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The Desegregation of the Courthouse Cafeteria How a Houston Judge Saved the Alamo Responding to Disciplinary Actions Can the Undocumented Worker’s Alien Status be Introduced at Trial? Ethical Witness Preparation An Interview with the New HBA President




Volume 48 – Number 1

July/August 2010

T. Mark Kelly 2010-2011 President Houston Bar Association

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contents Volume 48 Number 1

July/August 2010



FEATURES 5¢, Cheeseburgers 25¢, 10 Coffee Human Dignity... Priceless.

The Desegregation of the Harris County Courthouse Cafeteria By Judge Mark Davidson

Ladies Who Brawl: 18 The How a Houston Judge Saved the Alamo

By Ann D. Zeigler

I Grow Up, I Want to 22 When be a Lawyer...



Not a Respondent in a Disciplinary Action By Jennifer A. Hasley

the Undocumented Worker’s 28 Can Alien Status be Introduced at Trial? By Benny Agosto, Jr., Professor Lupe Salinas and Eloisa Morales Arteaga

Witness Preparation: 34 Ethical Stepping Back from the Line for the Lecture

By Stan Perry and Teshia N. Judkins



Focus on Family and 38 AHelping Youth Takes Office as 42 Kelly HBA President

The Houston Lawyer

43 50-Year Lawyers Awards and 44 President’s Special Recognition

The Houston Lawyer (ISSN 0439-660X) is published bimonthly by The Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002-6715. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1300 First City Tower, 1001 Fannin, 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, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehouston, e-mail: 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. For article REPRINTS, please contact Wright’s Reprints: 1-877-652-5295. ©The Houston Bar Association, 2010. All rights reserved.


July/August 2010

contents Volume 48 Number 1

July/August 2010



departments Message 6 President’s By T. Mark Kelly the Editor 8 From By John S. Gray Reviews 46 Media Westlaw Practitioner Reviewed by Al Harrison

Asset Forfeiture Law in the United States Practitionert Reviewed by Don Rogers


Trends 47 Legal U.S. Supreme Court Rules

Noncitizens with Two or More Misdemeanor Possession Convictions are not Automatic Aggravated Felons By Joy Sanders

the Record 49 OffWinning Wine Advocate: Vianei

Lopez Robinson By Julie Barry

Profile in Professionalism: 50 ARobin C. Gibbs

Partner, Gibbs & Bruns LLP

The Houston Lawyer

51 Placement Service 52 Litigation MarketPlace


July/August 2010

president’s message

By T. Mark Kelly Vinson & Elkins LLP

Protecting Our Children, Our Future

The Houston Lawyer


ne of the challenges and privileges of being the president of the Houston Bar Association is to identify projects on which you want to focus during your Bar year. I recently was reminded of the great need in our community for volunteers to help those less fortunate when I had the pleasure of accomplishing what I call a “trifecta.” One Saturday morning I drove to Mason Park to assist in the cleaning of the park as part of the HBA’s Trash Bash. Shortly before noon, I drove to the Habitat House we were building for a single mom whose dream was to finally own her own home. I then finished the day by participating in the “Aids and the Law” seminar at the Montrose Counseling Center, where our volunteers were teaching a course on the legal rights of people with HIV and Aids. I am proud, as you should be, of the large number of HBA members who volunteer their time to serve. I have always been interested in exploring what we can do to reach out to children– who are our future–and especially at-risk children. The HBA has developed many fine programs over the years, including Adopt-A-School, Constitution Day Readings, and Children’s Clothing and Diaper Drives, to name just a few. This year, I read some startling statistics regarding children who have been in foster care programs. In a study conducted by Chapin Hall at the University of Chicago, they found: • Foster children are much more likely to be unemployed; • Almost 25 percent live on the street or in shelters; • More than 75 percent of young women have been pregnant; 6

July/August 2010

• Nearly 60 percent of young men have been convicted of a crime, and more than 80 percent have been arrested; and • Even more startling, only six percent had an associate or bachelor’s degree. Nationwide, 513,000 young people live in foster care. The State of Texas ranks fourth highest, with 28,883 youth currently in foster care. In Houston alone, that number is 6,613 youth. Youths exiting the foster care system are twice as likely to drop out of high school and are at great risk of arrest and incarceration. The social and economic costs are too extreme to ignore. There is an organization in Houston called the Houston Alumni and Youth (or HAY) Center that is a one-stop center where foster youth and alumni (ages 16-25) can acquire a variety of transition resources, support and services. One of their programs – the PAL (Preparation for Adult Living) Program – was implemented in 1986. All told, almost 2,000 youths are either enrolled in the PAL Program or involved with the HAY Center. Children who meet the various requirements of the PAL Program are eligible for a waiver of their tuition at in-state schools if they can gain admission. Last year, the significant funding source of the HAY Center had a financial setback and had to decrease funding. As you might expect, a number of these youth that show up at the HAY Center have juvenile records that likely make it difficult to obtain jobs. This year, we have created a committee to assist this organization to train volunteer attorneys to help with expunging and sealing records, conducting training classes on legal topics for HAY Center staff, holding presentations on legal topics to educate youth on their rights

and responsibilities, and creating a “ready room” stocked with supplies and clothing to help them in their first independent living arrangements. We, and the staff at the HAY Center, are excited about the program and how we can hopefully be a positive influence on these youth. We live in a society that spends hours on the Internet. Unlike when I started the practice of law with mag cards and no cell phones, our kids have personal computers, Blackberries, iPhones and drones. Their ability to communicate to each other in real time is unparalleled. What some of us may not know, and what our children clearly may not appreciate, is the legal risk they may run in inappropriate use of such devices. This year the HBA will partner with the Houston Young Lawyers Association to distribute copies of a wonderful DVD, “R U Safe? Protecting Yourself in Cyberspace,” developed by the Texas Young Lawyers Association. The DVD provides information on topics such as cyberbullying, “sexting,” and Internet predators in four different videos that target elementary, middle and high school students, as well as parents. The HBA’s goal is to distribute the DVD to all schools in the 26 school districts that comprise Harris County, as well as private schools. Schools will be encouraged to contact the HBA or HYLA to schedule a volunteer attorney to speak on cyber safety to classrooms and parent groups, following their viewing of the video. In an effort to reach out to the law schools, the HBA will create a Web page called Law Student Center that includes information on HBA programs specifically for law students, continuing education programs open to law students, scholarships

available through HBA sections, volunteer opportunities, programs for newly licensed attorneys, photos and helpful links to additional resources. The HBA worked with the career services directors at all three Houston law schools to determine content, so the site meets the needs of students during law school and as they transition into practice. This bar year marks the beginning of the fifth year of our Equal Access Champions Initiative for the HBA’s Houston Volunteer Lawyers Program. Through this program initiated by Glenn Ballard, HVLP has increased the number of cases handled from 991 in 2005 to 2,280 in 2009, with 2010 projected to top 2,400. Law firms and corporate legal departments sign a commitment to handle a certain number of cases for HVLP each year, based on the number of attorneys in the firm or legal department. We have 104 law firms and corporations of all sizes, as well as individuals, who have stepped up to meet this commitment. This year we will urge our current champions to re-commit to this crucial program, as well as work to recruit new firms and corporations to step up to the challenge. During Travis Sales’ year, he focused on expanding our legal services provided to veterans. This year, this amazingly successful program that has received national attention is one of the featured initiatives of the State Bar. We will continue to expand our efforts locally and have agreed to partner with the State Bar to help educate and facilitate services provided to various counties across the State. Winston Churchill said, “We make a living by what we get, but we make a life by what we give.” My predecessors in this position have done an incredible amount of good work advancing the interests of our community through the work of the HBA. I hope to continue that legacy. I encourage you to get involved in one or more of the HBA’s 37 committees and one task force, and to give something back to the community in which we live. You won’t regret it! Thank you for allowing me the opportunity to serve as your president. I look forward to a busy and exciting year.

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July/August 2010



from the editor

By John S. Gray Gardere Wynne Sewell LLP

Associate Editors

Keri Brown Baker Botts L.L.P.

Catherine Le Law Firm of Catherine Le

Robert W. Painter The Painter Law Firm

The Houston Lawyer

Don Rogers Harris County District Attorney’s Office

Tamara Stiner Toomer Attorney at Law


July/August 2010

Is History Repeating Itself?


very summer begins with the Houston Bar Association welcoming a new president and with him or her a new cast of energetic and dynamic committee members and section chairs heading up the HBA’s 37 committees and 29 legal sections that serve Houston’s legal community. This summer is no exception as The Houston Lawyer welcomes a new editorial board comprising many familiar faces and several new ones. This bar year, T. Mark Kelly is the HBA’s new president, and I have the honor of leading an excellent team of talented volunteers as they prepare six new issues for you. I hope they will provide you with articles to help improve your practice and inform you about the lawyers we work with and the communities in which we live. As has become the custom, most issues will have a topical theme. This year’s themes include corporate and taxation law, legal issues affecting our children, the legislature, the environment, and the traditional issue that salutes our volunteers. If you have an idea for an article that you believe Houston lawyers would like to read, or need to read, please let us know. Even better, if you would like to write an article for one of these issues, we would love to hear from you–just drop us an email at We welcome your articles, your comments and your insight. After all this is your magazine. Our first issue for this bar year is one of general interest. We are pleased to have a mix of substantive legal articles on a range of topics that every lawyer should find of interest, including avoiding disciplinary actions, improper witness coaching and evidentiary issues regarding undocumented persons. In addition to these three substantive legal articles, our first issue also proudly revisits a favorite topic with two articles – stories devoted to Houston’s legal history. Judge Mark Davidson again honors us with a riveting tale about Houston’s own Civil Rights movement when a group of courageous young lawyers took on Houston’s established government in the 1950s in an effort to desegregate the Harris County Courthouse cafeteria. THL’s own outgoing editor, Ann Ziegler, then regales us with the true story of those fine upstanding ladies of the Daughters of the

public of Texas (the “Daughters”), whose 1907 dispute over the Alamo resulted in a brawl in the Senate Chamber in the Texas State Capitol and ended with a lawsuit over the Alamo’s future being filed in Houston. It is the Alamo article that led to the title of this column. At one time or another, we have heard Winston Churchill’s famous quote: “Those that fail to learn from history, are doomed to repeat it.” Well, it seems that the Daughters need to read Ann Zeigler’s article because they appear to be fighting over finances again. But this time, instead of brawling in the Senate Chamber and involving Houston judges in their disputes, they involved the Texas Attorney General’s Office and Governor Perry has weighed in on the issue. According to a recent Wall Street Journal article (this new brawl is making national headlines), the AG’s office got involved after a member of the Daughters of the Republic filed a 65-page letter complaining that the Alamo was not being kept in “good order and repair,” as required by the 1905 state law that charged the group with the Alamo’s upkeep. This latest dispute is allegedly about a leaky roof, but it is clear that competing groups are again fighting over who can best maintain the Alamo as it welcomes 8,000 visitors each day. As the Attorney General’s office is conducting its investigation into the Daughters’ financial, engineering and personnel files, the Governor’s office has been busy reviewing structural reports on the Alamo’s buildings. It is reassuring that both Governor Perry and Attorney General Abbot take concerns over the Alamo’s safety seriously and that the leaking roof appears to pose no immediate threat. The same cannot be said about the threat this latest schism among the Daughters’ membership may pose. This whole brouhaha began last year when an ousted Daughter started a competing group called the Friends of the Alamo. This new group is claiming that the Daughters are not equipped to run the Alamo and should be stripped of their custodianship. They are seeking to have the Daughters officially disbanded in lieu of hiring a business manager. I cannot tell you how this latest saga will end, but I do ask the question: Is history repeating itself? You be the judge.



T. Mark Kelly

David A. Chaumette



Denise Scofield

Brent A. Benoit

First Vice President

Past President

M. Carter Crow

Barrett H. Reasoner

Second Vice President

Laura Gibson

DIRECTORS (2009-2011)

Alistair B. Dawson Jennifer A. Hasley

Benny Agosto, Jr. Warren W. Harris

Hon. David O. Fraga Daniella D. Landers

DIRECTORS (2010-2012) Todd M. Frankfort John Spiller

editorial staff Editor in Chief

John S. Gray Associate Editors

Keri D. Brown Robert W. Painter Tamara Stiner Toomer

Catherine Le Don Rogers

Editorial Board

Julie Barry Angela Dixon Dori Kornfeld Goldman Farrah Martinez Caroline C. Pace Joy E. Sanders Hannah Sibiski Mark R. Trachtenberg N. Jill Yaziji

Sharon D. Cammack Don D. Ford III Al Harrison Judy L. Ney Maidie Ryan Mark Schuck Lisa Brindle Talbot Gary A. Wiener

Managing Editor

Tara Shockley

HBA office staff Membership and Technology Services Director

Executive Director

Kay Sim Administrative Assistant

Ashley G. Steininger Administrative Assistant

Ronald Riojas Membership Assistant

Billy Salinas

Karen D. Ramsey

Committees & Events Director

Receptionist/Resource Secretary

Miguel Trevino

Lucia Valdez

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Director of Education

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Lucy Fisher Communications Director

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July/August 2010


By Judge Mark Davidson

Coffee 5¢, Cheeseburgers 25¢, Human Dignity... Priceless. The Desegregation of the Harris County Courthouse Cafeteria The history of the civil rights movement is usually told in stories from places such as Topeka, Little Rock, Selma, and the Lincoln Memorial in Washington D.C. These were places where persons seeking human dignity and equal rights marched, protested and spoke in support of a concept that had been declared self-evident two centuries before—that all men are created equal. Few lawyers entering our courthouse complex today know that it also was the site of a battle in the struggle for civil rights. Today, the basement of the Harris County Juvenile Justice Center houses a few offices and a small sandwich shop. Visitors see no trace of the Courthouse Cafeteria, which operated from the building’s opening until 2003, or of the dramatic confrontations that took place there. At issue was whether all citizens of Harris County had a right to eat there. The dispute involved a four-year court battle, two physical confrontations and a group of courageous young lawyers who took on the government for the right to be treated as equals within the walls of a courthouse where they would spend a career seeking justice for their clients.

The “New” Criminal Building County Judge Bob Casey was a visionary public servant first elected to that office in 1950.1 Upon his swearing in, he took on the pressing need for a new criminal courts building. The “old” criminal courts building dated from the 1920s and contained only three courtrooms. Casey accurately predicted that the burgeoning growth of Harris County would prompt creation of additional courts. Before his election, Harris County voters had approved $6,000,000 worth of courthouse bonds to renovate the 1910 Courthouse and build a new Criminal Courts Building.2 Casey foresaw that the cafes surrounding the courthouse would give way to parking lots, and so early in the design process, the architect planned for a cafeteria in the basement of the building. When the building opened on July 6, 1953, the attorneys, courthouse employees, jurors and visitors were dazzled by the modern facilities in the building. For the first time, court proceedings could take place in air-conditioned comfort. Bathrooms and water fountains, which had been inadequate in the old building, were abundant. The courtrooms were spacious. The basement café was large, and its food was thought to be the equal of any dining establishment near the courthouse.3 W. F. “Dee” Derrington won the contract to operate the cafeteria. The terms of the lease were simple: Derrington was to pay the county five hundred dollars a month, plus twenty percent of the annual gross income. In the first year of operations, Derrington apparently grossed fourteen thousand dollars. There was one additional understanding with the county not set out explicitly in the lease –the cafeteria was not to serve AfricanAmericans. A Man of Character Matthew Wesley Plummer was a native of San Antonio whose father was born

into slavery. During World War II, he was a flight instructor at the Tuskegee Army Airfield. He trained the “ Tu s k e g e e Airmen” of the 99th Fighter Squadron, a group of pilots that gave lie to the segregationist myth that African-Americans lacked the ability to serve their country. After the war, Plummer finished his college degree at Tuskegee Institute and then graduated in the first class of the law school at the Texas College for Negro Students in 1952.4 According to anyone and everyone who ever knew him, he was a gentleman first, last and always. While waiting for his bar examination grades, Plummer accepted a position as an investigator for the Harris County District Attorney’s Office. He was the first African-American employee in the history of that office. A Lunchtime at the Courthouse On August 27, 1953, several weeks after the new courthouse opened, Plummer and three friends–George Nelson, Jim Roberts and Lillie Alonzo–went to the basement of the building and entered the cafeteria. Their wishes were simple: They wanted to eat lunch. No one had told them it was a “Whites only” business, and there was no sign to that effect on the door.5 They were allowed into the line and ordered lunch. When they reached the cashier Derrington, the owner/manager, approached them, and “forcibly removed their food from their trays, and informed said plaintiffs that...the restaurant did not, and would not serve colored people.”6 Following the mantra of Mahatma Gandhi, and the later teachings of Martin Luther King, Jr., Plummer and his guests peaceably left.

