THL_JulAug24

More Changes Are Coming to the Texas Attorney Disciplinary Rules Is There a Legal Remedy Against Cultural Appropriation?

Andrew Gratz Is on a Mission to Turn Lawyers Into Leaders Purposeful Inclusion: The Key to Growing Female Leadership in the Courtroom nch An Interview with HBA President David Harrell

lawyer

THE HOUSTON

inside...

Volume 62 – Number 1

July/August 2024

David Harrell 2024-2025 President Houston Bar Association

contents July/August 2024

Volume 62 Number 1

FEATURES

10

14

Changes Are Coming to the 10 More Texas Attorney Disciplinary Rules

By Jennifer A. Hasley

There a Legal Remedy Against 14 IsCultural Appropriation?

By Aman K. Gebru

Gratz Is on a Mission to 18 Andrew Turn Lawyers Into Leaders

By Jaclyn I. Barbosa

Inclusion: 20 Purposeful The Key to Growing Female

Leadership in the Courtroom

By Rachel Powitzky Steely

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24

for the Lost and Forgotten: 24 Hope Houston’s Not Guilty by Reason of Insanity Courts

By Anna Archer

26 Harvest Celebration Underwriters with HBA President 28 AnDavidInterview Harrell Lord Partner David Harrell 30 Locke Becomes Houston Bar Association President

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31 Award Winners DEI Summer Associate 34 HBA Luncheon Celebrates Diversity

The Houston Lawyer

and Recognizes Award Winners

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, 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, 1111 Bagby Street, FLB 200, 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., 2024. All rights reserved.

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contents July/August 2024

Volume 62 Number 1

departments

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39

Message 6 President’s The Three A’s of Meaningful

Mentorship

By David Harrell the Editor 8 From A Glance at The Houston Lawyer’s

Year Ahead

By Andrew Pearce THE RECORD 36 OFF Larry Stuart:

The Unexpected Garden

By Christine Stuart

Profile in professionalism 39 ABrent Benoit

40

41

Deputy General Counsel and Chief Compliance Officer, National Oilwell Varco HBA Past President, 2012-2013

Spotlight 40 committee The Elder Law Committee:

Charting New Territory

By Angela Odensky

Spotlight 41 Section Innovation and Involvement:

How the Energy Law Section Shines in the Houston Legal Community and Education

By Melissa Munson

44

trends 42 Legal The FTC Non-Compete Roller Coaster

Continues as Courts Begin to Rule

By Chris Hanslik

Give Me My Baby! Are Unused Embryos in a Divorce Property or a Person?

By Nicole Voyles

reviews 44 Media A Case for Greatness: Achieving

Success and Overcoming Trials in Your Law Career Reviewed by Anietie Akpan

The Houston Lawyer

45 Litigation MarketPlace

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Cheers to the 2024 Harvest Celebration!

“Beck Redden proudly joins hands with Houston Volunteer Lawyers, dedicating our time and expertise to champion justice and empower our community.

From family, consumer, and guardianship matters, to Section 1983 civil rights litigation and asylum matters, our trial and appellate lawyers represent a diverse set of pro bono clientele with a wide array of legal needs every year.”

– Jackie M. Furlow, Partner and Pro Bono Chair

Beck Redden LLP is a civil trial and appellate law firm representing clients in Texas and throughout the United States.

1221 McKinney Street, Suite 4500, Houston, Texas 77010 | 713.951.3700 | www.beckredden.com

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July/August 2024

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president’s message

By David Harrell Locke Lord

The Houston Lawyer

M

The Three A’s of Meaningful Mentorship

any of us had opportunities to learn by watching others. For litigators, we could watch trial lawyers with exceptional courtroom skills, charisma, or preparation. We could watch lawyers with command of the negotiating table or boardroom. Perhaps we took the opportunity to watch someone who had an outstanding bedside manner with clients. The opportunity to observe is essential to developing skills.

Mentoring is more than just observation. If asked, I suspect each HBA member could talk about a favorite mentor, or a moment that resonated in which a mentor passed along some advice that has stuck for years. Mentoring means someone took the time to be intentional, to make a conscious decision to make teaching someone else the most important thing they did at that moment in time. It not only teaches, but also says “you are important to me.”

I have benefitted from many mentors. As a young lawyer, looking to grow my skillset and learn how to develop business, a mentor taught me the “Three A’s: Affability, Availability, and Ability.” He described the importance of being a lawyer that clients want to be around. He confirmed the significance of making time for clients and their needs. Of course, he emphasized the importance of always providing excellent service to clients.

But he didn’t just tell me about those Three A’s. He took me to meet with clients and talked to me about those clients before and after the meetings. He explained why he did what he did.

And he demonstrated genuine concern for others, including me.

I have worked with excellent trial lawyers and watched them at work. But some of those lawyers also took the time to talk about their conscious decisions at trial or deposition. They explained why they framed certain issues in motions and hearings with an eye to how the case would develop down the line.

They gave me a chance to develop strategy and then discuss it, so that I could take the laboring oar and then benefit from their insight.

Each of those mentors took the time to stop what they were doing and prioritize me. Mentoring is important. The Houston Bar Association offers numerous mentoring opportunities to

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match experienced lawyers with those who want to learn. For example: • The Professionalism Committee oversees a year-round mentorship program, pairing attorneys licensed four years or less with more experienced attorneys who provide advice on career development, as well as guidance on work-life balance and ways mentees can engage with the bar through committees, volunteer opportunities, and other activities. HBA members can sign up for the mentorship program and find links to additional resources at hba.org/professionalism; • The Communities In Schools (CIS) Committee’s Summer Legal Internship Program provides academically outstanding high school students who attend at-risk schools the opportunity for a paid, eight-week internship in a professional legal environment, as well as enrichment programs and mentoring. The high school students receive two mentors—an attorney mentor and a law student mentor. The committee recently hosted its orientation for this year’s program at South Texas College of Law Houston on June 10; • The Diversity, Equity & Inclusion Committee partners with Houston-based legal employers to provide 1L clerkship opportunities through the HBA 1L Diversity, Equity & Inclusion Summer Clerkship and Mentoring Program (the “DE&I Program”).

Mentees in this program also mentor high school students participating in the CIS program; • The Gender Fairness Committee holds a speed mentoring event for women attorneys licensed five years or less during the Bar year; and • The Military & Veterans Committee provides mentorship opportunities throughout the year, pairing military and veteran law students with military and veteran attorneys.

If you have insights to pass along, I hope you will consider participating in one of these programs. Learn more about the HBA’s mentorship opportunities at hba.org.

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

Jaclyn Barbosa Jonathan Day Allison Ebanks Felicia Harris Hoss Denise Khoury Dave Louie Ciara Perritano Hon. Josefina M. Rendón Jennifer Smith Carey Worrell

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 Controller ............................... Sarah Kole 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

Leonel E. Mejía Production Manager

Marta M. Mejía

Advertising

Mary Chavoustie

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July/August 2024

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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 Adams and Reese

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A Glance at The Houston Lawyer’s Year Ahead

W

hen I was entering my second year of college, and only after much careful and considered deliberation, I made the decision to major in History. I was incredibly fortunate—my parents were paying for my education—but I was also a bit nervous about my parents’ reaction to my proposed liberal arts degree. The good news? My dad congratulated me on my thoughtful and reasoned analysis. The bad news? He hoped I could find a way to pay for it. I promptly pivoted and ultimately decided to pursue a degree in journalism. We reasoned (correctly, I think) that a strong foundation in writing would serve me well in any career.

About ten years later, after working as an account manager for a chemical distribution company, I met Alicia. We started dating and quickly began discussing our future.

I told her I had always wanted to attend law school and pursue a legal career—a dream that had seemingly started to fade as I approached my thirties. Alicia was already accomplished in her field of education. She offered to support me in my endeavor, but she did not want to wait to start a family. So, it was in the fall of 2004 that I began my first year of law school at South Texas College of Law Houston as Alicia and I welcomed our daughter, Ashley (followed by our son, Owen, a few years later).

I suppose you can’t get lost if you don’t know where you are going, but I never imagined those choices, and all of the ones in between and since, would have led me here—celebrating more than 20 years of marriage to Alicia, serving as the Litigation Group Chair at BoyarMiller (the firm I joined as a summer associate in 2005), and, now, becoming editor in chief of The Houston Lawyer for the 2024-2025 bar year. I am profoundly grateful for where I find myself today.

My hope as editor is to introduce you to subjects and stories that will be as interesting to you as they are to me and our board—and what a truly outstanding board we have. I am lucky to be joined by Nikki Morris (Articles Editor), Lane Morrison (Legal Trends), Sydney Huber thehoustonlawyer.com

Bateman (Committee/Section Spotlight), Braden Riley (Off the Record), Kyle Steingreaber (Media Reviews), and Anna Archer (Podcast).

In this issue, we cover several subjects that I believe are equal parts informative, important, and interesting. Rachel Powitzky Steely writes about growing female leadership in the courtroom and what can happen when we harness the collective strengths of diverse perspectives.

Aman K. Gebru discusses the issue of cultural appropriation, including what it is, when and how it can be harmful, and what remedies might exist when cultural appreciation crosses into cultural appropriation. Jaclyn I. Barbosa asks whether lawyers are trained to become effective leaders and highlights the efforts of Andrew Gratz to make sure the answer to that question is “yes.”

Also, HBA Past President Jennifer A. Hasley informs us of the new additions and amendments to the attorney disciplinary rules following years of rulemaking attempts and process changes to allow Texas lawyers to utilize their privilege of self-regulation, as granted by the Texas Legislature and the Supreme Court of Texas.

This year, I am also excited to introduce our readers to each of Harris County’s six specialty courts—what they are and how they function—a terrific idea brought to us

by Houston Bar Association President David Harrell. In this issue, Anna Archer introduces us to the NGRI (Not Guilty by Reason of Insanity) Court and, over the course of the year, we will highlight the STAR Adult Drug Court, the Veterans Court, the Felony Mental Health Court, Competency Restoration, and the Responsive Interventions for Change Docket.

I also want to express my appreciation and admiration for those editors I was privileged to work with and learn from during my previous years on the board: Anietie Akpan, Anna Archer, Brooksie Bonvillain Boutet, and, most recently, Liz Malpass. Finally, I want to acknowledge and thank Maggie Martin, our managing editor. She somehow keeps everything, and everyone, organized and on task and this magazine truly would not exist without her.

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By Jennifer A. Hasley

I

More Changes Are Coming to the Texas Attorney Disciplinary Rules

n April 2024, members of the State Bar of Texas (“SBOT”) voted to approve new additions and amendments to the attorney disciplinary rules. The 2024 SBOT Rules Vote Referendum flows out of years of rulemaking attempts and process changes to allow Texas lawyers to utilize their privilege of self-regulation, as granted by the Texas Legislature and the Supreme Court of Texas.

While there is some question about whether the SBOT is truly self-regulating given the poor voting turnout in the referendum, these newly-added and amended rules will become the new minimum ethical standards for Texas lawyers.

Texas’ Attorney Disciplinary Rules The Texas Disciplinary Rules do more than provide ethical guidelines for lawyers; the rules provide the standard by which a lawyer will be judged in any disciplinary proceeding. The Supreme Court of Texas ultimately has authority over the Texas attorney disciplinary system, which is the creation of legislation, rules, and case law. The disciplinary process is set out in the Texas Rules of Disciplinary Procedure (“TRDP”), and the mini10 July/August 2024

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mum standards of conduct, often referred to as rules of reason, are defined by the Texas Disciplinary Rules of Professional Conduct (“TDRPC”). Although the TDRPC generally track the language in the American Bar Association Model Rules of Professional Conduct—in part because of the privilege of selfregulation—there are many differences, and lawyers practicing in Texas need to know those differences.

The Rule Modification Process The Texas disciplinary rulemaking process has significantly changed in the last 15 years but attorney engagement in the rulemaking process is generally low. In the 2011 SBOT Referendum, seven proposed updates to the TDRPC were voted down after years of diligent work and debate by SBOT committees, the State Bar Board of Directors (the “Board”), and the Texas Supreme Court.

Forty-four percent (44%) of eligible Texas attorneys voted overwhelmingly against all of the proposed rule changes in a failed referendum that required a majority approval of those voting.1 In 2017, as part of the sunset review process of the performance of

the SBOT, and in an effort to improve the process for updating the TDRPC, the Texas Legislature created the nine-member Committee on Disciplinary Rules and Referenda (“CDRR”),2 which reviews ethics reform proposals in an open process. Both the SBOT president and the Texas Supreme Court appoint members of the CDRR. Upon proper request, the CDRR reviews (with an option to decline), drafts, and submits proposed rule changes to the Board.

After a prescribed time period for publication and comment, the CDRR makes a final recommendation to the Board.3 The Board must vote for or against the rule or return the rule to the CDRR for additional consideration.4 If the Board approves the recommendation, it must petition the Supreme Court to order a vote by SBOT members.5 Once the SBOT members vote, the Supreme Court by majority vote may approve or reject a proposed disciplinary rule in its entirety, but may not approve or reject only part of the rule. If the Supreme Court does not vote on the rule on or before the 120th day after approval by SBOT members, the rule is deemed approved.6 This new process was tested when eight rules were approved in the 2021 SBOT Rules Vote and by the Supreme Court. The 2021 referendum was hailed as a success despite a significant drop in voters with just 18.50% of eligible lawyers participating.7 In the 2024 SBOT Rules Vote Referendum, the voters approved 12 more recommended changes. Many proponents of the rulemaking process anticipated an increase in voter turnout with a second run in just three years strategically planned to coincide with the SBOT annual election. Of the 113,897 ballots sent out, 21,572 (18.94%) were returned.

