperis status. HN Ann Marie Painter is a partner at Perkins Coie LLP, and Hayden Schottlaender is an associate at the firm. They can be reached at ampainter@perkinscoie.com and hschottlaender@perkinscoie. com, respectively.
Stephen Philbin Media Law Clerkship Awarded
The inaugural Stephen Philbin Media Law Clerkship was presented at the 33rd annual Stephen Philbin Awards Luncheon on September 23. It is the only media law clerkship offered in Texas. Kristi Brooks, 3L student at SMU Dedman School of Law, was selected for the 6-week clerkship, which was split between time spent at The Dallas Morning News and Jackson Walker, LLP. Susan Philbin, sister of Stephen Philbin, established the clerkship through the Dallas Bar Foundation. (Left to Right): Paul Watler, of Jackson Walker, LLP; Christine Larkin, of The Dallas Morning News; recipient Kristi Brooks; and Russ Coleman, of Dean Foods, Chair of the Philbin Clerkship Committee.
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Save the Date! CHAMPIONS FOR CHILDREN CLE LUNCHEON AND HOLIDAY BENEFIT
Honoring: Sheila Johnson, Amon G. Carter Foundation & Hon. Cheryl Shannon, District Judge, 305th District Court Friday, Dec. 2, 2016, 12:00 p.m. - 1:30 p.m. Belo Mansion & Pavilion 2101 Ross Avenue, Dallas, Texas 75201
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SPONSORSHIPS, TABLES, AND TICKETS AVAILABLE Go to http://www.texaslawyersforchildren.org/cle/upcoming.jsp or contact Merrie Cavanaugh at 214-796-0672
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D al l as Bar A ssoci ati on l Headnotes 15
Corporate Counsel & Securities
Five Issues Corporate Counsel Should Be Addressing with Accounting BY JAY CAIN
1. Business Entity Structuring Attorneys tend to focus primarily on liability protection when forming business entities, and they may overlook important tax implications. You should consider the Texas Franchise Tax when you review your company’s business entity structure with the Controller or CFO. Take for example the no-tax due threshold of $1,110,000. If you have a single entity with multiple business units that are unrelated and easily divisible, consider creating separate legal entities for each business unit that has a margin under the threshold from year to year. Also, if you have a business unit that generates passive income such as rent or interest/dividends, consider a LP or LLP over a LLC. Attorneys prefer LLCs because of the broad liability protection, but if a partnership or trust has passive income of at least 90percent of its federal gross income, it can avoid the Texas Franchise Tax.
2. Sales & Use Tax Some Controllers and CFOs may not have a complete understanding of the law regarding sales and use tax. It’s a great area for Corporate Counsel to step in and help the company avoid a sales tax audit. Sales tax regulations are complex. Analyze transactions in your industry by asking: (1) Does it involve the sale of tangible personal property (TPP)? If so it is subject to sales tax unless specifically exempted (ex: bottled water). There is also the resale exemption and occasional sale exemption to consider.
Next, ask: (2) If the transaction does not involve TPP, is it a taxable service? For example, the maintenance and repair of TPP is generally a taxable service, but in the automotive industry the maintenance and repair of a motor vehicle is exempt from sales tax (Tex. Tax Code Ann. §151.0101(a)(5)(C)). The analysis gets increasingly complex if your company is involved in interstate transactions and the physical presence standard comes into play. E-commerce and “click-through nexus” statutes/regulations are a developing area of the law (see S.698 – Marketplace Fairness Act of 2015). The last thing to consider is who bears the sales tax in an asset transfer, buyer or seller? It is usually the buyer, but make sure your accounting team is aware that this can be a point of negotiation in a Purchase/Sale Agreement.
3. A/R Collections (1) Be on a first name basis with the A/R team, (2) know what accounts are past due, and (3) make sure the A/R team has a basic understanding of consumer law governed by the Federal Debt Collection Practices Act (FDCPA) and Texas Debt Collection Act (TDCA). Under the FDCPA, an entity collecting its own debt, as well as officers and employees of a creditor are excepted from the definition of a “debt collector.” But if your company operates using different business entities and trade names, make sure the A/R team avoids representing itself under the name of Company A when collecting a debt for Company B. Under the TDCA, a “debt collector” is anyone who collects a consumer
debt. it is critical for your A/R team to understand how threats, coercion or fraudulent, deceptive and misleading representations et al are prohibited by the TDCA.
4. Cybersecurity Accountants can be responsible for data ranging from customer lists and credit card information to employee social security numbers and banking information through payroll. A cybersecurity plan should include: (1) cybersecurity insurance (data breaches are often not covered through errors and omissions policies); (2) a written policy addressing IT rules and procedures, which must be actively followed; and (3) compliance with industry specific regulations. In the automotive industry car dealerships are considered financial institutions and must comply with the FTC Safeguards Rule under the Gramm-Leach-Bliley Act. A written policy is especially important for accounting. It’s estimated that 32 percent of data breaches are caused by employee error or lost laptops and
devices. Simple password protection and data storage/retention policies can go a long way in preventing a data breach in your accounting department.