It is clear that Plummer immediately went to see some of his classmates who had already passed the bar. The next day, a lawsuit was filed in the Southern District of Texas seeking desegregation of the cafeteria. The petition shows the attorneys on the case were Henry Doyle and Francis Williams, great lawyers who would become legends of the bar as well as renowned judges. Along with Plummer, they were founders of the Houston Lawyers Association,7 which promoted professional and social interaction among African-American lawyers at a time when they were excluded from other bar organizations.8 Proceedings in Federal Court­—Pleadings and Trial The lawsuit was filed against County Judge Casey, in his official capacity as the presiding officer over the Harris County Commissioners9 Court, and each of the commissioners. Derrington was also named as a party. The gravamen of the complaint was that the cafeteria was on public property in a building that had been built with tax dollars and that exclusion of a class of people on the grounds of race was in violation of federal constitutional and statutory p ro v i s i o n s . It is worth noting that the suit was filed the year before the United States Supreme Court announced its decision in Brown v. Topeka Board of Education.10 This is significant because the insidious “separate but equal” doctrine of Plessy v. Ferguson11 was

still viable when the suit began.12 Had the Plaintiffs sought a temporary injunction, or even an expedited trial, the applicable law might have been different. The case was assigned to the docket of Judge Ben Connally. In 1953, Judge Connally had served as a judge for four years. He came to the bench after an active career as an attorney. Judge Connally started his law career as an attorney at Sewell, Morris, Taylor and Garwood, becoming a name partner in the firm.13 After service in the U. S. Army Air Corps during the war, he resumed his practice as a partner at Butler, Binion, Cook and Knapp until becoming a judge. Judge Connally’s political and legal pedigree would lead one to conclude that he was a conservative, business-oriented judge. The Plaintiffs might have wished they had drawn another judge, although there were some judges who would have been perceived as more conservative. Judge Connally’s docket sheet indicates that no discovery, motion practice or other judicial activity took place

July/August 2010


between the time the case was filed in August 1953 and a pretrial conference he convened on May 17, 1955. No one present at that pretrial conference is alive today, but the judge’s docket sheet shows Judge Connally’s effective judicial presence. His notes reflect that: Parties to stipulate on all facts save as to whether County is responsible for operation of cafeteria (as Pf’s contend) or whether, under terms of lease, only lessee is responsible. Stipulation to be forthcoming by 5/23/55. On August 8, 1955, the case was tried

on those stipulations. Neither the records of the trial court nor of the Fifth Circuit reflect the filing of a statement of facts or other trial transcripts, so it is possible Judge Connally heard no evidence other than the stipulations. Whether he did or not, the issue of law before him was clear: May a governmental entity lease public property to someone who uses that facility to discriminate on the basis of race? By our standards today, this seems elementary. But at that time, it was seen as legal for private businesses to exclude any potential customer they wished. That did not change until the United States Congress used the Interstate Commerce 12

July/August 2010

Clause to mandate the end to “private” discrimination in the Civil Rights Act of 1964.14 The Ruling On December 29, 1955, Judge Connally issued his ruling.15 It began with a recitation of the stipulated facts and initially gave no indication of the outcome of the case. He made it clear that the county leased the premises to Derrington, and thereafter claimed no right of control of the premises. The essence of the findings is contained in the following paragraph: The cafeteria is patronized principally by Courthouse employees, jurors, and others having business in the building. It has always been open to the general public as an eating place. On August 27, 1953, the plaintiffs undertook to purchase food in the cafeteria and were not permitted to do so by the lessee and manager, the Defendant Derrington. His action in this respect was due solely to the fact that the plaintiffs were members of the colored race. With limited and insignificant exceptions, Derrington has operated the cafeteria since the inception of his lease for patronage only by members of the white race. He expects to continue to do so unless and until restrained by Court action.16 Judge Connally then noted the recent cases that required public facilities to be available to all and concluded “(t)here can be little doubt but that plaintiffs are entitled to relief against Harris County.” Protecting his appellate record in the event a reviewing court could find any viability in Plessy v. Ferguson, Judge Connally wrote: “Having undertaken to furnish eating facilities to its citizens, the County, so far

as it is able, must afford comparable and substantially equal treatment to all, without regard to color. The County has not established, nor is there maintained, any comparable eating facility in the Courthouse available to Negroes.” Brushing aside Derrington’s argument that he was a private vendor, Judge Connally concluded that “(t)he operation of the cafeteria here is too close, in origin and purpose, to the functions of the County government to allow the concessionaire the right to refuse service without good cause.” Accordingly, the opinion said that an injunction would issue against Derrington and the Harris County defendants. Judge Connally’s ruling was met with a plethora of post-trial motions. Motions for new trial (by the Defendants) and for monetary damages (by the Plaintiffs) were denied. The Defendants gave notice of appeal a month before the final judgment was signed, and it is possible the appeal that would follow was without legal effect. In hindsight, the Plaintiffs would eventually be glad they did not raise any procedural defense. Mob Rule at the Courthouse The Plaintiffs understandably thought they had won a great legal victory. A group of young lawyers had taken on the government of the largest county in Texas and won before a judge who was thought to be conservative. Now they assumed they could enjoy the fruits of four years’ labor. According to an interview with Matthew Plummer, “We were counting the days after the denial of the rehearing to go in and have a cup of coffee.” They even took the precaution of going back to Judge Connally to get a new order compelling their right to enter effective immediately. They quickly learned that the forces of hate had not yet played their last card. On April 10, 1956, Matthew Plummer again entered the cafeteria, along with the original plaintiffs and his attorneys. They were met by a number of segregationists, led by a man identified in the next

day’s Houston Chronicle as J. M. Wren. As Plummer entered, Wren shouted out: “We don’t want them in the cafeteria. If we’ve got to have a riot, let’s have it. I’m not going to have Negroes here.” He then reportedly aimed several punches at Plummer, apparently making contact at least once. Plummer did not fight back. He simply proceeded to the Justice of the Peace Court on the third floor and filed assault charges against Wren.17 Even though he had been a party to litigation for four years, Derrington chose to close the cafeteria rather than serve the Plaintiffs. He was quoted as saying he would close the cafeteria to everyone rather than serve Negroes.18 Henry Doyle asked Derrington, “Would you have served Negroes if there had been no disturbance?” Derrington’s reply: “No. I’m closing to everyone.” Doyle responded, “We anticipated this! The petition has already been prepared.” The petition charged Derrington with contempt of court. Facing motions for contempt brought against Derrington by

the Plaintiffs as well as additional motions to reconsider his rulings, Judge Connally stayed enforcement of his order pending appeal to the Fifth Circuit, upon the posting of a $500.00 supercedeas bond. The Appeal All Defendants appealed to the Fifth Circuit Court of Appeals. The case was assigned to a panel of Chief Judge Joseph Chappell Hutcheson of Houston, Judge Richard Rives of Alabama, and Judge Elbert Tuttle of Georgia. Justices Rives and Tuttle were later known as two members of the “Fifth Circuit Four,” a group of judges who made progressive rulings on civil rights throughout their tenure.19 The Fifth Circuit quickly took up the case and issued an opinion on December 29, 1956, only seven months after Judge Connally signed the final judgment.20 Writing for the Court, Judge Rives praised Connally, calling his opinion “thoughtfully considered.” Reiterating the legal point analyzed by the trial court, the Fifth Circuit wrote:

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“[T]he decisive question is whether the action of the lessee, Derrington, is merely private conduct or may fairly be said to be conduct of the County and thus State action within the inhibition of the Fourteenth Amendment.” Since all agreed that if the county ran the cafeteria, it could not discriminate, the justices wrote that “in rendering such service, the lessee stands in the place of the county.” The Plaintiffs had won again. Derrington was unbowed. He told a reporter for the Houston Post, “I’m going to appeal it to the Supreme Court and the United Nations.” All four county commissioners backed Derrington. One said integration of the cafeteria would cause it to “cease to be of any benefit to employees or the public.” Another said, “The only Negroes who would use the cafeteria would be those interested in winning the argument.” Only Judge Casey appeared reluctant to carry on the fight. He opposed renewing Derrington’s lease during any further appeal.21 Nonetheless, an appeal was taken to the United States Supreme Court, perhaps only to delay enforcement of the order. The appeal was short lived. The high court denied the application for a writ of certiorari on April 1, 1957. “The Private Club” Derrington, having lost in every court in the land, did not give up. Rather than serve the Plaintiffs, he announced on April 1, 1957 that he was closing the restaurant. That same day, he went to commissioners court and got permission to amend his lease, converting the cafeteria into “a private club.” Membership was limited to county employees and their guests. The Harris County Employees’ Credit Union agreed to issue its members cards that would allow a person to enter and bring guests. According to a later article in the Houston Chronicle, the effect was that the cafeteria remained segregated. Although there were African-American employees working for Harris County in the late 1950s, none ever attempted to enter. According to a prominent assistant county attorney

at the time, “It was well known among the Black employees that they could go in and eat there, but they would have been fired before the day was over if they had.” Meantime, the rule that admission was

limited to cardholders was honored (for White patrons) more in breach than in observance. The Fight Shifts to Commissioners Court Derrington’s lease came up for renewal by the Harris County Commissioners Court every two years. After his original lease in 1953, there was never a competitive bid for the right to run the business. Starting in 1959, a motion was made every two years to amend the lease to require integration. Derrington apparently warned individual commissioners that he would refuse to operate the cafeteria before he would desegregate. His public position was that he would lose money if required

to serve all, because many whites would refuse to patronize the cafe. In the 1959 renewal, only newly elected County Judge Bill Elliott supported service for all, and his motion died for lack of a second. In 1961, Commissioner V. V. “Red” Ramsey joined Elliott. It is unclear the extent to which the fights over lease renewals were because of the absence of a competitive bid process or a desire to require that all the citizens of the county could be served. It is clear that Derrington had three allies on the Commissioners Court who would vote to allow him to continue to operate the cafeteria as he wished. Preparing for another lease renewal in 1963, Derrington and the Commissioners Court were met with a renewal of the suit in August 1962. George Washington, an attorney with the firm Washington, King and King,22 filed a motion for further relief that included a request for contempt of court proceedings against all Defendants. By now, it was clear that the trend of the law was toward equal rights for all, and no one could mistake Judge Connally

July/August 2010


as a judge who would fail to enforce those rights.23 On the day he was served with the contempt citation, Derrington announced that he was “tired of fighting” and that the cafeteria would be open to all, effective immediately.24 An alternative, and probably more realistic, explanation for the change of heart was given by former County Building Superintendent Mac McCain. In an oral interview he gave several years before his death, he said: “’Squatty’ Lyons25 went to the cafeteria in the basement of the Criminal Courts Building and Dee Derrington had the attitude he wasn’t going to serve. Squatty walked down there, and they were good buddies and all, but he walked down and told him, ‘Dee, I’m giving you an order. You better knock it off or we are going to kick you out of here. Because we are not going for that any more. You take everybody that comes in here.’”26 The next day, August 16, 1962, the cafeteria was open to all. The Plaintiffs had won their nine-year effort to eat lunch in a building whose very purpose was to

further justice for all. What Happened to Everyone? Matthew Plummer enjoyed a long and successful career as an attorney. Among the many cases he handled was Muhammad Ali’s draft evasion case in federal court during the Vietnam War. In 1986, Governor Mark White appointed him to serve as Judge of the 133rd District Court. Near the end of his life, he and other surviving Tuskegee Airmen received the Congressional Gold Medal in recognition of their service to our country. He died in October 2007. The attorneys who brought the suit for Plummer also went on to illustrious careers. Henry Doyle served as a municipal court judge for the City of Houston. In 1978, Governor Dolph Briscoe appointed him to the First Court of Appeals. He was elected to that position in 1980 and retired in 1982. Francis Williams became judge of County Criminal Court at Law Number Four in 1985. Among the cases he handled as an attorney was the Hous-

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July/August 2010

ton Independent School District discrimination case before Judge Connally. Judge Ben Connally became a beloved and revered jurist in his 25 years on the bench. In 1962, he became the Chief Judge for the Southern District of Texas and continued in that position until he assumed senior status in December 1974. Sadly, he died less than a year later after suffering a heart attack during a hunting trip near Falfurrias, Texas. Dee Derrington’s claim that the cafeteria could not make money if all were treated with respect and dignity apparently turned out to be untrue. He continued to seek biennial renewals of his lease and ran the cafeteria at a profit until his death in 1966. After he died, his wife continued to operate the cafeteria until 1971. The cafeteria continued in operation until the building was renovated in 2003. In its later years, it became almost exclusively a place where the criminal defense bar hung out to tell stories of great trials they had, or might have, tried. Judge Jimmie Duncan was known to send his bailiff to the cafeteria looking for any lawyer foolish enough to be late for his docket call. Judge Duncan was well known for his desire to incarcerate tardy lawyers, regardless of their race, creed or color. In Europe, the buildings used to house the judiciary are called “Palaces of Justice.” This term dates back to a time and a system in which justice was something only the self-appointed lordly class could seek. In America, where our foundations are much more egalitarian, we call the buildings “Courthouses,” reflecting a belief that it is a place where anyone can seek justice. It is inconceivable that a building whose reason for being is fairness could have an area in which many of its citizens were not allowed to enter. It is up to today’s and tomorrow’s lawyers to make sure that our courthouses are always kept open to all to seek justice. Mark Davidson is a retired judge. He is currently assigned to hear all asbestos cases in the state as Multi-District Litigation Judge. In 2008, he was awarded the Robeson

L. King Excellence in Education award by the Houston Lawyers Association. Author’s Note The full story of the desegregation of the courthouse cafeteria would fill a book. Many details and characters were left out of this article. Many other facts cannot today be determined with any degree of accuracy. My goal in writing this article is not to condemn any individual, but to honor the nobility of those that fought for equal rights for all. Thanks are due to those who helped make this article possible. James Plummer gave me many insights into his father’s life and character. Judge David Hittner made it possible for me to have access to the court records from Plummer v. Casey. Elaina Butel and Gabriela Henriquez, law students at South Texas College of Law, found dozens of details in this article and assisted in its editing. Endnotes 1. Casey had previously served in the Texas House of Representatives from 1949-1950. After serving as County Judge for eight years, he was elected to the United States Congress, where he served until 1976. 2. An additional

bond issue of $1,500,000 would ultimately be necessary to complete the building. 3. The cafeteria was covered in sea green ceramic tile. While it may or may not have been appetizing, it made the mold on the food less noticeable. 4. The school is now Texas Southern University’s Thurgood Marshall School of Law. 5. I have vague memories of signs of this nature in Houston at a prominent retail store as late as the early 1960s. 6. Plaintiff’s Original Petition, Plummer, et al v. Casey et al; Civil Action 7662; In the Southern District of Texas. 7. The other founders of the Houston Lawyers Association were Robeson L. King, Weldon Berry, Robert Hainsworth and A. M. Wickliff. 8. The Houston Bar Association was integrated in 1965 because of the efforts of its President, W. James Kronzer, Jr. 9. The commissioners were Phillip E. Sayers, V. V. “Red” Ramsey, W. Kyle Chapman and E. A. “Squatty” Lyons. 10. Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954). 11. Plessy v. Ferguson, 163 U.S. 537 (1896). 12. Even if “separate but equal” were still viable, it might have been a stretch to use it as a defense, because the county did not build a “separate” cafeteria in the building or anywhere else. 13. The firm would eventually become Sewell, Junell and Riggs and then Sewell and Riggs before merging with Gardere Wynne in 1995. 14. 42 U.S.C. §1981. 15. Plummer v. Casey, 148 F. Supp 326 (S.D. Tex 1955). 16. Id, at p. 328. 17. Following a jury trial before an all-white jury, the charges were dismissed. 18. Houston Chronicle, April 11, 1956. 19. The other two judges were Judge John Minor Wisdom and Judge John R. Brown. Rives and Wisdom were appointed by Democratic Presidents. Brown and Tuttle were appointed by Republican Presidents. All deserve to be in the panoply of American heroes. 20. Derrington v. Plummer, 240 F. 2d 922 (5th Cir. Tx. 1956). 21. Houston Post, December 30, 1956. 22. Washington would later join a law firm with Andrew Jefferson, to form the well-named firm Washington and Jefferson. 23. Judge Connally had also presided over the desegregation case involving the Houston Independent School District. It is said that he was prouder of his decision in that case than any other. 24. Houston Chronicle; August 17, 1962. 25. Harris County Commissioner, Precinct 4, 19441990. 26. From oral interview with J. M. “Mac” McCain, page 75. History/OH02McCainFinalpdf.pdf; Harris County Archives.

