THL_JanFeb25

Opening Thoughts From New Harris County Judges Warning: Using AI May Be Injurious to Your Ethical Health The First Amendment Meets the Internet—Why Won’t This Round Peg Go Into That Square Hole?

The Success Through Addiction Recovery (STAR) Drug Court Looking Forward and Looking Back: The Impact nch of a Quarter of a Century

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THE HOUSTON

inside...

Volume 62 – Number 4

January/February 2025

What”s New in Law

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contents January/February 2025

Volume 62 Number 4

FEATURES

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14

Thoughts From New Harris 10 Opening County Judges Compiled by Jaclyn Barbosa, Jessica Crutcher, Ciara Perritano, and Kyle Steingreaber

Using AI May Be Injurious 14 Warning: to Your Ethical Health

By David J. Beck

First Amendment Meets the 20 The Internet—Why Won’t This Round Peg Go Into That Square Hole?

By Gerald M. Birnberg

24

26

Success Through Addiction 24 The Recovery (STAR) Drug Court

By Mike Hanson

Forward and Looking 26 Looking Back: The Impact of a Quarter of a Century

The Houston Lawyer

Compiled by Anna Archer, Anietie Akpan, and Jacyln Barbosa

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1000 Louisiana St., Suite 3600, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1000 Louisiana St., Suite 3600, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com.

Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2025. All rights reserved.

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contents January/February 2025

Volume 62 Number 4

departments

32

33

Message 6 President’s Welcoming New Faces to the

Bench and Championing New Beginnings

By David Harrell

the Editor 8 From The Law in 2025: Optimism and

Excitement Meet a Measure of Caution and Uncertainty

By Andrew Pearce

THE RECORD 32 OFF Defending the Environment:

David Adler’s Firefighting Career

By Braden Riley

34

35

Profile in professionalism 33 AMindy Davidson Former Executive Director, Houston Bar Association

Spotlight 34 committee New Year With the HBA’s Newest

Committee

By Samantha Torres and Melanie Bragg Spotlight 35 Section Federal Practice Section:

Connecting the Bench and Bar Through CLEs and Networking

By Kat Kunz

trends 36 Legal The Texas Supreme Court’s Proposed

Rules on Paraprofessionals— What’s Next?

By Jessica L. Crutcher

Supreme Court of Texas Reexamines Presumptions Under Casteel

By Braden Riley

The Houston Lawyer

38 Litigation MarketPlace

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president’s message

By David Harrell Troutman Pepper Locke LLP

Welcoming New Faces to the Bench and Championing New Beginnings

The Houston Lawyer

I

am often in the courtroom as a litigator. For the past few weeks, however, I have been going to the Harris County courthouses for a different purpose with the HBA. Last November, Houston voters elected about two dozen new judges to the bench in Harris County’s civil, criminal, and family courts, as well as to the First and Fourteenth Court of Appeals. For many of them, this is a culmination of a lifetime of dedication, hard work, and tireless support New Year’s from family and friends.

The HBA has long held an outresolutions are standing relationship with our judioften made with the ciary. That has historically included best of intentions… serving as the go-to resource for I invite you to take new members of our judiciary who advantage of your request assistance with their invesHBA membership titure ceremonies. As part of that support, the HBA publicizes these as a way to commit events in our publications, as well to something as prepares and prints the programs. with purpose.” As HBA president, it is often my privilege to welcome newly-elected judges to their courts, give remarks on behalf of the Bar to congratulate these judges, as well as talk about their service to the profession and their community through the HBA’s work.

I enjoy seeing the personal touch that each judge brings to their investiture, with remarks from their close friends and mentors, the involvement of their family, and the warmth and support from the new judge’s supports.

It’s a new beginning outside of the courtrooms, as well. As you reflect on your personal and professional goals for the new year, I encourage you to consider joining one of these HBA committees to help give others a fresh start. (You can learn more about any of the following committees, and more, at hba.org/committees.)

A Fresh Start for Our Youth: The HAY Center Committee, for instance, which maintains a partnership with the HAY Center to enrich the lives of current and former foster youth, organizes an annual holiday party; assists in the Center’s prom

‘‘

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readiness event, where high school juniors and seniors in the foster care system could “shop” for their prom attire from inventory provided by generous donors; and assists with the Center’s graduation party to celebrate high school seniors.

A Fresh Start for Our Greenspaces: The Lawyers for a Beautiful Houston (L4BH) Committee works with community partners to organize projects that promote the beautification of Houston, which has included tree planting and clean-up efforts.

A Fresh Start for Our Health: The HBA offers several health-related fresh starts: • The 40th Annual HBA Eikenburg Fun Run—commemorating a major milestone in the event’s history—offered participation at all levels with an 8k race and a 1-mile family walk. This charitable event, which is open to public participation, benefits Pursuit Center, a Houston nonprofit organization which serves those with intellectual and developmental disabilities and autism.

• As one of our newer committees, the HBA’s Wellness Committee is dedicated to fostering the holistic mental health and well-being of lawyers by helping them naturally integrate wellness tools into their practice. The committee collaborates with HYLA’s Wellness Committee events, such as a self-defense course, a cookbook club, and a CLE program on how practicing gratitude can enhance your practice.

A Fresh Start for Families: Since 1998, the Houston Bar Association has proudly built 26 homes for low-income families, helping to create brighter futures and stronger communities.

The HBA Habitat for Humanity Committee is currently hosting its first HBA Bar Builds Campaign. This fundraiser aims to raise funds for the 27th and 28th homes for Houston families in need of affordable housing.

New Year’s resolutions are often made with the best of intentions. Perhaps you’ve already reconsidered one or two of your own. I invite you to take advantage of your HBA membership as a way to commit to something with purpose. By doing so, you’re taking part in a long history of the HBA’s dedication of service to our community.

BOARD OF DIRECTORS President

Secretary

President-Elect

Treasurer

First Vice President

Immediate Past President

David Harrell

Kaylan Dunn

Daniella Landers

Greg Ulmer

Jeff Oldham

Diana Gomez

Second Vice President

Collin Cox

DIRECTORS (2023-2025)

Carter Dugan Greg Moore Colin Pogge

DIRECTORS (2024-2025) Todd Frankfort

DIRECTORS (2024-2026) Keri Brown Seepan V. Parseghian

Robert Painter Samantha Torres

editorial staff Editor in Chief

Andrew Pearce Associate Editors

Anna M. Archer Nikki Morris Braden Riley

Sydney Huber Bateman Lane Morrison Kyle Steingreaber Editorial Board

Anietie Akpan Jessica Crutcher Corey Devine Felicia Harris Hoss Denise Khoury Dave Louie Ciara Perritano Hon. Josefina M. Rendón Jennifer Smith Carey Worrell

Jaclyn Barbosa Jonathan Day Traci Gibson Jeffrey Johnston David T. López Emily Mott Rinku Ray Benjamin Roberts Rachael Thompson Nicolette Zulli

Managing Editor

Maggie Martin

HBA office staff Executive Director.................... Vinh Ho Associate Executive Director....... Ashley G. Steininger Executive Assistant and Director of Board Affairs............ Gina Pendleton Director, Marketing and Communications ..................... Maggie Martin Communications Specialist........ Briana Ramirez Education Coordinator ................. Alli Hessel Director, Projects and Events...... Bonnie Simmons Projects and Events Assistant..... Georgina Peña Director, Membership and Technology Services................. Ron Riojas

Advertising sales Design & production QUANTUM/SUR

10306 Olympia Dr., Houston, TX 77042 281.955.2449 • www.quantumsur.com Publisher

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from the editor

By Andrew Pearce BoyarMiller

Associate Editors

Anna M. Archer U.S. District Court

Sydney Huber Bateman Horne Rota Moos

Nikki Morris BakerHostetler

Lane Morrison Bush Seyferth

The Houston Lawyer

Braden Riley Marrow & Sheppard

Kyle C. Steingreaber Wright Close & Barger

The Law in 2025:

Optimism and Excitement Meet a Measure of Caution and Uncertainty

I

recently came across a quote that has stuck with me: “It is never too late to be what you might have been,” attributed to George Eliot (which turns out to be the pen name of Mary Ann Evans, one of the leading English novelists of the 19th century—a fact as thought-provoking as the quote itself). For years, maybe decades, I wanted to run a half-marathon. On more occasions than I can count, I swore this would finally be the year I would do it. I even registered once and then almost immediately abandoned my training, ultimately letting the race day pass as I swore to do better next year.

But, today, I can say that I completed a half-marathon in December with a second one for February. Turns out, Mary Ann Evans was right.

In this issue, we are excited to introduce you to several others who learned it was not too late for them, either, as we welcome several new justices and judges to our appellate and county district courts.

They graciously shared their thoughts on what inspired them to run, the qualities they have seen in other judges they hope to emulate, and the changes, if any, they intend to bring. Many were inspired to one day serve on the bench in their younger years, and it is equally exciting and inspiring to read about their realization of lifelong dreams and what they hope to accomplish upon taking the bench. My sincere thanks to Jaclyn Barbosa, Jessica Crutcher, Ciara Perritano, and Kyle Steingreaber for their work to compile this broad cross-section of insights.

We also thought it would be equal parts fun and interesting to speak with newly-licensed lawyers to ask what they are looking forward to in their first full year of practice, as well as lawyers who have practiced for 25 years to ask what they wish they had known when their legal careers began. I thoroughly enjoyed the optimism and wisdom shared by those who were asked to contribute, which we owe to the fantastic efforts of Anna Archer, Anietie Akpan, and Jacyln Barbosa.

Speaking of new, if you want to know about the inevitable rise of our Artificial Intelligence (AI) overlords, you should watch Ex Machina. But if you want to learn about

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the increasing benefits and potential risks of the use of AI in our legal community—from research and document analysis to ethical and confidentiality concerns— you should read David J. Beck’s terrific article, Warning: Using AI May Be Injurious to Your Ethical Health.

Similarly, if you want to know what happens when an immovable object meets an unstoppable force, you must check out Gerald M. Birnberg’s timely piece, The First Amendment Meets the Internet—Why Won’t This Round Peg Go Into That Square Hole?, in which he surveys several Supreme Court cases applying First Amendment doctrines to regulation of the internet, where it seems justices have experienced considerable difficulty adapting traditional legal principles to the advent of today’s digitally-dominated technologies.

In this issue, you can also learn about the Success Through Addiction Recovery (STAR) Drug Court, which gives readers a glimpse into the fourth of Harris County’s six specialty courts as part of our continuing series.

Mike Hanson provides a great overview of this critical resource, which has helped to address substance use disorders among non-violent offenders for nearly two decades.

Last, I would be remiss if I did not share the dose of humility I experienced while basking in the glow of my recently completed half-marathon, only to read about David Adler’s extraordinary work fighting wildfires, which he started at 45 years old. Braden Riley did a wonderful job of sharing Adler’s story, from what motivated him to begin to why he continues to (fire)fight. I also very much enjoyed seeing that Adler, too, was not too late to become what he might have been.

Thanks to everyone who contributed to this issue, including the associate editors and board members who made it happen, as well as a special recognition to both Ciara Perritano and Braden Riley, who each pulled double duty on this issue. Ciara served as guest editor while also helping to compile the contributions featured in the opening thoughts piece on our newly-elected judges, and Braden introduced us to David Adler while also providing a legal trend.

