THL_SepOct22

Collectives: How the Biggest Thing in NIL Has Exposed the NCAA’s Rulemaking Ethical Considerations for Attorney Advertising Social Media 101 for Attorneys Across Real Life, the Metaverse, and the Blockchain, Theft Will Not Prevail as the Legal Community Encompasses New Technology A Changing Landscape of Handgun Legislation: nch The Texas Firearm Carry Act of 2021

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THE HOUSTON

inside...

Volume 60 – Number 2

September/October 2022

Media & Entertainment Law

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contents September/October 2022

Volume 60 Number 2

FEATURES

10

14

Social Media 101 for Attorneys

Collectives: How the Biggest 10 NIL Thing in NIL Has Exposed the NCAA’s Rulemaking

By Joseph Blake

Considerations for 13 Ethical Attorney Advertising

By Al Harrison

Media 101 for Attorneys 14 Social How to Use Social Media as a Practicing Lawyer

By Raffi Melkonian

A Social Media Heart-To-Heart

18

28

By Jefferson Fisher

Expanding the Network: How We Launched our Social Media Presence to Connect With the Community

By Sara V.C. Goldberg

Real Life, the Metaverse, 18 Across and the Blockchain, Theft Will Not Prevail as the Legal Community Encompasses New Technology

By Rachel Greene

Changing Landscape of 28 AHandgun Legislation: The Texas Firearm Carry Act of 2021

The Houston Lawyer

By Sandra Guerra Thompson

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.com, e-mail: leo@quantumsur. com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2022. All rights reserved.

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contents September/October 2022

Volume 60 Number 2

departments

34

35

Message 6 President’s Elevating Civil Discourse

By Christopher V. Popov

the Editor 8 From When Worlds Collide

By Brooksie Bonvillain Boutet

Lawyer Spotlight 34 Young Valery Piedra Profile in professionalism 35 AMONICA KARUTURI Executive Vice President, CenterPoint Energy

36

37

THE RECORD 36 OFF Judge Christine Weems:

How a Passion for Theater Grew Into a Production Company

By Carly Milner

Spotlight 37 Section Entertainment and Sports Law

Section: Promoting Houston’s Expertise in This Niche Field

By Alexis Whitaker

Spotlight 38 Committee Law & the Media Committee:

Fostering Healthy Dialogue Through Engaging New Series

38

42

By Maggie Martin

trends 40 legal Monroe Guaranty v. BITCO: Texas

Supreme Court (Finally) Recognizes Exception to the Eight-Corners Rule

By J. Stephen Barrick, Courtney E. Ervin, and Stacie Osborn

Avoid a Perry Mason Moment: Snap Back Properly

By Lauren Veillon

reviews 42 Media The Staircase

Reviewed by Andrew Fletcher

The Houston Lawyer

Getting Away with Bloody Murder: J.B. Brockman, the Best Criminal Lawyer in Texas Reviewed by Ryan Kent

44 Litigation MarketPlace 4

September/October 2022

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5

president’s message

By Christopher V. Popov Vinson & Elkins LLP

W

Elevating Civil Discourse

The Houston Lawyer

and conflict resolution, who will? e have a problem with civil discourse in this Your HBA is doing its part to elevate civil discourse in the country, and it’s having a crippling effect on legal community. This year, we launched our President’s the rule law. There are precious few places Speaker Series, which assembles for civic-minded panels of experts to lead civil people to go for discussions over the most impormeaningful discussion of the tant legal issues of the day. The most important legal issues of focus of this series is less on voour day. cational education, and more on Political debates have become civic engagement. The first two shouting matches. They are not sessions in this series covered opportunities to win over hearts litigation and legislation around and minds; they are platforms for voting rights, and the evolution rallying the base. of laws affecting amateurism in At their best, commercial news collegiate sports. They were wonoutlets provide us with superderful discussions lead by true ficial headlines. At their worst, experts. No shouting. No leveling they entrench us in our biases of accusations on the motives of with calculated talking points the opposition. Just thoughtful, and hateful attitudes. informative discussions on the That needs to change. The current state of the law and the disappearance of civil discourse issues that are likely to arise. is dangerous, and the dangers In the months to come, we will go far beyond political division. be discussing the evolution of In the absence of meaningful abortion law, legislation and case discussion and debate, political law around gun rights, and the violence is on the rise. Just in regulation of speech over large the last couple years, judges and technology platforms. We will political leaders on both sides of cover those topics with precithe aisle received death threats. sions, reverence for the law, and We’ve seen shootings and physirespect for opposing viewpoints. cal assaults of elected officials.

I hope to see you at these And let us never forget the violent attack on our nation’s capital The HBA President’s Speaker Series features leading legal scholars events. They are enriching and on the most pressing issues of the day, including these experts on January 6. who discussed name, image, and likeness (NIL) case law and refreshing. They empower our members to set the standard for If we are to find our way back voting legislation. political discourse. They are platforms that leave room for to the ideals of participatory democracy, where the peaceful thoughtful disagreement, but only from the foundation of transition of power is routine, we have to embrace and elevate a fact-based understanding of the actual laws that govern. civil discourse.

And importantly, they’re fun. It turns out that you can break Lawyers have a role in leading us back to those ideals. We bread and raise a glass with a colleague with whom you disare professionals, who are trained in evidence-based arguagree, learn something, and spread the gospel of civic disment, educated on our system of government, and held to course all while getting a few hours of CLE credit. Hard to ethical standards that require us to be honest and courteous ask for more from your bar association. in our dealings. If lawyers don’t demand orderly discussion 6

September/October 2022

thehoustonlawyer.com

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September/October 2022

7

from the editor

By Brooksie Bonvillain Boutet Shipley Snell Montgomery LLP

Associate Editors

Anna M. Archer U.S. District Court

Ryan Kent Harris County District Attorney’s Office

Elizabeth Furlow Malpass Baker Botts

Carly Milner Foglar Brar O’Neil & Gray

The Houston Lawyer

Nikki Morris BakerHostetler

Andrew Pearce BoyarMiller

8

W

When Worlds Collide

ith an undergraduate degree in jourtion that is accurate, thinking critically. Is the content nalism, I always welcome the opporfrom a reliable source? Have we sought out different tunity for media and the law to colviewpoints? Are we simply parroting soundbites withlide. Starting out in my freshman year out taking the time to delve into the deeper story? of college, I thought that I wanted to The Houston Lawyer is a medium for us to elevate double major in journalism and biology to work tocivil discourse locally Anietie Akpan and Sydney Huward becoming a broadcast journalist with a medical ber guest edited this issue, which means that they took background—or even degree (like Dr. Sanjay Gupta). the laboring oar in securing our content. The topic of However, I quickly learned that biology for majors was media and the law is incredibly broad, and Houston is not for me and decided to focus on broadcast jourhome to a vibrant sports and entertainment industry nalism. But when it came time to declare that is often front and center in our local a concentration, I chose political communews. nication, or what I like to describe as the With a focus on entertainment, we have practical version of political science. I then The current an article on NCAA changes on name, realized that the life of a political consulimage, and likeness. On a more serious affairs of our tant—jumping from campaign to camnote, developments in our gun laws— paign—was a bit too nomadic for me and nation lend which have been all over even the nationfound myself applying to law school after al news—are covered from an academic themselves to perspective. And, with technology as an taking an undergraduate course taught by near-constant ever-present part of our daily lives and one of the law professors across campus.

I never changed my major during this media cover- practices, we look at the effect of blockprocess, and for that I am thankful. A chain developments on the legal sector, age of political including for service of process. There is journalism degree required intensive writing courses and critical thinking, two cruevents that also practical advice for attorneys using cial skills in the study and practice of law. social media for advertisement. intersect with While the life of a litigator isn’t always as Be sure to listen to season three, epithe law.” predictable as I might like it to be, I use sode two of our podcast hosted by Anna the skills that I learned in undergraduate Archer, who speaks with some local legal daily. talent on how they serve the sports and entertainment Outside of my own life, we often find media and the sectors. law on a collision course. The current affairs of our On a final note, I want to recognize Charles Harnation lend themselves to near-constant media coverold Lloyd, who passed away on July 17. Mr. Lloyd age of political events that intersect with the law. And co-founded the magazine with Quinnan Hodges in media is now more pervasive than ever with news 1963 and served as the publication’s second editor outlets offering handy apps that can push notificain chief. From its inception, The Houston Lawyer has tions of our own choosing to our phones and social strived to feature the most pressing issues of the day media, offering both traditional news coverage and in a thoughtful way. As I consider the articles within user-generated content, which may or may not have this issue, as well as the issues in the coming year, I been vetted by any editorial process whatsoever. recognize it is because of Mr. Lloyd’s vision, and the This intersection is an opportunity to elevate civil vision of Mr. Hodges, that we are able to present these discourse. Ensuring that we are having educated disimpactful pieces to our membership today. cussions about current events, consuming informaThank you for reading The Houston Lawyer.

September/October 2022

‘‘

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9

By Joseph Blake

NIL Collectives:

How the Biggest Thing in NIL Has Exposed the NCAA’s Rulemaking

“E

xpect the unexpected” is perhaps the best way to explain the nature of the name, image, and likeness (“NIL”) era of collegiate sports. The first year of NIL has been full of innovative developments, some of which have stirred controversy within the National Collegiate Athletic Association (“NCAA”) and its member institutions. Among the most talked-about developments over the first year of NIL has been the creation of “NIL collectives”—groups that help to facilitate NIL deals for student-athletes at a particular institution.1 The NCAA recently imposed new guidelines (“Guidelines”) targeting collectives for what it views as “pay-forplay” in the form of NIL deals.2 However, the Guidelines failed to account for another change in the NIL landscape—player-led NIL collectives.

This article shows how the NCAA’s idleness and reactionary approach to new developments in collegiate sports has caused it to create inconsistent rules that make the organization appear incompetent and weak.

The Origins of NIL The current NIL landscape evolved from multiple legal developments over the past several years. In particular, two Northern District of California antitrust cases—O’Bannon v. NCAA and Alston v. NCAA—played a central role in creating the NCAA’s interim NIL rules.3 In both cases, plaintiff classes of studentathletes successfully invalidated NCAA rules relating to player compensation as price-fixing in violation of Section 1 of the

Sherman Act. In O’Bannon, the Ninth Circuit held that the NCAA engaged in anticompetitive behavior and violated federal antitrust laws by not allowing players to share revenues generated by the use of their NILs.4 Thus, the Ninth Circuit required the NCAA to permit member schools to offer additional scholarship grants to student-athletes up to the full cost of attendance.5 However, the Ninth Circuit left intact NCAA prohibitions on payments to student-athletes that were “unrelated to educational expenses,” accepting at that time the NCAA’s argument that such payments would undermine its concept of amateurism.6 The NCAA’s amateurism defense is the idea that consumer demand within collegiate sports is driven, in part, by players being student-athletes who are not paid for their performance.7 This concept was more thoroughly addressed, and weakened, in Alston v. NCAA. In Alston, after the Ninth Circuit affirmed the trial court’s ruling, the NCAA appealed to the Supreme Court based on a circuit split between the Ninth, Seventh, and other circuits over whether NCAA rules characterized as maintaining “amateurism” are subject to antitrust scrutiny.8 The Court clarified that NCAA rules are subject to antitrust challenges and affirmed that the NCAA and member conferences violated the Sherman Antitrust Act by prohibiting student-athletes from receiving additional education-related compensation from their schools. The NCAA argued that the success of collegiate sports depends upon such restrictions to maintain its concept of amateurism, which distinguishes collegiate sports from professional sports.9 But the Court said the NCAA failed to provide any economic analysis showing that educationrelated benefits for student-athletes would hurt consumer demand.10 Notably, Justice Kavanaugh wrote a concurrence, further questioning the relevance of amateurism to antitrust concerns and leaving the door open to more antitrust challenges to NCAA rules, including those relating to player compensation.11 During the pendency of Alston, many states passed laws mandating that schools

in their states allow their student-athletes to receive compensation for their NILs.12 Justice Kavanaugh’s concurrence and the impending effective dates for these state laws put significant pressure on the NCAA to adjust its NIL policy. With no reprieve from the Supreme Court, the NCAA published a new interim NIL policy allowing student-athletes to receive compensation for their NILs on July 1, 2021—just nine days after Alston was issued.13 While these rules allow student-athletes to be paid for using their NIL, NCAA rules still prohibit any “pay-for-play” NIL deals14 or “improper” recruiting inducements.15 NIL Collectives After July 1, 2021, businesses nationwide jumped at the opportunity to partner with student-athletes. It did not take long for fans of college sports to join the fray and create a new, more innovative model for NIL compensation: NIL collectives.