The Texas Lawyers’ Assistance Program (TLAP) is a confidential crisis counseling and referral program that helps Texas lawyers, law students and judges who are challenged by substance use and other mental health disorders, including clinical depression, anxiety, and stress related concerns. TLAP has teamed up with Houston Lawyers Concerned for Lawyers (LCL) to offer a support group for lawyers with substance use issues that meets Tuesday at noon at 303 Jackson Hill Street, Houston, Texas. TLAP and local volunteers have also joined together to form the Houston Lawyers’ Forum on Depression, which meets on the first Monday of every month from 6-8 pm. This group provides participants with a light dinner, presentations by local mental health professionals and peer support. For more information, please call TLAP at

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July/August 2010


By Ann D. Zeigler

The P Ladies Who Brawl: How a Houston Judge Saved the Alamo

erhaps you remember the headline: “Brawl in Senate Chamber, Members Walk Out.” Or this one: “Alamo Guardians Enjoin Each Other.” There was even a pointed statement printed in newspapers statewide about the matter by an extremely proper lady, disclaiming that she was the president of the Daughters of the Republic of Texas. The headlines didn’t make it into print in that exact form, since the activities happened in 1907, when headlines (and many other things) were more genteel. That was a time when the names of women whose forbearers were among the founders of the Republic of Texas made it into newspapers only when they were christened, married and buried, or when they hosted noteworthy social gatherings. However, when their beloved Alamo Shrine was the subject, propriety be damned. The brawl occurred on April 19, 1907, in the Texas Senate Chamber of the Capitol building, in Austin, during the sixteenth annual convention of the Daughters of the Republic of Texas (the “Daughters”). Having “heard that there was going to be a row between the [competing] factions, and never having seen a ladies convention in a muss” several senators, joined by a group of news reporters and businessmen, later testified that they “decided to remain when the senate adjourned, and see how it came out.” While a screaming brawl certainly wasn’t what anyone would have expected from looking at the convention program, that appears to be what occurred. The ruckus began shortly after the meeting was called to order when Miss Adina De Zavala (president of the De Zavala Chapter No. 7 of San Antonio) and Mrs. Looscan objected to the current leadership’s efforts to appoint a new slate of officers claiming that parliamentary procedure and the organization’s

bylaws required them to be elected. After their objection was overruled, Governor Thomas M. Campbell gave a short welcoming speech urging the Daughters to observe the “cooperation and harmonious actions” by which the pioneers of Texas independence succeeded in their glorious quest to establish the Republic. Austin Mayor Frank Maddox also welcomed them. During the program portion of the convention speeches were given and poems read, welcoming the groups assembled and calling for heroic and selfless action in preserving the memory of the sacrifices of the founders of the Republic. Some remarks even foreshadowed the upcoming brawl. For example, one speaker took the opportunity to remark that the “apple of discord entered our ranks in an effort for supreme control of the Alamo property,” which others should take care to avoid in their great devotion to the work of honoring and preserving their sacred history. After the planned program concluded, First Vice President Rebecca J. Fisher of Austin opened the meeting up to business by appointing Mrs. I.B. Alford of San Antonio to preside over the meeting. Miss De Zavala and Mrs. Looscan again objected from the floor, arguing that the appointment was inappropriate, but their objection was ruled out of order after Miss Fisher said that she could choose whoever she wished to conduct the parliamentary portion of the meeting. Supported by some of the men observing the meeting, Miss De Zavala and her supporters continued objecting to efforts to move forward with the group’s business. Their efforts created considerable disorder and the meeting adjourned for lunch. Things did not improve after lunch when Mrs. Fisher informed the members that she had conferred with several excellent parliamentarians, who agreed that she could appoint anyone she chose to conduct the meeting. Mrs. Alford thereupon resumed officiating. In an effort to regain control of the meeting, an elected officer read a list of restrictions on who could speak, when they could speak, how

long they could speak, and on what topics they could speak. Suffice it to say, the list could barely be heard over the screaming pandemonium in the chamber. The numerous parliamentary objections of the De Zavala faction were summarily ruled out of order. The minutes of the meeting note the active and vigorous participation of various men, identified to the chair as senators and senate pages, who were adding to the general noise and confusion, apparently annoying the Fisher faction by urging on the De Zavala faction. A scuffle ensued over the gavel. After Mrs. Fisher regained control over the gavel, but not the meeting, she crashed the gavel onto the rostrum and declared the convention adjourned sine die and walked out with 46 of the 68 members present. Asserting that the meeting was not properly adjourned, the De Zavala faction decided to continue the meeting and attend to business. This included electing a new slate of officers, including electing the ailing Mrs. Anson Jones (widow of the President of the Republic) as president of the De Zavala group. Upon hearing that she was elected as president of Adina De Zavala’s group, Mrs. Jones took the unusual step on June 15, 1907, of sending a letter to newspapers around Texas, disclaiming the position. So what was that wild, undignified shrieking melee about? What was behind all the calls for sweetness and harmony? Why were the senators encouraging the Daughters to riot in the senate chamber? Was this a power grab? More to the point, what happened next? The story picks up in early July 1907 when the Fisher faction, represented by the Houston firm of Lane, Jackson, Kelley & Wolters, appeared before the Honorable Norman Kittrell in the 61st District Court in Houston to file a petition for a permanent injunction. They sought to prevent Adina De Zavala and other leaders of the De Zavala faction, by name, from holding themselves out as officers of the Daughters of the Republic of Texas, or in any other way asserting that they

were entitled to control the property, accounts, rental income, and relics of the slain heroes given in sacred trust to the Daughters by the State of Texas. You may ask, “Why Houston, when the Alamo, as even non-Texans know, is in San Antonio?” It was because Mrs. Fisher and her supporters wanted the case heard before Judge Kittrell. Although he declined to enjoin the De Zavala fraction, he immediately issued a “temporary stay” of any action by the De Zavala group to assert control over the Alamo-related property and relics (including a gold snuff box which had belonged to General Santa Ana). Adina De Zavala did not take kindly to Judge Kittrell’s actions, nor to the contents of the Petition for Injunction in which the Daughters referred at length to the Hugo-Schmeltzer property operating in the Alamo shrine precincts, describing it as a run-down and disgusting wholesale whiskey warehouse on the inside and a bill-posting site on the outside, which deserved no better than to be ripped down to provide space for a park to surround the Shrine. The answer and crossclaim by Miss De Zavala and her comrades in arms reveals that the whiskey warehouse was not in fact attached to the Alamo mission church, but shared a common wall with one of the other historic buildings on the Alamo property. Since the Daughters lacked funds to maintain the Alamo buildings, the one adjoining the HugoSchmeltzer warehouse was slowly decaying, except to the extent that the HugoSchmeltzer management made repairs at their own expense to maintain their portion of the structure. Judge Kittrell knew far more about this than he let on in issuing the stay order against Adina De Zavala and the other defendants. At an executive committee meeting held before the annual meeting, Judge Kittrell presented to the leadership of the Daughters a business proposal from a close friend of his who represented the Vandeventer Hotel Company of St. Louis. The hotel company proposed to remove

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the buildings occupied by the HugoSchmeltzer whiskey warehouse, and to create and maintain for a period of years a park around the Alamo mission. It also agreed to pay the salary of a custodian for the Alamo mission church for five years. They would use the cleared site, exclusive of the park area, for a very nice hotel. Claiming they lacked authority until after the deal was raised as an item of new business at the annual convention, the executive committee chair made a counterproposal, demanding major funding for renovations to the mission along with payment of all costs for removal of the Hugo-Schmeltzer business premises and other “new” construction “attached” to the mission. The counterproposal went so far as to describe the decorative vines to be planted against the walls and the content of a brass plaque to be erected at the shrine. Apparently, the St. Louis group was not eager to get into the sort of transaction the Daughters’ executive committee contemplated and withdrew its offer. Adina De Zavala found out about the efforts to evict the Hugo-Schmeltzer Co. from the Alamo ground from Mrs. Looscan, who was at the meeting with Judge Kittrell. Determined to thwart these efforts, she then instructed the Hugo-Schmeltzer Co. to send the monthly rent to the San Antonio De Zavala Chapter instead of the statewide organization. She also instructed the Daughters’ bank not to issue any checks unless authorized by her. Although the executive committee was aware of De Zavala’s actions, it met again before the convention to consider a new proposal from a group of San Antonio businessmen. This group proposed to remove the offending Hugo-Schmeltzer building and other barns, warehouses and galleries that had been built up around the old mission church, and to build a park around the original buildings. Noting that Hugo-Schmeltzer was now approximately four months behind in paying its rent to them, the executive committee voted to increase their rent. 20

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Back at the 61st Court in Houston, the De Zavala group, represented by Houston attorneys W.G. Love, J.T. Guinn and Donald A. Bliss, filed their answer and counterclaim against the Fisher faction. In their pleadings, they pointed out in detail that Judge Kitrell–the judge presiding over the injunction hearing–was a direct participant in the attempts by the executive committee to exclude the De Zavala group from discussions of a potential business deal directly affecting the integrity of the Alamo buildings. In their counterclaim, they cited specific provisions of the organization’s constitution and bylaws (as amended) that provided for the vice presidents to preside over the meetings of the membership in their numerical order. They also stated that the organization’s constitution was amended at the 1905 convention to give direct management of historic sites to the local chapters. It was amended in contemplation of the possible purchase and preservation of the San Jacinto battleground and other smaller historic sites by their respective local chapters, since those could not be funded by the statewide organization. The De Zavala group also complained that the negotiations by the Fisher group’s executive committee directly thwarted their control over the Alamo and its income-producing whiskey warehouse, the Hugo-Schmeltzer property. The Fisher group was forced to amend their petition and answer, acknowledging Judge Kittrell’s participation in their business dealings, but praised his lifelong patriotism and support for the Daughters in their sacred mission to protect the shrine of Texas heroes. Their amended petition delicately dances around the dispute and the actions of both sides in protecting the Alamo. Ultimately, the groups narrowed their factual disputes to the question of what was meant by the term “Alamo.” Did it mean the central structure—the mission church? Or did it mean the entire group of buildings associated with the church building at the time of the war for independence, one of which had a “new”

addition, the whiskey warehouse? In response to discovery, copies of the program booklet that were produced after the convention, which included the minutes of the various executive committee meetings prior to the convention— including at least one in which Judge Kittrell attended to present his friend’s business proposal—became a part of the case file. In addition, witnesses who were deposed on written interrogatories and cross-interrogatories described the convention in colorful terms. Senator E.I. Kellie, in responding to interrogatories about whether there was an actual motion and vote to adjourn, said, “I could not say positively, the confusion about this time was getting so great, and looked very much like there was going to be a scrap, and I being of small stature, weighing 114 pounds, I left my seat and went to the rear of the chamber near the door, so that I could run if necessary.” Several of the senators and businessmen admitted to coaching the De Zavala group in parliamentary procedure from the sidelines, and joining in the general uproar. None could say with certainty whether there was an actual motion and properly conducted vote to adjourn sine die prior to the Fisher group walk-out, due to the volume of the shouting and the fact that most of the women were on their feet. Indeed, the mere physical possession of the gavel was a matter of some sport among the women, according to the senators’ depositions. The case file does not reflect an additional interesting piece of information. At one point, Adina De Zavala was reported to have barricaded herself in the disputed building, although it was not clear which side of the common wall she was on—the whiskey warehouse side or the original Alamo building side. The injunction suit finally went to trial in the 61st District court in Houston on June 1, 1908. A handwritten Motion for New Trial by the defendants is dated that day. Findings of Fact and Conclusions of Law were issued on June 9. That document is signed by Judge Leo W. Moore; Judge

Kittrell, having read the handwriting on the wall, had recused himself pretrial. Judge Moore’s Findings of Fact and Conclusions of Law had very carefully recited the fewest possible facts to dispose of the suit, displaying a delicate balance between the feuding groups of prominent ladies. He found that the Daughters had indeed amended their constitution at the annual convention held at Goliad in 1905, to give responsibility for the Alamo property to the De Zavala chapter. He found that Adina De Zavala notified the tenant of the whiskey warehouse in November 1906 to pay the rent to the De Zavala Chapter, and that she notified the Daughters’ bank at that time to honor checks on the Alamo account only if written by the treasurer of the De Zavala Chapter. He concluded as a matter of law, however, that the organization could not amend its constitution to change the terms of the legislation giving both the property and the responsibility to maintain it to the Daughters of the Republic of Texas’ statewide organization.

Judge Moore found that the organization’s constitution required that in the absence of the president, the vice presidents should preside in numerical order. He concluded that the adjournment sine die was effective and that any action taken by the remaining members after the Fisher faction departed was null and void. (This included two subsequent separate annual conventions at which officers were elected by the De Zavala faction.) The judge found that in compliance with the Daughter’s constitution, the officers were elected to serve two-year terms and that the Fisher faction had been elected in 1906. As a result, no election of officers by the De Zavala group was proper in 1907, and the group’s subsequently elected officers were without authority. Judge Moore also concluded that Mrs. Fisher’s appointment of Mrs. Alford to preside at the 1907 convention was not just irregular but null and void, and any action taken and business transacted after that appointment were also null and void. Finally, Judge Moore found that by the

time of the trial both factions intended to demolish the whiskey warehouse portion of the building that caused the rift, and replace it with a park. A petition for writ of error was filed in September 1908. The Court of Civil Appeals at Galveston returned its mandate in due course on May 21, 1910, finding no error. By the time of the mandate, there had been two annual meetings of the respective factions, and the illustrious Mrs. Anson Jones, the president of both factions, had passed to her eternal reward. You can read more of case file #43344 or other equally interesting bits of Houston’s history. Check the link to the historical records project on the Harris County District Clerk’s Web site, Many historical cases have been digitized as part of the county’s historical documents preservation project. Ann D. Zeigler is a senior consultant with Third Coast Consultants, specializing in electronic document discovery issues, and a former editor in chief of The Houston Lawyer.

July/August 2010


By Jennifer A. Hasley

When I F Grow Up, I Want to be a Lawyer...

or those individuals who dream of joining the noble legal profession and becoming an attorney, it is almost unimaginable to consider that at some point after completing four years of college, three years of law school, taking and passing a bar examination, and actually representing clients, there could be an allegation of professional misconduct—or worse, a finding of professional misconduct. While certain risk factors may increase the likelihood of an attorney being the subject of a grievance,1 these are not necessarily synonymous with the type of conduct that results in the imposition of a disciplinary sanction. This article provides an overview of the Texas attorney disciplinary system, identifies conduct that may result in disciplinary action, and provides practical ideas for improving the quality of the legal services rendered and job satisfaction.

Not a Respondent in a Disciplinary Action

Overview of the Texas Attorney Disciplinary System The conduct of attorneys practicing law in the state of Texas is governed by the Texas Disciplinary Rules of Professional Conduct (TDRPC). With authority from the Supreme Court of Texas and the Texas Legislature, the State Bar of Texas Office of the Chief Disciplinary Counsel (CDC) administers a disciplinary system for those whose conduct does not comply with the TDRPC.2 The disciplinary system is a complaint driven process. Any person or entity including, for example, a current or former client, employee, spouse, witness, opposing counsel, judge, etc., may file a grievance against an attorney.3 Within 30 days after a grievance has been filed, the CDC makes an initial classification decision.4 The CDC will either dismiss the grievance as an “inquiry”5 or upgrade the grievance to a “complaint”6 which requires a formal written response.7 At this point, the attorney becomes the

“Respondent.”8 For complaints, the CDC is obligated to investigate the allegation(s) and make a “just cause”9 determination within 60 days.10 Recommendations for dismissal are referred to a summary disposition panel for approval.11 If the CDC determines that “just cause” exists to proceed forward, the Respondent is given the opportunity to elect a proceeding before an Evidentiary Panel comprised of volunteer attorneys and public members or a trial in district court.12 Evidentiary Panel proceedings are generally confidential until a public sanction is imposed.13 These proceedings provide for the possibility of a private reprimand as a potential disciplinary sanction.14 Evi-

dentiary proceedings are less formal than traditional court trials and may not comply with the rules of civil procedure or evidence.15 Evidentiary judgments may be appealed to the Board of Disciplinary Appeals, a 12-attorney tribunal, appointed by the Supreme Court of Texas.16 District court actions require the appointment by the Supreme Court of Texas of an active district judge who does not reside in the Administrative Judicial District in which the Respondent resides.17 The district court action offers the option of either a bench or jury trial and adheres to traditional rules of civil procedure and evidence. Generally, a private reprimand is not an available disciplinary sanction.18 A district court judgment may be ap-

pealed to the state appellate court.19 Upon the finding of just cause and the filing of the Evidentiary or District Court petition, the CDC represents the Commission for Lawyer Discipline (CFLD), referred to as the “Petitioner.” The CFLD is a standing committee of the State Bar of Texas composed of twelve volunteer, nonpaid members (six attorneys appointed by the President of the State Bar of Texas and six non-attorney members appointed by the Supreme Court of Texas).20 The CFLD has the burden of proving a Respondent’s violation of the disciplinary rule(s) at issue by a preponderance of the evidence.21 If no professional misconduct is found, the case is dismissed. If there is a finding of professional misconduct, disciplinary sanctions that may be imposed range from a private reprimand,22 public reprimand,23 fully probated suspension,24 partially probated suspension,25 active suspension,26 to disbarment.27, 28 The CDC, as the prevailing party, routinely seeks attorney’s fees and costs; however, these are discretionary to the panel or court.29 Avoiding the Top Five Alleged Disciplinary Rule Violations

The five most frequently cited rule violations alleged against Texas attorneys involve (1) neglect, (2) failure to communicate, (3) integrity issues, (4) circumstances surrounding the termination of representation; and (5) failure to safe-

guard client funds and property.30 Neglect Neglect by attorneys is the most frequently alleged disciplinary rule violation, prompting 25 percent of all grievances. According to TDRPC 1.01(b): In representing a client, a lawyer shall not: (1) neglect a legal matter entrusted to the lawyer; or (2) frequently fail to carry out completely the obligations that the lawyer owes to a client or clients.31 Neglect is further defined as “inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients.”32 From a client’s perspective, “neglect” may be something very different from the standard set forth under the TDRPC. Any perceived inattentiveness by the attorney may be viewed as neglect. Regardless of whether the impression is justified, the following actions, or inactions, by the attorney may lead to client dissatisfaction: • Unavailability and unresponsiveness to client-initiated communications. • Late arrival to appointments and court appearances. • Perceived lack of case-specific knowledge or limited expertise. • Apparent lack of commitment. • Failure to listen carefully and explain clearly. • Inattentiveness during client meetings. • Procrastination. An attorney can be proactive in warding off unnecessary grievances by: • Regularly communicating with clients by promptly returning phone calls, responding to emails, providing status reports, sending detailed bills, etc. • Using and maintaining a reliable calendaring/docketing system. • Keeping detailed records of time spent on a case (regardless of whether it is an hourly, flat, or contingency fee case).

