Larry P. Mcdougal of Richmond Powering Payments for The

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140TH PRESIDENT OF THE STATE BAR OF TEXAS LARRY P. MCDOUGAL OF RICHMOND POWERING PAYMENTS FOR THE

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THE OFFICIAL PUBLICATION OF THE STATE BAR OF TEXAS

THE TEXAS BAR JOURNAL

TREY APFFEL EDITOR-IN-CHIEF

LOWELL BROWN PATRICIA BUSA MCCONNICO COMMUNICATIONS DIVISION DIRECTOR MANAGING EDITOR

ADAM FADEREWSKI ERIC QUITUGUA JOHN SIRMAN ASSOCIATE EDITOR ASSISTANT EDITOR TECHNOLOGY EDITOR ANTONIO C. GARCÍA II SUSAN BRENNAN TAMI KNOLL GRAPHIC DESIGNER MARKETING AND OUTREACH MANAGER PRINTING COORDINATOR

STATE BAR OF TEXAS OFFICERS AND DIRECTORS

LARRY P. MCDOUGAL SYLVIA BORUNDA FIRTH RANDALL O. SORRELS JOHN CHARLES “CHARLIE” GINN JERRY C. ALEXANDER PRESIDENT PRESIDENT-ELECT IMMEDIATE PAST PRESIDENT CHAIR OF THE BOARD IMMEDIATE PAST CHAIR OF THE BOARD Richmond El Paso Houston McKinney Dallas

BOARD OF DIRECTORS

BENNY AGOSTO JR. HOUSTON ALISTAIR B. DAWSON HOUSTON YOLANDA CORTÉS MARES TEMPLE JASON C. N. SMITH FORT WORTH JEFFREY W. ALLISON HOUSTON MICHAEL DOKUPIL HOUSTON CARRA MILLER CORPUS CHRISTI DIANE ST. YVES HOUSTON ANDRÉS E. ALMANZÁN EL PASO STEVE FISCHER EL PASO LYDIA ELIZONDO MOUNT McALLEN ANDREW TOLCHIN HOUSTON CHAD BARUCH DALLAS VICTOR A. FLORES PLANO STEPHEN J. NAYLOR FORT WORTH SANTOS VARGAS SAN ANTONIO KATE BIHM CONROE LUCY FORBES HOUSTON JEANINE NOVOSAD RISPOLI WACO G. MICHAEL VASQUEZ AUSTIN REBEKAH STEELY BROOKER DALLAS SHARI GOLDSBERRY TEXAS CITY CARMEN M. ROE HOUSTON AMY WELBORN AUSTIN DAVID N. CALVILLO HOUSTON MARC E. GRAVELY SAN ANTONIO ADAM T. SCHRAMEK AUSTIN JAMES WESTER AMARILLO LUIS M. CARDENAS EDINBURG AUGUST WATKINS HARRIS III AUSTIN MARY L. SCOTT DALLAS KIMBERLY PACK WILSON STEPHENVILLE DEREK COOK MIDLAND BRITNEY E. HARRISON DALLAS DAVID SERGI SAN MARCOS ROBERT D. CRAIN DALLAS WENDY-ADELE HUMPHREY LUBBOCK ALAN E. SIMS CEDAR HILL CHRISTINA M. DAVIS TYLER MICHAEL K. HURST DALLAS D. TODD SMITH AUSTIN

LIAISONS TO THE BOARD

JUDGE LES HATCH LUBBOCK JUSTICE DEBRA H. LEHRMANN AUSTIN JUDGE KEVIN P. YEARY AUSTIN DENISE REID HOGGARD LITTLE ROCK, ARKANSAS JUDGE DAVID S. MORALES CORPUS CHRISTI

SECTION REPRESENTATIVES TO THE BOARD

CARLOS EDUARDO CÁRDENAS EL PASO MATTHEW KOLODOSKI DALLAS KATHRYN J. MURPHY PLANO DEBORAH L. CORDOVA McALLEN EMILY MILLER BROWNWOOD MICHAEL C. SMITH MARSHALL

TEXAS BAR JOURNAL BOARD OF EDITORS

ELIZABETH BRENNER, CHAIR AUSTIN KIMBERLEY GILTNER-GRUBB COPPELL EDWARD TRACY JR. NEWTON BRENT BENOIT, VICE CHAIR HOUSTON MARC E. GRAVELY SAN ANTONIO SANTOS VARGAS SAN ANTONIO MARY H. BARKLEY FORT WORTH CARSON GUY AUSTIN ANDREW WALLACE DALLAS TALMAGE BOSTON DALLAS LARRY HARRISON SUGAR LAND JUDGE BETH E. WATKINS SAN ANTONIO KIRK MICHAEL COOPER EL PASO ANGELICA HERNANDEZ HOUSTON LUCY FORBES HOUSTON JEANINE NOVOSAD RISPOLI WACO

