October 2015 Headnotes: Family Law

Dallas Bar Association

HEADNOTES October 2015 Volume 40 Number 10

Focus Family Law

Cathy Maher To Retire At End Of 2016 At its September Board meeting, the Dallas Bar Association’s Board of Directors announced the upcoming retirement of its Executive Director, Cathy Maher, after 37 years of dedicated service. Maher plans to retire on December 31, 2016. The Board will soon begin the search process for her successor.

Maher joined the Dallas Bar Association in 1978 as a Lawyer Referral Service interviewer when its offices were located at the Adolphus Tower. When the Association moved to the Belo Mansion in 1979, Maher was promoted to Membership Assistant, and then Director of the Dallas Bar Foundation. In 1991 she became the Associate Executive Director of the Association, and in 1994 she was appointed as its Executive Director.

During her tenure as Executive Director, Maher has worked with the past 21 DBA Presidents.

As Executive Director, Maher is responsible for the overall operations of

Focus

the Association, the Dallas Volunteer Attorney Program, the Lawyer Referral Service, and the Belo Mansion.

Under her leadership the Association repeatedly has been recognized for its outstanding programs by the American Bar Association and the State Bar of Texas.

Maher has seen much change in the Association, including its move to the Cathy Maher historic Belo Mansion in 1979 and the addition of the Pavilion in 2003. Cathy said, “In 2000, because the DBA membership had grown dra-

matically, meeting space for sections and committees was limited. The Board feared that members would go elsewhere to meet. So, the Association made the decision to add the Pavilion.”

One of Cathy’s proudest accomplishments and biggest challenges was helping to lead the $14 million campaign to build the Pavilion.

Cathy said, “Today, the Mansion and the Pavilion serve the Association members well and will continue to serve as the central meeting place for lawyers for many years to

come. Because of the added space that the Pavilion has given us, we are able to provide over 400 CLE programs a year for our members.”

“Cathy has been an integral part of this Association for more than 35 years.

She is a highly dedicated and loyal Executive Director who we depend on and will miss her very much. I am happy for Cathy because I know her best years are ahead of her,” said DBA President Brad Weber.

“It has been a privilege to work with very special volunteer leaders and professional staff and to be a part of such a wonderful organization and profession. I am very grateful to have spent almost four decades with this outstanding organization, and deeply honored to lead it for the last 21 years. The Association is in very good shape, with a growing membership, a balanced budget and solid reserves. I am very proud of what the Dallas Bar has HN accomplished,” Cathy said.

Family Law

Wiretapping & Data Interception in Civil and Family Law Cases

By Hon. Emily Miskel

Civil and family law attorneys are increasingly confronted with situations where a client’s information has been improperly accessed or where a client has obtained information improperly. The laws relating to interception of communications and electronic data are a confusing web of state and federal statutes, which can include harsh penalties and damages for clients. These laws can also create personal criminal and financial liability for lawyers.

There are three general categories of laws relating to interception of communications. At the federal level they are referred to as: • the Wiretap Act (Title I of the Electronic Communications Privacy Act), • the Stored Communications Act (Title II of the ECPA), and • the Computer Fraud and Abuse Act. Texas has also adopted state versions of each law, with criminal offenses in the Texas Penal Code and civil causes of action in the Texas Civil Practice and Remedies Code.

Wiretap Act

The wiretap laws apply to communications that are intercepted contemporaneously with transmission. This can include in-person conversations, phone conversations, and even electronic com-

munications, as long as the communication is intercepted at the time it is being transmitted. The wiretap laws have the most severe penalties, strict exclusionary rules, and highest statutory damages.

Use and Disclosure Liability—Under the Wiretap Act, it is also a violation to “use” or “disclose” any contents of a communication if you know or have reason to know that it was obtained through interception. Cases have held that attorneys’ use of information obtained from a client’s wiretapped recordings to prepare deposition questions, make settlement offers, report criminal activity, or even to play the recordings at trial are violations.

These are separate, independent wiretap violations by the attorney, and the attorney is personally liable for $10,000 or more in statutory damages and possible criminal penalties.

Exceptions—There are several exceptions to the Wiretap Act that permit recording. Under federal and Texas law, only one person in a communication need consent to a recording. In other words, a participant can record her communications. However, some states have all-party consent laws, and the law of the stricter state applies. It is safest to caution your clients not to record any conversation where a party may be outside Texas, without a disclosure that the communication may be recorded. A parent can give vicarious consent to the recording of a child’s conversations if the par-

ent has a good faith, objectively reasonable belief that the recording is necessary for the welfare of the child.

Stored Communications Act

The stored communications laws apply to communications that are intercepted while in electronic storage incident to transmission. Federal opinions conflict as to the interpretation of terms such as “temporary, intermediate storage” or “backup storage.” For example, some courts have held that all webmail stored online is in electronic storage incident to transmission, while other courts have held that only unopened webmail is subject to an interception violation under the Stored Communications Act. In practice, proving a claim under stored communications laws can be complex because the success of the claim depends on technical fact issues as to how the electronic information was stored and sent.

Computer Fraud and Abuse Act

The Wiretap Act and Stored Communications Act would not generally apply to someone who obtained communications saved on the recipient’s device. The Computer Fraud and Abuse Act (CFAA) and similar laws apply to circumstances where data is obtained locally from a person’s computer or phone. These laws make it a violation to access a computer, network, or system without the effec-

Inside

6 Hon. Royal Furgeson Selected for Professionalism Award 14 Evidentiary Tools in Domestic Violence Cases 18 DBF Announces Diversity Scholarship Dinner Fundraiser 23 Drug and Alcohol Testing in Family Law Cases

tive consent of the owner, or to exceed authorization. Under the CFAA, “protected computer” includes any data processing device used in interstate commerce (i.e. any device that connects to the internet). Generally, proving a claim under the CFAA requires a minimum of $5,000 in damages, but that can include response costs, salaries of employees to repair the harms, lost profits, technical consultants, outside contractors, and more.

Violation of usage policies—some federal courts have held that violating terms of service or a computer usage policy can be a violation of the CFAA. The 9th Circuit has taken a strong position against this broad application of the CFAA, but other circuits have enforced criminal penalties against, for example, employees who take an employer’s electronic information.

Online Impersonation

Texas also has criminal and civil claims for online impersonation. It is a felony to impersonate someone by creating a web page or social media account, or sending messages through a website or social networking site. It is a misdemeanor to impersonate someone by sending email, instant messages, or text HN messages.

Emily Miskel is judge of the 470th district court in Collin County. She can be reached at emily@emilymiskel.com.

DBA MEMBER REMINDER – RENEW ONLINE TODAY! You may renew your 2016 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 View you 2016 Dues Statement option to print and mail in your 2016 DBA DUES STATEMENT with payment.

Your 2016 DBA DUES must be paid by December 31, 2015 in order to continue receiving ALL your member benefits.

Thank you for your support of the Dallas Bar Association!

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

October 2015

Calendar October Events OCTOBER 2-BELO Noon

“The Complete Professional: Effective Interaction with Clients, Colleagues and the Courts,” Michael Maslanka. (Ethics 1.00)* RSVP to kzack@dallasbar.org.

“Practitioner’s Guide to Litigating Departing Employee Cases,” Mark Shank and Dave Wishnew.

(MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to kzack@dallasbar.org.

Construction Law/Tort & Insurance Practice Sections “Insurance Case Law Update,” Lee Shidlofsky and Doug Skelley. (MCLE 1.00)* Judiciary Committee “New Faces at the Criminal Courthouse: Hear from a Panel of New Dallas County Criminal Court Judges,” Hon. Jennifer Bennett, Hon. Brandon Birmingham, Hon. Amber Givens-Davis, Hon. Stephanie Mitchell and Barry Sorrels, moderator.

(MCLE 1.00)*

Family Law Section Board Meeting

St. Thomas More Society

Minority Participation Committee

or contact ahernandez@dallasbar.org.

Presented by the DBA Juvenile Justice Committee. (MCLE 7.00, Ethics 3.25)*

DAYL Animal Welfare Committee

Christian Legal Society

Noon

CLE Committee

Dallas Gay & Lesbian Bar Association

Law in the Schools & Community Committee

3:30 p.m. DBA Board of Directors Meeting

Publications Committee

Christian Lawyers Fellowship

Noon

FRIDAY, OCTOBER 9 Noon

MONDAY, OCTOBER 5

Noon

Tax Law Section “Current Events in Washington DC,” Eric Solomon. (MCLE 1.00)*

TUESDAY, OCTOBER 6 Noon

Corporate Counsel Section “Mind the Boilerplate,” Linda Stahl. (MCLE 1.00)*

Dallas Bar Foundation Board Meeting

6:00 p.m. DAYL Board of Directors Meeting

WENDESDAY, OCTOBER 7

9:00 a.m. 2015 Probate & Guardianship Symposium

“Legislative Updates, Judges Panel with four Dallas County Probate Court Judges and more.” Presented by DAYL Elder Law Committee, Dallas County Probate Courts and DVAP. (MCLE 6.50, Ethics 1.00)* RSVP reed-brownc@lanwt.org.

Noon

Employee Benefits & Executive Compensation Law Section “Outsourcing Employee Benefit Plan Services to Fiduciaries,” Heath Miller and Al Otto. (MCLE 1.00)*

Solo & Small Firm Section Topic Not Yet Available

DAYL Judiciary Committee

Friday Clinic—North Dallas** “Practitioner’s Guide to Litigating Departing Employee Cases,” Mark Shank and Dave Wishnew. (MCLE 1.00)* At Two Lincoln Centre, 5420 Lyndon B. Johnson Frwy., Ste. 240, Dallas, TX 75240. Parking is available in the Visitor’s Lot located in front of the entrance to Two and Three Lincoln Centre. There are several delis within the building. Food is allowed inside the Conference Center. Thank you to our sponsor Fox Rothschild LLP. RSVP to kzack@dallasbar.org. Co-sponsored by CLE and Peer Assistance Committees.

Trial Skills Section “I’m a Believer—What Every Litigator Needs to Know about TRCP 91a and the Believability Standard for Early Dismissal in Texas,” Brandon Fuqua, Yolanda Garcia, Yvette Ostolaza and Robert Velevis. (MCLE 1.00)*

Noon

Real Property Law Section “Changes introduced by the Restatement of Property, Fourth,” Julie Forrester. (MCLE 1.00)*

TUESDAY, OCTOBER 13 Noon

Business Litigation Section “How Special Masters Can Help in Complex Cases, Particularly IT and eDiscovery Disputes,” Cary Ichter and Peter Vogel. (MCLE 1.00)*

Government Law Section Topic Not Yet Available

Mergers & Acquisitions Section “Demystifying Rep & Warranty Insurance: A Transactional Attorney’s Perspective,” Peter Bogdanow. (MCLE 1.00)*

DAYL Lawyers Promoting Diversity

J.L. Turner Presidential Series CLE

6:30 p.m. DAYL Annual Meeting

THURSDAY, OCTOBER 8

WEDNESDAY, OCTOBER 14

Home Project Committee

7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group

11:30 a.m. A lternative Dispute Resolution/Family Law Sections

“ADR/Family Law Section Mediation

Friday Clinic-Belo “Update From the 84th Legislature and a Look to the 85th,” Senator Don Huffines, Senator Royce West, Representative Rafael Anchia and Representative Kenneth Sheets, and Jerry Fazio, moderator. (MCLE 1.00)* RSVP to kzack@dallasbar.org. Cosponsored by DBA CLE Committee and Texas Association of Defense Counsel.

Transition to Law Practice Committee “Interview with a Legal Legend Harriet Miers: Professionalism in the Practice of Law,” Karin Torgerson, moderator. (Ethics 1.00)*

Pro Bono Activities Committee

Mock Trial Committee

MONDAY, OCTOBER 19 Noon

32nd Annual Stephen Philbin Luncheon Recognizing Excellence in Legal Reporting.

Keynote speaker: U.S. Ambassador Robert Jordan. (MCLE 1.00)* Tickets $45/Tables $450 (before Oct. 7). Register online at www.dallasbar.org.

Labor & Employment Law Section “Whistleblowing and The Dodd-Frank Act: What Counsel Need to Know,” Rachel V. Rose. (MCLE 1.00)*

TUESDAY, OCTOBER 20 Noon

Franchise & Distribution Law Section “Litigation Issues Facing Franchisors and Franchisees,” Jacob Kring. (MCLE 1.00)*

International Law Section “Careers in International Law, and the Many Roads to Those Careers,” Panel Discussion. (MCLE 1.00)*

Peer Assistance Committee

5:30 p.m. Bankruptcy & Commercial Law Section

“Fraudulent Transfer Damages: Creditor Windfall, Creditor Claims Cap or Equitable Determination by the Court?” Jeff Balcombe, Melanie Gray and Lee Morris.

(Ethics 1.00)*

8:25 a.m. Juvenile Delinquency Advanced Topics Conference

To register, go to www.dallasbar.org

MONDAY, OCTOBER 12

6:00 p.m. Annual Evening Ethics Program

“Annual Evening Ethics Program,” Michele Boerder, John G. Browning, Bob Davis, Hon. Royal Furgeson, Jessica Haseltine, Gregory J. Lensing, Andy Sawyer, Frank Stevenson, Jennifer Wondracek and Justice Kerry FitzGerald, moderator. DBA members: $25, Non-members: $90. RSVP required, contact kzack@dallasbar.org.

(Ethics 3.00)*

7:30 a.m. DAYL Breakfast with Business Peers

FRIDAY, OCTOBER 16

6:00 p.m. J.L. Turner Legal Association

Friday Clinic-Belo “The Complete Professional: Effective Interaction with Clients, Colleagues and the Courts,” Michael Maslanka. (Ethics 1.00)*

11:30 a.m. P robate Mini-Seminar

“Wills Drafting and Wills Contest,” James J. Harnett and Melinda Hartnett, Dani Smith and Hon. Brenda Hull Thompson.

RSVP to reed-brownc@lanwt.org.