The SBOT presidential candidates received a combined 20,986 votes (18.50%), but the proposed rule with the highest number of total votes was counted at 17,809, which represents 15.64% of eligible voters deciding the outcome. (Depending on the rule, the approval range was 77-86%.).

One of the privileges of being a dues paying member of the SBOT is the right of selfgovernance. The State Bar Act mandates that all attorneys licensed to practice law in Texas

son for non-participation—whether it is apathy or a misguided belief that others are better suited to make such decisions—it is inconsistent with the concept of self-regulation. If Texas lawyers want to maintain the right to self-regulate, they need to turn up and vote on these This graph, created by the author, provides a visual comparison of the active members of the Texas Bar and those participating in the 2011, 2021 types of issues. and 2024 Rules Referenda.

are members of the SBOT. While many lawyers are involved in various state and local bar committees, sections, programs, etc., all have the right to vote in rule referenda and in leadership elections, yet individual participation in these and other important decisions often falls short. As noted above, less than one-fifth of Texas lawyers voted (either way) in the 2021 referendum and even less voted in this latest referendum. Whatever the rea-

The 2024 Recommended Rule Changes General compliance with the disciplinary rules is usually a matter of course for most Texas attorneys; however, understanding the applicability of the rule to a particular fact situation is where mistakes are often made. For 2024, the recommended changes include new terms and definitions; an overhaul of three conflict of interest rules; limits on the use of information learned from

a prospective client and communications with an unrepresented person; creation of a post-conviction duty for prosecutors; new requirements for partners or supervisory lawyers; guidance regarding the remote practice of law; and guidance for termination of custodianship. The Supreme Court has until the end of August to vote on the approvals, or they are deemed approved.

• TDRPC 1.00, Terminology Rule 1.00 identifies the section with a corresponding rule number and incorporates five new definitions of the following terms: “informed consent,” “confirmed in writing,” “representation” and its variations, and “writing.”

It only takes a quick review of these new definitions to come away with an understanding that Texas lawyers need to focus on keeping their clients informed and documenting those communications.

• TDRPC 1.18, Duties to Prospective Clients

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The intent of Rule 1.18 is to address bad faith consultations used to conflict out law firms by a client’s adversary.

The rule defines a “good faith” “prospective client” and prohibits a lawyer from disclosing confidential information learned from the prospective client and from representing a client with interests materially adverse to the prospective client. This rule is an adaptation of the Duty of Confidentiality and Conflict of Interest: General Rule, Rules 1.05 and 1.06(b)(2), respectively, which have been previously interpreted to be applicable to both prospective and retained clients. The bottom line is that this new rule provides protections for both the lawyer and the prospective client and makes clear that a prospective client is not entitled to all the same protections as an actual client.

• TDRPC 1.08, Conflict of Interest: Prohibited Transaction Under Rule 1.08, the prohibition on a business transaction between a lawyer and client has been extended to preclude a lawyer from “knowingly acquir[ing] an ownership, possessory, surety or other pecuniary interest adverse to a client.” The rule provides the step-by-step process necessary to document an otherwise prohibited deal that is acceptable, including obtaining written informed consent by the client, and puts the burden on the lawyer to clearly document any transactions with a client.

• TDRPC 1.09, Conflict of Interest Former Client Rewritten Rule 1.09 describes the duties of a lawyer who has formerly represented a client or whose present or former law firm has previously represented a client. Consistent with other amendments to the rules, consent requires written informed consent by the former client for otherwise prohibited representation of any “person in the same or a substantially related matter in which that person’s interests 12 July/August 2024

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are materially adverse to the interests of the former client.” While this rule is nearly identical to the ABA Model Rule, this rule is likely to be problematic in application, as it is very fact-driven.

The comments address clear problems, such as contesting a contract that an attorney drafted for a former client, but battling out whether a more complex matter is “substantially related” or “materially adverse” in a grievance process might be daunting.

• TDRPC 1.10, Imputation of Conflicts of Interest: General Rule The amended and retitled Rule 1.10 endorses the use of screening conflicted attorneys to manage conflicts of interest. This rule provides some relief for issues created by other rules, such as the new Rule 1.09. Many lawyers, particularly in larger firms, will recognize that this codifies the screening processes currently in use.

• TDRPC 3.09, Special Duties of a Prosecutor Rule 3.09 has three new sections describing a prosecutor’s (1) duty to disclose information to the defendant, defense counsel, tribunal and entity that examines and litigates claims of actual innocence; (2) duty to take action to ensure the defendant is represented by counsel; and (3) duty to cooperate with defense counsel and to report new and credible information creating a reasonable likelihood that a convicted defendant did not commit an offense for which the defendant was convicted. This type of rule weighs important rights of defendants in the justice system against imposing obligations on prosecutors. A prosecutor who acts in good faith should not be subjected to discipline under the rule, but good faith may be situational. This rule is not quite as onerous on prosecutors as the ABA Model Rule, but there is little doubt that prosecutors (and former prosecutors) will be subject to

more grievances as a result of these amendments.

• TDRPC 4.03, Dealing With Unrepresented Persons Rule 4.03 now prohibits a lawyer from giving any legal advice to an unrepresented person, other than the advice to secure counsel, if the person’s interests conflict with the interests of the client.

As noted in the comments, the amendment presents another highly factual determination that can be problematic for attorneys. When in doubt, tell unrepresented persons they need a lawyer and put it in writing.

• TDRPC 5.01, Responsibilities of a Partner or Supervising Lawyer Amended Rule 5.01 requires a lawyer with managerial authority in a law firm to make reasonable efforts to ensure that the firm has measures in effect to reasonably assure that all lawyers in the firm comply with the disciplinary rules and that lawyers under the manager’s supervision comply with the rules. Unlike the ABA Model Rule, simply being a partner in a law firm does not impose an obligation to ensure compliance with the disciplinary rules within a firm; however, lawyer managers, such as managing partners or partners-in-charge, need to focus on these amendments.

• TDRPC 5.05, Unauthorized Practice of Law; Remote Practice Amended and retitled Rule 5.05 addresses a Texas lawyer’s remote practice of law from outside of Texas and the remote practice of law by a lawyer not licensed in Texas from a location in Texas. This amendment clarifies what is and is not allowed for multi-jurisdictional practitioners.

• TDRPC 8.05, Jurisdiction Amended Rule 8.05 clarifies that a lawyer admitted to practice in Texas is subject to the disciplinary authority of Texas, regardless of where the

lawyer’s conduct occurs, and a lawyer not admitted in Texas is also subject to the disciplinary authority of Texas if the lawyer provides or offers to provide any legal services in Texas. The rule addresses the increasing prominence of multi-jurisdictional practice and makes clear the same conduct may be the subject of discipline in multiple jurisdictions.

• TDRPC 8.06, Choice of Law New Rule 8.06 states that the disciplinary rules to be applied for conduct in connection with a matter pending before a tribunal are the rules of the jurisdiction in which the tribunal sits, and for other conduct, the disciplinary rules to be applied are the rules of the jurisdiction in which the lawyer’s conduct occurred or where the predominant effect of the conduct occurred.

This rule goes hand in hand with Rule 8.05 and ensures the first fight in any multi-jurisdictional disciplinary case will concern which rules should be applied.

significant decrease in the number of sanctions per attorney over time. Do more rules make lawyers behave better, or are there other influences that have improved the practice of law? Some may argue that modernization and amendments of the TDPRC have positively guided attorneys, resulting in less sanctions per attorney. Others may argue that advances in technology not only improve the practice of law, but also provide instant access to information for lawyers and about lawyers. For example, lawyers concerned about reputation in an online world may make more of an effort to avoid or remediate their mistakes to avoid bad publicity. The more skeptical might suggest the number of sanctions is more a result of the Chief Disciplinary Counsel’s budget than anything else. Either way, it will be interesting to watch in the coming years whether these latest amendments have a real impact on attorney discipline and, in particular, the number of sanctions issued, and whether lawyers will realize that participation is the key to self-regulation.

Jennifer A. Hasley is a prominent ethics and legal malpractice attorney. She is a former president of the HBA and currently serves on the Houston Bar Foundation board.

Endnotes 1. For the six proposed categories of changes, the “no” votes ranged from 72-81% of the 44% of eligible Texas attorneys who voted. State Bar of Texas, State Bar of Texas Referendum 2011, Texas Disciplinary Rules of Professional Conduct, Results, TEX. B.J. vol. 74, No. 3, 189, 195 (2011).

2. TEX. GOV’T CODE, State Bar Act § 81.0872.

3. Committee on Disciplinary Rules and Referenda, Operating Rules and Procedures, available at https://www.texasbar.com/ Content/NavigationMenu/CDRR/Operating_Rules_and_ Procedures/OperatingRulesProcedures.pdf (2021).

4. TEX. GOV’T CODE § 81.0877, Approval of Proposed Disciplinary Rule by Board of Directors.

5. Id. § 81.0878, Referendum Vote by State Bar Members.

6. Id. § 81.0879, Supreme Court Approval or Rejection.

7. In 2021, 19,823 or 18.5% of the eligible lawyers voted with approvals ranging from 78-94% in favor of the amendments.

State Bar of Texas, Annual Report 2020-2021, 1, 5 (2021) (total votes) (2021); see also State Bar of Texas, Results of the State Bar of Texas Rules Vote 2021, March 4, 2021 Total Results, TEX. B.J., Vol. 84, No. 4, 277, 290 (2021) (per rule).

8. Sanctions include a private and public reprimands, probations, suspensions, indefinite disability suspension, resignations, and disbarments.

9. Comparing 2014 to 2023, as the 2023-2024 disciplinary statistics are not yet published.

• TRDP 13.05, Termination of Custodianship The 2021 referendum added TRDP 13.04, which authorized a lawyer to voluntarily designate a custodian attorney to assist with the designating attorney’s cessation of practice. The addition of TRDP 13.05 provides the three ways a custodianship terminates. This is not a disciplinary rule, but rather a procedural rule put here because there is no other good place to put it.

Conclusion What will be the real impact of these rule changes? The number of active attorneys in Texas between 2014 and 2024 increased from 94,804 to 113,771 (16.67%), and the number and complexity of the TDRPC has also increased significantly. Yet, the number of annual sanctions 8 entered against Texas attorneys during about the same 10year time period remained flat, 265 and 258 (down .02%).9 This means there is a thehoustonlawyer.com

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By Aman K. Gebru

Is There a Legal Remedy Against Cultural Appropriation?

K

aty Perry stirred up controversy when she dressed up as a geisha for her performance of “Unconditionally” at the 2013 American Music Awards.1 Some viewers criticized her kimono and overall attire as an appropriation of Japanese culture and accused her of perpetuating stereotypes of Japanese women as “unconditionally” submissive partners.2 Others saw it positively, as a celebrity entertainer paying homage to a culture she admires.3 Fashion houses also come up frequently in these incidents.

For instance, Victoria’s Secret found itself in hot water for having bikini-wearing models walk the runway wearing Native American headdresses, which are revered symbols in many communities.4 Debates about cultural appropriation have occurred for at least a few decades, among layperson conversations, marketing team deliberations, news reports, and academic research. The dispute extends to whether cultural appropriation is necessarily always harmful and whether anything should be done about it. Despite the passionate discussions that many engage in over a specific incident, there is confusion about how to distinguish between appropriation and appreciation. Cultural appropriation feels like one of those things about which one would say, “I know it 14 July/August 2024

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when I see it.”

Despite lacking an agreed-upon definition, key elements are present in most cultural appropriation incidents. Cultural appropriation involves instances where someone (usually belonging to a dominant culture) uses a cultural symbol from a community they do not identify with (usually a minority culture) without consent from the source community and without an understanding of the symbol’s value to the source community.5 Frequently, members of source communities levy accusations of cultural appropriation because the use of their symbol harms them in some way.

The type of harm caused by cultural appropriation may vary depending on the context.6 One of the common accusations is that the appropriation is offensive. As in the Katy Perry example, the offense may be caused by stereotyping cultures. At times, the offensiveness emanates from the symbol being sacred to members of the source community. However, the harm could also be in the form of loss of economic opportunity, where an outsider misrepresents their products as “authentic,” thereby denying the community of potential economic gain.7 This type of harm exists when the source community is interested in commercializing the cultural artifact. Another type of harm is the erosion of the identity where the appropriator distorts the identity of the source community to the outside world. This distortion could relate to the cultural symbol itself and not necessarily to the community.

The concept of cultural appropriation raises intractable questions of identity and group membership. What unit of identity should be used: tribe, nation, region, race, gender? How do we know the person using the symbol is an outsider to the source community? Who gets to decide on membership in the social group, and how is that decision made? Could the use of a cultural symbol by a member of the source community ever amount to an appropriation?

If consent is to be sought, who is allowed to give it? While numerous scholars continue to offer responses to these questions,

many of them lack a decisive answer. For the sake of brevity, this essay focuses on a few specific examples, while noting that members of many communities also find cultural appropriation problematic.