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• During periods of inactivity, maintaining contact with clients and explaining how the inactivity benefits their case. • Training attorneys and staff on professionalism, ethics, organization, and confidentiality. Communication Good client relationships begin with good communication. Attorneys’ failure to communicate is the second most frequently alleged disciplinary rule violation, prompting 22 percent of all grievances. According to TDRPC 1.03: (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Client complaints that fall into this

category focus on a complete lack of or lapses in communication, inadequate information, dissatisfaction with the representation, and/or a disappointing case outcome. Communication is the cornerstone for being an effective advocate for the client. At the inception of the attorney-client relationship, it is important for the attorney to establish a clear and mutual understanding of the level of communication that is expected and will be maintained throughout the representation. It is often insufficient to rely solely on oral communications with a client. Documenting the conversation in a follow-up letter or email not only gives the client a chance to review and reflect upon the information conveyed, but also establishes a solid record of compliance with the attorney’s obligations under TDRPC 1.03. Lack of adequate communication often stems from several root causes: (1) inattentiveness to cases perceived by the attorney as less important; (2) difficult or demanding clients; and (3) deficient of-

fice policies and staff training. Before undertaking the representation, a critical assessment of both the prospective client and the legal issues can help identify and circumvent potential problems. Clients will generally be at their best during the initial meeting. If presented with a difficult or needy client, the attorney should consider either passing on the representation or establishing clear boundaries and reasonable expectations. Clients who demand the most time from their attorneys are often the first to file grievances when they do not receive the attention they feel they deserve. Similarly, if a legal matter is not going to generate the fees to warrant the attorney’s full interest and commitment, the attorney should not accept the representation. Disciplinary cases citing failure to communicate frequently result from undertaking a case at a discounted rate or as a “favor� to a friend, family member or colleague. Under these circumstances, an attorney may not follow customary formalities, feel less obliged to the client, and be less attentive, all












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of which may lead to the filing of a grievance. Good office policies and procedures can reduce the likelihood that a client will complain about lack of communication. Written communications do not always have to include a substantive analysis or be a time consuming event. For example, forwarding pleadings or relevant documents, sending regular and detailed billing statements, and simple scheduling reminders, all build a record of the requisite level of communication. Once these basic practices are integrated into the office procedures they can be maintained with minimal effort. Integrity Integrity is at the very heart of our legal system as it is the foundation upon which trust depends. It is disconcerting that allegations of dishonesty, fraud, deceit, and misrepresentation is the basis for 13 percent of all grievances. Integrity is governed by TDRPC Part VIII and encompasses a broad range of conduct that extends beyond the attorney-client relationship including, specifically, compliance with regulatory requirements (e.g., application for admission, responding to disciplinary matters, reporting professional misconduct, etc.). Some attorneys, unfortunately, simply lack the integrity to practice law. They may excel in school, but are missing core values in their moral compass. These attorneys will generally find their way into the disciplinary system. Often, a violation of an integrity provision starts with a simple, inadvertent mistake. A pattern then may begin to emerge with a not-so-innocuous “white lie” to explain away the mistake, followed by carefully crafted statements or silent omissions, and then the blockbuster–a misguided attempt to “fix” the mistake that started the cycle. At that point, a multitude of disciplinary infractions overwhelm any notion of common sense and the acts that follow lead the attorney down the road to disbarment. The scenario seems almost unimagi-

nable to most attorneys; but it is the precipitating event, the inadvertent mistake, that may occur at some point in any busy legal practitioner’s career. Generally speaking, remedies exist to address the most common mistakes (e.g., missing a deadline, failing to respond to a discovery request, inadvertent disclosure of confidential information, etc.). Acknowledging the mistake is crucial to avoiding integrity violations. It is the cover up–not the mistake–that violates the TDRPC.

Candor is an essential part of explaining the circumstances to a client and the courts. Even if the client has a potential civil claim, there is no reason to fight the battle on two fronts by creating a separate claim for professional misconduct. Any attempt to conceal these facts from a client, to mislead a court, or to alter or destroy documents, will guarantee a significant disciplinary sanction and, more likely, the loss of the right to practice law. Inevitably, the truth will be re-

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July/August 2010


vealed. Seeking advice from a partner or trusted colleague might often be the best first step when discovering a mistake has been made. An objective third party can help to dismiss any temptation to avoid the disclosure obligation. Declining or Terminating Representation Declining or terminating representation prompts slightly more than 12 percent of all grievances. TDRPC 1.15 sets forth the requirements for declining representation, or when representation has commenced, the circumstances under which withdrawal may or may not be accomplished. The part of the rule that is most often cited in grievances is the failure, or perceived failure on the part of a disgruntled former client, of the attorney to refund an unearned fee or to return the client file. More often than not, if the circumstances giving rise to termination of representation predate the conclusion of the CS10_HoustonLawyerAd.pdf 1 6/22/10 case, the client feels as if he/she did not


July/August 2010

receive the full benefit of the bargain and wants a refund. Attorneys should objectively evaluate each case upon conclusion of the representation to determine if any refund is due to the client. That evaluation should include a reasoned business decision about potential alternatives. For example, while the attorney may think no refund is due the client, the attorney should weigh against that the potential cost of defending a grievance. An untold number of attorneys have been introduced to the wrong side of the grievance process simply for being unwilling to part with a few hundred dollars–an amount much less than that required for presenting a grievance defense. After-the-fact created time sheets or billing records are rarely considered persuasive evidence for proving that the fee was fully earned. An attorney should make every effort to promptly respond to a request for the return of the client file. Safekeeping Property Failure to safeguard property is asserted

10:28 AM

in almost 12 percent of all grievances. TDRPC 1.14 prohibits commingling of attorney and client funds, prescribes the use of trust accounts, mandates prompt notification and delivery of funds to clients and third persons, requires attorneys to account for all funds received on behalf of clients and third persons, and imposes an obligation on the attorney to safeguard disputed funds. This rule aims to protect the fundamental notion–lawyers do not steal or borrow their client’s money. Violations of the safekeeping rule generally result in some of the harshest sanctions that the disciplinary system can assess. Unfortunately, the purpose of this rule has been diluted by the prosecution of attorneys for accounting errors, fee disputes which are non-disciplinary in nature, and third party collection claims. Rules governing how to handle trust accounts sometimes can be tedious, requiring multiple transactions, additional trips to the bank, etc. For an attorney who is unable to balance a personal

checkbook, balancing a trust account ledger can be a daunting task. Extra special care must be taken to comply with the rules. Employment of a bookkeeper or trained staff member may be a necessity. Trust account violations are among the easiest violations to prove. The bank records do not lie and must be in order. Even an unsupported allegation of a safekeeping violation may result in multiple rule violations once the CDC obtains the trust account records that show any irregularities. Conclusion The TDRPC provide the minimum standards of conduct expected for attorneys practicing in Texas. Failure to abide by these rules may be a result of intentional misconduct, lack of supervision, poor office procedures, or a host of other reasons. Physical or mental illness, emotional distress, substance abuse, and financial difficulties can be distracting and influence any attorney’s ability to focus on client needs, running a law practice, and other professional obligations. Whether an attorney grievance is based upon a genuine concern for the integrity of the profession, a valid complaint about legal services rendered, a fee dispute, or an attempt to gain an advantage in a civil or other claim, it must always be taken seriously. In each stage of the grievance process, there must be a clear and objective examination of the facts, circumstances, and mitigation involved; however, a failure to respond at any point in the proceedings will undermine the attorney’s credibility and guarantee that the matter will proceed to the next level. Jennifer A. Hasley is a partner at HASLEY SCARANO, L.L.P. Her trial practice focuses primarily on professional responsibility, attorney disciplinary actions, disability issues and legal malpractice.

seq. 3. “‘Complainant’ means the person, firm, corporation, or other entity, including the Chief Disciplinary Counsel, initiating a Complaint or Inquiry.” TRDP 1.06F. 4. TRDP 2.10. 5. “‘Inquiry’ means any written matter concerning attorney conduct received by the Office of the Chief Disciplinary Counsel that, even if true, does not allege Professional Misconduct or Disability.” TRDP 1.06S. 6. “‘Complaint’ means those written matters received by the Office of the Chief Disciplinary Counsel that, either on the face thereof or upon screening or preliminary investigation, allege Professional Misconduct or attorney Disability, or both, cognizable under these rules or the Texas Disciplinary Rules of Professional Conduct.” TRDP 1.06G. 7. TRDP 2.10. 8. TRDP 1.06X. 9. “‘Just Cause’ means such cause as is found to exist upon a reasonable inquiry that would induce a reasonably intelligent and prudent person to believe that an attorney either has committed an act or acts of Professional Misconduct requiring that a Sanction be imposed, or suffers from a Disability that requires either suspension as an attorney licensed to practice law in the State of Texas or probation.” TRDP 1.06U. 10. TRDP 2.12. 11. TRDP 1.06BB and 2.13. 12. TRDP 2.14 and 2.15. 13. TRDP 2.16A(2)(a). 14. TRDP 1.06Y(8). 15. TRDP 2.17. See, for example, TRDP 2.17G (“no ruling upon a

discovery dispute shall be a basis for reversal solely because it fails to strictly comply with the Texas Rules of Civil Procedure”). 16. TRDP 2.17N, 2.21-2.27. See also, TRDP, Part VII. 17. TRDP 3.02. 18. TRDP 3.01-3.16. 19. TRDP 3.16. 20. TEX. GOV’T. CODE §81.076; TRDP 1.06D, 2.14A, Part 4, and 5.01G. 21. TRDP 2.17M and 3.08C. 22. A confidential sanction published without the name of the respondent attorney. 23. A public sanction published together with the name of the respondent attorney. 24. A public sanction suspending the respondent attorney from the practice of law for a specific term; however, the suspension is “probated,” which means that the respondent may practice law during the period of suspension subject to specific terms and conditions. 25. A public sanction suspending the respondent attorney from the practice of law for a specific term followed by a period of probated suspension. 26. A public sanction suspending the attorney from the practice of law for a specific term. 27. The most severe discipline resulting in a complete loss of a respondent attorney’s license to practice law. 28. TRDP 1.06Y; see also TRDP 15.11. 29. TRDP 1.06Y. 30. For this article, all statistics are based upon the State Bar of Texas 2008-09 fiscal year which runs from June 1 to May 31. 31. TDRPC 1.01(b)(1) and (2). 32. TDRPC 1.01(c).

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Endnotes 1. For example, attorneys in particular practice areas (e.g., criminal, family and personal injury law) are more likely to be the subject of a grievance. 2. TEX. GOV’T CODE §81.071, et

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July/August 2010


By Benny Agosto, Jr., Professor Lupe Salinas and Eloisa Morales Arteaga

Can the Undocumented Worker’s Alien Status be Introduced at Trial? “But your honor, he’s an illegal!”

- Actual quote from a recent case, ruled inadmissible and prejudicial

The Immigration Debate According to a recent report by the U.S. Department of Homeland Security, it was estimated that 8.5 million unauthorized immigrants were living in the United States in 2000.1 This figure grew by approximately 250,000 persons each year.2 As of 2009, the number of unauthorized immigrants living in the United States was approximately 11.8 million.3 Immigrants from Mexico account for about 6.7 million of the total unauthorized immigrants living in the United States.4 It is estimated that between 2000 and 2009, approximately 2 million people illegally entered the United States from Mexico.5 There are an additional 170,000 people legally entering this country from Mexico each year.6 These numbers are the spark that has produced a firestorm of controversy. As the United States Supreme Court recently stated in the March 2010 decision of Padilla v. Kentucky, “[t]he landscape of federal immigration law has changed dramatically over the last 90 years...The Nation’s first 100 years was a period of unimpeded immigration.”7 The 2010 Census, which is currently underway, may indicate that the number of undocumented workers living in the United States will reach between 12 to 13 million. Migrant workers, whether legal or illegal, play an important role in the United States’ economy. The average undocumented family pays more than $4,200 in annual federal taxes while earning less than the average annual salary of $36,700.8 Fifty to eighty-five percent of the country’s 1.6 million farm workers are undocumented.9 Immigrant workers play a critical service in keeping hotels operating affordably by taking jobs American-born workers do not want. Of the 12 million food service workers in the United States, 1.4 million are believed to be immigrants, with 500,000 of them from Mexico.10 Forty percent of the workers in the New York restaurant industry

are undocumented.11 Undocumented workers from Mexico tend to be young, predominately male, struggling with the English language, and employed in the construction, manufacturing and hospitality industries.12 The fear associated with undocumented workers is not new. Courts throughout the nation have examined, and attempted to insulate against, the prejudices that a plaintiff, who is an injured undocumented worker, encounters in trying to obtain a fair trial. The debate over illegal immigration, however, is currently at the forefront of the policy in the United States, and attorneys who represent injured undocumented workers must be acutely cognizant of the prejudices that the American people are exposed to during this debate. Evidence of an Individual’s Alien Status in the Courts In the course of a hotly contested trial, lawyers often “pull off the gloves.” Professional and ethical conduct, however, requires that there be limitations on the extent to which counsel may go into prejudicial and inadmissible matters. Rule 403 of the Texas Rules of Evidence, as well as the Federal Rules of Evidence, require that the trial court balance the risk of unfair prejudice against the probative value of the evidence seeking to be admitted.13 Most courts across the country following Rule 403 have determined that the trial court is to admit relevant evidence unless the probative value of that extraneous evidence is substantially outweighed by the danger of unfair prejudice. Evidence Used to Inflame the Jury “Cases ought to be tried in a court of justice upon the facts provided; and whether a party be a Jew or gentile, white or black, is a matter of indifference.”14 During the last 100 years, the Texas Appellate Courts have uniformly condemned arguments that invoke prejudice based on race, ethnicity, religion, or national origin. This condemnation extends to arguments that seek to highlight or give weight to a person’s alien status. Although the manner in

which the prejudicial appeal is presented has varied through the years and from case to case, the response thereto has remained relatively unchanged. Recent Texas Supreme Court case–TXI Transp. Co. v. Hughes In the historic case of TXI Transp. Co. v. Hughes, decided in March 2010, Justice David Medina, writing for a unanimous Texas Supreme Court, held that the trial court erred in admitting evidence impugning defendant Ricardo Rodriguez’s character on the basis of his immigration status.15 According to the Court, “[s]uch error was harmful, not only because its prejudice far outweighed any probative value, but also because it fostered the impression that Rodriguez’s employer [TXI] should be held liable because it hired an illegal immigrant.”16 In TXI, Kimberly Hughes was driving with several members of her family when her vehicle collided with a TXI gravel truck driven by Ricardo Rodriguez. The collision killed everyone in Hughes’ vehicle except for one passenger. Hughes’ husband sued TXI and Rodriguez. At trial, evidence of Rodriguez’s immigration status was admitted over TXI’s objections. Evidence was introduced regarding Rodriguez’s prior deportation, his use of a false Social Security number, and the fact that he lied to obtain a commercial driver’s license by using a false Social Security number, among other evidence. TXI complained that Rodriguez’s immigration status was not relevant to any issue in the case, and that evidence of his status was highly prejudicial. Hughes argued that evidence of Rodriguez’s immigration status was relevant to the issues of negligent hiring and negligent entrustment, and also as impeachment evidence. Justice Medina analyzed whether evidence of Rodriguez’s immigration status was relevant to the issues of negligent hiring and negligent entrustment. The Court concluded that neither Rodriguez’s immigration status nor his use of a fake Social Security number to obtain a commercial driver’s license caused the colli-

sion.17 Thus, his immigration status was not relevant to either issue. The Court then went on to analyze whether evidence of Rodriguez’s immigration status, offered for impeachment purposes as prior inconsistent statements, was admissible. Justice Medina concluded it was not, for at least two different reasons. The Court first pointed out that Rodriguez’s immigration status was a collateral matter—that is, it did not relate to any of the claims–thus, it was inadmissible impeachment evidence.18 Second, the immigration-related evidence was also inadmissible under Texas Rule of Evidence 608(b).19 This rule provides that specific instances of conduct of a witness for the purpose of attacking his or her credibility may not be proved by extrinsic evidence. As the Court noted, “[f]or over 150 years, ‘Texas Civil Courts have consistently rejected evidence of specific instances of conduct for impeachment purposes, no matter how probative of truthfulness.’”20 Thus, evidence of Rodriguez’s immigration status and deportation were inadmissible. The Court held that even if evidence of Rodriguez’s immigration status had some relevance, its probative value was outweighed by the risk of unfair prejudice. Therefore, the trial court erred in admitting evidence of Rodriguez’s immigration status and the error was harmful.21 As Justice Medina so eloquently wrote, Such appeals to racial and ethnic prejudices, whether “explicit and brazen” or “veiled and subtle” cannot be tolerated because they undermine the very basis of our judicial process.22 Other States’ Decisions on the Admissibility of Immigration Status Courts outside of Texas have rendered opinions espousing the same concerns as Texas courts on the issues of introducing evidence of a person’s status as an undocumented worker. For example, one Florida Court of Appeals held that any probative value of immigration status was “thoroughly outweighed by unfair prejudice,

