Dallas Bar Association
HEADNOTES
Focus Antitrust & Trade/Business Litigation
September 2015 Volume 40 Number 9
Acts of Kindness: Connatser Family Law Kicks Off 2016 EAJ Campaign
represented while working at the law school clinic. Her client was already “No act of kindness, no matter how divorced from an abusive man who small, is ever wasted,” said Aubrey was also the father of her three chilConnatser. “I tell my daughter this dren. She remarried and ended up at every day, and now, she is finishing the the clinic needing a protective order and divorce from the second husband sentence for me.” Aubrey Connatser and the Con- because he was sexually abusing her natser Law Firm are the lead donors for children. “She was desperate to get away from him,” said the 2016 Equal Access Aubrey. to Justice Campaign Aubrey took on the benefitting the Dallas case and represented her Volunteer Attorney Proclient throughout her gram. Their donation third year in law school. of $30,000 will help the It opened her eyes to the Dallas Volunteer Attorimportance of making ney Program, a joint pro sure legal representation bono program of the Dalis available to the poor. It las Bar Association and was more than just makLegal Aid of NorthWest ing sure they have their Texas, provide legal help day in court—Aubrey’s to low-income clients in help and the legal system the Dallas area. had a real impact on their A family lawyer, wife, lives and their safety. mother, daughter, pro Aubrey Connatser “Through this case, I realized the bono lawyer, and donor, Aubrey is a person who believes in small, and big, acute need for legal aid and how economic control often forces victims acts of kindness. Aubrey, a Dallas attorney specializ- to stay,” said Aubrey. “My client was ing in family law, graduated from UT financially dependent on her second Law School in 2001 and has practiced husband. She was going to school at in Dallas ever since. She opened her night and working all day to get ahead, own law firm, Connatser Family Law, but she could barely afford groceries, much less a lawyer.” in 2013. While Aubrey spent most of her Aubrey has a long history of giving back. “My parents encouraged com- third year in law school representing munity service, and my school, Epis- her domestic violence client, she is copal School of Dallas, had a 100-hour quick to point out that there are many community service requirement,” said straightforward ways that lawyers can Aubrey. She first became interested in help. “Some clients just need simple family law issues while volunteering for things done like help transferring the the Children’s Advocacy Center during title to a deed after a divorce. It’s easy her college and law school days at the for lawyers, and it doesn’t seem like University of Texas. The Child Advo- much, but to see the immense relief cacy Center “gave me a window into and joy on our clients faces is powerabuse and how it affects a household,” ful.” This underscores Aubrey’s point— she said. This interest led Aubrey to volunteer work in the Domestic Vio- even small acts of kindness make a trelence Clinic at UT Law School, pros- mendous difference in people’s lives. ecuting protective orders through the “We are so blessed,” said Aubrey of the program in Judge Mike Denton’s court legal profession. “We have the chance in Travis County, Texas. “This is when to make a huge impact on someone’s I realized I wanted to do family law, and life by doing things that, to us, are really there is just this immense need that simple, but help others with things that people have for family lawyers. It is are insurmountable for them.” Aubrey believes in kindness. And really important stuff.” Aubrey’s law partner, Mike oftentimes what may be small to you DeBruin, has known Aubrey for 15 means the world to another. Any act of years. She is a “consistent, smart, quick, kindness can go a long, long way. To learn more about the Dallas empathetic, and passionate person with good common sense,” he said. “She is a Volunteer Attorney Program and the giver. She does the right thing, and in Equal Access to Justice Campaign, doing so, teaches others to do the right contact Alicia Hernandez at ahernan HN dez@dallasbar.org. thing.” Many pro bono volunteers have one client that gets them hooked on Alicia Hernandez is the director of the Dallas Volunteer pro bono. Aubrey’s client was a teenage Attorney Program and the DBA director of community mom with three children whom she services. She can be reached at ahernandez@dallasbar.org.
by Alicia Hernandez
Dallas Bar As
sociation
Dear Fellow Dalla s Area Attorney:
Thank you to all of our current Da llas Bar Associatio support! n members; I ap preciate your ongo ing If you are not a current member, I hope you enjoy Headnotes publica this complimentar tion and take ad y issue of our mo vantage of our sp TODAY! nthly ecial membership offer and join on line The following sp ecial is available to those of you member. Newly who are not curre joining members ntly or recently a that join the DB September will rec DBA A online during eive 16 months of the first week online application membership for of the price of 12 mo and dues schedu le, go to dallasb Join the DBA! ar.org, click on the nths. To access the Membership tab and You can see an ex tensive list of our member benefits on page 12, but a few important ones FREE CLE HO are: URS – The Dalla s Ba r Association is the courses in the sta te 2n of d Te lar xa ge s st (S provider of CLE ee Page 2 for CLE DIVERSITY – courses). Meet, mentor, an d collaborate with to strengthen the lawyers of all ag fabric of our divers es and backgrou e legal community COLLEGIALIT nds . Y – Network wit h other lawyers specialized Secti wh o on meetings an practice in your d attend CLE co field at our practice. urses that relate directly to your MAKING A DI FFERENCE – Join one of our many Co who are committe mmittees to work d to providing leg with other lawyers al services to the community, and me poor, volunteerin ntoring other law yers. g within the As a DBA Memb er, you will be ab le to take advanta learn, network an ge of these valua d make a differen ble opportunities ce. To find out mo member, please to visit dallasbar.or re about the bene g, or contact ou fits of being a DB kwatson@dallasb r Membership Co A ar.org or (214) 22 ordinator, Kim Wa 0-7414. tson, I hope you join tod ay and look forwa rd to seeing you so on at Belo Mansion , DBA headquarters And again thank ! you to all our cu rrent DBA memb ers for your continu ed su pport! Sincerely,
Brad Weber President Dallas Bar Associa tion 2101 Ross Ave.
▪ Dallas ▪ TX ▪
75201 ▪ (214) 22
0-7414
Ambassador Robert W. Jordan to be Keynote Speaker at Philbin Awards by Jessica D. Smith
The 32nd Dallas Bar Association annual Stephen Philbin Awards for Excellence in Legal Reporting will be held Monday, October 19, at noon at the Belo Mansion. Winners in various news categories will be announced at the luncheon. The luncheon honors not only the local media, but also the memory of Stephen Philbin who lost his battle with leukemia in 1982. A long-time member of the Dallas Bar Association and a partner with Locke, Purnell, Boren, Laney & Neely, at the time of his death, Mr. Philbin was a leading authority on media law in Texas. In honor of Mr. Philbin, his family, acting through the Dallas Bar Foundation, funds the awards each year. The keynote speaker at this year’s luncheon is U.S. Ambassador Robert W. Jordan, Diplomat
Inside
9 Corporate Representative Depositions: Tips and Traps 13 Seven Deadly Subpoena Sins 15 The Right & Wrong Ways to Subpoena Bank Customer Records 17 A Change in Fundamental Texas Public Policy
in Residence and Adjunct Professor of Political Science in the John G. Tower Center for Political Studies at Southern Methodist University. Ambassador Jordan served as U.S. Ambassador to Saudi Arabia from 2001-2003. He took charge of his mission in the wake of the attacks of September 11 at a critical Ambassador Robert W. Jordan time in U.S.-Saudi relations. He was a partner in the continued on Page 18
2016 DBA COMMITTEE PREFERENCES Please take a minute to submit your committee preferences online. Submit your preferences by Friday, October 9. Please note, if you are on a 2015 Committee you must still sign up again if you wish to continue to serve on a Committee in 2016. You will not be automatically assigned to Committees. Sign up online here: https://www.surveymonkey.com/s/Committees2016.
2 He a d n o t e s l D a l l a s B a r A s s o ciation
Septem ber 2015
Calendar September Events SEPTEMBER 4-BELO Noon
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs. Last 50 Years,” William D. Elliott and Lawrence B. Gibbs. (Ethics 1.00)*
FRIDAY CLINICS
“Top Tax Tips for General Practice,” Jim Roberts. (MCLE 1.00)* RSVP to kzack@dallasbar.org.
SEPTEMBER 11-NORTH DALLAS** Noon
“Putting the TSA in Historical Context: Are We Any Safer Post 9/11,” Kent C. Krause. (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.
SEPTEMBER 18-BELO Noon
“It’s a Matter of Time--Important Deadlines in the Bankruptcy Code and Rules,” Hon. Harlin Hale and Jordan Lewis. (MCLE 1.00)* RSVP to kzack@dallasbar.org.
TUESDAY, SEPTEMBER 1 Noon
Corporate Counsel Section “Sell-Side Due Diligence Issues,” Ken Hirsch and Lance Gurley. (MCLE 1.00)*
Tort & Insurance Practice Section “Practical Tips for State Court Practice,” Hon. Bonnie Goldstein, Hon. Martin Hoffman, Hon. Tonya Parker and Rebecca Rutherford. (MCLE 1.00)*
Morris Harrell Professionalism Committee
WEDNESDAY, SEPTEMBER 2 Noon
Employee Benefits & Executive Compensation Section “The Ins and Outs of Employee Benefits and Executive Compensation in Private Equity Transactions,” Eric Mosier and Lindsay Murphy. (MCLE 1.00)*
Solo & Small Firm Section Topic Not Yet Available
Public Forum Committee
DAYL Judiciary Committee
Noon
Construction Law Section “Legislative Report,” Robert Bass. (MCLE 1.00)*
Family Law Section Board Meeting
Judiciary Committee
St. Thomas More Society
Noon
Family Law Section “How to Take Apart an Evaluation Report— Quickly,” John A. Zervopoulos. (MCLE 1.00)*
Bench Bar Conference Committee
Mock Trial Committee
CLE Committee
Law in the Schools & Community Committee
Publications Committee
Christian Lawyers Fellowship
6:00 p.m. J.L. Turner Legal Association
Friday Clinic-Belo “Top Tax Tips for General Practice,” Jim Roberts. (MCLE 1.00)* RSVP to kzack@dallasbar.org.