According to the website On3NIL, an NIL collective is a group of donors, alumni, boosters, or local businesses who pool resources to provide NIL opportunities for student-athletes at a specific school.16 As of September 2022, there are over 150 NIL collectives across the country.17 The most common NIL collectives are marketplace collectives, donor-driven collectives, and dual collectives. Marketplace collectives facilitate deals between student-athletes and businesses with donations typically used to support logistics. Donor-driven collectives pool together funds from alumni and fans to create paid opportunities for athletes. Dual collectives are a hybrid of the first two collectives.

But the newest, and perhaps most innovative, collective is the player-led collective. Similar to the donor-driven collective model, fans can donate various amounts of money to the collective in exchange for team members’ exclusive digital content and in-person experiences. The difference between this collective model and the others is that player-led collectives are typically managed by student-athletes while third parties provide the technology platforms necessary to operate the collective.18

The best examples are collectives backed by technology company YOKE. As of September 2022, there are nearly 50 playerled collectives that use YOKE to launch their own paywalled communities.119 The YOKE platform enables student-athletes to learn entrepreneurial skills and to manage their own business.20 According to YOKE co-founder Mick Assaf, “…each NIL Club [is] a startup business that is run by college athletes.”21 For the time being, the YOKE collectives exclusively benefit members of a university’s football team, and the collectives provide equitable treatment for all participating players by splitting the profits between them equally. Players may also vote on the funding model for these collectives.

Some teams sell year-long “Access Passes” to fans for exclusive access to players, while others offer subscriptions where members can contribute money each month.22 The Controversy With Collectives In March 2022, it was reported that a fivestar football recruit in the class of 2023 signed an NIL agreement with a collective

supporting the University of Tennessee that will allegedly pay him over $2 million per year.23 The NCAA is reportedly in panic over such lucrative deals.

To prevent what is perceived as improper recruiting inducements and “pay-for-play,” the NCAA issued new Guidelines less than a year after its NIL policy change.

The three-page Guidelines were issued May 2022 to constrain actions of collectives.24 The Guidelines state that boosters supporting collegiate institutions may not (1) communicate with any prospective student-athletes or their families for a recruiting purpose or (2) offer any financial aid or other benefits to a prospective studentathlete. While the Guidelines reference boosters instead of collectives, the NCAA appears to equate the two.25 Despite the Guidelines, collectives have not been deterred. If anything, some collectives are calling the NCAA’s bluff. On July 18, 2022, the Matador Club, a collective supporting Texas Tech University, announced that it will sign each member of the Texas Tech football team to one-year, $25,000

thehoustonlawyer.com

September/October 2022

11

contracts in exchange for the athletes participating in charitable events.26 Level 13 Agency, another collective, matched that effort by signing each member of the Texas Tech women’s basketball team to one-year contracts for $25,000 per year to engage in undisclosed NIL activities.27 Meanwhile, supporters of Sothern Methodist University have upped the stakes. New Boulevard Collective signed each member of the SMU football and men’s basketball teams to oneyear NIL deals worth $36,000 to each player.28 The message is clear: the NCAA may talk a big game, but it carries a little stick.

What Player-Led Collectives Have Revealed About the NCAA Player-led collectives have revealed an issue with NCAA rulemaking: NCAA rules are inconsistent with NIL developments, particularly the player-led NIL collectives.

This issue stems directly from the NCAA’s definition of “boosters.”

A booster, as defined in the Guidelines and NCAA Bylaws, is, in part, …an individual, independent agency, corporate entity (e.g., apparel or equipment manufacturer) or other organization who is known (or who should have been known) by a member of the institution’s executive or athletics administration to have participated in or to be a member of an agency or organization promoting the institution’s intercollegiate athletics program or to assist or to have assisted in providing benefits to enrolled studentathletes or their family members.29 Student-athletes could fit within this definition. Therefore, a literal interpretation of the Guidelines means that student-athletes operating player-led NIL collectives are boosters that can be prohibited from having conversations related to recruitment with prospective student-athletes.30 If the Guidelines were to be enforced this way, it would hinder a university’s ability to recruit new talent since current student-athletes typically speak to prospective student-athletes about their school and athletic program as part of the recruiting process.

If the NCAA investigates a traditional 12

September/October 2022

collective for violations, that collective could argue that the NCAA must also investigate every student-athlete involved in operating a player-led NIL collective. Because the NCAA would not do the latter, its Guidelines may not be viewed as a legitimate constraint.

The big picture is about more than just NIL collectives. The NCAA’s overregulation and reactionary tendencies have caused it to not only lag behind in implementing ideas to help collegiate sports evolve, but its actions—or inactions—also have caused the NCAA to draft inconsistent rules that lead to unintended, negative consequences for the very student-athletes it is supposed to help. It is likely that the NCAA’s rules would be more consistent with the evolution of NIL if the organization allowed NIL compensation after the O’Bannon decision and implemented reasonable bylaws regarding NIL. Instead, the NCAA waited several years to allow NIL compensation and continues to rely on Congress to pass a national NIL bill, which will not happen anytime soon.31 Earlier NCAA action would have given it more time to prepare for new innovations regarding NILs. Perhaps new developments will prompt the NCAA to be more progressive and proactive. Doing so will enable the NCAA to gain back its former respect and reputation in the eyes of the public.

Joseph Blake is an antitrust and sports litigation attorney at Winston & Strawn LLP.

Endnotes 1. Pete Nakos, What Are NIL Collectives and How Do They Operate?, ON3NIL (July 6, 2022), https://www. on3.com/nil/news/what-are-nil-collectives-andhow-do-they-operate/ [hereinafter Nakos, NIL Collectives].

2. National Collegiate Athletic Association, Interim Name, Image and Likeness Policy Guidance Regarding Third Party Involvement, NAT’L COLLEGIATE ATHLETIC ASS’N (May 6, 2022), https://ncaaorg. s3.am a zon aws.com /ncaa / NIL / May2022NIL _ Guidance.pdf [hereinafter Guidelines].

3. Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 2141 (2021); O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049 (9th Cir. 2015).

4. O’Bannon, 802 F.3d at 1079.

thehoustonlawyer.com

5. Id. at 1075−76.

6. Id. at 1076−79.

7. Id. at 1054−55.

8. Alston, 141 S. Ct. at 2166.

9. Id. at 2152.

10. Id. at 2165.

11. Id. at 2167−69.

12. Gregory A. Marino, The NCAA Declares Independence from NIL Restrictions, FOLEY & LARDNER LLP (Aug. 20, 2021), https://www.foley.com/en/ insights/publications/2021/08/ncaa-declares-independence-nil-restrictions.

13. National Collegiate Athletic Association, NCAA Interim NIL Policy, NAT’L COLLEGIATE ATHLETIC ASS’N (July 1, 2021), https://ncaaorg.s3.amazonaws. com/ncaa/NIL/NIL_InterimPolicy.pdf [hereinafter NCAA, Interim NIL Policy].

14. Id. “Pay-for-play” is a term used to describe a payment arrangement where a player is paid in exchange for their athletic performance or participation on an athletic team. See NCAA Bylaws § 12.1.2 (2022), https://web3.ncaa.org/lsdbi/reports/getReport/90008.

15. NCAA, Interim NIL Policy, supra note 14. An “improper recruiting inducement” is an incentive offered to a student-athlete to sway their decision to attend a specific college or university. Katie Lever, NIL Opportunity or Inducement?, 2ADAYS (Mar. 15, 2022), https://www.2adays.com/blog/nilopportunity-or-inducement/.

16. See Nakos, NIL Collectives, supra note 1.

17. NIL Collectives, ON3NIL, https://www.on3.com/nil/ collectives/?page=1 (last visited on Sept. 6, 2022).

18. See Pete Nakos, YOKE Adjusting Collective’s Goals Through Machine Learning, ON3NIL (Sept. 5, 2022), https://www.on3.com/nil/news/yoke-player-collectives-nil-clubs-mick-assaf-louisville-derby-city-nilclub-machine-learning/ [hereinafter Nakos, YOKE Adjusting].

19. NIL Collectives, supra note 19.

20. Nakos, YOKE Adjusting, supra note 25.

21. Id. 22. Andy Wittry, How YOKE, the Players’ Lounge, FanPassU Created NIL Communities, ON3NIL (Aug. 3, 2022), https://www.on3.com/nil/news/how-yokethe-players-lounge-fanpassu-are-creating-nil-communities/.

23. Stewart Mandel, Five-Star Recruit in Class of 2023 Signs Agreement with Collective That Could Pay Him More Than $8 Million, THE ATHLETIC (Mar. 11, 2022), https://theathletic.com/3178558/2022/03/11/ five-star-recruit-in-class-of-2023-signs-agreementwith-collective-that-could-pay-him-more-than8-million/.

24. Guidelines, supra note 2.

25. See, e.g., Mandel, supra note 31 (showing that boosters typically operate NIL collectives).

26. Don Williams, Matador Club Offers $25K Contracts to 100 Texas Tech Football Players, LUBBOCK AVALANCHE-J. (July 18, 2022), https://www. lubbockonline.com/story/sports/college/red-raiders/2022/07/18/matador-club-offers-25k-contractsto-100-tech-football-players/65375501007/.

27. Mechelle Voepel, Texas Tech Women’s Basketball Players to Receive $25K NIL Deals, ESPN (July 29, 2022), https://www.espn.com/womens-collegebasketball/story/_/id/34314841/texas-tech-womenbasketball-players-receive-25k-nil-deals.

28. Pete Nakos, New Boulevard Collective to Pay SMU Athletes $3.5 Million Annually Through NIL, ON3NIL (Aug. 8, 2022), https://www.on3.com/nil/news/ smu-mustangs-football-basketball-boulevard-collective-nil-3-5-million-36-annually-chris-kleinert/.

29. Guidelines, supra note 2; see also NCAA Bylaws § 13.02.15(a), (d).

30. See NCAA Bylaws § 13.02.15(a), (d); Guidelines, supra note 2.

31. Game Changer: Understanding the NCAA’s New NIL Policy, VINSON & ELKINS (Feb. 21, 2022), https:// www.velaw.com/insights/game-changer-understanding-the-ncaas-new-nil-policy/

By Al Harrison

Ethical Considerations for Attorney Advertising

A

ttorney advertising is a big business. According to the American Tort Reform Association (ATRA), an organization that bills itself as “antiattorney advertising,” in 2021 more than 15 million ads for legal services aired on local television broadcast networks in 210 media markets throughout the U.S., totaling expenditures of approximately $971.6 million. ATRA estimates attorney advertising expenditures in Texas amounted to $132,268,302 in 2021, placing Texas second only to Florida.

In 2017, ATRA President Tom Vick requested that the Advertising Review Committee (ARC), under the leadership of Gene Major, director of the State Bar of Texas Attorney Compliance Division, analyze Part VII of the Texas Disciplinary Rules of Professional Conduct (“Ad Rules”) with the charge to streamline, modernize, and render the Ad Rules more user-friendly and more amenable to attaining compliance by the Texas Bar at-large. The Committee on Disciplinary Rules and Referenda, in accordance with its responsibility to propose and draft disciplinary rule changes, finalized a draft approved by the Texas Bar’s board of directors and then tendered it in 2021 to the Texas Supreme Court.

The court ordered a referendum, whereupon these revised Ad Rules passed and

became effective by court order in July 2021. Simultaneously, under the auspices of the bar, newly developed software was uploaded and activated as an online portal enabling attorneys via their own “My Bar” webpage to electronically file virtually all requisite compliance information, including paying the necessary submission fee.

Interestingly, the ARC’s foundational ethical pillars for the Ad Rules have remained constant since the creation of the Ad Rules in 1995: to prohibit lawyers’ false, misleading, and deceptive communications. An important distinction exists between the Ad Rules’ regulations and attorneys’ requisite filings with ARC under Ad Rules 7.04 and 7.05. Nevertheless, prerequisite ethical burdens fall exclusively on the shoulders of each individual attorney, wherein Part VII governs all attorney communications pertaining to legal services, including pervasive social media. Ad Rule 7.01 sets definitional parameters functioning as the cornerstone to be considered for attorney advertisements and solicitation communications.