5. Long Term Purchasing Agreements It’s critical for Corporate Counsel to help accounting avoid “cohesive” long term purchasing agreements. The scenario: there is a purchasing agreement that was executed years ago in multiple counterparts. The Controller or CFO signs approval for what appears to be a routine order of supplies, but this approval triggers an extension of the agreement for another year. A well drafted arbitration clause keeps this practice from being challenged in court. If Corporate Counsel is involved from the beginning, your company can avoid a large buyout fee when it’s time to try a new vendor. HN Jay Cain serves as Corporate Counsel for The Sewell Family of Companies. He can be reached at jay.cain@teamsewell.com.
Don’t miss your opportunity to advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide” in Dallas County. Contact PJ Hines at (214) 597-5920 or pjhines@legaldirectories.com
16 H e a d n o t e s l D a l l a s B a r A s s ociation
Novem ber 2016
DBA Bench Bar Conference 2016 At Horseshoe Bay
THANK YOU TO POINT MULTIMEDIA
For providing all the AV support at Bench Bar for 12 years! We appreciate you! Point Multimedia: (214) 247-2000 • www.pointmultimedia.com Graphic Development, Courtroom Operation, Video Depositions
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D al l as Bar A ssoci ati on l Headnotes 17
Corporate Counsel & Securities
Equity Crowdfunding Under Regulation CF BY PATRICK H. ROSE, IV
Regulation Crowdfunding (Regulation CF) went live on May 16, 2016, giving emerging businesses a platform to raise up to $1 million through online equity crowdfunding. Crowdfunding is a tool used to fund projects by seeking small contributions from a large number of people, usually through the Internet. Millions of dollars have been raised for projects through crowdfunding sites like Kickstarter, where contributions are treated as donations or made in exchange for a product. But until Regulation CF, companies could not sell equity securities by online crowdfunding. To understand the significance of Regulation CF, a brief background on securities law is helpful. A security is an instrument that represents an investment in a common enterprise where the investor has a reasonable expectation of profits to be derived primarily from the efforts of others. Securities are offered by companies or government agencies (Issuer) to raise capital, usually as an alternative to traditional bank financing. An example of an equity security is stock in a company, and an example of a debt security is a bond issued by a company. Under the Securities Act of 1933 (Securities Act), securities offerings must be registered with the Securities and Exchange Commission (SEC) or qualify for an exemption from registration. SEC registration is a technical and expensive process that is mostly cost-prohibitive for emerging businesses. Issuers often rely on exemptions from SEC registration to raise capital through exempt securities offerings. The most common exemptions are
private offerings under Regulation D of the Securities Act, which normally target accredited investors (generally those with a net worth in excess of $1 million or annual income of $200,000 or more) or sophisticated investors (generally those who have the experience and knowledge to understand the related risks) and typically do not allow general solicitation. Because of these barriers, middle-class citizens have historically had few opportunities to invest in emerging businesses. The Jumpstart Our Business Startups Act (JOBS Act) was passed by Congress to help emerging businesses raise capital under less stringent securities regulations by creating new SEC registration exemptions. Title III of the JOBS Act created the crowdfunding registration exemption and required the SEC to promulgate crowdfunding rules. As a result, Regulation CF went into effect on May 16, 2016. Some states separately regulate crowdfunding, but those are not discussed herein. Regulation CF offering (CF Offering) criteria is Issuer friendly and investor protective. A non-exhaustive list is discussed below. Regulation CF imposes monetary limitations, both on the Issuer and investors. Issuers are limited to raising $1 million through CF Offerings in a 12-month period. Investors are limited to investments in all CF Offerings in a 12-month period as follows: (i) if annual income or net worth is less than $100,000, the greater of $2,000 or 5 percent of the lesser of annual income or net worth; and (ii) if annual income and net worth are both $100,000 or more, 10 percent of the lesser of annual income or net worth (not to exceed $100,000). Each CF Offering must be distributed exclusively through a single online plat-
form that is operated by an intermediary who is either a registered broker-dealer or a funding portal that is registered with the SEC and FINRA. Popular portals are Wefunder and SeedInvest. An Issuer must be organized in the United States and must file its offering statement on Form C with the SEC and through the intermediary. The Form C information includes information about the Issuer’s ownership/management; description of the business; price of the securities; target offering amount; related party transactions; and financial information. The Issuer must also generally provide progress updates, an annual report, and comply with ongoing reporting requirements. An Issuer may only advertise a CF Offering with a “tombstone” notice that directs investors to the intermediary’s platform and includes no more than the following: (i) the Issuer is conducting a CF
Offering, the name of the intermediary, and a link to the platform; (ii) the basic terms of the offering; and (iii) the name, address, phone number, and website of the Issuer, the email address of the Issuer representative, and a brief description of the business. Once investors have reached the platform, the Issuer may discuss the CF Offering in detail through the platform. Lastly, securities sold through a CF Offering cannot be transferred by an investor within one year except (i) to the Issuer; (ii) to an accredited investor; (iii) through an SEC registered offering; or (iv) to a family member or trust of the investor. While the impact of Regulation CF is yet to be seen, it gives emerging business HN unprecedented access to capital. Patrick H. Rose, IV is a corporate and real estate attorney at Kane Russell Coleman & Logan PC. He can be reached at prose@ krcl.com.
CIC NEEDS YOUR DONATIONS The DBA Community Involvement Committee is collecting gently used men and women’s suits, coats, dress clothes, and accessories (including dress shoes, shirts, belts and ties). Benefits the Dallas Life Foundation Drop off donations Friday, December 9, 9:00 a.m. to noon at Belo (circle drive). For more information, contact kzack@dallasbar.org.