Sponsored by DVAP, Dallas County Probate Courts & Probate Trusts & Estates Section.

(MCLE 2.00, Ethics 1.00)*

THURSDAY, OCTOBER 15

FRIDAY, OCTOBER 2 Noon

5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.

Appellate Law Section “Muddle in the Middle: An Update on Interlocutory Appeals,” Rich Phillips.

(MCLE 1.00)*

THURSDAY, OCTOBER 1 Noon

DAYL ACE Committee

Noon

“Update From the 84th Legislature and a Look to the 85th,” Senator Don Huffines, Senator Royce West, Representative Rafael Anchia and Representative Kenneth Sheets, and Jerry Fazio, moderator. (MCLE 1.00)* RSVP to kzack@dallasbar.org. Co-sponsored by DBA CLE Committee and Texas Association of Defense Counsel.

West. (MCLE 1.00)* At UNT Dallas, 7400 University Hills Blvd, Building 2, Room #101. Park in lot in front of 7400 University Hills Blvd. RSVP to kzack@dallasbar.org.

11:30 a.m. House Committee Walk Through Noon

OCTOBER 16-BELO Noon

Panel,” Lynn Hunt, John Schorsch, John Withers, Jr. and Hon. Frances Harris, moderator. (MCLE 1.00, Ethics 0.25)*

FRIDAY CLINICS

OCTOBER 9-NORTH DALLAS** Noon

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

DAYL Elder Law Committee

WEDNESDAY, OCTOBER 21 Noon

Energy Law Section “Shale Oil and Gas Development and Hydraulic Fracturing: Anything Different From the Usual Oil and Gas Dispute?”

Mark Hemingway. (MCLE 1.00)*

Health Law Section “A Mountain or a Molehill: The Scope of Texas’ Prompt Payment Statutes and Other Provider/Payor Issues,” Micah Skidmore.

(MCLE 1.00)*

Library Committee

Non-Profit Law Study Group

5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.

Noon

Criminal Law Section “2015 Legislative Update,” Stephanie Luce.

(MCLE 1.00)*

Environmental Law Section Topic Not Yet Available

DAYL Lunch & Learn CLE. For more information, contact cherieh@dayl.com.

FRIDAY, OCTOBER 23 Noon

Intellectual Property Law Section “Intellectual Property Issues in M&A Transactions,” Jesse Betts, Craig Carpenter and Steve Stein. (MCLE 1.00)*

1:30 p.m. Law Student Financial Conference

A half-day conference focusing on personal financial issues facing law students and newly-licensed attorneys.

RSVP to mjohnson@dallasbar.org.

MONDAY, OCTOBER 26 Noon

Computer Law Section “Ethical Issues for Lawyers with Social Media and the Cloud,” Peter Vogel. (Ethics 1.00)*

Securities Section “The ‘Control’ Quagmire: The Cumbersome Concept of ‘Control’ For The Corporate Attorney,” Alex Poor. (MCLE 1.00)*

Celebrate Pro Bono Week CLE “DHBA, DVAP & JLTLA CLE” (MCLE 1.00)*

DAYL Solo & Small Firm Committee

TUESDAY, OCTOBER 27

11:30 a.m. P ro Bono Opportunities Legal Fair.

Learn about interesting pro bono opportunities.

Noon

Probate, Trusts & Estates Law Section “How Not to Fund Testamentary Trusts,” Michelle Mobley. (MCLE 1.00)*

Celebrate Pro Bono Week CLE “Family Law Attorney Ad Litem Certification” (MCLE 1.00)*

American Immigration Lawyers Association

5:00 p.m. DVAP Belo Legal Clinic. Volunteers needed. For more information, contact reed-brownc@lanwt.org

Celebrate Pro Bono Week—South Dallas Legal Clinic at MLK, Jr. Center (2922 MLK Blvd, Room 122, Dallas)

6:00 p.m. Dallas Hispanic Bar Association

WEDNESDAY, OCTOBER 28 Noon

Celebrate Pro Bono Week—DVAP New Lawyers Luncheon. RSVP to reedbrownc@ lanwt.org.

DAYL Foundation Board Meeting

Municipal Justice Bar Association

3:30 p.m. Celebrate Pro Bono Week—“DVAP Small Business Legal Clinic”

THURSDAY, OCTOBER 29

8:30 a.m. Dallas Bar Association Education Symposium

Registration $35, includes lunch. Keynote speaker: Michael J. Sorrell, Paul Quinn College. RSVP to ahernandez@dallasbar. org. (MCLE 1.75)*

5:30 p.m. Pro Bono Awards Celebration

Help the Dallas Volunteer Attorney Program celebrate! RSVP to popee@lanwt. org.

Noon

FRIDAY, OCTOBER 30

Labor & Employment Law Section “Annual Employment Law Update,” Hal Gillespie and Mark Shank. (MCLE 1.00)*

THURSDAY, OCTOBER 22 Noon

South Dallas Clinic “Legislative Update,” Senator Royce

Collaborative Law Section “Southfork Meets Bleak House: An Insider’s View on Why Collaborative Law is So Suited to Family-Business Disputes,” Doug Box. (MCLE 1.00)*

9:30 a.m. Celebrate Pro Bono Week

“Kinship Legal Custody Program,” presented by DVAP and W.W. Caruth, Jr. Child Advocacy Clinic at SMU Dedman School of Law. (MCLE 3.50, Ethics 1.00)* RSVP to reed-brownc@lanwt.org.

If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Cathy Maher at 214/220-7401 as soon as possible and no later than two business days before the seminar.

All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call Teddi Rivas at the DBA office at 214/220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact KZack@dallasbar.org.

October 2015

D al l as Bar A ssoci ati on l Headnotes 3

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Vice President 214.616.1288 ljohnson@briggsfreeman.com

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

October 2015

Headnotes

President's Column

Navigating the Perfect Storm Brad Weber

The Perfect Storm came out in 2000 and was a huge box office success. It is based on a true story and stars George Clooney as the captain of a commercial fishing boat called the Andrea Gail. The film chronicles the Andrea Gail’s final fishing expedition in the fall of 1991 and its attempt to safely return home to the port of Gloucester, Massachusetts.

In order to do so, the Andrea Gail must navigate through the confluence of two powerful weather fronts and a hurricane, which converged in the North Atlantic to form the “Perfect Storm.”

Today, many law students and newly licensed lawyers are facing a financial crisis that some have likened to the “Perfect Storm.” This situation is caused by the rising costs of law school tuition, the restructuring and downsizing of traditional law practices, and the increasingly competitive job market, which together have converged to create a perfect financial storm for law students and new lawyers entering the profession. As students graduate from law school, they often are faced with significant debt that inhibits their ability to pursue their preferred career goals. This situation is particularly difficult for graduates who are faced with uncertain employment options.

Earlier this year during a program sponsored by the American Bar Association at its Midyear Meeting in Houston, some alarming statistics concerning student loan debts were presented: • Student loan debt now exceeds $1.2 trillion in the United States. It has more than tripled in the last 10 years and has passed credit card debt as the second largest source of consumer debt behind only home mortgages.

• Student loan debt has swelled to such a level that many students cannot afford or qualify for a loan to purchase a home or car.

• More than 640,000 federal loan borrowers who began making payments in 2011 had defaulted on their loans by 2013.

Despite these grim statistics, the speakers at the ABA program agreed that law students and new lawyers have several available options for mitigating the financial burdens caused by student loan debts. Unfortunately, though, many of the people facing these burdens do not understand all of their options. As stated by one of the speakers, Rohit Chopra, of the Consumer Financial Protection Bureau, “We now have 7 million Americans in default on student loans and the vast majority of them could have been avoided if

the borrowers had opted into certain income-based plans that allow them to avoid default.”

At the same Midyear Meeting where the student debt program was presented, the ABA House of Delegates unanimously passed a resolution that encourages (1) law schools to offer comprehensive debt counseling and debt management education to all currently admitted and enrolled law students and (2) bar associations to offer similar debt counseling and debt management education to young and newly admitted lawyers.

Consistent with the ABA’s recent resolution, the Dallas Bar Association, along with SMU Dedman School of Law, Texas A&M School of Law, Texas Tech University School of Law, and UNT Dallas School of Law, have joined together to plan and co-sponsor a free, half-day conference focusing on personal financial issues facing law students and newly-licensed lawyers. The conference will be held in the Belo Pavilion on Friday, October 23, 2015, from 1:30 – 5:00 p.m., and will conclude with a networking reception for law students and DBA members. This conference is historic because it represents the first time that the DBA and these great law schools have joined together to co-sponsor an event.

Program speakers and topics include: • Heather Jarvis, a graduate of Duke University School of Law and a nationally-recognized expert on student loan issues, who will provide guidance on how law students and new lawyers can strategically manage their debt, not only while in law school but also throughout their legal careers; • Mitzi K. Lauderdale, a graduate of Texas Tech University School of Law and a Professor of Personal Financial Planning at Texas Tech University, who will offer practical advice on personal financial issues, including how to balance living expenses while also dealing with the financial obligations incurred as students; and • Lynn Davis Ward, a graduate of SMU Dedman School of Law and a member of the State Bar of Texas’ Law Practice Management Committee, who will focus on practical aspects of creating a law practice business model given the current climate of law firm economics and the job market for new lawyers.

Unlike the Andrea Gail, which fell victim to the Perfect Storm of 1991, I am hopeful that law students and newlylicensed lawyers who attend this half-day conference will be better educated on options for navigating their way through HN the perfect storm of law student debt.

SAVE THE DATE

2015 Sustaining Members of the Dallas Bar Association

The DBA sincerely appreciates the support of its Sustaining Members whose financial contributions enhance the preservation of the historic Belo Mansion.

Ben Abbott Lafitte, Abbott, Wingo, Rehfeld & Holloway, PLLC Randolph D. Addison Addison Law Firm P.C. Micah Adkins The Adkins Firm, P.C. William W. Camp William W. Camp, P.C. David Carlock Carlock & Gormley Carol C. Donovan Carol Crabtree Donovan, PC Al Ellis Sommerman & Quesada, L.L.P. David L. Godsey Godsey - Martin, P.C Hon. Bonnie L. Goldstein 44th District Court James J. Hartnett, Jr. The Hartnett Law Firm Houston E. Holmes, Jr. Attorney at Law Kathleen E. Irvin Attorney at Law Justice Tom James Attorney at Law Kristina N. Kastl Kastl Law, P.C.

Justin Martin Godsey - Martin, P.C. Sawnie A. McEntire Beirne, Maynard & Parsons, L.L.P. Mike McKool, Jr. McKool Smith P.C. Nancy A. Nasher NorthPark Development Company Robert H. Osburn Robert H. Osburn, P.C. Lance A. Pool Steckler LLP Ellen S. Pryor UNT Dallas College of Law Richard D. Pullman Kessler Collins, P.C. Glynis W. Redwine The Redwine Law Firm

2015 new DBA members and newly licensed attorneys are invited to join us for the

Dallas Bar Association Fall Fiesta Thursday, November 12, 2015 5:30 - 8:00 p.m. | The Belo Mansion Complimentary food and beverages Music and raffle drawings

Published by: DALLAS BAR ASSOCIATION 2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873

The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.

OFFICERS President: Bradley C. Weber President-Elect: Jerry C. Alexander First Vice President: Rob D. Crain Second Vice President: Michael K. Hurst Secretary-Treasurer: Victor D. Vital Immediate Past President: Scott M. McElhaney Directors: Wes Alost, A. Shonn Brown, Jonathan Childers (President, Dallas Association of Young Lawyers), Laura Benitez Geisler (Chair), Hon. Harlin “Cooter” Hale (Judicial At-Large), Hon. Martin Hoffman, Krisi Kastl, Michele Wong Krause, Monica Lira (President, Dallas Hispanic Bar Association), Bill Mateja, Karen McCloud, Cheryl Camin Murray (At-Large), Courtney Barksdale Perez (At-Large), Bill Richmond (President, Dallas Asian American Bar Association), Ebony Rivon (President, J.L. Turner Legal Association), Mary Scott, Diane M. Sumoski, Robert L. Tobey (Vice-Chair) and Aaron Tobin Advisory Directors: Stephanie Gause (President-Elect, Dallas Association of Young Lawyers), Rocio Cristina Garcia (President-Elect, Dallas Hispanic Bar Association), Emmanuel Obi (President-Elect, J.L. Turner Legal Association), and Monika Sanford (President-Elect, Dallas Asian American Bar Association).

Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Wm. Frank Carroll, Leon Carter, John Jansonius, Florentino A. Ramirez and Scott Stolley HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Display Advertising: Deni Ackerman, Annette Planey, Jessica D. Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Jared Slade and Meghan Hausler Vice-Chairs: Paul Clevenger and Keith Pillers Members: Timothy Ackermann, Jerry C. Alexander, Vincent Allen, Natalie Arbaugh, Jody Bishop, Lisa Tomiko Blackburn, Jillian Bliss, Jason Bloom, Andrew Botts, Lance Caughfield, Chhunny Chhean, Stephen Clarke, Shannon Conway, Joel Crouch, David Dummer, Christopher Elam, Alexander Farr, Daniel Felz, Dawn Fowler, Robin Ghio, Basheer Ghorayeb, Kimberly Gonzalez, Andrew Gould, Susan Halpern, Jeremy Hawpe, Zachary Hilton, Ezra Hood, Mary Louise Hopson, Michael K. Hurst, Ashley Johnson, Amanda Kelley, Sara Krumholz, Margaret Lyle, Thomas Maddrey, Orly Mazur, Jodi McShan, Ethan Minshull, Paige Montgomery, Jessica Nathan, Jeffrey Novel, Eugene Olshevskyy, Mason Parham, Aimee Pingenot, Kirk Pittard, Laura Anne Pohli, Lisa Prather, Michelle Reed, David Ritter, Carl Roberts, Lantis Roberts, Eugenie Robichaux, Joshua Sandler, Chandrika Shori, Micah Skidmore, Stefan Smith, Bradley Smyer, Thad Spalding, Elizabeth Stanley, John Stevenson, John Ting, Paul Tipton, Pryce Tucker, Peter Vogel, Tracey Wallace, Brad Weber, Philip Worley DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Director: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Avina, Marcela Mejia Law-Related Education Coordinator: Melissa Garcia Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Monique Scott, Zach Watkins Program Assistant: Patsy Quinn Secretary: Ellie Pope Copyright Dallas Bar Association 2015. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher.