July/August 2010


confusion of the issues, and misleading of attack a party’s credibility.32 The Fourth 23 the jury.” The California Supreme Court Circuit held that an individual’s status as an alien, legal or otherwise, did not brand held in a 1985 decision that immigration the individual a liar.33 status, “even if marginally relevant…was 24 highly prejudicial.” Recent Supreme Court of the State of Similarly, the Delaware Supreme Court Washington case–Salas v. Hi-Tech Erectors held in 1999, that even if immigration staIn Salas v. Hi-Tech Erectors, decided in tus is relevant to impeach a witness, the April 2010 by the Supreme Court of the court must still determine if the probaState of Washington, Alex Salas was worktive value is outweighed by unfair prejuing at a construction site when he slipped dice.25 A New York court excluded evifrom a ladder erected dence of immigration by Hi-Tech.34 He fell status because any “However, the Court then probative value the more than 20 feet to went on to analyze evidence might have the ground and was was far outweighed severely injured. He whether the low probative by its prejudicial imsued Hi-Tech for negvalue of Salas’ immigration ligence. Salas sought pact.26 The Wisconstatus was substantially to exclude evidence sin Supreme Court, of his immigration in a 1987 decision, afoutweighed by the risk of status at the trial firmed the exclusion unfair prejudice. The Court court. The trial court of undocumented staadmitted evidence of tus based on its prejupointed to California and his immigration stadicial effect.27 Wisconsin cases where tus because Salas was A California Court the courts found that seeking lost future of Appeals held that income. The court prejudice from evievidence of immigration determined that the dence of undocumentstatus was prejudicial.” evidence was probaed status is “manifest tive of whether Salas’s and substantial” and future income would be in U.S. dollars or noted that “there is unequivocally an inin his home country’s currency. The jury herent bias among certain segments of found that Hi-Tech was negligent but was society against illegal immigrants.”28 One not the proximate cause of Salas’ injuries. Virginia court stated that “the danger of The Court of Appeals affirmed.35 a jury unfairly denying [Plaintiff] relief based on his status alone outweighed the Justice Fairhurst, writing for the majorprobative value of the evidence that he ity Supreme Court of the State of Washacted dishonestly in the past.”29 ington, noted that there was no evidence of pending deportation proceedings.36 In Courts in other jurisdictions have similarly held that the use of a witness’s imaddition, Salas had been in the country migration status to attack the witness’s since 1989, had lived without a visa since character is not admissible. 1994, had purchased a home, and had A New York court found that there was children living in the United States. The no authority to support the conclusion only risk of Salas being deported was his that evidence of undocumented status immigration status. As the Court pointed “impugns one’s credibility.”30 Thus the out, “immigration status alone is not a reliable indicator of whether someone will be evidence was not admissible for impeachdeported,” considering that even when an ment purposes. One Illinois court did not undocumented alien is apprehended, he allow evidence of undocumented status to or she must still go through removal proimpeach a witness.31 ceedings, which may or may not result in Likewise, a California Court of Appeals deportation.37 Based only on Salas’ immifound immigration status inadmissible to 30

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gration status, Salas’ risk of being deported was very low. Nonetheless, the Court concluded that, although Salas’ immigration status only minimally increased the likelihood that his labor market would be outside the United States, that was enough to make his immigration status relevant to the issue of lost wages.38 However, the Court then went on to analyze whether the low probative value of Salas’ immigration status was substantially outweighed by the risk of unfair prejudice. The Court pointed to California and Wisconsin cases where the courts found that evidence of immigration status was prejudicial. The Court held that with regard to lost future earnings, the low probative value of immigration status was greatly outweighed by the danger of unfair prejudice.39 The Court reversed and remanded, and held that the trial court abused its discretion in admitting evidence of Salas’ immigration status. The argument in favor of excluding evidence of immigration status was best articulated by Justice Fairhurst, writing for the majority in Salas: We recognize that immigration is a politically sensitive issue. Issues involving immigration can inspire passionate responses that carry a significant danger of interfering with the fact finder’s duty to engage in reasoned deliberation. In light of the low probative value of immigration status with regard to lost future earnings, the risk of unfair prejudice brought about by the admission of a plaintiff’s immigration status is too great. Consequently, we are convinced that the probative value of a plaintiff’s undocumented status, by itself, is substantially outweighed by the danger of unfair prejudice.40 Recent Fifth Circuit case—Bollinger Shipyards, Inc. v. Rodriguez It is worth noting that, although not related to the issue of relevance or prejudice, the Fifth Circuit decided in April 2010, that the undocumented status of an

injured longshoreman will not be a bar to the recovery of benefits under the Longshore and Harbor Workers’ Compensation Act. In Bollinger Shipyards, Inc. v. Rodriguez, the Fifth Circuit held that undocumented immigrants are eligible for benefits under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).41 Jorge Rodriguez was working for Bollinger as a pipefitter when he fell while welding the wall of a ship. Due to the injury, he was only able to perform light duty work for about a month, and eventually had to stop working. He sought benefits under the LHWCA.42 At the administrative trial, Bollinger’s vocational rehabilitation expert testified that because of Rodriguez’s status as “an undocumented immigrant,” he “had suffered no loss of legal earning capacity, as he had no legal earning capacity prior to being injured.”43 The administrative law judge (“ALJ”) held that undocumented immigrants are eligible for LHWCA benefits and ordered

that Bollinger pay benefits from the date of the accident to the present, among other things. The Benefits Review Board (“BRB”) affirmed the ALJ’s order and also held that undocumented immigrants are entitled to benefits under the LHWCA. Bollinger petitioned for review of the BRB’s decision.44 Bollinger argued that undocumented immigrants are “per se ineligible to receive indemnity benefits under the LHWCA, as any such benefits ‘would be based on illegally obtained wages.’”45 Bollinger went so far as to compare Rodriguez to a drug dealer, a pirate, and a Mafioso in regards to “ill-gotten wages.”46 The LHWCA provides workers’ compensation benefits to an “employee” if disability or death “results from an injury occurring upon the navigable waters of the United States…”47 “Employee” is defined in the Act as “any person engaged in maritime employment…”48 Further, the Act also states that “compensation under [the LHWCA] to aliens not residents (or about to become not residents) of the

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United States or Canada shall be the same in amount as provided for residents...”49 As the Fifth Circuit pointed out, the Act makes no reference to “illegal” or “undocumented” nor does it exclude undocumented immigrants from the definition of “employee.” The Court reviewed its 1988 decision in Hernandez v. M/V Rajaan, where the Court affirmed a district court’s award of lost future wages despite the Plaintiff’s status as an undocumented immigrant.50 According to the Court, Hernandez “stands for the proposition that undocumented immigrants are eligible to recover workers’ compensation benefits under the LHWCA.”51 Bollinger further argued that the BRB’s ruling undermines the Immigration Reform and Control Act of 1986 (“the IRCA”). The Court then reviewed the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB.52 In Hoffman, the Court held than the IRCA precluded the National Labor Relations Board from awarding back pay to an undocumented

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immigrant under the National Labor Relations Act (“the NLRA”). The Court noted that 1) the employee qualified for the back pay award only by remaining in the United States illegally and 2) the employee could not mitigate damages, as required, without violating the IRCA.53 The Fifth Circuit disagreed with Bollinger for three reasons. First, the LHWCA is a non-discretionary, statutory remedy, unlike discretionary back pay under the NLRA. Second, the LHWCA is an injured longshoreman’s exclusive remedy and thus, is a substitute for tort claims. An undocumented immigrant would have the right to sue in tort. Therefore, “the remedy provided by the LHWCA is merely a substitute for the negligence claim that an employee could otherwise bring against his employer in tort.”54 Third, the plain language of the LHWCA provides for compensation to nonresident aliens and aliens who are about to become nonresidents. Also, unlike NLRA cases, an injured longshoreman does not have to mitigate damages under the LHWCA nor does the employee have to remain the United States to qualify for benefits. Therefore, awarding benefits to an undocumented immigrant under the LHWCA does not undermine the IRCA.55 After reviewing the statutory text of the LHWCA, previous Fifth Circuit decisions, and the Supreme Court’s decision in Hoffman, the Fifth Circuit was “con-


July/August 2010

vinced that Rodriguez [was] eligible to receive benefits under the LHWCA” and therefore, denied Bollinger’s petition for review in all respects.56 Conclusion The terms “illegal alien,” “illegal immigrant,” and “undocumented worker” now more than ever, create a great deal of fear and distress in our society. This fear will, undoubtedly, find its way into a courtroom, and prejudice an injured undocumented worker’s right to a fair trial. As illustrated by the recent decisions of the Texas Supreme Court and the Supreme Court of the State of Washington and other cases cited therein, the courts throughout this nation, from East to West, recognize the prejudice that is engendered within the terms “illegal alien,” “illegal immigrant,” and “undocumented worker,” and have tried to strike a balance between this prejudice and its possible relevance. Texas and Washington, however, have made their position clear— any relevance that the alien status of an injured worker may have in a particular case is likely outweighed by its prejudicial effect. Benny Agosto, Jr. is a partner at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend. Professor Lupe Salinas is Professor of Law at Texas Southern University Thurgood Marshall School of

Law. Eloisa Morales Arteaga is a contract attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Friend. Endnotes 1. Michael Hoeffer, Nancy Rytina & Bryan C. Baker, U.S. Dep’t of Homeland Sec., Office of Immigration Statistics, Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2009 (Jan. 2010). 2. Id. 3. Id. 4. Id. 5. Id. 6. Benny Agosto, Jr. & Jason B. Ostrom, Can the Injured Migrant Worker’s Alien Status be Introduced at Trial?, 30 T. MARSHALL L. REV. 383, 384 (2005). 7. Padilla v. Kentucky, 599 U.S. ___ (2010). 8. Agosto & Ostrom, supra note 6, at 385. 9. Id. 10. Id. 11. Id. 12. Id. 13. TEX R. EVID. 403; FED. R. EVID. 403. 14. Moss v. Sanger, 75 Tex. 321, 12 S.W. 619 (Tex. 1889). 15. TXI Transp. Co., et al. v. Hughes, 2010 Tex. LEXIS 212, at *36. 16. Id. 17. Id. at *24. 18. Id. at *26. 19. Id. at *27. 20. Id. 21. Id. at *36. 22. Id. 23. Maldonado v. Allstate Ins. Co., 789 So.2d 464, 466, 470 (Fla. Ct. App. 2001). 24. Clemente v. State, 707 P.2d 818, 829 (Cal. 1985). 25. Diaz v. State, 743 A.2d 1166, 1184 (Del. 1999). 26. Klapa v. O & Y Liberty Plaza Co., 645 N.Y.S.2d 281, 282 (N.Y. Supp. Ct. 1996). 27. Gonzalez v. City of Franklin, 403 N.W.2d 747, 759-60 (Wis. 1987). 28. People v. Martin, No. B164978, 2004 WL 859187, at *6 (Cal. Ct. App. Apr. 22, 2004). 29. Romero v. Boyd Bros. Transp. Co., No. 93-0085-H, 1994 WL 287434, at *2 (W.D. Va. June 14, 1994). 30. Mischalski v. Ford Motor Co., 935 F. Supp. 203, 208 (E.D.N.Y. 1996). 31. First Am. Bank v. W. Dupage Landscaping, Inc., No. 00-C-4026, 2005 WL 2284265, at *1 (N.D. Ill. Sept. 19, 2005). 32. Hernandez v. Paicius, 134 Cal. Rptr. 2d 756, 761–62 (Cal. Ct. App. 2003). 33. Figeroa v. I.N.S., 886 F.2d 76, 79 (4th Cir. 1989). 34. Salas v. Hi-Tech Erectors, 2010 Wash. LEXIS 341, at *1. 35. Id. at *3. 36. Id. at *5. 37. Id. at *5–7. 38. Id. at *7. 39. Id. at *11. 40. Id. at *10–11. 41. Bollinger Shipyards, Inc. v. Rodriguez, ___F.3d___ (5th Cir. 2010). 42. Id. 43. Id. 44. Id. 45. Id. 46. Id. 47. 33 U.S.C. § 903. 48. 33 U.S.C. § 902. 49. 33 U.S.C. § 909. 50. Hernandez v. M/V Rajaan, 841 F.2d 582, amended after rehearing, 848 F.2d 498 (5th Cir. 1988). 51. Bollinger Shipyards, Inc. v. Rodriguez, ___F.3d___(5th Cir. 2010). 52. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 138 (2002). 53. Id. 54. Id. Bollinger, __F.3d at __. 55. Id. 56. Id.

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Porter & Hedges LLP Thompson & Knight L.L.P Winstead P.C. Firms of 100+ Attorneys Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski L.L.P. Haynes and Boone LLP Locke Lord Bissell & Liddell LLP Vinson & Elkins LLP Corporate Legal Departments AT&T Texas BP CenterPoint Energy El Paso Corporation Kellogg Brown & Root Inc Lyondell Petrochemical Company MAXXAM Inc Newfield Exploration Company Petrobras America Inc. Plains Exploration & Production Co. Pride International Inc. Rice University Sysco Corporation Texas Children’s Hospital Total E&P USA Inc. University of Houston System Law School Faculty South Texas College of Law Thurgood Marshall School of Law University of Houston Law Center Government Agencies City of Houston Legal Department Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County Texas

By Stan Perry and Teshia N. Judkins

Ethical A Witness Preparation: Stepping Back from the Line for the Lecture

sk seasoned trial lawyers and they will tell you that witness preparation—whether for deposition or trial—is the hardest part of their job. It is also an important part of the American legal system.1 Proper witness preparation is truly a fine art. Yet, there are very few courses on witness preparation, and most lawyers lack any training on it.2 There is surprisingly even less guidance on the ethics of witness preparation.3 Yet, a lawyer who fails to properly prepare a witness may lose her case and client,4 but a lawyer who fails to ethically prepare a witness may lose her reputation and career.5 If witness preparation is important, ethical witness preparation is paramount. One of the most famous, or perhaps infamous, witness preparation scenes is the Lecture from Robert Traver’s novel, ANATOMY OF A MURDER. Over the last half century, many have debated whether that Lecture crossed the ethical line; a debate that likely won’t be resolved soon. By modifying the Lecture, however, a lawyer can at least step back from the line. The Lecture ANATOMY OF A MURDER was an unlikely blockbuster in 1958. Its author did not exist; Robert Traver was a pseudonym for a former county prosecutor in the midst of a career crisis.6 Its setting in Michigan’s Upper Peninsula was remote, hardly the place for intrigue. Its subject, a crimi-

nal trial, was usually covered in tabloids, not novels. Finally, ANATOMY was a cynical critique of 1950s American life. And yet ANATOMY OF A MURDER topped the New York Times Bestseller List for 29 weeks7 and in 1959 became a popular movie starring Jimmy Stewart, among others. The legendary Otto Preminger directed, and Duke Ellington composed the score. The movie was nominated for seven Oscars; the score won a Grammy. The popularity of the book and movie cast the criminal justice system and its lawyers into the limelight. And the Lecture took center stage in the debate over ethical witness preparation.8 In ANATOMY, Paul Biegler gives the Lecture while representing Army Lieutenant Frederic Manion, who is charged with murdering Barney Quill. Biegler faces serious problems defending his client—Manion has no money, eyewitnesses saw Manion shoot Quill, Manion admitted to shooting Quill, and, to make matters worse, the prosecutor is Biegler’s professional rival. Biegler, as he speaks with Manion initially, considers but then dismisses the typical defenses to murder. During the interview, Biegler quickly realizes that “a few wrong answers to a few right questions” would leave Manion with no defense and notes “any smart lawyer” would give the Lecture.9 Traver, the author and a lawyer, next describes the Lecture, its importance, and its rationalization: The Lecture is an ancient device that lawyers use to coach their clients so that the client won’t quite know he has been coached and his lawyer can still preserve the face-saving illusion that he hasn’t done any coaching. For coaching clients, like robbing them, is not only frowned upon, it is downright unethical and bad, very bad. Hence the Lecture, an artful device as old as the law itself, and one used constantly by some of the nicest and most ethical lawyers in the land. “Who, me? I didn’t tell him what to say,” the lawyer can later comfort himself. “I

merely explained the law, see.” It is a good practice to scowl and shrug here and add virtuously: “That’s my duty, isn’t it?”10 Biegler goes on to describe Michigan’s insanity standard. Manion, in turn, now explains that his anger and hatred toward Quill for raping his wife were so strong that he was out of his mind and does not recall anything, conveniently in line with the Michigan standard.11 Biegler, with false modesty, begrudgingly accepts his client’s account. Yet, Biegler did not tell Manion to lie. Biegler, for his cynicism, is a dedicated believer in and defender of the American criminal justice system and the rule of law.12 For Biegler at least, the Lecture is one means by which a lawyer does his duty to his client; that is, zealously represents him within the legal and ethical limits of the law. The Line There is little law addressing the boundaries of ethical witness preparation.13 Clearly, under the Texas Rules of Disciplinary Conduct, a lawyer may not suborn perjury, create false evidence, or assist others in doing so.14 These broadlywritten rules, however, do not specify which preparation techniques are ethical.15 In Texas, there are no ethics opinions and very few cases.16 The ethical line is both fuzzy and fine,17 leaving ample room to dispute whether Biegler crossed it. For some, Biegler has covertly induced his client to lie, which is also unethical.18 For others, Biegler is simply walking the line.19 He does not “know” whether his Lecture generated false testimony.20 Even so, Biegler has given his client the means, motive, and opportunity to lie.21 Regardless of intention (the attorney’s or the client’s),22 Biegler’s Lecture creates a

fertile environment for false testimony. That alone should concern any ethical lawyer. Stepping Back Simply avoiding the Lecture, however, is not practical. First, ethics rules advise

lawyers to provide their clients with “an informed understanding of [their] legal rights and obligations and [to] explain their practical implications.”23 Second, lawyers should prepare witnesses to testify effectively and efficiently, which requires at least some understanding of what is relevant.24 Explaining the law serves both these goals. Furthermore, a lawyer can still give a lecture without giving The Lecture. The truth, the whole truth, and nothing but the truth. Biegler’s Lecture is seemingly unconcerned with the truth. A lawyer, however, should always and consistently instruct witnesses to tell the truth and educate them about what can happen if they don’t.25 By doing so, a lawyer likely enjoys more leeway in preparing witnesses.26 Timing is everything. The timing of Biegler’s Lecture certainly suggests it is unethical. Whenever possible, a lawyer should learn

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what the facts are before a lecture that may suggest what the facts should be.27 Discussing the law first is not necessarily unethical.28 Delaying that discussion, however, reduces the risk of influencing a witness’s testimony (especially when combined with warnings to tell the truth) and increases the likelihood of knowing when it has been influenced.

a witness’s presentation so that the testimony is either false or creates a false impression.”31 Conclusion Witness preparation raises a host of ethical challenges. In addition, the very outcome of the lawsuit may hinge on witness preparation strategy. With so much at stake, it is even more important to remember Paul Biegler’s admonition that lawyers must, at all times, accept the facts as they come to light: Lawyers were something like actors, I reflected; their range was limited by the play; they had to take the script as they found it; they dared not change the words or tinker with the dialogue. When they did they became either ham actors, on the one hand, or else shysters.32 Tinkering substantively with the facts is a line lawyers cannot cross and “[i]f you have to ask whether you are crossing the line, then you are probably standing to close too it.”33 So it’s best to take a few steps back.