Thus, the amended Ad Rules delineate a streamlined reasonableness standard equating to a “Rosetta Stone” for assisting in any compliance determination. While recited in the opening paragraph of Ad Rule 7.01, this “reason-

ableness” standard is more particularly explained in time-tested Authoritative Comment 6: A statement or disclaimer required by these Rules must be presented clearly and conspicuously such that it is likely to be noticed and reasonably understood by an ordinary person.

Ad Rule 7.01 recites additional ethical considerations for attorney advertising, including creating unjustified expectations for current or potential clients and featuring past successes and concomitant results. The Texas Supreme Court amended Ad Rule 7.01, Comment 10 regarding past successes and concomitant results, stating that if an attorney knows a past success or past result has been changed or has never been collected, the attorney must disclose the actual dollar amount received by the client. Furthermore, attorneys need to be attentive to the prohibitions outlined in Ad Rule 7.06 concerning prohibited employment.

While attorney advertising can be, and frequently is, fraught with ethical considerations manifested not only via traditional advertisements, but also via contemporary social media channels, the ARC’s new Ad Rules, coupled with their interpretive comments, provide an effective guide for attorney compliance.

Al Harrison is a patent attorney practicing intellectual property law in Houston with the firm of Harrison Law Office, P.C and has spoken on issues pertaining to intellectual property, ethics, professionalism, and technology competence. He was a member of The Houston Lawyer editorial board for several years and served as an associate editor. Al is vice chair of the Texas Bar College; council member of the State Bar Business Law Section; and council member and past chair, receiving a Lifetime Achievement Award, of the Computer & Technology Section.

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Social Media 101 for Attorneys

How to Use Social Media as a Practicing Lawyer

W

By Raffi Melkonian

e live in a social media age. The question many lawyers I talk to have is whether it’s wise to join the crowd. While there are certainly some reasons to be cautious, I’d encourage you to dip your toes in the water.

But why? A few tips from my experience of using Twitter to interact primarily with appellate lawyers might give you some ideas for your own participation in the wild world of social media lawyering.

with that Fifth Circuit. Can you write about things outside your specialty topic? As I’ve become more comfortable, I’ve expanded my Twitter posts to cover my hobbies, including home cookery. Readers love to see a bit of your personality. The danger lies in trying to be a jack-of-all-trades. Commenting on every political and world issue can lead to writing things online that are ill-considered and sap your reputation If you are as being a careful advocate with good a privacy lawyer, or judgment.

‘‘

Networking. Traditional networking is public defender, or Learning. Traditionally, lawyers read great, whether it’s speaking at CLEs, taking colleagues to lunch, or attending bar someone working law industry periodicals to get caught up events. But in-person networking can’t with current events in their specialties. in the crypto space, But social media can shortcut that proeasily extend your network nationally or internationally. Being active and interestthere are people on cess. If you’re interested in appellate law ing on social media, by contrast, can introand case updates, follow #AppellateTwitTwitter, LinkedIn, duce you to lawyers around the country, ter. There are also numerous specialists and even TikTok throughout the country who cover their or even the world. Whether it is finding local counsel or asking for advice when talking about own specialty topics with just as much in a foreign jurisdiction, or even making dedication. If you are a privacy lawyer, those topics or public defender, or someone workwonderful friends, there is nothing like having a broad network. The #Appellaand providing ing in the crypto space, there are people teTwitter community spreads across the on Twitter, LinkedIn, and even TikTok up-to-theUnited States. Because of social media, I talking about those topics and providhave friends in nearly every jurisdiction I minute news and ing up-to-the-minute news and analysis. visit. The #AppellateTwitter network even A properly curated social media feed is analysis.” perhaps the most efficient way to get the stretches internationally. And that broad reach applies even more to other practice areas top news of the week. that are national or international by nature, whether it be tax or corporate mergers and acquisitions, or Lawyers must always comply with their ethical duanything else. ties when writing online. But just as important is exercising sound judgment. Write as if your judges and Enhancing your reputation. Many of us have heard clients are reading. With those caveats, using social of the trouble lawyers can get into on social media. media can significantly enhance your life as a lawyer.

But used correctly, it’s also an excellent opportuniWith a clear strategy, it’s worth the effort to try. ty to make your reputation as a smart lawyer with good judgment. My strategy was to pick a specialty Raffi Melkonian is a topic and write about it in-depth and with skill. In partner at Wright, Close my case, my Twitter account is focused on the Fifth & Barger LLP. Circuit. I write about the judges’ decisions, the attorHe tweets about appellate neys’ oral arguments, and breaking news about the practice at court. Readers know to come to my page to keep up @RMFifthCircuit.

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I

A Social Media Heart-To-Heart

By Jefferson Fisher

f you don’t think your law firm needs social media because you don’t personally use social media—good for you, Howard. But over 4.1 billion people on the planet do. In the U.S., that’s at least seven out of every 10 humans. The questions to ask, then, is do seven out of 10 people in your immediate community know who your law firm is and what it does?

I want to reset your thoughts on what social media is and how people use it currently, with full acknowledgement that this article could be outdated by the end of the week. Social media evolves like anything else in technology—rapidly. Facebook has now become your grandparents’ platform. The 16- to 25-year-olds? They don’t even have Facebook. They’re on TikTok or social apps you haven’t even heard of yet. Instagram is moving to more video-centered content to compete with TikTok. LinkedIn is growing to be a more content-focused social network. These apps are constantly changing and competing for your time and attention.

Attention is the asset, and that asset requires not only investment, but intention. Go take a hard look at your law firm’s social media page. How are you using it? Most likely, you’re still using it like a paper flyer taped to a street sign—for announcements and holidays.

These types of posts get very little engagement. Why? Because these posts aren’t just competing for attention away from other law firms.

They’re competing with every business out there, including Amazon, Apple, Walmart, and every heavy hitter marketing to your audience.

If attention is the valued asset, engagement is the market index.

The more engaging your content becomes, the more attention you

gain. Who makes up the market index? All your social media followers and those you wish to follow you. Social media algorithms drive viewers to your page, but you must engage viewers to secure a follow. Engagement includes producing video content that actively involves your audience, tagging people and other businesses in your posts to cross-share, and interacting with your audience in the comments and shares.

Go and pull up the social media accounts for some of your favorite companies. Do you see their page with months of inactivity until another holiday comes? No. They’re engaged at all levels of each respective platform, whether that be Facebook, Instagram, TikTok, or LinkedIn. They know that engagement is the key. Rather than using their social media pages like flyers on street poles, the major brand pages are akin to sitting in your local coffee shops—engaging with patrons, giving them value, and talking about things that their audiences want to talk about. The more you meet your target audience where they are, the more you solidify the message of your brand.

Your social media is no longer an 8x11 paper handout. It is a living and breathing representation of your digital existence in the digital world. Your survival in the modern age depends on it.

Jefferson Fisher is a personal injury attorney and content creator near Beaumont, Texas, and managing partner of Fisher Firm. He is known as the go-to local counsel attorney in Southeast Texas.

Expanding the Network:

How We Launched our Social Media Presence to Connect With the Community

M

By Sara V.C. Goldberg

y husband Danny and I have our own law firm called Goldberg Law. We are “old souls”—my husband still uses a Blackberry cellphone—and slow to move toward technology (no Siri or Alexa will be welcomed into our home). I have a personal Facebook account but do not post regularly about restaurants, family photos, or personal everyday updates.

However, as more clients explained how they found our firm via on-

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line reviews or somehow landed on our website, I realized that our firm needed to try to expand our social media footprint since people no longer rely on personal references when they choose an attorney. Much of the public turns to Google searches to assess whether they’ll hire a particular professional.

We started to dabble in video making in 2019, then really launched forward in 2020. The pandemic put our firm on notice

that anything could happen and no business is ever guaranteed. To keep the firm relevant, we turned to social media as a means of reminding people that we are passionate about the work we do.

Goldberg Law now regularly posts videos (about every other Tuesday) called Tuesday Tips at Two with the Goldbergs on our YouTube channel and other social media channels, along with written updates, fun photos, and articles. We produce short videos that sometimes have nothing to do with the law, such as how to make a delicious, seasonal cocktail. Many of our videos give little tips or updates on the law, often practical (e.g., how to better prepare for an immigration case or how to prepare and fight for a first-party insurance claim post-disaster).

But we maintain a standard rule: be yourself. Because we represent individuals and small business owners, we will never compete with the big firms. But we can stand out in the crowd through honesty and character.

Under Texas Rule of Disciplinary Conduct 7.05(g), a communication in social media or other media, which does not expressly offer legal services and is primarily informational or educational, is exempt from filing requirements. Our videos are not advertisements, as they’re educational about what is happening in the law and how our viewers might better protect themselves. However, we recognize that exposure is key to new client outreach.

Some videos have proved more popular than others. Social media is still a work in progress for our team. It’s another job on top of everything else we must juggle in running our small business and life. But, in not taking ourselves too seriously while having a little fun in the process, it has yet to become a drag and is instead a fun way to express our joy in practicing law.

DAMAGES Personal injury Wrongful termination Intellectual property Commercial damages/lost profits Business valuations

When you need a number call our number

281.846.6132

W W W . T H O M A S R O N E Y L L C . C O M

Sara V.C. Goldberg is an immigration attorney, an associate judge at the City of Houston Municipal Court, and a mom of four kids. She is a partner in the Goldberg Law Office with her husband, Danny Goldberg. thehoustonlawyer.com

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A Across Real Life,

By Rachel Greene

the Metaverse, and the Blockchain, Theft Will Not Prevail as the Legal Community Encompasses New Technology

handbag, wallet, and shoes endure as signals of style, status, and wealth. This article uses them as touchstones in ongoing cases for surveying how criminal and intellectual property enforcement and legal proceedings are generally evolving as metaverse and blockchain technologies mature.

Hermes Jypsiere in Houston, Texas In the summer of 2020, my red Hermes Jypsiere purse was stolen from my car while I watched my son’s baseball game in a local park. The park did not have security cameras in the parking lots, and there was no electronic record of the theft. It was a purely anonymous crime with no eyewitnesses or identifiable perpetrators.

When I later filed a police report, I ensured that the officer included in the report that the Hermes purse had a unique maintenance number stamped on the inside pocket, which, as the salesman explained to me when I bought the purse, could be used to honor the warranty but would not be traced back to me as the rightful owner in the Hermes systems. Although the purse has never been returned to me, Hermes still sends me marketing materials, a consistent reminder that some slice of my information permanently rests in its internetbased electronic record keeping system.

This crime is easy to articulate, but because it is difficult to identify the person who stole the purse and who will ultimately buy the purse in the secondary market, the likelihood of return and retribution is low. However, the existence of the maintenance code could possibly provide a physical and tangible way to track my purse through the secondary market to its new owner someday.

In a similar manner, the use of identifying characteristics in blockchain codes could be used—and, in some instances, is already being used—to recover property and solve crimes pertaining to digital assets that were once thought to be anonymous and impossible to recover.

Blockchain Technology Blockchain technology may help future purse, shoe, and other marketplace participants because of its durability and information-sharing features.1 By taking advantage of these properties, individual product identifying numbers such as my purse’s maintenance code, when combined with blockchain technology, could transform how supply chain analysis is executed and how the market for secondary goods works.

Background about how the technology functions may be helpful. Mathematics is generally conducted in isolation. Individual exercises are independent of one another, each exercise is self-contained, and each is not dependent or connected with other exercises.

However, sometimes more advanced mathematicians, especially cryptographers, use nomenclature or code to attach a historical or informational tail to their current math, such as X = 4 (it was equal to 3, before that it was equal to 2). Thus, blockchain code creators have been able to establish a math system that links historical, sequential mathematical effort to current mathematical activity and embeds data absolutely as the math progresses. That is, the codes’ chains blocks of mathematical activity with embedded data. The chain maintains itself, endures, and never exists in isolation.

The practical implications of the ongoing chain creation and maintenance protocols are important because they provide opportunities for creating visibility and transparency in the blockchain process. Because that process requires large computing power and meaningful memory storage, large computer-based code and massive processing power are needed. Further, spreading the calculations and storage across internet-linked computers provides redundancy and security that is not available from one machine. Thus, the chain functions in a decentralized way, via a decentralized ledger. To participate in the math to build new blocks along the blockchain (that is, to become a “min-

er”), different blockchain management regimes have different math games to play, computing power requirements, and other identifying features, such as an internet service provider (ISP) address. As blocks are built, tokens are generated that communicate and document the block’s existence. These tokens are stored in electronic wallets.