DBA Offices Closed in Observance of Labor Day
TUESDAY, SEPTEMBER 8
Business Litigation Section “Federal Litigation Update: Recent Fifth Circuit Business Cases You Should Know,” David Coale. (MCLE 1.00)* Mergers & Acquisitions Section “Hot Topics in M&A,” Michael Considine, Wilson Chu, Richard Rafferty and Christina Tate. (MCLE 1.00)*
Legal Ethics Committee
6:00 p.m. Home Project Committee
DAYL Board of Directors Meeting
Dallas Asian American Bar Association
DAYL Freedom Run. http://freedomrun.com
FRIDAY, SEPTEMBER 11
MONDAY, SEPTEMBER 7 Noon
DAYL Lunch & Learn CLE. For more information, contact cherieh@dayl.com.
Noon
FRIDAY, SEPTEMBER 4 Noon
DAYL ACE Committee
Friday Clinic—North Dallas** “Putting the TSA in Historical Context: Are We Any Safer Post 9/11,” Kent C. Krause. (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.
Noon
Government Law Section Topic Not Yet Available
Trial Skills Section “Trying the Complex Case to a Jury,” Robert Manley. (MCLE 1.00)*
MONDAY, SEPTEMBER 14 Noon
Alternative Dispute Resolution Section “Perspectives from the Head of the Table: The Arbitrator’s Point of View,” Mark Shank. (MCLE 1.00)*
Real Property Law Section “How Not to Commit Malpractice With Your Technology,” Tom Mighell, Esq. (Ethics 1.00)*
Tax Law Section “Key Changes in Our Federal Tax System Over the
A Conversation With Chief David Brown All Members Are Invited
Tuesday, September 29 Noon at The Belo Mansion RSVP: sevans@dallasbar.org
TUESDAY, SEPTEMBER 15 Noon
International Law Section “Post-Merger International Integration: The American Airlines – U.S. Airways Merger as a Case Study,” Larry Pascal, Steffan Horlacher and Robert Wirick. (MCLE 1.00)*
Legal Ethics Committee “Top 10 (or so) Ways to Avoid Being Sued for Malpractice,” Kelli Hinson and Lindsay Rames. (Ethics 1.00)*
Community Involvement Committee
Entertainment Committee
DAYL Elder Law Committee
Dallas Hispanic Bar Association CLE
J.L. Turner Presidential Series CLE
5:00 p.m. Jeff Coen Family Law Nuts & Bolts, Pt. I “2015 Family Law Updates.” Contact reedbrownc@lanwt.org to register. (Total: MCLE 6.00, Ethics 2.00) Sponsored by DVAP and DBA Family Law Section.
WEDNESDAY, SEPTEMBER 16
8:15 a.m. Collaborative Law Section “Eleventh Annual Civil Collaborative Law Training. To register, or for more information, log on to www.collaborativelaw.us/order_form.php. (Total MCLE 6.75, Ethics 1.75)* Noon
Energy Law Section Topic Not Yet Available
Health Law Section “Hot Topics in the Business of Medicine and Dentistry,” Michael Byrd and Bradford Adatto. (MCLE 1.00)*
Law Day Committee
Non-Profit Law Study Group
5:00 p.m. Jeff Coen Family Law Nuts & Bolts, Pt. II “2015 Family Law Updates.” Contact reedbrownc@lanwt.org to register. (Total: MCLE 6.00, Ethics 2.00) Sponsored by DVAP and DBA Family Law Section. 5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
THURSDAY, SEPTEMBER 17
10:00 a.m. Collaborative Law Section “Eleventh Annual Civil Collaborative Law Training. To register, or for more information, log on to www.collaborativelaw.us/order_form.php. (Total MCLE 7.00, Ethics 0.75)* Noon
Appellate Law Section “A Spoonful of Supersedeas Helps the Judgment Go Down,” Mike Northrup. (MCLE 1.00)*
Media Relations Committee
Minority Participation Committee
Christian Legal Society
Dallas Gay & Lesbian Bar Association
3:30 p.m. DBA Board of Directors Meeting 5:30 p.m. Intellectual Property Law Section “USPTO Officials: Opportunities to Become a USPTO Patent Examiner in Dallas.”
FRIDAY, SEPTEMBER 18
8:15 a.m. Collaborative Law Section “Eleventh Annual Civil Collaborative Law Training. To register, or for more information, log on to www.collaborativelaw.us/order_form.php. (Total MCLE 7.00, Ethics 0.50)* Noon
Sponsored by DBA Public Forum CommiƩee
Peer Assistance Committee
6:00 p.m. J.L. Turner Legal Association
11:30 a.m. House Committee Walk Through
THURSDAY, SEPTEMBER 10
THURSDAY, SEPTEMBER 3
Admissions & Membership Committee
7:45 a.m. Dallas Area Real Estate Lawyers Discussion Group
5:15 p.m. Legalline. Volunteers welcome. Second floor Belo.
5:30 p.m. Bankruptcy & Commercial Law Section Topic Not Yet Available
WENDESDAY, SEPTEMBER 9
DVAP Guardianship Ad Litem Certification “Special 1-Hour Presentation on Guardianship Alternatives and Support Services for Wards,” Hon. Brenda Hull Thompson and Gregory Sampson. (Ethics 1.00)* Contact reed-brownc@ lanwt.org to register. Sponsored by DVAP, DBA Probate, Trusts & Estates Section and Dallas County Probate Courts.
Friday Clinic-Belo “It’s a Matter of Time--Important Deadlines in the Bankruptcy Code and Rules,” Hon. Harlin Hale and Jordan Lewis. (MCLE 1.00)* RSVP to kzack@ dallasbar.org.
Transition to Law Practice CLE “Everything You Need to Know About Clients & Malpractice Traps for the Beginning Lawyer,” Lindsey Griffin, Jett Hanna, Robert Tobey and Suzanne Westerheim. (Ethics 1.00)*
Pro Bono Activities Committee
MONDAY, SEPTEMBER 21
11:30 a.m. Appealing to the Public Program The Fifth District Court of Appeals will hear live oral arguments about a local case at Belo. Seating is limited. RSVP to kzack@dallasbar.org. (MCLE 1.50)* Noon
Labor & Employment Law Section “Common Written Discovery Issues in Employment Cases,” David L. Wiley. (MCLE 1.00)*
TUESDAY, SEPTEMBER 22 Noon
Probate, Trusts & Estates Law Section “2015 Texas Estate and Trust Legislative Update,” William D. (Bill) Pargaman. (MCLE 1.00)*
Media Relations Committee “The Dos and Don’ts of Advertising and Social Media,” Jeffrey Harvey and Sheila Sheley. (Ethics 1.00)*
Courthouse Committee
DAYL Lawyers Promoting Diversity Committee
American Immigration Lawyers Association 6:00 p.m. Minority Participation Committee Mentoring Dinner. For more information, contact ahernandez@dallasbar.org.
WEDNESDAY, SEPTEMBER 23 Noon
Sports & Entertainment Law Section Topic Not Yet Available
Juvenile Justice Committee “ICWA: Update on the Indian Child Welfare Act,” Paul Shunatona. (MCLE 1.00)* Brown bag lunch at Henry Wade Juvenile Justice Center.
DVAP New Lawyers Luncheon. For more information, contact reed-brownc@lanwt.org.
THURSDAY, SEPTEMBER 24 11:00 a.m. Dallas Women Lawyers Association Noon
South Dallas Clinic “Shoulder to Shoulder: Equipping Attorneys to Recognize & Assist Fellow Attorneys in Crisis,” Brian Farlow. (Ethics 1.00)* At UNT Dallas, 7400 University Hills Blvd, Building 2, Room #212. Park in lot in front of 7400 University Hills Blvd. RSVP to kzack@dallasbar.org. Sponsored by the CLE & Peer Assistance Committees.
Criminal Law Section Topic Not Yet Available
Environmental Law Section “The Proposed Ozone Standard: Legal Issues and Health Effects,” Michael E. Honeycutt. (MCLE 1.00)*
DBA Community Service Fund Board Meeting
FRIDAY, SEPTEMBER 25 Noon
Intellectual Property Law Section “The Intersection of IPR and Patent Drafting: Tips to Increase Chances of Surviving Validity Challenges,” Thomas Kelton and David O’Dell. (MCLE 1.00)*
MONDAY, SEPTEMBER 28 Noon
Computer Law Section “Software Agreements & Audits,” Rob Scott. (MCLE 1.00)*
Securities Section “The Corporate Securities Attorney: Ethical and Liability Concerns,” Marc I. Steinberg. (Ethics 1.00)*
DAYL Solo & Small Firm Committee
TUESDAY, SEPTEMBER 29 Noon
Antitrust & Trade Regulation Section “DOJ Update and Introduction of Staff Assigned to Dallas Geographic Area,” Andy Ewalt. (MCLE 1.00)*
Public Forum “A Conversation With Chief David Brown.” Open to the public. RSVP sevans@dallasbar.org.
6:00 p.m. Dallas Hispanic Bar Association
WEDNESDAY, SEPTEMBER 30 Noon
International Law Section “Introduction to the Mexican Consulate in Dallas, Texas,” Mexican Consul General Jose Octavio Tripp Villanueva. (MCLE 1.00)*
Municipal Justice Bar Association
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.