18 H e a d n o t e s l D a l l a s B a r A s s ociation
Column
Novem ber 2016
Ethics
Practice Tips for the Lawyer Representing Multiple Parties BY BRANDY BAXTER-THOMPSON
Representing multiple parties is fraught with ethical considerations that can lead to awkward situations between a lawyer and client(s) if not handled properly at the outset. Texas Disciplinary Rule of Professional Conduct 1.06 provides the general rule on conflicts of interest. Under Rule 1.06(a), it is clear that an attorney is explicitly forbidden from representing a plaintiff and a defendant in the same lawsuit. This Rule further provides that a lawyer (or law firm) shall not represent multiple parties if their interests are “materially and directly
adverse” to one another. See Rule 1.06(b). While Rule 1.06(b) prohibits such representation, the rule is abrogated by Rule 1.06(c), which provides that a lawyer (or multiple lawyers in a law firm) can engage in such representation as long as the lawyer believes that she can represent both parties without materially affecting each of their interests or if both parties consent. The implications of this rule come up frequently in both the transactional and litigation lawyers’ practice. While the litigators seem to have an easier analysis than do transactional lawyers, it is not always as simple as declining to represent opposing parties in a lawsuit. In addition to this obvi-
NOVEMBER FRIDAY CLINICS Friday, November 4, Noon at Belo “The Addicted Lawyer: Tales of the Bar, Booze, Blow and Redemption,” Brian Cuban Ethics 1.00 | RSVP to kzack@dallasbar.org. Friday, November 11, Noon at At Two Lincoln Centre (5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240) Legal Ethics to Help Clients (and Law Firms) Deal with Cyber Attacks,” Peter Vogel Ethics 1.00 | RSVP to kzack@dallasbar.org. Thank you to our sponsor Fox Rothschild LLP. Friday, November 18, Noon at Belo “The Do’s and Don’ts of the Grievance Process,” Kristin Brady, Jason Friedman, Robert Hinton and Kent Krause Ethics 1.00 | RSVP to kzack@dallasbar.org.
ous conflict, litigators must also consider past representation of other clients, such as a subsidiary or customer of the adverse party. Also, numerous occasions arise where the parties may appear to have the same goals, but over the course of litigation their interests diverge. This can be particularly significant in the context of negotiating a settlement. It is easy to see where it can be difficult to negotiate a settlement that both clients will agree to when one has a stronger case than the other. For the transactional lawyer, most of the time the parties’ interests are aligned. It is only when a disagreement arises in the future that things get complicated. For example, the estate planner who represents a married couple generally has clients whose interests are fully aligned. Nevertheless, trouble arises when one client seeks changes to an agreed upon plan without the other spouse’s knowledge and consent. This is particularly an issue with blended families where spouses have children from prior marriages and where one spouse brings more assets into the marriage than the other. In some instances, it is not possible to represent both spouses, such as in a partition and exchange agreement. Each spouse must engage his and her own attorney. Likewise, the business lawyer encounters a myriad of multiple party representation issues. Depending on the situation, the lawyer may be required to choose which party to represent: the entity and/or one or more of the business owners. Oftentimes, clients approach a lawyer to form multiple entities requiring the lawyer to analyze the ethical considerations in representing multiple entities and owners. Here are a few tips when representing multiple parties:
First, discuss the issue with the clients prior to formal engagement. While it may seem awkward to bring up how things could go south, it is imperative that the client understands that his lawyer may be required to withdraw from representing both parties in the event a conflict arises. Explain that you are unable to keep what one client tells you confidential from the other and that any decisions that one makes must be discussed with the other. Second, put it in writing. Make it clear in your engagement letter that while you are now representing both parties, if a conflict arises, then you will not be able to continue representing either client. Have both clients sign the engagement letter and consider adding a separate acknowledgement regarding potential conflicts for both to initial. Likewise, make sure you include explicit language whereby the clients consent to the multiple-party representation. In addition to an engagement letter, consider sending a non-representation letter to all unrepresented parties to make it abundantly clear whom you represent. Lastly, take action immediately once a conflict arises and notify the parties in writing. If it is unclear if a conflict has arisen, take advantage of the Toll-Free Ethics Hotline (1-800-532-3947) provided to us through the State Bar. Note that the service is not confidential. Thus, if the situation requires confidentiality you should consider engaging a lawyer who specializes in legal ethics. HN Brandy Baxter-Thompson is a Member at Calloway Norris Burdette Weber & Baxter-Thompson, PLLC. She can be reached at bbthompson@cnbwlaw.com.