While the concept is debated in the public’s mind, accusations of cultural appropriation seem to be finding their way into courts, albeit with little success. Cultural appropriation was key to the theory of liability in at least two recent court cases. The first case arose in late 2020 and involved a disbanded girl band named OMG Girlz, who accused MGA Entertainment of making dolls that resembled the three members of the band.8 The case mainly dealt with trademark, trade dress, right of publicity, and misappropriation claims. However, OMG Girlz later added the claim of cultural appropriation, arguing that MGA Entertainment engaged in cultural appropriation of content developed by black creators. They cited the close resemblance of the color and style of dolls to that of the band members’ performance attire. This

seems to be the first time cultural appropriation was mentioned as a legal claim in a United States court.9 The court dismissed the cultural appropriation claim early on, stating that it was immaterial to the claimant’s case. Therefore, we do not have a robust understanding of the claim’s status in United States courts.

The second case involved a lawsuit brought by Sealaska Heritage Institute against the Dallas-based luxury retailer Neiman Marcus.10 Priced at $2,500, Neiman Marcus was selling its so-called “Ravenstail Knitted Coat,” which resembled the “Discovering the Angles of an Electrified Heart” design created by Clarisa Rizal, a prominent Alaska Native weaver.11 After Rizal passed away, her heirs registered and copyrighted the award-winning design in 2019.12 Several individuals contacted Rizal’s daughter with links to what they concluded were Neiman Marcus’ appropriations of Rizal’s award-winning design. A vital part of the accusation was that Neiman Marcus culturally appropriated a unique and

famous design. Since United States courts have not recognized a claim against cultural appropriation, however, the lawsuit was based on a violation of the federal Indian Arts and Crafts Act (“IACA”), copyright infringement, and false designation of origin.13 Though Neiman Marcus filed for bankruptcy, the claimant has vowed to pursue the case.

Since neither dispute resulted in a detailed ruling from the bench, it remains unclear how courts will deal with cultural appropriation claims in the future. However, the fact that these two recent cases made claims of cultural appropriation suggests that cultural appropriation may be in the early stages of being transformed from a subject of public debate into a theory of liability.

These cases also come against the backdrop of a similar dispute between the Navajo Nation and Urban Outfitters.

Although the Navajo Nation did not list cultural appropriation as a claim, representatives painted the dispute as cul-

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tural appropriation, and the facts leading up to the dispute resemble the examples mentioned above. In the lawsuit, the Navajo Nation argued Urban Outfitters’ use of the “Navajo” term in relation to products it was selling amounted to trademark infringement, among other things. The products included what Urban Outfitters labeled a Navajo hipster panty, a peace treaty feather necklace, and a Navajo print flask.14 The dispute was settled for an undisclosed amount, with Urban Outfitters promising to work with the Navajo Nation on future products.

The unique aspect of this case is that, since 1943, the Navajo Nation has held a trademark registration for the term “Navajo,” which made it easy to bring a trademark infringement action when Urban Outfitters used the name without authorization. Many other cultural appropriation disputes do not involve officially recognized intellectual property rights owned by the source community. Given the popularity of the lawsuit, some future claimants may have learned to use the intellectual property system to defend against cultural appropriation.

In addition to these developments in United States courts, several nations have enacted legislation dealing with cultural appropriation in some form.15 For instance, recent federal legislation in Mexico created a legal claim against cultural appropriation for indigenous and Afro-Mexican peoples.16 Penalties include fines and jail time for what the act defines as misappropriation. The new law adopts novel approaches, including the recognition of communal ownership of cultural heritage and a proposal to create a National Registry of Cultural Heritage.17 The legislation is still in its early stages; thus, more time is needed before its effects can be adequately assessed. However, experts have already flagged the vague language as a significant shortcoming. Since Mexico is the United States’ third-largest trading partner, accounting for more than 14% of total trade, this new legislation may impact various aspects of the trade between the two countries.

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Discussions of cultural appropriation are not limited to domestic jurisdictions.

One of the most advanced conversations on cultural appropriation is taking place at the World Intellectual Property Organization (“WIPO”). Since 2001, one of WIPO’s committees—the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore—has been deliberating on three draft documents that advocates hope will turn into binding international treaties. The document dealing with cultural appropriation focuses on the intersection between intellectual property law and traditional cultural expressions.18 The other two documents deal with genetic resources and traditional knowledge.

The draft document dealing with genetic resources was the subject of a diplomatic conference, and resulted in a treaty approved by the WIPO general assembly on May 24, 2024.19 The WIPO Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge creates international law requiring patent applicants who rely on genetic resources and traditional knowledge from indigenous communities to disclose the source or origin of such information.20 This new law on the sister topic of genetic resources and traditional knowledge may also result in the conversion of the draft instrument on traditional cultural expression into a treaty. If the current version of this draft instrument becomes a treaty, then there will be an international legal right against some forms of cultural appropriation. However, the deliberations are unpredictable and timeconsuming; thus, such a legal right might not get adopted.

Given these national and international developments, there is a moderate chance claimants will ask courts in the United States to rule on a claim against cultural appropriation soon. Until we get such a ruling, however, there may be two promising avenues for claimants. For the first option to work, the cultural symbols giving rise to the lawsuit must be a subject matter of intellectual property laws. In that case, using recognized rights under such laws may of-

fer the most predictable outcome for claimants. Many cultural appropriation subjects could be part of a trademark, trade dress, or copyright infringement claim. Beyond these core claims, doctrines such as misappropriation or false designation of origin may also provide some redress.

However, these theories of law have specific requirements that must be met. Unfortunately for claimants, many cultural appropriation disputes do not meet one or more of these requirements. For instance, the claimant’s use of their symbols in commerce is a core part of a trademark claim.

Since many source communities may not have evidence to support sustained and public use of their symbols in commerce, their claims may be weak. Additionally, many of the cultural symbols that are subject to cultural appropriation disputes are sacred to the source community, which does not allow their commercialization.

There are also challenges in identifying owners of collective goodwill who could satisfy standing requirements for many of these claims.

Second, claimants could rely on the IACA, in place since 1990, which enables members of Native American communities recognized at the federal or state levels to bring legal action to stop misrepresentation of their art in the marketing of goods or services. However, there are few legal cases citing violations of the act. Commentators cite many challenges to enforcement, ranging from lack of proper investigation to the light penalties imposed in the few instances in which infringement was found.21 The options outlined above highlight the minimal instances in which cultural appropriation claims could be made in a court of law. For instance, the IACA only applies to members of officially recognized tribes, excluding all other social groups in the United States. Further, using intellectual property or adjacent legislation is limited to the commercial context, which excludes a significant portion of cultural appropriation incidents. The strong protections for freedom of expression enshrined in the Constitution mean that claimants

could only bring action against those accused of cultural appropriation in limited circumstances, such as commercial misappropriation.

Aman K. Gebru is a law professor at the University of Houston Law Center.

Endnotes 1. Patricia Park, Why all the Fuss over Katy Perry’s Geisha Performance at the AMAs?, THE GUARDIAN (November 26, 2013), available at https://www.theguardian.com/commentisfree/ 2013/nov/26/katy-perry-geisha-performance-american-music-awards-fuss.

2. Nolan Feeney, Katy Perry’s ‘Geisha-Style’ Performance Needs to Be Called Out, THE ATLANTIC (November 25, 2013), available at https://www.theatlantic.com/entertainment/archive/2013/11/katy-perrys-geisha-style-performance-needsto-be-called-out/281805/.

3. Danika Fears, Katy Perry’s Geisha-inspired AMAs Performance Stirs Controversy, TODAY.COM (November 25, 2013), available at https://www.today.com/style/katy-perrys-geisha-inspiredamas-performance-stirs-controversy-2d11650791.

4. Avery Matera, 5 Times Victoria’s Secret Was Accused of Cultural Appropriation: From Chinese Dragons to Native Headdresses, TEEN VOGUE, (November 7, 2018).

5. Cultural Appropriation, “[T]he act of taking or using things

from a culture that is not your own, especially without showing that you understand or respect this culture,” CAMBRIDGE DICTIONARY, available at https://dictionary.cambridge.org/us/dictionary/english/cultural-appropriation.

6. For a detailed sociological analysis of the harms cultural appropriations cause, see BRUCE ZIFF AND PRATIMA V. RAO, Borrowed Power: Introduction to Cultural Appropriation: A Framework for Analysis, in BORROWED POWER: ESSAYS ON CULTURAL APPROPRIATION (Rutgers University Press, 1997).

7. Authenticity is a highly controversial concept given the complicated changes cultural symbols undergo to arrive in their current form. For an in-depth analysis of cultural authenticity, see ANTHONY KWAME APPIAH, COSMOPOLITANISM: ETHICS IN A WORLD OF STRANGERS (2007).

8. MGA Ent., Inc. v. Harris, No. CV2011548JVSAGRX, 2021 WL 4732923 (C.D. Cal. Aug. 27, 2021).

9. Riddhi Setty, OMG Girls Case Sidesteps Cultural Appropriation’s Day in Court, BLOOMBERG LAW (May 9, 2023), available at https://news.bloomberglaw.com/ip-law/omg-girlz-casesidesteps-cultural-appropriations-day-in-court.

10. Sealaska Heritage Inst. Inc. v. Neiman Marcus Grp. LTD, LLC, No. 1:20-cv-00002-SLG (D. Alaska filed Apr. 20, 2020).

11. Elizabeth Jenkins, Lawsuit over the cultural appropriation of Native designs proceeds, despite Neiman Marcus bankruptcy, ALASKA PUBLIC MEDIA (PBS, NPR) (July 1, 2020), available at https://alaskapublic.org/2020/07/01/lawsuit-overcultural-appropriation-of-native-designs-proceeds-despiteneiman-marcus-bankrupty/.

12. US Copyright Registration Number: VAu001380817 / 201909-06.

13. Indian Arts and Crafts Act of 1990, Pub. L. No. 101-644, 104 Stat. 4662 (1990). The IACA is a truth-in-advertising law designed to penalize misrepresentations that falsely suggest that a product is Native American-produced.

14. Nancy Woolf, Urban Outfitters settles with Navajo Nation after illegally using tribe’s name, THE GUARDIAN (November 18, 2016), available at https://www.theguardian.com/

us-news/2016/nov/18/urban-outfitters-navajo-nation-settlement.

15. WIPO has created a database of national laws on traditional cultural expressions, among other subjects. See Traditional Knowledge, Traditional Cultural Expressions & Genetic Resources Laws, available at https://www.wipo.int/tk/en/ databases/tklaws/.

16. The Federal Law for the Protection of the Cultural Heritage of Indigenous and Afro-Mexican Peoples and Communities (2022).

17. Chantal Flores, Mexico’s cultural appropriation ban is off to a messy start, THE VERGE (February 12, 2022), available at https://www.theverge.com/22924327/mexico-cultural-appropriation-law-indigenous-and-afro-mexican communities.

18. World Intellectual Property Organization, The Protection of Traditional Cultural Expression: Draft Articles, WIPO/ GRTKF/IC/47/5 (March 14, 2023).

19. Press Release, World Intellectual Property Organization, WIPO Member States Adopt Historic New Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (PR/2024/919, May 24, 2024), available at https:// www.wipo.int/pressroom/en/articles/2024/article_0007.html.

20. The WIPO Genetic Resources Treaty already has more than the 15 signatories it needs to enter into force. According to Article 17, it will enter into force three months after 15 member states have signed it. Press Release, World Intellectual Property Organization, WIPO Member States Adopt Historic New Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (May 24, 2024), available at https://www.wipo.int/pressroom/en/articles/2024/article_ 0007.html. See also WIPO General Assembly, Report on the Outcome of the Diplomatic Conference to Conclude an International Legal Instrument Relating to Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources.

21. William J Hapiuk Jr., Of Kitsch and Kachinas: A Critical Analysis of the Indian Arts and Crafts Act of 1990, 53 STAN. L. REV., No. 4, at 1009-1075 (2001).

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By Jaclyn I. Barbosa

Andrew Gratz Is on a Mission to Turn Lawyers Into Leaders

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little over two years ago, Andrew Gratz was attending a corporate executive development program when a crucial question popped into his head—“Are lawyers prepared to be effective leaders?” To answer this question, Gratz started reflecting on his 20-plus year legal career of leading teams responsible for global businesses, joint ventures, compliance issues, corporate governance initiatives, and multi-billion dollar transactions. As he thought about these experiences, working with, and for, other lawyers, Gratz had an epiphany: leadership development, collaboration, and teambuilding skills are conspicuously absent within the legal profession.

Eager to address this deficit, Gratz took action. He penned a series of articles titled “Lawyers as Leaders” for Corporate Counsel magazine.1 These articles championed foundational leadership principles gleaned from his MBA, corporate, and government affairs experience and emphasized the importance of aligning with an organization’s long-term goals, taking ownership, and building and developing cohesive, goal-oriented teams.

The positive reception to Gratz’s writings and thought leadership prompted him to explore further avenues for change. His focus turned to Houston’s law schools, pivotal institutions shaping future legal leaders.

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While these institutions excel in imparting legal doctrines and courtroom tactics through rigorous, often adversarial teaching methods, Gratz questioned whether they adequately equip students with collaborative skills crucial for effective legal practice and societal impact.

Gratz believes the absence of training and development at the law school level is even more problematic given the need for leadership skills as lawyers advance in their careers. Lawyers have the power to influence, advocate, and drive change. As such, lawyers urgently need to possess the necessary decision making and emotional intelligence to navigate the increasingly complex and ever-changing professional environment in both the public and private sectors.