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Opening Thoughts From New Harris County Judges Compiled by Jaclyn Barbosa, Jessica Crutcher, Ciara Perritano, and Kyle Steingreaber

Harris County recently welcomed a number of new justices to the First and Fourteenth Court of Appeals, as well as new judges to the Harris County civil, criminal, and family courts. We asked several of our newest jurists to share their thoughts on what motivated or inspired them to run, the qualities they have seen in other judges that they hope to emulate, and the changes, if any, they intend to bring.

First Court of Appeals Jennifer Caughey – Place 2 What motivated or inspired you to run for a judgeship?

I aspired to this role since high school 25 years ago, when I had the opportunity to intern for a judge. I saw how foundational the rule of law is—and the importance of having judges who work tirelessly to give all parties their fair day in court. I left inspired. This election is the fulfillment of a lifelong dream.

Kristin M. Guiney – Place 8 What motivated or inspired you to run for a judgeship?

I was inspired to run for a judgeship because of my deep commitment to upholding justice, fairness, and the rule of law. My experience as a legal professional has shown me the impact a thoughtful, impartial judge can have on individuals and society, motivating me to serve in this capacity.

What qualities have you seen in other judges that you hope to emulate when you take the bench?

I hope to emulate the following qualities: • Unwavering commitment to the rule of law: I will faithfully apply the law as it is written, always adhering to applicable text and binding precedent.

• Diligence and respect: Each appeal likely means the world to the parties. All deserve my full attention and respect.

• Efficiency: I see routinely that justice delayed is justice denied. I will work assiduously to efficiently issue clear, understandable, and well-reasoned opinions.

What qualities have you seen in other judges that you hope to emulate when you take the bench?

I admire judges who exhibit integrity, patience, and impartiality. The ability to listen attentively, analyze complex legal issues with clarity, and make decisions grounded in fairness is crucial. I strive to emulate these qualities, ensuring that all parties feel heard, and that justice is consistently served with respect.

Andrew Johnson – Place 6 What motivated or inspired you to run for a judgeship?

I aspired to someday run for appellate judge after clerking at the First Court of Appeals. With the encouragement of family and friends, I decided 2024 was an opportune time to run due to the large number of appellate seats on the ballot.

What qualities have you seen in other judges that you hope to emulate when you take the bench?

The appellate judges that have inspired me are studious, eager to discuss issues, and willing to listen to others’ positions.

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Susanna Dokupil – Place 9 What inspired you to run for a judgeship?

Working for judges! After my 1L summer, I had the opportunity to extern for Judge O’Scannlain on the Ninth Circuit, and after graduating from law school, I clerked for Judge Smith on the Fifth Circuit. Both of these judges inspired me to want to become one myself someday.

What qualities have you seen in other judges that you hope to emulate when you take the bench?

The most important role of an appellate judge, other than getting the law right, is communicating the reasoning behind a decision. Parties deserve to understand why they won or lost, and future litigants need precedential opinions to follow a clear structure explaining how the law was applied to the facts.

Fourteenth Court of Appeals Chad Bridges – Place 3 What motivated or inspired you to run for a judgeship?

I first became a judge in 2015. I was appointed to the 240th District Court after Judge Thomas Culver retired. Judge Culver was a role model to many of us at the Fort Bend County Justice Center.

When I ran for my current position, I saw the opportunity to bring a different kind of experience and perspective When I ran that would benefit all ten counties in for my current the district.

‘‘

position, I saw the opportunity to What qualities have you seen in other bring a different judges that you hope to emulate when kind of experience you take the bench? and perspective Judge Culver and Judge Dan Beck were both models of patience and kindthat would benefit ness. I try to be like them. Judge Susan all ten counties in Lowery and Justice Charles Seymore the district.” showed a fidelity to the law that I hope to match.

Tonya McLaughlin – Place 4 What does it mean to be a judge?

Becoming a justice on the Fourteenth Court of Appeals is a profound honor, and I feel a great responsibility to follow the law efficiently. I look forward to collaborating with my amazing colleagues because, together, our expertise is broad. I add not only valuable jury trial and criminal appellate experience to the court. I also bring a deep understanding of the challenges people from various walks of life face.

What motivated or inspired you to run for a judgeship?

My faith and strong calling to public service initially inspired me to campaign to be a judge. Whether it was representing the State of Texas or the accused, I was confident in my path. That path kept me motivated, during a decade of politics, to keep running for judge.

What qualities have you seen in other judges that you hope to emulate when you take the bench?

Throughout my legal career, the best trial judges gave everyone a fair trial no matter which side they represented, and they were relatively predictable. I appreciated those qualities, even if it meant I may not always win my case. I hope to emulate that on the appellate bench.

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Maritza Michele Antu – Place 5 What motivated or inspired you to run for a judgeship?

Most of my career has been dedicated to public service. With my experience as a former prosecutor, and a district court judge, seeking a place on the Fourteenth Court of Appeals seemed like a logical next step. While I do not discount my time in private practice, I am honored and excited to be back in public service.

What changes, if any, do you intend to bring to the court when you take the bench?

I have always been a proponent of court efficiency. I think all parties benefit from a judiciary that is fair and expeditious.

While on the district court bench, I cut my court’s case backlog by 50% in eight months. In this new position, I intend to work with the same objective in mind.

Justice Katy Boatman – Place 6 What motivated or inspired you to run for a judgeship?

Texas is blessed with the best judiciary in the country, and I have always wanted to be a part of it. It is an honor to work in this courthouse, and I will do my best to serve Texans well.

What qualities have you seen in other judges that you hope to emulate when you take the bench?

I have spent my career working— both during my clerkships and in private practice—with some of the best judges and lawyers there are. I hope to carry on their great work by issuing impartial, timely, and well-reasoned opinions.

Civil District Court Nicole Perdue – 133rd Judicial District Court What motivated or inspired you to run for a judgeship?

After 27 years of practicing civil trial law, I have seen how the judicial system can profoundly impact lives and communities. What motivated me to run for district court judge is my unwavering belief in the importance of fairness, dignity, and respect in our courts.

Throughout my career, I have worked tirelessly to ensure that everyone, regardless of their background or circumstances, is treated with equity and compassion. I want to use my experience and dedication to foster a courtroom environment where every individual feels heard and valued. Running for judge is my way of giving back to the community and ensuring that our legal system remains a pillar of fairness and integrity.

What qualities have you seen in other judges that you hope to emulate when you take the bench?

I admire judges who embody fairness, patience, and humility, treating all parties with dignity and respect. Their ability to clearly communicate, distill complex issues, and make impar12 January/February 2025

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tial decisions inspires me. I aim to emulate their integrity, commitment to justice, and dedication to ensuring everyone feels heard and valued in the courtroom.

Erica Hughes – 151st Judicial District Court What does it mean to be a judge?

It means that I have an opportunity to serve the community by resolving legal disputes in a timely manner. It also means that I get to use my love for the law in this role to ensure justice by interpreting and applying the law.

What motivated or inspired you to run for a judgeship?

My motivation comes from a desire to serve others. This role as an elected official gives me the opportunity to serve all and contribute to the common good.

What qualities have you seen in other judges that you hope to emulate when you take the bench?

The qualities from other judges that I want to emulate on the bench are integrity, impartiality, decisiveness, attention to detail, and strong work ethic.

TaKasha Francis – 152nd Judicial District Court What does it mean to be a judge?

Being a judge means serving with integrity, ensuring equity and fairness for all, and restoring faith in the judicial system.

Judges are public servants, and life is not fair, but we help balance the scales. It is about guiding people through difficult issues to fair conclusions while honoring trust and delivering justice.

What motivated or inspired you to run for a judgeship?

I was inspired to run for judgeship to be the change I want to see, restore faith in the judicial system, and ensure equity and fairness for everyone. My leadership and compassion, shaped by years of service, aim to uphold integrity, honor trust, and create lasting justice for all.

What changes, if any, do you intend to bring to your court when you take the bench?

I am reviewing current procedures to determine what works and what can be improved. My main focus is on efficiency and ensuring fair, impartial outcomes. I aim to foster trust in the judicial system by prioritizing equity, transparency, and respectful treatment for everyone who comes before the court.

Family District Court Lillian Alexander – 507th Family Court What motivated or inspired you to run for a judgeship?

As a working parent, I understand the delicate balance families face, especially during difficult transitions. My journey as an attorney representing parents taught me the importance of having a

judge who truly understands the challenges families endure. I was inspired to create a courtroom where compassion, fairness, and children-centered outcomes guide every decision.

What changes, if any, do you intend to bring to your court when you take the bench?

I will prioritize efficient processes, clear communication, and support for families navigating the system. I want every person who steps into my courtroom to feel respected and leave with clarity, dignity, and the resources they need to move forward.

What qualities have you seen in other judges that you hope to emulate when you take the bench?

I have admired judges who lead with empathy and fairness, balancing authority with kindness. Their ability to listen deeply, maintain professionalism, and build trust inspires me. I want to emulate that by fostering a courtroom that feels respectful, supportive, and committed to delivering just outcomes.

Criminal District Court Emily Muñoz Detoto – 177th Criminal Court What motivated or inspired you to run for a judgeship?

For as long as I can remember, I have always had a passion to serve. As a student, I was involved in student council. In college, I served in our campus government.

I have served as an officer in various lawyer organizations.

Additionally, I have always had a passion for criminal law. As a law student, I participated in the Criminal Justice Clinic at St. Mary’s University School of Law and tried cases under the supervision of a senior lawyer. After graduating, I served as a briefing attorney at the Texas Court of Criminal Appeals, where I worked directly under a judge authoring draft opinions. I believe it is a combination of all of these experiences that informed my decision to run for judge. I decided to run for judge because I believe it is important for those who have the passion for service, as well as to the ability to do so, to answer the call to serve.

What changes, if any, do you intend to bring to your court when you take the bench?

I intend to treat all parties with respect. I intend to be respectful and cognizant of the attorneys’ schedules and move the docket along in an efficient manner.

Stacy Allen Barrow – 487th Criminal Court What motivated or inspired you to run for a judgeship?

The needs of the people of Harris County compelled me to run for this judgeship.

During my nearly three-year tenure as a felony associate judge, I saw opportunities to implement changes that would enhance safety, fairness, and public confidence in our criminal justice system. Running for the 487th provided me with an expansive path to serve my community.

What changes, if any, do you intend to bring to your court when you take the bench?

Dignity, fairness, integrity, and impact are the guiding principles of my judgeship. One of the many changes I intend to bring to the 487th is broadening the resources we offer young and first-time probationers so they are empowered with new tools that will decrease the likelihood of recidivism.

What qualities have you seen in other judges that you hope to emulate when you take the bench?

In felony courts, we deal with vulnerable people in unimaginable circumstances. The qualities I emulate from judges that I admire include ensuring that everyone is treated with dignity and that everyone has an opportunity to be heard.

Jaclyn Barbosa is the founding attorney of Jaclyn I. Barbosa, Attorney at Law, PLLC, a Houston-based firm focused on business and employment litigation, as well as Name, Image, and Likeness (NIL) matters. She is dedicated to providing strategic legal solutions for creators, small businesses, and entrepreneurs. She is a member of The Houston Lawyer editorial board.