Our Bench Book series just got better! Formerly the called the Dallas County Bench Book, updated
Elayna Erick, Ron Massingill, Maryann Brousseau, Matthew Naftis
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D al l as Bar A ssoci ati on l Headnotes 19
Corporate Counsel & Securities
Why Do a Corporate Clean-Up BY SAURABH NATHANY AND R. SHAWN MCBRIDE
As attorneys concentrating in business law, we find that many clients continue business without pausing and assessing their corporate records until it is too late. As a result, our clients lose out on great opportunities. Good corporate records are like gold. When it is time to sell a company, apply for a loan, deal with the realities of litigation, or bring in investors, these records become a key to success. Although these strategic transactions or events occur on an irregular basis, they can be critical for businesses to get to the next level. Thus, it is incumbent on us, as lawyers, to add value by advising our clients to keep good records in anticipation of future events. Although advising clients on good record keeping may not sound as exciting as preparing a client for trial or negotiating a merger, it can be critically important. In fact, great records might enable a client to avoid litigation, enable the sale of a business at a higher price (or at all), or allow an investment round to close. These benefits can make a huge difference in a company’s success. So we encourage you to work with your clients to ensure their records are clean and ready for whatever might happen in the life of the business. Here are some areas you might want to visit (exact areas of focus will vary by client and industry and may include areas not listed below): Systematizing Internal Processes: Many businesses struggle with various challenges before becoming self-sustainable. The focus is usually on marketing,
business strategy, funding, etc. As the business grows, operations and responsibilities increase, making it challenging to both manage the business and manage internal operations. It is imperative to gradually build and put systems in place to ensure smooth ongoing operations. This also makes sure employees are complying with regulations and handling things consistently. Human Resources: Employment records should be organized and maintained, and employees’ roles should be clear. Documenting policies and metrics helps inculcate compliance and accountability. Officers’ powers (e.g. signing checks) should be revoked when they resign in order to avoid potential third party liability. Corporate Documents: Business entities should maintain files of corporate documents. All steps of entity formation must be completed, including adopting bylaws at the organizational meeting, issuing stocks, appointing officers, etc. Many businesses fail to do this simple step. Incomplete formation could lead to a court holding the business to be a general partnership and exposing its owners to personal liability for its operations and actions. The corporation should be run in compliance with its internal documents and applicable state laws. Where business owners run multiple businesses and frequently enter into related party transactions between the businesses, proper documents and approvals should be retained. Bylaws: Bylaws (or in the case of an LLC, often a portion of the LLC Agreement) should be drafted to clearly state
how the business intends to be managed (e.g., delegate specific powers to directors, create special purpose committees, set forth duties, specify manner of amending the bylaws, etc.). Bylaws should also be frequently reviewed and updated as required (e.g. upon changes in classes of stock or board composition). Pre-Incorporation: Upon formation, there are typically many pre-incorporation obligations that can be transferred from the business owner to the business entity. Even though the business entity may assume obligor liability under a contract by implication (receiving contractual benefits), this may not preclude the owner’s pre-existing liability. A novation agreement, when executed, acts to release the owner of obligor liability, substituting the owner with the business entity.
Compliance: Business entities should ensure on an ongoing basis that applicable licenses, approvals, permits, and consents are valid. Operating with expired licenses may sometimes result in unnecessary penalties or contingent liability and may even dissuade potential investors. Contracts should be reviewed as part of good corporate governance, to check if existing terms require changes to reflect the current understanding. We do not know what is next in business. Having organized records allows businesses to be prepared for the next challenge whether that is a sale of the business, litigation or raising the next round of growth capital. HN Saurabh Nathany is a licensed attorney in Texas and can be reached at nathanys@gmail.com. R. Shawn McBride is the Managing Member of The R. Shawn McBride Law Firm, PLLC, andcan be reached at shawn.mcbride@mcbrideattorneys.com.
BECOME INVOLVED IN HIGH SCHOOL MOCK TRIAL x
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Become an advocate for mock trial Help recruit compeƟƟon volunteers and conduct trainings to educate schools, students and teacher coaches on mock trial.
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Mock Trial CompeƟƟon Dates: January 21Ͳ28, February 4 and March 3Ͳ4, 2017 See website for details: www.texashighschoolmocktrial.com To volunteer, or for more informaƟon: mgarcia@dallasbar.org | (214) 220Ͳ7484.
Park Place Dallas Ticket to Drive Raffle ...Winner receives 2017 Mercedes-Benz CLA-Class*
Runner--Up Receives:
Sonoma Valley Winemaker Package (Three-night stay at The Fairmont Sonoma Mission Inn & Spa, with airfare for 2) Raffle tickets are $100 each — or 6 tickets for $500. Proceeds benefit the Dallas Volunteer Attorney Program, which provides legal services to the less fortunate in our community. No more than 1,500 tickets will be sold. *Picture shown is not exact winning vehicle
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 14, 2017 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.
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20 H e a d n o t e s l D a l l a s B a r A s s ociation
Novem ber 2016
The LawPay Security Series: Security Step 4 BY AMY MANN
Protect Your Systems In today’s digital world, computers can be a treasure trove for an online attacker, and can also provide a jumping-off point to reach other systems or online accounts. There are multiple routes into these systems, from open network connectivity to targeted malware. Fortunately, there are a few key tools at your disposal to protect against these threats.
been enabled. Unfortunately, these fixes are often not applied to the vulnerable systems. Modern operating systems such as Windows and Mac OS X support automatic installation of critical updates— you just need to enable it. A number of application packages, such as Microsoft Office and Adobe Acrobat, also support automatic updates. Given their widespread use throughout businesses, these applications offer a rich target for hackers. If the applications you use offer automatic updates, make sure this feature is enabled.
Keep Your Systems Updated Install Anti-Malware Many malware threats operate and spread by taking advantage of problems Software in software for which fixes have long
Clicking a link in an email that
looked legitimate, downloading a file from a site you thought was secure— these are common actions done every day to infect systems with malware, and the resulting damage can range from keyloggers stealing passwords to ransomware holding your data hostage. You can greatly reduce your risk of falling victim to these attacks by making sure that Antivirus/Anti-Malware software is installed and configured properly on all of your systems. Once installed, make sure real-time checking is enabled so security analysis is performed immediately as actions are performed. You should also schedule full computer scans weekly at a time that doesn’t interfere with your work. If you are using Windows 8 or later, Windows Defender antivirus is pre-installed and needs only to be configured.