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Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@ dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words.

DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association.

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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.

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6 H e a d n o te s l D a l l a s B a r A ss ociation

October 2015

Hon. Royal Furgeson, Jr. Selected for Professionalism Award tant mentors. It is so appropriate that Halbert O. Woodward.

After his clerkship, Dean FurgeDean Furgeson will receive the Dallas The Honorable W. Royal Furgeson, Bar Association’s Professon served as an Assistant Jr. is the 2015 recipient of the Mor- sionalism Award named in County attorney for Lubris Harrell Professionalism Award. The Mr. Harrell’s honor. They bock before joining the Dallas Bar Association and the Texas are both cut from the same Kemp Smith Firm in El Center for Legal Ethics and Profession- cloth. I am thrilled that Paso. For the next 24 years alism present this award annually to the Dean Furgeson’s name will he practiced at the firm “attorney who best exemplifies, by con- be added to the list of disin the areas of banking, duct and character, truly professional tinguished recipients of this employment, intellectual traits who others seek to emulate and award.” property, patent law, pharwho all in the bar admire.” maceuticals and securities.

A native Texan, Dean A leader in the profession, the rule Furgeson graduated from He led the firm’s commerof law, legal education, and our coun- Texas Tech University with cial litigation section and try—Dean Furgeson has demonstrated a Bachelor of Arts in Engsupported their pro bono the qualities listed above throughout his lish. He then moved to efforts. nearly 50-year legal career.

Dean Furgeson served Austin and earned his law “As a practicing lawyer, a judge, and degree at the University Hon. W. Royal Furgeson as U.S. District Judge in now the Dean of the UNT Dallas Col- of Texas School of Law, where he was the El Paso, Midland, and San Antolege of Law, Royal Furgeson has consis- an Associate Editor of the Texas Law nio Divisions of the Western District of tently exemplified the highest standards Review. Shortly after graduating law Texas, before taking Senior Status in the of civility, courtesy, and ethics in our school, he served his country in the U.S. Northern District of Texas, Dallas Diviprofession,” said DBA President Brad Army for two years, attaining the rank sion. He served as a federal judge for Weber. “I had the privilege of practic- of Captain. Following a tour in Viet- more than 18 years. He retired in 2013 ing with Morris Harrell during my early nam, where he earned the Bronze Star to become the Founding Dean of the years as a lawyer, and to this day I con- for Meritorious Service, he returned to UNT Dallas College of Law. sider him to be one of my most impor- Lubbock as law clerk to the Honorable Upon being appointed founding dean of the law school in 2012, Frank Newton, former dean of Texas Tech School of Law, stated in a news article: “Because a brand new law school has no track record, the only evidence of its quality is the integrity of its leaders.

In Royal, you have the perfect pick— a confident, gregarious leader whose KEYNOTE SPEAKER record of accomplishment adds a clear aura of credibility to the new school.”

Whether practicing law or leading Author of Desert Diplomat Dallas’ first public law school, Dean Furgeson emanates integrity, kindness and professionalism wherever he goes.

EARLY BIRD RATE: TICKETS: $45 | TABLES OF 10: $450 Dean Furgeson is a fellow of the AFTER OCT. 7: TICKETS: $50 | TABLES OF 10 $500 American College of Trial Lawyers, a member of the American Law Institute, Monday, October 19 | Noon | Belo and Board Certified by the Texas Board of Legal Specialization in Civil Trial For tickets, log on to www.dallasbar.org Law. During his extensive career, he has

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received numerous awards and accolades, including Jurist of the Year from the Texas Chapter of the American Board of Trial Advocates, the Spirit of Excellence Award from the ABA’s Commission on Racial and Ethnic Diversity, the West Texas Legal Legend Award by the Texas Tech University School of Law, the Distinguished Counselor Award by the SBOT Antitrust and Business Litigation Section, the Luke Soules Award by the SBOT Litigation Section, the Leon Green Award by the Texas Law Review, and the Faculty Award by the University of Texas School of Law. Though being named the Morris Harrell Professionalism Award recipient has special meaning for him.

“When I was a young lawyer, trying to find my way in State Bar activities, Morris Harrell was very kind and generous to me. It always astonished me that this giant of the profession remembered my name, especially since I was from El Paso, far from his home base in Dallas,” said Dean Furgeson. “When the UNT Dallas College of Law created its ‘Legends Awards,’ we made certain that one was named after Morris Harrell. In a very meaningful way, this recognition closes the circle for me. I am grateful beyond words.”

A former Captain in the U.S. Army, a practicing attorney and judge for nearly 50 years, and founding dean of the UNT Dallas College of Law—just a few of the many reasons Dean Royal Furgeson, Jr., is a clear choice for the 2015 Morris Harrell Professionalism Award.

Dean Furgeson will receive his award at the DBA’s Annual Meeting on Friday, November 7, 2015, at the HN Belo Mansion.

Jessica D. Smith is the Communications/Media Director of the Dallas Bar Association. She can be reached at jsmith@dallasbar.org.

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Focus

October 2015

Family Law

If You’re Heading for the Big D, and I Don’t Mean Dallas…

by Jelena Kovacevic

Whether it is you, a family member, or a client that is heading for divorce, here are five things everyone should know:

Be Careful Where and What You Post

We live in a digital age where it is commonplace to post images on social media in exchange for “likes” and “comments” from people we may not know or even like. Sometimes, these images are innocent enough, but often they are anything but.

What possible harm can come from that picture of you and your college friends reuniting for one night of good old fashioned fun? Sure, Tommy reenacted a scene from Old School and

made sure to bring his green hat, but, all in all, it was just harmless fun.

In the world of family law, however, a history of posts and pictures involving “good old fashioned fun” could be your worst nightmare. Suddenly, you are an irresponsible alcoholic barely holding it together. Whether the portrayal is accurate or not, the last thing anyone needs during a divorce is another hurdle to overcome.

It’s Not Over ‘Til It’s Over

Even though one party to a divorce might be ready to move on, it is important to remember that “it’s not over ‘til it’s over.”

Texas courts have found a spouse guilty of committing adultery even though there was evidence suggesting that the romantic relationship in question started after the parties separated

South Dallas Clinic Presents: Legislative Update with Senator Royce West Thursday, October 22, Noon | MCLE 1.00 Have your photo made for the DBA Directory while you are there.

11:30 a.m.-1:30 p.m. No reservation needed. May be purchased for personal use.

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and filed for divorce. The result of such a finding can be disastrous. In fact, for one court, it justified an award of 81 percent of the community estate to the “innocent” spouse.

Everything is Bigger in Texas, Except…

Everything is bigger in Texas, except when it comes to guideline child support. The amount of monthly net resources to which the statutory guidelines apply is $8,550. According to these guidelines, maximum child support for one child is currently capped out at 20 percent of $8,550 in net monthly income. That amounts to $1,710.00 in monthly child support for one child. While the Texas Family Code offers parties grounds to seek “above guideline child support,” it is very difficult to obtain and rarely awarded.

It’s Going to Take Some Time

Clients always ask: “how long will this take?” While there is no set rule, the reality is that it is going to take some time. With people like Blake Shelton and Miranda Lambert getting divorced in a week and a half, it is hard for someone headed down the path of divorce to set reasonable expectations.

Texas has a mandatory 60-day waiting period that starts from the day the Original Petition for Divorce is filed with the court. If the parties are able to settle their claims within that 60-day period, they are free to seek a divorce on the 61st day. More often than not, however, it takes more than 60 days to reach an agreement. Ultimately, the

failure to reach an agreement typically leads to trial which can take months or years to resolve.

Factors that often complicate and prolong the process include possession schedules, child support, extracurricular expenses, child care costs, valuation of separate and community property, ownership of private businesses, and so forth. Regardless of the factors involved in a divorce case, it is important that the individual going through a divorce understands the process and that the family law attorney sets reasonable expectations.

Don’t Bring a Knife to a Gun Fight

Divorce can be emotionally devastating, and it is common for someone beginning the divorce process to seek the comfort of friends and family. It is also common to seek legal advice from a second cousin who happens to practice criminal law in Kansas. While emotional support from family and friends may be helpful, legal advice from anyone other than a trained Texas family law attorney could be detrimental to one’s position.

It is imperative to seek the advice and counsel of a family law attorney as soon as possible. Not only can family law attorneys help navigate the turbulent waters of the divorce process, but they can also ensure that their client’s interests are protected from the very HN beginning.

Jelena Kovacevic is a Senior Associate at Verner Brumley McCurley Mueller and Parker, P.C. She can be reached at jkovacevic@vbmmp.com.

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Focus

October 2015

Family Law

Back to the Future: Will Texas Courts Apply Obergefell Retroactively?

by Ryan Segall

A famous villain once said, “Just when you think you have all the answers, I change the questions.” The United States Supreme Court’s landmark decision in Obergefell v. Hodges answered the question regarding the legality of same-sex marriage. Now courts face a new dilemma: does Obergefell apply retroactively?

Obergefell presents a variety of samesex marriage issues ranging from spousal death benefits to common law marriages to property division. Courts and legislatures must determine whether same-sex marriages should be recognized retroactively in order to address these issues. Both recent and historical case law give insight into how Texas courts may deal with Obergefell’s application.

Courts generally subscribe to the notion that the passage of an unconstitutional statute is “void ab initio,” meaning that the law is void from its inception. However, courts have discretion to depart from the general rule applying decisions retroactively when

circumstances dictate the need to apply a ruling prospectively.

The U.S. Supreme Court used a three-part analysis to determine whether a judicial decision should be applied retroactively in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971).

Although the Court later barred state courts from limiting retroactive operations of federal law, the Texas Supreme Court adopted the Chevron test to determine the retroactivity of decisions involving matters of state law in Carrollton-Farmers Branch Independent School District v. Edgewood Independent School District, 826 S.W.2d 489 (Tex. 1992).

The Chevron test uses three factors to determine whether a court’s ruling should apply retroactively: first, whether the holding decides an issue of first impression; second, whether retroactive operation will further or retard its operation; and third, whether retroactive application could produce substantial inequitable results.

The Fifth Circuit Court of Appeals used the Chevron factors to prospectively apply its decision holding a Loui-

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siana statute unconstitutional in Kirchberg v. Feenstra, 609 F.2d 727 (5th Cir. 1979). The statute, ruled unconstitutional on equal protection grounds, gave a husband the unilateral right to dispose of community property without his wife’s consent. The Kirchberg court, citing the history behind the statute, reasoned that applying the decision prospectively avoided injustices. Conversely, retroactive application of the ruling would create a substantial hardship with respect to parties’ property rights and obligations.

The Texas Supreme Court cited Kirchberg when a previously repealed statute requiring a husband to join his wife in conveyance of her separate property was ruled unconstitutional.

Wessely Energy Corp. v. Jennings, 736 S.W.2d 624 (Tex. 1987). Similar to Kirchberg, the Wessely court applied their ruling prospectively, finding that retroactive operation would cloud previously stable land title and ownership.

Compare Kirchberg’s and Wessely’s prospective applications to recent rulings in De Leon v. Abbott, 2015 WL 4032161 (5th Cir. July 1, 2015). In De Leon, two same-sex couples attacked the constitutionality of Art. 1, § 32 of the Texas Constitution, which defines marriage in Texas as “the union of one man and one woman.” One couple wished to marry in Texas; the other sought to have their Massachusetts marriage recognized in Texas.

The U.S. District Court for the Western District of Texas issued an injunction preventing the state from enforcing specific laws prohibiting same-sex couples from marrying in Texas. The court also enjoined the

state from refusing to recognize marriages between same-sex couples lawfully married elsewhere.

The court stayed the injunction while the state appealed. On June 26, 2015, the day Obergefell was announced, the district court lifted the stay. A week later, the Fifth Circuit Court of Appeals affirmed the injunction.

The retroactive application occurred the following month when the district judge granted John Stone-Hoskins’s emergency motion to intervene in De Leon. James, John’s same-sex partner, died intestate in Texas in January 2015 after the couple married legally in New Mexico. John’s motion requested the court to amend his husband’s death certificate, which listed James as “single.”

The district judge ordered the Texas Department of State Health Services to issue an amended death certificate listing John as James’s surviving spouse.

Prior to a contempt hearing, the state agreed to amend death certificates for same-sex spouses.

Obergefell clearly answered the legality of same-sex marriage. Kirchberg and Jennings imply the possibility of applying Obergefell prospectively. Conversely, the De Leon ruling mandating the issuing of an amended death certificate suggests aspects of Obergefell may be applied retroactively. The Chevron factors provide a test for Obergefell’s retroactivity but it may take years to apply these tests to each specific issue. At these early stages in the post-Obergefell era, even when one finds an answer, the HN question changes.

Ryan Segall is an associate at Holmes, Diggs, & Eames, PLLC. He can be reached at rsegall@texfamlaw.com.

Park Place Dallas Ticket to Drive Raffle ...Winner receives 2016 Mercedes-Benz GLA-Class

Runner-Up Receives:

New Orleans Jazz & Dining Package (Three-night stay at Hyatt French Quarter with airfare for 2) Raffle tickets are $100 each — or 6 tickets for $500.

Proceeds benefit the Dallas Volunteer Attorney Program, Purchase raffle tickets online at https://www2.dallasbar.org/dbaweb/dvap/raffle.aspx or at the DBA offices at the Belo Mansion (2101 Ross Avenue, Dallas, TX 75201).

Drawing will be held at the DBA Inaugural Ball on January 16, 2016.

The winner need not be present to win.

The winner is responsible for all taxes, title and licensing.