The Texas Bar Journal fulfills its legal obligations by publishing the following: all rules of evidence, rules of post-trial, appellate, and review procedure for criminal cases as promulgated by the Court of Criminal Appeals and rules issued or amended by the Supreme Court of Texas; any public statements, sanctions, and orders of additional education issued by the State Commission on Judicial Conduct; a report of annual performance numbers included in the State Bar Strategic Plan; any auditor’s report regarding the State Bar; statistics regarding participation in State Bar elections; final disposition of all attorney disciplinary proceedings and disciplinary actions; MCLE regulations, forms, modifications, or amendments; proposed disciplinary rules; abstracts of disciplinary appeals issued by the Board of Disciplinary Appeals; internal operating rules and procedures of the Commission for Lawyer Discipline; proposed State Bar Annual Meeting reso- lutions; and names of State Bar president-elect nominees. Statutory Citations: Tex. Govt. Code §§22.108(c); 22.109(c); 33.005; 81.0215(c); 81.023(a); 81.0242(2); 81.0876(b); 81.0878; Texas Rules of Disciplinary Procedure Rules 4.06; 6.04; 6.07; and Texas State Bar Rules Article IV, Section 11; Article VII, Section 3; Article XII, Section 3. Send all correspondence to the Texas Bar Journal at [email protected] or P.O. Box 12487, Austin, Texas 78711-2487. For more information, call 800-204-2222, ext. 1701. Contributions to the Texas Bar Journal are welcomed, but the right is reserved to select material to be published. Publication of any article or statement is not to be deemed an endorsement of the views expressed there in, nor shall publication of any advertisement be considered an endorsement of the product or service involved. For guidelines, go to texasbar.com/submissions. The State Bar of Texas maintains a central headquarters in Austin as a service to its members. Communications may be directed to the State Bar of Texas at texasbar.com or P.O. Box 12487, Austin, Texas 78711-2487, or by calling 800-204-2222, ext. 1463. Texas Bar Journal © 2020 State Bar of Texas Printed in the USA The Texas Bar Journal (ISSN 0040-4187) is published monthly, except a combined July/August issue, by the State Bar of Texas, 1414 Colorado, Austin, Texas 78701, as a service to the profession. One copy of each issue is provided to members as part of their State Bar dues. Subscription price to others, $12 (including sales tax); $15 to foreign countries. Single copies, $2.50 each (including sales tax). Periodicals Postage Paid at Austin, Texas, and at additional mailing offices. POSTMASTER: Send address changes to Texas Bar Journal, P.O. Box 12487, Austin, Texas 78711-2487. Canadian Publication Agreement No. 40778512. Returns to: Station A, P.O. Box 54, Windsor, ON N9A 6J5. Features 450

442 460 479 Leading By Example OPINION Section Reports State Bar of Texas President Larry P. McDougal Recovering From COVID-19 on being prepared for the unexpected. Restoring civil rights and liberties 490 Interview by Patricia Busa McConnico for young people in Texas schools. Texas Supreme Court Order Written by Andrew R. Hairston Fifteenth emergency order regarding the COVID-19 State of Disaster. 444 Logging On/Swearing In 462 The Texas Bar Exam’s top scorer OPINION 491 is inducted into the bar via Zoom. Love (Of the Constitution) Texas Supreme Court Order Interview by Eric Quitugua and Liberty in the Time of COVID-19 Sixteenth emergency order regarding the The role of a lawyer is vigilance. COVID-19 State of Disaster. 446 Written by Elizabeth Brenner 2020 Election Results 492 Texas Supreme Court Order 464 Order delaying effective date of amendments 447 LGBT Equality, Religious Liberty, to Texas Rules of Civil Procedure 116 and Mediated Settlement Agreements and Masterpiece Cakeshop 117 and website for service of process. Don’t put off until tomorrow Issues to consider. what you can do at mediation. Written by Dale Carpenter 493 Written by Scott Baker Texas Supreme Court Order 466 Order amending Texas Rules of Civil 450 Watch Your Tweets Procedure 47, 500.3, 509.2, and 509.6. #SQUADGOALS and Wash Your Hands The power of finding and Digital hygiene for the COVID-19 pandemic. 496 maintaining your group. Written by John G. Browning Texas Supreme Court Order Written by Chasity Wilson Henry Seventeenth emergency order regarding the and Courtney Barksdale Perez COVID-19 State of Disaster. 468 ‘You Have A Voice’ 452 498 Presidential Leadership The Texas Young Lawyers Association president seeks to empower future leaders Texas Supreme Court Order and and Legal Professionalism of the legal profession. Court of Criminal Appeals of Texas Order The ties that bind—part two. Interview by Eric Quitugua Final approval of amendments to Texas Rule Written by Talmage Boston of Evidence 103(c).

470 457 Committee Reports 499 Back to the Future Texas Supreme Court Order Fifty-year lawyers reflect on how the Order amending Rule 11(d) of the rules legal profession has changed since 1970. governing admission to the Bar of Texas.