Sept e mb e r 2 0 1 5
D al l as Bar A ssoci ati on l Headnotes 3
R
aising the bar in your next real estate transaction
“We and the seller started out miles apart on price and inspection issues for our Preston Hollow home. Lucy Johnson’s business and legal expertise, negotiating ability and cheerful persistence got us to a closing that at several points seemed unlikely. She absolutely made it happen.” Karen and Mike Tankersley
SOLD | 3520 Granada Avenue | University Park “Lucy Johnson used her strategic MBA marketing training, her superb legal negotiating skills, and total attention to detail to go beyond what I would expect in a real estate agent for my State Thomas business property. I was impressed by Briggs Freeman and amazed by Lucy Johnson.” Kevin Grace “Jay and I couldn’t have made a recent property purchase without Lucy Johnson’s availability, negotiating skills, efficiency, and willingness to walk us through the process.” Lisa Luby Ryan
AVAILABLE | 3911 Gilbert Avenue, Unit E | Uptown “I wanted to diversify my portfolio and invest in Uptown rental property. Lucy navigated a complicated transaction for me that involved late nights and early mornings, dealing with a relocation company, and working through every detail until the deal closed.” Kevin L Clift “Because my wife and I were first-time home buyers, Lucy introduced us to Bobby Sillers at Ascent Home Lending so we could pre-qualify for a loan and be ready to make an offer when a Devonshire home in our price range was available. One of Lucy’s Briggs Freeman colleagues announced a hip pocket listing at 10:30 one morning, Lucy called us immediately, we saw the house that afternoon, and had it under contract that night. We love our home and would never have found it without Lucy’s diligence!” Jonathan Nowlin
“Selling our Highland Park home after 47 wonderful years there was difficult, but Lucy made it easy, fun, and delightful for us.” Joan and Stephen Albrecht
SOLD | 6306 Sudbury Lane | Lakewood
Recently SOLD | 2315 Routh Street | 6515 Brookshire Drive | 6629 Golf Drive
Vice President 214.616.1288 ljohnson@briggsfreeman.com
4 He a d n o t e s l D a l l a s B a r A s s o ciation
Septem ber 2015
Headnotes
President's Column
Published by: DALLAS BAR ASSOCIATION
Back to School Brad Weber
As I write this column, four of my children are getting ready to start a new academic year on the same day at four different schools. Lauren begins 4th grade at Bradfield Elementary School, Alex starts 6th grade at McCulloch Intermediate School, Molly enters her senior year at Woodrow Wilson High School, and Ward will be a new 1L student at Baylor Law School. (As for my fifth child, Brody, he’s not even in pre-school, but his first day of kindergarten will be here before I know it.) With the start of a new school year around the corner, it reminds me of the many successful DBA programs that focus on public education and students. These include programs for all ages—from grade school to high school. Listed below are just a few of the DBA programs that benefit our local students: Appealing to the Public. This program started in 2006 as a way to educate high school students about our appellate court system. The program this year is on September 21, 2015 at the Belo Pavilion, and features a live oral argument in an appeal from a real criminal case. Justices David Bridges, Elizabeth Lang-Miers, and Lana Myers are scheduled to hear the appeal, which involves a search warrant that was based on a lead from a drug-sniffing dog. Chief Justice Carolyn Wright plans to attend the program and present the students with an introduction about the appellate courts. Over 200 hundred high students from 7 schools are expected to attend the program this year. Education Symposium. This annual DBA program, which began in 2003, brings together community leaders, educators, and students to discuss new ideas for improving the public schools in Dallas. The half-day symposium is scheduled this year on October 29, 2015, and will feature two parallel program tracks—one for students and one for educators. Among the topics on the agendas are “Understanding Cyberbullying,” “Referral Resources for Students in Crisis,” and the “Children Online Protection Act.” Michael J. Sorrell, President of Paul Quinn College, is scheduled to give the keynote address, and Kathy Roux is chairing the event this year. E-Mentoring and mentor2.0. The DBA E-Mentoring program was created in 2003, and over the years has matched thousands of middle school and high school students with college-educated volunteers in an interactive e-mail mentor program. This year the DBA made an exciting new change to the program. We have partnered with Big Brothers Big Sisters “BBBS) to merge our E-Mentoring program into a similar BBBS mentoring program called mentor2.0. This curriculum-based mentoring program is designed to provide the support and guidance that students need to graduate high school and succeed in college and the workforce. The interaction between mentors and mentees is orchestrated through a secure email system monitored by BBBS staff to ensure safety and to provide relationship support. For the upcoming academic year the DBA is providing volunteers to mentor students at North Dallas High School, which is conveniently located in Uptown. Law in the Schools. The Law in the Schools & Community Committee recruits DBA members to speak at local
public schools on topics related to the law, law enforcement, the U.S. Constitution, and law-related careers. Prepared teaching materials for different grade levels are provided to the volunteer attorney speakers. Through our DBA members, we annually reach over 2,000 Dallas ISD students with law-related education. The Co-Chairs for the Committee this year are Angela Hough and Amy Gremminger White. Law Week. The DBA’s Law Day Committee sponsors a number of law-related competitions for different grade levels, including an art contest for students in lower grades and an essay contest for older students in grades 6th through 8th. Each year the students’ artworks and essays are focused on the theme of the ABA’s annual Law Day celebration, which this year was the 800th Anniversary of the Magna Carta. Winners of these art and essay competitions were honored this past May by Law Day Committee Chair Mandy Childs at the DBA’s annual Law Day Luncheon. Summer Law Intern Program. This program began in 1994 and has grown into one of the DBA’s most meaningful projects. The “SLIP” Committee, co-chaired in 2015 by Glen Hill and Keenan Kolendo, pairs students who have completed their junior year of high school with area law firms and government agencies. The student interns are paid an hourly wage and learn valuable work skills in an office environment during an eight-week summer intern program. Over the past 20 years, more than 600 Dallas ISD students have participated in this program. Many of these students have returned to tell us that it was their SLIP internships that motivated them to achieve success in college and even law school. Texas High School Mock Trial Program. Back in 1979, the first local mock trial competition for high school students was created by the Dallas Bar Association and the Dallas ISD. Following the success of the initial competition in Dallas, the DBA decided to expand the mock trial competition statewide. Since then, the growth of the mock trial competition has exploded. This year nearly 200 teams and more than 2,000 students from across the state participated in the Texas competition. These included 28 teams from Dallas ISD high schools, including the State championship team from Skyline High School. A huge thank you goes out to Committee Chair Steve Gwinn, whose tireless dedication and hard work has led to the long-standing success of the mock trial competitions. I am proud of the DBA’s strong support of students and public education in the Dallas area. Over the years, these programs have made a positive difference in the lives of thousands of young people, which in turn has made a posi HN tive difference in our whole community.
Celebrating 33 Years!
DVAP’s Pro Bono Awards Celebration Save the Date: Wednesday, October 21, 2015 The Pavilion at the Belo Mansion
Just a Few of the CLE Presentations:
Mark Lanier on “Technology in the Courtroom”
John Ansbach explains “The Internet of Things”
Federal Judges—Meet Your New Judges
State Judges tell us “What the Jury Says”
Hosted by the Dallas Volunteer Attorney Program
BECOME AN E-MAIL MENTOR TO NORTH DALLAS HIGH SCHOOL STUDENTS
REGISTER NOW! www.dallasbar.org or 214-220-7403
MENTOR2.0 Program
Events/Activities: Plan to Stay Friday Night! Casual Attire Only! Sporting Clays, Game Plan, Golf, Tennis, Yoga and more! More than 7 hours CLE, including 1.00 hour ethics.
All Current and New mentors in the E‐Mentoring Program are encouraged to sign up NOW at www.bbbsmentor2.org and you will be assigned a new student for the fall. For more informaƟon: Email Wendell Hall at whall@bbbstx.org.
2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873
The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community.
OFFICERS President: Bradley C. Weber President-Elect: Jerry C. Alexander First Vice President: Rob D. Crain Second Vice President: Michael K. Hurst Secretary-Treasurer: Victor D. Vital Immediate Past President: Scott M. McElhaney Directors: Wes Alost, A. Shonn Brown, Jonathan Childers (President, Dallas Association of Young Lawyers), Laura Benitez Geisler (Chair), Hon. Harlin “Cooter” Hale (Judicial At-Large), Hon. Martin Hoffman, Krisi Kastl, Michele Wong Krause, Monica Lira (President, Dallas Hispanic Bar Association), Bill Mateja, Karen McCloud, Cheryl Camin Murray (At-Large), Courtney Barksdale Perez (At-Large), Bill Richmond (President, Dallas Asian American Bar Association), Ebony Rivon (President, J.L. Turner Legal Association), Mary Scott, Diane M. Sumoski, Robert L. Tobey (Vice-Chair) and Aaron Tobin Advisory Directors: Stephanie Gause (President-Elect, Dallas Association of Young Lawyers), Rocio Cristina Garcia (President-Elect, Dallas Hispanic Bar Association), Emmanuel Obi (President-Elect, J.L. Turner Legal Association), and Monika Sanford (President-Elect, Dallas Asian American Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Liz Lang-Miers Directors, State Bar of Texas: Wm. Frank Carroll, Leon Carter, John Jansonius, Florentino A. Ramirez and Scott Stolley HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Display Advertising: Deni Ackerman, Annette Planey, Jessica D. Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Jared Slade and Meghan Hausler Vice-Chairs: Paul Clevenger and Keith Pillers Members: Timothy Ackermann, Jerry C. Alexander, Vincent Allen, Natalie Arbaugh, Jody Bishop, Lisa Tomiko Blackburn, Jillian Bliss, Jason Bloom, Andrew Botts, Lance Caughfield, Chhunny Chhean, Stephen Clarke, Shannon Conway, Joel Crouch, David Dummer, Christopher Elam, Alexander Farr, Daniel Felz, Dawn Fowler, Robin Ghio, Basheer Ghorayeb, Kimberly Gonzalez, Andrew Gould, Susan Halpern, Jeremy Hawpe, Zachary Hilton, Ezra Hood, Mary Louise Hopson, Michael K. Hurst, Ashley Johnson, Amanda Kelley, Sara Krumholz, Margaret Lyle, Thomas Maddrey, Orly Mazur, Jodi McShan, Ethan Minshull, Paige Montgomery, Jessica Nathan, Jeffrey Novel, Eugene Olshevskyy, Mason Parham, Aimee Pingenot, Kirk Pittard, Laura Anne Pohli, Lisa Prather, Michelle Reed, David Ritter, Carl Roberts, Lantis Roberts, Eugenie Robichaux, Joshua Sandler, Chandrika Shori, Micah Skidmore, Stefan Smith, Bradley Smyer, Thad Spalding, Elizabeth Stanley, John Stevenson, John Ting, Paul Tipton, Pryce Tucker, Peter Vogel, Tracey Wallace, Brad Weber, Philip Worley DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Director: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewers: Viridiana Avina, Marcela Mejia Law-Related Education Coordinator: Melissa Garcia Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Mentor Attorneys: Kristen Salas, Katherine Saldana Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Tina Douglas, Zaporra Gonzales, Andrew Musquiz, Carmen Perales, Alicia Perkins, Monique Scott, Zach Watkins Program Assistant: Patsy Quinn Secretary: Ellie Pope Copyright Dallas Bar Association 2015. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@ dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
Sept e mb e r 2 0 15
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D al l as Bar A ssoci ati on l Headnotes 5
Antitrust & Trade/Business Litigation
Ethical And Professional Obligations Of Local Counsel by Richard M. Hunt
Everybody knows what it means to be local counsel. Introduce lead counsel to the judge, attend some hearings, keep track of the pleadings, help with voir dire to give the jurors a local face to relate to, and collect your fees. The money is modest, but the work is easy. Or maybe not. According to the Texas Supreme Court, “[t] here are ethical considerations overlaying the contractual relationship” between attorney and client. Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 560 (Tex. 2006). These ethical considerations, as well as the ordinary questions about the meaning of a contract, make it dangerous to take the local counsel job lightly. Contract analysis is the first step to understanding the obligations of local counsel. Everyone knows local counsel serves a limited role, but only until there is a problem. If a case is lost, or goes south for any reason, the client is very likely to decide that responsibility is based on the size of the malpractice policy. Careful drafting of the fee agreement is required to avoid this problem because “[t]he lawyer . . . bears the burden of ensuring that the contract states any terms diverging from a reasonable client’s expectations.” Restatement (Third) of the Law Governing Lawyers § 18 cmt. h. It is critical that the fee agreement carefully define the jobs local counsel is expected to do and make it clear that lead counsel is responsible for everything not explicitly listed. Once the limits are defined they must be followed. When lead counsel
is shorthanded or pressed for time, it is easy to press local counsel into service for jobs outside the scope of representation. Local counsel must make it clear to the client that these are one-time exceptions so the client is not misled about local counsel’s responsibilities. Local counsel must also remember that the court will have something to say about his or her duties. In the Eastern District of Texas, for example, conferences for discovery disputes must include lead counsel and all local counsel, and the certificate of conference must be signed by lead counsel and all local counsel. In the Northern District, local counsel must be prepared to present and argue the client’s position at any hearing called by the presiding judge. The fee agreement may limit local counsel’s role vis-à-vis the client, but it must take into account the requirements of the court as well. Finally, although local counsel can limit the scope of representation, he or she cannot contract away the ethical obligations to the client. This issue arises frequently in disputes about the reasonableness of fees, but it goes beyond money. For example, in a case from the Fifth Circuit (Curb Records v. Adams & Reese L.L.P., 203 F.3d 828 (5th Cir. 1999)) local counsel contracted directly with lead counsel. The fee agreement provided for a limited scope of representation and specifically forbade contact between local counsel and the client. Lead counsel missed a number of critical deadlines with the result that the case was eventually lost. Local counsel, true to the fee agreement, never told the client about the problem.