Think before putting words in your witness’s mouth. Biegler’s Lecture supplies his client with legally significant buzz words to support his defense. Doing so, however, is only ethical if those words merely repackage previous testimony without affecting its substance.29 Therefore, a lawyer must assess whether suggestions to witness testimony substantively alters them.30 “The distinction is between aiding a witness to make a point clearly (to bring out the ‘truth’) versus changing (i.e. facilitating or orchestrating)

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Stan Perry is a litigation partner at Haynes and Boone, LLP. Teshia N. Judkins is a litigation associate also at Haynes and Boone. Endnotes 1. See, e.g., Peter H. Anderson, How to Avoid Common Ethical Pitfalls, 2006 NAT’L BUS. INST. ON BUILDING YOUR CIV. TRIAL SKILLS 96, 99 (explaining “vital importance” of witness preparation); David H. Berg, Preparing Witnesses, 13 No. 2 LITIG. 13, 14 (1987) (concluding it’s “probably unethical to fail to prepare a witness”). Nevertheless, many other countries and international courts prohibit it. E.g. Fred C. Zacharias & Shaun Martin, Coaching Witnesses, 87 K.Y.L.J. 1001, 1009-10 n.38 (1999) (Australia and Canada); Elaine Lewis, Witness Preparation: What Is Ethical, and What Is Not, 36 No. 2 LITIG. 41, 41 (2010) (England, Belgium, Italy, France, Switzerland, and the International Criminal Court). 2. See John S. Applegate, Witness Preparation, 68 TEX. L. REV. 277, 279 (1989). 3. See Lewis, supra note 1, at 42 (noting absence of law); Zacharias & Martin, supra note 1, at 1001 n.2 (same). 4. “There are lawyers who refuse to woodshed witnesses at all... Their clients most often are referred to as ‘appellants.’” Berg, supra note 1, at 14. 5. See Jerry Markon, Investigations, Lawsuits Still Dogging 9/11 Lawyer, WASH. POST, July 10, 2006, at B01 (describing proceedings against Carla Martin, including third-party lawsuits, that resulted from her improper coaching of witnesses during the 9/11 Moussaoui trial); In re Eldridge, 82 N.Y. 161, 167 (1880) (stating “[a]n adverse decision dooms [the lawyer] always to disgrace, and often to poverty and want”). 6. ROBERT TRAVER, Introduction to ROBERT TRAVER, ANATOMY OF A MURDER (25th anniv. ed. 1983). 7. See Edwin

McDowell, Publishing: Anatomy of an Author, N.Y. TIMES, Nov. 13, 1981. 8. See Richard C. Wydick, The Ethics of Witness Coaching, 17 CARDOZO L. REV. 1, 25 n.75 (1995); Frederick Baker, Jr., Book Review: Reflections on the 50th Anniversary of ANATOMY OF A MURDER, 87 No. 9 Mich. B.J. 50, 51 (Sept. 2008). 9. ROBERT TRAVER, ANATOMY OF A MURDER 32 (25th anniv. ed. 1983). 10. TRAVER, supra note 9, at 35. 11. See People v. Durfee, 29 N.W. 1009 (Mich. 1886). Durfee is the authority Biegler relies upon. 12. See TRAVER, supra note 9, at 63 (Biegler lecturing Manion on the law’s importance). 13. This is true not just in Texas but across the United States. See Liisa RenĂŠe Salmi, Note, Don’t Walk the Line: Ethical Considerations in Preparing Witnesses for Deposition and Trial, 18 REV. LITIG. 135, 136 (1999) (noting absence of guidance); Nicole LeGrande & Kathleen E. Mierau, Note, Witness Preparation and the Trial Consulting Industry, 17 GEO. J. LEGAL ETHICS 947, 947, 950 (2004) (same). 14. See TEX. DISCIPLINARY R. PROF’L CONDUCT 3.03, 3.04, 8.04 (including comments); accord Patricia J. Kerrigan, Witness Preparation, 30 TEX. TECH. L. REV. 1367, 1371 (1999). The same is true under the Model Rules. See Hal R. Lieberman, Be Aware of Ethical Witness Preparation Rules, N.Y.L.J., May 25, 2000, at 1, col. 1. Criminal statutes may also apply. See id. 15. Salmi, supra note 13, at 147. Yet authors have attempted to provide guidance. See, in addition to the sources cited herein, RESTATEMENT (THIRD) OF LAW GOVERNING LAWYERS: INTERVIEWING AND PREPARING A PROSPECTIVE WITNESS § 116 cmt. b (2000) and Joseph D. Piorkowski, Jr., Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of “Coaching,â€? 1 GEO. J. LEGAL ETHICS 389 (1987). 16. Texas cases include Ibarra v. Baker, Resolution Trust Corp. v. Bright, and U.S. v. Johnson. Under Ibarra, a lawyer “enjoys extensive leeway in preparing a witness to testify truthfullyâ€? but “crosses a line when she influences the witness to alter testimony in a false or misleading way.â€? 338 Fed. Appx. 457, 465 (5th Cir. 2009) (not for publication) (citing only a secondary source). Under Resolution Trust, a lawyer may “persuadeâ€? a witness, “even aggressivelyâ€?, to change her mind where there is a factual basis. 6 F.3d 336, 341 (5th Cir. 1993). Under Johnson, it is “not improperâ€? to intensively prepare a witness in order to “freezeâ€? testimony, “prevent unexpected responses,â€? and ensure “critical informationâ€? is provided so long as the testimony is truthful. 487 F.2d 1318, 1324 (5th Cir. 1974). 17. See Salmi, supra note 13, at 147. 18. E.g., Wydick, supra note 8, at 3, 2526; see also Applegate, supra note 2, at 301 (discussing “prompting perjuryâ€?). 19. E.g., Baker, supra note 8, at 51. 20. See Salmi, supra note 13, at 154-55 (describing a rebuttal).21. See Salmi, supra note 13, at 146. 22. See generally Wydick, supra note 8, at 37-52 for an in depth discussion of unintentionally influencing memory. 23. TEX. DISCIPLINARY R. PROF’L CONDUCT preamble Âś 2. 24. See James M. Altman, Witness Preparation Conflicts, 22 No. 1 LITIG. 38, 39 (1995); Applegate, supra note 2, at 300-01; Piorkowski, supra note 15, at 390-92. 25. Kerrigan, supra note 14, at 1369-70 (same advice and listing consequences); accord Anderson, supra note 1, at 100. 26. See Ibarra, 338 Fed. Appx. At 465 (noting a lawyers “extensive leeway in preparing a witness to testify truthfullyâ€?) (emphasis added); Altman, supra note 24, at 39. 27. Anderson, supra note 1, at 100-01; Salmi, supra note 13, at 154-55. 28. See Salmi, supra note 13, at 15556; Altman, supra note 24, at 39-40. 29. See Ibarra, 338 Fed. Appx. at 466; Anderson, supra note 1, at 102-04; Salmi, supra note 13, at 160-61. 30. See, e.g., Anderson, supra note 1, at 100-01, 102-04; Salmi, supra note 13, at 160-63, 176-77. 31. Lieberman, supra note 14, at 1, col. 1. 32. TRAVER, supra note 9, at 90; accord Anderson, supra note 1, at 100-01. 33. Salmi, supra note 13, at 136 (citation omitted).

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A Focus on Family and Helping Youth New HBA President Mark Kelly may be found on a plane as often as behind a desk as Global Business Chair for Vinson & Elkins. In Houston, however, he focuses on his family and his goal of helping other children, teens and young adults through several new HBA projects. THL: Tell me about your family and where you grew up. Kelly: I was born in Houston in 1957. My family has always been involved in the oil and gas business, which took us to Alaska, where I went to elementary, junior high and high school. My father at one time was Commissioner of Natural Resources and ran for governor of Alaska. I spent three years in Juneau and 12 years in Anchorage. THL: How did you get back to Texas? Kelly: I came back to Texas to attend Texas A&M University on a scholarship with the hopes of pursuing a basketball career–that was short-lived. I graduated with an accounting degree and then I went to law school at SMU. THL: What about your immediate family? Kelly: I met my wife, Kim, a week before school started at A&M and got married in 1982. After law school, I joined Vinson & Elkins in 1981. It is the first and only firm at which I’ve worked. We have three kids, two daughters and a son. Kristin is 24 and an analyst at Tudor Pickering & Holt. Ryan is 21 and a senior at Texas A&M. This summer he is interning at Morgan Stanley. I expect he may go the route of investment banking as well. We also have a 16-yearold, Madeline, who is a junior at Kinkaid and enjoying her new-found freedom being able to drive. THL: Tell me about your practice at 38

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Vinson & Elkins. Kelly: I started with the corporate finance group in Houston in May 1981 and became head of the group in 2000. My practice has always been varied. I spend probably half my time who have been tied in working on financing and capital markets with the firm for a long time to help run transactions, taking companies public, dothose offices, so they can embed the culture ing high yield deals. I spend a good portion of the firm in those offices. Then you build of my time in the mergers and acquisitions it around local lawyers who speak the lanarena, and I counsel corporations on goverguage and know the markets. nance issues. From my perspective, it’s been fun. I like THL: How did you get from being a young the fact that I have a varied practice which lawyer at Vinson & Elkins, straight out of law includes working on transactions that have an international component to them, Madeline, Ryan, Kim, Mark and Kristin outside 21 in New York City because I enjoy traveling. Several years ago, I spent 17 weeks in Paris, working on a couple of deals. I have also worked with clients in Norway, the U.K., Switzerland and the Middle East. In my current role for the firm, I help oversee the strategy for the firm’s 14 offices. We have eight international offices—Moscow, London, Beijing, Shanghai, Hong Kong, Tokyo, Dubai, Abu Dhabi—and six domestic offices. I also have the pleasure of being on the firm’s management committee. THL: How do you deal with all those different cultures? Kelly: There is commonality of interest and clearly many of the emerging markets are becoming more sophisticated. Obviously, there are cultural differences in each of the regions. The perfect model is to get people

school, to this position? Kelly: It has evolved over time. When I first came to the firm, we didn’t do as much in the international arena. I learned under some really good people, who trained you to be client-focused in terms of how you develop business. Part of it is your own initiative. You have mentors that help you develop your practice and your skill sets, but it is incumbent upon you to be proactive about your career. I always found that I liked developing business and developing relationships with clients. If you are successful in doing a good job for your clients, word of mouth gets around and they say, I used this lawyer and I liked him. So you get a reputation, hopefully a good one. You expand your footprint. My practice does require a lot of travel. I have clients in New York and London. I’m back and forth to the Middle East. Earlier this year I was in Russia and India. I was in China last year. So it’s constantly in motion. I’m generally out of town two or three days a week. THL: You talked about the mentors in your career. Who were they? Kelly: I would attribute whatever success I’ve had to a lot of people who took a special interest in me. Within the firm, there were people who helped me develop, who gave me license to run and do what I wanted to do, while guiding me along the way. One was John Watson, who is retired now. Bob Whilden, who is also retired, was my predecessor in the corporate group. I guess the fact these mentors are retired is reflective of my age or longevity at the firm. Both taught me a lot and I spent a significant amount of time with them. And Evans Attwell, who was our managing partner, guided me and was great to work with. In a crowd, he would chew you up and people were scared of him, but one on one he was very thoughtful, very helpful in terms of how you develop as a lawyer. He made sure that as opportunities came in, I got a chance to work on them. One of my first clients was Nathan Avery, who is still a client, and who was like a surrogate father to me. I’ve always said that the day my job be-

comes a chore and I regret waking up in the morning and coming to the office, I will retire and do something else. There have been opportunities along the way, but I’ve always liked what I’ve done. Every day is different. You’re on call with your clients 24/7 and in different time zones. You get all kinds of calls in the middle of the night and it’s challenging. And working with the young lawyers – I was head of the employment committee for years – being able to bring in fresh talent and train them, being responsible for the people who have done well as lawyers, you feel like you’ve had a small part in their success. It reinvigorates you. It keeps you young and keeps you fresh. I still wake up every morning thinking this is a great place to be.

whether working on a Habitat house or the Trash Bash. There’s so much out there that you don’t see when you live in our urban bubble. It’s eye-opening and refreshing. THL: What do you see as the role of the HBA today? Kelly: I want to see us grow and continue to develop. I’d like to see more lawyers involved, to expand our base of volunteers. Our volunteer base has been somewhat static for a while, and I think we rely too heavily on the big firms to fill in the gaps. I hope we can get some of the firms that have not previously participated involved. They may not understand everything we do. One of the things I’d like to do this year is to enhance our communication and get the word out about all the HBA does, to bring in additional people to volunteer.

THL: How did you get involved with the HBA? Kelly: The person responsible for getting me THL: What are some of the HBA programs in involved with the bar is Gib Walton. Gib is a which you’ve been involved? good friend and asked me if I would like to Kelly: I chaired the Houston Volunteer Lawget involved with the Houston Young Lawyers Program and the Houston Lawyer Reyers Association board. The firm did not ferral Service. I was chair of the Houston have a representative on the HYLA board, Bar Foundation in 2001. I also co-chaired and he said we ought the HBA Professionalism to make sure we Committee and have people from the Campaign the firm who do bar for the Homework. I eventually less. became president of the HYLA. I’m THL: Tell me about not a litigator, so some of the things it gave me the you want to focus on opportunity to this year. meet people Mark wit Kelly: I wanted to I might not h clients and frien ds on a h do something that otherwise come unting tr ip in Mex ico reached out to at-risk in contact with, but who also have children. We are going to work with the an interest in helping the community. I Houston Alumni and Youth (HAY) Cenbecame more involved in various committer that serves kids when they age out of tees and continued to like the interaction the foster care system. They try to bridge with other members of the bar. I ultimately the gap for kids from 18-25, try to prepare decided to make the big step and become them to go out into the real world. The HAY HBA president, supported by the firm. It is Center’s funding was cut last year, so they time-consuming, but it clearly gives you a are struggling to maintain their resources. different perspective. You can see how the In talking with them, we found there are bar has made a difference in people’s lives. several things that they need. One is legal We experience daily the impact we have on representation to seal and expunge juvenile our client’s lives, but these are people who records. A lot of these kids have committed you otherwise would not have contact with,

July/August 2010


petty crimes, and when they get to a certain age, it’s possible to go through the court system and seal their records, so they get a fresh start. It’s difficult for them to try to get jobs if they’ve got a record. The counselors also had issues on which they wanted legal advice, so we are going to provide sessions where attorneys will talk to the counselors about topics they will choose. We’ll also have volunteers to interface with these young adults, who have had no mentors, no parents, no role models. They’re really not prepared to go t Wall in China Mark at The Grea out and face the world. Some have fundamental questions like how do I apply for a credit card, how do I apply for a job? We’re going to have sessions where we talk to the young adults and answer their questions. Finally, they wanted us to assist with a “ready room” with necessities, clothing and other things that these young adults need when they go out on their own. With our established clothing drives and book drives, we’re going to look at that as well. Also, in today’s world where you have instantaneous messages, everybody has a Blackberry or an iPhone, there are a lot of risks for kids and a lot of ways they can get in trouble. I think kids may not be aware that certain impulse actions could have devastating consequences. With the help of the HYLA, we’re going to distribute a DVD put together by the Texas Young Lawyers Association on cyberspace safety. There are four age-specific videos on it, for elementary through high school students and parents as well. It talks about the risks of texting, cyber-bullying and what is called “sexting,” and how they can get in trouble with those things. We are going to communicate with the school districts and try to get the DVD out to all of the schools in Houston, as well as have attorneys speak to some of the schools. THL: Are there other new projects you are 40