Prize is non-transferable. No cash option is available.

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October 2015

How to Keep Credit Card Payments Secure for Law Firms As more and more attorneys discover the many benefits of accepting credit card payments, questions arise concerning the introduction of EMV readers and the upcoming liability shift in October 2015.

What is EMV? Will this policy change affect my firm? How do I keep my firm and clients secure?

that is the cause of a chip transaction not occurring, and will be held financially liable for the resulting card present counterfeit fraud losses.” However, responsibility for fraud on your merchant account is nothing new. Most agreements already hold your business responsible for chargebacks, fraud, and bank fees on any transaction processed through your merchant account.

What is EMV?

How will this affect my firm?

by Tracey Gavin

EMVs (Europay-MasterCard-Visa), or “pin and chip” cards, are credit cards that are embedded with a unique electronic chip that are highly secure and effectively counter the threat of counterfeiting. EMV technology has been largely focused on mid-size to large retailers, but is making headlines due to the upcoming liability shift on card present or “swipe” transactions.

According to Visa, as of October 1st, 2015, the liability for fraudulent transactions will officially belong “to the party

The good news is, since most law firms do not handle transactions in a “retail” situation, or use “point of sale” terminal systems, EMV processing is not a large factor in how you run your practice. In addition, law firms have a very low risk of accepting counterfeit credit cards. As a law firm, you have an advantage over traditional retailers because you know the identity of your clients, which drastically reduces the risk of accepting a counterfeit credit card. However, it is still important to maintain PCI Compli-

ance and protect client and card holder information.

What is PCI Compliance?

PCI (Payment Card Industry) Compliance is a set of guidelines for protecting credit card data. Each year, you are required to complete a Self-Assessment Questionnaire (SAQ) as a way to evaluate the security in your office. LawPay makes this part easy.

Using our free online program, PCI Central, attorneys can achieve PCI Compliance and accept credit cards with confidence.

The most effective way to maintain PCI compliance is to eliminate the need to see, collect, or store any credit card data from clients. If no one in your office touches, records, or handles a client credit card, or the card number, then the risk for card fraud is almost eliminated.

For example, using a credit card processing service such as LawPay provides a secure web-based system that securely encrypts the credit card and eliminates the need to handle data directly. LawPay also

offers the ability to add secure payment links to your website, or send electronic invoices directly to clients.

These methods also eliminate the need for traditional credit card machines, further reducing your risk. As a best practice, avoid the storage of credit card information and simply allow your clients to enter their payment information directly with LawPay.

About LawPay

The LawPay program, is a custom payment solution designed for attorneys and complies with ABA and state requirements for managing client funds. As a member benefit of the Dallas Bar Association, law firms save up to 25 percent off standard credit card fees. If you are currently accepting credit cards, we encourage you to compare your current processor and its fees with LawPay. To learn more contact (866) 376-0950 or HN www.LawPay.com/dallasbar.

Tracy Gavin is the Marketing Director for LawPay. She can be reached at tgavin@affinipay.com.

Sign up to Volunteer at the DBA Community Day of Service Saturday, October 24, 2015

P�� B��� A����� C���������� Wednesday, October 21, 2015, 5:30 ‐ 7:30 p.m.

Belo Mansion, 2101 Ross Avenue, Dallas Please RSVP by October 16 to popee@lanwt.org

A day of community service hosted by the DBA’s Community Involvement Committee.

For more information, visit www.dallasbar.org/dbacommunitydayofservice.

To volunteer, log on to www.surveymonkey.com/s/DBADayofService.

Deadline to signup: Friday, October 2.

If your firm or group has an idea for a project that you would like to organize, please contact elwoodb@gtlaw.com or elwoodb@gtlaw.com.

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D al l as Bar A ssoci ati on l Headnotes 13

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14 H e a d n o t e s l D a l l a s B a r As s ociation

Focus

October 2015

Family Law

Evidentiary Tools in Domestic Violence Cases

by Lindsey Obenhaus

Domestic violence is one of the most chronically underreported crimes in the United States. Studies reveal that only a minority of victims actually report incidents of domestic violence to the police or receive medical care for their injuries. Victims fail to report due to fear of retaliation, a sense of misplaced guilt, distrust towards the justice system, and other personal or cultural issues.

This creates a hurdle for attorneys who must later prove a history or pattern of family violence in a divorce or custody proceeding. Without records from law enforcement or medical personnel, proving claims of domestic violence in family court can seem like a testimonial “swearing match” between the victim and the accused. However, the savvy family law practitioner can utilize other forms of evidence to establish the occurrence of domestic violence.

Family violence is typically only one component of a systematic pattern of power and control perpetrated by one partner against another. Domestic violence often is accompanied by a history of isolation, control, cruelty, or manipulation by

an aggressor towards a victim. Identification of this pattern (or lack thereof) can bolster a party’s testimony to prove by a preponderance of the evidence whether or not the alleged abuse occurred. This systematic pattern is often easier to prove with tangible evidence than a single incident of abuse.

Savvy practitioners will review the correspondence between the parties for telltale evidence of abusive tendencies by an alleged aggressor. Text messages, emails, call records (for stalking), and social media posts are the top sources of this information.

Photographs, videos, and other electronic evidence are usually rare in these cases due to the reluctance of victims to document their situations. However, photographs can be introduced to show a “before” and “after” comparison if an aggressor destroyed property; even if the damaged property is in the background of a photograph.

If the victim ever called a domestic violence hotline or stayed at a shelter for safety, obtain records from these events.

How often did he or she call them? Most shelters will keep records of how often an individual contacts them (if the victim

Juvenile Delinquency Advanced Topics Conference

gives their name) and maintain a comprehensive file on their encounters with a victim. Speak to the shelter advocates or the hotline volunteers assigned to the victim’s case and subpoena them to the hearing.

Shelter records can be useful evidence for a victim if he or she has been consistent with their claims. Ask the victim at trial if he or she had a safety plan; this is one of the first topics that a domestic abuse advocate will discuss with a person living in an abusive relationship. Knowledge of a safety plan can affect the credibility of the victim who testifies that they sought help from these resources. If the victim did not call a hotline or stay at a shelter, then private counseling records should be obtained through HIPAA authorizations for the same information.

Attorneys on both sides should consider retaining an expert witness on the issue of domestic violence. Several domestic violence shelters employ advocates who are true experts on this subject, but there are also mental health, medical, and law enforcement personnel who boast the credentials necessary to qualify as an expert in this field. These witnesses can analyze a victim’s circumstances and use their knowledge to reinforce (or rebut) claims.

For example, an expert could recite data about how it is normal for victims to be ambivalent about reporting their situation, stay with their abusers for a long period of time, and even lie to authorities to protect their abusers. This sort of testimony can establish that a victim’s perceived weaknesses are actually proof that his or her claims are more credible.

Family violence cases are never easy due to the high stakes involved at trial. A finding of family violence has significant consequences in a divorce or custody suit.

It justifies specific rulings relating to conservatorship, support, possession and access to a child, attending mediation, or whether to uphold a mediated settlement agreement.

Most importantly, it can fundamentally affect the safety of the victim and the rights of the accused. Attorneys in these cases must creatively and resourcefully identify the not-so-obvious signals of family violence to prove their client’s claims. This approach will minimize the risk of a “he said” vs. “she said” swearing match at trial and promote HN the proper outcome.

Lindsey Obenhaus is a former family law attorney and current Assistant District Attorney for Dallas County. She can be reached at lindsey.obenhaus@dallascounty.org.

BELO LEGAL CLINIC

Friday, October 8, 8:25 a.m. to 4:30 p.m.

Tuesday, October 27 ~ From 5 to 8 p.m. At the Belo Mansion VOLUNTEERS NEEDED!

MCLE 7.00 (Ethics 3.25) For rates and registration information, log on to www.dallasbar.org

Bilingual attorneys and support (Spanish Language) are needed. Lawyers report at 6:15 p.m. to provide legal advice to those who cannot afford an attorney. Paralegal and law student volunteers report at 5:00 p.m. to perform intake/financial screening and assist with clinic coordination. Mentor-attorneys will be available to assist.

Presented by the DBA Juvenile Justice Committee

Sponsored by the Dallas Volunteer Attorney Program, a joint project of the Dallas Bar Association and Legal Aid of NorthWest Texas.

To volunteer, email reed-brownc@lanwt.org.

Elevating Women in the Profession DWLA is working tirelessly to make change in the profession a reality. This year, DWLA implemented several new initiatives to effect change. We developed a leadership class comprised of women law students currently enrolled as 2Ls and 3Ls at SMU, TAMU, and UNT Law. We are extremely proud of our future women leaders. Additionally, we expanded our Annual Awards Reception to recognize more women and men in the profession for their relentless advocacy for women in the profession. Our top honor, the Louise B. Raggio Award, will be awarded to Michael K. Hurst for his unmatched contributions to the advancement of women in the profession.

For more information about our initiatives and for tickets to our Annual Awards reception, visit: www.dallaswomenlawyers.org.

Our progress this year would not have been possible without our trailblazer, platinum, and gold sponsors. We are honored by their support.

Thank you to the firms who supported the 2015 Summer Law Intern Program!

Bracewell & Giuliani LLP Cobb Martinez Woodward PLLC Dallas ISD Legal Services Haynes and Boone, LLP Jones Day K&L Gates LLP Locke Lord LLP Sorrels Udashen & Anton Strasburger & Price, LLP Weil, Gotshal & Manges LLP If you would like to participate in 2016, please contact Kathryn Zack at kzack@dallasbar.org.

The Atrium @ the Belo Mansion

10.27.15 11:30 a.m. to 1:30 p.m.

Oc t o b e r 2 0 1 5

At Quaid Farish, we believe that divorce doesn’t have to be destructive to be effective. We are experienced litigators, recognized for our skill in the courtroom, as well as in alternative ways of divorcing, such as collaborative law.

Divorce and Custody cases often include far more than mere legal issues. While litigation may still be necessary in some cases, the reality of families in transition is a collaborative resolution is far more efficient, private and durable.

Collaborative law is forward thinking, not focused on fighting over the past. The collaborative process replaces the combative and threatening atmosphere of litigation, with a confidential, transparent, structured, and solution oriented process.

While many lawyers & firms handle collaborative cases, few are as practiced at the art of collaborative law, committed to collaborative practice and as recognized as leading Collaborative Family Law practitioners, as Quaid Farish.

D al l as Bar A ssoci ati on l Headnotes 15

Quaid Farish LLC

8150 N. Central Expressway, Suite 600, Dallas, Texas 75206 PH: (214) 373-9100 FX: (214) 373-6688 www.QuaidFarish.com Julie H. Quaid *  Charles J. Quaid *  Christopher M. Farish * † *

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16 H e a d n o t e s l D a l l a s B a r As s ociation

October 2015

Pirates in the Navy: A Retrospective on Law Firm Innovation

by Billie J. Ellis and William T. Ellis

A choice often confronts high-functioning individuals in their professional lives: join the navy, or be a pirate. So was the opinion of the late Steve Jobs, founder of Apple. As a young man, Jobs viewed computer companies as bastions of conformity and status quo thinking. Companies like Hewett Packard defined themselves as producers and sellers of large, clunky machines designed to aid corporations and governments manage data with greater effectiveness and efficiency. Jobs felt that employees of computer companies, from CEOs on down, conceived of themselves as cogs in an assembly line, agents of utility in a largely uncreative enterprise. Ever the corporate pirate, Jobs created a company that approached the making, selling, and marketing of computers much differently. But he did not just change the rules: he invented a new game. He conceived a new role for a computer company, a new purpose for computers, and a new professional identity for the people who made them.

Large law firms, like pre-Apple computer companies, think little of creativity.

Fearing change, they stubbornly insist on

homeostasis. Examples of this phenomenon are legion. Consider the tradition of hourly billing. For decades, legal scholars and practitioners have predicted its demise, yet the practice remains intact. Consider also how law firms hire new associates. Throughout the decades, the quixotically simple method remains the same. First year associates are hired based on two factors: the potential hire’s GPA in law school and the rank of that law school. Leading companies, by stark contrast, take advantage of the latest research on economics, management, psychology, and social science, and constantly re-evaluate hiring decision making.

Law firms are also unique in their strange desire to avoid appearing unique.

Like insecure teenagers, they neurotically mimic each other. If an astute and inquisitive management consultant, with no previous knowledge of law firms, examined the hiring and recruiting practices, billing policies, management structure, office culture, interpersonal dynamics, and profit sharing schemes of the 100 largest law firms in the United States, she would uncover a bizarre, shocking, and confusing truth. She would find that, in many ways, these law firms were virtually indistinguishable. Yet the homo-

geneity, long-standing and unconsciously ingrained, is often unnoticed.

This series of articles submits that this obsession with homeostasis and homogeneity is often irrational and unnecessary.

Admittedly, the law, by design, is conservative and tradition-based. To a limited extent, this fact explains, and justifies, the aversion of law firms to change. Nonetheless, law firms possess the potential for innovation. History provides some salient examples where a visionary leader, refusing to conform amidst a profession addicted to conformity, steered their firms into virgin territory. By examining a few examples of these firms and the leaders who propelled them beyond the status quo, we can better understand the importance and dynamics of firm innovation.

A pattern begins to emerge. In each instance, a leader not only guided his firm into a unique and contrarian course of action, but also envisions a new role for law firms and a new professional identity for lawyers.

In other words, in a Jobs-like fashion, these leaders not only changed what their firm did; they changed what their firm was. Finally, in each of the four following case studies, the leader’s effective response to emerging social and economic needs led to teeming success.

The Prairie Pragmatist

Kinship Legal Custody Program Are you looking for a way to use your law degree to help children?

Join us Friday, October 30, 9:30 a.m. - 1:00 p.m. at Belo MCLE 3.50, Ethics 1.00 Free if you agree to accept one Kinship Legal Custody Program pro bono case.

If you plan to attend, RSVP to reed-brownc@lanwt.org.