Jessica Crutcher is a mediator, arbitrator, and attorney at Jessica Crutcher Law PLLC and is a member of The Houston Lawyer editorial board.

Ciara Perritano is a litigation associate at Winstead PC and a member of The Houston Lawyer editorial board. She served as the guest editor of this issue.

Kyle Steingreaber is an associate with Wright Close & Barger, LLP. He represents clients at every stage of the appellate process and has experience handling high-stakes cases on both sides of the docket for everyone from Fortune 50 companies to individuals. He is the Media Reviews editor for The Houston Lawyer.

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By David J. Beck

Warning:

Using AI May Be Injurious to Your Ethical Health

S

I. Introduction everal months ago, a friend of mine introduced a speaker at a meeting of trial lawyers.

He told the audience that he had used artificial intelligence (“AI”) to prepare the introduction, and he then read it to us verbatim. It was a beautiful introduction. There was, however, one serious problem. Certain quotes included were completely fabricated, as the introducer frankly acknowledged. The lesson we learned that day was, if you use AI in your law practice, it is critical you be aware of both the risks inherent in its use, as well as its effect on your ethical obligations.

Plainly, AI is not ready to replace the lawyer’s professional judgment, as a recent survey of Texas lawyers confirms.

A 2024 survey by the State Bar of Texas Law Practice Management Program indicated that 67% of responders do not use AI at all in their law practice, and 49% do not use AI because of ethical concerns.1

II. AI and Generative AI The National Artificial Intelligence Initiative Act of 2020 defines “artificial intelligence” as “a machine-based system

that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments; abstract such perceptions into models through analysis in an automated manner; and use model inference to formulate options for information or action.”2 To be sure, AI technology continues to advance, and AI is now capable of performing legal research, document analysis, and other tasks designed to save time and increase efficiency. That is a good thing. Nevertheless, lawyers must consider the ethical challenges AI and generative AI present.

Generative AI is an artificial intelligence technology that produces new text, images, audio, and other content based on data. Generative AI represents a major advancement in artificial intelligence, enabling the creation of unique content beyond AI’s original scope. Generative AI handles tasks like document summarization and text editing, allowing others to manage other work more effectively. There are benefits to AI and generative AI (hereafter collectively, “AI”), but you cannot ignore the risks presented by its use, which includes, but are not limited to: • Producing “hallucinations,”3 or inaccurate or incomplete output; • Exposing confidential firm or client information to unauthorized persons; • Exposing the firm or its lawyers to lawsuits alleging malpractice, breach of fiduciary duty, or other claims; and • Violating ethical rules.

III. The Applicable Texas Ethical Rules In Texas, the use of AI triggers a number of ethical duties. Accordingly, lawyers using AI have the ethical responsibility to understand the technology and how it works, the benefits and the risks of the technology, the obligation to verify all citations and materials in any filings, and to educate the client about your intention to use AI. In some instances, you may even need to obtain the client’s con-

sent to the use of AI, for example, where confidentiality is a concern. Failure to satisfy any of these obligations runs the risk of violating various Texas Disciplinary Rules of Professional Conduct, including: • Rule 1.01(a), Comment 8. Competence and Diligent Representation: A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence. Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law, including the benefits and risks associated with relevant technology.

• Rule 1.05. Safeguarding Client Information: Lawyers must safeguard information relating to the representation of a client and ensure that AI systems handling confidential data adhere to confidentiality obligations; • Rule 1.09. Conflict of Interest: Lawyers must identify and address potential conflicts of interest arising from using AI; • Rule 3.03. Candor Toward the Tribunal: Lawyers must ensure the accuracy and relevance of the citations provided by AI that one uses in legal documents or arguments; • Rule 5.01. Responsibilities of a Partner or Supervisory Lawyer: Lawyers must supervise those using AI to ensure compliance with Texas Disciplinary Rules. A lawyer is subject to discipline because of another lawyer’s violation of the rules of professional conduct, if the lawyer is a supervising lawyer and encourages or knowingly permits the impermissible conduct involved; and • Rule 5.05(b). Unauthorized Practice of Law: Lawyers must ensure that they are not assisting someone in the unauthorized practice of law.

To the extent an AI programmer is not a lawyer and is providing

legal analyses, that programmer may violate Rule 5.05 regarding the unauthorized practice of law.

IV. ABA Formal Opinion On July 29, 2024, the American Bar Association (“ABA”) issued a formal opinion titled “Generative Artificial Intelligence Tools.”4 The opinion addresses the ethical ramifications of lawyers using AI in their practice and provides helpful guidance to practitioners.

Similar to Texas Disciplinary Rule 1.01(2), the ABA opinion reminds lawyers that they are required to have a reasonable understanding of the capabilities, limitations, benefits, and risks of using AI. In other words, because of the risk of inaccurate output or so-called “hallucinations,” independent verification of the output is necessary. Moreover, according to the opinion, users must evaluate the AI technology being used, analyze the output, not rely solely on the technology’s conclusions, and understand that

AI cannot replace the lawyer’s judgment.

The opinion also points out that lawyers are required to obtain the client’s informed consent before using AI. The lawyer therefore must inform the client of the use of AI, the risk of using it, and obtain the client’s informed consent for certain purposes before its actual use.

Importantly, the opinion states that “merely adding general, boiler-plate provisions to engagement letters...is not sufficient” to meet this requirement.

V. Other States’ AI Ethics Decisions At least 16 states or courts have issued reports, ethics opinions, or judicial decisions focused on the ethical considerations inherent in the use of AI. For example, a Florida State Bar ethics opinion concluded that lawyers may use AI in the practice of law but must (1) protect the confidentiality of client information, (2) provide accurate and competent services, (3) avoid improper billing practices, and (4) comply with applicable restric-

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tions on lawyer advertising.5 Similarly, the New York State Bar Association Task Force Report provides (1) an extensive history and analysis of the evolution of AI, (2) the benefits and risks of its use, (3) the impact of AI on the legal profession, (4) a legislative overview and recommendations, and (5) AI guidelines under its Rules of Professional Conduct.6 In California, the State Bar Standing Committee on Professional Responsibility and Conduct issued a report, explaining that: Generative AI use presents unique challenges; it uses large volumes of data, there are many competing AI models and products, and, even for those who create generative AI products, there is a lack of clarity as to how it works. In addition, generative AI poses the risk of encouraging greater reliance and trust on its outputs because of its purpose to generate responses and its ability to do so in a manner that projects confidence and effectively emulates human responses. A lawyer should consider these and other risks before using generative AI in providing legal services.7 The State Bar of Michigan addressed judicial competence and AI in an ethics opinion, concluding that judicial officers need to maintain competence with advancing technology, especially artificial intelligence, and how it affects their conduct and decisions.8 That ethics opinion provides examples of how AI can pose ethical dilemmas, such as bias, partiality, or accuracy, and how AI can assist judges in tasks like docket management, legal research, drafting documents, or answering questions.

Most recently, in 2024, the New Jersey Supreme Court Committee on Artificial Intelligence and the Courts issued its “Preliminary Guidelines On New Jersey Lawyers’ Use of Artificial Intelligence.” The guidelines explain that the use of AI does not change the lawyer’s duty to (1) be accurate and truthful, (2) be honest and candid when communicating, (3) preserve confidentiality, (4) prevent misconduct, including discrimination, and (5) provide oversight to 16 January/February 2025

lawyers, nonlawyer staff and others.9 VI. Texas’ Response In Texas, the State Bar’s Task Force for Responsible AI in the Law, created in 2023, has as its mission “to study the use of artificial intelligence in the legal profession, including ethical considerations, and make recommendations, if any, to the board of directors consistent with Tex. Govt. Section 81.012.”10 The task force issued an interim report, which “represents an initial step in understanding the integration of AI with the legal profession.”11 Among other things, the interim report warns that Texas lawyers using AI “face the risk of violating various disciplinary rules...”12 Texas courts have been quick to address Texas lawyers’ use of AI. For example, Rule I (j) of the Local Rules of the Courts of Williamson County, Texas currently provides in pertinent part: While [AI] technology is developing quickly, it is currently unreliable and prone to bias, and often fabricates information. The creators of these systems are not attorneys of record, licensed and in good standing to practice law in the State of Texas, and are not bound by the Texas Disciplinary Rules of Professional Conduct. ...

As a result, all self-represented litigants and attorneys who utilize any form of artificial intelligence for legal research or drafting in connection with a case shall, before using any AI-generated information in a court submission or proceedings, ensure that such information is accurate and correctly portrayed to the court, and shall sign and submit the Certificate Regarding Use of Artificial Intelligence (Exhibit A) and attach it to any filing where AI-generated information is used.13 Moreover, the Texas Supreme Court Advisory Committee and the Federal Rules Advisory Committee are now studying potential procedural and evidentiary rule changes to address this rapidly developing technology.

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VII. Courts’ Responses to AI In addition to ethics opinions and the issuance of reports addressing the risks inherent in its use, courts also are beginning to address the problems associated with AI and are developing potential solutions.

For example, some courts are mandating lawyer disclosures when any document submitted is based in whole or in part on AI. In 2023, a federal judge in the U.S. District Court for the Northern District of Texas entered a standing order requiring a Mandatory Certification Regarding Generative AI.14 According to the order, AI “is the product of programming devised by humans who did not have to swear [a lawyer’s] oath. As such, these systems hold no allegiance to any client, the rule of law, or the laws and Constitution of the United States.” Although the novel standing order made news, the judge has since removed that requirement from his court’s specific requirements.15 A fellow judge in the same district, however, has adopted essentially the same standing order, which provides: All attorneys and pro se litigants appearing before the Court must, together with their notice of appearance, file on the docket a certificate attesting either that no portion of any filing will be drafted by generative artificial intelligence (such as ChatGPT, Harvey.AI, or Google Bard) or that any language drafted by generative artificial intelligence will be checked for accuracy, using print reporters or traditional legal databases, by a human being.16 Similarly, a federal judge in Pennsylvania issued a standing order requiring that counsel disclose whether they have used AI in the preparation of any complaint, answer, motion, brief, or other paper filed with the court,17 and a Magistrate of the U.S. District Court for the Northern District of Illinois issued a standing order requiring “[a]ny party using any generative AI tool in the preparation or drafting of documents for filing with the court must disclose in the filing that generative AI was used to conduct legal research and/or to draft the document.”18

Other courts have entered similar rulings: • A judge of the U.S. Court of International Trade issued an order on AI requiring disclosure of any generative AI program used and of all portions of text drafted with the assistance of generative AI, as well as certification that the use of the generative AI tool did not disclose confidential information to unauthorized parties.

The judge expressed his concern that generative AI tools “that supply natural language answers to user prompts, such as ChatGPT or Google Bard, create novel risks to the security of confidential information.”19 • A judge of the U.S. District Court for the Eastern District of Pennsylvania issued an order requiring the disclosure of any type of AI as opposed to limiting the disclosure requirement to the use of generative AI.20 • A Magistrate of the U.S. District Court for the Northern District of California issued a standing order that addresses the difference between generative AI and tools that use other categories of AI, and stated that the disclosure requirement does not apply to the use of traditional AI, such as “the use of traditional legal research, word processing, spellchecking, grammar checking or formatting software tools (e.g., Lexis, Westlaw, Microsoft Word, or Adobe Acrobat).”21 The judge’s order addresses the disclosure requirements for AI and filings with the court, AI and confidentiality, AI and evidence which includes recognition that “AIgenerated documents or materials (for example, created by a party prior to the commencement of litigation) are or may become exhibits, evidence or the subject of factual disputes in an action.”