The Fifth Circuit found that the “no contact” contract was valid because lead counsel had authority to enter into such an agreement. It also found though that local counsel could not contract away his ethical obligations to the client, which included the obligation to inform the client of misconduct by lead counsel. It drew a distinction between disagreements about strategy and “lead counsel’s malfeasance or misfeasance,” even while it recognized that this distinction may be hard to make in practice. Although the case was decided under Louisiana law, the ethical requirements on which the Court relied are almost identical to those in the Texas Disciplinary Rules
of Professional Conduct. Serving as local counsel may not require a lot of work, but it does require careful thought about local counsel’s duty to the client. The fee agreement must clearly inform the client of the limited extent of local counsel’s work and must take into account obligations of local counsel to the court. Most important, local counsel must remember that the fee agreement cannot override the lawyer’s ethical obligations to the client because those ethical obligations cannot be delegated or HN waived. Richard Hunt is a partner with Hunt Huey PLLC. He can be reached at rhunt@hunthuey.com.
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6 H e a d n o t e s l D a l l a s B a r A s s o ciation
Column
Septem ber 2015
Ethics
Experts and Ethics by L. James Berglund II
Retention and effective utilization of experts is often outcome determinative in modern litigation. While the process may seem straightforward, there are significant risks and ethical duties involved during each stage that lawyers retaining and working with experts must carefully consider. Ethical issues can arise early when retaining experts. Texas Disciplinary Rule of Professional Conduct 1.05 (TRPC) restricts the disclosure of client’s confidential and privileged information. Lawyers in possession of highly confidential or private client information should consider discussing and documenting with the client the information that can be revealed when evaluating an expert. When analyzing an expert’s potential conflicts, inquiries should be made as to whether the
expert has been previously retained by the adverse party or obtained (or had access to) confidential information belonging to the adverse party as a result of prior engagements. Adequate due diligence should be conducted to identify facts that may potentially arm the adverse party with grounds to start the costly battle over whether the expert’s testimony should be prohibited entirely or significantly limited. How an expert is to be compensated can also present ethical issues. TRPC 3.04(b) prohibits use of an expert witness who has a contingent interest in the outcome of the case. The restriction also applies to payments to entities such as those that assist in locating experts or an expert’s employer. During the engagement, ethical issues can arise when supplying experts with information and documents. In addition to the obligations of con-
PROBATE MINI-SEMINAR Monday, October 5, 11:30 a.m.-1:30 p.m., at Belo MCLE 2.00, Ethics 1.00 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
fidentiality to their clients, lawyers should consider restrictions on disclosure of the adverse party’s documents and testimony contained in protective orders and obligations of confidentiality in connection with non-parties’ personally identifiable financial information or health information. If applicable, appropriate protective orders and confidentiality agreements should be considered. Federal Rule of Civil Procedure 26 (FRCP) addresses formation of expert opinions and generation of reports. Until the 2010 amendments to FRCP 26, lawyers honed their skills in walking the fine line in communicating with expert witnesses and drafting expert reports in order to protect work product and avoid disclosing trial strategy to the opposition. The Rule was amended in 2010 to narrow the disclosure requirements, establish new work product protection for communications with experts, and expand work product protection to drafts of expert reports. Some have argued that the changes to FRCP 26 have enlarged the opportunity for unscrupulous lawyers to influence an expert’s opinions or testimony and avoid discovery of such misconduct. Lawyers’ ethical duties, however, still apply to working with experts and the preparation of expert reports. TRPC 3.04 provides that a lawyer “shall not falsify evidence, counsel or assist a witness to falsify evidence.” TRPC 8.04 provides that a lawyer may not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Accordingly, lawyers should be cau-
tious about how much input goes into expert reports. Court decisions regarding “ghostwriting” caution that the requirement that the expert “prepare” their report implies more involvement than simply reviewing and signing what the lawyer drafted. Lawyers should not assume that Courts will ignore improper assistance or interference with the requirement that experts prepare their reports. At a minimum, when a lawyer plays too significant a role and a jury learns who truly “authored” the expert’s report, the lawyer jeopardizes the expert’s and the lawyer’s credibility. Even after the amendment of FRCP 26, opposing counsel still will inquire about who did or did not write the report. Experts still should always be able to truthfully testify that the content of a report is fully adopted as his or her own opinion irrespective of who drafted the report. Experts also need to understand that their time records will be scrutinized and must accurately reflect the time devoted to the matter and to the creation of the report. The process of effective identification, retention, and use of expert witnesses is a critical component of the preparation and trial of all but the most routine lawsuits. While the 2010 additive amendments to Rule 26 do provide protection for communications between lawyers and testifying experts, a proper understanding and application of the ethical limitations throughout the process itself remains HN critical. James Berglund is a partner at Thompson & Knight LLP. He can be reached at james.berglund@tklaw.com.