Enable Your Firewall A firewall inspects the communications coming in or out of your PC and makes a decision to allow the communications to continue, or to block them. They can prevent attackers from gaining access to your computer and data, as well as halt the spread of malware from one computer to others. Windows and Mac OS X both have built-in firewalls that you can configure to meet the needs of your office. You should enable your firewall and configure it to block all incoming connections except for applications that you specifically enable. Typical exceptions include instant messaging and file sharing applications. Some software applications may require specific exceptions to be configured to allow access from other computers on your network or the internet, but the vendor documentation should make this clear.
Limit Access One final tool for protecting your systems is to limit what users are able to access and modify. In computer security circles, this is known as the Principle of Least Privilege, and states that users should have the minimum privileges necessary to do their jobs. By limiting users in this way, you ensure that confidential information is accessible to specific individuals and non-administrative users cannot make system changes that may threaten the security of your office. We suggest that you create an Administrator user with full privileges to configure your PCs, and then individual nonadministrator accounts for each user in your office, including yourself (avoid using an administrator account for your own primary account). Then share files and folders with specific users based on their need to access the information.
About LawPay More than just a “merchant account,” LawPay offers legal professionals an effortless way to separate earned and unearned fees to avoid trust account violations when accepting credit card payments. LawPay contractually protects client funds by restricting the ability of any third-party from debiting monies from a Trust or IOLTA account, and is the only payment provider approved and endorsed by over 90 bar associations. For more information, visit our website at https:// lawpay.com/dallasbar or give us a call at (866) 376-0950. HN Amy Mann is the Content Writer for Lawpay. She can be reached at amann@affinipay.com.
Just one week after The Election...
1. Over 400 FREE CLE courses offered each year! Our 30 substantive law Sections present cutting edge CLE programs. Members meet monthly at Belo during lunch or in the evening. 2. DBA Headnotes monthly publication is full of substantive legal articles and weekly Dallas Bar Online e-newsletter lists upcoming CLE programs and events. 3. Lawyer Referral Service panel is a great way to get connected with citizens who need legal help.
w ith Bob Woodward 2-time Pulitzer Prize Journalist/Author Associate Editor, The Washington Post
Tuesday, November 15, 2016 Cocktail Reception at 6:30 p.m. Dinner at 7:15 p.m.
Benefiting the Sarah T. Hughes Diversity Scholarships PRESENTING SPONSOR
4. Get involved with various DBA Mentoring Programs that pair new lawyers with seasoned attorneys.
5. Post job openings, search resumes and jobs through our online DBA Career Center. Sign up on DBA website. 6. If you are accepting credit cards, trust your transactions to LawPay. DBA members can save up to 25% off credit card processing fees. For more information, call (866) 376-0950 or visit https://lawpay.com/dallasbar/. 7. You will be included in the DBA Pictorial Directory available in print and online to all DBA members.
For more information about member benefits, please visit www.dallasbar.org
9. The Dallas Volunteer Attorney Program offers lawyers Pro Bono Opportunities to assist low-income residents through clinics, and provides free CLE training seminars.
ƌŽĐŬĞƚƚ͕ DĐ ƌŝĚĞ Θ ƐƐŽĐŝĂƚĞƐ DĞƌƌŝůů >LJŶĐŚ tĞĂůƚŚ DĂŶĂŐĞŵĞŶƚ
DALLAS BAR FOUNDATION Belo Mansion and Pavilion • 2101 Ross Avenue • Dallas • 214.220.7487