Texas Bar Journal / July/August 2020 / Vol. 83, No. 7 / texasbar.com/tbj We encourage you to recycle this magazine. Miscellany 434

431 439 504 COMMENTS PODCAST DISCIPLINARY ACTIONS Are Zoom Court Hearings the ‘New Normal’ in Texas? 432 508 EXECUTIVE DIRECTOR’S PAGE An excerpt from the State Bar of Texas Podcast MOVERS AND SHAKERS It’s Past Time to Reckon With Racial Injustice 440 STATE BAR DIRECTOR SPOTLIGHT 510 Written by Trey Apffel Wendy-Adele Humphrey MEMORIALS Interview by Eric Quitugua 434 IN RECESS 514 Anvil and Hammer 441 CLASSIFIEDS A Richmond attorney finds ETHICS QUESTION OF THE MONTH comfort in the heat of the forge. 517 Interview by Adam Faderewski 500 NEWS FROM AROUND THE BAR ETHICS OPINION 688 436 518 PRESIDENT’S PAGE ATJ PRO BONO CHAMPION Plans for a New Bar Year 502 TYLA PRESIDENT’S PAGE Richard Danysh Written by Larry McDougal Inspiring Our Future Leaders Interview by Eric Quitugua Written by Britney Harrison 438 TECHNOLOGY Can Application Programming Interfaces 503 Be Protected Under Copyright Law? SOLO/SMALL FIRM U.S. Supreme Court to decide whether Manage Your Time, Manage Your Life APIs are copyright protectible. Useful tips for inside and outside the office. Written by Peggy Keene Written by Ruby L. Powers

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Tell us what you think via @statebaroftexas, [email protected], or P.O. Box 12487, Austin, TX 78711-2487. Letters addressed to the Texas Bar Journal may be edited for clarity and length and become the property of the magazine, which owns all rights to their use.

MAY 2020 COVID-19 has made every professional on Earth, including Texas attorneys, accommodate new realities and restrictions. Undoubtedly the State Bar of Texas will be offering far less to its members than before. Membership fees should reflect this new reality. Please reduce your annual fees. By how much? In accordance to the reduction of services, of course.

Also, please consider restructuring your fee structure to reflect not the years that a lawyer has been practicing, but the size of the firm. I can give you plenty of reasons why this would be a more equitable structure, and will do so if asked, but I will respect your intelligence and assume that you can figure this out yourself.

I invite your questions, but I prefer your acquiescence.

Oscar GOnzalez Allen

EDITOR’S RESPONSE: The State Bar of Texas has remained fully operational during the COVID-19 pandemic, with the exception of in-person meetings. The State Bar has not reduced services and, by remaining fully operational, is following the directive of Gov. Greg Abbott that all state agencies continue providing essential services. State Bar leadership always welcomes innovative ideas. Thank you for your comments.

ON SOCIAL MEDIA “LAW IN A TIME OF PANDEMIC,” JUNE 2020, P. 384 Super interesting article in @statebaroftexas Journal about the 1918 pandemic. Proud to see the @SCOTXHistSocy well-represented!

JUDGe eMIlY MIsKel (@eMIlYMIsKel) on Twitter

DAILY NEWS BRIEFING

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texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 431 execuTive direcTor’s pAge

Trey Apffel can be reached at 512-427-1500, [email protected], or @ApffelT on Twitter. It’s Past Time to RECKON WITH RACIAL INJUSTICE

EvEr sincE thE MEMorial Day killing of houston’s gEorgE floyD in the custody of Minneapolis police and the ensuing protests across the country, our nation has been called anew to wrestle with its shameful history of violence against and mistreatment of black Americans and other people of color. It is past time that we truly reckon with these issues if we are to move forward together toward a better future and a more perfect union. Some moments call for people of conscience to take a stand. These moments transcend politics and challenge us to unite in our shared humanity. I believe this is one of those moments. In that spirit, I joined 2019-2020 State Bar of Texas President Randy Sorrels in issuing a statement on June 9 reinforcing the State Bar’s commitment to the rule of law, including the constitutional rights of free speech and peaceful protest and the principle that all people are entitled to equal justice under law. We, as lawyers, take an oath to defend the constitutions of this state and of the United States. That is what makes our profession different from any other. We must always work to do better in all we do, not only as lawyers, but more importantly as people. We must always listen. We must always see. We must always learn. We must always grow. And we must always acknowledge. Our voices, and indeed our courage, will be needed in the days and weeks ahead as our state and nation form solutions. Here are a few ways you can help right now:

• Get involved with the State Bar’s ongoing access to justice efforts at probonotexas.org and diversity and inclusion programs at texasbar.com/minorityaffairs. • Volunteer to help people with legal needs related to the coronavirus pandemic at probonotexas.org/covid. Research has indicated the pandemic is disproportionately affecting communities of color. • Let us know your thoughts on additional actions the State Bar of Texas can take consistent with its statutory purposes by contacting us at texasbar.com/contactus.