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D al l as Bar A ssoci ati on l Headnotes 7
8 He a d n o t e s l D a l l a s B a r A s s o ciation
Septem ber 2015
CLIENT: C Foundatio JOB#: CFO Brand Cam
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The Dallas Hispanic Law Foundation
Amanecer Luncheon The Dallas Hispanic Law Foundation Thanks Our Sponsors, Honorary Chairs, and Co-Chairs Honorary Chairs Hilda C. Galvan Partner-in-Charge, Jones Day, Dallas Carlos M. Hernandez Executive Vice President, Chief Legal Officer & Secretary, Fluor Corporation Bridget Moreno Lopez Managing Partner, Linebarger Goggan Blair & Sampson, Dallas John D. Torres Executive Vice President, Chief Legal Officer & Corporate Secretary, Lennox International Luncheon Chairs Ophelia Camina, Susman Godfrey Maricela Moore, Law Office of Maricela Moore PLLC Gold Sponsors Gonzalez Saggio & Harlan LLP Greenberg Traurig LLP Jones Day Law Office of Domingo Garcia Locke Lord LLP McKool Smith PC Thompson & Knight LLP Silver Sponsors Andrews Kurth LLP AT&T Bracewell & Giuliani Cowles & Thompson PC
Fluor Corporation Gardere Wynne Sewell LLP Jackson Walker LLP Linebarger Goggan Blair & Sampson LLP Littler Mendelson PC Ogletree, Deakins, Nash, Smoak & Stewart PC The Texas Law Book Vinson & Elkins LLP Wal-Mart Stores, Inc. Bronze Sponsors Akin Gump Strauss Dallas Bar Association Empire Media Services Exxon Mobil Corporation Farrow-Gillespie & Heath LLP Fish & Richardson Gibson, Dunn & Crutcher Gruber Hurst Elrod Johansen Hail Shank LLP Haynes and Boone LLP Hines Chris Luna and Kent Mecklenburg Lennox International Inc. MetroPCS/T-Mobile Norton Rose Fulbright LLP Perkins Coie Polsinelli Rent-A-Center Sidley Austin LLP SMU Dedman School of Law Sommerman & Quesada LLP
Special Counsel Inc. Texas A&M School of Law UNT Dallas College of Law Winstead PC Small Firm Sponsors Dallas Hispanic Bar Association Dr. Pepper Snapple Group Elise Healy & Associates Jackson Lewis Mary Kay Corporation McDole Williams, PC Munsch Hardt Kopf & Harr Orenstein Law Group Public Official Sponsors Hon. Roberto Cañas Hon. Bonnie Goldstein Hon. Mark Greenberg Hon. Martin Hoffman Hon. Jim Jordan Hon. David Lopez Hon. Ken Molberg Hon. Sally Montgomery Hon. Eric Moyé Hon. Lana Myers Hon. Tonya Parker Hon. Ken Tapscott Hon. Dale Tillery Hon. Ingrid Warren Hon. Ernest White
Foundation Board Members Adrienne Dominguez (Thompson & Knight) * Alan Dorantes (AT&T) * Fred Gaona (American Airlines) * Martin Garza (Koons Real Estate Law) Rebecca Greenan (UNT Dallas College of Law) * Chris Luna (MetroPCS) * Rosa Rodriguez Orenstein (Orenstein Law Group) * Tex Quesada (Sommerman & Quesada) Henry Talavera (Polsinelli) * John Treviño (BT Americas) * Elizabeth Wilson (Winstead PC)
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D al l as Bar A ssoci ati on l Headnotes 9
Antitrust & Trade/Business Litigation
Corporate Representative Depositions: Tips and Traps by Wallace Dunwoody
Beyond the basic tenets—be smart, be prepared, and don’t screw up—these specific suggestions will help lawyers and clients when selecting, preparing, and presenting witnesses to testify as corporate representatives. 1. Basic Requirements: Under Federal Rule 30(b)(6) and Texas Rule 199.2(b)(1), the corporate deposition notice must describe with reasonable particularity the matters on which examination is requested. In response, the organization must—within a reasonable time before the deposition—designate one or more individuals to testify on its behalf. The individuals must be able to testify about information known or reasonably available to the organization. 2. Analysis and Witness Selection: One of the most important decisions is who should testify for the company. As soon as possible, the lawyer and client should review the notice together to determine: • Who are the potential witnesses? • What are their areas of expertise? • How are they likely to perform? • What topics can they cover from existing knowledge? • What topics can they be educated and prepared to cover? • When are they available to prepare and testify? • What topics are problematic? • What topics require additional research? Next, conduct witness interviews to make preliminary selections. Consider that each witness will cost time and money to prepare and give your opponent extra time for questioning. See, e.g.,
Tex. R. Civ. P. 199.2(b)(1), cmt. 2 (six hours per witness); Fed. R. Civ. P. 30(d) (1) advisory committee’s notes, subdivision (d) 2000 (seven hours per witness). You are generally better off preparing one or two smart, thoughtful, articulate witnesses to testify on all topics, rather than multiple witnesses who do not possess those qualities. Avoid witnesses who are forgetful, easily rattled, or unwilling to spend the time necessary to prepare. 3. Objections, Designations, and Supplementation: If a noticed topic does not permit the company to effectively identify and prepare a witness, contact opposing counsel to discuss the problem (e.g., the request is overbroad, vague, indefinite, lacks specificity, etc.). Attempt to resolve any objections by stipulation or amendment, and serve timely objections. In some jurisdictions, you may need to file a motion to quash or motion for protective order to avoid waiving objections. You should require deposition topics to be specific, and you should be specific in designating what information each witness will be prepared to provide. This will help the questions stay on topic and avoid squabbles over whether the witness is prepared. 4. Preparing the Witness: The designated witness must give complete, knowledgeable, and binding answers on behalf of the organization. Prepare bullet-point summaries of expected testimony on each topic and binders with key documents— contracts, emails, discovery responses, and pleadings. To avoid potential waiver issues, keep privileged materials out of witness binders. Whenever possible, schedule multiple preparation sessions to assess how well the witness retains information. Do not wait until the day before the depo-
sition to find out the witness needs more time to prepare or you need another witness. While reviewing documents with witnesses, call people with direct knowledge to confirm facts. Cover the basics of dress, posture, and demeanor. And be sure to educate the witness on case theories, issues, and objectives. The witness must understand why key facts are important and be prepared to answer questions about the company’s contentions, values, and beliefs. Most importantly, the witness must practice answering questions. During mock examinations, it can be helpful to have a colleague ask questions part of the time so the witness experiences a different style of questioning and practices answering after objections. 5. Presenting the Witness: Witnesses can bring notes and documents into the deposition. Take advantage of the openbook format, and do not make it a memory contest. The other side will get a copy, so
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.
Texas Rising Stars 2014-15 (Thomson Reuters) Aubrey M. Connatser, PLLC
“...AN INCREDIBLE COMMUNICATOR...” Christine transitioned into family law to help parents and children with her compassion and zeal. She is confident in her ability to assist them through a tumultuous time. “Christine is an incredible communicator with clients, judges and juries,” says Aubrey Connatser. “She has a calming effect on everyone around her. Her demeanor is reassuring, she is keenly intelligent, and she perseveres until she obtains results.” To retain Christine P. Leatherberry for a family law matter, call 214 306-8441 or email christine@connatserfamilylaw.com.
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Wallace Dunwoody is a partner at Munck Wilson Mandala, LLP. He can be reached at wdunwoody@munckwilson.com.
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make sure all notes are appropriate (e.g., bullet points under each topic with key events, dates, names, amounts, document numbers, etc.). Designated witnesses must answer for the company, so “I do not know” may preclude the company from introducing evidence on a subject at summary judgment or trial. “Let me check my notes” is a much better answer. Object if the questioner strays away from the noticed topics. The witness must still answer based on personal knowledge, but the answers are not binding on the company. Finally, do not violate rules about conferring with sworn witnesses. Conferences during examinations are generally prohibited, except to preserve privilege. Discussions during off-the-record breaks are also prohibited in some jurisdictions, so be sure to comply with local practice to avoid violating HN rules and waiving privilege.
10 H e a d n o t e s l D a l l a s B a r A s s o ciation
Septem ber 2015
Insurance Coverage for Drones by Beverly Bell Godbey
The photograph shows a dark auditorium with a brightly illuminated stage on which young children dance in colorful costumes. Lurking slightly above the stage is a dark object sporting rotors and a small camera. A drone! Is it authorized to be there? Who is running it? Could it hurt the children? Is it insured for any damage or injury it might cause? With the FAA’s recent announcement that it intends to develop regulations for drones, and the public’s renewed interest in unmanned aircraft for commercial and recreational purposes, these and many other questions come to mind. Currently, recreational drones operated within sight distance in nonrestricted airspace below 400 feet have been legal for some time. Are they covered under a standard homeowner’s insurance policy? Despite an “aircraft” exclusion, some insurers say yes. Others recommend adding an exception to the
aircraft exclusion for “model or hobby aircraft not designed to fly people or cargo.” Some insurers take the position that drones are “aircraft” and therefore not covered at all. On the other hand, commercial drone use is prohibited unless the operator has a special permit. Properly permitted commercial drone operators face similar confusing and contradictory insurance provisions. Some seek coverage under a standard commercial general liability policy, but those policies also contain an “aircraft” exclusion. To avoid debating whether or not a drone is an “aircraft” in insurance parlance, some states (including Texas) have approved a drone endorsement attached to a Commercial General Liability (“CGL”) policy. This endorsement modifies the aircraft exclusion and precludes coverage “arising out of the ownership, maintenance, use or entrustment to others” of any “unmanned aircraft.” The endorsement defines “unmanned aircraft” as an air-
Professionalism Tip I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol. Excerpt from the Texas Lawyers Creed Find the complete Creed online at http://txbf.org/texas-lawyers-creed/.
craft that is not designed, manufactured or modified after manufacture “to be controlled directly by a person from within or on the aircraft.” Even if the term “aircraft” is undefined and potentially ambiguous with respect to coverage, a CGL policy with an “unmanned aircraft” endorsement likely precludes coverage for any commercial drone use. Interestingly, other options exist. Some of the same insurers that traditionally offered aviation insurance have expanded into the business of drone insurance. Because the FAA has yet to develop regulations for commercial drone use, these insurers have created their own regulations for coverage, some much more stringent than those the FAA is considering. Unsurprisingly, the drone insurance regulations mirror those found in an aviation policy: 1) requiring the operator to have specific aviation credentials; 2) necessitating flight and maintenance logs for each drone; 3) limiting each drone to certain times and places of operation;
and 4) confining each drone to a specific use or uses. Failure to obey any insurance condition imposed by these insurers could result in a loss of coverage, so compliance with these regulations is imperative. In exchange for this tight regulation, drone insurance policies can be tailored to specific drone use and provide for “all risks” while the drone is on the ground or in flight. These policies contain both property and liability coverages, so in many respects they are more comprehensive than standard CGL policies. These insurance policies vary greatly from insurer to insurer, so how does a recreational or commercial drone operator navigate these complex insurance issues? Seek help from insurance professionals. Read and compare policies. And, most importantly, be open to emerging ideas and distinctive coverage HN options. Beverly Bell Godbey is a Partner in the Dallas office of Gardere Wynne Sewell She can be reached at bgodbey@gardere.com.
Sign up to Volunteer at the DBA Community Day of Service Saturday, October 24, 2015
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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Dal l as Bar A ssoci ati on l Headnotes 11
12 H e a d n o t e s l D a l l a s B a r A s s o ciation
Septem ber 2015
Texas Business Litigation Sofia Adrogué, Editor - Caroline Baker, Co-Editor
Chapter Highlight: E-Discovery Featured Contributor David Chaumette
Featured Chapter Adapting to the increased presence of technology in the workplace, litigants face an ever-changing process of “electronic discovery.” This requires specific preparation by the client and by the client’s counsel prior to the onset of any legal dispute. In his chapter on E-Discovery, David Chaumette offers advice in making the transition, discusses preservation issues, outside vendors, privilege, how to educate clients and handle employees, proposed amendments, and provides sample documents.
PRACTICE POINTER: E-Discovery The amount of data that is potentially relevant is often underestimated at the outset of electronic discovery projects, especially by those who have little or no prior experience with electronic evidence. There are a few reasons for this. First, employees create more electronic information than you think. Second, people assume that “e-phobic” individuals are not using their computers when, in fact, their assistants are retrieving and responding to email on their behalf.
Visit www.TexasLawyerBooks.com or call 1-800-756-8993.