District of New York sanctioned lawyers because the lawyers “abandoned their responsibilities” when they submitted an AI-written brief using ChatGPT and “then continued to stand by the fake opinions after judicial orders called their existence into question.”

The individual lawyers and their law firm were fined $5,000 each. In People v. Crabill, a lawyer was suspended for one year and one day for citing cases created by ChatGPT that were not actual cases in a motion.23 The U.S. Court of Appeals for the Ninth Circuit recently struck a brief containing false authority drawn from AI.24 Other courts have imposed various non-monetary sanctions attributable to the use of AI. The U.S. Court of Appeals for the Second Circuit referred a lawyer to a grievance panel for relying on ChatGPT without checking its results and for citing a non-existent decision in a reply brief.25 The Missouri Court of Appeals struck a pro se appellant’s appeal for filing a brief containing fictitious case citations gener-

ated by AI, reasoning it represented a flagrant violation of duties of candor owed to the court, which rose to the level of abuse of the judicial system.26 IX. Conclusion Given the risks involved with AI, both ethically and otherwise, lawyers should ask several questions before using AI in legal practice: • Does the lawyer using AI possess sufficient knowledge of AI to satisfy the ethical duty of competence required by Texas Disciplinary Rule 1.01(2)? Has the client been informed of its use, and agreed?

• Who in the law firm will be responsible for supervising AI’s use, as required by Texas Disciplinary Rule 5.01?

• Is there a risk that using AI will result in confidential client information being communicated outside the firm, contrary to the requirements of Texas

VIII. Sanctions Imposed by Misuse of AI Misuse of AI has even resulted in sanctions being imposed on lawyers and their law firms. For example, in Mata v.

Avianca, Inc.,22 a court in the Southern thehoustonlawyer.com

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Disciplinary Rule 1.05?

• Does AI impermissibly use confidential client information provided on behalf of one client for any response to requests made on behalf of any other client, as prohibited by Texas Disciplinary Rule 1.09?

• What steps will be taken to ensure the accuracy of AI in any court or administrative filing, as required by Texas Disciplinary Rule 3.03?

• Will reliance on AI legal analysis provided by a non-lawyer run the risk that you are assisting in the unauthorized practice of law, according to Texas Disciplinary Rule 5.05(b)?

Courts, ethical committees, and lawyers are all struggling with how to utilize the new and developing AI technology, while at the same time honoring ethical obligations. Providing answers to these fundamental questions will go a long way toward satisfying those twin objectives.27

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David J. Beck, formerly a senior partner at Fulbright & Jaworski in Houston, Texas, founded Beck Redden L.L.P. in January 1992. Mr. Beck previously served as president of the State Bar of Texas; was selected as a Fellow of the American College of Trial Lawyers, and eventually served as its president.

In 2022, he was named a “Legal Legend” by the Litigation Section of the State Bar of Texas. He has been included in The Best Lawyers in America© for over thirty years, in eight separate areas of litigation practice.

Endnotes 1. State Bar of Texas Taskforce for Responsible AI in the Law 2023-24 Year-End Report, p.26, https://www. texasbar.com/AM/Template.cfm?Section=Meeting_Agendas_and_Minutes&Template=/CM/ContentDisplay. cfm&ContentID=64635 (last visited January 4, 2025).

2. H.R. 6216, 116th Cong. § 3(3) (2020).

3. A “hallucination” is an algorithm result that creates inaccurate or nonsensical output. See IBM, What are AI hallucinations?, http:// https://www.ibm.com/think/topics/ai-hallucinations (last visited Jan. 2, 2025).

4. ABA COMM. ON ETHICS AND PROF’L RESPONSIBILITY,

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Formal Op. 512 (2024).

5. FLA. STATE BAR ASS’N COMM. ON PRO. ETHICS, Informal Op. 24-1 (2024).

6. N.Y. Bar Ass’n Task Force Report (2024), https://nysba.org/ app/uploads/2022/03/2024-April-Report-and-Recommendations-of-the-Task-Force-on-Artificial-Intelligence.pdf?s rsltid=AfmBOoqLFtepnkJFxA1y0x_VtAJ-UT9d2v7ItB2LBpnCM-jE9GdGyRP4.

7. CAL. STATE BAR STANDING COMM. ON PRO. RESP. AND CONDUCT, Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law (2023), https://www.calbar.ca.gov/Portals/0/documents/ethics/ Generative-AI-Practical-Guidance.pdf.

8. Mich. Ethics Op. JI-155 (2023).

9. N.J. Cts., Notice to the Bar, Legal Practice: Preliminary Guidelines on the Use of Artificial Intelligence by New Jersey Lawyers (2024), https://www.njcourts.gov/sites/default/files/notices/ 2024/01/n240125a.pdf.

10. STATE BAR OF TEX. TASKFORCE FOR RESPONSIBLE AI IN THE LAW, Fiscal Impact Analysis, https://www. texasbar.com/AM/Template.cfm?Section=Meeting_Agendas_and_Minutes&Template=/CM/ContentDisplay. cfm&ContentID=64636.

11. STATE BAR OF TEX. TASKFORCE FOR RESPONSIBLE AI IN THE LAW, Interim Report to the State Bar of Tex. Bd. of Dir., https://www.texasbar.com/AM/Template.cfm?Section =Meeting_Agendas_and_Minutes&Template=/CM/ContentDisplay.cfm&ContentID=62597.

12. Taskforce for Responsible AI in the Law Interim Report to the State Bar of Texas Board of Directors, pg. 4, https://www. texasbar.com/AM/Template.cfm?Section=Immediate_ Pa st _ P re sident&Templ ate = /C M /Content D i s pl ay. cfm&ContentID=63475 (last visited January 5, 2025). At the August 16, 2024 meeting of the Texas Supreme Court Advisory Committee (“SCAC”), the Subcommittee on Rules 1-14c reported on potential rule amendments to address the use of artificial intelligence, including suggested changes to Tex. R. Civ. P. 226a. Those suggestions have been referred to SCAC’s subcommittee on Rules, and it is to report its work on these issues to the full Committee at its November 2024 meeting.

13. Williamson County (Tex.) Dist. Ct. Loc. R. I., J. 14. Lyle Moran, Federal Judge Seeks to Prevent Generative AI Mistakes in Briefs, LEGAL DIVE, June 1, 2023, https://www. legaldive.com/news/generative-ai-hallucinations-federaljudge-order-on-ai-brantley-starr/651817/.

15. Starr J., Judge Specific Requirements, https://www.txnd.uscourts.gov/judge/judge-brantley-starr.

16. Kacsmaryk J., Judge Specific Requirements: Mandatory Certification Regarding Generative Artificial Intelligence, https:// www.txnd.uscourts.gov/sites/default/files/documents/KacsmarykAICert.doc.

17. Baylson J. Standing Order, In Re: Artificial Intelligence (“AI”) in Cases Assigned to Judge Baylson (June 6, 2023), paed.uscourts.gov/sites/paed/files/documents/procedures/Standing%20Order%20Re%20Artificial%20Intelligence%20 6.6.pdf.

18. Fuentes J., Standing Order for Civil Cases at 15–16, htt ps: //w w w.ilnd.uscour t s.gov/judge- cmp - det ail. aspx?cmpid=1071.

19. Vaden J., Order on Artificial Intelligence, https://www.cit. uscourts.gov/sites/cit/ 20. Cole J., Case Procedures: Artificial Intelligence, https://www. ilnd.uscourts.

21. Kang J., Civil Standing Order PHK 001 at 8–13, https://www. cand.uscourts.gov/wp-content/uploads/judges/kang-phk/ Civil-Standing-Order-PHK-001.pdf.

22. Mata v. Avianca, Inc., 678 F. Supp. 3d 443 (S.D.N.Y. 2023).

23. People v. Crabill, 23PDJ067, 2023 WL 8111898, at *1 (Colo.

O.P.D.J. Nov. 22, 2023).

24. Golriz Chrostowski, Analysis: Sanctions for Fake Generative AI Cites Harm Clients, BLOOMBERG LAW (Apr. 3, 2024, 4:00 AM), https://news.bloomberglaw.com/bloomberg-lawanalysis/analysis-sanctions-for-fake-generative-ai-citesharm-clients.

25. Park v. Kim, No. 22-2057, 2024 WL 332478 (2d Cir. Jan. 30, 2024).

26. Kruse v. Karlen, 692 S.W.3d 43, 48 (Mo. Ct. App. 2024).

27. The National Center for State Courts’ AI Rapid Response Team has published a new comprehensive report, “Guidance for Use of AI and Generative AI in Courts”, that highlights AI’s potential benefits and challenges for courts and provides helpful recommendations. See NATIONAL CENTER FOR STATE COURTS, Artificial Intelligence: Guidance for Use of AI and Generative AI in Courts (Aug. 7, 2024), https://www.ncsc.org/__data/assets/pdf_file/0014/102830/ ncsc-artificial-intelligence-guidelines-for-courts.pdf.

By Gerald M. Birnberg

The First Amendment Meets the Internet— Why Won’t This Round Peg Go Into That Square Hole?

A

survey of Supreme Court cases applying First Amendment doctrines to regulation of the internet suggests the justices have experienced considerable difficulty adapting traditional legal principles to the digitally-dominated technologies that have fundamentally transformed the nature of modern communications.

Early Supreme Court Cases Reno v. ACLU, 521 U.S. 844 (1997) was the first Supreme Court case to consider the interplay between the First Amendment and the internet. The underlying lawsuit involved a constitutional challenge to 47 U.S.C. § 230 (“Section 230”), which provides expansive immunity to providers of interactive computer services for claims based on third-party content that appears on their websites.1 Under Section 230, providers cannot be held liable for content moderation decisions they make excluding disfavored users or content from their platforms.

Section 230 has become the foundational law–the sine qua non–for the internet and the rise of social media platforms.

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Without it, it is doubtful social media sites would even exist.

In Reno, the Court concluded that traditional “strict scrutiny” analysis must be applied to First Amendment challenges to laws governing the internet.

Accordingly, the Court struck down restrictions on “indecent” and “patently offensive” content as an overly broad, content-based regulation of speech for which less restrictive alternatives were available to achieve the legitimate purposes the statute was enacted to serve.