State Bar Lawsuit Update On May 29, Judge Lee Yeakel, of the U.S. District Court for the Western District of Texas, granted the State Bar’s cross-motion for summary judgment in McDonald v. Sorrels, in which three lawyers sued the State Bar, challenging the requirement that they join the State Bar and pay mandatory dues in order to practice law. The plaintiffs have appealed to the U.S. Court of Appeals for the 5th Circuit. “We are very pleased with Judge Yeakel’s measured and thoughtful decision. Almost six decades of U.S. Supreme Court precedent supports the constitutionality of the unified bar structure,” President Sorrels said in a statement. “This is reinforced by the recent decisions of the court to deny the plaintiffs’ petitions for certiorari in Fleck v. Wetch and Jarchow v. State Bar of Wisconsin challenging mandatory membership in the state bars of North Dakota and Wisconsin. The State Bar of Texas is carrying out its statutory obligations by regulating the legal profession and improving the quality of legal services in Texas.”

TBJ Redesign You may have noticed a subtle redesign when you received your June issue of the Texas Bar Journal. Working with the Texas Bar Journal Board of Editors, we made the design cleaner and more modern with easier-to-read fonts, an open and inviting look achieved by adding more white space, and a new logo. The logo—emphasizing the initials TBJ—reflects what many people already called the Texas Bar Journal and reinforces the brand in the digital space. (The website is texasbar.com/tbj and the digital magazine edition is at texasbar.com/digitaltbj.) While the Journal’s design has changed, it continues to feature all the content our readers have come to know and enjoy. Let us know what you think at my email address above.

Sincerely, TREY APFFEL Executive Director, State Bar of Texas Editor-in-Chief, Texas Bar Journal

432 Texas Bar Journal • July/August 2020 texasbar.com Are you reaping all the benefits of your membership? The Texas Bar Private Insurance Exchange offers a broad level of benefits choices, from Health Coverage and Dental Insurance to Disability and Term Life. You and your firm have access to concierge-level support, unique cost-savings opportunities, and convenient enrollment technology — designed exclusively for bar members and their staff and dependents.

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Anvil and Hammer interview by AdAm FAderewski A richmond attorney finds comfort in the heat of the forge.

By dAy Al clArk finds himsElf on the forefront of new technology as an associate of Patterson + Sheridan in Houston, nailing down the details on foreign and domestic patents related to semiconductors, flat-panel displays, and LED and LCD screens. Away from the office, Clark practices something much more old-fashioned—blacksmithing. With a background in metalworking, he finds solace in hammering out details of another nature—creating objects that may have a cutting edge and certainly existed well before computers.

ABOVE: Al Clark at his home forge in richmond and just a few of his projects, including candelabras and depictions of Kokopelli. PHOtOS COUrteSy OF AL CLArK

434 Texas Bar Journal • July/August 2020 texasbar.com IN RECESS

hOW lOng hAVE yOu BEEn dOing mEtAlWOrk? sometimes an oxy-acetylene torch. I have two anvils: one is 237 I was raised on cattle ranches most of my life, and when I was pounds and the other is about 100 pounds. I use the heavier one most about 13 or 14, I got an old, long-neglected, engine-driven Lincoln often since more mass is better. welding machine and began playing with it. Initially I taught myself to weld, cut metal, and fabricate small items. I was building and repairing WhAt’s thE stAndArd prOcEss fOr dOing mEtAlWOrk? things for ranchers within about a year. One of the ranchers I did This depends on what is being made and the materials used. For some work for told a local welding shop owner about me, and I hired decorative pieces using mild steel, all you do is basically heat and beat. on with that shop in my junior year of high school, learning proper Then the piece is cleaned and painted or finished with something that welding procedures and advanced fabrication techniques. I worked will protect it from the atmosphere. For useful items using tool-grade there for about five or six years while also running a steels, there are many processes involved, such as small mobile welding service on the weekends. annealing, tempering, and normalizing. Annealing will effectively soften the steel to allow easier WhEn yOu WErE A WEldEr WAs thE ArtWOrk A workability. Tempering will harden the steel, which sidE ActiVity Or WAs it AlsO pArt Of yOur makes a knife keep an edge, for example. WOrk? WhErE did yOu lEArn hOW tO dO Normalizing is used to make the grain size more mEtAlWOrk And hOW lOng did it tAkE yOu tO uniform and relieve stresses in the metal. lEArn thE tEchniquEs inVOlVEd? I cannot remember when I made the first thing WhAt is thE AVErAgE timE fOr A piEcE tO BE that could be considered “artwork” or what it was. crEAtEd frOm stArt tO finish? However, any item I make that could be considered This again depends on what is being made. A art was, and is, at the moment, a side activity. Any knife could take up to two to three days while a shop I worked in or ran was some combination of small candelabra could take a few hours. repair work, fabrication, and production work. While some of my repair/fabrication work could be is this lArgEly A pErsOnAl EndEAVOr Or dO considered “art” by some in the way it looked or yOu dO cOmmissiOn WOrk As WEll? performed, I never was employed by a metal artist. I A little of both. I make some things for friends have, however, collaborated with a few farriers over and family but also do custom work for people. I the years who are much more skilled in have made custom furniture such as table frames, blacksmithing techniques than I am. One in headboards for beds, mirror and picture frames, particular who became a good friend taught me large candelabras, as well as other pieces for many basic and intermediate skills and some more customers. I also make things for fundraisers. My advanced techniques that I have yet to master. oldest daughter recently got into candle making, Welding and cutting metal requires lots of heat, and I make small pieces that we sell along with her which makes the metal you are working with candles in occasional farmers markets. extremely malleable, almost as if it is begging you to form it into something. Imagination then kicks Any upcOming prOjEcts yOu’d likE tO tAlk in—a bend here and a few hammer blows there— ABOVE: Al Clark forges works like ABOut? and a one-of-a-kind piece is born. I tend to center this cowboy lassoing a bull and this I am constantly trying to create things that I my “art” on useful articles as opposed to more candelabra. PHOTOS COURTESY OF have never seen before as well as combine different abstract items (although I have created and sold a few AL CLARK materials in uncommon ways. I am currently abstract pieces). Items such as candleholders, furniture pieces, cutlery experimenting with glass and iron pieces where the glass comes from and other utensils, and wood and metalworking tools are my favorite empty wine and liquor bottles. It is just experimental now and may things to make. never yield a sellable item, but it is fun to me. Additionally, I love experimenting with various materials by combining classical