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Focus
D al l as Bar A ssoci ati on l Headnotes 13
Antitrust & Trade Regulation/Business Litigation
Seven Deadly Subpoena Sins By C. Jeffrey Price
Non-parties often have evidence that will help prove your case. But if you are not careful, a simple mistake with a subpoena could make it unenforceable. While some subpoenas may be corrected by modification, other mistakes make a subpoena invalid. Attorneys practicing in Dallas federal courts should learn from past transgressions and avoid the following seven deadly subpoena sins. 1. Issuing the subpoena from the wrong court. Under amended Rule 45, the subpoena must issue from the court where the action is pending. In one recent case, a plaintiff sought financial records from the defendant’s CPA in Louisiana. The plaintiff filed a motion to compel. Although no party raised the issue, the court noted that the subpoena was incorrectly issued from the Eastern District of Louisiana, and not from the Northern District of Texas where the action was pending. The court found that the error made the subpoena facially invalid and unenforceable. U.S. Risk Ins. Grp. v. U.S. Risk Mgmt., No. 3:11-cv-2843-M-BN, 2014 WL 4055372 (N.D. Tex. Aug. 15, 2014). 2. Failing to personally serve the non-party. Absent consent, a non-party must be personally served with the subpoena. Providing notice to counsel is not sufficient to make the subpoena enforceable. If there is no evidence that the subpoena was personally served on the nonparty, it is invalid. Morawski v. Farmers Tex. Cnty. Mut. Ins., No. 3:14-mc-21-DBN, 2014 WL 71717. 3. Treating a non-managing employee as a party. A corporate employee who is not an officer, director,
or managing agent must be treated as a non-party and must be personally served with a subpoena. If one party simply notices the deposition, it must be prepared to meet its burden of establishing that the witness is another party’s “managing agent.” Otherwise, as in one recent case, the court will grant a motion to quash and require service of a valid subpoena. Jackson v. Stevens Transport, Inc., No. 3:14-cv-1416-M, 2015 WL 221087 (N.D. Tex. Jan. 15, 2015). 4. Failing to simultaneously tender fees. A party seeking testimony from a non-party must tender, simultaneously with service of the subpoena, fees for one day’s attendance and estimated mileage. Recently, a defendant was unable to compel the deposition of a non-party before the discovery deadline because it tendered the non-party about $13 dollars less than what was required. The defendant admitted that it calculated the mileage fee incorrectly, and offered to tender the non-party the remaining $13 before the deposition. The court held that the failure to simultaneously tender the required fee amount rendered service incomplete and precluded the court from compelling the deposition. Boze Memorial v. Travelers Lloyds Ins., No. 3:12-cv-669-P, 2013 WL 5299278 (N.D. Tex. Sept. 20, 2013). 5. Requiring compliance within an unreasonable amount of time. The subpoena must allow for a reasonable amount of time to comply. In one case, a party served a subpoena for the production of documents on a non-party with a deadline to respond that was before the date the subpoena was actually served. The court concluded that a deadline predating service manifestly does not allow reasonable time and quashed the
subpoena as facially defective. Monitronics Int’l v. IControl Networks, Inc., No. 3:13-mc-134-L-BN, 2013 WL 6120540 (N.D. Tex. Nov. 21 2013). 6. Requiring the non-party to travel more than 100 miles. The non-party must not be commanded to travel more than 100 miles from where the person resides or works. A party to an adversary proceeding recently attempted to require a non-party, a business with its principal office in Houston, to appear for deposition and produce documents in a law firm’s Dallas office. The non-party argued that the subpoena improperly required it to appear for deposition outside the geographic limit, but did not make that same argument with respect to the production of documents. The court quashed the subpoena with respect to both, noting that requiring either outside the 100-mile limit is unenforceable. HCAPS Conroe Affiliation, Inc. v. Angelica Textile Servs., No. 3:15-mc-60-N-BN, 2015 WL 3867923 (N.D. Tex. June 22, 2015).
7. Drafting facially overbroad requests. A court can quash a subpoena that subjects a non-party to undue burden. A subpoena is facially overbroad if it simply requests all documents concerning the parties to the underlying action. Andra Group, LP v. JDA Software Group, Inc., 2015 WL 1636602 (N.D. Tex. Apr. 13, 2015). Although it is generally preferable to modify an unduly burdensome subpoena, federal courts in Dallas have quashed specific requests for being facially overbroad. The examples above are meant to provide a survey of subpoena errors made recently in Dallas federal courts. Both federal and state rules governing subpoenas require exact compliance. They should be reviewed and followed so that next time you need to prove your case with key evidence from a non-party your HN subpoena is enforced. Jeffrey Price is an attorney at Lackey Hershman, L.L.P. He can be reached at cjp@lhlaw.net.
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14 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
Septem ber 2015
Antitrust & Trade Regulation/Business Litigation
Forget What You “Know” About the Texas Attorney Fee Statute by Omar Ochoa and David Shank
For decades, Texas lawyers have “known” that Section 38.001 of the Texas Civil Practice Remedies Code, commonly dubbed the Texas Attorney Fee Statute, authorizes plaintiffs to recover attorneys’ fees upon succeeding in a breach of contract action. Texas courts have recently explained, however, that what we “know” about the Attorney Fee Statute is wrong. Texas follows the “American Rule,” under which each litigant bears its own costs and fees unless a statute or contract between the parties authorizes recovery. The Attorney Fee Statute fits this narrow exception by authorizing plaintiffs to “recover reasonable attorneys’ fees from an individual or corporation” in a “claim on an oral or written contract.” In 1997, the Northern District of Texas held in Ganz v. Lyons Partnership, L.P., 173 F.R.D 173, 175 (N.D. Tex. 1997), that a plaintiff could not recover attorneys’ fees under the statute because the defendant, a limited partnership, was neither an individual nor a corporation. Until then, most lawyers and judges alike simply assumed that the Attorney Fee Statute authorized recovery from any defendant who lost a breach of contract action. At the heart of the Ganz analysis is a small amendment to the statute by the Texas legislature in 1985. The previous version of the Attorney Fee Statute authorized recovery from any “person or corporation,”
but the legislature changed that key phrase to any “individual or corporation” when it re-codified article 2226 into Chapter 38. Under the Code of Construction Act, which applies to construe provisions in the TCPRC, “person” is defined to include “partnerships, among others.” According to the Ganz court, the “natural and logical explanation” for the amendment was that the legislature “intended to exclude those who by definition are not ‘individuals’ or ‘corporations.’” Individuals meant humans. Corporations meant business entities formed under the Texas corporations statute. Limited partnerships therefore did not fit within the “ordinary meaning” of the statute. In spite of Ganz, plaintiffs—without much protest from defendants—continued to assert that they could recover fees under the statute from any type of defendant. And tribunals continued to award fees to prevailing plaintiffs, while secondary sources continued to advise that the statute authorized such recovery. But the Ganz decision has enjoyed a revival as of late. In 2008, the Northern District of Texas reached the same conclusion in Baylor Health Care Sys. v. Nat’l Elevator Indus. Health Ben. Plan, 3:06-CV-1888-P, 2008 WL 2245834, at *6 (N.D. Tex. June 2, 2008), using an Erie analysis, and held that a plaintiff could not recover attorneys’ fees from an ERISA plan because it was not an individual or corporation. In 2014, the first
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Texas appellate court to take up the issue relied heavily on Ganz and issued a comprehensive opinion holding that the Texas Attorney Fee Statute does not authorize recovery of attorneys’ fees against a partnership because it is “neither an individual nor a corporation.” Fleming & Assocs. LLP v. Barton, 425 S.W.3d 560, 575 (Tex. App.— Houston [14th Dist.] 2014). Like the Ganz court, the Fleming court relied on the 1985 amendment to the Attorney Fee Statute, even though it acknowledged the legislature “intended no substantive change” with the amendment. The Northern District of Texas recently returned to the issue in Hoffman v. L&M Arts LLC, 3:10-CV-0953-D, 2015 WL 1000838, at *8 (N.D. Tex. Mar. 6, 2015) and confirmed that the Attorney Fee Statute does not apply to any business entity other than corporations. It held that a plaintiff could not recover attorneys’ fees under the statute from an LLC because “‘individual’ does not include business entities such as LLCs,” and “the term ‘corpora-
tion’ does not include an LLC.” Despite the dramatic shift from what most practitioners have long understood, these holdings limiting the Attorney Fee Statute look to stick for a while. In the recent 2015 legislative session, the Texas House of Representatives passed HB 230, which would have included “other legal entity” in the list of defendants from which attorneys’ fees are available. But that bill died in the Senate having never made it past a committee hearing. Likewise, the Texas Supreme Court passed on its chance to interpret the Attorney Fee Statute when it denied review of Fleming in May 2015. As a result, plaintiffs should not expect to recover, and defendants should object to requests for, attorneys’ fees from business entities that are not corporations unless HN authorized by contract. Omar Ochoa is an associate at Susman Godfrey L.L.P. He can be reached at oochoa@susmangodfrey.com. David Shank is an associate at Scott Douglass & McConnico LLP. He can be reached at dshank@scottdoug.com.
DVAP’s Finest George Shires
George Shires is an associate with Hameline and Eccleston, LLP. He first began accepting pro bono cases from DVAP in the fall of 2013. One of the things he likes about DVAP is the variety of case types to choose from. He remembers the first case he took, and how overjoyed his client was when he helped her get her property back. As George stated, “You can’t put a price on the feeling of knowing you’ve used your skills to help someone who otherwise would have suffered an injustice. I am the son of a minister, and service to others is a core belief my parents instilled in me at an early age. Working with DVAP has given me an opportunity not only to learn and refine legal skills, but also to give back to the community. I would like to thank the partners at the firm, Wes Hameline and Zach Eccleston, for providing a workplace that is supportive of and encourages its associates to give back to the community through pro bono work.” Thank you for all you do, George!