Next, in Ashcroft v. ACLU, 535 U.S. 564 (2002), the Court confronted the issue of whether “community standards” could be constitutionally applied in determining whether sexually explicit material available on the internet is “obscene.” The Court upheld the challenged statute (the Child Online Protection Act, 47 U.S.C. § 231) and its adoption of the Miller v. California, 413 U.S. 15 (1973) test for obscenity, including reliance on “contemporary community standards” in making that determination. However, two years later in Ashcroft v. ACLU, 542 U.S. 656 (2004), the Court declared the statute unconstitutional because avail-

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able filtering software provided a less restrictive alternative capable of achieving the objectives of the statute. Congress ultimately addressed the constitutional deficiencies which had resulted in invalidation of its efforts to control child pornography in Reno and Ashcroft through later legislation.2 The Court’s next foray into the quagmire of First Amendment restraints on efforts to control the internet occurred in Packingham v. North Carolina, 582 U.S. 98 (2017), in which the justices invalidated a North Carolina statute making it a felony for registered sex offenders to access social networking websites where minor children might be online. Declaring the internet in general and social media in particular “the most important places for the exchange of views,”3 the Court undertook “to address the relationship between the First Amendment and the modern Internet.” Invoking traditional, twentieth-century First Amendment analytical constructs, the Court assumed the statute was subject to “intermediate scrutiny” and invalidated the law because it was “not narrowly tailored to serve a significant governmental interest...[because it] burden[s] substantially more speech than is necessary to further the government’s legitimate interests.”4 Recent Developments In 2023, the Court decided Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023) and Gonzalez v. Google LLC, 598 U.S. 617 (2023)—two cases in which the plaintiffs had sought damages from social media companies for injuries suffered during ISIS terrorist attacks, alleging the social media companies had aided and abetted ISIS by knowingly allowing the terrorist organization to use their platforms to recruit new terrorists and to raise funds for terrorism, without taking steps to stop it from doing so.

Indeed, “recommendation” algorithms developed and employed by the defendants allegedly assisted ISIS by directing viewers most probably interested in the

terrorists’ message to sites on the platforms where they could obtain that indoctrination and placing radical content near users most likely to read it.

The Supreme Court concluded those allegations, even if assumed to be true, were nonetheless inadequate to state a claim upon which relief could be granted, because they failed to establish a nexus between the radicalization and recruitment of new ISIS supporters in general and the specific horrors occurring during the specific attacks at issue.

Aiding and abetting liability, the Court ruled, requires conscious and culpable participation in the particular tortious event, which is the basis of the lawsuit.

Recognizing Section 230 to be “increasingly important,” Justice Thomas previously called on the Court to find an “appropriate case” to decide the “correct interpretation of § 230,” which he argued, should result in a “paring back” of the “sweeping immunity” that lower courts had read into Section 230.5 Although addressed by the lower court in Gonzalez v. Google, the Supreme Court failed to consider the application of Section 230, as it reached its conclusion without wading into those murky waters. Accordingly, extraordinarily important questions concerning the scope and applicability of Section 230 remain unaddressed and unresolved by the Supreme Court.

In Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton, 603 U.S. 707 (2024), the Court faced challenges to statutes enacted by Florida and Texas that significantly curtailed internet platforms’ ability to engage in content moderation (that is, site owners’ exclusion, alteration, prioritization, or labeling of materials third-party users wish to post but the platforms’ prefer to bar, alter, or filter). Due to errors in the underlying analysis, the Supreme Court vacated both judgments and remanded the cases to the Fifth and Eleventh Circuits to consider the cases as facial challenges, rather than as-applied claims.

In protracted dicta, the Court did,

however, decisively reject Texas’ contention that its interest in balancing the marketplace of ideas would satisfy First Amendment scrutiny. The Court thoroughly repudiated the Fifth Circuit’s holding that content choices made by social media platforms are not speech at all,6 and condemned that ruling as betraying a “serious misunderstanding of First Amendment precedent and principle.”7 Ordering a party to provide a forum for someone else’s views, the Court reminded, unquestionably violates the First Amendment. “[T]he editorial function itself is an aspect of speech.”8 And, “[o]n the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.”9 Two other cases during the 2023 term underscore the constitutional peril government can get itself into, even if all it seeks to do is merely influence (as op-

posed to compel) the contents of websites. In Murthy v. Missouri, 603 U.S. 43 (2024), plaintiffs alleged that federal officials’ efforts to persuade internet platforms to control the spread of “misinformation” on their sites amounted to government-sponsored censorship violative of the First Amendment. The Court never reached the merits of those allegations, however, because the plaintiffs lacked Article III standing to obtain an injunction. There was no showing that the platforms had acted because of the governments urging in the past, nor that the government would ask them to do so, or that the platforms would defer to government beseeching in the future.

Moreover, the plaintiffs failed to show that “a particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff’s speech on that topic.”10 Nevertheless, the underlying message of Murthy is unmistakable: if gov-

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ernment successfully persuades social media platforms to exclude disfavored speech, a First Amendment violation has occurred (for which the government is responsible).11 While government may express its own point of view,12 government officials may not coerce private entities to suppress speech by subtle or implied threats of potentially crippling consequences for noncompliance.13 There is a constitutionally significant distinction between attempts to persuade, which are permissible, and state action which coerces, which is not.

NRAA v. Vullo is instructive in this regard. In that case, the superintendent of the New York Department of Financial Services had allegedly pressured insurance companies (over which she possessed regulatory authority) to cease underwriting firearms-related insurance policies and to discontinue providing insurance to gun groups in an effort to help her stifle the NRA’s pro-gun advocacy. If proved at trial, the Court concluded that this would constitute a violation of the First Amendment. “A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.”14 In Lindke v. Freed, 601 U.S. 187 (2024), the Court addressed when blocking a member of the public’s access to a social media site operated by a state employee constitutes “state action,” triggering constitutional constraints. In that case, Freed, a city manager, maintained a public Facebook page he created as a college student, well before he became a city official, on which he posted about his personal life and information related to his job. Lindke, a private citizen unhappy with the city’s “abysmal” response to the COVID-19 pandemic, posted relentlessly and critically on Freed’s Facebook page. Freed responded initially by deleting Lindke’s unwelcome comments, but ultimately blocked him.

Lindke sued claiming Freed had violated his constitutional rights to freedom of speech by excluding him from the site, which Lindke characterized 22 January/February 2025

as a “public forum” for First Amendment purposes. Liability depended on whether Freed acted as a private person or a government official in deleting unfavorable posts and blocking people who made them (since the First Amendment only covers actions by the state censoring speech). The Court unanimously held that resolution of that determinative fact required ascertainment of (a) whether the person operating the site had actual authority to speak on behalf of the state and (b) whether that person “purported to exercise that authority when he spoke on social media.” Unless both of those circumstances are present, the speech-suppressive conduct of the public official is not attributable to the state and, therefore, no constitutional violation has been shown.15 Looking Ahead Importantly, this journey regarding applying free speech principles in the digital age is far from over. This term, for example, the Court confronts a question concerning the standard of scrutiny, which governs determination of the constitutionality of state laws regarding age verification for entry into websites containing “non-obscene,” but sexually explicit, content, in order to bar minors from gaining admittance.16 Is it strict scrutiny analysis, which would require a showing that the regulation does not unnecessarily burden adults’ access to protected speech (as is required by Ashcroft v. ACLU, 542 U.S. 656 (2004)), or rational-basis review (as suggested

by Ginsberg v. New York, 390 U.S. 629 (1968)), which would be satisfied simply by the fact that the state has a legitimate interest in restricting minors’ ability to view sexual materials?

Other monumentally important cases are percolating in the lower courts. One of those is Anderson v. TikTok, Inc. and Bytedance, Inc., 116 F.4th 180 (3d Cir. 2024) in which the Third Circuit held that a social media platform was not shielded from liability under Section 230 where the platform’s algorithm rec-

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ommended and promoted material posted on the site by third parties, and those postings encouraged a minor to engage in conduct which caused her death.

The consequences of that ruling could not be more existentially threatening nor devastating to interactive computer services. Use of algorithms is essential to commercial social media platforms both to control content (to prevent sites from being used for illicit, illegal, or undesired purposes) and to execute the site’s business models (which depend for profitability on the effectiveness of matching advertisements to interests of site users—a critical function algorithms perform). If doing so, however, forfeits Section 230 immunity and exposes platforms to liability for harm caused by postings of its users—Houston, we have a problem.

Other significant First Amendment/ internet cases in the pipeline include NetChoice, LLC v. Bonta, 113 F.4th 1101 (9th Cir. 2024) (challenging on First Amendment grounds the California Age-Appropriate Design Code Act, which requires online businesses to assess and mitigate risks to children); X Corp. v. Bonta, 116 F.4th 888 (9th Cir. 2024) (declaring unconstitutional California law requiring social media companies to submit semiannual reports detailing content moderation steps taken with regard to hate speech or racism, extremism or radicalization, disinformation or misinformation, harassment, foreign political interference, and controlled substance distribution); and Computer & Communications Industry Ass’n and NetChoice, LLC v. Paxton, ___ F.Supp.3d ___, No. 1:24-CV-849RP, 2024 WL 4051786 (W.D. Tex., Aug. 30, 2024) (preliminarily enjoining Texas law requiring social media companies to identify minors and monitor and filter out content for topics like self-harm and substance abuse from young users on grounds it violates First Amendment and is preempted by § 230). Any of those cases is a good prospect for a grant of certiorari.

Conclusion The Supreme Court’s free speech jurisprudence is in critical need of reconsideration, re-calibration, and retooling to deal with an online world in which private actors (social media platforms) using sophisticated computer algorithms and complex content-moderation policies promote more speech to favored status than any state official ever could (or would) and suppress more expression than any government censor ever contemplated. The challenge the Supreme Court faces is, indeed, daunting: it must urgently develop a new jurisprudential framework to deal with the transmogrification in communications which the internet has produced (and the continuing, daily transmutation of those platforms). And the transformation of public discourse will demand more juridical change than merely modifying the terminology of existing doctrines to new technologies. Will the current Court be up to that pressing and complex task?

Can the First Amendment old dog be taught new constitutional tricks? Time will tell, but the tenuous future of free speech rests perilously and precariously on the answer.

Gerald M. Birnberg is a TBLS Board Certified Civil Appellate Law specialist who teaches First Amendment Law and Recent U.S. Supreme Court Cases at South Texas College of Law Houston. His private practice, Law Office of Gerald M. Birnberg, concentrates on civil rights issues and alternate dispute resolution. He has been practicing law for 53 years and is a long-time member of the HBA. He is the 2024-2025 Law Chair of the HBA Law and the Media Committee.

Endnotes 1. See, Valerie C. Brannon and Eric N. Holmes, Section 230: An Overview, CONG. RSCH. SERV., Report No. R46751, at page

2 (updated January 4, 2024), https://crsreports.convress.gov.

2. See United States v. Williams, 553 U.S. 285, 307 (2008).

3. At the time, Facebook had 1.79 billion active users – “about three times the population of North America.” Packingham, 582 U.S. at 104. Today, Facebook users share more than 100 billion messages every day and more than 500 hours of video are uploaded onto YouTube every minute. Moody v. NetChoice, LLC., 603 U.S. ___, 144 S.Ct. 2383, 2395 (2024).

4. 582 U.S., at 105-06.

5. Malwarebytes, Inc. v. Enigma Software Group USA, LLC, 592 U.S. ___, 141 S.Ct. 13 (2020) (Statement of Thomas, J., respecting denial of certiorari); see also, Gonzalez v. Google, LLC, 2 F.4th 871, 937 (9th Cir. 2021) (Gould, J., concurring in part) (urging Supreme Court to address Section 230 immunity).