WhAt ArE thE typicAl mAtEriAls yOu usE in yOur crEAtiOns And techniques with more modern techniques. WhErE dO yOu gEt thEm? I use any metal from common mild steel (new or scrap) to copper, WhAt lEd yOu tO thE lAW AftEr stArting Off in mEtAlWOrk? stainless steel, brass, and titanium. I use good tool-grade steels for It is a long story, but prior to law school, I was a production useful items such as knives, punches, and chisels. Mild steels are manager for a medium-sized steel fabrication company. I was looking typically the least expensive commercially available steel and differ for a change, and a lateral move in that position is nearly impossible. from tool-grade steels based on the carbon content (tool-grade steels My spouse mentioned taking the LSAT and enrolling in law school as have a higher carbon content that enables hardening and greater my brother is an attorney and my dad is a district judge here in Texas. strength). For the mild steels, I use commercial suppliers or scrapyards. I took her advice and the rest is history. For the better grades, I typically use old truck springs, broken tools, or wrenches that people have given to me over the years. Using old steel dOEs BEing An AttOrnEy hElp tO finAncE yOur WOrk? dOEs BlAcksmithing hElp yOu BlOW Off sOmE stEAm At thE End Of items and broken tools is very satisfying as they get a new life. thE dAy/WEEk? Yes and yes. Although I pick up some commission work, practicing WhAt ArE thE stAndArd tOOls Of thE trAdE? law definitely pays the bills. Also, beating iron definitely relieves some The most basic tools are an anvil, a hammer, and a heat source. I stress. My spouse tells everyone that metalwork is my therapy, and she currently use a gas-fired forge as well as a coal forge for heating and is correct. TBJ texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 435 president’s page

Larry McDougal can be reached by email at [email protected].

Plans for a NEW BAR YEAR A new bAr yeAr is underwAy, and the State Bar of Texas is redoubling its efforts to help lawyers and all Texans as we work together to solve challenges and ease burdens brought by the coronavirus pandemic and the economic problems and civil unrest on display across our state. Our leadership team is firmly committed to addressing the problems that lawyers and the public are facing in a world where so much has changed so rapidly. During my year as president, the State Bar will tackle a variety of issues, including the continued effects of the COVID-19 pandemic and the crisis of lawyer suicides. Among other priorities, we are also taking steps to further improve member benefits, including tools for lawyer succession planning, even as we work toward calling the first election on disciplinary rule changes since 2011.

Continued COVID-19 Response The State Bar continues to work with the Texas Supreme Court, Office of Court Administration, legal aid groups, local and specialty bars, and other stakeholders to respond to the COVID-19 crisis. This is an ongoing effort, so there will be more to report in the coming weeks and months.

Attorney Well-Being/Suicide Prevention Lawyers are consistently at or near the top of the list of all professionals in suicide rates. Working through the Texas Lawyers’ Assistance Program, we will seek to reduce the number of attorney suicides and increase the well-being and fitness of Texas lawyers and law students by educating them about the symptoms of depression and suicide and how to prevent or address these conditions.

Enhanced Member Benefits The State Bar’s 2020-2021 budget focuses on investing in information technology infrastructure and improving services to members. The budget added resources to programs that provide concrete services to Texas lawyers—including member benefits, law practice management, and TLAP— without a dues increase and while maintaining the long-term goal of keeping three months of operating expenditures in reserves. Of course, the State Bar leadership continues to study the financial impact of the COVID-19 pandemic on bar finances and will make adjustments as needed.