How a wallet is administered via an ISP, name, or other identifier is a source of some technical and political debate, of-

ten because some users apply a blender or tool to obscure identity with varying levels of success.2 Further, the navigation of blockchain development, maintenance over generations of blockchain, distributed ledgers, and governance of access to identifying obscuring tools are opportunities for the legal profession.

The most famous blockchain is Bitcoin, which is focused on expanding itself to a fixed blockchain size. The

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blockchain is then used to enable financial transactions outside of the historical monetary system using its tokens, which are referred to as “bitcoin.” Bitcoin has a fixed regime for building more blocks in its chain and has governing rules, including a fixed number of bitcoins that it will generate before the building phase is extinguished. It is further constrained by what other data it will accept and store within its chain as its chain is built.

Etherium is another blockchainbased financial system among a growing, competitive field. Etherium has math, financial, and other code-based tools that rest on top of its blockchain to allow sophisticated transactions, such as directing peer-to-peer financial activity, linking to the webpages that store data or images, and executing computer code independent of the blockchain code, including unlocking access to remote devices or sharing information. Sometimes, this specialized code that relies on a blockchain framework is called a smart contract.

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‘‘

Etherium is unusual in that such as handbags, shoes, it refers to ether—the curwine, and other collecrency for its regime—as a tor’s items, may benefit. proxy for the “gas” to power The most famous Goods that rely on many the blockchain and embedintermediaries for distriblockchain is bution to the final user, ded tools.

Bitcoin, which is such as food and drugs, The data packets that are stored on a blockchain or the focused on ex- may also benefit. tools that rest atop the chain Tying a data packet to panding itself to a may consist of any variety of a physical item may infixed blockchain clude using a non-fungiinformation. Written words, design schematics, chemisize. The block- ble token (NFT). As an cal structures and composiadditional application of chain is then used NFT technology, some tions, legal documents (such as titles, deeds, and wills), to enable financial digital artists may genersong lyrics, musical files, fitransactions ate multimedia creations nancial instruments, visual that are tied to a specific outside of the arts, website addresses, and blockchain and are also anything else that can be rehistorical referred to as NFTs. Fiduced to electrons generally monetary system nally, some video game may be stored on a blockand social media platusing its tokens, forms may incorporate chain. This may be especially useful technology for which are referred the substance of the art tackling counterfeiting and to as ‘bitcoin.’” within NFTs, such as an providing more transparavatar that has an unusuency for supply chains. Secal tattoo, piece of jewelry, ondary markets for high-profile goods, clothing item, or accessory.3 Thus, fact-

thehoustonlawyer.com

specific conditions will be important factors for how NFTs are treated in case law and the pending cases surveyed below.

Hermes Birkin in the Metaverse In the winter of 2022, Hermes filed suit against Mason Rothschild, a digital artist, seeking an injunction and other relief for his use of Hermes’ distinctive Birkin design in his electronic art.4 Rothschild had posted 100 electronic images of faux fur-covered Birkin bags that he marketed as “Metabirkins.”

These Metabirkins were sold as NFTs over a blockchain-based platform.

Rothschild marketed his wares using his name on Twitter and Instagram and on four NFT platforms with language such as “NOT YOUR MOTHER’S Birkin” and the hashtags “#MetaBirkins GONNA MAKE IT” and “#MINT A METABIRKIN HOLD A METABIRKIN.” He announced in an interview with Yahoo Finance that “there’s not much difference in between having the crazy car or the crazy handbag in real life be-

cause it’s kind of just that, that showing of like wealth or that kind of explanation of success” and “now you’re able to bring that into the metaverse with these iconic NFTs.”5 As of the writing of this article, the case remains ongoing with a November 4 date for final pretrial conference. The outcome may help clarify copyright and trade dress enforcement issues in the metaverse and how NFTs generally interact with other platforms.

Nike Inc. v. StockX LLC Another ongoing NFT case which links an NFT to physical goods in real life has been brought by Nike against StockX.6 StockX is a clearinghouse and trading platform for consumer goods, much like eBay. However, StockX provides some certainty that it does not sell counterfeit goods by using 11 worldwide authentication locations and other product verification tools and by storing merchandise in its warehouses as a service for investors. Further, it offers a VaultX electronic service for con-

firmation for some goods. This VaultX service includes an NFT that is linked to an individual item. VaultX marketing asserts the indestructible nature of their NFTs and their transparent, immutable blockchain data storage. The VaultX NFT is not traded independently from the good to which it is attached and, thus, VaultX asserts the NFT has no market value independent of the good. StockX sells Nike shoes in the secondary market on its platform and uses the VaultX NFT service to accompany the shoes as they exist on its platform. Nike has sued VaultX for creating NFTs using its shoes.

As an additional matter, Nike has an NFT regime for its shoes, marketed as Cryptokicks. Nike’s NFT has no tie to a physical product and is sold over the RTFKT platform. Finally, in addition to its trademark and trade dress assets, Nike owns United States Patent Number 10505726 entitled “System and method for providing cryptographically secured digital assets,” but it is not part of the initial pleadings for this matter.7

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tronic coin to the electronic wallet in LCX AG v. John Doe Nos. 1–25 the initial Order to Show Cause and As a final case to consider, LCX AG is Temporary Restraining Order dated a cryptocurrency exchange with geoJune 2, 2022. The electronic coin congraphical ties to Lichtenstein. LCX tained a link to a website that included experienced a heist of cryptocurrency the court’s orders and the plaintiff’s valued at about $8 million. With the pleadings. Consistent with the service assistance of CipherTrace—a cryptorules of New York, the currency, intelligence, and plaintiff did not need to blockchain security comuncover the identity of pany based in the United States—LCX was able to Our regional the defendants or provide proof that the defenidentify some characteriscommitment to dants opened the webtics about John Doe Nos. 1–25, actors who had elecinnovation will in- site; the plaintiff just had to provide proof that the tronic ties to the stolen curspire us to support coin had been delivered rency. But the only initial our clients as we to the electronic wallet. identifying information was Additional forensics the electronic wallet of John exploit technology revealed that some of the Does 1–25 held in the USD fully and keep the money rests in a specific Coin cryptocurrency exwould-be thieves stablecoin in a specific change.8 LCX filed in the Supreme at bay.” blockchain financial services firm. Thus, a June Court of the State of New 30, 2022 Order to Show York, New York County.

Cause continues to identify John Does Judge Andrea Masley ordered LCX’s as defendants, but also lists “~1.274M lawyers to serve process via an elec-

‘‘

U.S. Dollar Coin, Defendant in rem” and “Circle Internet Financial, LLC, and Centre Consortium, LLC, Garnishees and Relief Parties.” The June 30 order identifies the attorneys for at least a portion of the John Does, the U.S. Dollar Coin, and Circle Internet Financial.

An additional order of July 19, 2022 indicates LCX identified additional John Doe activity, including using the mixer Tornado Cash to move ether to a Genesis Global Trading account. Thus, Genesis is now subject to a temporary restraining order.

An August 25, 2022 decision accepted the service of process based on placing an electronic coin in John Doe’s wallet.9 The decision also considers the New York framework for evaluating the defense attorney’s role and orders the defendant’s law firm to divulge the identity of its client.

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Come Study in the Ultramodern John M. O’Quinn Law Building at the University of Houston Law Center • Multi-level library • Meditation room • Courtroom • Commuter showers • Changing rooms

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their respective school grades. In their textbooks, Texas is mentioned repeatedly through the centuries as the wild west of property rights across real property skirmishes, battles, and treaties with distant foreign countries, Native American nations, and regional alliances. As we conclude the first quarter

century of the 2000s, we’re poised for more property rights history-making as Texas seeks to be the world leader as a cryptocurrency mining industrial hub.10 The Houston opportunities enabled by blockchain technology are not limited to the financial industry. Blockchain’s persistent data storage capability with unmitigated public availability may have profound commercial implications on supply chain tracing; agricultural production; health research; natural resource and energy modeling, monitoring, and production; and verification of goods that are

often subject to counterfeit efforts. As a Houston legal community, we will grapple with the areas where blockchain hasn’t sanded its rough edges— with defendant identification and jurisdiction, intellectual property protection strategies and enforcement across new platform permutations, and crafty criminal exploitation of blockchain’s technical properties. Fortunately, we’re not a community that wilts in the midst of legal challenges. Our regional commitment to innovation will inspire us to support our clients as we exploit technology fully and keep the would-be thieves at bay.

Rachel Greene founded Greene IP to help technology frontrunners lead elegant and effective intellectual property strategies. She delights in negotiating agreements with thorny confidentiality, data rights, and

Texas values.

Global reach.

This year, the teams at Houston-based firm Briggs & Veselka and its subsidiary, Pathway Forensics, joined Crowe LLP, a public accounting, consulting, and technology firm with offices around the world.

Crowe offers a variety of services and solutions for legal departments and law firms.

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Forensic accounting and litigation support Business valuation Family law forensic accounting Digital forensics and incident response services Legal management consulting

Explore more on crowe.com.

Visit www.crowe.com/disclosure for more information about Crowe LLP, its subsidiaries, and Crowe Global. © 2022 Crowe LLP. MBV2300-001F

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IP ownership and use issues and relishes developing and executing patent, copyright, and trade secret strategies to protect technology investments.

Endnotes 1. See generally PRIMAVERA DE FILIPPI & AARON WRIGHT, BLOCKCHAIN AND THE LAW: THE RULE OF CODE (2018); see also Blockchain, WIKIPEDIA, https://en.wikipedia.org/wiki/ Blockchain (last visited Sept. 9, 2022).

2. See Ian Talley, Islamic State Turns to NFTs to Spread Terror Message, WALL ST. J., (Sept. 6, 2022), https://w w w.wsj.com /articles/islamic-statet u r n s -to -n ft s -to - s pre ad-ter ror-me s s age-1 1662292800; Press Release, U.S. Treasury Sanctions Notorious Virtual Currency Mixer Tornado Cash, U.S. DEP’T OF THE TREASURY (Aug. 8, 2022), https://home.treasury.gov/news/press-releases/ jy0916.

3. Marie Ferey, A Legal Dispute in the Metaverse: Hermès v. Mason Rothschild, FORDHAM INTELL. PROP. MEDIA & ENT. L.J. (Apr. 3, 2022), http://www.fordhamiplj.org/2022/04/03/a-legaldispute-in-the-metaverse-hermes-v-mason-rothschild/.

4. Hermès Int’l v. Rothschild, No. 22-cv-384 (S.D.N.Y. 2022); see generally Felicia J. Boyd, et al., Hermès’ Challenge of ‘MetaBirkin’ NFTs Foretells Future Trademark Litigation Trends, IPWATCHDOG (June 30, 2022), https://www.ipwatchdog. com/2022/06/30/hermes-challenge-metabirkinnft s-foretells-future-t radem ark-lit igat iontrends/id=149916/; Isaiah Poritz, Hermès, NFT Artist Clash Over Whether MetaBirkins Is a Trade-

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mark, BLOOMBERG L. (May 4, 2022), https:// news.bloomberglaw.com/us-law-week/hermesnft-artist-clash-over-whether-metabirkins-is-atrademark.

5. Interview by Alexis Christoforous with Mason Rothschild, NFT artist: ‘MetaBirkins’ project aims to create ‘same kind of illusion that it has in real life’, YAHOO!FINANCE (Dec. 6, 2021), https:// finance.yahoo.com/video/nft-artist-metabirkinsproject-aims-200930209.html.

6. Nike, Inc. v. StockX LLC, No. 1:22-cv-00983-VEC (S.D.N.Y. 2022); see also Oscar Gonzalez, Nike’s Legal Fight With StockX Over Sneakers, NFTs: What to Know, CNET (May 21, 2022), https:// www.cnet.com/personal-finance/crypto/nikeslegal-fight-with-stockx-over-sneakers-and-nftswhat-to-know/.

7. Mark Hunter, Nike Awarded Patent for “CryptoKicks” Blockchain Platform, FULLYCRYPTO (Dec. 12, 2019), https://fullycrypto. com /nike-awarded-patent-for-cr y ptokicksb l o c k c h a i n - p l a t f o r m # :~: t e x t = N i k e % 2 0 Aw a r de d%2 0Pat e nt %2 0 for %2 0 %E 2% 80%9CCr y ptoKicks%E2%80%9D%20Blockchain%20Platform%20By,the%20sportswear%20 giant%20to%20launch%20its%20own%20cryptocurrency.