6. “[T]he editorial judgments influencing the content of those feeds are, contrary to the Fifth Circuit’s view, protected expressive activity. And Texas may not interfere with those judgments simply because it would prefer a different mix of messages.” Moody, 144 S.Ct., at 2409.

7. Id. at 2399.

8. Id. at 2401-02 (quoting Denver Area Ed. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 737 (1996)).

9. Id. at 2407.

10. Murthy, 603 U.S. at 62.

11. See id. at 76 (Alito, J., dissenting).

12. See, e.g., Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) (discussing the government speech doctrine).

13. NRAA v. Vullo, 602 U.S. 175 (2024).

14. Id. at 190.

15. See also, O’Connor-Ratcliff v. Garnier, 601 U.S. 205 (2024) (same fact situation as Lindke; certiorari granted to resolve circuit split (between Garnier and Lindke); lower court judgment vacated and case remanded for reconsideration in view of Lindke).

16. Free Speech Coalition, Inc. v. Paxton, No. 23-1122, ___ U.S. ___, 144 S.Ct. 2714 (2024) (granting petition for writ of certiorari, argued January 15, 2025).

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By Mike Hanson

The Success Through Addiction Recovery (STAR) Drug Court

T

he Success Through Addiction Recovery (STAR) Drug Court, operated by the Harris County Community Supervision and Corrections Department, has served as a critical resource for nearly two decades in addressing substance use disorders among non-violent offenders.

This specialized court provides an alternative to traditional criminal justice proceedings for high-risk individuals whose criminal behavior is driven by addiction.1 Through an intensive, multiphase treatment process, the STAR Court empowers participants to break free from addiction, avoid future criminal behavior, and reintegrate into society as productive, law-abiding citizens.

The STAR Drug Court operates using a collaborative, multi-disciplinary model, with a diverse team of professionals guiding participants through their recovery. The program is divided into four gender-specific courts, each monitored by a judge, prosecutor, defense attorney, probation officer, counselors, recovery coaches, and additional support staff.

These gender-specific courts are designed to tailor treatment plans and support systems that account for the distinct challenges faced by men and women in recovery, further enhancing the effectiveness of the program. This approach ensures that

each participant receives individualized care, attention, and supervision, crucial for sustained recovery.

At the core of the STAR Drug Court’s success is its ability to integrate resources from both the criminal justice system and the fields of mental health and substance abuse treatment. This partnership fosters a rehabilitative environment that addresses the root causes of criminal behavior—addiction and mental health struggles—rather than focusing solely on punishment. By treating these underlying issues, the program aims to reduce recidivism, promote sobriety, and break the cycles of addiction and crime that trap many individuals.

Multi-Phased Programming The STAR Drug Court operates through a structured four-phase intervention program designed to help participants develop the skills, tools, and support necessary for long-term recovery.2 The program lasts between 18 and 24 months, depending on individual progress, and is designed to offer increasing levels of support as participants advance through each phase.

The first phase is characterized by intensive supervision, requiring participants to attend frequent court hearings, undergo random drug and alcohol testing, and participate in both individual and group counseling. This phase focuses on addressing immediate challenges, helping participants begin their recovery journey and transition toward an alcohol and drug-free lifestyle.

In the second and third phases, the focus shifts to building skills for long-term sobriety and personal accountability. Participants are expected to take greater responsibility for their recovery, actively engaging with treatment plans and demonstrating commitment to change. In addition to ongoing counseling and drug testing, participants are encouraged to develop coping strategies, build healthier relationships, and find productive ways to contribute to society. Throughout these phases, recovery coaches serve as mentors, offering guidance and support as clients navigate

services, and community organizations the complexities of life in recovery. formative outcomes for individuals and to ensure participants have access to the Upon completing the first three phases, communities alike. Through its commitresources necessary for their recovery, participants graduate from the program, ment to recovery, rehabilitation, and comincluding stable housing, though they remain under munity support, the STAR Drug Court employment, and family resupervision during the final has become a model for successful interunification. phase, known as Aftercare. vention programs aimed at breaking the This phase provides continued cycle of addiction and crime.

The program Reducing Crime support as participants transilasts between 18 The STAR Drug Court has tion back into their communiMike Hanson is ties, ensuring they continue to senior counsel and and 24 months, proven effective in reducing recidivism and promotfollow program requirements, area lead at Varghese depending on ining long-term recovery by attend regular check-ins, and Summersett, PLLC dividual progress, focusing on rehabilitation receive counseling as needed.

(Houston), focusing on rather than punishment.

Aftercare is vital for reinforccriminal and juvenile and is designed ing recovery principles and defense and personal to offer increasing Graduates of the program are far less likely to rehelping individuals maintain injury law. In addition to private practice, levels of support offend, and many go on to he serves as a judge advocate with the U.S. sobriety while minimizing the risk of relapse. This phase also as participants lead successful, sober lives, Army Reserve JAG Corps and enjoys family contributing positively to allows for early termination time with his wife, Jihye, and two children, advance through society. The STAR Drug of supervision for those who Stella and Wyatt. each phase.”

Court continues to make a have consistently demonstratEndnotes significant impact, offering ed progress and met program 1. District Courts of Harris County, Adult Supervision and Correction Overview, TEX. OFF. OF CT. ADMIN., https:// a powerful example of how collaboration expectations. www.justex.net/adult/overview (last visited Jan. 2, 2025). between the criminal justice system and 2. Justice Forward Texas, STAR Drug Court, https://www.justiceforwardtx.org/star-drug-court (last visited Jan. 2, 2025). treatment providers can produce transAlumni Involvement A notable feature of the STAR Drug Court is its emphasis on alumni support through the STAR Alumni Association.

Graduates of the program are encouraged to remain involved, participating in support groups, providing mentorship, Personal injury and engaging with current participants.

Wrongful termination This ongoing connection fosters a sense Intellectual property of community and accountability, which Commercial damages/lost profits is essential for maintaining long-term soBusiness valuations briety. The alumni network also plays an integral role in ensuring that individuals When you need a number who have successfully completed the procall our number gram continue to receive encouragement and guidance as they navigate life postgraduation.

The STAR Drug Court’s comprehensive, individualized approach to rehabilitation is a key factor in its success. In addition to substance abuse counseling, participants receive mental health treatment, vocational training, and life skills education. These services are designed to help individuals rebuild their lives and gain the tools needed for independent living. The program also collaborates closeW W W . T H O M A S R O N E Y L L C . C O M ly with local treatment providers, social

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DAMAGES 281.846.6132

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January/February 2025

25

Looking Forward and Looking Back: The Impact of a Quarter of a Century Compiled by Anna Archer, Anietie Akpan, and Jacyln Barbosa

Every year, new lawyers look forward to bright futures, while more seasoned lawyers look back and reflect on what they wish they had known when their legal careers began. In 2025, lawyers who have been practicing for 25 years are looking back to the turn of the century, and new lawyers are looking forward to careers that will likely span past the first half of the twenty-first century. The editors of The Houston Lawyer felt this was an appropriate milestone to report on the reflections of these two groups.

We asked new lawyers what they are looking forward to in their first full year of practice, and we invited lawyers who started their careers 25 years ago what they wish they had known when they were first starting out.

Twenty-Five-Year Lawyers

What do you wish you had known when you first became a lawyer 25 years ago?

“I have been very fortunate throughout my legal career, but looking back, I wish I had practiced more outside of Harris County. We have excellent judges and lawyers throughout the country, and it would have been beneficial, professionally and personally, to experience different perspectives on the practice of law.”

–Hon. Alfred H. Bennett, U.S. District Judge, Southern District of Texas “That being a great lawyer means becoming a great writer. That there is deep satisfaction in becoming a better writer even though in writing one is forever a student. Finally, I wanted to serve the public, but did not imagine how wonderful it has been to be a law professor.”

–Greg Vetter, Associate Dean for Academic Affairs, HIPLA College Professor of Law, Co-Director, Institute for Intellectual Property & Information Law, University of Houston Law Center “Law is a noble profession. On your hardest days, remember it is an honor to represent people. You are never locked into just one area of law. Changing your specialty or path can be the most fulfilling experience.

Do what you love; know that what you love may change.”

–Amanda Peters, Associate Dean for Faculty & Professor of Law, South Texas College of Law Houston 26 January/February 2025

thehoustonlawyer.com

“Even when starting your practice at a big firm, actively seek out Bar association involvement from the start. It builds networks, offers mentorship, boosts referrals, and fosters lasting professional relationships.”

–Robert Painter, Painter Law Firm, PLLC, and Director, Houston Bar Association Board of Directors “I wish I had known that it is okay to ask for help. A simple question to a trusted peer or partner would have saved me time that I could have used towards more pressing issues. It is important to try and find answers through research, but there is nothing wrong with admitting you do not know all the answers.”

–Maryalyce Cox, Shareholder, MehaffyWeber PC “I have learned the importance of the human element. Law school did not equip me to be a part-time therapist, but I have realized this skill is crucial as we gain experience. It simply makes us better lawyers. It’s important to acknowledge the complexity and turmoil that first-time litigants experience.”

–Ali Fazel, Fazel Law

Local Solutions. Global Reach. thehoustonlawyer.com

January/February 2025

27

First-Year Lawyers

What are you looking forward to in your first full year as a lawyer?

“As a newly licensed attorney, I am looking forward to growing my confidence through real-world application of law school skills and mentorship. I am excited to begin handling cases, taking depositions, and hopefully securing my first win on a motion.

Most importantly, I am looking forward to a career of fulfillment through service.”

–Natalie Kirk, Associate Attorney (Medical Malpractice and Personal Injury Defense), Horne Rota Moos “I am excited to take on the challenges of my first year, refine my workflow, and figure out my style as a tax attorney.

I am looking forward to building a foundation for a career that feels meaningful, rewarding, and one I can be proud of!”

–Nga Tran-Medina, Attorney (Tax Litigation & Advisory), IRS Office of Chief Counsel “As a new lawyer, I am excited to put my passion for advocacy into practice, grow professionally, and build a strong foundation across practice areas. I look forward to refining my skills, embracing new challenges, and making a meaningful impact in people’s lives while continuously learning and improving.”

–Davida Johnson, Associate Attorney (Family & Probate Law), Griffin, Cain & Herbig, Attorneys at Law, PLLC “I am most looking forward to filing my first appellate brief. As an associate with Coné PLLC, I am learning so much [from] Misty Hataway-Coné, one of the best appellate lawyers in the state, and I look forward to continuing to grow as an attorney.”

–Colleen Harrison, Associate Attorney, Coné PLLC

28 January/February 2025

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“I am looking forward to setting a foundation as to the type of lawyer I want to be. I am a person with immense curiosity, so I cannot wait to see what I can learn and how it will let me help the community.”

–Eli Escobedo, Jr., Associate Attorney (Real Estate Law), Law Office of Ernie Garcia “Clerking for Judge Alfred H. Bennett is an incredible honor. Judge Bennett is an exceptional jurist, and I am grateful for the opportunity to grow under his guidance. Each day at the federal courthouse brings exciting legal challenges, and I am looking forward to refining my skills as a lawyer and writer.”

–Karolyne Carloss, Law Clerk to Hon. Alfred H. Bennett, U.S. District Court, Southern District of Texas.

Anna Archer, Anietie Akpan, and Jaclyn Barbosa are members of The Houston Lawyer editorial board.