11. Participate in social activities for great Networking Opportunities with lawyers from all areas of practice.
N ove mb e r 2 0 1 6
Column
D al l as Bar A ssoci ati on l Headnotes 21
Veterans Services
Servicemember’s Civil Relief Act: What Attorneys Need to Know BY JONATHAN ROSAMOND
The Servicemember’s Civil Relief Act, 50 U.S.C. §§ 3901-4043, (SCRA) is a federal statute of which every practicing attorney who interacts with individuals as clients or opposing parties should have a basic understanding. Many practitioners may know the SCRA by its predecessor’s name, the Soldiers’ and Sailors’ Civil Relief Act, but recent updates to the SCRA have extended new procedural protections and benefits to Servicemembers and their families. Five critical benefits and protections under the SCRA (each of which is discussed in turn below) are: (1) protection against default judgment, (2) stay of civil proceedings, (3) residential lease, vehicle lease, and mobile phone contract terminations, (4) maintaining domicile of home state, and (5) the six percent interest cap. Under the SCRA, in order to obtain a default judgment against an individual defendant in any civil action or proceeding, including child custody proceedings and court ordered evictions, the plaintiff must file an affidavit (a) stating whether the defendant is in
military service and include supporting facts, or (b) if the plaintiff is unable to determine the defendant’s military service status, the plaintiff must state so. To support the affidavit, the plaintiff may verify the defendant’s military service status by searching the DOD’s Defense Manpower Data Center database online at: https://scra.dmdc.osd. mil/. If it appears that the defendant is in military service, the court may not enter a judgment until after it appoints an attorney to represent the defendant. Another significant procedural protection that the SCRA provides Servicemembers that are involved in civil litigation or civil administrative proceedings is the entitlement to a stay of proceedings. If a Servicemember’s military service obligations materially affect the Servicemember’s ability to appear in a civil case, the Court must stay the proceedings until the Servicemember can properly participate. Moreover, requesting a stay of proceedings does not constitute an appearance for jurisdictional purposes or waive the Servicemember’s challenges to personal jurisdiction, venue, or forum. However, it important to note that this procedural
The Dallas County Probate Courts have temporarily moved To Renaissance Tower: Probate Court No. 1
protection only applies to civil proceedings. Servicemembers are not entitled to a stay of criminal actions. In addition to these procedural protections, the SCRA also grants benefits to Servicemembers. One of those benefits is the ability to terminate a residential lease agreement when a Servicemember’s military orders cause that person to relocate to a new area. This benefit is extended to the Servicemember’s dependents who may also be obligated under the lease agreement. Similarly, Servicemembers also have the right to terminate motor vehicle leases when they are required to move outside of the continental United States, as well as mobile phone contracts when they are required to relocate to an area that is not adequately serviced by the provider. An important benefit to Servicemembers—especially those from Texas—is that the SCRA allows Servicemembers and their dependents to maintain their domicile in their home state, no matter where the military orders them to carry out their service. While this has a broad range of implications for Servicemembers, often the most significant impact is that Servicemembers are only liable for income and property tax in the state where they are domiciled—not where they serve. For Texas domiciliaries this, of course, means that they are not subject to a state income tax. In 2009, through the Military Spouse Residency Relief Act, this benefit was extended to the spouses of Servicemembers who share a residence with the Servicemember and are also forced to move.
Finally, the SCRA caps the interest rate of nearly all financial obligations that preexisted a Servicemember’s military service at six percent per year. This applies to credit card debt, home mortgages, vehicle loans, student loans, and more. To invoke this benefit, Servicemembers should contact their financial institutions and lenders to advise them of their service status. Typically, Servicemembers will need to send a written request for a reduction of the interest rate, pursuant to the SCRA, that is accompanied by a copy of their military orders. When the request is made, the SCRA requires lenders to retroactively forgive all interest collected above 6% from the date the Servicemember began active duty service. The rate cap must remain in place for all preexisting obligations throughout the Servicemember’s term of service. For home mortgages, the rate cap is extended to one year following a Servicemember’s end of term of service date. However, because this benefit is only designed to assist Servicemembers with the transition into military service, it does not apply to any financial obligations that arise after a Servicemember begins active duty service. To learn more about the SCRA, as well as how you can help serve Veterans in our community, please joins us for the DBA’s Veterans Outreach Subcommittee’s annual Veterans Day CLE. It will be held at noon on November 10, 2016, at the Belo Mansion. HN Johnathan Rosamond is an associate at Baker & McKenzie, LLP and a former trial counsel in the US Army’s JAG Corps. He can be reached at jonathan.rosamond@bakermckenzie.com.
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Probate Court No. 2 1201 Elm Street, Suite 2200A, Floor 22 214-653-7138
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22 H e a d n o t e s l D a l l a s B a r A s s ociation
In the News
Novem ber 2016
November
FROM THE DAIS Alison Moore of Thompson, Coe, Cousins & Irons, LLP, and Patricia A. Nolan, of The Law Office of Patricia A. Nolan, presented a program at the Claims & Litigation Management Alliance 2016 Professional Liability conference in Boston. Melinda Jayson, of Melinda G. Jayson, P.C., was a speaker at “AAA Diversity Roundtable: A Look Into Diversity in the Field of ADR” presented for the American Arbitration Association.
KUDOS Kelly Chen, of Munck Wilson Mandala, has been selected to participate
in the Leadership Dallas program, class of 2017.
and Trademark Clinic at the SMU Dedman School of Law.
Katherine A. Kinser, of Kinser & Bates, LLP, has been elected President-Elect of the Texas Chapter of the American Academy of Matrimonial Lawyers for 2016-2017. Jonathan J. Bates, of the firm, has been elected President of the Texas Academy of Family Law Specialists for 2016-2017.
Kathryn J. Murphy, of GoransonBain, PLCC, has been appointed to Chair of the State Bar of Texas Family Law Section. Diana Friedman with the firm, received the Sam Emison Award presented by the Texas Academy of Family Law Specialists.
Nathan Christensen, of Hunt Consolidated, Inc., has been selected by The Dallas Regional Chamber to its Leadership Dallas Class of 2017. Sally Helppie, of Vincent Serafino Geary Waddell Jenevein, P.C., has been named the new Director of the Small Business
Litigation department is looking for Attorneys in the following areas: Professional Liability Defense, General Liability, Workers Compensation Defense, Construction, and Employment Liability Defense.
ON THE MOVE
Andrew Betaque has rejoined Locke Lord LLP as Partner. Ryan Bauerle has joined Cordell & Cordell as Associate.
Sadaf R. Abdullah, of Skiermont Derby LLP has been promoted to Partner.
Vienna Flores and Maris Matocha have joined Kane Russell Coleman & Logan PC as Associates.
Brandy Baxter-Thompson has been added as Named Partner to Calloway Norris Burdette Weber & Baxter-Thompson, PLLC.
Bruce Akerly and Xerxes Martin are pleased to announce the formation of Malone Akerly Martin PLLC, with Associate Cooper Walker.