8. LCX AG v. 1.274M U.S. Dollar Coin, Circle Internet Financial, LLC, Centre Consortium, LLC, and John Doe, No. 22-154644 (N.Y. Sup. Ct. 2022); see also LCX AG v. John Doe Nos. 1–25, HOLLAND & KNIGHT, https://www.hklaw.com/en/generalpages/lcx-ag-v-doe (last accessed Sept. 9, 2022).

9. Similarly, in Texas, Texas Rule of Civil Procedure 106(a)(2) allows service by “other technology.”

10. Jim Flint, Moderator, Bitcoin: Juggernaut? Or Not?, Panel Discussion Before the Fort Bend County Chamber of Commerce (Sept. 8, 2022).

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

Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Akin Gump Strauss Hauer & Feld LLP Baker Botts L.L.P. BakerHostetler LLP Balch & Bingham LLP Beck Redden LLP Blank Rome LLP Bracewell LLP Law Office of David Hsu Brogden and Associates CenterPoint Energy, Inc. Chamberlain Hrdlicka Chevron USA Dentons US LLP The Ericksen Law Firm Eversheds Sutherland US LLP Exxon Mobil Corporation Fleurinord Law PLLC Foley & Lardner LLP Frye and Benavidez, PLLC Fuqua & Associates, P.C. Gibbs & Bruns LLP Gibson, Dunn & Crutcher LLP Gray Reed Greenberg Traurig, LLP Halliburton Energy Hasley Scarano, L.L.P. Haynes and Boone, L.L.P. Hunton Andrews Kurth LLP Jackson Walker L.L.P. Jenkins & Kamin, L.L.P. The Jurek Law Group, PLLC Katine & Nechman L.L.P. Kean Miller LLP Law Firm of Min Gyu Kim PLLC

King & Spalding LLP KoonsFuller, P.C. The LaFitte Law Group, PLLC Kirkland & Ellis LLP Locke Lord LLP LyondellBasell Industries Martin R.G. Marasigan Law Offices Marathon Oil Company McDowell & Hetherington LLP McGarvey PLLC Morgan, Lewis & Bockius LLP Norton Rose Fulbright US LLP Ogletree, Deakins, Nash, Smoak & Stewart P.C. Painter Law Firm PLLC Rita Pattni, Attorney at Law Law Office of Robert E. Price Rapp & Krock, PC Reed Smith LLP Royston, Rayzor, Vickery & Williams, LLP Sanchez Law Firm Shell Oil Company Shipley Snell Montgomery LLP Shortt & Nguyen, P.C. Sidley Austin LLP Angela Solice, Attorney at Law Sorrels Law Squire Patton Boggs Diane C. Treich, Attorney at Law Law Office of Norma Levine Trusch Vinson & Elkins LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Law Office of Cindi L. Wiggins, J.D. Wilson, Cribbs, & Goren, P.C. Winstead PC Winston & Strawn LLP Yetter Coleman LLP thehoustonlawyer.com

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By Sandra Guerra Thompson

A Changing Landscape of Handgun Legislation:

The Texas Firearm Carry Act of 2021

T

he 18-year-old Uvalde school shooter legally purchased the two semi-automatic AR-15s used in the May 2022 massacre. Neither federal nor state law prohibited the sale of these weapons to the teen. A previous federal assault weapons ban would have prevented the sale in the past, but Congress has allowed the law to expire and has not renewed it.

Historically, handguns have been more heavily restricted than long guns like rifles and shotguns. However, the Texas Legislature has worked over the past few legislative sessions to loosen handgun regulations. In 2021, Texas adopted unique legislation that protects the firearms industry by prohibiting any state agency or political subdivision from entering into contracts with companies if the companies discriminate against any firearm entity (which is broadly defined) or any firearm trade association.1 The 2021 legislative session also ushered in “permitless carry” (also called “constitutional carry”

by proponents), found in HB 1927 the Texas Firearm Carry Act of 2021, which took effect on September 1, 2021.2 From Prohibiting Handguns in Public to Permitless Carry For over a century, Texas law prohibited carrying handguns in many public places by persons other than peace officers.

The law changed in 1995, when thenGovernor George W. Bush signed SB 60, legalizing the carrying of concealed handguns in public.3 This law allowed people to carry concealed handguns, but only after obtaining a license to do so. As of 2016, the “campus carry” law mandates that public (but not private) universities and community colleges must permit concealed handgun license holders to bring handguns on campus.4 In 2016, the legislature moved from a “concealed carry” model to “open carry,” still requiring holstering, but allowing handguns to be visible.5 The prohibition on carrying handguns inside places of worship was removed in 2019.6 For private property and places of religious worship, the laws allow proprietors to post appropriate signage if they choose to prohibit the carrying of handguns.

While the law generally allows carrying weapons in public, it designates certain types of places as off-limits for weapons. Prior law made it a crime to bring handguns into courts, polling places, racetracks, secured areas of airports and schools. The recent HB 1927 added a few additional weapons-free locations, such as bars, premises of amateur or professional sporting events, correctional facilities, and mental hospitals.

Of greatest significance, HB 1927 eliminates the requirement to obtain a license, which requires a gun safety class.

Licenses are still available, but the law makes them optional rather than mandatory. Few handgun purchasers are likely to seek licenses in the future as the process is time-consuming and costly.

What is lost by effectively eliminating gun safety training and the license process? Under the old system, people seek-

ing licenses were required to attend four Moreover, removing licensure reto six hours of classroom instruction quirements makes more people eligible taught by certified handgun instructors to carry handguns in public. State (and to learn the safe use of the weapon, infederal) firearms law has long disqualicluding the use of restraint fied certain people from holsters or other methods of possessing firearms, such securely carrying handguns, as people with felony proper storage practices with convictions or a Class Of greatest A misdemeanor domesan emphasis eliminating accidental injuries to children, significance, tic assault conviction, or and lessons on the law rewho are the subject of a HB 1927 garding the use of deadly protective order, or have eliminates been adjudicated to be force. The licensure law also required physical instructhe requirement mentally incompetent. Altion at a firing range. Finally, though HB 1927 makes no to obtain a change to those who are applicants were required to pass a written examination license, which disqualified from possessand a physical demonstrarequires a gun ing firearms, by removing tion of proficiency in the use the license requirement, safety class.” of a handgun and in safety the new law makes it leprocedures. Instead of these gal for some categories of rigorous gun proficiency requirements, people to carry firearms in public who HB 1927 now requires the Department would previously have not been eligible of Public Safety to provide a free online for licenses. By eliminating the license gun safety course that gun owners can requirement, the following categories choose to take. of people may now legally carry hand-

‘‘

guns in public: people who are not Texas residents, who have a pending felony or serious misdemeanor charge, who are mentally unsound (except those who are adjudicated as mentally incompetent), who are chemically dependent, delinquent on child support or tax payments, or in default on student loans.

Leniency for the Crime of Unlawfully Carrying a Handgun The law makes several changes that effectively excuse or minimize punishment for people who violate the law in carrying a weapon in a manner prohibited by law. For example, the usual punishment for trespassing on another’s property after receiving notice that entry is forbidden would be a Class A misdemeanor subject to a fine not to exceed $4,000 and up to one year in jail, or both. However, a person who trespasses by bringing a firearm onto a location after receiving notice that firearms are prohibited would be guilty of the lesser Class C misdemeanor, which

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29

is punishable by only a fine. Moreover, the normal $500 fine applicable to all other Class C misdemeanors is reduced by this legislation for handgun trespassers to only $200.

HB 1927 also creates a unique opportunity for people who were convicted of unlawfully carrying weapons in the past to have all records and files relating to their arrests expunged. For all other offenses, expungement only applies for acquittals, pardoned convictions, case dismissals, or an arrest that has not resulted in charges being filed after certain extended periods of time. The new provision allows people who were convicted of unlawfully possessing a firearm prior to the passage of the bill to get their criminal records expunction.

No other type of unpardoned criminal conviction may be expunged under Texas law.

Conclusion HB 1927 predates the horrific school shooting in Uvalde, but this was not Texas’ first mass shooting. The killing

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September/October 2022

of ten people at the high school in Santa Fe, Texas and other prior mass shootings surely informed this most recent Texas legislation. By moving to permitless carry and providing greater leniency for people who violate gun regulations, the new law enables more people to carry handguns, presumably with the goal that law-abiding gun carriers will deter gun violence by criminals. The relaxation of handgun carrying coincides with the most recent U.S. Supreme Court ruling on the Second Amendment, which places some modest limits on a state’s ability to regulate the public carrying of handguns.7 Nonetheless, state legislatures—and Congress— can restrict the availability of especially lethal devices, like the assault rifle used in Uvalde. Indeed, as recently as October of this year, the Supreme Court refused to consider a challenge to the federal ban on “bump stocks,” devices that modify semiautomatic rifles to fire more rapidly.8 However, it won’t be the last time the Supreme Court—or the Texas State Legislature—will take up cases and measures surrounding firearm legislation.

thehoustonlawyer.com

Sandra Guerra Thompson is the Newell H. Blakely Professor of Law and former director of the Criminal Justice Institute. She is widely published in the areas of criminal law, evidence, the regulation of forensic evidence, and federal asset forfeiture. She has taught criminal law, evidence, and a variety of other courses.

Endnotes

1. Act of June 14, 2021, 87th Leg., R.S., S.B. 19, (codified at TEX. GOV’T CODE § 2274.001(2)).

2. 2 Firearm Carry Act of 2021, 87th Leg., R.S., H.B. 1927 (codified as an amendment to TEX. PENAL CODE § 46.02).

3. Act of May 16, 1995, 74th Leg., R.S., S.B. 60 (codified as an amendment to Penal Code section 46.035).

4. Act of May 31, 2015, 84th Leg., R.S., S.B. 11 (as codified TEX. GOV’T CODE § 411.2031).

5. Act of May 31, 2015, 84th Leg., R.S., H.B. 910 (as codified TEX. PENAL CODE §30.07).

6. Act of June 7, 2019, 86th Leg., R.S., S.B. 535 (codified as an amendment to TEX. PENAL CODE § 46.035).

7. New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022).

8. W. Clark Aposhian v. Merrick B. Garland, 21-159, and Gun Owners of America v. Merrick B. Garland, 211215.

73rd Annual Harvest Celebration Benefiting Houston Volunteer Lawyers

Monday, November 14, 2022 • 7:00 – 10:00 p.m. • River Oaks Country Club

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

Thank you to the HBA, HBF, and HVL board members for their service and support of the 73rd Annual Harvest Celebration!