Moreover, lawyers are expected to lead and manage large teams of varying skills and expertise, from trial teams to transaction matters, as they become more senior. Some succeed when asked to take on this role, and others fail because they may not have been equipped with the necessary skills to excel at these responsibilities.

To address these concerns, Gratz developed a course, “Lawyers as Leaders,” for his alma mater, the University of Houston Law Center. In developing the course, Gratz interviewed managing partners from numerous AmLaw 50 firms, global business leaders, and general counsels, who confirmed Gratz’s assertion that the legal profession has a leadership gap that must be closed.

While being incredibly generous with their time, each of these legal leaders also gave Gratz suggestions on the topics and issues that should be discussed and highlighted in his class. With this feedback in mind, Gratz designed a curriculum with assignments focused on leadership development, intensive discussion-based learning, and guest speakers from Houston’s legal and business communities.2 Gratz launched the inaugural class in Spring 2023, and he was asked to return to teach the course in Spring 2024. The class’s impact has been immediate and profound, with numerous students reporting that they immediately began implementing into their own lives the ideas and skills learned

in the class, which include a willingness to take more risks and “learning how to be comfortable in being uncomfortable.” The course has also attracted attention for its pioneering approach to integrating leadership training into the standard law school curriculum. With an emphasis on practical leadership development, the course empowers aspiring lawyers to navigate the intricate and dynamic professional landscape in both the public and private sectors.3

Andrew Gratz, associate general counsel at LyondellBasell and adjunct professor at the University of Houston Law Center.

From Law Schools to the Entire Legal Community Building on the success of Gratz’s “Lawyers as Leaders” class, the University of Houston Law Center recently started an Initiative on Lawyers as Leaders partly based on Gratz’s thought leadership. According to its website, the initiative “envisions leadership as a lifelong journey, and . . . intends to enhance students’ study and practice of leadership, and promote the study of what it means to be an effective and productive leader in the legal profession.” Gratz intends for the initiative to host workshops, organizations, discussion groups, and other forums to build and cultivate leadership among law students and the entire Houston legal community.

Indeed, beyond law schools, Gratz believes law firms and in-house legal departments must prioritize the implementation of leadership development programs.

Why? Because these programs can lead to increased client satisfaction, improved employee retention, and enhanced reputation.

Leadership skills are a necessity in today’s complex legal landscape, which emphasizes the urgency and importance of such initiatives. While client needs and billable hour

requirements very often seem to take priority over training, law firms and in-house legal departments must act intentionally to prioritize leadership training and invest in their lawyers’ professional development.

Leadership Is a Journey, Not a Destination Gratz believes the legal profession stands to greatly benefit from a stronger emphasis on leadership development. Integrating leadership training into law school curricula and prioritizing leadership development programs in law firms and in-house legal departments can ensure future lawyers are not only well-versed in legal expertise but also well-equipped with crucial leadership skills necessary to navigate the complex and ever-changing professional landscape. This proactive approach will not only enhance the professional capabilities of lawyers but also empower them to make meaningful contributions to their communities, thereby fostering a more ethical and socially responsible legal profession.

Jaclyn I. Barbosa is a Houston-based solo practitioner providing legal expertise in all areas of business and consumer law. She currently serves as an editorial board member of The Houston Lawyer.

Endnotes

1. Andrew Gratz, Lawyers as Leaders: 6 Ways to Be the Calm in the Storm, LAW.COM’S CORPORATE COUNSEL, (Jan. 24, 2022), https://www.law.com/corpcounsel/2022/01/24/6-ways-to-bethe-calm-in-the-storm/; Andrew Gratz, Lawyers as Leaders: Building the Team, LAW.COM’S CORPORATE COUNSEL (Feb. 09, 2022), https://www.law.com/corpcounsel/2022/02/09/lawyers-asleaders-building-the-team/; Andrew Gratz, Lawyers as Leaders: 4 Steps to Take to Develop Your Team, LAW.COM’S CORPORATE COUNSEL (Mar. 03, 2022), https://www.law.com/corpcounsel/ 2022/03/03/lawyers-as-leaders-4-steps-to-take-to-develop-yourteam/; Andrew Gratz, Lawyers as Leaders: Three Steps to Improving Performance, LAW.COM’S CORPORATE COUNSEL (Mar. 24, 2022), https://www.law.com/corpcounsel/2022/03/24/lawyersas-leaders-three-steps-to-improving-performance/.

2. LAWYERS AS LEADERS: SPRING 2024 SYLLABUS, https:// www.law.uh.edu/assignments/spring2024/22930.pdf (last accessed July 25, 2024).

3. See Meghan Hemingway, Andrew Gratz on the Need for Lawyers to Become Leaders, LAWDRAGON (Apr. 8, 2024), https:// www.lawdragon.com/lawyer-limelights/2024-04-08-andrewgratz-on-the-need-for-lawyers-to-become-leaders; Will Grant, Andrew Gratz is Transforming Lawyers into Leaders, MODERN COUNSEL, (Apr. 30, 2024), https://modern-counsel.com/2024/ andrew-gratz-lyondellbasell-2/#:~:text=The%20University%20 of%20Houston%20Law%20Center%20established%20the%20 Initiative%20on,in%20the%20practice%20of%20law.

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By Rachel Powitzky Steely

dominated by men, with women often relegated to background or supporting roles. Despite women now making up the majority of law school graduates according to the American Bar Association’s (“ABA”) 2023 Profile of the Legal Profession,1 the courtroom remains one of several final frontiers where the gender gap is starkly evident. In a 2021 report issued by the ABA’s Commission on Women in the Profession, research confirmed a disturbing gender gap among elite trial attorneys.2 This particular report focused on records from the U.S. Court of Appeals for the Seventh Circuit, although the report suggests the gender gap could be even worse in other courts.3 Another remaining frontier is women in law firm leadership roles. The National Association for Law Placement’s 2023 Report on Diversity in U.S. Law Firms found that, although women now ast year, I posted a picture of constitute the majority of law firm assoour trial team on LinkedIn and ciates at 50.3%, the repreasked my network if sentation of women among they had ever seen equity partners at firms is an all-female trial still only 23.7%.4 team in the courtroom. The These These disparities are responses were amazing and disparities not due to a lack of talent gratifying. For months, I had inquiries of “how” and “why” are not or ambition among female lawyers, but rather sysI put together an all-female due to a temic barriers and biases. trial team. There were many reasons, but the most obvilack of It is crucial to recognize ongoing challenges ous was that I had a team of talent or the that women face in the letalented litigators who were ambition gal profession, just as it is willing to work around the clock to prevail. among female to appreciate the transformative impact diverse perOver the last 15 years, I lawyers, but spectives bring to a trial have worked with many trial teams made up of mostly rather systemic team, firm, and clients. female lawyers. For a long barriers and In my opinion, three important factors play a role time, we drew the attention biases.” in growing the next genof judges, staff, and juries. eration of female lead trial One trial was dubbed the “boys attorneys: vs. girls” trial, and in another, the judge commented that he had never seen a 1. Clients promoting and supporting courtroom with only women. Slowly, female lead lawyers but surely, these outings are becoming Most publicly-traded companies more commonplace, and more women and large corporations insist on are leading the efforts at trial. diversity of trial counsel, but many The legal profession has long been

Purposeful Inclusion:

The Key to Growing Female Leadership in the Courtroom

L

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‘‘

do not focus on who leads the trial teams. Having the client support and encourage diverse attorneys playing an active role at trial provides significant leverage for partners to rely on young female attorneys at trial.

Luckily, I work with clients who promote and insist on purposeful inclusion.

2. Active participation in hotly contested and contentious litigation Female lawyers need to experience hotly contested and contentious litigation, which can turn dirty and unfair and in which their gender may be used against them. It still happens. Just last year, our trial team had several sexist remarks hurled against them. Female lawyers are still sometimes mistaken for staff or the court reporter. Pretending that female lawyers will always be treated the

same as others does not help prepare trial lawyers. Female lawyers need

to know how to respond and move forward in a professional and effective manner in the face of contentious litigation.

3. Firms supporting female-led trial teams and championing female leadership One of the most effective mechanisms to retain and train female trial lawyers is to demonstrate that firms

support female-led trial teams and female leadership. The policies, practices, and culture within law firms can create obstacles for women, potentially contributing to attrition. Though the reasons for women leaving law firms are diverse, and not entirely under a firm’s control, it is important firms use the considerable influence they have to help narrow the gender gap.

Visibility is vital. I lateraled as an associate to Gardere Wynne Sewell LLP, which later merged with Foley & Lardner LLP, because it was one of the few large Texas firms that had female partners with children leading trial and corporate teams.

The presence of female partners who balance successful trial careers with familial responsibilities serves as a powerful testament to the professional and personal opportunities available to aspiring female litiga-

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tors. Women need to see that it is possible to maintain a family and an active practice, if they choose. And they need guidance on how to juggle a busy trial schedule with young children, aging parents, and other life responsibilities.

Authenticity in the Courtroom Beyond addressing and promoting these three factors, we must emphasize and embrace authenticity. Early in my career, female trial lawyers were expected to be abrasive, which made me uncomfortable. I watched men avoid female trial attorneys because of the assumed hostility. I soon instead learned how valuable authenticity was in the courtroom, and now as a partner and vice chair of the Labor & Employment Practice Group at Foley, in my mentorship of younger attorneys, particularly women, I try to teach them that trial attorneys need to be focused on one thing—winning. The bullying, sexist, and borderline unethical behavior we still occasionally encounter from opposing counsel as female trial attorneys is to be navigated, but we cannot lessen our own standards to stoop to their level.

As a seasoned advocate and mentor, my own journey reflects a commitment to reshaping the landscape of trial advocacy.

By championing young women in obtaining trial experience early in their careers, I seek to dismantle barriers and pave the way for future generations of female leaders in the legal profession. Emphasizing the value of authenticity and ethical integrity in courtroom conduct, I strive to instill confidence in young attorneys, empowering them to navigate challenges with grace and professionalism.

Looking Forward Though much has changed in the last 30 years, there are still precious few experienced women litigators with large books of business at major firms. One of my missions is to help change that.

Looking forward, the path to achieving gender parity in trial leadership requires 22 July/August 2024

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sustained efforts in promoting diversity, confronting biases, and fostering inclusive environments. Women have a difficult path from law school to law firm leadership, in particular trial team leadership. Firms, clients, and attorneys themselves all have a role to play to address the attrition and give more women the experience and opportunity they need to step into leadership roles.

As I have seen many talented women walk away from large firms, I advocate at Foley for getting young women trial experience, as that experience offers a path to reach the highest levels of the profession. I emphasize to my clients the value of having diverse voices advocating on their behalf. Bringing even more talented women into the fold will require purposeful inclusion, and I know that harnessing the collective strengths of diverse perspectives will not only enrich leading trial teams like my own, but also advance equity across the legal profession.

Rachel Powitzky Steely is a leading trial lawyer who helps companies protect their technology, confidential information and workforces, and assists executives during career transitions that may lead to litigation.

Frequently recognized for her legal achievements, both in Texas and nationally, Rachel’s extensive trial experience includes employment, trade secrets, restrictive covenants, and commercial litigation.

Endnotes 1. ABA Profile of the Legal Profession 2023: Women, available at https://www.abalegalprofile.com/women.html (last visited June 27, 2024).

2. Amy J. St. Eve and Jaime B. Luguri, How Unappealing: An Empirical Analysis of the Gender Gap among Appellate Attorneys, ABA Commission on Women in the Profession (2021), available at https://www.americanbar.org/ content/dam/aba/administrative/women/how-unappealing-f_1.pdf.

3. Id. at 6.

4. NALP 2023 Report on Diversity in U.S. Law Firms, at 5, available at https://www.nalp.org/uploads/Research/2 023NALPReportonDiversityFinal.pdf (last visited June 27, 2024).

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By Anna Archer

Hope for the Lost and Forgotten:

Houston’s Not Guilty by Reason of Insanity Court

It is an affirmative defense to “prosecution that, at the time of

the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.1

O

”

ne of six specialty courts in Harris County, the Not Guilty by Reason of Insanity (NGRI) Specialty Court is an arm of the Competency Restoration (CR) Court, and the missions of the two courts go hand in hand.

Both courts benefit from the expertise of judges Mark Ellis, Lori Gray, and Natalia Cornelio, as well as the various mental health experts and lawyers who regularly practice in the courts. Criminal cases involving severe mental health issues can be extremely time consuming. It is therefore extremely important that the judges, lawyers, and other professionals dealing with these cases understand the system.2 Defendants claiming they are NGRI— an affirmative defense where the defendant admits to the offense but claims a lack of understanding that it was wrong 24 July/August 2024

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at the time—must undergo a mental health evaluation. If the parties agree the person is insane after this evaluation, no trial is necessary. Prior to deciding to agree to an NGRI judgment, prosecutors consider factors like the veracity of the report, the nature of the offense, the complainant’s wishes, and the potential outcome. Michele Oncken, division chief of the Mental Health and Child Fatality Division for the Harris County District Attorney’s Office, notes that what is important “is treatment and safety for the community based on getting this person better.”3 If there is no agreement on insanity, a trial will proceed before a judge or jury in the NGRI Court.