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going to put in place? Kelly: I’m concerned that we don’t interface enough with the law schools. I’ve met with the placement coordinators and the deans. In this job market, even law students that are in the top half of their class have difficulty getting jobs. We are going to revamp our Web site and create a section that is specific to them. They can learn about the CLE, networking and volunteer opportunities available to them through the HBA. And it may be a way down the road to expand our membership, a way to introduce them to the HBA so they feel they want to be involved. Also, we have looked very carefully at our budget and the use of our funds. We will continue to focus on that in a difficult economic climate. We have not had a dues increase for seven years, but costs continue to rise. Ultimately, we are going to have to have a dues increase, but that’s something that we hope to put off by being prudent on how we spend our money. THL: What do you think has changed the most since you began the practice of law? Kelly: The timing of things. When I first started, you had a lot more time to think about issues. Now client’s expectations are instantaneous. You can send documents by electronic means quickly. There’s good and bad in that. It’s much easier to edit and make changes. But clients’ expectations, expecting you to do things much quicker, is challenging. I think that’s dramatic ­—how people work. You can work all over the world. It’s real time. It’s clearly a much more competitive environment. Firms are global now and so there is a lot of pressure to remain competitive. I think you have to, in some ways, work much harder. There are more demands on your time than there used to be, but it’s much more exciting, much more interesting. THL: What do you like to do with any spare time you have? Kelly: I’m very involved in the Houston Livestock Show and Rodeo, and have been for 26 years. I’m now a

vice chair on the parade committee and previously served on the barbecue committee. Again, it puts me in contact with people I would not otherwise know. And it’s such a huge charity for scholarships, which is great. They do a fabulous job. It’s really quite a business. I’m on the board of the Houston Museum of Natural Science. I think it’s an incredible museum. They’ve got a big geological exhibit that was always my grandfather’s favorite. Being involved in petroleum engineering, he loved that, so when I was young, we would go there and to the planetarium. I love athletics and sports. I’m a season ticketholder to the Rockets and the Astros. I still go to my college football games. I love to run. I used to play basketball, but I’ve gotten where the knees are bothering me, so I don’t do that much anymore. I love golf, and I love to hunt and fish. And I still love to travel and see the world. Growing up in Alaska, I didn’t have an opportunity to do that, since we were so far away. I’ve made it my mission to travel and to make sure my kids travel. I wanted them to see the world early, to go places and do things as a family. THL: Is there anything else you would like to bring out or would like people to know about you? Kelly: It will be a challenging year with my travel schedule. I’m running fast and hard with everything I have, but I’m looking forward to it. Fortunately, I have a really good board. The HBA office is great support for what we do. The firm’s been incredibly supportive. I believe it will be a really fun year, and I plan to do my best to have a successful year.

Mark, his fath er and his son enjoy a fishing trip

in British Colu mbia

Equal Access


What does it take to become an “Equal Access Champion”? The firms and corporations listed below have signed 5-year commitment forms that indicate they will uphold a pledge to provide representation in a certain number of cases each year, based on the number of attorneys in the firm or legal department. The goal is to provide pro bono representation in at least 1,500 cases through the Houston Volunteer Lawyers Program each year, and to increase that goal each year. For more information contact Kay Sim at (713) 759-1133.

Large Firm Champions Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski L.L.P. Locke Lord Bissell & Liddell LLP Vinson & Elkins LLP Corporate Champions Baker Hughes Incorporated BP CenterPoint Energy, Inc. ConocoPhillips Continental Airlines, Inc. Exxon Mobil Corporation Marathon Oil Company Port of Houston Authority Rosetta Resources Inc. Shell Oil Company Waste Management, Inc. Intermediate Firm Champions Akin Gump Strauss Hauer & Feld LLP Beirne, Maynard & Parsons, L.L.P. Gardere Wynne Sewell LLP Haynes and Boone, L.L.P. King & Spalding Thompson & Knight LLP Mid-Size Firm Champions Adams & Reese LLP Baker & Hostetler LLP Chamberlain, Hrdlicka, White, Williams & Martin Greenberg Traurig, LLP Howrey LLP Jackson Walker L.L.P. Jones Day

Morgan, Lewis & Bockius LLP Porter & Hedges, L.L.P. Strasburger & Price, L.L.P. Susman Godfrey LLP Weil, Gotshal & Manges Winstead PC Small Firm Champions Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Beck, Redden & Secrest, L.L.P. Doyle, Restrepo, Harvin & Robbins, L.L.P. Gibbs & Bruns LLP Hays, McConn, Rice & Pickering, P.C. Hughes Watters Askanase LLP Johnson DeLuca Kennedy & Kurisky, P.C. Kroger Frisby Schwartz, Junell, Greenberg & Oathout, L.L.P Shook Hardy & Bacon, L.L.P. Sutherland Asbill & Brennan LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Yetter Warden & Coleman LLP Boutique Firm Champions Abrams Scott & Bickley, L.L.P. Coane & Associates Connelly • Baker • Wotring LLP Edison, McDowell & Hetherington LLP Fullenweider Wilhite PC Funderburk & Funderburk, L.L.P. Hicks Thomas LLP Jenkins & Kamin, L.L.P. Ogden, Gibson, Broocks, Longoria & Hall, L.L.P. Squire, Sanders & Dempsey L.L.P. Strong Pipkin Bissell & Ledyard, L.L.P. Wilson, Cribbs & Goren, P.C.

Solo Champions Law Office of O. Elaine Archie Basilio & Associates Peter J. Bennett Fatima Breland Law Office of Fran Brochstein Law Office of Barbara Calderon Law Office of Robbie Gail Charette De la Rosa & Chaumette Papa Dieye The Ericksen Law Firm Frye & Cantu, PLLC Fuqua & Associates Terry L. Hart Katine & Nechman L.L.P. The Keaton Law Firm, PLLC Gregory S. Lindley Law Office of Maria S. Lowry Martin R. G. Marasigan Law Offices The Law Office of Evangeline Mitchell, PLLC The Montalvo Law Firm Morley & Morley, P.C. Bertrand C. Moser Pilgrim Law Office Robert E. Price W. Thomas (Tommy) Proctor Gwen E. Richard Law Offices of Judy Ritts Cindi L. Robison Scardino & Fazel Shortt & Nguyen, P.C. Sadler Law Firm Jeff Skarda Teal & Associates Tindall & England, P.C. Diane C. Treich Norma Levine Trusch

Kelly Takes Office as HBA President T.

Mark Kelly of Vinson & Elkins LLP took up the gavel as the 2010-2011 president of the Houston Bar Association at the organization’s Annual Dinner Meeting, held May 20 at River Oaks Country Club. Kelly succeeded Barrett H. Reasoner of Gibbs & Bruns LLP. The gala evening was dedicated to the accomplishments of the HBA and its members during the past year. Reasoner presented the President’s Awards to outstanding committee and program chairs for 2009-2010, and the HBA honored its emeritus members who reached their 50th year of practice during the last bar year.

Barrett Reasoner passes the gavel to Mark Kelly.

Reasoner presented a check to Jack Manning of The Center Foundation, representing record proceeds of over $70,000 from the 25th John J. Eikenburg Law Week Fun Run. The HBA’s Fun Run has contributed over $886,000 to The Center, which makes independent lives possible for those with developmental disabilities.

Barrret and Susan Reasoner; Kathy Redden, president of the Houston Bar Association Auxiliary; and Kim and Mark Kelly.


July/August 2010

50-Year Lawyers 50-year member Hon. Robert E. Newey and his wife, Judith Newey

50-year member Victor Lee Morris and his wife, Alyce Lou Morris

50-year member James B. Sales and his wife, Beuna Sales

50-year member Les Cochran and his wife, Barbara Cochran

July/August 2010


President’s Awards and Special Recognition B

arrett Reasoner presented the 2009-2010 President’s Awards to outstanding committee and program chairs during the HBA’s Annual Meeting on May 20th.

(Unless indicated, photos by Temple Webber)

Ann D. Zeigler was honored as editor in chief of The Houston Lawyer.

Philip A. Sellers and Gary E. Alfred were honored as co-chairs of the Adopt-A-School Committee.

Phyllis Y. Young, Jennifer A. Hasley and Christopher M. Lopez were honored as co-chairs of the Minority Opportunities in the Legal Profession Committee.

William K. Kroger, Christina A. Bryan and Susan L. Bickley were honored as co-chairs of the Communities in Schools Committee.

Kara Stauffer Philbin and Wesley R. Ward were honored as co-chairs of the Eikenburg Law Week Fun Run.


July/August 2010

Keri D. Brown, Jane Johnston Mumey and Roy R. Reynolds were honored as co-chairs of the Law & Media Committee.

The Hon. Kem Thompson Frost and Warren W. Harris were honored as co-chairs of the Law Week Committee.

J. James Cooper and Marni M. Otjen were honored as co-chairs of the Professionalism Committee.

Frank G. Jones was honored for outstanding service to the Houston Lawyer Referral Service.

S. Jack Balagia, Charles W. Matthews, Peggy O. Montgomery and Theodore M. Frois were honored for exemplary service and outstanding leadership in pro bono legal services through Exxon Mobil Corporation. Photo of Balagia and Matthews by Matthew Lemke Photography.

July/August 2010


Media Reviews

Westlaw Practitioner Thomson-Reuters 1-800-344-5009


Reviewed by Al Harrison

The Houston Lawyer

he Westlaw® Practitioner Series affords attorneys a novel and effective approach for achieving the seemingly impossible opportunity to have access to a mentor 24/7. Thomson-Reuters compiled Westlaw® “Practitioner” by acquiring first-hand guidance and insight from knowledgeable and experienced attorneys in each relevant practice concentration, and conjoining a treasure trove of resources into a readily-accessible knowledgebase. This knowledgebase corresponds to a virtual library tightly integrated with a plethora of Westlaw® online databases. Through this novel approach to achieving lawyering excellence, Practitioner has established a new genre of law practice support that behaves as if it were a “virtual mentor.” Practice Concentrations Practitioner features 20 law practice concentrations: Bankruptcy Litigation, Business Bankruptcy, Business, Construction, DUI, Elder, Employment, Environmental, Estate Planning, Family, Immigration, Insurance Defense, Municipal, Patent Litigation, Patent Prosecution, Real Property, Securities, and Workers’ Compensation. From the vantage point of an attorney about to stand in the shoes of a virtual protégé, the protocol for a specific practice concentration invoked via Westlaw® Practitioner is as follows: the appropriate practice-specific homepage is displayed within an Internet browser. Regardless of the particular concentra-


July/August 2010

tion, the Practitioner homepage is essentially organized into a series of groupings: (1) Current Awareness Section tracking current events and concomitant current legal developments; (2) Court documents including briefs, trial findings, expert witness filings, jury instructions, court orders, docket sheets; (3) Statutes and Regulations; (4) Forms, Checklists and Clauses; (5) Court Rules; and (6) Practice-Specific Miscellany. Each of these sources may be invoked by simply clicking a live link from the Practitioner homepage. Considering my practice area, I found the Patents Practitioner particularly useful. As is the rule throughout the Practitioner Series, invoking Patent Practitioner is advantageous to both incipient and experienced patent attorneys because of presentation of and immediate access to a closely-tailored, comprehensive treasure trove of patent-specific resources. Notwithstanding, Patent Practitioner is also profoundly informative for corporate counsel and the like who seek to stay abreast of patent-related developments that may impact company business. Thomson-Reuters’ NewsRoom provides newsworthy information excerpted from articles, columns, letters, or other section of text that pertain to patent-related matters at-large. Broad subject matter is covered in both a technical context and an industry context. Forms, Checklists & Clauses enable an attorney to instantaneously access a wide range of patent-related forms, clauses and checklists from the collection of practice guides and statutes. Topics addressed encompass patent prosecution logistics and technology licensing, and both routine and extraordinary post-patent-grant matters. Potentially applicable forms may be expeditiously obtained from either the official forms provided by the U.S. Patent Trademark Office, or from Forms Patent Law Practice or Forms Model Documents—IP. Protégé attorneys have

access to model documents, in the form of contracts and agreements, commonly associated with a variety of intellectual property transactions. For patent attorneys, Thomson-Reuter’s integrated patents functions afford convenient and efficient protocols for analyzing the state of the art relevant to particular inventions, and for evaluating potential infringement scenarios. These patents-related resources include: U.S. Patent File Histories, Markman Orders and Related Filings, Claims Versions Comparator (showing red-lined comparisons of patent-claim versions), Graphical Patent Families (depicting how multiple patents are interconnected), and Graphical Patent Claims (affording an overview of evolving patent claims linked to predecessor versions). For attorneys contemplating the feasibility of filing patent appeals and preparing appellate briefs, selected briefs may be retrieved from the collection of briefs that have been filed with the U.S. Supreme Court, U.S. Court of Appeals for the Federal Circuit, and other courts of appeals that have heard cases relating to patent matters. Virtual Mentoring The Practitioner Series affords attorneys who engage in virtual law practice, in any of its current incarnations, an ideal treasure trove of Westlaw®-enabled resources which may be readily invoked 24/7, so long as Internet access is available. This virtual mentoring capability has proven itself a quintessential asset for a lawyer’s virtual office. Al Harrison is a member of The Houston Lawyer Editorial Board. He is a patent attorney and intellectual property lawyer practicing with the firm of Harrison Law Office, P.C. Harrison frequently speaks at Bar seminars and institutes about intellectual property issues and law practice management techniques.

Media Reviews

Asset Forfeiture Law in the United States

By Stefan D. Cassella JurisNet, LLC 2007 $165.00 (including 2010 paperback supplement)


Reviewed by Don Rogers sset forfeiture has become an integral part of federal and state criminal law enforcement in the United States. Asset Forfeiture Law in the United States is a comprehensive treatise addressing the historical development of and current laws affecting federal administrative, civil, and criminal asset forfeiture proceedings. The book is organized into five parts and 28 chapters. Part I, entitled “Overview and History,” consists of Chapters One and Two, and provides an overview and history of federal asset forfeiture laws, including discussion of the reasons supporting asset forfeiture in criminal cases; the differences between administrative, civil, and criminal asset forfeiture proceedings; and relevant factors affecting the government’s decision as to which of those types of forfeiture proceedings it will pursue in any given situation. Part II, entitled “Administrative and Civil Forfeitures,” consists of Chapters Three through Fourteen, and discusses federal administrative and civil in rem asset forfeiture proceedings from seizure of forfeitable property through trial and post-trial procedures, including standing, the innocent owner defense, and parallel civil and

criminal proceedings. Part III, entitled “Criminal Forfeiture Procedure,” consists of Chapters Fifteen through Twenty-Four, and addresses in personam asset forfeiture procedures in federal criminal cases from the indictment through trial, ancillary proceedings, and appeal. Part IV, entitled “What is Forfeitable?,” consists of Chapters Twenty-Five through Twenty-Seven, and points out the types of assets subject to forfeiture, including the proceeds of criminal activity, instrumentalities of a crime, property facilitating commission of crime, and property involved in money laundering. Part V, entitled “Excessive Fines Clause of the Eighth Amendment,” consists only of Chapter Twenty-Eight, which points out that the Eighth Amendment’s prohibition against excessive fines can apply to criminal and civil asset forfeitures that are determined to be grossly disproportional to the gravity of the offense. The chapter also addresses standing to raise Eighth Amendment excessive fines claims in asset forfeiture proceedings, procedures courts employ to resolve those claims, and constitutionally-required mitigation of some asset forfeitures to the extent necessary to avoid violation of the Eighth Amendment’s prohibition against excessive fines. The book contains extensive footnotes referencing relevant federal statutes, rules, and cases, and comes with a CD-ROM disc providing a chart matching each federal criminal offense with corresponding federal forfeiture statutes. Lawyers handling federal criminal cases and others in any way involved with federal administrative, civil, or criminal asset forfeiture cases should find the book a highly useful, if not essential, resource. Don Rogers is an assistant district attorney with the Harris County District Attorney’s Office and an associate editor for The Houston Lawyer. He is board certified in criminal law by the Texas Board of Legal Specialization.