Chris Popov Diana Gomez Greg Ulmer Greg Moore David Harrell Daniella Landers Jennifer A. Hasley Robert Painter Keri Brown Kaylan Dunn Samantha Torres Collin Cox Jeffrey Oldham Pamela A. Medina Colin Pogge

Benny Agosto, Jr. Travis J. Sales Kelly E. Hanen Kelly Greenwood Prather Mindy G. Davidson Christian A. Garza Travis Wofford Polly Fohn Hillary H. Holmes Monica Karuturi Quentin L. Smith Krisina Zuñiga Alistair Dawson Linda Hester Sejal Brahmbhatt

Richard Whiteley Emma Doineau Jamie Leader Peter Lowy Cassandra McGarvey Aaron Reimer Andrew Yeh Audrey Moamanee Chanler Langham Tony Visage Hon. Jerry Simoneaux Jackie Furlow Anne Chandler Brittny Mandarino Curry Tramaine Singleton

Thank you to the underwriters of the 73rd Annual Harvest Celebration

Diamond Sponsors

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

Ruby Sponsors

Benny Agosto, Jr. and Nikki Agosto AZA Law Blank Rome LLP Chevron Corporation Litigation Section

Sapphire Sponsors BakerHostetler LLP Hon. Harvey Brown CenterPoint Energy, Inc. Chamberlain Hrdlicka LyondellBasell Industries Phillips 66 Company Winston & Strawn LLP

Gold Sponsors

Arnold & Porter LLP Beck Redden LLP Clouthier Law, PLLC Greenberg Traurig, LLP Haynes and Boone, LLP Hewlett Packard Enterprise Hicks Thomas LLP King & Spalding LLP Labor & Employment Section Latham & Watkins LLP

Silver Sponsors

Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Alternative Dispute Resolution Section Jane and Doug Bland ConocoPhillips Energy Law Section Family Law Section Foley & Lardner LLP Gibbs and Bruns LLP Gibson, Dunn & Crutcher LLP Tom and Debbie Godbold Halliburton David and Tammie Harrell JAMS Monica Karuturi and Kumaran Sathyamoorthy Kirkland & Ellis LLP Liskow McGuireWoods LLP Michelman & Robinson, LLP Morgan, Lewis & Bockius LLP Pillsbury Winthrop Shaw Pittman LLP Chris and Annsley Popov Real Estate Section Sidley Austin Foundation Spencer Fane LLP Quinn Emanuel Urquhart & Sullivan; Karl Stern Weil , Ghotshal & Manges Willkie Farr & Gallagher LLP Yetter Coleman LLP

Bronze Sponsors Akerman LLP Amegy Bank Balch & Bingham LLP

Baker Wotring LLP Bissinger, Oshman, Williams & Strasburger LLP Bradley Arant Boult Cummings LLP Burford Perry, LLP Bush Seyferth PLLC CITGO Petroleum Cokinos Young PC Coné PLLC Jacquelyn and Collin Cox Crowe LLP Mindy and Joshua Davidson Dentons US LLP Diggs & Sadler Digital Insurance, LLC dba One Digital Dobrowski Stafford LLP Emma Doineau Duane Morris LLP Energy Transfer Enterprise Products Eversheds Sutherland US LLP Federal Practice Section Fogler Brar O’Neil and Gray LLP Frost Bank Frost Brown Todd LLC FTI Consulting Kerry Galvin Christian A. and Janet G. Garza Family Germer PLLC Hon. Michael Gomez and Diana Gomez Gray Reed Hagans Montgomery Hagans Jim and Susan Hart Hartline Barger LLP Hogan Lovells US LLP Houston Lawyer Referral Service, Inc. Jim and Cisselon Nichols Hurd Jackson Walker Jim Adler & Associates

Jenkins and Kamin, LLP Jones Day Kane Russell Coleman Logan PC Kean Miller McDowell Hetherington LLP Hon. David M. and Pamela Medina Mergers & Acquisitions Section Greg and Jennifer Moore Munsch Hardt Kopf & Harr, P.C. Okin Adams Bartlett Curry LLP Jeff Paine and Brandon Holcomb Goldman Sachs Plains All American Pipeline, L.P. Porter Hedges LLP Reed Smith LLP Reynolds Frizzell LLP Service Corporation International Shearman & Sterling Skadden, Arps, Slate, Meagher & Flom LLP Smyser, Kaplan & Veselka, L.L.P. South Texas College of Law Houston Susman Godfrey L.L.P. Validity Finance, LLC Laura and Tony Visage Vorys, Sater, Seymour and Pease LLP Westlake Chemical Corp.

Wright Close & Barger, LLP

Crystal Sponsors

Barry and Sue Abrams Hon. Terry Adams Adams and Reese LLP Sofia Adrogué/Diamond McCarthy LLP Andrews Myers, PC Appellate Practice Section B. Riley Advisory Services Jack and Mary Balagia Bankruptcy Section Sharon Marie Beausoleil Brent and Christy Benoit Berg & Androphy Susan L. Bickley BoyarMiller Bragg Law PC Sejal Brahmbhatt Keri Brown and Ben Womack Hon. Brett and Erin Busby BWA Video, Inc. Anne Chandler Christian Levine Law Group LLC Commercial & Consumer Law Section Construction Law Section Copeland & Rice LLP Corporate Counsel Section Cozen O’Connor Criminal Law Section Brittny Mandarino Curry Eric and Kami D’Olive David Toy Law Firm Wendy and Alistair Dawson Amy Catherine Dinn DLA Piper LLP (US) Kaylan and John Dunn Polly and Stephen Fohn Fullenweider Wilhite, P.C. Jackie and John Furlow Lynn and Stewart W. Gagnon Roland Garcia Craig and Penny Glidden Gordon, Arata, Montgomery, Barnett, McCollam, Duplantis & Eagan, LLC Hon. Angela Graves-Harrington Gregor Wynne Arney, PLLC

Hon. Joseph “Tad” Halbach Kelly E. Hanen Lauren and Warren Harris Greg and Jennifer Hasley Hon. Kristen Brauchle Hawkins HBAA Charitable Fund, Inc. Lindsey and Greg Heath Hedrick Kring Bailey PLLC Linda and Tracy Hester Hicks Davis Wynn, P.C. Hirsch & Westheimer, P.C. Hogan Thompson LLP Hillary Holmes and Matthew Archer Houston Young Lawyers Association Infinity Reporting Group, LLC Jackson Lewis P.C. Jordan Lynch & Cancienne Juvenile Law Section Chris Gadoury and Julie Blair K & L Gates LLP Shae Keefe and Mark Jacobs Keith Law, PLLC Neil and Dana Kelly Kilpatrick Townsend & Stockton LLP Daniella D. Landers Chanler Langham Law Office of Janet Hansen Law Office of Seth Kretzer James Leader Elizabeth and Russell Lewis Life Savers Emergency Room Eric and Rhonda Lipper Peter Lowy and Gabriela Boersner Gina Lucero and Terry G. Fry Hon. Erin Lunceford and Mike Lunceford Massey Law Firm PLLC Mayday Law Office PLLC Tim and Ginnie McConn Cassandra McGarvey MehaffyWeber PC Hon. Margaret Mirabal Audrey Momanaee Hon. Daryl L. Moore W. Michael and Laurie D. Moreland Hon. Brittanye Morris Nathan Sommers Jacobs Jeff and Melissa Oldham Olson & Olson, LLP Robert and Taunya Painter Charlie Parker Connie H. Pfeiffer Colin and Sangita Pogge Kelly and Mike Prather Rapp & Krock PC Aaron M. Reimer and Amanda Heidemann Reimer Rose Sanders Law Firm Karen and Scott Rozzell Rusty Hardin & Associates, LLP Hon. Frank Rynd Travis and Sandy Sales Shook Hardy & Bacon L.L.P. Kay Sim Hon. Jerry Simoneaux Tramaine Singleton Quentin L. Smith Hon. Susan S. Soussan Sponsel Miller Greenberg PLLC Stacy & Baker, PC Steven C. Howard P.C. Taxation Section Taylor, Book, Allen & Morris, LLP The Buck Family Fund

The Lanier Law Firm The Law Office of Daniel D. Horowitz, III, PC The Springer Law Firm PLLC Jennifer Tomsen TONER Home Matters Travis Torrence and Heath LaPray Samantha Torres and Jimmy Hollowell Hilary Tyson Sandy and Greg Ulmer UnitedHealthcare Roy and Dominique Varner Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP West Mermis Richard and Laura Whiteley Hon. LaShawn A. Williams Winstead PC Travis and Dr. Lisa Wofford Womble Bond Dickinson (US) LLP Willie and Ingrid Wood Andrew Yeh Ytterberg Deery Knull LLP Zabel Freeman Law Firm

Other Sponsors

Animal Law Section Antitrust & Trade Regulation Section Hon. Julie Countiss Jennifer Walker Elrod Entertainment & Sports Law Section Environmental Law Section Chris Di Ferrante Mr. and Mrs. Dereck Frederick Hon. Tanya Garrison David T. Harvin HBA Staff Health Law Section Hon. Yvonne Y. Ho Hon. James Horwitz Samantha Jarvis In Honor of Kennedy Kent Loftin In Honor of Kenneth Tekell and Jack Balagia International Law Section Camille C. Jenman Law Practice Management Section Marcum P.C. Hon. Beau A. Miller Hon. Margaret Poissant Probate, Trusts & Estate Section Hon. Veronica Rivas-Molloy and David Molloy Robin Raasch Jane Langdell Robinson Anna Robshaw, Greenberg Traurig LLP S. Mayer Law Hon. Robert Schaffer Social Security Section Hon. Charles Spain and John Adcock Cooper Sukaly Hon. Cheryl Elliott Thornton Brooks Tobin and Jacquelyn Rex Hon. Fran Watson Hon. Ken Wise Krisina Zuñiga and Rick Houghton

In Kind Sponsors

Innovative Legal Solutions

Young Lawyer Spotlight

Valery Piedra Tell me a little bit about your background.

Valery: I am Colombian-American. I was raised in a Spanish-speaking household and was taught the importance of community early on in life. My mom, Yolanda, was a stay-at-home mom and dedicated her entire life to her children and family. My dad, James, is an engineer and at certain points of our lives had multiple jobs so he could provide for us. My family taught me the importance of perseverance and the power of community—lessons that I carry with me every day.

Where do you work and what is your practice area?

Valery: I work at Jackson Walker LLP in the Corporate & Securities section, where I work on transactions in a variety of industries, including film/tv, sports, and fashion.

Where did you go to school and when did you graduate?

Valery: I went to The University of Texas at Austin for undergrad and graduated with a B.S. in advertising. I worked in advertising/sales during and after my time at UT. I went to law school at South Texas College of Law Houston and graduated in May 2019.

What offerings did South Texas provide for someone who wants to go into entertainment or meValery Piedra dia law?

Valery: South Texas has an entertainment law course and has student organizations dedicated to entertainment & sports law.

Why entertainment law?

Valery: Entertainment law is such an important and fascinating area of the law. Your job is to help create stories. Whether it is producing a movie, publishing a book, curating art, or protecting designs. Every artist has a story to tell, and it is your job to help make it happen.

Why did you choose to join the HBA as a young lawyer?

Valery: I wanted to learn more about the legal world. I found it fascinating how so many different areas of law interconnect and always thought it was interesting to learn about other practices. Also, the HBA is a great way to get involved in the Houston community and give back to our beautiful and vibrant city.

The Houston Lawyer

What are you involved in within the HBA? Valery: I am a member of the Corporate Counsel Section, as well as an officer of the Entertainment and Sports Law Section.

What keeps you grounded outside of the practice?

Valery: Yoga and time with my family.

What’s your best piece of advice for young lawyers?

Valery: Stay curious and keep discovering.

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September/October 2022

thehoustonlawyer.com

A Profile

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

G

MONICA KARUTURI Executive Vice President, CenterPoint Energy

rowing up, my mother and father instilled in me the importance giving back. Many of my fondest memories are of our family cooking at a soup kitchen that my father helped expand over the years. The importance of service is foundational for me and has always been a driving force in my educational and career decisions.

Although I began my career in public health, I quickly realized that a law degree could be a force multiplier in helping people thrive and overcome. Because lawyers have a unique skillset that can uplift others, I believe we work in the most impactful profession when we apply our skills for the greater good.

My upbringing, combined with my legal and business career, helped me understand the importance of investing in the communities where we live and work. Businesses that integrate a proactive community strategy into their operations are also more likely to achieve their goals. Finding ways to connect employees to this work is paramount. Through volunteerism, a company can enhance its reputation, brand, image, and, most importantly, represent and live its values. Employee volunteerism also builds morale and fosters employee engagement and retention.

At a time when stakeholders expect more in addressing diversity, equity, and inclusion (DEI) and other aspects of environmental, social and governance issues, businesses should embrace their call. My decision to come to and stay at CenterPoint Energy has been largely driven by the company’s commitment to serving and representing the communities in which we operate. I am proud that CenterPoint Energy celebrates volunteerism, supports charitable giving, and promotes inclusion and belonging. I am also honored that our legal team is at the forefront in advancing our company’s DEI strategy and providing leadership for the company’s employee resource groups and community service efforts.