Succession Planning Initiative For client protection and emergency management, the State Bar urges members to evaluate contingency plans and designate in advance a custodian attorney. As a member benefit, the bar recently launched a portal at texasbar.com/succession that makes it easy for Texas lawyers to designate custodians. We will continue to promote the portal and other succession planning resources in the upcoming year.

2021 Rules Vote In 2017, the Legislature created the Committee on Disciplinary Rules and Referenda to oversee the initial process for proposing a disciplinary rule change while maximizing public feedback. The committee’s recommendations go to the State Bar Board of Directors as part of a process that ultimately includes a rules vote by the membership and adoption or rejection by the Texas Supreme Court. The State Bar board continues to review possible changes to the disciplinary rules in advance of a potential vote by the membership in 2021. You will be hearing much more about this effort soon.

Additional Priorities My priorities also include continuing to advocate for grievance reform as well as a statewide courthouse access badge for Texas lawyers. I have also called for moving the State Bar Ethics Helpline out of the Office of Chief Disciplinary Counsel so lawyers can be assured the helpline is independent from the grievance system. I’m pleased to say that Executive Director Trey Apffel and Chief Disciplinary Counsel Seana Willing have indicated they are working to make that change to the helpline. I look forward to working with you over the next year. I welcome your ideas and comments on how the State Bar can best fulfill its mission.

LARRY McDOUGAL President, 2020-2021 State Bar of Texas

436 Texas Bar Journal • July/August 2020 texasbar.com State Bar President-elect Nominee and Petition Information

The State Bar Board of Directors is soliciting candidates for the 2021 president-elect race. State Bar rules stipulate that all potential candidates for 2021 president-elect shall come from metropolitan counties of the state (Bexar, Dallas, Harris, Tarrant, and Travis). Any member of the State Bar who meets the eligibility requirements for officers set forth in the State Bar Act and the State Bar rules is eligible for nomination for president-elect. The board of directors policy manual describes the criteria for selecting nominees. The board will consider potential nominees’ involvement as a member of the board or in State Bar committee work, knowledge of State Bar operations, participation in local and specialty bar associations, and other activities demonstrating leadership ability and sincere interest and competence in dealing with issues concerning the State Bar of Texas. Potential nominees should submit a resume and a statement of their views on the key issues facing the bar, the role they would play in dealing with those issues, and what they would seek to accomplish during their tenure as president, all within the overall strategic plan of the State Bar.

Any other qualified member shall also be privileged to stand for election to that office as a candidate when a written petition, in a form prescribed by the board and signed by no less than five percent of the active members of the State Bar who are in good standing, is filed by or on behalf of such member with the executive director on or before March 1 preceding the election for the ensuing organizational year and such petition is certified by the executive director. State Bar rules state that a petition signature is invalid if it is not dated or the signer signed the petition before September 1 of the year before the election. The board’s Nominations and Elections Subcommittee is accepting names of and background information for potential candidates. Please write the subcommittee to recommend potential candidates. c/o Jerry C. Alexander and Randall O. Sorrels, Nominations and Elections Subcommittee Co-Chairs P. O. Box 12487 Austin, TX 78711-2487 [email protected]

Anyone submitting a name for consideration should first obtain that person’s consent. technology

that they have made changes or created Can their own language to interact with the established APIs, owners of the APIs in APPLICATION question could argue that these changes constituted mere translation, which is PROGRAMMING INTERFACES not a defense under copyright law. And ironically, Oracle itself offers its own BE PROTECTED reimplementation of Amazon’s S3 API. While experts in the field note that UNDER COPYRIGHT LAW? there are limits and successful partial reimplementation of APIs that would U.S. SUpreme CoUrt to deCide whether not rise to the level of the infringement ApiS Are Copyright proteCtible. claimed at hand, the line of demarcation in unclear. A win for Oracle could make it so that specific companies with written by Peggy Keene popular, established APIs could hold these particular APIs hostage by pricing them at exorbitant prices for licensing.