U.S. Supreme Court Rules Noncitizens with Two or More Misdemeanor Possession Convictions are not Automatic Aggravated Felons


By Joy Sanders he Supreme Court recently settled a split among the federal Courts of Appeals regarding whether a second or subsequent offense for simple possession of a controlled substance is an aggravated felony under immigration law. In its unanimous and much awaited decision in Carachuri-Rosendo v. Holder, Case No. 09-60, 560 U.S. __, (June 14, 2010), the Court held that such an offense is not an aggravated felony unless the offense was actually prosecuted on the basis of a prior conviction. The case has a Houston connection, as the late Joseph A. Vail, founder of the University of Houston Immigration Clinic, initially pursued Carachuri-Rosendo’s appeal. Carachuri-Rosendo, who entered the U.S. as a lawful permanent resident at age

July/August 2010


The Houston Lawyer


five, was convicted in his mid-twenties of two misdemeanor drug possession offenses in Texas. He received 20 days in jail for possession of less than two ounces of marijuana, and later 10 days in jail for possession of one anti-anxiety tablet without a prescription. The federal government initiated removal proceedings and argued that Carachuri-Rosendo was not eligible for a form of relief from removal known as cancellation of removal, because his second state conviction was deemed to be a federal drug trafficking crime, thus rendering him an aggravated felon. For immigration law purposes, a state conviction for simple possession is not a drug trafficking crime unless the offense would be a felony under federal law. Thus, a state conviction for simple possession is not typically a drug trafficking crime because simple possession is ordinarily a misdemeanor under federal law. However, if a possession offense is committed after a prior drug conviction has become final, the subsequent conviction may be deemed a drug trafficking crime (and thus an aggravated felony) as a federal recidivist felony under 21 U.S.C. § 844(a). The government’s conclusion that Carachuri-Rosendo’s second conviction was an aggravated felony was based on application of its “hypothetical approach,” whereby any subsequent state possession offense could automatically be deemed a drug trafficking aggravated felony, even if the state conviction was not enhanced based on any prior drug conviction. Because the state hypothetically could have pursued a recidivist enhancement, the subsequent conviction was deemed to be a felony under federal law. The Court unanimously rejected the government’s position and reversed the contrary decision of the Fifth Circuit in Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir. 2009), as well as a similarly contrary decision of the Seventh Circuit. The Court articulated five reasons for re48

July/August 2010

jecting the government’s “hypothetical approach.” First, the Court stated that the government’s position is inconsistent with the text of the immigration statute. Because the law requires a noncitizen to be convicted of an aggravated felony, the conviction itself should be considered rather than what could have been charged. Second, the Court found that the government approach “fails to give effect to the mandatory notice and process requirements” of the federal recidivism statute. To pursue the recidivist enhancement, a federal prosecutor must elect to charge the existence of a prior conviction in the subsequent proceeding, and must meet procedural requirements including notice and an opportunity to challenge the validity of the prior conviction. The hypothetical approach thwarts prosecutorial discretion and dispenses with procedural safeguards that are fundamental to federal drug laws. Third, the Court observed that the Fifth Circuit’s reliance on Lopez v. Gonzales, 127 S. Ct. 625 (2006) in upholding the government’s approach was based on a misreading of that decision, because in Lopez, the Court employed a categorical approach that focused on the conduct that was actually punished, rather than the punishment that could have been imposed. Fourth, the Court noted that common practice in federal courts is inconsistent with the Government’s position, in that the type of offense involved here would almost never, if ever, be prosecuted as a felony in a federal court. Last, the Court referenced its decision in Leocal v. Ashcroft, 543 U.S. 1, 11, n.8 (2004), which provided that ambiguities in criminal statutes, where referenced in immigration law, are construed in favor of the noncitizen. The Carachuri-Rosendo decision clearly establishes that if there is no finding of a prior conviction in the record of the subsequent conviction, the latter conviction may not be deemed an aggravated felony. In addition, even where there is some

finding of a prior conviction, the conviction must adhere to the requirements of the federal recidivist felony statute. For instance, the prior conviction must be final, and a categorical approach is to be applied in determining whether the state offense meets the components of the federal law. The Court did not reach the issue of whether the federal notice and process requirements must be met in the state proceeding; however, the decision evidences that such procedural requirements are significant. The Board of Immigration Appeals’ earlier ruling determined that notice and an opportunity to be heard are minimally required. Geoffrey Hoffman, director of the UH Immigration Clinic, served as one of Carachuri-Rosendo’s attorneys along with law students and pro bono attorneys. Hoffman noted that because of the nationwide, binding precedent set by the Court, “thousands of immigrants and detainees are now potentially eligible to apply for relief from removal, where previously they were found ineligible as aggravated felons.” Joy Sanders ( practices immigration law with Fong & Associates, L.L.P., and is a member of The Houston Lawyer editorial board. She tweets about law, sustainability and community at


Winning Wine Advocate:

Vianei Lopez Robinson

By Julie Barry


n vino veritas. “In wine there is truth.” Vianei Lopez Robinson has certainly found this to be the case. Here are two truisms from one of Vianei’s past wine articles: “Parties are reputed to be good opportunities for wine research. The idea is to assemble a lot of sophisticated palates and benefit from their collective wisdom. With that idea in mind, I decided to pour a variety of different white wines during a recent gathering. Lesson No. 1: At a party, no one really wants to talk about wine.

on the World Complete Wine Course, an excellent introduction into wines and wine regions around the world. Zraly was the Wine Director of Windows on the World Restaurant, which was located in the World Trade Center until September 11, 2001. Vianei says that the best way to learn about wine is to travel to wine regions and talk to the people who make wine. While she is partial to the wines from the South of France, Vianei says she loves all wines. Her tastes vary, though, with the change of the seasons. She often speaks to this truism in her columns. One autumn she wrote, “Now that fall weather has officially arrived, I am stocking up on red zinfandel. Good zinfandel is dark and Lesson No. 2: intensely flavored—a perfect foil for Everyone has taste preferences, a chilly evening.” even if he or she professes othWhen asked if she maintains a large erwise.” wine cellar, she said she recently sold her collection when she moved from When this wine connoisseur exAbilene to Houston and is in the protraordinaire is not practicing labor and cess of building a new one. “I think employment law at Buck Keenan LLP, the one mistake people make is keepor singing and dancing in the HBA’s ing wine too long,” says Vianei. “The Night Court, Vianei Lopez Robinson is vast majority of wine on the market is enjoying her favorite pastime, savoring not intended for aging.” a good bottle of wine. Houston is once While Vianei is no longer writing again graced with Vianei’s presence, her column for the Abilene Reporterafter she spent the past fifteen years News, she says she would love to practicing labor and employment law pick up her freelance writing again in Abilene. From 1999 through 2009, in the future. One of the perks of she also wrote a weekly wine column her part-time job that she misses under contract with the newspaper the most? All the free samples, of group, E.W. Scripps Company, which course! For now, Vianei is content publishes the Abilene Reporter-News to build her Houston law practice While living in Abilene, Vianei Lopez Robinson wrote a syndicated and the San Angelo Standard-Times, wine column. Now practicing law back in Houston, she continues and her new wine collection. Her among others. Her wine column has collecting wine and hopes to write on the topic again. advice for Houston wine lovers? been picked up in newspapers across the country. “Learn more about Texas wines. The Texas wine industry Vianei, a Houston native, first developed her love of wine in the has come a long way and has some really wonderful wines to summer of ’84 when she studied in Paris, France. As a student, she offer.” entered the Texas French Symposium contest and won first prize, which was an all expense paid trip to Paris. There, she enjoyed the Julie Barry is an attorney with Theodore J. Lee, focusing on U.S. finest of what France has to offer. After her Paris experience, she and international commercial transactional law. She is a member continued her wine education by reading Kevin Zraly’s, Windows of The Houston Lawyer editorial board.

July/August 2010


A Profile

in professionalism

Robin C. Gibbs Partner, Gibbs & Bruns LLP


A The Houston Lawyer

s licensed practitioners we enjoy myriad benefits afforded those who undertake careers as either counselors or advocates under our unique system of laws. Corollary to this privilege is the responsibility to conduct our practices consistent with the dictates of professionalism—a guiding ideal imprecise in definition but one that our clients both expect and recognize in its presence or absence. Regard for the Rule of Law is subtly reinforced or diminished by the way in which we lawyers, whether acting as interpreters or advocates of its meaning, convey our advice or arguments concerning particular legal issues. Civility and objectivity provide critical foundations to the maintenance of professionalism in the practice of law. During times when we observe in-


July/August 2010

creased conflict among the citizenry as to the proper meaning or application of our laws, it is perhaps most appropriate that each of us pause to consider whether we are discharging our responsibilities as lawyers to lead by example and act with civility and objectivity. Creative interpretation by counselors and zealous advocacy by those involved in the judicial process remain laudatory prescriptions. But we lawyers are presumed, as well, to exhibit good judgment in providing our services. That judgment includes adherence to the principles of civility and objectivity in dealings with clients, other lawyers and the wider system of justice. In reaffirming our commitment to these fundamentals underlying professionalism, we ensure that regard for the Rule of Law is passed along to succeeding generations intact and untarnished.

10 Reasons to join the


• Meet your MCLE requirements through 80+ hours of FREE CLE and 120+ hours of discounted online CLE programming each year • Support your profession and community • Professional networking opportunities. • Get to know the local judiciary • Pro Bono opportunities • Stay current on educational programs and events through HBA publications • Learn to lead through committee participation • HBA offers the right tools for your practice • Opportunities to participate in over 35 community programs • Partnership discounts at local venues and vendors

Enhance your practice Try the HBA advantage.

The Houston Bar Association Lawyer Placement Service will assist members by coordinating placement between attorneys and law firms. The service is available to HBA members and provides a convenient process for locating or filling positions. 1. In order to place an ad, attorneys and law firms must complete a registration record. Once registration is complete, your position wanted or available will be registered with the placement service for six months. If at the end of the six-month period you have not found or filled your position, it will be your responsibility to re-register with the service in writing. 2. If you are registered, resumes will be sent out under their assigned code numbers. Once a firm has reviewed the resumes, they are to contact the placement office with the numbers they are interested in pursuing. The placement coordinator will then contact the attorney, give him/her some background information on the inquiring firm, and the attorney will then let the coordinator know if he/she wishes personal information to be released to the firm. This process will insure maximum confidentiality and get the information to the firms and attorneys in the most expedient manner. 3. In order to promote the efficiency of the Houston Lawyer Placement Service. PLEASE NOTIFY THE PLACEMENT COORDINATOR OF ANY POSITION FOUND OR FILLED. 4. To reply for a position available, send a letter to HBA, placement coordinator at the Houston Bar Association, 1300 First City Tower, 1001 Fannin Street, Houston, Texas 77002 or e-mail Brooke Eshleman at Include the code number and a resume for each position. The resume will be forwarded to the firm or company. Your resume will not be sent to your previous or current employers. PLACEMENT DEADLINES Jan. 1 Jan./Feb. Issue Mar. 1 March/April Issue May 1 May/June Issue July 1 July/August Issue Sept. 1 Sept./Oct. Issue Nov. 1 Nov./Dec. Issue

5084 Full time associate position available. 5+ years experience required. Must have commercial and personal injury background. Competitive compensation package. 5094 PROBATE LAWYER. Sugar Land estate planning/ probate firm with HoustonGalleria office seeking attorney with extensive experience in TX probate and trust administration, Form 706 preparation, estate and gift tax planning. Positions Wanted

2062 Very Experienced Trial Attorney intimately familiar with the mechanics and operation of the Commercial Mortgage Backed Securities (CMBS) industry, including the securitization process of commercial loans and the duties and responsibilities of Mortgage Loan Originators/Depositors, Underwriters of REMIC Trusts, Rating Agencies, Trustees, Servicers and Special Servicers. Looking for in-house position.

2064 Attorney with extensive experience in collections and enforcement of judgments will take cases on a fee-for-service Positions Available or—if meritorious—on a con5076 Boutique Civil Litiga- tingency basis. tion law firm specializing in complex business litigation is 2096 Sr. Attorney / CPA – Relooking for an associate attor- cent large law firm retiree seeks ney with 1-3 years litigation contract work: appellate briefexperience and excellent re- ing, forensic accounting, hidsearch and writing skills. den asset searches, workouts. If you need information about the Lawyer Placement Service, please contact HBA, placement coordinator, at the HBA office, 713-759-1133.

5080 Houston public pension fund seeking Associate Counsel reporting to CLO. Approx. 4 yrs. experience with pensions, employment, administrative, institutional investing or local government law. Competitive benefit package. Background checks required.

If you need information about the Lawyer Placement Service, please contact HBA, placement coordinator, at the HBA office, 713-759-1133

July/August 2010


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Woodway drive and 610 West Loop. Law firm is primary tenExpert Witness ant. Several offices available. Petroleum Engineer On-site management and seVance Usher, TX PE - $90/Hr curity guard, attached parking 4400 Memorial Dr., #1101 garage for tenants and visitors, Houston, TX 77007 conference rooms, reception610-329-1056 (cell) / 713-880-2472(fax) ist services, kitchen, wired (email) for broadband internet access. Contact Lisa DeWild, Office Space 713-209-2934 Incredible Galleria area law office sharing opportunity. HOUSTON – TANGLEWOOD. Perfect for 1,2 or 3 lawyer Woodway Frost Bank Buildlaw firm separated self con- ing. Window office(s) for tained space, large file room sublease in beautiful suite and copier available with furnished with antiques and space. Access to full kitchen Oriental rugs. Includes woodand 3 large conference rooms. paneled conference room, eat-in kitchen, advanced Phone system provided. phone system answered inContact Michelle at dividually for each attorney. 713-868-2222 x 102. Receptionist included in rent UPPER KIRBY DISTRICT/ and available for secretarial RIVER OAKS AREA OFFICE work. Excellent shared-suite – Near Kirby and West Ala- environment since 1991. bama, Unique office space, Call Lynn at 713-977-9600. free standing building (up to two offices available) 1 large Lorance & Thompson, P.C., partner office upstairs with a well established litigation bathroom and 1 associate of- firm, has a few extra offices fice downstairs, each with that were reserved for expanown secretarial space. Use of sion. With the current econconference room, full kitchen, omy, that isn’t gong to haptelephone system and high pen any time soon. The firm speed internet connection would like to sublet them to included call 713-630-0022. a small firm specializing in a non-litigation practice. If inDOWNTOWN HOUSTON terested, please contact Phil OFFICE SPACE – Reduced Summers, 713-868-5560. Price. Sublease in First City Tower on the top floor. Enjoy HOUSTON / MUSEUM DISTRICT the prestigious address and spectacular views for less. Up Newly remodeled Historic to three offices and four cu- Home, minutes from the Court bicles available - inclusive of House. On-site Management, phone, internet, etc. Offices receptionist, three conference average 160 SqFt each. Re- rooms, kitchen, small library, ceptionist on site. Shared use telephone system, internet acof two large conference rooms cess, copier, fax and free parkavailable at no additional cost. ing. Several offices available. Call 713-840-1840. Call 713-335-5490. Expert Witness

fice or five office suite with file room in The Woodlands, close to I-45 and Town Center. Onsite management, receptionist, notary service, conference room with power point, T1 internet access, kitchen, monitored security system, fax, janitorial service, 24 hour access. Contact Judy 281-362-7082. www.woodlandsprofessional Executive Office Space Available: ranging from $850-$995 per month. Amenities include: 2 conference rooms; maid and reception services; full kitchen. Heights Boulevard address. Broker/owner.  713-880-4700. One Office space AVAILABLE IMMEDIATELY, (approximately 12’ x 22’ plus secretarial) in office sharing suite with 5 other lawyers and CPA, includes conference room, shared receptionist, phones, internet, copier, fax, kitchen. Great location between Galleria and Greenway Plaza. Approx. $1300 per month. Call 713-629-0670. Galleria area office with great view. Top floor of Chase Bank building at Richmond and Sage. Approximately 200 square feet. Well appointed suite includes conference room, fax, copier, limited library, wet bar and free parking. Reception/secretary service available. $850.00 per month. Dorena 713-961-5555.

Lyric Centre Beautiful office with private secretary office and secretarial spaces for rent. Office OFFICE SPACE at 3 Riverway Woodlands Offices for lease. and secretarial spaces can be Class “A” Building located off Two office suite with clerk of- rented together or separately.

GREENWAY PLAZA Two first floor office spaces available, 12X15 and 12X17. Tenant shares suite with 6 attorneys, standard amenities included. Please call Trina at 713-627-1133. Woodway/Voss TANGLEWOOD – Office Space Available for Attorney Window office space with furniture for sublease in beautiful suite with lobby, kitchen, conference/supply room, copy room. Excellent environment with five attorneys. Monthly rent includes utilities, telephone, highspeed internet access, Texas Lexis, covered parking, and receptionist service. Contact Margot at 713-626-8300 or Sublease beautiful office space 1402 sq ft—550 Westcott. Call Leigh 713-224-6774.

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SEEKING ASSOCIATE LEGAL COUNSEL for Houston public pension fund, reporting to CLO and working with Trustees, staff and other professionals. Approx.4 years experience with retirement plans, employee benefits, administrative law, institutional investing or Texas local government law required. Excellent writing, research and interpersonal skills required. Occasional travel required. Competitive benefit package. Background checks and drug testing. Please e-mail resume to EOE.

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AV rated out of state firm seeks Houston AV rated commercial litigation attorney to act in “Of Counsel� capacity for long term representation of firm’s Texas corporate clients. Please forward attorney and firm resume to: Substantial investment company seeks contingency lawyers to recover a minimum $85 million of Brazilian government debt due from a formula of debt/equity swap. Legal opinions point to a central bank guarantee. Misrepresentations and other possible penal aspects of this case are to be investigated and tried. Penalties and other factors may allow a recovery of $450-500 million. Experienced contingency lawyers are asked to apply with CV and case history if totally ready to work on contingency. Percentage of recovery is negotiable. Address your reply with qualifications and case history to

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July/August 2010


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Galleria Area 1800 Bering, Suite 540. Sublease-1 partner window office ($800/mo) and 1 associate office ($600/mo). Amenities: conference room, Internet, kitchen, printer room, reserved covered parking, security guard, on-site cafeteria. Remodeled in 2007. Call 713-468-4600 or email

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The Houston Lawyer magazine, Volume 48, Number 1