For leaders, supporting our communities is more than just goodwill. It is also a strategic tool for driving business performance, enhancing reputation, building stakeholder relationships, engaging employees, developing future leaders, and living our values. We must all continue to advocate for deepening and expanding community investment to work toward a more equitable future for everyone.

thehoustonlawyer.com

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OFF THE RECORD

Judge Christine Weems:

How a Passion for Theater Grew Into a Production Company

I

The Houston Lawyer

By Carly Milner

n college and law school, Judge Christine Weems competed in festival with a different lineup of plays every night. During the COmock trial at least twice a year. When she wasn’t presenting her VID lockdown, when theaters shut down completely, Judge Weems case, she took on the role of a witness. After graduating from started War of the Words: Audio Battle, a podcast that pitted playlaw school, she missed wrights against each other in the fun of acting in mock a bracket-style competition. trials, and, taking a leap, auEach episode featured two ditioned for a play called Barshort plays on a theme with becuing Hamlet about a New a sound cue, and the audiYork director brought to a ence then voted on which small town to produce Hamplay would advance. To date, let. Although she had never the podcast has produced 81 acted in a play before, she was individual plays featuring 31 cast in the lead part. playwrights and 56 actors Despite her busy life as a from around the world. Cone junior lawyer, Judge Weems Man Running is about to dove into the Houston comstart the third season of the munity theater scene and show, which will be available continued acting, not just for Judge Weems directed Twelve Angry Jurors, a production featuring Houston lawyers (along with all of the previthe fun of the acting itself, and judges which ran August 2022. ous episodes) on the Cone but also for the camaraderie. After acting in ten shows in a row Man Running website. from 2004 to 2005, she decided to take a few months off work to Most recently, Judge Weems directed Twelve Angry Jurors, a play train at a summer acting academy in New York. This led to staying about jury deliberations in a criminal case. She wanted to cast lawin New York for several years, working as a lawyer while also actyers and judges rather than professional actors in a production and ing, including as an extra on shows like 30 Rock and Law and Order. chose a play that would suit first-time actors—one that involved While in New York, Judge Weems got involved in the business something within their life experience. The cast rehearsed two or side of a theater company. When she and her husband, a playwright, three nights a week for about a month and a half, then put on nine moved back to Houston, they started their own theater company, performances. One of the performances was “Law Student Night,” Cone Man Running, to bring original works to Houston. Cone Man where the students had a chance to talk to the judges and lawyers Running’s signature event is Spontaneous Smattering, a 24-hour performing in the play after the show—not just about the jury sysplay festival in which 36 actors commit to performing for one day. tem, but also about the importance of making time for interests The day before the event, playwrights receive the parameters: plays outside the law. must include a particular word, prop, or other feature. They bring For Judge Weems, her involvement in theater is about more than back a script the next day, and the performances begin. To help the acting and directing—it’s about the theater community. She enloosen everyone up, the audience gets a shot at the door. At the end courages lawyers and other first-time actors to audition for plays of the event, the audience votes on favorites, awarding traffic cones and will work with their schedules to facilitate their participation. to plays with the best script, best props, and other superlatives.

To find out what Cone Man Running will do next, or to watch But Spontaneous Smattering isn’t just fun: Cone Man Running has past performances, go to conemanrunning.com or find the comparaised over $15,000 and gathered more than 3,000 canned goods ny’s channel on YouTube. for the Houston Food Bank as part of this event.

Cone Man Running puts on other regular events celebrating Carly Milner is a trial lawyer and partner at Fogler, Brar, O’Neil & creativity and originality, like Five Minute Mile, a five-minute play Gray LLP. 36

September/October 2022

thehoustonlawyer.com

SECTION spotlight

Entertainment and Sports Law Section:

T

Promoting Houston’s Expertise in This Niche Field

By Alexis Whitaker

he Houston Bar Association’s Entertainment and a corporate transactional associate at Frost Brown Todd LLC. Sports Law (“ESL”) Section is excited to reenergize Hannah is a 2019 TSU-Thurgood Marshall School of Law the world of entertainment and sports graduate and is passionate about helping to within Houston from a lawyer’s lens. facilitate business opportunities and proThe ESL Section’s purpose is to protecting the rights of talent in entertainment mote and enhance the practice of law by all and sports. Valery Piedra is a corporate lawyers who specialize, or are interested, in and securities associate at Jackson Walker entertainment, arts, media, and sports law. The LLP and serves as the section chair-elect. roughly 60 members of this section include Valery is a 2019 graduate of South Texas lawyers with clientele ranging from entertainCollege of Law Houston and focuses her ment and/or sports organizations, actors, mupractice on entertainment-related matsical artists, athletes, fashion designers, and so ters, such as film, television, and fashion much more. Like so many, the entertainment law. The section treasurer is Jeremy Sims, and sports industries took a big hit who is the founding and managas a result of COVID-19. With the ing partner of Sims Legal Conimpact of the pandemic and a shift sultancy Firm. Jeremy graduated in trends, the section intends to from Texas Southern University highlight the new landscape of enThurgood Marshall School of Law tertainment and sports and further in 2020 and his practice focuses on promote the Houston market in an new-age technology and its role in effort to gain international recogentertainment through copyright nition within this industry. and trademark usage. Finally, I The section will host various am the section’s secretary. I am an gatherings, including CLEs and incoming corporate transactional social events. CLE discussions will associate at Shearman and Sterinclude topics ranging from film ling LLP. I graduated from TSU and television since the pandemic, Thurgood Marshall School of Law the use of non-fungible tokens, the in 2022 and am passionate about battle of music rights, the rise in entertainment law, specifically in social media influencers, and colfilm and television, as I interned at legiate name, image, and likeness.

Paramount+ with the Nickelodeon The first 2022–2023 ESL member network, while in law school. event was held September 8 at Trez Members of the HBA Entertainment and Sports Law Section held Despite challenging times, the Bistro & Wine Bar. This kickoff their fall member mixer on September 8, 2022. current officers are eager to host event was open to all current members as a way to reconnect CLEs and social events that will showcase the breadth of entersince the pandemic. In addition to CLEs and social events, the tainment and sports across Houston. Our hope is to continue section plans to engage in civic activities to provide a meanto grow the presence and legacy of Houston attorneys within ingful impact across the city. this niche practice.

The current ESL officers are a diverse group of young and enthusiastic attorneys who bring unique qualities to the secAlexis Whitaker is secretary of the HBA Entertainment and tion. Hannah Johannes serves as chair of the section. She is Sports Law Section. thehoustonlawyer.com

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Committee spotlight

Law & the Media Committee:

Fostering Healthy Dialogue Through Engaging New Series

S

The Houston Lawyer

By Maggie Martin

ince 1986, the Houston Bar Association has held an and Entertainment Law Institute. The discussion was moderannual Law & the Media Seminar to encourage diaated by Joseph Duarte, who covers college sports for the Houslogue between the legal and news professions. Workton Chronicle. The program wrapped with audience Q&A. You ing closely with the Houston chapter of can see photos of the event on the HBA the Society of Professional Journalists Law & the Media Committee webpage (SPJ), these programs have explored libel, privaat hba.org. cy laws, and other timely topics where journalThe next HBA President’s Speaker ism and the legal system often intersect.

Series program wasn’t far behind. On 2022–2023 HBA President Christopher V. October 28, just days before Texas’ NoPopov has charged this comvember 8 midterm elections, mittee—one which has been speakers delved into recent votbringing members first-class ing legislation in Texas, the leprogramming for over 25 gal challenges stemming from years—with spearheading a those changes, and what voters new series as part of his foneed to know. The event was cus area, “Elevated Civil Disheld at South Texas College of course.” The goal for the HBA Law Houston.

President’s Speaker Series, as In addition to the commitPresident Popov told a packed tee’s law co-chair (HBA Secreballroom at the HBA Annual tary Daniella Landers, Womble Dinner in May, is to bring Bond Dickinson (US) LLP) and substantive, thoughtful insight media co-chair (Chris Tritico, to the leading legal stories of Tritico Rainey, PLLC) who are the day.

A panel of legal experts spoke at the first HBA President’s Speaker Series charged with leading this comThe series debuted at Vinson event at Vinson & Elkins on September 14, 2022. mittee, the HBA has partnered & Elkins on September 14, featuring highly esteemed legal exwith Houston’s law schools to welcome three representatives as perts to discuss name, image, and likeness (NIL) case law and co-chairs this year. Those are Dean Leonard M. Baynes of the its impact on college athletics. An incredibly timely topic given University of Houston Law Center; Michelle Morris, associate the start of college football season, panelists talked about what vice president of marketing and communications with South these changes mean for college programs, the effects on studentTexas College of Law Houston; and Professor Elsa Ransom with athletes, and how these issues intersect with other policies, such Thurgood Marshall School of Law. as Title IX. The speakers were former NFL player Mickey L. The HBA President’s Speaker Series will continue into 2023 Washington, founder of Washington & Associates, PLLC; Dona with programming about major decisions from the U.S. SuCornell, University of Houston System vice chancellor for legal preme Court. Look out for more details about these events in the affairs and general counsel, and UH vice president for legal afmonths ahead. fairs and general counsel; Professor Gabriel Feldman, Sher Garner Professor of Sports Law and the Paul and Abram B. Barron Maggie Martin is the marketing and communications director of Professor of Law at Tulane Law School, director of Tulane Law the Houston Bar Association and managing editor of The Houston School’s Sports Law Program, and Tulane University’s associate Lawyer. She previously served on the marketing and communicaprovost for NCAA compliance; and Professor Michael McCann, tions team at the Greater Houston Partnership and produced for University of New Hampshire’s founding director of the Sports Houston Matters at Houston Public Media.

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Join the HBA 100 Club!

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

Kane Russell Coleman & Logan PC Kean | Miller LLP Kilpatrick Townsend & Stockton LLP KoonsFuller, PC Law Feehan Adams LLP Linebarger Goggan Blair & Sampson, LLP Liskow & Lewis McGinnis Lochridge McGuireWoods LLP McKool Smith MehaffyWeber PC Morris Lendais Hollrah & Snowden Murrah & Killough, PLLC Nathan Sommers Jacobs PC Ogletree Deakins Nash Smoak & Stewart, P.C. Paranjpe Mahadass Ruemke LLP Peckar & Abramson, P.C. Phelps Dunbar LLP Pillsbury Winthrop Shaw Pittman LLP Pipkin Ferguson PLLC Ramey, Chandler, Quinn & Zito, P.C. Rapp & Krock, PC Reynolds Frizzell LLP Roach & Newton, L.L.P. Ross Banks May Cron & Cavin PC Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Page & Harding, L.L.P. Scott, Clawater & Houston, L.L.P. Shannon Martin Finkelstein Alvarado & Dunne, P.C. Shearman & Sterling LLP Shellist | Lazarz | Slobin LLP Shipley Snell Montgomery LLP Smith Murdaugh Little & Bonham LLP Sorrels Law Spencer Fane LLP Sponsel Miller Greenberg PLLC Strong Pipkin Bissell & Ledyard LLP

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LEGAL TRENDS

Monroe Guaranty v. BITCO: Texas Supreme Court (Finally) Recognizes Exception to the Eight-Corners Rule

By J. Stephen Barrick, Courtney E. Ervin, and Stacie Osborn

The Houston Lawyer

T

he eight-corners rule is an analytical tool for evaluating whether a liability insurer owes its insured a duty to defend.

The rule generally prohibits courts and insurers from considering extrinsic evidence when determining whether the insurer has a duty to defend its insured in a given case. As its name suggests, courts and insurers must consider the allegations within the four corners of the petition in light of the provisions within the four corners of the insurance policy, “without reference to the truth or falsity of such allegations.”1 All doubts must be resolved in favor of the insured.2 In 2004, the Fifth Circuit made an Erie guess that “in the unlikely situation” that the Texas Supreme Court recognized an exception to the strict eight-corners rule, it would do so only where “it is initially impossible to discern whether coverage is potentially implicated and when the extrinsic evidence goes solely to a fundamental issue of coverage which does not overlap with the merits of or engage the truth or falsity of any facts alleged in the underlying case.”3 This became known as the Northfield exception.

For nearly two decades, the Texas Supreme Court had not addressed whether the Northfield exception was valid, despite multiple opportunities to do so.4

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But earlier this year, in Monroe Guar. Ins. Co. v. BITCO Gen. Ins. Corp.,5 the court finally addressed whether it would recognize the exception when the Fifth Circuit certified the question to the court in the most direct terms possible: “Is the exception to the eight-corners rule articulated in Northfield Ins. Co. v. Loving Home Care, Inc., 363 F.3d 523 (5th Cir. 2004), permissible under Texas law?”6 The Texas Supreme Court answered the question “yes,” subject to some refinements, but stressed that the eight-corners rule remains the initial inquiry to determine whether the insurer owes a duty to defend and that “will resolve coverage determinations in most cases.”7 But the court held that courts and insurers could consider extrinsic evidence “if the underlying petition states a claim that could trigger the duty to defend,” but “due to a gap in the plaintiff’s pleading,” the duty to defend cannot be determined.8 However, to be admissible, the extrinsic evidence must: (a) go solely to an issue of coverage, with no overlap with the merits of liability; (b) not contradict any material facts alleged in the pleading; and (c) conclusively establish the coverage fact to be proved.9 Applying this standard to the facts in BITCO, the Texas Supreme Court held that the extrinsic evidence in that case could not be considered because it overlapped with the merits.10 BITCO involved

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a claim for damage to an underground water well and reservoir allegedly caused by the insured’s negligent operations, and the key coverage issue was when the damage occurred. The parties had stipulated that a key event—the insured’s drill bit getting stuck in the well—had occurred on a certain date, and that stipulation was the extrinsic evidence in question.