ThE U.S. SUPrEmE CoUrT is scheduled to Reimplantation of APIs and Takeaways Regarding hear an incredibly important case Copyright Law Have Not Been Reimplantation of APIs between Oracle and Google regarding an Issue in the Past and Copyright Law whether application programming Google and experts in the field alike The outcome of the Oracle case interfaces, or APIs, can be protected argue that reimplantation of APIs is against Google will result in important under copyright law. In the case at common in the technology industry. For copyright law precedent regarding APIs. hand, Oracle has accused Google of example, it is common knowledge that Should the Supreme Court side with copying the API of Oracle’s Java programmers that seek to interact with Oracle, allowing an API to be protected programming language. For those specific platforms or operating systems under copyright law could: unfamiliar with the terminology, an must be well-versed in that specific “application programming interface” is coding language. Take as another • make the reimplantation or basically the coding language that a example Amazon’s API that controls its creation of compatible languages computer relies on to execute tasks. In data storage platform, S3. To store or specific to established APIs other words, an API is the language that retrieve files from Amazon’s cloud prohibitively expensive for smaller a computer relies on to know what to services, the programmer must be companies; do. Each API houses its own defined familiar with the commands, vocabulary, terms and vocabulary that includes and grammatical structures specific to • have a chilling effect on the named commands organized by S3. And as such, to compete with technology industry by grammatical structures that designate Amazon’s cloud services, competitors discouraging competition and how the commands will be executed. To often “reimplement” Amazon’s S3 API. innovation in the API field; and execute or perform specific tasks using Thus, if Oracle convinces the Java, a programmer must know “how to Supreme Court that the Java API is • pass the costs of all of this down to code in Java.” In other words, the protectable under copyright, this end-users and consumers. TBJ programmer must know the predefined precedent would mean that competitors terms, commands, and specific that reimplement other APIs, like in the This article was originally published on the grammatical structures unique to Java. aforementioned S3 example, would be Klemchuk Intellectual Property Trends blog and Oracle claims that the alleged similarly guilty of copyright infringement. has been edited and reprinted with permission. copyright infringement occurred when Google copied the Java API commands When Does API Reimplantation wholesale in order to encourage Rise to Level of Copyright PEGGY KEENE programmers fluent in Java to program Infringement? is counsel to Klemchuk on Google’s Android operating system. A further wrinkle is added to the case and focuses on internet law, particularly e-commerce, Oracle claims that Google knowingly because copyright law itself prohibits consumer digital privacy, reimplemented Java to entice the mere translation of a protected work e-sports, and video game programmers that were well-versed in into another language. If the Supreme law. She has also counseled clients in trademark portfolio management Java into bringing their software and Court sides with Oracle, there is the and served as in-house counsel in the expertise to Google. potential that even if competitors argue telecommunications industry.

438 Texas Bar Journal • July/August 2020 texasbar.com podcast

The State Bar of Texas Podcast is produced with the Legal Talk Network. To listen, go to texasbar.com/podcast.

dhir: Aside from Zoom, are there other Are Zoom Court Hearings technology tools or even non- technology tools that the courts are THE ‘NEW NORMAL’ IN TEXAS? using to adapt to this new normal? an excerpt from the state bar of texas podcast Slayton: Our platform allows people to appear by telephone, so we have folks who don’t have maybe the same level of access to technology who are still able to aS courthouSeS cloSed in March and appear that way. Think about it, when Texans started sheltering in place to everybody is remote, how do you deal avoid the coronavirus outbreak, the with evidence, which used to be handed Office of Court Administration was over in the courtroom? And so the courts busy rolling out videoconference have learned how to be able to get the technology to judges across the state. evidence, whether that’s through having Seemingly overnight, proceedings were the parties or attorneys email it to them being held using Zoom with livestreams in advance or upload it to a Dropbox or on YouTube as the judiciary worked to Google Drive or Box or one of those types maintain public access to the courts of technologies. Those have all been used. while keeping participants safely apart. Less than six weeks after the Zoom And then the other one, probably one rollout on March 24, Texas courts had of the most interesting ones, I think, conducted more than 40,000 remote and quite frankly more difficult for hearings with over 180,000 participants, COVID-19 crisis will be part of post- judges to get used to, is the public has a said David Slayton, administrative pandemic life. To hear the full episode, right to observe court proceedings and director of the Office of Court go to texasbar.com/podcast. almost every type of proceeding. So Administration. “We have … over 60,000 whenever you’re doing everything hours of [remote] hearings,” Slayton said Slayton: After June 1, we’re still going remotely or the judge is in the on the May episode of the State Bar of to be seeing remote proceedings being courtroom, everybody is remote but no Texas Podcast. “It’s really just remarkable.” used that way. But even long term, I member of the public can come to the Host Rocky Dhir spoke with Slayton think we could see some courts using courthouse, then we have to provide a soon after his office announced these types of remote proceedings, way for the public to watch it. And so guidance for Texas courts to begin because I think the judges, the attorneys, we’ve been streaming our court resuming nonessential, in-person the litigants, everyone has really seen the proceedings live on YouTube so the hearings starting June 1. In this podcast value … at least in some cases and some public has had a view into the excerpt, Slayton discusses whether matters, in being able to do that courthouse that they probably never had technology rolled out during the remotely. So I think it’s here to stay. before. It is really real court TV. TBJ

YOUR MESSAGE HERE!

Contact Susan Brennan at 512-427-1523 or [email protected]

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 439 state bar director spotlight

I grew up around hIghly successful lawyers. My father has been a plaintiffs’ lawyer since 1961, and when I was young, he tried cases with both Gerry Spence and Joe Jamail. So, from a young age, I was exposed to the legal profession and was in awe of lawyers who sought truth and justice. I also had an interest in education, so I earned my M.Ed. in curriculum and instruction before I attended law school. I was Wendy-Adele a partner in a plaintiffs’ firm in Amarillo before joining the faculty at Texas Tech Law in 2007. Now, I have the quintessential career that HUMPHREY combines my interest in education with my love of the law. I have been passIonate about servIce sInce I was a young gIrl, hometown: Lubbock posItIon: AssocIAte deAn And Professor so followIng suIt, I wanted to become Involved In the state of LAw At texAs tech unIversIty schooL of LAw board member: bar of texas from day one as a lawyer. I jumped right in and At-LArge dIrector sInce 2018 quickly became involved in the local young lawyers association and the Texas Young Lawyers Association. From there, I catapulted into other