According to Paul Morgan, a boardcertified criminal defense attorney, the relationship between the defense lawyers and prosecutors in the NGRI Court is collaborative, and it is a rehabilitative community. They all want the defendants rehabilitated, on proper medications, and re-integrated back into society. A large portion of the non-violent cases involve people who are disenfranchised or experiencing homelessness, and Morgan believes that it is good to move these defendants through the system efficiently to increase their compliance with medications and decrease criminality.4 If a violent offender is found NGRI, the offender is placed on a waiting list and remains in jail until a spot is available at the maximum security unit at Vernon State Hospital (VSH). Once admitted to VSH, the patient’s case will be reviewed once a year by a Dangerness Review Board (DRB) comprised of mental health professionals to determine if the patient is a danger to him or herself or others.

The DRB recommends either that the patient be kept in the hospital or be released.5 If the DRB recommends release, the finding is sent to the NGRI judge and the lawyers on the case. If there is disagreement about the release, the NGRI judge will decide if the patient should be released after a hearing.6 Released patients are supervised by the Harris Center for Mental Health and IDD

(“HCMH”), and they remain under the supervision of the court for the window of time on the high end of the punishment range.7 Morgan notes that defendants in the NGRI Court are often severely mentally ill and have been untreated for years.

Morgan is passionate about these cases that involve “people [who] are lost and forgotten,” noting that almost every defendant who ends up in the NGRI Court has a horrible backstory. Morgan has dedicated his career to helping these individuals find their ways to a more stable life so they are able to make positive contributions to our society.8 Morgan points out that prosecutors in some other Texas counties may not understand mental illness, or see it as an obstacle, cop out, or waste of time. But in Harris County, the people who regularly practice in or work at the NGRI Court “take mental illness seriously and treat the defendants with some modicum of dignity.”9 Harris County is fortunate to have a group of prosecutors, defense attorneys, mental health professionals, and judges who work together to tackle cases involving defendants who have severe mental health issues.

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Anna Archer is a member of The Houston Lawyer editorial board and hosts Behind the Lines: The Houston Lawyer Podcast.

Endnotes 1. TEX. PENAL CODE ANN. § 8.01(a). “The term ‘mental disease or defect’ does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” Id. § 8.01(b).

2. Interview with Paul Morgan (June 15, 2024) (on file with author).

3. See Michele Oncken et al., How to Navigate the Mental Health Dockets and Courts in Harris County (Jan. 13, 2023) (transcript available in HBA CLE Library).

4. Morgan, supra note 2.

5. Id. 6. Id. 7. HCMH provides significant support in the NGRI Court.

See Oncken, supra note 3; see also The Harris Center for Mental Health and IDD, theharriscenter.org (last visited July 14, 2024).

8. Morgan, supra note 2.

9. Id.

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Benefiting Houston Volunteer Lawyers Monday, November 11, 2024 · 7:00 – 10:00 p.m.

River Oaks Country Club

100% of net proceeds raised for the Harvest Celebration directly benefit pro bono efforts in our community through Houston Volunteer Lawyers

Thank you to the early underwriters of the 75th Annual Harvest Celebration (as of July 24, 2024).

Pledge your support of $1,000 or above by October 31 to be included in the full-page Houston Chronicle ad the Sunday after Thanksgiving.

To learn more about sponsoring the Harvest Celebration, visit hba.org/harvest.

Diamond Sponsors

Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright Vinson & Elkins LLP Williams Hart & Boundas, LLP

Ruby Sponsors

Benny Agosto, Jr., & Nikki Agosto AZA Law Chevron Corporation HBA Litigation Section

Sapphire Sponsors

BakerHostetler LLP Blank Rome LLP Chamberlain Hrdlicka Harris County District Attorney’s Office LyondellBasell Industries Morgan, Lewis & Bockius LLP Winston & Strawn LLP

Gold Sponsors

Arnold & Porter LLP Beck Redden LLP Hicks Thomas LLP Johnson DeLuca Kurisky & Gould, P.C. King & Spalding LLP W. Michael & Laurie D. Moreland Spencer Fane

Silver Sponsors

Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Barry & Sue Abrams Jane & Doug Bland 26 July/August 2024

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ConocoPhillips Diggs & Sadler Foley & Lardner LLP Gibbs & Bruns LLP Gibson, Dunn & Crutcher LLP Penny L. & Craig B. Glidden Tom & Debbie Godbold Haynes and Boone, LLP Linda & Tracy Hester Hicks Davis Wynn, P.C. JAMS Jones Day Liskow McGuireWoods LLP O’Melveny & Myers LLP Pillsbury Winthrop Shaw Pittman LLP Ryan & Dawson Shipley Snell Montgomery LLP Wright Close & Barger, LLP Yetter Coleman LLP

Bronze Sponsors

Katie & Stephen Baehl Bissinger, Oshman, Williams & Strasburger LLP Bradley Arant Boult Cummings LLP Christian Attar Clark Hill Cokinos | Young Coné PLLC Collin & Jacquelyn Cox Dentons US LLP Energy Transfer Fogler, Brar, O’Neil and Gray LLP Frost Brown Todd LLC Gray Reed Hagans David & Tammie Harrell

Hon. Kristen Hawkins HBA Energy Law Section HBA Federal Practice Section Houston Lawyer Referral Service, Inc. Jackson Walker LLP Jenkins and Kamin, LLP Jim Adler & Associates Kean Miller Mahendru, PC McDowell Hetherington LLP Audrey Momanaee Munsch Hardt Kopf & Harr, P.C. O’Neil Wysocki, PC Jeff Paine & Brandon Holcomb (Goldman Sachs) Porter Hedges LLP Rapp & Krock PC Reed Smith LLP Reynolds Frizzell LLP Rusty Hardin & Associates, LLP Sarofim Foundation Skadden, Arps, Slate, Meagher & Flom LLP South Texas College of Law Houston University of Houston Law Center Womble Bond Dickinson (US) LLP

Crystal Sponsors

Anna Archer Sharon M. Beausoleil Brent & Christy Benoit Susan L. Bickley & Bob Scott Bragg Law PC Hon. Harvey Brown The Buck Family Fund Hon. Brett & Erin Busby Bush Seyferth PLLC BWA Video, Inc.

Cozen O’Connor David Toy Law Firm Mindy & Joshua Davidson Wendy & Alistair Dawson Amy Catherine Dinn Emma Doineau Eric & Kami D’Olive Kaylan & John Dunn Ali Foyt Lynn & Stewart W. Gagnon Roland Garcia Hon. Joseph “Tad” Halbach Harris Hoss Mediations & Arbitrations Gregory & Jennifer A. Hasley HBA Juvenile Law Section Jim & Cisselon Nichols Hurd IMS Legal Strategies | Juris Medicus Shae Keefe & Mark Jacobs Sara & Jason Keith Daniella D. Landers James Leader Elizabeth & Russell Lewis Peter Lowy & Gabriela Boersner Tim & Ginnie McConn MehaffyWeber PC

Hon. Margaret Mirabal Hon. Daryl L. Moore Greg & Jennifer Moore Nathan Sommers Gibson Dillon PC Stephanie Noble Christopher Northcutt Jeff & Melissa Oldham Olson & Olson, LLP Connie H. Pfeiffer Hon. Margaret Poissant Quadros Migl & Crosby PLLC Hon. Frank Rynd Travis & Sandy Sales Tramaine Singleton Quentin & Aerin Smith Hon. Susan S. Soussan Terry G. Fry, P.C. & Gina Lucero The Law Office of Daniel D. Horowitz, III, PC Brooks & Jacquelyn Tobin Samantha Torres & Jimmy Hollowell Hilary Tyson Sandy & Greg Ulmer Roy & Dominique Varner Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP

Ytterberg Deery Knull LLP Krisina Zuñiga & Rick Houghton

Friend Sponsors

Hon. Terry Adams Hon. Julie Countiss Patrick Flynn David T. Harvin Sylvia Mayer with S. Mayer Law Hon. Veronica Rivas-Molloy & David Molloy Jane Langdell Robinson Hon. Robert Schaffer Hon. Charles Spain & John Adcock Hon. Cheryl Elliott Thornton Travis Torrence

Other Sponsors

Anthony & Antoinette Franklyn In honor of Vinh Ho Pennell Law Firm, PLLC

In-Kind Sponsors

Innovative Legal Solutions

thehoustonlawyer.com

July/August 2024

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An Interview with HBA President David Harrell HBA President David Harrell talks about the significance of his family and mentors, and the areas the he wants to focus on during his year as HBA president.

Tell us about your family David: My dad was a police officer, my mom a college instructor. I’m the oldest of three, and while we lost my dad three years ago, my mom and sisters all live in the Houston area. I married Tammie Fergusson in 2006. In addition to being a great lawyer herself, Tammie has been loving and supporting— without her, my life and career would look very different. One of our great joys is our three kids, Emma (15), Ava (12), and Joshua (9). Our time is spent dashing in different directions to soccer games, gymnastics practices and meets, school activities, and a host of recreational sports.

Where did you go to college and law school?

David: I graduated from the University of Houston in 1992 with a degree in Accounting, and I earned my law degree from SMU in 1995.

What prompted you to pursue a career in law?

David: I can’t pinpoint when I decided to become a lawyer. My dad was my hero, and I wanted to be a police officer just like him. Eventually, that turned into becoming a lawyer. I mirrored the respect for law and the judiciary that I saw from him.

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HBA Presid

What are your areas of specialty and what firms have you worked with in your legal career?

David: I started my career at McGlinchey Stafford, then I joined Locke Liddell & Sapp in 1999. I’ve been there ever since, although the firm name has changed a couple of times, ultimately to Locke Lord LLP. Who are your mentors?

David: I started my career learning about litigation from Joel Morhman, while Ellis Tudzin taught me about practicing law.

When I joined Locke Lord, I got to work alongside trial lawyers like Craig Weinstock and Janet Militello, who taught the importance of preparation, creativity, and setting high standards. Roland Garcia and Scott Sheehan exemplified the importance of participating in bar activities and the community. But I’ve also had the opportunity to learn from my peers, such as Derrick Carson, Brent Benoit, and Chris Verducci—all Locke Lord partners who are excellent lawyers.

What are some of your hobbies and interests?

David: I enjoy pretending to play golf. I’m a great spectator at kids’ sports, but it took a while for me to become a silent observer. My kids eventually convinced me that I don’t know as much

ent David H

arrell

as I think I do, so now I just cheer (usually) and drive.

Are you involved with other professional or community organizations?

David: My first involvement with the HBA was as a very young lawyer working with the Historical Committee’s Living History Project. I have been active in the State Bar of Texas, chairing the Business Law Section and the ADR Section. I am currently chair-elect of the Texas Business Law Foundation. I have served on the Board of the Chartered Institute of Arbitrators. I am a member of the International Law Section of the New York State Bar Association, and I chair the Texas Chapter of that section. Outside of professional organizations, I have worked with the Houston Food Bank, Cenikor Foundation, and various organizations through my church.

What do you think is the role of the organized bar in society today?

David: Membership in the HBA is voluntary. As a young lawyer, it was a given that I would join the largest, oldest local bar

organization available to me. It offers excellent networking activities, the ability to select from a variety of committees that mirror member interests, and active sections that provide excellent CLE opportunities.

But the HBA also provides a hub for members of other bar organizations to find what they may be missing elsewhere. I don’t see the HBA as competing with other local organizations; I see it as the “of course I’m a member” organization that everyone should elect to join.

What do you see as the role of the president in the Houston Bar Association?

David: I’ve had the opportunity to observe some outstanding lawyers serve as HBA president. I told Diana Gomez multiple times how hard it would be to follow after her after she set the bar so high. The

HBA president is an ambassador for the organization, a contact point for other bar organizations, and has the opportunity to steer the organization with focus areas.

Fortunately, the task is made much easier by a hard-working staff that does the heavy lifting, as well as an active board of involved lawyers, a collection of dedicated committee chairs, and section chairs who are dedicated to their practice areas and education.

What areas will you focus on during your administration and why?

David: I have three major focus areas for the coming year. First, we are emphasizing the HBA’s role in the community by identifying ways to partner with local, affinity, and specialty bar associations and their members so that we can benefit from their voices and perspectives, while providing the networking and membership benefits

of the HBA. Meanwhile, the Historical Committee is expanding the Living History Project to record the histories of 10 members of the local bar who were instrumental in making the bar the community that it is today. Second, we are focusing on education. We are developing CLE programming focused on the new Texas Business Court, as well as articles for The Houston Lawyer that focus on specialty courts. Finally, we are highlighting opportunities with two of the HBA’s ancillary organizations, Houston Volunteer Lawyers and the Houston Lawyer Referral Service.

What is your message to HBA members as we begin the 2024-2025 bar year?

David: Thank you for your vote of confidence in me. I hope you will be active with the HBA, its committees, and its sections.

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Locke Lord Partner David Harrell Becomes Houston Bar Association President David Harrell, partner at Locke Lord LLP, became the 2024-2025 president of the Houston Bar Association at the HBA Annual Dinner on May 14. He succeeds Diana Gomez of Chamberlain Hrdlicka, who was recently elected to the State Bar of Texas Board of Directors as Director 4, Place 3.