In 1850s Illinois, competition amongst lawyers was fierce. While the population of Illinois grew three times between 1830 to 1840, the number of lawyers grew six times.

Like today, the legal market was saturated with a glut of lawyers fighting for business.

And also like today, this time and place experienced its own status quo approaches to legal practice. One interesting feature of this status quo is the ideological posture lawyers often took towards potential clients.

Many, for example, refused to represent alleged criminals. Pro-business lawyers often refused to represent workers suing the railroads, while some self-perceived workingman’s lawyers refused to represent railroad

companies. Many lawyers, ideology aside, felt it was bad business to represent both the railroad companies and plaintiffs who sued them, the idea being that the railroad companies would not wish to hire you.

In this environment, a small, typical firm, under the leadership of one of its two partners, chose a different approach. The firm would represent anyone, without personal judgment or ideological bias. It represented criminals and victims, debtors and creditors, rich and poor, the railroads and laborers suing the railroads. Although this agnosticism towards clients is unremarkable today, at the time it represented a major shift in how lawyers perceived their professional role. The founders of this firm believed that in a society rapidly and chaotically growing in commercial complexity, greasing the wheels of society and commerce was amongst the lawyer’s key roles. The lawyer existed, in large part, to ensure the smooth functioning of systems, not to advance ideological or political agendas. Problems needed resolution in a stable, orderly manner, and the lawyer, beyond mere hired-gun litigating, should be a practical problem solver.

Under such visionary leadership, this firm, beginning as an obscure, inconspicuous partnership, went on to argue hundreds of cases in the county, state, and U.S. District Court, and even argued two cases before the U.S. Supreme Court. At one point, the firm handled one third of all cases on record in its county seat. Through effective and contrarian adaptation, this two-person firm gained a shockingly disproportionate share of a saturated legal market.

A notable parenthetical: the innovative leader of this small firm was one Abraham Lincoln.

This is the first in a 3-part series. Part II HN will be in the November issue.

Billie J. Ellis is a partner at Locke Lord and can be reached at bjellis@lockelord.com. William T. Ellis, of The Law Office of William T. Ellis, can be reached at will@willellislaw.com.

2016 INAUGURAL OF Jerry C. alexander

CLIENT: Communities Foundation of Texas JOB#: CFOT-14-011 Brand Campaign TRIM: 5"w x 7.75"h LIVE: 5"w x 7.75"h BLEED: n/a COLOR: CMYK

A T T HE W ESTIN G ALLERIA D ALLAS

PUB: Headnotes CONTACT: Jessica D. Smith, Headnotes Editor Communications/Media Director (214) 220-7477 jsmith@dallasbar.org RELEASE: 9/11/15 INSERTION: October

DAN SMITH

Fund Holder, Communities Foundation of Texas

Saturday, January 16, 2016 T URNIN G LOS S i nto L EG AC Y

The Dallas Bar Association will inaugurate its 107th President, Jerry C. Alexander at the inaugural ball on Saturday, January 16.

Dan and Joellyn Smith established the Smith Family Fund at Communities Foundation of Texas as a way to pay their prosperity forward. After Joellyn lost

The black-tie ball will include dinner, dancing to music by the band New Ground and silent and live auctions.

her battle with breast cancer, Dan approached us for guidance on how to honor her memory. Together we created the Joellyn Smith Fund for Breast Cancer Support and matched him with the Bridge Breast

Deep in the heart of giving™

Cocktails 6:30 p.m. | Dinner 7:30 p.m.

Network, which fit Dan’s vision to provide practical support to low-income uninsured women.

Joellyn Smith made philanthropy a priority in her

Open your fund today.

life. Thanks to her loving family and support from

Call us at 214-750-4145,

Communities Foundation of Texas, she is still giving

email giving@cftexas.org

back today.

CFOT-14-011 Headnotes_DSmith_03mg.indd 1

or visit www.CFTexas.org/GivingFund.

9/11/15 2:57 PM

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!

Oc t o b e r 2 0 1 5 â€

D al l as Bar A ssoci ati on l Headnotes 17

18 H e a d n o t e s l D a l l a s B a r As s ociation

October 2015

Foundation Announces Diversity Scholarship Dinner Fundraiser Staff Report

The Dallas Bar Foundation (DBF) is pleased to announce that for its 5th annual fundraiser dinner event, David McCullough, the two time Pulitzer prizewinning author, noted historian, and recipient of the Presidential Medal of Freedom, will be the keynote speaker. The event, An Evening with David McCullough, will be held on Thursday, November 19, 2015.

This annual event, which debuted in 2011, raises funds for the Foundation’s Sarah T. Hughes Diversity Scholarship program for minority law students. Previous events, which have featured David Brooks, Doris Kearns Goodwin, former Senator Bill Bradley, and Ken Burns as keynote speakers, were sold out, and organizers are expecting a similar response this year with David McCullough.

“We are honored to have David McCullough join us for this year’s event benefitting the Sarah T. Hughes Scholarships.

Having Talmage Boston, a DBF Trustee and shareholder at Winstead PC, introduce

Mr. McCullough and serve as host is a real acclaimed as a “master of the art of narrabonus for us,” said Beverly Godbey, DBF tive history,” “a matchless writer.” A gifted speaker, Mr. McCullough has Chair, noting that Boston has lectured in all parts of the led a public interview with country and abroad, as well as McCullough in the past. “We at the White House. He is also are also deeply appreciative of one of the few private citizens the Dallas legal community’s to speak before a joint session support of the Hughes Diverof Congress. In the words of sity Scholarship program and the citation accompanying his the cycle of success the scholhonorary degree from Yale, “As arships create for the students. an historian, he paints with It is so essential that we do all words, giving us pictures of the we can to enhance the diverAmerican people that live, sity pipeline, and this program breathe, and above all, conis a critical part of that effort. front the fundamental issues I am proud to announce that of courage, achievement, and three students will be named moral character.” as Hughes Scholars this year David McCullough Mr. McCullough’s most recent book, and will represent the three area law schools in North Texas: SMU Dedman School of The Wright Brothers, a number one New Law; UNT Dallas College of Law; and York Times best seller, was published in Texas A&M University School of Law. The May. Other books include The Greater evening event is a great venue for law firms Journey: American in Paris, which was and businesses to entertain guests and meet described as “dazzling,” ... “history to be savored.” His work 1776 has been David McCullough.”

David McCullough has been widely acclaimed “a classic,” while John Adams,

published in 2001, remains one of the most praised and widely read American Biographies of all time.

The scholarship program, which the event supports, was established in 1981 and promotes diversity in the Dallas legal profession by attracting exceptional minority student leaders to Dallas. To date, the Foundation has awarded over $2 million in Hughes Scholarships to 52 students. With the three new scholars selected in 2015, and who are attending law school this fall, the number of students who have been provided an opportunity to achieve their dream of becoming a lawyer and practicing in Dallas, increases to 55.

Together we are making a difference and addressing the need for increased diversity in the legal community.

For information about table sponsorships and tickets for “An Evening with David McCullough” please contact Elizabeth Philipp at the Dallas Bar Association, (214) 220-7487, or go to www.dallasbarfoundation.org for more HN information.

EVENING ETHICS

PROBATE MINI-SEMINAR

TUESDAY, OCTOBER 13, 2015

Monday, October 5, 11:30 a.m.-1:30 p.m., at Belo | MCLE 2.00, Ethics 1.00

6:00 TO 9:00 P.M. AT THE BELO (Ethics 3.00)

$25 for DBA members. ($90 for non-members).

Price includes light buffet.

To register, contact kzack@dallasbar.org.

GIVE

WITH A PURPOSE THIS HOLIDAY SEASON...

GIVE FOR GOOD! Celebrate this holiday season with Giving for Good cards and inspire others to give back. Giving for Good cards offer a great gift option for family, friends, and clients.

The cards work like other retail gift cards, but they are redeemed as a donation to the recipient’s favorite charity, such as homeless shelters, arts organizations, houses of worship, and food banks – anywhere across the United States.

Giving for Good cards may be customized with a company’s logo or message, and the purchaser receives a tax deduction for the full dollar amount.

Visit dallasfoundation.org to order cards online or call The Dallas Foundation at 214-741-9898 for more information.

Speakers: Dani Smith, Law Office of Dani Smith Hon. Brenda Hull Thompson, Dallas County Probate Courts James J. Harnett, Jr. and Melinda Hartnett, The Hartnett Law Firm To register, contact reed-brownc@lanwt.org or taylorb@lanwt.org.

Sponsored by DVAP, Dallas County Probate Courts & DBA Probate Trusts & Estates Section

DVAP’s Finest Tricia DeLeon

Tricia DeLeon is a commercial litigation and bankruptcy partner at Gruber Hurst Elrod Johansen Hail Shank LLP. She has volunteered with the Dallas Volunteer Attorney Program throughout her entire 16-year career. No matter how busy her billable docket is, Tricia’s goal is to maintain at least one active DVAP pro bono case at all times.

She typically spends between 75-100 hours a year on pro bono work as the lead attorney or mentoring attorney.

Tricia has handled nearly every kind of matter DVAP has to offer: wills and estate planning, probate, family law matters, guardianships, expunctions, and landlordtenant issues. Tricia says she is committed to DVAP because she respects its mission to provide free legal help and access to the justice system for lowincome people in the Dallas community. “If volunteer lawyers did not help our neighbors, who would? This is my responsibility and a privilege to serve. DVAP makes it so easy for me to get involved.” Tricia finds joy in helping those who are so appreciative of her time and advice. “Nothing beats receiving a hug or a thank you note from a client who sincerely needed your help.” Tricia also serves on the Dallas Bar Association’s Pro Bono Activities Committee. One of the committee’s goals is to provide all DBA members with information and access to pro bono work and legal clinics. Thanks for all you do, Tricia!

Pro Bono: It’s Like Billable Hours for Your Soul.

To volunteer or make a donation, call 214/748-1234, x2243.

O c t o b e r 2 01 5

Column

D al l as Bar A ssoci ati on l Headnotes 19

Ethics

May The Disciplinary Rules Permit the Subornation of Perjury?

by Diane L. Snyder

From the minute an attorney takes her necessary oath, the Texas Disciplinary Rules of Professional Conduct—“the Rules”—apply to all professional conduct. It is impossible for an attorney to lie under oath without the violation of the Rules, but what about the client’s lie under oath? The following illustrates some of the problems associated with the lie.

Statement of Facts

Lawyer A represents the Respondent in a contested divorce in which the lengthy, expensive litigation involves custody of an infant. During trial, Lawyer A, a partner in a prominent law firm, is accompanied by an associate, Lawyer B. The Petitioner is represented by Lawyer C. The following question is asked of the Respondent at trial: “Did you or anyone on your behalf engage a private investigator during this litigation?” The Respondent answered no. Respondent did not change her testimony during trial. The attorney for Respondent did not clarify or rectify the testimony on redirect.

Approximately one year after the litigation has ended and all orders are final, C learned that the Respondent committed perjury and knew that the law firm of A had paid the billing statement for the private investigator whose services were engaged for the benefit of Respondent. Both A and B knew that the Respondent was committing perjury at the time her answer was given.

Ethical Violations

If the perjured testimony was elicited

or offered by A, under Rule 1.15(a)(1) and (b)(2), (4) and Rule 3.03, it is clear that A would be responsible for convincing Respondent to change her testimony and that if Respondent refused to change her testimony, A would be required to make “reasonable remedial efforts” including revealing the true facts. As stated in the comment 12 to Rule 3.03, “an advocate has an obligation, not only in professional ethics but under the law as well, to avoid implication in the commission of perjury or other falsification of evidence.”

If the client’s perjured testimony was elicited by C, and was not perjury in furtherance of a material representation, the responsibilities of A change, and A is then required under Rule 3.03 to “urge that the false evidence be corrected or withdrawn” by the client but is not required to reveal the perjury as long as there is not “a subsequent use of that false testimony or other evidence by the lawyer in support of the client’s case.”

If we assume that A not only knew of the perjury but advised the client to commit perjury if the question was asked by C, then A is obviously complicit in the perjury and is subject to the same legal ramifications as the client that gave the perjured testimony.

The responsibilities of B duplicate those of A. Although B is a subordinate, there is no cessation of responsibility to follow the Rules. B must now suborn the perjury as A has done or risk her employment. A may also be violating Rule 8.04(a) which would prohibit A from inducing or assisting B in violating the Rules.

The United States Supreme Court

has indicated that lying falls under the right to free speech except under specific circumstances, one of which is under oath. “Perjury undermines the function and province of the law and threatens the integrity of judgments that are the basis of the legal system.”

United States v. Alvarez, 132 S. Ct. 2537, 2456 (2012).

A problem has now also arisen for attorney C. Rule 8.03 Reporting Professional Misconduct 1(a) provides that, “[e]xcept as permitted in paragraphs (c) or (d), a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.” If C reports the misconduct, she will be required

to divulge confidential information which may ultimately release her under Rule 8.03(1)(d) since “[t]his rule does not require disclosure of knowledge or information otherwise protected as confidential information.”

In the present example, whether there was a private investigator was not material; a true answer would not have harmed Respondent’s case. A was not required to reveal the perjury because the perjured answer was to a question asked by C; C was not required to report the perjury or the subornation of perjury; and the Rules do not affect the lie.

Question: Does zealous advocacy require the relinquishment of personal HN integrity?

Diane Snyder, of the Law Office of Diane L. Snyder, can be reached at diane@dianesnyder.net.

2015 Probate & Guardianship Symposium Wednesday, October 7, at Belo | 9:00 a.m.-4:30 p.m.

MCLE 6.50, Ethics 1.00 | Two-Part CLE Part I-Court Investigator’s Office & Guardianship Law Speaker: Myra Kirkland, Probate Court Investigator’s Office Part II-Probate Elder Law Issues Speakers: Lynda Ender, Steve Fields, Haley Greer, Will Hartnett and Julie Krawczyk To register, contact reed-brownc@lanwt.org or taylorb@lanwt.org.