Equal Access Champions The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteers Lawyers.

Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Akin Gump Strauss Hauer & Feld LLP Angela Solice, Attorney at Law Archie Law PLLC Baker Botts L.L.P. BakerHostetler LLP Baker Hughes Beck Redden LLP Blank Rome LLP Bracewell LLP CenterPoint Energy, Inc. Chamberlain Hrdlicka Chevron USA Coane & Associates Dentons US LLP Elizabeth S. Pagel, PLLC Eversheds Sutherland US LLP Exxon Mobil Corporation Fleurinord Law PLLC Foley & Lardner LLP Fuqua & Associates, P.C. Gibbs & Bruns LLP Gibson, Dunn & Crutcher LLP Gray Reed Greenberg Traurig, LLP Halliburton Hasley Scarano, L.L.P. Haynes and Boone, LLP Hunton Andrews Kurth LLP Jackson Walker LLP Jenkins & Kamin, L.L.P. King & Spalding LLP

Kirkland & Ellis LLP Law Office of Cindi L. Rickman Law Office of Norma Levine Trusch Law Offices of Omonzusi Imobioh Limbaga Law LyondellBasell Industries Martin R.G. Marasigan Law Offices McDowell & Hetherington LLP McGarvey PLLC Morgan, Lewis & Bockius LLP Northum Law Norton Rose Fulbright O’Melveny & Myers LLP Painter Law Firm PLLC Reed Smith LLP Royston, Rayzor, Vickery & Williams, LLP Sanchez Law Firm Shell USA, Inc. Shipley Snell Montgomery LLP Shortt & Nguyen, P.C. Sidley Austin LLP Sorrels Law Squire Patton Boggs The Ericksen Law Firm The Jurek Law Group, PLLC Troutman Pepper Locke LLP Vasquez Waite Vinson & Elkins LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs, & Goren, P.C. Winstead PC Winston & Strawn LLP Yetter Coleman LLP thehoustonlawyer.com

January/February 2025

29

OFF THE RECORD

Defending the Environment:

David Adler’s Firefighting Career

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The Houston Lawyer

By Braden Riley

the environment, whether it is recycling, picking up after your y the time they hit a certain age, most lawyers are concampsite, or helping to fight wildfires.” tent with the physical challenges to which they will Adler is a conservationist and a nature lover at heart. To him, subject themselves. They might go to a difficult spin the most rewarding aspect of fighting fires is preserving and class, try a hot yoga routine, or just attempt to play a protecting the environment for his children and for future gengame of golf or tennis now and then. When they think erations, and the camaraderie with his fellow “weekend warrior,” they don’t exactly picture fighters while on the job. The wilderness also themselves doing the kinds of things that Daallows him time to gain perspective on his casvid Adler does. That’s because, at 45 years old, es and camping out while on the firefighting Adler decided to start fighting wildfires. job gives him a chance to clear his head from As Adler relates, his interest in firefighting the daily stressors of life. was first piqued by the experiences of friends One concern he continues to think about, from his upbringing. Hailing from the New however, is the ever-expanding scope of wildYork State area, many of Adler’s friends went fires across the nation. Adler cites the recent on to become volunteer firefighters for fire deCalifornia fires and fires in the northeast as partments throughout the northeast. For many examples of how fires continue to get bigger, years, these friends would try and entice Adler more omnipresent, and more devastating evto join them, but it was not until decades later, ery year. As he relates, the unpredictable naaround the time of the Bastrop County Comture of these fires is one of the most challengplex Fire in 2011, that Adler decided to heed ing aspects of the job, as sudden changes in the calling.

David Adler with his son, Joel. the wind or surrounding conditions can make a fire tough to Adler’s first step in his journey was to attend the Colorado handle.

Firecamp, where he learned the basics of firefighting. Next, he Speaking of tough, Adler has to undergo a physical fitness test reached out to the Texas Parks and Wildlife Department to see every year to participate in Nature Conservancy. Ahead of his if they needed volunteers. Ultimately, Adler connected with Namost recent test, Adler trained particularly hard, concerned that ture Conservancy, a nonprofit organization that focuses on conhe would not have the same physical attributes he did when he serving the natural environment. Now, over a decade later, he started the job. To the contrary, he performed better than he ever continues to fight fires and has made a family legacy out of it. had before, finishing the test in record time.

Along the way, Adler’s son, Joel, joined him in his firefighting Adler’s toughness and determination resonate in the courtendeavors and enjoyed it so much that he has now chosen to room, too. Having started his career in employment law, he has pursue a forestry major at Stephen F. Austin University. When practiced federal criminal defense for the past 30 years. He has Joel first got involved, he attended the very same fire school that received numerous awards in the practice area, but he remains his father attended before him. humble. When asked to describe his practice, Adler tells us he Nowadays, Adler’s firefighting mostly focuses on prescribed defends “blue collar, white collar, no collar, and no shirt,” meanfires, which are intentionally set, controlled burns. The goal of ing he can handle anything thrown his way. If you’re in trouble, these proactive fires is to reduce fire prone vegetation and cut whether in the courtroom or in the wilderness, David Adler is down on the risk of an errant wildfire. Recently, Adler worked on the one to call. one of these prescribed fires in East Texas, near the Big Thicket National Preserve. He stresses the importance of these proactive burning efforts, which he considers essential to the prevention Braden Riley is a personal injury attorney at Morrow & Sheppard of out-of-control wildfires. He emphasizes, though, that everyLLP, where he represents plaintiffs injured at plants, platforms, oil one can help out with prevention efforts. As he tells us, “We rigs, and worksites throughout the United States. He is the Off the are at the point where everybody should do something to help Record associate editor for The Houston Lawyer.

30 January/February 2025

thehoustonlawyer.com

A Profile

in pro f e s s io n a l i s m

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Mindy Davidson

Former Executive Director, Houston Bar Association

he idea of lawyers as professional guardians of our legal system and our freedoms is well rooted. There is the oftquoted line from Shakespeare’s Henry VI: “First thing we do; let’s kill all the lawyers.” More directly, the Order promulgating the Texas Lawyer’s Creed states “[t]hroughout the history of our nation, the members of our citizenry have looked to the ranks of our profession for leadership and guidance.”

One of my favorite projects as HBA executive director was the HBA’s President’s Speaker Series programming. With a focus on civil discourse, the series brought together recognized experts from across the nation to present the highest level of legal scholarship on current complex and high-profile legal issues–NIL, the Second Amendment, Dobbs, voting laws in Texas, and big tech and free speech.

Outside the realm of this educational programming, however, I found myself otherwise contemporaneously and meticulously parsing words across HBA materials looking for potential pitfalls and endeavoring to ensure that the HBA, and perceptions of it, remained staunchly on a thin line that strayed neither into partisanship nor politics. With the benefit of hindsight, I suggest that it is time, as part of our professional responsibility, to leverage the HBA’s unparalleled access to thoughtful individuals and variety of views that come from serving lawyers in the most diverse city in the nation; and to create discussion forums for those lawyers desiring to talk across differences of opinion.

It goes without saying that there are many controversial legal and public policy issues that would benefit from members of our profession engaging in active, respectful civil discourse. Just some are reproductive rights, gun control measures, DEI, and the meanings of specific words such as Antisemitism, Islamophobia, and Genocide. The list goes on. While I sincerely hope that the HBA will remain non-partisan and not political, at the same time I hope HBA leadership will consider, as part of its mission to enhance the legal profession and promote professionalism, the development of civil discourse forums to provide meaningful opportunities for active listening and thoughtful and respectful dialogue amongst our lawyers to promote mutual understanding of differing, good faith views on these divisive topics. I look forward to these conversations.

Mindy Davidson retired as the executive director of the Houston Bar Association and the Houston Bar Foundation in June of 2024.

Before her work at the Houston Bar, she practiced employee benefits law in Houston for over 30 years. Mindy is married to Joshua Davidson, who is senior counsel at Baker Botts L.L.P., having retired as a senior partner on January 1, 2025, after 39 years with the firm. Mindy and Josh have two grown daughters and two granddaughters..

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January/February 2025

31

COMMITTEE SPOTLIGHT

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New Year With the HBA’s Newest Committee

The Houston Lawyer

By Samantha Torres and Melanie Bragg

he HBA Wellness Committee, established in 2024, issue that affects all generations and backgrounds. The colis dedicated to promoting the holistic mental health laboration has been a big success. The HBA and HYLA Welland well-being of lawyers by educating them on ness committees have partnered on various events, like Run mindfulness practices and techniques that are easy with a Judge, Cooking Club, fitness classes, and golf lessons to integrate into as we continue to explore their schedules while procollaboration with other viding a variety of wellbar associations, law firms, ness events and opportugovernment agencies, and nities to practice mindorganizations focused on fulness. We know that enhancing attorney mental it’s important, but being health and wellness. well and staying well ofJoin us for a few events ten takes a backseat in the this spring, including a busy practice of law. mocktail competition, a All lawyers, whether a mindfulness CLE, and first year or seasoned atmore. We also invite you torney, are held to the to visit the HBA Wellness same high standards of page (hba.org/wellness) to professional responsibillearn how other lawyers ity. In fact, the Texas Disapproach wellness through ciplinary Rules of Profesthe “Many Faces of Wellsional Conduct and the ness” interview series.

American Bar Association The best lawyers are Model Rules of Profeshealthy lawyers.

We Members of the HBA Wellness Committee get together on a regular basis for programs and events focused on mental health and well-being. sional Conduct provide for a want them to give their Duty of Competency that is owed to the public and the proall to their practice, but we also want them to enjoy their fession. Focusing on a lawyer’s professional responsibility lives in a deep and profound way by efficiently managto maintain this duty is essential to the well-being of one’s ing stress. We recognize that wellness is different for evpractice. eryone. Through the HBA Wellness Committee, we have The Wellness Committee addresses this need through eduthe opportunity to get to know like-minded professioncational, interactive, fun, and thoughtful events while fosterals and explore how other members approach wellness. ing connection and community and providing lawyers with If you have an idea for a wellness program, please reach tools to enhance their practice. These events help lawyers out to Samantha or Melanie at storres@okinadams.com or take good care of themselves in all aspects—mind, body, and Melanie@bragglawpc.com. soul. Programming ranges from interactive ethics CLEs on Until then, Be Well. Stay Well. mindfulness to fitness and wellness classes, service projects, and online resources.

Melanie Bragg is the owner of Bragg Law, P.C. As past presidents of the Houston Young Lawyers AssociaSamantha Torres is a litigation associate with Okin Adams Bartlett tion and current HBA board members, we saw an opportunity Curry LLP. Both serve on the HBA Board of Directors. Together, to connect HBA and HYLA members through wellness—an they co-founded and co-chair the HBA Wellness Committee.

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Section Spotlight

Federal Practice Section:

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Connecting the Bench and Bar Through CLEs and Networking

By Kat Kunz

he HBA’s Federal Practice Section’s members are attorneys whose practice brings them to federal court or who have an interest in practicing before federal judges. The section is more than 35 years old and aims to provide liaison and professional development opportunities for members of the bench and Bar who are engaged in federal practice of any nature and to provide continuing legal education in this field. To that end, the section aims to present around four CLE programs per year on a diverse cross-section of issues that federal practitioners may encounter, or simply to spotlight a particular federal court judge in a more intimate and informal setting than the courtroom.