Jodi Bender, of Duffee + Eitzen, LLC, has been named a Partner.
David Mead has joined Burdette & Rice, PLLC as Associate.
Kenneth Patterson, of Hiersche, Hayward, Drakeley & Urbach, P.C., was selected for membership on the American Board of Trial Advocates.
Darrian Campbell has joined Baker & McKenzie, LLP as Associate.
Kimberly Rich, of Baker & McKenzie, was selected to serve as the Vice Chair of the Trade Secrets and Interferences with
A multi-office national law firm is seeking Attorneys for its Dallas Office.
Contracts Committee of the ABA Section of Intellectual Property.
News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org
Court of Appeals at Belo
Corporate Law, Commercial Litigation and Financial Services departments are looking for Attorneys with experience handling securities and broker dealer matters, international and domestic taxation, bankruptcy, real estate, intellectual property, international law, corporate structure, asset protection, land use, and mergers and acquisitions. Portable book of business is a plus. Also seeking 1-4 year Associates. Email resume to RESUME@QPWBLAW.com
®
On September 26, justices from the Fifth District Court of Appeals heard a live oral agreement at the Belo Mansion in front of nearly 300 DISD students. Justices present included (left to right) Elizabeth Lang-Miers, Hon. David Bridges, Hon. Molly Francis, and Hon. Bill Whitehall.
™
®
(1) Publication Title: Headnotes. (2) Publication Number: 1057-0144. (3) Filing Date: September 23, 2016. (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: August 1, 2016. (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): 11,955; 10,900. (15b1) Mailed Outside-County Paid Subscriptions Stated on PS Form 3541: 1,846; 1,600. (15b2) Mailed In-County Paid Subscriptions Stated on PS Form 3541: 9,533; 9,040. (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: 11,349; 10,640. (15d1) Free or Nominal Rate OutsideCounty Copies Included on PS Form 3541: 194; 44. (15d2) Free or Nominal Rate In-County Copies Included on PS Form 3541: 259; 32. (15d3) Free or Nominal Rate Copies Mailed at Other Classes Through the USPS: 31; 30. (15d4) Free or Nominal Rate Distribution Outside the Mail: 72; 91. (15e) Total Free or Nominal Rate Distribution: 556; 197. (15f) Total Distribution: 11,905; 10,837. (15g) Copies not Distributed: 50; 63 (15h) Total: 11,955; 10,900. (15i) Percent Paid: 95.3%; 98.2%. (16a) Electronic Copy Circulation. 0 (16b) Total Paid Print Copies + Paid Electronic Copies: 11,349; 10,640. (16c) Total Paid Distribution + Paid Electronic Copies: 11,905; 10,837. (16d) Percent Paid: 95.3%; 98%. (17) Publication of Statement of Ownership. Publication required. Will be printed in the November 1, 2016, issue of this publication. (18) Signature and Title of Editor, Publisher, Business Manager, or Owner: Jessica D. Smith, Editor. Date: September 23, 2016. 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).
N ove mb e r 2 0 1 6
Classifieds
D al l as Bar A ssoci ati on l Headnotes 23
November
EXPERT WITNESS
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) 6659458 or Houston (713) 513-7113. troney@ thomasroneyllc.com. “We Count.” 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. Coauthor, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. dlopez@pulmanlaw.com. Economic Damages Experts – HSNO is the Forensics Firm. The Dallas office of HSNO has five CPA testifying experts who specialize in the calculation of economic damages in areas such as commercial lost profits, personal lost earnings, business valuations, property damage, insurance litigation, intellectual properties, commercial litigation, contract disputes, bankruptcy, and fraud. HSNO is qualified in most industries including, but not limited to, energy (offshore and onshore), manufacturing, hospitality, service, insurance, transportation, entertainment, product liability, construction and construction. HSNO has 17 U.S. offices and offices in London and Mexico. Contact Peter Hagen or Karl Weisheit at (972) 980-5060 or HSNO.com.
OFFICE SPACE
Turtle Creek. Law firm seeks to sublease one or two offices to solo lawyer(s). Office is brand new build-out in Class A office building, 3811 Turtle Creek, with building amenities of parking, 24/7 security, and gym access. In-office amenities include network (wired and Wi-Fi) and telephone access, conference room, break room, and stocked kitchen. Inquiries made by calling (214) 347-7377, ext. 5. Dallas High-Rise: All-Inclusive independent attorney ecosystem. Furnished window offices, dedicated workspaces, co-working space, virtual offices. Mail/ reception, conference rooms, coffee bar, media lounge. CLE/MGMT training, social events, instant referral network. 6-month minimum, 1st month free with 1-year agreement. Tour/info: (214) 8657770. www.attorneyvenue.com. Tollway and Keller Springs. North Dallas A/V rated law firm has 4 adjacent offices for lease; Tollway and Keller Springs location. Prefer attorneys in tax, business litigation, or employment law. Wi-Fi, receptionist, etc. included. Available now for $1,100/month (partner-size) and $1,000/month (associate-size). Contact kbohach@birdskibell.com.
Lemmon and McKinney. 2 story townoffice in Uptown for lease near Lemmon and McKinney. 9 attorney offices, plus conference room and paralegal/secretarial spaces; kitchen and shower. 4743 sqft. Ample, easy at the door parking. Ample storage. Call (214) 880-7542 confidentially.