Presented by DAYL Elder Law Committee, Dallas County Probate Courts and DVAP

Our Congratulations to Partner, Rod Phelan, Dallas Bar Association Trial Lawyer of the Year

The partners and staff of Baker Botts couldn’t be prouder of Rod. His outstanding career as a trial lawyer and as a leader and mentor to his trial colleagues sets the tone for the Baker Botts trial team.

AUSTIN BEIJING BRUSSELS DALLAS DUBAI HONG KONG HOUSTON LONDON MOSCOW NEW YORK PALO ALTO RIO DE JANEIRO RIYADH WASHINGTON

20 H e a d n o t e s l D a l l a s B a r As s ociation

October 2015

Mock Trial Program Launches New Website

Staff Report

The Texas High School Mock Trial program recently launched a brand new website.

The program, which hosts nearly 200 teams

with more than 2,000 students annually, is dedicated to promoting an understanding and appreciation of the American judicial system through an academic competition.

You can view the new site at www.texashigh-

Texas

Written Discovery: Drafting and Responding under the Procedural Rules Discovery is the largest cost in most civil actions—as much as 90% in complex cases! It also can be the most frustrating part of trial.

The key is properly drafting, and responding to, written discovery.

schoolmocktrial.com.

The website is user friendly and offers an easy way for participants and volunteer judges to find information on the program, as well as volunteer opportunities and a calendar of events.

Helpful tabs, with easy drop-down navigation, are located at the top of the page, including The Competition, Materials, Calendar, Volunteers, Testimonials, News, and Contact Us. A prominent “Register Now” button will make it easy for teams to register with just one click.

A list of Quick Links can be found on the bottom right of the homepage—which offers users a one-click option to find information on the program, program payment, how to volunteer and an FAQ page.

This is a great time to explore the page and to sign up as a volunteer. Volunteers are needed to serve as Mock Trial judges (earn

self-study CLE credit), to serve as tournament tabulators (work behind the scenes to help tabulate scores for the competition), to help organize the events and awards ceremonies, to help recruit competition volunteers and to serve as an attorney advisor for a school team.

The DBA’s Mock Trial Committee organizes and administers the Texas High School Mock Trial Competition, which includes the Dallas schools’ competition, known as Region 10, and the State Championship Tournament, all held in Dallas. The Committee also writes the problem, serves as team advisors, and judges the various tournaments.

There is a place for everyone! To find out more information, visit the website at www. texashighschoolmocktrial.com or contact Mock Trial Coordinator Melissa Garcia at mgarcia@dallasbar.org.

VOTE NOW! DALLAS COUNTY COURT STAFF AWARDS Vote for the Outstanding Court Staff Awards (court staff from the civil, criminal, family, juvenile, IV-D, and probate courts).

Deadline to vote October 30.

Finalists will be recognized at the DBA Judiciary Committee Awards Luncheon on Thursday, December 3. For questions, contact kzack@dallasbar.org.

Chapter Topics: • Discovery’s Purpose and Discovery-Control Plans and Limitations • Signing Written-Discovery Requests, Responses, and Objections • Permissible Discovery; Forms, Sequence, and Scope of Discovery • Written Discovery Responses, Objections, Privilege Assertions • Requests for Disclosure • Obtaining Documents and Tangible Things from Nonparties • Sanctions • And Much More!

Call 877.256.2472 to order your copy.

ABOUT THE AUTHOR

Robert K. Wise is a founding member of Lillard Wise Szygenda PLLC. After completing his clerkship for the Hon. Paul C. Weick of the U.S. Court of Appeals for the Sixth Circuit, he practiced law in Dallas for more than 30 years. A former equity partner in the international law firm of Hunton & Williams LLP, Wise left Hunton to form Lillard Wise Szygenda, a boutique litigation firm. Wise’s practice centers on trial and appellate litigation. w w w. Te x a s L a w y e r B o o k s . c o m

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October 2015

Focus

D al l as Bar A ssoci ati on l Headnotes 21

Family Law

Are You Married? The Broader Implications of Common Law Marriage

by Dennis M. Saumier

The existence of an informal marriage, often called a common law marriage, can have a huge impact in many practice areas. In addition to family law, personal injury/wrongful death cases, probate, corporate formations, intellectual property rights, and civil litigation are a few practice areas where the existence of an informal marriage can have ramifications.

In January 2003, a woman came to me stating that the man she lived with for about 10 years was deceased. He had committed suicide without leaving a will. They never had a ceremonial marriage, nor was their marriage recognized under Texas law prior to his death. He had two adult children from a previous marriage. The residence and vehicles were in his name at the time of his death. His adult children would inherit everything, and she would be left with nothing.

Looking at the informal marriage statute of the Texas Family Code, Tex. Fam. Code Section 2.401, I determined that she may be able to establish an informal marriage after his death.

Pursuant to Section 2.401(a)(2), she needed to prove that they had agreed to be married and afterward lived together in Texas as husband and wife, and represented to others that they were married. She had to commence the suit to establish the informal marriage within two years of separation.

As death is a means of separation, we filed a petition to establish the informal marriage, and a court of competent jurisdiction signed an order establishing that they had been mar-

ried, by informal marriage, prior to his death. Accordingly, she was able to share in her deceased husband’s estate.

Establishing an informal marriage in a personal injury case may be essential to collect damages. A personal injury attorney was telling me about a case where there had been an industrial accident resulting in the death of an employee. He and his long-time girlfriend, with whom he had several children, did not have a recognized marriage. Using the informal marriage statute, the marriage to her children’s father was established, and establishing their marriage was critical before she could file a spousal claim against the employer.

The creation of an informal marriage can also impact ownership of business entities and other property.

In 2013, a jury in Collin County ruled that an informal marriage existed prior to the signing of a premarital agreement and the ceremonial marriage.

The wife argued that the elements of an informal marriage had been met before the husband had her sign a premarital agreement and flew her to Lake Tahoe for a ceremonial marriage.

The wife presented evidence that all three elements of an informal marriage existed, and the husband denied the existence of an informal marriage.

He argued the ceremonial marriage and marriage certificate established their date of marriage. The jury ruled that the informal marriage existed twenty-three days before the signing of the premarital agreement, and thirty days before their ceremonial marriage.

This resulted in the premarital agreement being invalid. Accordingly, the

creation of separate estates and separate income established by the premarital agreement no longer applied, and all property should be deemed community property, including the businesses in husband’s name, real and personal property, and income acquired during marriage.

With regard to intellectual property, if a party to a relationship files for a patent, or files a trademark or copyright, and their “significant other” can later prevail on a claim that an informal marriage existed at the time of filing, it could cost the holder of that patent, trademark, or copyright half the value of their intellectual property.

Additionally, the recent U.S. Supreme Court case, Obergefell v.

Hodges, 576 U.S. ___ (2015), raises questions of whether same-sex couples

will claim that they were in an informal marriage as of the time the decision was released, or even preceding that decision. The implications of Obergefell on this issue are not yet known.

I do not want to create the illusion that millions of Texans are walking around believing they are single, but are actually informally married. However, if the three elements of an informal marriage can be proven, an informal marriage could be established, even if one of the parties claims otherwise. Therefore, it seems prudent to inquire of unmarried clients what type of relationship they are in, and advise how that relationship could affect the HN client’s legal issues.

Dennis M. Saumier is owner of Saumier Law Firm, P.C. He can be reached at dennis@saumierlaw.com.

Dallas Bar Association Education Symposium Thursday, October 29 ~ 8:30 a.m. ~ Belo Mansion

The Jack Lowe Sr. Award for Community Leadership will be presented during the luncheon.

Luncheon keynote speaker: Michael J. Sorrell, Paul Quinn College MCLE 1.75 Registration $35, includes lunch.

Contact Alicia Hernandez at (214) 220-7499 or ahernandez@dallasbar.org

22 H e a d n o t e s l D a l l a s B a r As s ociation

October 2015

Rockin’ at Law Jam 5!

October 2015

Focus

D al l as Bar A ssoci ati on l Headnotes 23

Family Law

Drug and Alcohol Testing in Family Law Cases

by Kelly McClure

Drug and alcohol abuse is an unfortunate reality in many family law cases.

Courts can order drug testing, and the consequences of a failed test can be severe—a positive test in a case involving children can easily result in supervised visitation for the parent who tests positive. Accordingly, practitioners need to be knowledgeable and up-todate on new testing procedures—along with the methods that might be used to evade a positive test—to deal effectively with these issues. This article will cover the best practices for obtaining useful and accurate drug and alcohol testing results while preventing attempts at evasion by the user.

There are three common methods of testing for drugs in an individual’s system: (1) urine, (2) hair, and (3) nails.

These three methods are also used—in addition to blood testing—to detect the presence of alcohol. Each of these methods has strengths and weaknesses in terms of detection and evasion.

Urine testing is the most common drug test method. Urine tests indicate the presence of drugs by testing for metabolites that the drug creates in the user’s system. Most drugs are detectable in a urine sample for three to seven days after ingestion. Marijuana is detectable for a longer period— sometimes over 30 days depending on the frequency and amount used. It is important to note that urine tests do not identify the time that the drugs were ingested—they only test for the presence of the metabolite at the time the sample is taken.

The most common attempt to

evade a urine test is straightforward: consuming large quantities of water or other liquids with diuretic properties to flush the system. Most quality urine tests can easily defeat these attempts by measuring the level of creatinine in the urine sample and the specific gravity of the sample. If a sample is too low in either category, courts can and often do conclude that the testee unnaturally diluted the sample and can deem the test positive. Other evasion tactics, such as attempts to provide a “replacement sample” of clean urine, can be defeated by insuring that the sample is witnessed by a neutral professional.

Hair testing is a popular tool in ferreting out drug use because it expands the time period in which drugs can be detected. Hair tests can detect a wide range of drugs ingested between two weeks and 90 days before the sample is taken. These tests also provide options to test for different drugs, although generally a test for more drugs will cost more money. Hair tests generally range from five “panels” (drug types) to 14 and more and are a valuable tool that can be tailored to individual circumstances.

However, hair testing is susceptible to manipulation and should not be relied on as the sole testing method.

Hair tests can be affected by dyes, specialized shampoos, and, of course, haircuts. The wary practitioner should always be on the lookout for fresh buzz cuts or new dye jobs when allegations of drug use arise in a family court dispute. Requesting head and body hair samples is another option to capture the most accurate sample.

Finally, nail testing provides the longest window of detection and is the most difficult sample to manipulate. Nail tests are similar to hair tests in terms of detectable drugs, but can detect drug use from two weeks up to 6 months or more before the sample was taken. Nail samples can come from finger or toe nails, and, if a suspected drug user happens to be sporting a new close-cut manicure, a sample can even be scraped from the surface of the nails.

So what is the best test to choose?

All of the above. Combining these tests captures the broadest time horizon and negates any attempt to evade a single test. By putting the correct safeguards in place, such as realistic thresholds for sample quality, witnessed

samples, and reliable chain-of-custody evidence, practitioners can obtain the evidence needed to protect their client and any children involved.

For cases involving a suspected drug user, it is imperative to be on guard for the pros and cons of each test and the costs associated with undergoing a full array of tests. While defending against a positive test is an uphill battle, no test is perfect, and a rigorous examination of the facts and circumstances of the testing process might reveal false positive flaws that make a difference between supervised and unsupervised HN access to children.

Kelly McClure is CEO and Managing Partner of McClure Law Group, PC. She can be reached at kmcclure@mcclure-lawgroup.com.

BECOME INVOLVED IN HIGH SCHOOL MOCK TRIAL  Help with competitions  Become an advocate for mock trial

Help recruit compeƟƟon volunteers and conduct trainings to educate schools, students and teacher coaches on mock trial.

 Tournament tabulators

Work behind the scenes at the compeƟƟon to help tabulate scores for the high school mock trial compeƟƟon.

Mock Trial Compe��on Dates: January 23‐30, February 6 and March 3‐5, 2016 See website for details: www.texashighschoolmocktrial.com To volunteer, or for more informa�on: mgarcia@dallasbar.org | (214) 220‐7484.

24 H e a d n o t e s l D a l l a s B a r As s ociation

October 2015

Protecting Your Client’s Confidential Information

by Matt Stammel and Melissa James

1. Over 400 FREE CLE courses offered each year! Our 29 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 enewsletter lists upcoming CLE programs and events.

3. Lawyer Referral Service panel is a great way to get connected with citizens who need legal help.

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 www.affiniscape.com/dallasbar.

7. You will be included in the DBA Pictorial Directory available in print and online to all DBA members.

8. Take advantage of ABA Publication Discounts as a DBA member. For a list of titles or to place an order, visit www.abanet.org/abastore.

9. The Dallas Volunteer Attorney Program offers lawyers

Pro Bono Opportunities to assist low-income residents through clinics, and provides free CLE training seminars.

10. DBA Committee Membership is a great way to perform community service and/or participate in the legal community.

11. Participate in social activities for great Networking Opportunities with lawyers from all areas of practice.

Federal court practitioners are often surprised to learn that they cannot simply file a “confidential” document “under seal” in Texas state court. They must file a detailed motion and proof about every document that they hope to seal. And nearly everyone is surprised to learn that documents turned over in discovery in a state court proceeding “are presumed to be open to the general public” when those documents “concern[] matters that have a probable adverse effect upon the general public health or safety,” even if those documents never leave the lawyer’s office.

Texas Rule of Civil Procedure 76a presents these and other challenges to lawyers and their clients, especially in a world of ever-increasing document discovery.

Lawyers customarily negotiate protective orders to facilitate discovery of confidential or sensitive documents. But simply agreeing that a producing party may mark a document “confidential,” and that the receiving party will treat it as such, does not ensure the confidentiality of the produced document, especially when the receiving party needs to, or decides to, file that document with the court. Because Rule 76a provides, with limited exceptions, that all documents filed in a civil proceeding are presumed to be open to the public, the parties’ protective order should set forth a procedure for when the receiving party intends to file a producing party’s “confidential” document with the court or otherwise use it in a court proceeding. With big commercial cases involving tens, if not hundreds, of thousands of documents and significant motion practice, addressing the procedure for dealing with Rule 76a is all the more important.