The evening included a presentation of the HBA President’s Awards, given to outstanding members to celebrate their accomplishments over the past year. The HBA also presented the Justice Eugene A. Cook Professionalism Award, the association’s highest award for professionalism, to U.S. District Judge Keith P. Ellison of the United States District Court for the Southern District of Texas and Christopher L. Tritico of Shauna Johnson Clark Tritico Rainey, PLLC. The HBA presented the Justice Ruby Kless Sondock Award to Judge Carolyn Dineen King, a circuit judge on the United States Court of Appeals for the Fifth Circuit, recognizing outstanding achievement and leadership for women in the law. HBA Past President (2019-2020) and current Houston Bar Foundation Board Member Benny Agosto, Jr., managing partner of Abraham, Watkins, Nichols, Agosto, Aziz & Stogner, was the recipient of the Exemplary Service to the Legal Profession and Community Award.

Photography by Deborah Wallace, Barfield Photography (exceptions noted with *)

2023-2024 HBA President Diana Gomez presents the gavel to 2024-2025 HBA President David Harrell.

Harrell presents the plaque of service to Gomez.* 30 July/August 2024

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Harrell with his family (L to R) Penny Fergusson, Tammie Harrell, Joshua Harrell, Brenda Harrell, Ava Harrell, and Emma Harrell.

Harrell poses with HBA Executive Director Vinh Ho and Former Executive Director Mindy G. Davidson, who retired in June.

Award Winners Harell poses with Christopher L. Tritico of Tritico Rainey, PLLC, one of this year’s recipients of the Justice Eugene A. Cook Professionalism Award.

Harrell and Judge Keith P. Ellison of the United States District Court for the Southern District of Texas. Judge Ellison was a recipient of the Justice Eugene A. Cook Professionalism Award.

Harrell poses with Judge Carolyn Dineen of the United States Court of Appeals for the Fifth Circuit, and her son, Philip D. Randall. Judge King was this year’s recipient for the Justice Ruby Kless Sondock Award.

Gomez presents the Exemplary Service to the Legal Profession and the Community Award to Benny Agosto, Jr. (Abraham, Watkins, Nichols, Agosto, Aziz & Stogner).

Gomez with HBA County Law Library co-chairs and Harris County Robert W. Hainsworth Law Library leadership: Mariann Sears, Leslie Tan, Andre Davison, Justice Frances Bourliot, and Justice Julie Countiss.

Harris County Precinct 4 Commissioner Lesley Briones, champion of the HBA Lactation Pods Initiative.

Judge R.K. Sandill, champion of the HBA Lactation Pods Initiative.

Gomez with Fred Hagans and Judge Michael Gomez.

Judge Gomez received recognition as a champion of the HBA Lactation Pods Initiative and co-chair of the HBA Bench Bar Conference Committee.

HBA Gender Fairness Committee Co-Chairs Stephanie Noble, Akilah Craig, and Judge Cheryl Elliott Thornton.

HBA Family Law Section Chair Tasha Wilson.

Liz Malpass, editor in chief of The Houston Lawyer.

Gomez poses with Membership Committee Co-Chairs Bailey Bridges, Samantha Torres, and Raj Mahadass.

Judge Dena Palermo, co-chair of the HBA Bench Bar Conference Committee.

HBA Labor & Employment Law Section Chair Nehal Anand.

Davidson with HBA Litigation Section Chair Louie Layrisson.

Judge Hazel B. Jones and Joe Bailey, co-chairs of the HBA Bench Bar Conference Committee.

Judge Kyle Carter, recipient of the Outstanding Service to the HBA Award.

Judge Rabeea Collier, recipient of the Outstanding Service to the HBA Award, with her husband, Robert Collier.

Rocio Guadalupe Mendoza, president of the Hispanic Bar Association of Houston and recipient of the Outstanding Service to the HBA Award.

Jillan Marullo and Rich Frazier accept an award on behalf of HBA Energy Law Section Chair Melissa Munson.

** Award winners not pictured: Judge Latosha Lewis Payne, Melissa Munson, Kelly Sandill, and Anthony Franklyn. thehoustonlawyer.com

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50-Year Lawyers The HBA recognizes all members who reached their 50th year of practice Hon. Nancy Atlas Darrell Barger Dean Barker Bruce Baughman Riecke Baumann Roger Beck Michael Bell Robert Bennett Theodore Borrego James Bradley Gary Bush Richard Callaway Carol Carrier Thomas Cook Tom Cunningham Ernestine Dansby

Algenita Scott Davis Monte Donaldson David Dulock David Dunlap Stacy Eastland Robert Eutsler Michael Feehan Kenneth Fenelon Tommy Fibich Albert Finch Stewart W. Gagnon Dennis Gardner Albert Giddens Robert Givens John Glover Steven Glover

J. Weldon Granger Bill Green Michael Hays William Henri Riley Hetherington Larry Knapp John Lastrapes Stuart Levin Martin Levy Leonard Ligon Stephen Mason Edward Mattingly William Maynard Ralph McBride Stephen McCarthy Garland McInnis

Robert Morse Stephen Mueller Eugene Nettles Hon. Rory Olsen Randall Pais Daniel Pappas Charles Parker David Peden Bette Pesikoff Hon. Thomas Phillips Jesse Pierce Michael Powell Barry Racusin Clifton Ransom Ronald Restrepo Richard Rose

Barbara Runge Vince Ryan Carlos Ryerson George Sauer Gerard Swonke Marshall Taheri Thomas Taylor Edward Thigpen Robert Thomas Stephen Tipps Ben Tobor Timothy Unger Charles Walker Mark Wise William York

President’s Awards Each year, the Houston Bar Association president has the pleasure of recognizing outstanding contributions by HBA members.

The HBA has more than 30 committees with hundreds of HBA members volunteering their time to further community engagement, plan special projects and events, provide continuing legal education, and more. We recognize a lot of outstanding work goes on throughout the year. We take this opportunity to recognize only a fraction of this work and dedication with these President’s Awards at the HBA Annual Dinner. Diana Gomez presented the 2023-2024 President’s Awards to: Bench Bar Conference Committee Hon. Dena Palermo Hon. Michael Gomez Hon. Hazel B. Jones Joe W. Bailey Collin Cox Kelly Sandill County Law Library Committee AND County Law Library Leadership Hon. Frances Bourliot Hon. Julie Countiss Andre Davison Mariann Sears Leslie Tan 32 July/August 2024

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Gender Fairness Committee and Champions of the Lactation Pods Initiative Commissioner Lesley Briones Akilah Craig Carter Dugan Hon. Michael Gomez Stephanie Noble Hon. Latosha Lewis Payne Hon. Ravi K. Sandill Hon. Cheryl Elliott Thornton Membership Committee Bailey Bridges Anthony Franklyn Raj Mahadass Samantha Torres The Houston Lawyer Editorial Board Liz Malpass

Outstanding Service to the HBA Hon. Kyle Carter Hon. Rabeea Collier Rocio Guadalupe Mendoza Energy Law Section Melissa Munson Family Law Section Tasha Wilson Labor & Employment Law Section Nehal Anand Litigation Section Louie Layrisson Exemplary Service to the Legal Profession and the Community Benny Agosto, Jr.

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 Balch & Bingham LLP 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 Frye and Benavidez, PLLC 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, LLP Jeremy Northum, Attorney at Law

King & Spalding LLP Kirkland & Ellis LLP Law Office of Cindi L. Rickman Law Office of Norma Levine Trusch Law Office of Robert E. Price Law Offices of Omonzusi Imobioh Limbaga Law Locke Lord LLP LyondellBasell Industries Martin R.G. Marasigan Law Offices McDowell & Hetherington LLP McGarvey PLLC Morgan, Lewis & Bockius LLP 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 Travis Bryan Law Group, PLLC Vinson & Elkins LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs, & Goren, P.C. Winstead PC Winston & Strawn LLP Yetter Coleman LLP

HBA DEI Summer Associate Luncheon Celebrates Diversity and Recognizes Award Winners

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ore than 300 HBA members came together at the JW Marriott Houston Downtown on June 6 for the 26th Annual HBA DEI Summer Associate Luncheon. The event, hosted by the HBA Diversity, Equity & Inclusion Committee, recognized the achievements of this year’s HBA Diversity Award winners, Law Day contest winners, and DEI scholarship winners, as well as the 1L summer associates

Attendees of the 2024 DEI Summer Associate Luncheon.

and employers who participated in this year’s Summer Associate program.

The luncheon included a panel discussion with the Honorable Yvonne Ho (United States Magistrate Judge, Southern District of Texas) and Sergio Garza (Westlake Corporation), moderated by Harris County Attorney Christian D. Menefee.

The Honorable Yvonne Ho, Sergio Garza, and Christian D. Menefee Some of the students hired through the 2024 HBA DEI 1L Summer Clerkship Program. took part in a panel conversation at the luncheon.

The HBA Diversity, Equity and Inclusion Committee would like to thank the following employers for supporting the HBA’s 2024 DEI IL Summer Clerkship Program by reviewing applications for potential hiring of our applicants: Anchor QEA, LLC Andrews Myers, P.C.* Baker Botts L.L.P Bracewell LLP Bradley Arant Boult Cummings LLP BSP Law CenterPoint Energy, Inc.* Chamberlain Hrdlicka* The Ericksen Law Firm PLLC* Federal Public Defender* Foley & Lardner LLP Gray Reed Harris County Attorney’s Office* Harris County District Attorney’s Office* Haynes & Boone, LLP Hines* Holland & Knight LLP Hon. Te’iva Bell, 339th District Court Hon. Alfred Bennett, U.S. District Court Hon. Peter Bray, U.S. Magistrate* Hon. Rabeea Collier, 113th Civil District Court* 34 July/August 2024

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Hon. Natalia (Nata) Cornelio, 351st Criminal District Court* Hon. Jason Cox, Harris County Probate Court 3* Hon. Dedra Davis, 270th Civil District Court* Hon. David Fleischer, Harris County Criminal Court at Law No. 5 Hon. Michael Gomez, 129th Civil District Court* Hon. Angela Graves-Harrington, 246th Family District Court Hon. Ursula A. Hall, 165th Civil District Court* Hon. Yvonne Ho, U.S. District Court, Southern District of Texas Hon. Kelli Johnson, 178th Criminal District Court Hon. Tonya Jones, Harris County Criminal Court at Law No. 15* Hon. Latosha Lewis Payne, 55th Civil District Court Hon. Pamela Medina, Harris County Probate Court No 2*

Hon. Beau Miller, 190th Civil District Court Hon. Lauren Reeder, 234th Civil District Court* Hon. Donna Roth, 295th Civil District Court Hon. Manpreet Monica Singh, Harris County Civil Court at Law No. 4 Hon. LaShawn Williams, Harris County Civil Court at Law No. 3 Houston Young Lawyers Association Husch Blackwell LLP Jackson Lewis P.C. Kane Russell Coleman Logan PC* Locke Lord LLP* Mandl Law Immigration Lawyers* Munck Wilson Mandala, LLP Patterson + Sheridan LLP Sunnova Energy Vinson & Elkins LLP* Wong Fleming* *Hired 1L Clerks in 2024 HBA DEI 1L Summer Clerkship Program

Congratulations to the following students hired through the 2024 HBA DEI 1L Summer Clerkship Program: Arsalan M. Babar, STCLH DeAndré Bell II, TMSL Michael Chandler, TMSL Shelby Davis, STCLH Anne Marie (Therese) Eamiguel, UHLC Aaliyah Fleming, TMSL Alexander Garcia, UHLC Lauren Gonzales, UHLC Landon Hamm, STCLH Kendall Hoofe, STCLH Jasmine Jackson, TMSL Sydney Lazard, TMSL Kimberly Licon, TMSL Reva Mulani, STCLH Jasmin Nassar, STCLH

Austin Niemtschk, UHLC Grace Ojofeitimi, UHLC Nadieska Oviedo, STCLH Seher Patel, UHLC Julio Perez, UHLC Veronique Reid, TMSL Monique Reyes, STCLH Kathleen (Kathy) Sandoval, STCLH Kaneez Sayal, UHLC Laura Tenorio, STCLH Ashley Thompson, TMSL Nabeegh Usman, UHLC Madison Villarrial, UHLC Yasmine Wicker, TMSL Alexandra (Lexi) Zaugg, STCLH

Congratulations to this year’s scholarship winners. The purpose of the scholarship is to fund applicants in the HBA DEI 1L Clerkship program who have accepted public interest or governmental opportunities.

Each student was awarded $1,500.

Deandré Bell II, Thurgood Marshall School of Law, Federal Public Defender Alexander Garcia, University of Houston Law Center, Hon. Lauren Reeder Sydney Lazard, Thurgood Marshall School of Law, Hon. Peter Bray Monique Reyes, South Texas College of Law Houston, Hon. Ursula Hall Madison Villarrial, University of Houston Law Center, Hon. Lauren Reeder Alexandra Zaugg, South Texas College of Law Houston, Harris County District Attorney’s Office

Congratulations to the winners of the 2024 HBA Diversity Awards.

The HBA Diversity Awards were created in 2019 by HBA President Benny Agosto, Jr. (2019-2020) to recognize outstanding achievements and dedication by law offices, legal departments, and individuals in the areas of diversity, equity, and inclusion in the legal profession.