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Se pt e mb e r 2 0 1 5
Focus
Dal l as Bar A ssoci ati on l Headnotes 15
Antitrust & Trade Regulation/Business Litigation
The Right & Wrong Ways to Subpoena Bank Customer Records By Worthy Walker
Do you need customer records from a bank to prove your case? And do you need them before approaching depositions, a hearing or a trial? Attorneys often face this situation when handling litigation in a variety of contexts. Frequently, an attorney simply will fire off a subpoena with a 14-day response time and then cross his/her fingers hoping that the bank complies. This is a nearsurefire way either to cause the bank to ignore your subpoena entirely or to draw a motion for a protective order. If you did not plan to pay for all of those records, or get your client’s approval to do so, you might have another problem. And, if the customer whose records are sought is not a party to the case, there is another set of steps you must take. Although it is not unusual for an attorney to serve a broad subpoena for customer records on a bank with a 10- to 14-day response time, this practice usually violates Section 59.006 of the Texas Finance Code. Not only does it aggravate the subpoenaed bank, but according
to Texas courts, it renders the subpoena invalid. Finance Code Section 59.006 expressly provides the “exclusive method” for obtaining discovery of customer records from a financial institution in litigation. Section 30.007 of the Texas Civil Practice and Remedies Code states that “civil discovery” of such records is governed by Section 59.006. In order to properly seek customer records from a bank, you should be aware of these three keys to serving effective subpoenas under Section 59.006: • Mandatory response time—The statute requires at least 24 days for the bank to comply. Texas courts have found that a subpoena that does not provide at least 24 days to comply is invalid. This is important because many attorneys simply assume such third-party subpoenas fall outside of 30-day response requirements for requests for production. • Cost of compliance—The statute also requires the party requesting the records pay the bank’s “reasonable costs of complying with the record request” before any records must be produced.
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The St. Thomas More Society invites you to join us for our annual Red Mass on Sunday, October 4, at 9:00 a.m., at the Cathedral Shrine of the Virgin of Guadalupe, followed by a brunch reception at the Marriott City Center (Plaza of the Americas) Plaza Ballroom. Children are encouraged to attend this family event. For more details, and to register for this event, visit www.stmsdallas.org.
This expressly includes costs of reproduction, postage, research, delivery and attorneys’ fees. Texas courts have held that failure to pay these costs relieves a bank of any obligation to respond and is valid basis for a protective order. Lawyers should carefully consider and reasonably tailor their record requests to banks because broader subpoenas will likely incur additional investigation, production costs and attorney review, resulting in a larger bill. • Additional steps when customer is not party to the lawsuit—If the records sought are from a bank customer who is not a party to the case, the requesting party also must: (1) give notice to the customer of their rights under Section 59.006(e) and provide copy of the request; (2) file a certificate of service indicating the customer was served with the notice; and (3) request the customer’s written consent to authorize the production. If the customer grants written consent, all is well, but this rarely occurs. More likely than not, the customer will
ignore the request. If the customer refuses written consent, the requesting party “may” file a motion for in camera inspection of the record “as its sole means of obtaining access to the record.” These steps can be laborious, and it makes sense to start very early in the process if the customer is not party. Keep in mind that there are several exemptions from coverage found Section 59.006(a), including criminal investigations and garnishment proceedings where the bank is the garnishee and the customer is the debtor. Most civil proceedings, however, will fall under the statute’s coverage. And while the statute specifically provides that it does not create a right of privacy in the records, its requirements often create a stumbling block for litigators seeking customer records to prove their case, particularly when there is a HN deadline approaching. Worthy Walker is a partner at Gruber Hurst Elrod Johansen Hail Shank LLP. He may be reached at wwalker@ghetrial.com.
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Wednesday, September 9, 9 a.m. - 3 p.m. at Belo
Friday, September 11, 11 a.m. - 1:30 p.m. at North Dallas Clinic (5420 LBJ Frwy, Ste. 240)
Photo session is FREE, requires no reservation and only takes a few minutes. Photos may be purchased for personal use. Questions? Judi Smalling at jsmalling@dallasbar.org or (214) 220-7452.
16 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
Septem ber 2015
Antitrust & Trade Regulation/Business Litigation
Turning the Tables–Offers of Judgment Under Federal Rule 68 by Darren Nicholson and Mark Strachan
As lawyers, we all know that the vast majority of cases settle. In virtually every case, a significant amount of attorney resources are devoted towards pursuing settlement, with each side maneuvering to assert settlement leverage over the other. Defendants in federal court, however, often misunderstand or simply overlook one of the most powerful pieces of leverage they have in the process – the ability to make an Offer of Judgment under Federal Rule of Civil Procedure 68. When deployed in the appropriate circumstances, it can be
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a savvy defense lawyer’s most potent and effective tool. The application of Rule 68 is deceptively simple. No later than 14 days before trial, a defendant may serve on plaintiff an offer to allow judgment to be entered “on specified terms, with the costs then accrued,” at which point the plaintiff will have 14 days to act. If accepted, the clerk must enter judgment on the terms specified. If not accepted, the offer is deemed withdrawn and there are several consequences that await the unwise plaintiff who does not obtain a judgment more favorable than what was offered. First, not only will plaintiff be unable to recover his own costs but also he must “pay the costs incurred [by
2015 Probate Symposium Wednesday, October 7, at Belo 9:00 a.m.-4:30 p.m. MCLE 6.00, Ethics 1.00 Will include Information from the Dallas County Probate Court Investigator’s Office, Legislative Update, Judges’ Panel with all four Dallas County Probate Court Judges, and much more! Presented by DAYL Elder Law Committee, Dallas County Probate Courts and DVAP
the defendant] after the offer was made.” Second, if plaintiff would have been entitled to attorneys’ fees, a majority of courts have found that those fees are effectively capped as of the date of the offer, because attorneys’ fees expended to obtain a less favorable judgment are not reasonable and necessary to obtain the judgment. Of course, the threat of paying the defendant’s costs or of having an award of attorneys’ fees capped will provide little to no leverage if the amount in controversy dwarfs those considerations. But where they do not and where fees and costs are significant settlement drivers, an offer of judgment may be uniquely effective in turning the tables on the plaintiff by forcing him to think long and hard about continued litigation. In other words, where a plaintiff is using the threat of costs and attorneys fees as leverage in settlement negotiations, the case is very likely ripe for a carefully crafted offer of judgment. In these unique cases where an offer of judgment is ideal, a few important considerations must be kept in mind. 1. Do not make an offer of judgment your client cannot live with. Although it can be a very effective settlement strategy, an offer of judgment is not an offer of settlement. If accepted, it will result in a judgment being entered against your client. There will be no mutual confidentiality, no mutual releases, no mutual representations and warranties or other common settlement agreement provisos. To be sure, a defendant has the freedom to specify the terms of the offer, but an offer of judgment is only effective if those terms are identical to or better than what the plaintiff will obtain after a trial. An offer of judgment that contains unrealistic terms that a plaintiff will likely beat will not put any
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settlement pressure on a plaintiff. 2. Do not forget to include costs as part of your offer. By rule, an offer of judgment under Rule 68 must include the “costs then accrued,” and offers of judgment are strictly construed against the drafter. Thus, if you make an offer that does not specifically mention costs, the costs can still be taxed against your client after the judgment has been entered. Moreover, for cases involving statutes that allow attorneys’ fees to be taxed as costs, the Supreme Court has found that those fees are “costs” as contemplated under Rule 68. A perfect example of how a poorly drafted offer of judgment can backfire is Bosley v. Mineral County Comm’n, 650 F.3d 408 (4th Cir. 2011). In Bosley, the Defendant offered $30,000 as “full and complete satisfaction of [plaintiff’s] claim” but made no mention of costs. The plaintiff accepted the offer, but the court, noting that offers of judgment must be strictly construed against the drafter, concluded that the offer was not inclusive of costs and awarded plaintiffs an additional $62,463.80 in accrued costs. Thus, a $30,000 offer of judgment resulted in a $92,463.80 final judgment being entered, all because the offer of judgment did not specifically mention that it was inclusive of costs. 3. The earlier you make your offer of judgment, the more effective it will be. Finally, because an offer of judgment is really only effective in cases where costs and fees will be the settlement drivers, it is important to make an offer of judgment before those costs become significant for HN either side. Darren Nicholson is a shareholder and Mark Strachan is of counsel at Sayles Werbner, PC. They can be reached at dnicholson@ swtrialaw.com and mstrachan@swtriallaw.com, respectively.
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Se pt e mb e r 2 0 1 5
Focus
Dal l as Bar A ssoci ati on l Headnotes 17
Antitrust & Trade/Business Litigation
A Change in Fundamental Texas Public Policy by Robert M. Thornton
In its recent decision in Exxon Mobil Corporation v. Drennen, 452 S.W.3d 319 (Tex. 2014), the Texas Supreme Court announced a significant change in what is considered to be fundamental public policy regarding agreements in restraint of trade. Prior to Drennen, it appeared to be fundamental public policy in Texas that any agreements constituting unreasonable restraints of trade, including unreasonable covenants not to compete, were unenforceable. Section 15.05(a) of the Texas Business and Commerce Code provides that “[e]very contract, combination, or conspiracy in restraint of trade is unlawful.” Section 15.50(a) provides a narrow exception for a reasonable covenant not to compete “. . . to the extent that it contains limitations as to time, geographic area and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.” As recently as 2011, the Supreme Court held in Marsh USA Inc. v. Cook, 354 S.W.3d 764, 769-70 (Tex. 2011), that “[a] person’s right to use his own labor in any lawful employment is . . . one of the first and highest of civil rights,” and that, “[i]n section 15.05(a) of the Business and Commerce Code, the Legislature included a policy limitation on the freedom between employers and employees to contract.” In Drennen, the Court enforced a New York choice of law provision to uphold the forfeiture of 57,200 shares of XOM stock previously awarded to a former Texas employee over his 31-year career for having engaged in competition with his for-
mer employer after the termination of his employment. Significantly, the Court found that Exxon Mobil had no noncompetition agreement with Drennen, but held that the application of New York law to uphold the forfeiture did not violate any Texas public policy that was fundamental. In reaching its decision, the Supreme Court announced the following change in the public policy of this state: With Texas now hosting many of the world’s largest corporations, our public policy has shifted from a patriarchal one in which we valued uniform treatment of Texas employees from one employer to the next above all else, to one in which we also value the ability of a company to maintain uniformity in its employment contracts across all employees, residing in Texas or New York. Under the Court’s decision in Drennen, it remains an open question as to whether such a forfeiture provision would be enforceable under Texas law. “Whether such provisions in non-contributory employee incentive programs are unreasonable restraints of trade under Texas law, such that they are unenforceable, is a separate question and one which we reserve for another day.” Without specifically addressing whether the statutory prohibition in Section 1505(a) constitutes a limitation on the parties’ right to contract, the Court held that “the prime objectives of contract law . . . may be best obtained by letting the parties choose the law to govern the validity of the contract.” The broad language used in Drennen allows large national or international companies to avoid Texas laws against unrea-
sonable restraints of trade through choice of law provisions in contracts with its own employees, even with respect to restrictive covenants: “(Under New York law), [i]n cases where an employer conditions receipt of a benefit post employment upon compliance with a restrictive covenant, the employee is given the choice to either preserve his rights under the contract by refraining from competition or forfeit such rights by exercising the right to compete. . . . [S]uch a provision is not an unreasonable restraint upon an employee’s liberty to earn a living. . . . When this (informed choice) doctrine applies, ‘a restrictive covenant will be enforceable without regard to reasonableness’
so long as the employee voluntarily left his or her employment. . . .” It is unclear whether the Court’s announced change in public policy is predicated on, or limited by, the enactment of Chapter 271 of the Business and Commerce Code, which allows contracting parties to choose foreign law to govern certain transactions, since that statute is not mentioned in the opinion. The scope and future application of this change in public policy also remains uncertain in light of the fact that Chapter 271 is expressly limited to “qualified transactions” with an aggregate value of at least $1 Million, and Drennen’s claim would presumably involve a qualified transaction. HN Robert M. Thornton is a member of Kilgore & Kilgore, PLLC. He can be reached at rmt@kilgorelaw.com.