Rule 76a provides that documents may only be sealed upon a party’s written motion and that the public must be invited to attend the hearing on the motion to seal. The movant must give public notice posted on the bulletin board in the first floor lobby of the George Allen Courthouse (in Dallas County) with information about the case, the documents at issue, and the hearing. That same notice must even be filed with the Clerk of the Supreme Court of Texas.

Rule 76a instructs that a document may be sealed only upon a finding of “a specific, serious and substantial interest which clearly outweighs: (1) this presumption of openness; [and] (2) any probable adverse

effect that sealing will have upon the general public health or safety.” How these factors are applied varies from judge to judge, but most courts will insist on thoughtful consideration of the documents at issue in light of the presumption of openness.

Recent decisions involving high-profile litigants reveal that some interests are more compelling than others. In Judge Cortez’s defamation lawsuit, the court denied Judge Cortez’s Rule 76a motion to seal certain documents pertaining to allegations about the judge. Judge Cortez claimed that public disclosure of the documents would violate his federal constitutional right to privacy. While the court agreed that “[n]one could argue that these documents are not embarrassing and offensive,” it was more persuaded by the public concern involving “a publically elected member of the state judiciary along with allegations of criminal activity.” Cortez v. Johnson, No. 06-13-00120CV, 2014 WL 1513306, *5 (Tex. App.— Texarkana Apr. 16, 2014, no pet.).

A few months later, the Dallas Court of Appeals determined that public disclosure of the Dallas Mavericks’ private financial information and projections would put the Mavs at a competitive disadvantage and entered an order sealing certain documents. A co-owner of the Mavs alleged that the Mavs were insolvent and that Mark Cuban’s business decisions diminished the team’s value. During the course of the litigation, the plaintiff sought to file reports showing the financial situation of the Mavs and other NBA teams. The trial court granted the Mavs’ motion to seal the records, finding the substantial financial interests they sought to protect outweighed the presumption of openness of court records. Hillwood Inv. Props. III, Ltd. v. Radical Mavericks Mgmt., No. 05-11-01470-CV, 2014 WL 4294968, at *4 (Tex. App.—Dallas Aug. 21, 2014, no pet.)

Whatever “specific, serious, and substantial interest” they seek to protect, practitioners should bear in mind that the method by which courts determine whether documents will be protected from public disclosure is a cumbersome process with no guaranties and with no special treatment given to a “confiden HN tial” stamp on a document.

Matt Stammel is a partner at Vinson & Elkins and Melissa James is an associate. They can be reached at mstammel@velaw.com and mjames@velaw.com, respectively.

TLIExperience 12. Discounts on Texas Rangers and Dallas Mavericks tickets available to all DBA members.

Because of our 35 years in the business, Texas Lawyers’ Insurance Exchange has been voted best professional liability insurance company in Texas four years in a row by Texas Lawyer magazine. That same experience and our exceptional employees are why TLIE is also a Preferred Provider of the State Bar of Texas. Not to mention, we have returned over $36,550,000 to our policyholders. See why experience makes the difference.

13. DBA members receive Clothing Discounts on Brooks Brothers and JoS. A. Bank clothing. For discount codes, send request to membership@dallasbar.org.

14. Members receive Hotel Discounts at many La Quinta Inns & Suites. Visit DBA website for more details.

15. Discounted Health Club Memberships are available at TELOS Fitness Center and The Texas Club.

16. DBA Members may rent the Belo Mansion for an event or special occasion or bring a guest to the daily buffet lunch.

512.480.9074 / 1.800.252.9332 INFO@TLIE.ORG / WWW.TLIE.ORG

Questions? Contact Kim Watson, Membership Coordinator, (214) 220-7414 or kwatson@dallasbar.org

Mike Yarber, President

@TLIE_

facebook.com/TLIE01

October 2015

Focus

D al l as Bar A ssoci ati on l Headnotes 25

Family Law

The Ethics and Etiquette of Effective 3rd Party Discovery

by Jeanne M. Huey

From international banks to local pharmacies, third parties routinely provide documents and testimony needed to prove a case. Medical professionals and their documents often provide key evidence in family law and other cases.

At the same time, clients often want to preserve these relationships after the lawsuit is over. When seeking discovery from third parties, keep your all of client’s interests in mind and use common sense, as well as careful application of procedure and ethics.

To begin, every third party request starts with a practical and ethical question: “Why?” Do you really need the information, or does the client have some other improper motive? The Texas Disciplinary Rules of Professional Conduct forbid discovery that has no purpose other than to embarrass, delay or burden a third party (Rule 4.04). The Professional Code also require that we avoid inflicting unreasonable costs on other parties. (Rule 3.02) Using discovery to punish a boyfriend or girlfriend or to interfere with the opposing party’s profes-

sional relationships is unethical. It is also a waste of money. Unless the anticipated discovery is likely to properly justify the burden on the client and the third party, common sense and ethical obligations forbid it.

Next consider notice requirements afforded to third parties and opposing counsel. Third party discovery subpoenas must be served on all opposing parties. If the subpoena requests documents, a notice must be served on the third party and all parties at least 10 days before the subpoena is served, a requirement some attorneys ignore because it is not found in Rule 176. Failure to give notice is sanctionable, and for some judges in the Dallas Fort Worth area the sanction is automatic.

If you are sure the evidence is useful you still need to think about whom you should ask. If you are going to subpoena or contact a witness in his or her professional capacity (the local pharmacist for example) you should assume they are represented by counsel—the company’s in-house or other lawyer. Find out who that person is and contact him or her before approaching the individual wit-

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

ness. Knowing in advance where to send a subpoena will save you and your client time and money. You may also find out about policies that you need to navigate in order to effectively take discovery, and get an idea of the costs involved. Many therapists, for example, require that their patients pay the cost of discovery requests. Know before you ask whether your client is going be billed for your request. Larger companies will insist on cost reimbursements up front. Navigating these issues before you have to deal with a Motion for Protection will save time and money. Adequate notice and compensation to a third party could prevent an unwanted and expensive hearing on a motion to quash. More often than not, you get better quality information faster with advance notice and negotiation.

After considering who can be contacted and how they should be contacted, pay careful attention to what you say. Rule 4.03 of the Rules of Professional Conduct require lawyers dealing with a third parties to make it clear that, as legal counsel for a party in the case, he or she is not disinterested and correct

any mistaken impression about his or her role. You must clearly state who you are, whom you represent and why you are contacting the witness. If you are going to serve a subpoena, say so. If you try “softpedal” why you are calling you may generate resentment later when you serve a subpoena, and resentment could hurt the quality of information you receive.

Finally, remember what you learned as a child: manners matter. The Dallas Bar Association Guidelines of Professional Courtesy and the Texas Lawyers Creed both require that we treat other parties “with fairness and due consideration.” And there is no reason not to. A truly hostile witness is very rare. Even those affiliated with a party will rarely put their reputation or professional license or reputation at risk by lying under oath or withholding documents. If it later turns out that the witness has lied under oath or omitted documents on purpose, your good behavior will only put you in a better position to complain to the Court and HN seek relief for your client.

Jeanne M. Huey is a partner at Hunt Huey PLLC and can be contacted at jhuey@hunthuey.com

Professionalism Tip Lawyers and judges are equally responsible to protect the dignity and independence of the Court and the profession.

–Excerpt from the Texas Lawyers Creed Find the complete Creed online at http://txbf.org/texas-lawyers-creed/.

More resources available online at www.dallasbar.org/content/peer-assistance-committee

Congratulations

Linda Solomon, LPC, LCDC, LMFT 2015 Gay G. Cox Collaborative Law Award Linda Solomon has been awarded the Gay G. Cox Collaborative Law Award by the Collaborative Law Institute of Texas.

She is a Dallas-based mental health professional, collaborative law proponent, and collaborative law professional trainer. She is also the first mental health professional to win the award.

The Gay G. Cox Collaborative Law Award was established by the Collaborative Law Institute of Texas in 2013 to honor and celebrate Gay G. Cox as an outstanding and extraordinary lawyer who dedicated her professional and personal life to the peaceful resolution of conflict, and served as an inspiration to all who knew her. This award is given to a CLI TX member who is substantially involved in collaborative practice; devotes themselves fully to any task undertaken often going above and beyond the call of duty; exemplifies the highest standards of professionalism and ethics; and who is passionately committed to transforming the conflict resolution process.

For more information about the collaborative process, visit www.thecollaborativealliance.com

26 H e a d n o t e s l D a l l a s B a r As s ociation

Column

October 2015

In the News

FROM THE DAIS

Judge Jim Jordan, of 160th District Court Dallas, moderated a panel discussion titled “The Language of Justice: Removing Language Barriers to Justice in the Nation’s Courts” during the ABA Annual Meeting in Chicago.

Rebekah Brooker, of Scheef & Stone, L.L.P., presented a CLE for the National Business Institute at their Estate Planning from A to Z Seminar. Shawn Tuma, also of the firm, was a panelist at a CLE at Bent Tree Country Club.

KUDOS

Karin Zaner, of Kane Russell Coleman and Logan PC, has been named the Chair of the American College of Legal Medicine (ACLM) Membership and Credentials Committee.

Steven R. McCown, of Littler Mendelson, P.C., has been elected a Fellow of the College of Labor and Employment Lawyers.

Courtney Bowline and Rob Bogdanowicz, of Deans & Lyons, have been made Partners.

Emeka Anyanwu, of Dallas County Hospital District, Gina Betts, of Schiff Hardin LLP, Tamara Marinkovic Hines, of Jones Day, and Sonja McGill, of Bell Nunnally & Martin LLP, have all been appointed as new board members of Big Thought.

Michael K. Hurst, of Gruber Hurst Elrod Johansen Hail Shank LLP, is the first male recipient of the 2015 Louise B. Raggio Award presented by the Dallas Women Lawyers Association. Other recipients of DWLA awards are Diana Bearden, of Strasburger & Price, LLP, Rhonda Hunter, of Farrow-Gillespie & Heath LLP, and Karen McCloud, of Karen D. McCloud, P.C., who were awarded Outstanding

Female Partner Awards for large, medium and small firms, respectively. Rachel Gonzalez, of Southlake’s Sabre Corp., received the DWLA’s Outstanding Female Corporate Counselor Award, and Tiffanie Limbrick, of Sidley Austin LLP, received the DWLA’s Rising Raggio Award.

Arlene Switzer Steinfield, of Dykema Cox Smith, has been appointed as a member of the Board of Governors of the College of Labor and Employment Lawyers.

Joshua J. Bennett, of Carter Scholer Arnett Hamada & Mockler PLLC, has been promoted to Partner.

Lacy LaDonna Durham, of Deloitte Tax LLP, has been elected to Chair of the American Bar Association Young Lawyers Division.

Jonathan S. Blum, of Polsinelli PC, has been selected by The Dallas Regional Chamber to its Leadership Dallas Class of 2016.

Brian L. Webb, of The Webb Family Law Firm, was inducted into the Hall of Legends by the Family Law Section of the State Bar of Texas.

Hon. Emily Miskel has been appointed by Governor Greg Abbott as Judge of the 470th Judicial District Court in Collin County for a term set to expire in November 2016.

Audrey Moorehead, of The Law Offices of Audrey Moorehead, PLLC was elected to the Board of Directors of the State Bar of Texas as Section Representative. She was also elected to a second term on the Board of Directors of the Texas Criminal Defense Lawyers Association at the 2015 TCDLA Annual Meeting, San Antonio.

Evening

Holly Rampy, of Orsinger Nelson Downing & Anderson, LLP, has been selected

An

PMS# 1807c

PMS# 1807c 79%

for membership in The National Advocates: Top 40 Under 40.

Richard G. Stewart, Jr. received the The Honorable Sam Lindsay Professionalism and Ethics Award at the J.L. Turner’s 1st Annual L.A. Bedford, Jr. Awards Luncheon.

Sara E. Romine, of Carrington, Coleman, Sloman & Blumenthal, LLP, has earned the Certified Information Privacy Professional credential through the International Association of Privacy Professionals.

ON THE MOVE

Jonathan Bridges, Michael P. Maslanka, Brian Owsley, and Reynaldo Valencia have joined UNT Dallas College of Law as new faculty members.

Ruth Mitchell has joined Scheef & Stone, L.L.P. as Associate.

Janice G. Menzies has joined Downs & Stanford, P.C. as Shareholder.

Mary Goodrich Nix and Jon G. Shepherd have joined Holland & Knight as Partners.

Christopher Anaya and Stephen Bolner, Jr. have joined The Bassett Firm as Associates.

Quentin Faust has joined SettlePou as Shareholder. Charles Curran, Eric Jacocks, and Laura Pickens joined the firm as Associates.

Tricia DeLeon and Sam Stricklin have joined Gruber Hurst Elrod Johansen Hail Shank LLP as Partners.

Erin Turley and Allison Wilkerson have joined McDermott Will & Emery as Partners.

Scott P. Stolley has joined Cherry Petersen Landry Albert LLP as Partner.

Allen J. Dickey, David E. Olesky, and Laurie Pierce have joined Polsinelli as Shareholders and Of Counsel, respectively.

William B. Short, Jr. has joined JAMS.

David Cabrales has joined Gardere Wynne Sewell LLP as Partner.

Aaron Davidson has joined Munck Wilson Mandala as Partner.

Sorana Georgiana Ban has joined Shannon, Gracey, Ratliff & Miller, L.L.P. as Associate.

Allan King, Steve McCown, and Kevin

Esmeralda Tinajero has joined Winstead PC as Associate.

Tracey Wallace and Thomas Woolsey III have joined Schiff Hardin LLP as Partner and Associate, respectively.

T. Hunter Lewis has joined Orsinger, Nelson, Downing & Anderson, LLP as Associate.

News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org

DBA Annual Meeting The Annual Meeting is Friday, November 6, in the Pavilion. A reception begins at 3:30 p.m. and the meeting begins at 4:00 p.m.