Organization Lone Star Legal Aid Individual DeAndrea Washington, partner, Spencer Fane Individual Alan York, partner, Reed Smith LLP Learn more about the HBA Diversity, Equity & Inclusion Committee at hba.org/dei. thehoustonlawyer.com

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OFF THE RECORD

Larry Stuart:

O

The Unexpected Garden

The Houston Lawyer

By Christine Stuart

ne of the delights of a long marriage is sharing the He added trellises and arches, grew stalks of corn, and added discovery of new, unexpected talents. I met Larmore varieties of his beloved tomatoes. Black Krim is his absory Stuart in 1992 when we were first years in law lute favorite and the crowning glory of his tomato empire. His school. When we summer repertoire expanded to include sugar baby watermelons, married in 2000, I impossibly sweet cantaloupes, beautiful specked lima beans, and knew he was a brilliant, hardneon artichoke thistles for the bees. Knowing my love of herbs, working lawyer with a kind he grew everything from Mexican mint marigold (tastes like tarheart and a sharp sense of huragon) to Vietnamese coriander. mor. What I did not know was As the garden increased in bounty and variety, we found new that this man would someday ways to consume and share. We regularly distribute extras to bebecome a tomato-obsessed, loved neighbors, including many lawyer Larry holds a pot of basil, 2019. seed collecting, dawn to dusk, friends. We pickle everything from waprolific gardener. termelon rind to long beans. We make His garden started small, in a modest pepper relish, jams, assorted syrups for area of a gravel driveway that got too cocktails, and infuse vinegar and vodka. much shade. Aside from mint and some In May, the derecho robbed our young hearty rosemary, nothing thrived. We plum and peach trees of their green fruit. eventually found a property that was Larry found a recipe for green plum jam, large enough for a real garden. In 2016, which finally prompted me to learn to we planted a few beds for herbs, a fig can. All of this is possible only because tree, and a few citrus trees. Larry imLarry persists in tending to his garden mediately started expanding and exin the face of powdery mildew, armies perimenting, building raised beds for of insects, droughts, freezes, floods, and cucumbers and tomatoes. In 2017, he the infernal Texas heat. Undeterred, he planted a Chinese long bean plant that sources beneficial insects, hunts down climbed along the front fence and prothe hungry horn worms, trims the duced a pound of beans per day. Sharplants, and kills the stink bugs. ing the abundance of that simple vine Most mornings and evenings, and evwith friends and eating food you can’t ery weekend, you’ll find Larry in the find at a grocery store was a turning Larry Stuart. garden. It is a form of therapy, mental point. He began studying seed catalogs and making frequent and physical, and a break from the pilgrimages to local nurseries. never-ending demands of the office.

By early 2020, Larry already had a very productive garden. A The garden requires his patience, his riot of flowers in the front yard. In the fall/winter, broccoli, cau- Larry’s coveted tomatoes problem-solving skills, and his dediliflower, kale, Romanesco, and insane amounts of Swiss chard. include his favorite, Black Krim. cation. It frustrates him with tomato In the spring: fennel, strawberries, radishes, lettuce, cucumbers, blight, and it surprises him with volunteer Kajari melons that and arugula, followed by the coveted tomatoes. In the summer, pop up unexpectedly. Neither of us could have predicted that the blackberries, figs, and passionfruit. And in late summer when it man who once ripped out the St. Augustine thinking it was a is too hot to breathe, peppers and okra. weed has created a thriving oasis. It is hard, sweaty work, but the But with the onset of pandemic and lockdown, his garden rewards are delicious. hobby took on new proportions. He added more beds and began Christine Stuart is a recent canning enthusiast, and a lawyer spending entire days prepping beds, growing plants from seed, and ICF ACC accredited leadership coach at Stuart PC. watching instructional videos, and tending to his plant babies.

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Join the HBA 100 Club!

The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Ajamie LLP Alvarez Stauffer Bremer PLLC Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Buck Keenan LLP Christian Levine Law Group, LLC Coats | Rose Crady, Jewett, McCulley & Houren, LLP De Lange Hudspeth McConnell & Tibbets LLP Dentons US LLP Dobrowski Stafford LLP Doyle Restrepo Harvin & Robbins LLP Ewing & Jones, PLLC Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins Fogler, Brar, O’Neil & Gray LLP Frank, Elmore, Lievens, Slaughter & Turet, L.L.P. Funderburk Funderburk Courtois, LLP Germer PLLC Gordon Rees Scully & Mansukhani, LLP Hagans Henke, Williams & Boll, LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Horne Rota Moos LLP Hughes, Watters & Askanase, L.L.P. Husch Blackwell LLP Jackson Lewis P.C. Jenkins & Kamin, LLP Johnson DeLuca Kurisky & Gould, P.C. Jordan, Lynch & Cancienne Kean Miller Kilpatrick Townsend & Stockton LLP Law Feehan Adams LLP Linebarger Goggan Blair & Sampson, LLP

Liskow McGinnis Lochridge McGuireWoods LLP McKool Smith MehaffyWeber PC Morris Lendais Hollrah & Snowden Murrah & Killough, PLLC Nathan Sommers Jacobs Ogletree Deakins Nash Smoak & Stewart, P.C. Paranjpe Mahadass Ruemke LLP Peckar & Abramson, P.C. Phelps Dunbar LLP Pillsbury Winthrop Shaw Pittman LLP Ramey, Chandler, Quinn & Zito, P.C. Rapp & Krock PC Reynolds Frizzell LLP Roach & Newton, L.L.P. Ross Banks May Cron & Cavin PC Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, LLP Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Page & Harding, L.L.P. Scott, Clawater & Houston, L.L.P. Shannon Martin Finkelstein Alvarado & Dunne, P.C. Shearman & Sterling Shellist | Lazarz | Slobin LLP Shipley Snell Montgomery LLP Smith Murdaugh Little & Bonham LLP Sorrels Law Spencer Fane Sponsel Miller Greenberg PLLC Stuart PC Taunton Snyder & Parish Thompson & Horton LLP Tindall England PC Tracey & Fox Law Firm Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP

West Mermis Weycer, Kaplan, Pulaski & Zuber, PC Williams Hart & Boundas, LLP Wright Abshire, Attorneys, PC Wright Close & Barger, LLP Ytterberg Deery Knull LLP Zukowski, Bresenhan & Piazza L.L.P. Firms of 25-49 Attorneys Adams and Reese LLP Andrews Myers, P.C. Beck Redden LLP BoyarMiller Bradley Arant Boult Cummings LLP Bush & Ramirez, PLLC Cokinos | Young Gibbs & Bruns LLP Hogan Lovells US LLP Kane Russell Coleman & Logan PC Littler Mendelson P.C. Martin, Disiere, Jefferson & Wisdom LLP McDowell & Hetherington LLP Wilson Cribbs & Goren PC Yetter Coleman LLP Firms of 50-99 Attorneys AZA Law BakerHostetler LLP Brown Sims, P.C. Chamberlain Hrdlicka Greenberg Traurig, LLP Haynes and Boone, LLP Jackson Walker Morgan, Lewis & Bockius LLP Susman Godfrey L.L.P. Winstead PC Firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP

Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright Porter Hedges LLP Vinson & Elkins LLP Corporate Legal Departments CenterPoint Energy, Inc. EOG Resources, Inc. MAXXAM, Inc. Plains All American Pipeline, L.P. Quantlab Financial, LLC Rice University S & B Engineers and Constructors, Ltd. Law School Faculty South Texas College of Law Houston Thurgood Marshall School of Law University of Houston Law Center Government Agencies Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations Office Lone Star Legal Aid Metropolitan Transit Authority of Harris County, Texas Port of Houston Authority of Harris County, Texas 1st Court of Appeals 14th Court of Appeals Local Bar Association Boards of Directors Hispanic Bar Association of Houston Houston Young Lawyers Association

HARVE CEL

EB

R A TI O

A Profile

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

Brent Benoit

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Deputy General Counsel and Chief Compliance Officer, National Oilwell Varco HBA Past President, 2012-2013

think we all recognize that there is a difference between the practice of law and the business of law, but I sometimes worry that attorneys too often lose sight of that distinction. The practice of law requires zealous advocacy of a client, but that advocacy must remain within the bounds of truth and civility. Attorneys work in a legal system that depends on the integrity and professionalism of its participants.

The business of law is not inherently bad, but it occupies us with concerns that often center on the profitability of our practices. It is certainly fair for attorneys to be concerned about these things, but these concerns should never interfere with our professional obligations to our clients, the public, and the legal system in general.

I know countless attorneys who refuse to compromise their professionalism, but I have also known too many attorneys who failed to do so. I have observed attorneys who represent all clients with the same vigor, but I have also watched attorneys give insufficient attention to less important or less profitable cases. I have admired attorneys who are venerated for their ability to practice law without rancor or bitterness, but I have also been frustrated to know attorneys who view sharp tactics and bullying as hallmarks of good lawyering and who sacrifice their professionalism on the altar of personal success. I know many lawyers who give selflessly to ensure access to our legal system, but I have talked with too many attorneys who take no action to help those who cannot otherwise afford representation.

The practice of law is an honorable profession, but it will only remain so if we do not conflate professionalism with a successful business enterprise. When those aims conflict, we are dutybound to subordinate the business of law to our professional obligations. We must fiercely insist that our profession remains honorable and devoted to the pursuit of justice with integrity, compassion, and civility.

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COMMITTEE SPOTLIGHT

The Elder Law Committee:

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Charting New Territory

The Houston Lawyer

By Angela Odensky

he Houston Bar Association’s Elder Law Committee (ELC) is a small and dedicated group of attorneys who specialize in elder law. Issues covered by elder law including housing, healthcare, guardianships, and wills. Because their clients have a variety of different legal and social needs, elder law attorneys do not just practice in one area of law so much as we serve a specific population of people. We serve elders and their families, adults with special needs, and anyone else who finds themselves lucky enough to circle the sun year after year. Some elder law attorneys focus on planning for incapacity and protecting incapacitated people from exploitation. Some focus on maximizing public benefits and helping people get the long-term care that they need and otherwise couldn’t afford. And others fight with Medicare or long-term care insurance companies to make sure their clients receive all the health benefits they are entitled to.

Elder law attorneys also address non-legal needs. Some clients need assistance finding appropriate housing and placement. Others need advice on aging in place. Though these are not legal issues we deal with, our clients look to us to have resources for them, and we are generally able to provide them.

At some point, everyone can benefit from the advice of an elder law attorney. Attorneys in other areas of law seek our expertise for advice in areas such as capacity and decisionmaking, preserving government benefits after a windfall judgment, and navigating Medicaid Estate Recovery in an otherwise straightforward probate. Many attorneys who practice in traditional areas may not know what elder law attorneys can offer them. The ELC is aiming to change that.

The ELC is currently in a time of transition. Previously, the ELC’s role has been assisting Houston Volunteer Lawyers with its annual Will-a-Thon. HVL has that well in hand. Instead, the ELC is switching gears to offer more member benefits and education to HBA members. Our clients are not the only ones who are dealing with aging parents or caring for children with 40 July/August 2024

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special needs; members of the bar are experiencing the same situations and can feel just as helpless in the face of them.

The goal of the ELC moving forward is to offer programming on topics such as how to care for an aging parent or a child with special needs, how to manage the loss of a spouse or parent, and dealing with Social Security and other government benefits programs. And, most importantly, the ELC would like to highlight the value that elder law attorneys bring when managing difficult personal and professional situations that arise as a result of aging. For example, what options do you have to help your aging client who refuses to give up his business but may not be capable of day-to-day management?

How do you help a family member navigate a diagnosis of cognitive decline? What resources are available to allow an adult with special needs to live their fullest life? These are the kinds of situations an elder law attorney deals with every day.

The ELC is currently working on a panel presentation to discuss the spectrum of disability in the workplace, protections afforded to the disabled under the law, and accommodations that can be made. There are excellent attorneys and staff members in our offices who have a wide range of abilities and disabilities. Some disabilities are visible to all, and others are invisible. One goal of the panel is to help attorney employers understand the range of people’s abilities and how best to support them in the workplace. It is not only about what is required legally, but also good practices to create environments for everyone to work in.

Angela Odensky is co-chair of the HBA Elder Law Committee.

She is a Certified Elder Law Attorney (CELA) and principal at The Law Office of Angela Odensky. Angela’s focus is estate planning, probate, elder law, and special needs planning. She is an active member of the Texas Chapter of the National Academy of Elder Law Attorneys, the Houston Bar Association, the Texas Bar Association, and the Texas Bar College.

Section Spotlight

Innovation and Involvement:

How the Energy Law Section Shines in the Houston Legal Community

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By Melissa Munson

n the dynamic realm of law, where practice areas ebb and flow with economic and technological tides, the Energy Law Section of the Houston Bar Association remains a beacon of expertise and engagement. Section members are engaged in all aspects of energy law, whether private practice; in-house; governmental organizations; upstream, midstream, and downstream; and traditional fossil fuels and renewable energies.

accessible education is evident in its policy of offering events at minimal or no cost to law students, ensuring that emerging professionals have the opportunity to engage fully with the industry.

Guided by an Expert Advisory Council The strategic direction and initiatives of the Energy Law Section are expertly guided by an advisory council composed of seasoned attorneys. This year, we highlight the contributions of Jordan Benningfield and Jillian Marullo, whose dedication and volEducational Insights unteerism have significantly enhanced the The Energy Law Section provides a platform for legal professionals to stay at the The HBA Energy Law Section hosts a case law update at section’s operations and outreach. Jordan has been instrumental in organizing panforefront of the industry through month- the Petroleum Club on January 23, 2020. els featuring general counsels and securing corporate sponsorships, ly luncheons. These events cover pivotal topics, such as regulatory which have greatly expanded the section’s resources and visibility. updates, litigation trends, and the impact of global energy markets.