Individual offices available. $650-$1000/ mo. 1 year lease required. 705 Ross Ave, Dallas, TX 75202. 1st Dallas jail building beautifully renovated. For photos of the offices go to www.mileybrown.com. Contact Sarah or Craig: (214) 692.8800.
motivated, organized and able to respond to client needs immediately. Competitive compensation package and benefits. Interested candidates should submit their resume and cover letter to Connie Womack at cwomack@fflawoffice.com.
Downtown Dallas – Two window offices and secretarial space available, in the historic KATY Building overlooking the Dallas County Courthouses. Receptionist, notary, phone system, conference room, Wi-Fi, fax and copier provided for tenants use. No deposit or lease required. Please inquire at (214) 748-1948.
POSITIONS AVAILABLE
SERVICES
Turtle Creek - Uptown. Gorgeous Brand New Class A Fully Furnished Office Available In Prestigious Turtle Creek/Uptown Dallas Building. Parking, Gym, 24/7 Security, Internet, Phone, Club Lounge, and More. For more information email mn7054a@american.edu. Pictures/tour available. Uptown - Executive Office space available for lease in a professional Legal environment, in uptown. Share office space with experienced and established lawyers. Case referrals and other case arrangements are possible. Amenities include: Bi-lingual receptionist, fax and copy machines, two conference rooms, two kitchen areas, and plenty of free parking. Location is convenient to all Dallas Courts and traffic arteries. Please call Rosa (214) 696-9253 for a tour. Turtle Creek Blvd. - executive office space available for lease in a professional, legal environment. One large window office available (furnished or unfurnished) to share with experienced and established lawyers. Separate areas available for assistants or para-professionals. Three bench seat spaces available for daily or shortterm use, if desired. Referrals and other case arrangements are possible. Amenities include reception area, telephone, fax and copy machines, conference room, kitchen area, covered visitor parking, and free office parking. Location convenient to Dallas courts, downtown, and all traffic arteries. Please contact Judy at (214) 7405033 for a tour and information.
Short Drive / Big Growth – Lateral Partner-Level Attorney Wanted by McKinney Firm. Saunders, Walsh & Beard, a growing AV-rated Collin County business litigation-focused firm seeks a strong lawyer with complimentary practice area to join our highly efficient firm. Located in the heart of rapidly growing Collin County, we are a short drive from the northern suburbs and are benefiting from a sterling reputation and the daily influx of new arrivals to the area. Firm culture prioritizes low overhead, highest quality legal work, and collegial atmosphere. Some portable business required. If interested, call (214) 919-3555 or email us at info@saunderswalsh.com. Join Growing Dallas Firm. Great new firm with excellent opportunity for growth and profit seeks experienced lawyers to join our North Texas practice. Opportunities include working remotely or in our downtown Dallas office. Better compensation model, better technology, better opportunity. See our recruiting website and video at careers.emmertparvin.com. Family Law Attorney. North Dallas midsize AV rated litigation firm seeks a seasoned family law attorney ready to work in a fast paced environment dealing with contested and complex cases. Will consider candidates at the partner level who possess an existing book of business or associates with 10+ years of experience. Ideal candidates will have team management and leadership skills, be highly
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. 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. Licensed Spanish Court Interpreter. Trials, Hearings, Depositions. Translations: legal documents, contracts, articles of incorporation, financial and technical correspondence. 1623 Main St. Suite 210, Dallas TX 75201. Email: Agsantos3@live.ru or call: (832) 916-0283. 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 Kirk Leitch or Brenda Phillips at 1-800760-9890 or (214) 720-9890 for a friendly and quick analysis and response. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.
APRIL 2017 YOUR TICKET TO CUBA
Addison A/V Rated law firm with great location at Belt Line and Dallas North Tollway has two, adjacent offices and secretary bay for lease. One office is partner-size, and one is partner/associate size. Offices come with telephone service and receptionist, use of conference rooms and kitchen area, work/copy room, some additional storage, covered parking and Wi-Fi. Kelly@crb-law.com Uptown Dallas. Individual offices for attorneys/ other professional in A-V firm located in Uptown. Usual office equipment and amenities including full kitchen and shower. Upstairs or downstairs offices available. Generous parking. Close to restaurants and the Courthouse. (214) 880-7504. 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.
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
The Dallas Bar Associaton is delighted to offer this exclusive journey!! We invite you and your guest(s) to join our private delegation for an eyeopening journey at this most pivotal time in U.S.-Cuba relations. Our specially designed program will explore Cuba’s rich and varied cultural heritage. We will go beyond tourist corridors by engaging with local scholars, attorneys, musicians and artists who will offer in-depth commentary on the Cuban legal system, art, history, architecture, and religion. We have teamed with Cuba Cultural Travel to create two extraordinary trips. 1st Departure: April 17-21, 2017 2nd Departure: April 21-25, 2017 Our private journeys (space is limited) include the following: t Thought provoking lectures by renowned intellectuals, scholars and legal expert NOTE: A select number of lectures will qualify for MCLE credit, pending approval t Private performances and reception by prominent dance companies and musicians t Exploration of the fascinating neighborhoods of Havana in the company of an architect and historian To request a brochure and registration information, please contact Judi Smalling at jsmalling@dallasbar.org.
24 H e a d n o t e s l D a l l a s B a r A s s ociation
Novem ber 2016