In concluding that the evidence could not be considered, the court broadly held that evidence of the date of an occurrence in a continuing damage case overlaps with the merits because it essentially forces the insured to confess to damages at a particular date to invoke coverage.11 At long last, BITCO has definitively answered the question of whether the Northfield exception is viable under Texas law.

While BITCO’s modification to Northfield appears minimal, there will be an uptick in lawsuits as policyholders and insurers alike seek to understand the outer limits of this exception to the eightcorners rule. The greatest source of tension will likely be whether the extrinsic evidence offered overlaps with the merits. Based on the court’s broad holding on this issue in BITCO, if there is any credible argument that coverage and the merits overlap, then it is unlikely that a court will consider extrinsic evidence.

J. Stephen Barrick is a trial lawyer and appellate specialist at Hicks Thomas LLP, where his practice focuses on business litigation and appeals. Mr. Barrick is board

LEGAL TRENDS

certified in civil appellate law by the Texas Board of Legal Specialization and has over 20 years of experience litigating complex business disputes.

Courtney E. Ervin is a trial partner at Hicks Thomas, where she represents clients in the insurance, energy, and private equity industries. She handles a variety of complex business disputes ranging from pre-litigation counseling to trial in state and federal courts and in arbitration.

Stacie Osborn is an associate at Hicks Thomas, where her practice focuses on commercial litigation, primarily in the construction, oil and gas, and insurance industries. Ms. Osborn joined the firm after clerking for the Honorable Ivan L.R. Lemelle in the Eastern District of Louisiana.

Endnotes

1. Heyden Newport Chem. Corp. v. S. Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex. 1965).

2. Id. at 26.

3. Northfield Ins. Co. v. Loving Home Care, Inc., 363 F.3d 523, 531 (5th Cir. 2004) (emphasis in the original).

4. See Richards v. State Farm Lloyds, 597 S.W.3d 492, 496–97 (Tex. 2020) (acknowledging other courts’ recognition of the exception to the eight-corners rule stated in Northfield but declining to decide whether to adopt it); Pine Oak Builders, Inc. v. Great Am. Lloyds Ins. Co., 279 S.W.3d 650, 654–55 (Tex. 2009) (same); Zurich Am. Ins. Co. v. Nokia, Inc., 268 S.W.3d 487, 497–98 (Tex. 2008) (same); GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 308–10 (Tex. 2006) (same).

5. 640 S.W.3d 195 (Tex. 2022).

6. BITCO Gen. Ins. Corp. v. Monroe Guar. Ins. Co., 846 F. App’x 248, 252 (5th Cir. 2021).

7. BITCO, 640 S.W.3d at 201.

8. Id. at 203.

9. Id. at 202.

10. Id. at 204.

11. Id.

Avoid a Perry Mason Moment: Snap Back Properly

L

By Lauren Veillon

ate this summer, all eyes were on proceedings in the 261st District Court of Travis County, Texas, where Infowars founder

Alex Jones was the defendant in a defamation lawsuit—one of several pending lawsuits concerning the Sandy Hook tragedy and Jones’ role in the subsequent media coverage.

One moment, in particular, likely sent a shiver down the spine of every lawyer tuning in; in fact, Alex Jones himself (albeit perhaps sarcastically) referred to the exchange as plaintiffs’ attorney Mark Bankston’s “Perry Mason moment.” During cross-examination of Jones, Bankston revealed that Jones’ attorney had sent a link containing a large volume of privileged and/or confidential material to the plaintiffs.

Texas law provides protection from such inadvertent disclosures under Texas Rule of Civil Procedure 193.3(d). So, what happened? According to Bankston, Jones’ lawyer failed to properly “snap back” the material in accordance with the requirements of the rule.

Texas Rule of Civil Procedure 193.3(d), known as the “snap-back” rule, sets forth the procedure for retrieving privileged material that is inadvertently disclosed. Under this rule, a party who inadvertently discloses privileged material or information must, within 10 days from the date of discovery that such material or information was produced, amend the response to identify the privileged material and the privilege asserted.1 If these remedial steps are taken, privilege is preserved, and the disclosed material must be promptly returned by the receiver. These remedial steps are important, the Supreme Court of Texas held in Paxton v. City of Dallas, because “inaction under such circumstances is inconsistent with claiming the privilege.”2 In the Alex Jones case, an emergency motion filed the day after the exchange between Bankston and Jones provided Jones’ attorney’s initial response to the notification that he may have inadvertently disclosed privileged information:

...T]here appears to have been a mistake in the file transfer... Please disregard the link and I will work on resending.

Does this statement alone meet the requirements of Rule 193.3(d)? Probably not. The rule requires that the producing party amend the response to identify the material that is privileged and state the specific privilege asserted.

While this rule provides a fairly simple way to correct mistakes, its procedure must be strictly followed to enjoy the protection it provides.

What about receiving privileged information that has been inadvertently disclosed? An October 2016 opinion by the Professional Ethics Committee for the State Bar of Texas discussed the failure of a party to notify an opposing party that they have received confidential information (including privileged information) from, or belonging to, the opposing party. In the opinion, the ethics committee concluded that the Texas Disciplinary Rules do not directly address the failure of a lawyer to notify an opposing party of the receipt of confidential information; therefore, it is not necessarily a violation of the rules to choose not to notify an opposing party of receipt of confidential information. However, attorneys should carefully consider what other potential consequences may result before choosing not to disclose receipt of (and, more importantly, use of) any privileged information that was inadvertently disclosed.

Lauren Veillon is an associate in the Probate and Fiduciary Litigation Group at Kean Miller LLP and a member of The Houston Lawyer editorial board.

Endnotes

1. Texas Rule of Civil Procedure 193.3(d).

2. Paxton v. City of Dallas, 509 S.W.3d 247, 263 (Tex. 2017).

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September/October 2022

41

Media Reviews

The Staircase HBO, 2022. Netflix, 2004–18.

Reviewed by Andrew Fletcher

The Houston Lawyer

I

s a dramatic adaptation of a documentary more restricted, or more open, than one of a fictional work? Viewers are now able to watch both Jean-Xavier de Lestrade’s French documentary The Staircase, which first released episodes in 2004 and concluded in 2018, and HBO Max’s eponymous 2022 miniseries based on the documentary.

Upon doing so, the audience will hopefully answer the above question as “both.”

Both works concern the saga of Michael Peterson, an author convicted of murdering his wife Kathleen in 2003, two years after she was found dead at the bottom of a staircase in their home. What ensued over the next 14 or so years was an appellate process that resulted in the grant of a new trial and ultimately Michael’s Alford plea to manslaughter.

The documentary’s 13 episodes start in the aftermath of Kathleen’s death from multiple perspectives, including the Peterson family, the district attorney, and the defense team helmed by David Rudolph. Later episodes jump in time as new developments occurred.

The obvious benefit of the docuseries format is time—both to tell a story and for the viewer to breathe. Despite bracketing in the form of transitions for certain topics, some viewers may find this slow burn chafing. For this reviewer, that developments emerge subtly and at unexpected moments from various people feels true to life; the editing succeeds at this Goldilocks problem and includes just enough footage to maintain this feeling without losing the audience’s attention.

As for Antonio Campos’ eight-episode dramatization of the same subject matter, the series openly acknowledges that its retelling adds yet another layer to the murky circumstances surrounding Kath-

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September/October 2022

leen’s death. The first episode even begins by quoting a version of Pontius Pilate’s infamous phrase, “What is truth?”

As one might expect from HBO, the production values are excellent. The cinematography switches from classic shots to shaky-cam, and there are a few grander, sweeping shots for emphasis.

But as something of a period piece, HBO’s The Staircase is primarily filmed in tight close-ups, focusing on the characters themselves.

The compression of the story does not, for the most part, affect the pacing, and the only time the plot meanders is when the series attempts to provide sufficient individual characterization and motivation for each of the Petersons’ five children. Much of the dramatization of the series plays out through the family dynamics between Michael (Colin Firth, The King’s Speech), Kathleen (Toni Collette, Knives Out), and those children— as it happens, the products of a blended family. Firth, Collette, Timothy Guinee, and Rosemarie DeWitt deliver the most outstanding of a group of good performances.

But it is Collette’s sympathetic performance as Kathleen—depicted via flashbacks showing her complicated relationship with Michael, including her possible knowledge of his infidelity—and the filmmakers’ emphasis on Michael’s history as a fabulist (in multiple respects) that truly mark the series’ departure from the documentary. Whereas Michael’s culpability for his wife’s death remains without a definitive answer at the end of the earlier work, the dramatization all but invites the viewer to draw a conclusion—one decidedly unfavorable to Michael—even as it appears to take pains to remain neutral by showing several different versions for how Kathleen may have died.

All in all, both treatments of Michael and Kathleen Petersons’ story are worth the viewers’ time—albeit after watching both series, one is left with no more clar-

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ity as to what happened on that staircase in North Carolina two decades ago.

Andrew Fletcher is an assistant district attorney at the Harris County District Attorney’s Office.

Getting Away with Bloody Murder: J.B. Brockman, the Best Criminal Lawyer in Texas

By Mike Vance Published by Pelican Publishing Reviewed by Ryan Kent

“I

am a lawyer and... I certainly would not do anything that I would not be justified in doing.”

These reportedly were the words of Jim Mitchell, a newly minted lawyer from Richmond who shot and killed three people outside Houston’s Grand Central Depot in 1894. It’s a story vividly recounted (among many, many others) in local historian Mike Vance’s latest work, Getting Away with Bloody Murder: J.B. Brockman, the Best Criminal Lawyer in Texas.

Admittedly, the context in which the above quotation was uttered—a triple homicide in which the shooter’s target, a constable from Eagle Lake, and two bystanders were killed—was undeniably tragic. Indeed, contemporary Houstonians even took to calling the event “The Triple Tragedy.” But as Vance equips the reader with the full backstory for why a member of the bar may have instigated a gun battle outside a Houston train station, the episode winds up being more farcical than heartbreaking.

Vance fills the pages of Getting Away

Media Reviews

with Bloody Murder with similar such tales, from an erstwhile sheriff’s deputy shooting and killing his friend, a justice of the peace, outside a saloon on Fannin Street after the two had been “drinking for some time” and reminiscing “as old buddies with a buzz are apt to do,” to the saga surrounding the death of William Marsh Rice, namesake of the university, who may have been poisoned by a lawyer looking to profit from a change to Rice’s will, by Rice’s own valet, by both acting in concert, or maybe none of the above.

Death is everywhere you look, and it is Vance’s attention to detail—his thoroughness in presenting the players who feature prominently in these morbid vignettes—that saves Getting Away with Bloody Murder from becoming a grim catalog of turn-of-the-century crimes.

But while murder is the star of the Vance’s show, J.B. Brockman himself often is relegated to a mere cameo. Not always, to be sure, but frequently enough that I found myself wondering when “the best criminal lawyer in Texas” would be making an appearance.

To Vance’s credit, two of the book’s longer chapters are very much about our flawed protagonist. Only a handful of pages after learning that an up-and-coming Brockman placed a classified ad for a nanny with the specification that she be a “white girl to do work for a small family,” we are told of Brockman’s dogged efforts in representing his client, Starky Collins, a Black man accused of murder, which included arguing against the prevailing practice in Harris County of excluding Black jurors. And when that argument failed and Collins was convicted of manslaughter, Brockman succeeded in having the conviction overturned after the appellate court agreed that the county’s

racist practices in jury selection were a bridge too far, even in Texas circa 1900.

From these glimpses into Brockman’s personal and professional life, Vance ably presents the reader with a true antihero: a character we might not always be rooting for, but then neither do we find ourselves rooting

against exactly. And when Vance finally unspools the story of how Brockman’s career was cut short in 1910, it is equal parts shocking and saddening. I won’t spoil too much of the surprise here, but fittingly it involves a former Texas ranger and future chief of Houston’s police department getting away with—what else?—bloody murder.

Ryan Kent is an assistant district attorney at the Harris County District Attorney’s Office.

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