Meanwhile, Jillian’s efforts in spearheading the successful spring social Notably, recent sessions have featured distinguished speakers, inhave not only enriched community engagement but also underscored cluding leading practitioners and scholars who bring timely insights the importance of volunteerism in professional growth. into the evolving landscape of energy law. These gatherings are not only educational but also foster a collaborative environment where ideas and strategies are freely exchanged.

Stay Connected For those interested in the latest developments in energy law or in joining the community of dedicated professionals, visit hba.org/secEngaging Through Social Events tions, where you can find information on upcoming events, educaBeyond the courtroom and corporate settings, the Energy Law Sectional resources, and opportunities to get involved. tion understands the importance of community and camaraderie.

The 2023-2024 section officers were Melissa Munson (chair), This year’s holiday brunch and the spring social, in collaboration Meghan McElvy (chair-elect), Christopher Hogan (treasurer), and with the Houston Producers Forum, were standout events that proAustin Brister (secretary). This year’s section officers are Meghan vided relaxed settings for networking and leisure. These gatherings McElvy (chair), Christopher Hogan (chair-elect), Austin Brister (treaare crucial in building strong, supportive relationships among memsurer) and Jordan Benningfield (secretary). bers, and promoting a sense of unity and mutual support within the The Energy Law Section of the Houston Bar Association remains legal community. committed to education, community, and professional excellence.

Through its educational programs and social events, and with the supSupporting the Future of Energy Law port of its advisory council, the section continues to play a pivotal role The Energy Law Section is deeply committed to nurturing the next in supporting the practice of energy law in Houston and beyond. generation of legal minds. This commitment is exemplified by the section’s scholarship initiative, which recognizes outstanding law students from Houston area schools for their excellence in oil and gas Melissa Munson is immediate past chair of the HBA Energy Law Seclaw studies. These scholarships encourage academic excellence and tion, and a member practicing energy transactions in the Woodlands, continued interest in energy law. Further, the section’s dedication to Texas office of Steptoe & Johnson, PLLC. thehoustonlawyer.com

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LEGAL TRENDS

The FTC Non-Compete Roller Coaster Continues as Courts Begin to Rule

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The Houston Lawyer

By Chris Hanslik

n April 23, 2024, the Federal Trade Commission (FTC) issued a rule aimed to prohibit nearly all non-compete clauses between employers and workers, which the agency argued would enhance economic opportunities and foster fair competition. A recent ruling by a Texas federal judge has significantly impacted the FTC’s attempt to implement a ban on non-compete agreements, but a recent ruling by a federal court in Pennsylvania reached a different conclusion in refusing to enjoin the FTC’s rule.

The FTC’s rule comprehensively prohibits the use of non-compete clauses in agreements between employers and workers in almost all circumstances.

The rule prohibits employers from entering non-compete agreements with an expansive category of workers, including employees, independent contractors, externs, interns, and volunteers, among others. However, the rule exempts existing agreements between employers and the limited category of workers who qualify as “senior executives,” which are defined as workers who act in a “policy making position” and who received at least $151,164 in total compensation in the preceding year. At least one exception to the rule applies to non-competes entered into as part of a “bona fide sale of a business entity.”

However, the rule has faced substantial legal challenges. One prominent lawsuit, led by the tax services firm 42 July/August 2024

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Ryan, LLC and joined by the U.S. Chamber of Commerce, argues that the FTC overstepped its authority. The plaintiffs assert that the rule represents an unconstitutional expansion of federal power, violating the major-questions doctrine and other constitutional principles.

This lawsuit, along with two others, has led to significant legal uncertainty surrounding the rule’s implementation.

As of July 3, 2024, the rule’s enforcement has been delayed, to a certain extent. U.S. District Judge Ada Brown granted a motion for preliminary injunction without a hearing.1 However, her ruling only bans enforcement of the non-compete rule against the plaintiffs, Ryan, LLC and the U.S. Chamber of Commerce, but not its members. Judge Brown indicated she will issue a final ruling on the merits by August 30, 2024, before the rule’s effective date of September 4, 2024. In her order, the judge focused significant attention on the plaintiffs’ likelihood of success on the merits on at least two fronts: (1) that the FTC lacked the statutory authority to enact the rule; and (2) that the rule was arbitrary and capricious under the Administrative Procedure Act. The order also strongly suggests that Judge Brown is likely to invalidate the rule in her August ruling.

Meanwhile, in a case pending in the Eastern District of Pennsylvania, U.S. District Court Judge Kelley B. Hodge refused to enjoin the rule, finding that the plaintiff failed to establish both a likelihood of success on the merits and irreparable harm.2 In ATS, the court found that “[w]hen taken in the context of the goal of the Act and the FTC’s purpose, the Court finds it clear that the FTC is empowered to make both procedural and substantive rules as is necessary to prevent unfair methods of competition.”3 Neither decision changes the fact that the FTC’s rule will go into effect on Sep-

tember 4, 2024. However, Judge Brown in the Ryan matter is expected to issue a decision by August 30th that will place a nationwide ban on the rule pending appeal.

For businesses, these rulings necessitate a review of current employment contracts and non-compete clauses to ensure compliance with any future legal requirements. Employers should be prepared for potential changes and consider alternative methods to protect their business interests, such as non-disclosure agreements and non-solicitation clauses.

Chris Hanslik is firm chairman at BoyarMiller. His experience includes commercial transactions and business litigation, including contracts, business torts, securities and corporate governance, oil and gas, trade secrets, non-compete agreements and other employment-related disputes.

Endnotes

1. https://www.uschamber.com/assets/documents/ Memorandum-Opinion-and-Order-Ryan-v.-FTCN.D.-Tex.pdf.

2. ATS Tree Services, LLC v FTC, No: 2:24-cv-01743KBH (E.D. Pa. July 23, 2024).

3. Id. at p. 26.

Give Me My Baby! Are Unused Embryos in a Divorce Property or a Person?

F

By Nicole Voyles

ertility treatment can be an extremely stressful process.

Reaching the point of having a viable embryo may take years of tests, hormones, pills, shots, inconvenient doctor appointments and,

LEGAL TRENDS

even more so, failures with the process.

If a person has frozen embryo(s), they may be attached to them in an unimaginable way because of the hopes and dreams caught up in that tiny piece of science. Because of these emotions, deciding how these embryos should be dealt with in a divorce has recently been a contested topic.

On June 14, 2024, the Texas Supreme Court declined to take up a Denton woman’s appeal to determine whether the embryos the couple had frozen via in vitro fertilization (“IVF”) were legally children, and therefore subject to child custody law. In the parties’ divorce proceeding, Caroline Antoun agreed to award her husband, Gaby Antoun, their three frozen embryos as his “property.”

This was based on an agreement Mr. and Mrs. Antoun had made during their marriage in their IVF clinic contract.

Mrs. Antoun stipulated that any extra embryos created during the IVF process would go to Mr. Antoun if a divorce were to occur. However, once the U.S. Supreme Court overturned Roe v. Wade in June 2022 in Dobbs vs. Jackson Woman’s Health Organization, 597 U.S. 215 (2022), Mrs. Antoun claimed the embryos should be considered “living beings” because life begins when an egg is fertilized as the Dobbs case had decided.

This would allow Mrs. Antoun to have a custody case over the embryos, instead of her having to honor the IVF contract.

In the Antoun case, the Texas Supreme Court had an opportunity to reclassify embryos from property, as is the current law, to unborn children, and if embryos were considered unborn children, a decision would have to be made as far as who would receive “custody” of these unborn children, not ownership. This determination regarding custody could encompass awarding possession, care, custody, and control of children during divorce. This stance is opposite to how the courts are currently dealing with

frozen embryos and would completely modify how parties litigate division of embryos during divorce. The Texas Supreme Court’s denial of Mrs. Antoun’s petition for review upheld the prior court’s ruling that the parties’ IVF contract did in fact govern the ownership of the embryos. Based on a valid contract, Mr. Antoun would receive ownership of the embryos and be able to determine how they were used in the future.

Currently in Texas, most IVF clinics include language in their contract regarding how the frozen embryos will be handled in the event of a divorce or death. Often it addresses that the embryos will be discarded or donated for the embryos to stay out of divorce proceedings. However, the parties can always negotiate for one to be awarded the embryos in the divorce by agreement, and therefore agree to modify their contractual agreement. The divorce court does not have a legal ability to modify the parties’ contract but must uphold the IVF contract agreements. Changing embryos from being property to living beings could substantially modify the current IVF contracts parties have entered into and increase litigation in a divorce proceeding since the current contracts most likely do not address embryos as living beings. Further, an argument would be made that it is against public policy to contract over living beings, unlike personal property.

The Antoun case could have had immediate effects on IVF clinics here in Texas, much like the Alabama Supreme Court case did for Alabama IVF clinics in February, when it ruled frozen embryos were children. LePage v. Ctr. for Reprod. Med., P.C.1 The three largest IVF clinics in Alabama suspended their services while looking into the legality of moving forward. And those clinics that did not suspend their services at the very least did not discard embryos.

The Texas Legislature that will meet

in January 2025 has the ability to make the next decisions on how embryos are defined under Texas law. They will have the opportunity to decide whether an embryo is a viable person when fertilized or once implanted in a pregnancy. If this legislation is important to you and your future family, pay attention and speak out.

The Antoun case may be the first of many cases where a party will attempt to contest their IVF contract regarding the outcome of their embryos in a divorce. Often when signing the contracts, parties are not of the mindset that their intact family may not stay together, what that might mean regarding the embryos they have frozen by the clinic, or their ability to use those embryos to expand their family.

Nicole Voyles is a board-certified family law attorney with Laura Dale & Associates.

Endnotes

1. No. SC-2022-0515, 2024 WL 656591 (Ala. Feb. 16, 2024), reh’g denied, No. SC-2022-0515, 2024 WL 1947312 (Ala. May 3, 2024).

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Media Reviews

A Case for Greatness: Achieving Success and Overcoming Trials in Your Law Career

By Alvin Adjei Published by Elite Online Publishing Reviewed by Anietie Akpan

“Courage was not about being fearless. It was doing what needed to be done despite how I felt.”

The Houston Lawyer The Houston Lawyer

T

his quote perfectly encapsulates the ethos of the book it comes from: A Case for Greatness: Achieving Success and Over-coming Trials in Your Law Career, written by Houston-based at-torney Alvin Adjei. At its core, Greatness is an autobiography; one narrated with warmth and vulnerability in which Alvin shares the interwoven pathways of both his personal and professional journeys to achieve greatness. But what does it mean to be great? Is it defined by money? Possessions?

Relationships? Academic achievements in school or professional achievements as a post-grad? Or is it measured by something else? Overcoming life’s many challenges? The pain of watching your parents go their separate ways.

First bullies. First loves. First jobs.

Alvin reflects on all these experiences in his book, highlighting how each 44 July/August 2024

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step into a grocery store during the trip, one shaped his own path to greatness, at the displeasure of his father. “What not just as a highly respected young are you going to do if you have a case or litigator, but as a man. a client in some part of town that you’ve A nonfiction book that reads like a never been to?” he asked a teenage Alnovel, Greatness contains 70 “chapters,” vin. “Are you going to let fear stop you?” which read more like bite-sized, sliceThat was the first of many lessons of reof-life short stories. Beginning with silience taught by Alvin’s father; lessons reflections of his Millennial childhood which prepared him for the trials in the in the Houston suburbs (in which he courtroom and the trials of life. confronted his first bully), to navigatThose lessons created the bedrock of ing middle school labels (and the everAlvin’s success in his professional life, aching longing to obtain “cool” status), which he chronicles in detail to being challenged by in the second half of Greatacrimonious office poliness. After graduating from tics while looking for his Notre Dame Law School and first post-law-school job, One of a brief stint in immigration to acknowledging and embracing the unique Greatness’ law, Alvin was offered a position at the Harris County duality of his Blackness first (and most District Attorney’s Office, as the son of an American mother resonating) chap- where he cut his teeth in criminal prosecution. With and an Afriters was Alvin’s an impressive winning can immigrant father—the recounting of he streak in court, Alvin ascended from misdemeanor common domand his father to felony prosecutor. He then inator of each transitioned to private pracchapter (both traveling through tice, where he was hired by metaphorical and literal) Jasper, Texas dur- a renowned personal injury law firm, and ultimately of Alvin’s life ing a family trip opened his own practice (all is the power of the human the summer while serving in several bar leadership positions and obspirit. before Alvin’s taining local and state proOne of Greatness’ first (and most resonating) first semester fessional accolades). This is a seemingly perfect ending to chapters was Alvin’s reof college.” a memoir, but in its last few counting of he and his pages, Alvin reminds all of us father traveling through that our stories— including his own— Jasper, Texas during a family trip the are still moving forward. summer before Alvin’s first semester Greatness is a must read for anyone of college. With the shadow of James who may need to be reminded that the Byrd, Jr.’s murder from a decade pripower to overcome life’s obstacles with or still looming over the community grit and grace, comes from within. (learning of the sundown towns dotted between Houston and Louisiana is often the first cruel lesson of racism Anietie Akpan is director, corporate for most young Black and Brown kids counsel for Mattress Firm, Inc. and is raised in the Texas Gulf, including myon the editorial board of The Houston self), Alvin expressed his reluctance to Lawyer.

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