SAVE THE DATE! SEPTEMBER 17 - 6 A.M. TO MIDNIGHT
18 H e a d n o t e s l D a l l a s B a r A s s o ciation
Septem ber 2015
Credit Card Security Guidelines For Your Firm by Tracey Gavin
Even with the low risk of credit card fraud in the legal industry, your firm should still adhere to security guidelines. The following is a quick guide to fraud preventing payment trends:
NFC
NFC or Near Field Communication are payments made through credit cards stored on smart phones. Charges are made by tapping, waving or getting close enough for a NFC credit card machine to read the digital signal from the card. The benefit to merchants has been debated due to the high cost of hardware. The most popular NFC program is ApplePay which requires the card holder to be present, or close enough for the credit card terminal to read the signal. This means your firm can only accept ApplePay when a client is in your office. Decide if NFC provides any real cost
savings before rushing out to buy a new point-of-sale system. For most traditional law firms, NFC does not make sense as a payment solution because your client must be present for payment.
EMV
EMV or Europay-MasterCard-Visa or sometimes known as “pin and chip” cards is a credit card embedded with an electronic chip, and considered a key security feature in preventing the use of counterfeit credit cards. Similar to NFC, EMV cards are mostly processed by a card machine. EMV technology has been largely focused on mid-size to large retailers. As a law firm, you have an advantage over traditional retailers because you know the identity of your clients, which drastically reduces the risk of accepting a counterfeit credit card.
PCI
PCI DSS, or Payment Card Indus-
try-Data Security Standards, has come to broadly represent the overall compliance and security when accepting credit cards. PCI has been required for law firms that accept credit cards since January 2015 and required by Visa, MC and Discover regardless of the method you choose to accept credit cards (i.e card present or card not-present). PCI is managed through a series of selfassessed security questions. Usually, law firms can reduce the security requirements and protect their firms by implementing a few small changes. To become PCI compliant, firms should eliminate the need to see, collect or store any credit card data from clients. If no one in your office touches, records or handles a client credit card, or the credit card number, then the risk for card fraud is almost eliminated. With a service like LawPay this can be done by using a secure web-based system that securely encrypts the credit
card. Programs are available to add secure payment links to your website or send electronic invoices directly to clients. Your client may then pay online. These methods also eliminate the need for traditional credit card machines, thus further reducing your risk.
About LawPay
The LawPay program, is a custom payment solution designed for attorneys and complies with ABA and state requirements for managing client funds. As a member benefit of the Dallas Bar Association, law firms save up to 25 percent off standard credit card fees. If you are currently accepting credit cards, we encourage you to compare your current processor and its fees with LawPay. To learn more contact (866) 376-0950 or www.LawPay.com/dallasbar. HN
Tracy Gavin is the Marketing Director for LawPay. She can be reached at tgavin@affinipay.com.
Ambassador Jordan to be Keynote Speaker at Philbin Awards continued from page 1
Dallas office of the international law firm Baker Botts LLP and later headed the firm’s Middle East practice based in Dubai. Ambassador Jordan is the author of Desert Diplomat, which provides a rare
inside view of Saudi Arabia and the Middle East during the events following 9/11. Desert Diplomat was recently published and will be available for sale and signing at the luncheon. Ambassador Jordan is Vice Chair of the Tower Center Board of Directors and of
Don’t miss your opportunity to advertise (print & online) in the #1 “Legal Resource & Expert Witness Guide” in Dallas County. Contact PJ Hines at (214) 597-5920 or pjhines@legaldirectories.com
the Board of Governors of the Middle East Institute. He is a member of the Council on Foreign Relations and a past president the Dallas Committee on Foreign Relations. He was president of the Dallas Bar Association in 1999. He is a member of the American Arbitration Association Commercial Panel of Arbitrators, the Panel of Distinguished Neutrals of the CPR International Institute for Conflict Prevention and Resolution, and the London Court of International Arbitration. He also serves on the Advisory Board of the Bilateral U.S.-Arab Chamber of Commerce A graduate of the University of Oklahoma College of Law, Ambassador Jordan is
a frequent commentator with international media including CNN, Fox News, MSNBC, CNBC, Bloomberg and the New York Times. DBA members may reserve seats now for the luncheon. To receive the early bird rate of $45 per ticket or $450 per table of 10, register by October 7. After October 7, tickets increase to $50; and tables of 10 can be purchased for $500. No walk-ins will be accepted. Purchase your ticket by logging on to www.dallasbar.org or by contacting Judi Smalling at HN jsmalling@dallasbar.org. Jessica D. Smith is the DBA’s Communications/Media Director. She can be reached at jsmith@dallasbar.org.
Sept e mb e r 2 0 15
Classifieds
Dal l as Bar A ssoci ati on l Headnotes 19
September
EXPERT WITNESS
Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. dlopez@pulmanlaw.com. Economic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, business valuation, credit damage and divorce matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com. “We Count.”
OFFICE SPACE
Uptown law firm seeking litigation attorney. Fully furnished office, receptionist and conference room. Includes photocopy/ scanner/facsimile, break room and parking garage. Walking distance to restaurants and the Katy Trail. Call Charles (214) 522-4900. 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. 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. 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. 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. 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. McKinney Avenue. 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, furni-
ture, copier, fax, DSL & phone equipment are available if needed. No long term commitment and a monthly rate of $850.00. Call (214) 520-0600. 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: w ww.attorneyvenue.com. Large Partner/Attorney corner office with views of downtown Dallas with two smaller interior adjacent offices in a 14-story office building at Walnut Hill and Central Expressway. Available Immediately. Terms Flexible. For additional information, please contact Kay Wilbanks at (972) 774-1276 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. 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 – 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. 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. 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 reasonable priced. Why not have quality of life while you practice? Please call (214) 750-1600 for details.
POSITION AVAILABLE
Business/Transactional Attorney Sought. Established small AV downtown firm seeks experienced attorney to assist with clients of retiring partner. Broad business-related experience desired, including general corporate and M&A experience, real estate conveyancing, contract drafting and negotiation. The firm has an existing client base
of small business clients, but the ideal candidate should have his/her own book of business. Our retiring partner will remain as necessary to aid in the transition. Send resume to: DalBusLaw@gmail.com. Business Development Attorney for Law Firm. Bored with the practice of law? Can you close business? Looking for an end to billable hours and a chance to make more outside the partnership track? Contact recruiting@elysium-staffing.com to learn more. Legal Nurse Consultant. Thiebaud Remington Thornton Bailey LLP, a law firm specializing in medical malpractice defense and healthcare law, is seeking to hire a Legal Nurse Consultant with 5 years of clinical nursing experience. LNC experience, LNC certification or healthcare risk management experience preferred but not required. Please send your resume to: C. Santosuosso, Adm. Mgr.; Thiebaud Remington Thornton Bailey LLP; 4849 Greenville Ave., Ste. 1150; Dallas, TX 75206 or e-mail to: csantosuosso@trtblaw.com or fax to: (214) 7540999. Commercial Real Estate Attorney: Are you a 7-15 year real estate attorney with an entrepreneurial spirit but held back by, or unsatisfied with, your current firm? We are an AV-rated boutique commercial real estate firm in Dallas with a sophisticated national practice seeking the next generation. Please send resume in confidence to Dallas Bar Association, Box 15-08, 2101 Ross Avenue, Dallas, TX 75201. 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. 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. 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.
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. Freelance Attorney. Experienced, AVrated commercial litigation attorney/UT Law honors graduate available for legal research, legal writing, and editing work on a project basis. High quality work product for your firm with no commitment and no overhead. Excellent references. attorney3503-7615@yahoo.com.
SERVICES
Trial Preparation Stress Relief: Licensed litigation attorney (20 years) available for hourly projects: court appearances, trial preparation, drafting pleadings/discovery/ motions, attending depositions, mediations. Large firm and complex litigation experience, first and second chair trials and arbitrations, law review. (972) 665-9834. 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 startup 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. Immediate Cash Paid For Diamonds and Estate Jewelry. Buying all types of jewelry and high end watches. Consignment terms available @ 10-20 % over cash. For consultation and offers please call J. Patrick (214) 739-0089. Energy Acquisition(s): I buy any size royalty(ies), mineral(s) , working interest(s) and try to reach (and pay) the sellers asking price. I am a licensed attorney and have been making oil and gas purchases for 35 +/- years. E-mail to bleitch@prodigy.net or call Brenda at 1-800-760-9890 or (214) 720-9890 for a friendly and quick analysis and response. 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. 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.
Need Help? You’re Not Alone. Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 More resources available online at www.dallasbar.org/content/peer-assistance-committee
20 H e a d n o t e s l D a l l a s B a r A s s o ciationâ€
Septem ber 2015