If you have prior DBA service and wish to run for a position, you must contact Cathy Maher cmaher@dallasbar.org (214) 220-7401, no later than Thursday, November 5, at 5:00 p.m. to receive information about service on the Board. You are required to complete a biographical form prior to the meeting.

Following the meeting all DBA resident members with an e-mail address on file will receive an online ballot.

If you wish to vote online, please make sure the DBA has your e-mail address by visiting the DBA website at www.dallasbar.org, or call Kim Watson at (214) 220-7414 before 5:00 p.m. on Thursday, November 5, 2015.

Please update your spam software to allow the e-mail ballot to enter your inbox from DallasBar@BallotBoxOnline.com.

with

2-time Pulitzer Prize Winning Author and Historian Presidential Medal of Freedom Recipient

Jonathan R. Smith has joined Exall + Wood as Associate.

Judge A. Platt, Romit Cheema, and Bill S. Richmond have founded the law firm of Platt Cheema Richmond PLLC located at 3906 Lemmon Ave., Ste. 212, Dallas, TX 75219.

100% K

David McCullough

Mullen, Shareholders with Littler Mendelson, P.C., have moved to open the firm’s Austin branch.

If you receive an online ballot but wish to vote by hard copy, please contact Cathy Maher at (214) 220-7401 to request that a paper ballot be mailed to you.

DVAP Pro Bono Awards—Wednesday, October 21—Belo—5:30-7:30 p.m.

Benefiting the Sarah T. Hughes Diversity Scholarships Thursday, November 19, 2015 Belo Pavilion, 2101 Ross Avenue Cocktail Reception at 6:30 p.m.

Dinner at 7:15 p.m.

Reception Sponsor

Dinner Sponsor

214.220.7487 • dallasbarfoundation.org

Sponsored by the DBA Pro Bono Activities Committee and the Dallas Volunteer Attorney Program in conjunction with the ABA National Pro-Bono Celebration. For more information, contact Ellie Pope at popee@lanwt.org.

Pro Bono Week Schedule of Activities (Volunteers needed for all Legal Clinics) October 26

Noon-1:00 p.m.

DHBA – DVAP – JLTLA CLE

October 27

11:30 a.m.-1:30 p.m.

Pro Bono Legal Fair

October 27

Noon-1:00 p.m.

Family Law Attorney Ad Litem Certification CLE

October 27

5:00-8:00 p.m.

Belo Legal Clinic

October 27

5:00-9:00 p.m.

South Dallas Legal Clinic at the MLK, Jr. Center

October 28

Noon-1:00 p.m.

New Lawyer Luncheon

October 28

3:30-5:30 p.m.

Small Business Legal Clinic

October 30

9:30 a.m.-1:00 p.m.

October 2015

Classifieds

D al l as Bar A ssoci ati on l Headnotes 27

October

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) 665-9458 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. Co-author, leading treatise in field.

J.D., Harvard Law. David Lopez, (210) 2229494. dlopez@pulmanlaw.com

OFFICE SPACE

Ready To Practice Law “Like A Boss”?

No Law Firm Required. Independent business attorneys and litigators need a professional, secure place to work, meet clients, and network - NOT just another executive suite, sublease, home office or coffee shop. VENUE is a “working clubhouse” built BY attorneys, exclusively FOR attorneys. Occupying two top floors in a landmark downtown building, VENUE provides the resources, training and support attorneys need to launch their firms and accelerate their practices. In addition to workspaces and offices, VENUE members will have access to: 30+ hours CLE & management/development training annually, exclusive networking & social events, and an elite network of 100+ local partner-level peers. VENUE is the “Practice of Law Made Perfect.” For info or to schedule a tour: www.attorneyvenue.com.

Richardson – Spring Valley. Private office space and suites for lease in Richardson.

Excellent Location off Spring Valley two blocks east of Hwy. 75. Perfect space for Attorneys/CPA’s/Title Company/Insurance Agent/Architects. Availability of Two Suites. Amenities Include: Receptionist service, Use of standard conference room, Complimentary coffee service, Full kitchen, Copier/scanner available for an added charge. Flexible lease terms. All utilities included. Free parking and 24/7 access.

Additional information available please send email to: janice@nacollawfirm.com.

Preston Center. Large office, assistant work area, use of two conference rooms and all usual amenities. Excellent location, building and suite. For more information call (214) 691-3400.

Downtown Dallas–Office available, located in the historic KATY Building directly across from the Dallas County Courthouses. Receptionist, phone system, conference room, Wi-Fi, fax and copier available for tenants use. No lease required.

Please inquire at (214) 748-1948.

North Dallas/Farmers Branch - Law firm has several offices for lease. $400/month.

Includes use of furniture, Internet, fax, parking, conference rooms, and kitchen. Convenient location. No lease required. Please contact Ilene Smoger at (972) 243-5297 or ilene@texasinjurylaw.com Dallas - on HWY 67. Includes receptionist, conference room, copies, phone, Internet, desk, secure office, chairs, use of kitchen, mail receipt, and free parking. Large, window office $700, interior office $550. Contact Rocio (469) 416-6122.

Uptown/Travis Walk: Law firm has an affordable window office in Travis Walk off Knox St. for sublease. Great location at 4514 Travis Street, large conference room, kitchen, secretarial space, all amenities, short walking distance from a dozen restaurants. Seeking compatible attorneys with their own practice to office with friendly group of litigators. Call Andrew Bergman or Jay Gray at (214) 528-2444 or email rsanchez@abergmanlaw.com.

Austin - 816 Congress Avenue—Sublease law firm space; approximately 1845 RSF to 4125 RSF. Class A building with security. Two blocks from, and outstanding views of, Capitol. Fitness center with lockers and showers. Parking available. Sublease space or executive-suite arrangement (e.g., telecom, fax, copier, and furnished office(s). Call (512) 474-1492 or email: AustinCongressAveSubLeaseSpace@ gmail.com.

Galleria Tower – Law firm has a window office available Sept. 1 in newly renovated space. Amenities include: access to law library, large and small conference rooms, kitchen, copy room, high-speed color copier, phone, phone service, Internet, and file room. Free garage parking and 24/7 access.

For additional information, please call Diana at (972) 934-4110 or Diana@travislaw.com.

Furnished single office with secretarial space available if needed within small real estate law firm located at 4054 McKinney Avenue. Shared conference and break room, furniture, copier, fax, DSL & phone equipment are available if needed. No long term commitment and a monthly rate of $850.00.

Call (214) 520-0600.

Sublease at Campbell Centre I - Central Expressway & Northwest Highway area.

Nice window office space ($1,900/mo) with separate space for assistant (addt’l $500 / mo); 12th floor. Space includes shared use of three conference rooms, kitchen, and covered parking garage spaces. Amenities include shared receptionist, phone system, copier, scanner, and fax. Please contact Mr. Hall at (214) 691-7781.

Richardson - Campbell & US75. Private office space for lease. Amegy/Reef Building. Underground parking. Amegy Bank in building. For additional information please e-mail George S. McKearin at gsmmed1@airmail.net, or James E. Shepherd at Jim@JShepherdLaw.com.

Downtown Dallas - Arts District. Offices available for rent with law firm located in Downtown Dallas Class A, Arts District building. Amenities include conference room, law library, secretarial station, kitchen, parking garage, photocopy/scanner/postage/ facsimile and related amenities. Contact Laura at (214) 922-9265.

North Dallas - Lincoln Centre. Law firm located at Lincoln Centre has one partner size office and cubicle available. Located at LBJ and the Tollway; two conference rooms; break room/kitchen; copier; Email: dallasipfirm@gmail.com for more information.

Central Expressway | Park Cities – Varying sized offices and cubicles are available for rent. Office with several long-established law practices. Perfect for Solo practitioners and 2-to-3 partner groups. Your space comes with turnkey services, amenities and updated technology at affordable pricing. For pictures, floorplan and greater detail, please visit us at www.MeadowsLawCenter.com or call (214) 368-7880 Ext 4413.

Walnut Glen Tower (Walnut Hill/Central). Great Deal! Beautiful offices in elegant Class A building near NorthPark with views of downtown over lake with fountains. Convenient access to DART station. Terrific,

central location whether you go downtown or elsewhere in the Metroplex. Practice in a relaxed yet professional environment which includes administrative stations, conference room, kitchen, copier, phones, reserved garage parking, on-site restaurant and other amenities. All this AND reasonably priced.

Flexible arrangement based on what type of office/working space you would like. Why not have quality of life while you practice?

Please call (214) 750-1600 for details.

Park Cities/Preston Center/Toll Road – Spacious window office with adjoining conference room or secretarial space in recently built office suite. Amenities include additional large conference room, receptionist, fax, high-speed color scanner/copier/ printer, parking garage, internet – wired and WiFi. Email rick@tubblawfirm.com or call (214) 965-8535.

OFFICE SPACE WANTED

Small personal injury/family law firm (2 lawyers + staff) seeking professional office sharing arrangement or sublease space in North Dallas or Plano area. Please email details and availability to: TRlawoffice@ yahoo.com.

POSITIONS AVAILABLE

Are you a Solo or Small Firm Lawyer looking to make life easier? Tired of practicing law and struggling to manage your business?

We can help. Emmert & Parvin, LLP is a new firm seeking the addition of 2 attorneys with established practices in family law and commercial litigation. Our compensation formula requires no billable hours, allows you to set your own schedule, work from anywhere and we handle all firm administration.

Dynamic environment, beautiful downtown offices and excellent client service. Contact Chris Parvin at chris@emmertparvin.com for more information.

Field Office Director. ACT (Advocates for Community Transformation), a new model of ministry using the justice system to empower inner-city residents to fight crime on their streets while sharing with them the hope of the gospel, has an immediate opening for an Attorney who will serve as a Field Office Director (Dallas area). This leadership position requires previous management, litigation and innercity experience as well as a servant’s heart focused on a growing relationship with Jesus Christ. The ideal candidate will be passionate about social justice and have a desire to actively develop and engage a collaborative neighborhood strategy. Fluency in Spanish is desired. For more information, please visit http://actdallas.org/join-our-team/attorney.

Business litigation firm seeks experienced trial attorney with first chair trial, deposition, and appellate experience.

Some existing hourly clientele a plus.

Compensation negotiable. Firm offers first rate office facility, a tenured, experienced support staff, and good work environment.

Send cover letter and resume in confidence to oaklawnfirm@aol.com.

Deputy Director of Litigation for Legal Aid of NorthWest Texas (LANWT). Requirements: Licensed to practice law in Texas 5 years +; Minimum ten years of progressive litigation experience, including jury trials; Able to work well with people from diverse cultures and backgrounds; Board Certification in Family Law or Civil Litigation, strongly preferred; Spanish is a plus. Benefits: $75,000 and up based on qualifications and experience. Excellent benefits package.

Apply at www.lanwt.org. Please submit all of your material here: E-mail: careers@lanwt. org; or Fax to (817) 649-475. If applying by e-mail, please include the job title in the subject line. LANWT is an equal opportunity employer. Veterans are encouraged to apply.

Full-Time Corporate Paralegal/Legal Secretary. Exall & Wood, PLLC needs FullTime Corporate Paralegal/Legal Secretary.

Undergraduate degree plus minimum three years’ experience, Windows 8, Microsoft 2013 and Microsoft outlook required.

Responsibilities: assisting attorneys prepare documents, closings, research, transactions and filings. Ability to work and learn independently. Excellent salary commensurate with experience. Please send resume to aoppliger@exallwood.com.

Civil Litigation Attorney. Business litigation firm in Turtle Creek seeks attorney with 0-5 years’ civil litigation experience. Strong academic record and writing skills required. Salary negotiable. Send cover letter and resume in confidence to oaklawnfirm@aol.com.

Commercial Litigation Attorney. Well established Dallas, Texas law firm in the Uptown area seeks an attorney with 5 to 10 years’ experience. We are seeking a candidate with exceptional research and writing skills with commercial Litigation experience.

Some existing hourly clientele a plus. Salary commensurate with experience, excellent benefits. Please respond with cover letter and resume to: Bill@beckham-group.com.

POSITION WANTED

Real Estate and Finance Attorney. Over fifteen years major firm experience representing lenders, buyers and sellers of commercial real estate, including multi-state portfolios.

Full or part time. Willing to maintain own health insurance. Greater Dallas/North of Dallas area. cpant@verizon.net.

SERVICES

Energy Acquisition(s): I buy any size royalty(ies), mineral(s) , working interest(s) and try to reach (and pay) the sellers asking price. I am a licensed attorney and have been making oil and gas purchases for 35 +/- years.

E-mail to bleitch@prodigy.net or call Brenda at 1-800-760-9890 or (214) 720-9890 for a friendly and quick analysis and response.

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.

Helping trial lawyers win cases. Attorney with outstanding research and writing skills available for hourly projects.

More than 30 years’ experience; law review, former judicial clerk. (972) 2438444; www.trialassistance.com.

Business organization and logistics services offered on an hourly basis. Former litigation law firm administrator brings extensive experience in managing and organizing a law office. If you are a start-up and need help, or if your firm is splitting and you need organization for moving one branch, I can help. If you litigate, my specialty is arranging remote trial locations, from hotel negotiations to transportation and equipment rental. Outsourcing these services can be cost effective.

Contact Lisa@InGoodHandsDallas.com, and for additional services offered, review my website at: www.InGoodHandsDallas.com.

Trial Preparation Stress Relief: Licensed litigation attorney (20 years) available for hourly projects: court appearances, trial preparation, drafting pleadings/discovery/ motions, attending depositions, mediations.

Large firm and complex litigation experience, first and second chair trials and arbitrations, law review. (972) 665-9834.

To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.

Connect jobseekers with employers in the legal field.

Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.

4:14 PM 28 HCNLW-1001 e a d n oCrain t e s | Lewis l DHeadnotes a l l a sAd.pdf B a r 4As9/16/15 s ociation

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October 2015