The focus of section presentations may intersect with those of other HBA sections, and the Federal Practice Section is eager to plan joint events to broaden the range of attendees and networking at each event. One such very successful event took place in October 2022, when the Federal Practice Section and the Bankruptcy Section jointly presented Bankruptcy 101 for Litigators at the Bob Casey Federal Courthouse. Presenters included U.S. Bankruptcy Court Judge Christopher M. López (S.D. Tex., Houston), Anna Rotman (Kirkland & Ellis LLP), Thomas M. Farrell (McGuireWoods LLP), and was moderated

by Susan Tran Adams (Tran Singh LLP).

Other recent CLE presentations have included a wide range of topics relevant to federal court practitioners, including: • A Fireside Chat with Southern District of Texas U.S. Attorney Alamdar S. Hamdani; • Effective Jury Trials in Federal Court: A Thirty-Eight Year Perspective, presented by U.S. District Judge David Hittner (S.D. Tex., Houston);

• Show Down at the Show Cause Corral: Navigating a Civil Contempt Hearing and Avoiding an Ambush, presented by U.S. District Judge Charles Eskridge (S.D. Tex., Houston), Ashlee Martin (Gerger Hennessy & Martin), Ward Goolsby (AZA), and moderated by Kelsi White (AZA); • Cryptocurrency Litigation Rises as Interest in Cryptocurrencies Soars, presented by Nelson Ebaugh, Attorney at Law; • Reflections on the Southern District of Texas, presented by U.S. District Court Judge Lee H. Rosenthal (S.D. Tex.); and • Federal Judges from Less Familiar Courts, presented by United States Court of Federal Claims Judge Stephen S. Schwartz.

The Federal Practice Section is looking forward to planning two additional CLEs this Bar year and continuing its member outreach. We had an informal happy hour last fall and hope to have another opportunity for informal networking in the spring. I urge any HBA member with any interest in, or business before, the federal courts to consider joining our section or checking out one of our upcoming presentations.

Kat Kunz is senior counsel at commercial litigation boutique Hicks Thomas LLP and the 2024-2025 Federal Practice Section chair.

She has been a member of the Federal Practice Section Council since 2019 and, prior to serving as chair, Kat served as chair-elect and treasurer. Kat is a past chair and vice-chair of the State Bar of Texas’ Women in the Profession Committee, past co-chair of the Houston Bar Association’s Gender Fairness Committee, a Sustaining Life Fellow of the Texas Bar Foundation, and a Fellow of the Houston Bar Foundation. thehoustonlawyer.com

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LEGAL TRENDS

The Texas Supreme Court’s Proposed Rules on Paraprofessionals— What’s Next?

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The Houston Lawyer

By Jessica L. Crutcher

he Legal Services Corporation, the nation’s largest funder of civil legal aid programs, estimates that 92% of low-income Americans have unmet civil legal needs, up from 90% in their last survey.1 Justice Brett Busby, as the Texas Supreme Court liaison to the Texas Access to Justice Commission, spearheaded a partial solution to this problem and, on August 6, 2024, the Court issued preliminary rules that would allow licensed paraprofessionals and courtaccess assistants to provide limited legal services, with the intent to help bridge the gap between the civil legal needs of low-income Texans and the resources currently available to fill those needs.

The Court received public comments on the proposed rules through November 1, and the rules were expected to take effect on December 1. But, on November 4, the Court delayed the effective date of the rules while it considers the public comments received. I spoke with Justice Busby about the process of formulating the Proposed Rules, how they are expected to function practically, updates on next steps, and when the rules are expected to take effect.

Seven other states have adopted rules permitting paraprofessionals to provide limited legal services—Utah and Arizona were the first—and 12 others are considering them. Paraprofessional services have been available in the U.K. and Canada for decades. Rules 34 January/February 2025

for court-access assistants originated in Alaska. In Texas, the State Bar will be responsible for implementing the rules, and the Board of Law Examiners will be helping develop paraprofessional and court-access assistant exams, looking to other states for guidance. The Board of Law Examiners is also expected to implement character and fitness requirements similar to those for attorneys.

As to eligibility for paraprofessional and court-access assistant services, “low income” is expected to be defined at or below 200% of the federal poverty guidelines—$30,120 for an individual or $62,400 for a family of 4.

As to the allowed services, the proposed rules provide that paraprofessionals will be permitted to provide services in family law (uncontested matters, including ex parte protective orders); limited estate planning and probate matters; and limited consumer debt matters. Considering the huge number of uncontested matters that require court intervention, paraprofessional assistance is expected to significantly lighten the burden on low-income individuals who need help with uncontested matters. Court-access assistants will work under the supervision of an attorney, and are expected to be permitted to aid in contested justice court matters, including evictions.

As to compensation, the proposed rules provide that paraprofessionals may charge directly for their services, or they may work for a law firm that uses paraprofessionals to provide lower cost representation. Justice Busby said that other jurisdictions have seen success with this model. Court-access assistants would be required to be compensated by a legal aid organization.

Justice Busby said the Court received numerous comments about the proposed rules, including “great comments” from the State Bar Board of Directors. Justice Busby said the com-

thehoustonlawyer.com

ments the Court received across the board included suggestions for modifying the applicable scope of the rules and procedural comments, and that the Court is going to take the time it needs to properly consider all comments. In addition, Texas State Representative Barbara Gervin-Hawkins has proposed House Bill 1528, which seeks to regulate certain legal paraprofessionals, require an occupational license, and provide for their limited practice of law in justice court. Justice Busby said others may also propose bills relating to paraprofessionals in this legislative session, and the Court is going to wait and see what action, if any, the legislature takes before issuing its final rules. Between consideration of the comments received and the anticipated legislative actions regarding paraprofessionals, Justice Busby said his best guess is the Texas Supreme Court will issue its final rules in late 2025.

While the program will not entirely solve the court access problem, Justice Busby sees a responsibility for the Texas Supreme Court to try, and he is hopeful the proposed rules will help significantly. “The Court is there not just to decide the State’s most important legal disputes but is also in charge of administering the judicial branch and legal system for the State. And it’s not serving all our constituents, who rightly expect to be able to access legal services at a more affordable rate. This program is one way of helping to meet that need.”

Jessica L. Crutcher is a mediator, arbitrator, and attorney at Jessica Crutcher Law PLLC and is on the editorial board of The Houston Lawyer.

Endnotes

1. Supreme Court Advances Access-To-Justice Efforts With Proposed New Rules to License Legal Paraprofessionals, Texas Supreme Court News Release (Aug. 6, 2024), https://www.txcourts.gov/ supreme/news/supreme-court-advances-accessto-justice-efforts-with-proposed-new-rules-tolicense-legal-paraprofessionals/.

LEGAL TRENDS

Supreme Court of Texas Reexamines Presumptions Under Casteel

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By Braden Riley

ecently, the Supreme Court of Texas reversed itself in a rare rehearing of an important case, Horton v. Kansas City Southern Railway Company.1 Horton arose out of a collision between a train and a vehicle at a Kansas City Southern Railway Company railroad crossing. Plaintiffs alleged the defendant railroad negligently maintained the railway crossing, causing the collision that killed their mother.

Originally argued in early 2023, Horton clarified the application of the Casteel doctrine2 in light of the inclusion of erroneous legal theories in a jury charge.

Previously, under Casteel, a Texas appellate court faced with a broad-form jury question that erroneously included both valid and invalid theories in a single jury question would presume harmful error.

The court would then remand for a retrial if it could not determine whether the jury based its verdict on the improperly submitted invalid theory. As Amici pointed out in Horton, Casteel led to a web of confusion when considering jury charges and a myriad of inconsistent precedents issued by the courts of appeal. Some cases sought to expand Casteel and its presumption to apply any time a jury might have based a finding on insufficient or inadmissible evidence. Others minimized the application of Casteel by seizing on its perceived limitations, such as whether invalid “theories” meant specific acts supporting a cause of action or causes of action as a whole.

The Horton plaintiffs presented two theories of negligence against the rail-

road: first, that the railroad negligently maintained the railroad crossing by raising the crossing grade over time to form a “humped crossing”; second, that the railroad company failed to replace a missing yield sign, which also proximately caused the collision. The trial court submitted a single broad-form negligence question asking whether the negligence of the driver or the railroad caused the collision. The railroad objected, claiming the court should submit two blanks for the jury to separately determine the parties’ negligence liability for the humped crossing and the missing yield sign allegations, but the trial court refused. The jury found both parties negligently caused the accident, and, in response to a separate question, the jury found both parties equally responsible.3 The Supreme Court found the humped crossing claim was legally valid but also there was legally insufficient evidence to prove the missing yield sign proximately caused the collision. The question before the Court, then, was whether the jury verdict could withstand scrutiny under Casteel, given the single broad-form negligence question presented to the jury.

Initially, the Court reversed and ordered a retrial. Citing to its post-Casteel precedents, the Horton Court emphasized a broad reading of Casteel and noted that submission of any invalid theory, whether legally invalid or invalid due to insufficient evidence, infects the validity of a verdict because it allows a trial court to commit error in instructing a jury to consider erroneous matters. Because the Court could not say for certain whether the jury relied on an invalid theory, the matter had to be retried.4 On rehearing, the Court changed course. It explained that Casteel‘s presumed harm rule: 1) applies when a broad-form jury charge commingles valid and invalid theories or allegations and permits the jury to make a finding based on either one; but 2) does not apply when

a theory or allegation is “invalid” merely because it lacks legally sufficient evidentiary support.5 However, the Court reiterated that Casteel’s presumption is only one way of showing harm based on the commingling of valid and invalid theories, and that, in the case of a theory that lacks legally sufficient evidence, harm may still be shown through the ordinary harm analysis under the Texas Rules of Appellate Procedure. Seen through this lens, the Horton Court found that Casteel’s presumption of harm did not apply, and that the evidence supporting the invalid yield sign theory was so minimal that it was unlikely to have caused the rendition of an improper judgment and thus did not constitute harmful or reversible error.6 Opinions of Horton are bound to differ on both sides of the Bar. Undoubtedly, some will claim that the ruling allows unscrupulous litigants to submit theories they know to be unsupported by the evidence. Those on the other side will point out that the Horton ruling provides appropriate deference to the jury’s abilities to listen to the evidence, follow the trial court’s charge, and disregard any theories that are unsupported by the evidence. In the end, the Court in Horton attempted to strike a balance to help clarify its prior rulings, and hopefully the net effect of Horton is that it will simplify the charge process for all litigants.

Braden Riley is a trial attorney at Morrow & Sheppard LLP, where he represents plaintiffs in personal injury matters. He is the Off the Record editor for The Houston Lawyer.

Endnotes

1. 692 S.W.3d 112 (2024).

2. First elucidated in Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (2000).

3. Horton, 692 S.W.3d at 118.

4. Horton v. Kansas City Southern Railway Company, No. 21-0769, at *17–19 (Tex. June 30, 2023), 2023 WL 4278230 (withdrawn and substituted by Horton v. Kansas City Southern Railway Company, 692 S.W.3d 112 (Tex. 2024).

5. Horton, 692 S.W.3d at 142.

6. Id. at 145–47.

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