IntervIew by erIc QuItugua leadership roles at the local, state, and national levels. It’s gratifying to Photo by ashley rodgers give back to our profession.

over the years, I have been Involved In the state bar of texas In a varIety of ways such as serving on the Texas Board of Disciplinary Appeals and serving on the Law Focused Education, Inc. Board of Directors. I also served on the Local Bar Services Committee and the Texas Minority Counsel Program Steering Committee. The next logical step for me was the State Bar of Texas Board of Directors. I applied for an at-large director position, and luckily, then-President Tom Vick appointed me to the board. I will forever be grateful for this opportunity to serve the State Bar of Texas.

state bar leadershIp needs to understand the chIef Issues that are Important to ALL members. To accomplish this salient goal, directors must be engaged with all their constituents and listen to them with the intent to understand. Active engagement—and meaningful connections—with our membership is the most constructive way to continue identifying issues and seeking solutions so that our bar remains the preeminent bar association in the nation.

the state bar has a genuIne desIre to provIde servIces and resources that benefIt all texas lawyers. In the past, I might have said the Texas Lawyers’ Assistance Program is a little-known way the bar helps its members, but our membership increasingly has become more aware of this valuable resource. Now, I think members may not be fully aware of some benefits such as the insurance exchange (and complimentary products), free access to Fastcase and Casemaker, CLE scholarships, and a plethora of discounts. We are continuing to get the word out so members know all the ways in which the State Bar serves it members. Please help us spread the word.

I encourage all texas lawyers to pay closer attentIon to what the state bar Is doIng. What issues are being tackled? What ideas are being floated? What benefits/resources are provided (or should be provided)? Sometimes, Texas lawyers do not realize that the State Bar has already identified an issue, explored solutions, and implemented positive change. Additionally, we want Texas lawyers to get involved— join a committee or section, attend a State Bar-sponsored CLE, or simply talk to bar leaders to relay ideas.

our state bar does a tremendous job of seekIng solutIons to benefIt Its members and the publIc. But as with any organization, room for improvement always exists. We must continue to be responsive to the changing needs of Texas lawyers—succession planning, technology, and issues related to well-being. If you have any ideas, please reach out. TBJ

440 Texas Bar Journal • July/August 2020 texasbar.com ethics question of the month

This content is generated by the Texas Center for Legal Ethics and is for informational purposes only. Look for the detailed analysis behind the answers at legalethicstexas.com. Let’s MAKE A DEAL

AttoRNEyS JERRy ANd JANiNE ARE AttEmptiNg to SEttlE A diSputE between their respective clients. Jerry’s client, ABC Custom Parts, supplies electronic components for goods produced by Janine’s client, XYZ Manufacturing. The dispute involves a large shipment of parts sold to XYZ by ABC that were defective, preventing XYZ from filling some orders.

Janine has approached Jerry to work out a solution because, if they go to court, the litigation costs and business disruptions could be substantial for both parties. She suggests a deal: (1) ABC ramps up production to quickly remedy the backlog issue, and (2) ABC provides a discount on several future shipments to cover XYZ’s damages.

Jerry suspects that he has some negotiating leverage because XYZ will experience more significant delays if it has to locate a new supplier and wait for them to reconfigure their facility. He also knows that XYZ has a reputation for avoiding litigation and believes that they are especially eager to avoid it here. He wants to use his perceived advantage to force Janine to agree to a quick settlement on favorable terms to his client.

During the course of his settlement discussions with Janine, Jerry makes the following representations, none of which are accurate:

1. Jerry’s client cannot accept any discount over $10,000; Jerry’s client specifically authorized him to offer a discount up to $17,500. 2. An employee of ABC, Carl, will testify that the defect in ABC’s shipment was due to a mistake made by an XYZ employee who provided the wrong specifications; Jerry knows this is not true. 3. Carl is an excellent witness; Jerry knows from experience that Carl is a terrible witness. 4. Our clients’ dispute needs to get settled quickly because ABC is now negotiating with another potential customer and, if they reach a deal, ABC will not have the capacity to do any more work for XYZ; Jerry knows ABC has the capacity to accommodate the new customer and XYZ. 5. Jerry’s reading of the applicable precedents suggests that XYZ’s damages are far less than Janine says they are; Jerry knows Janine’s assessment of damages is probably accurate.

Under the Texas Disciplinary Rules of Professional Conduct, which is most accurate?

A. All of Jerry’s comments are improper because the rules state that a lawyer shall not “make a false statement of material fact or law to a third person” or “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” B. All of Jerry’s comments are proper because the rules permit “puffing” by an attorney when negotiating with opposing counsel. C. 2 is improper, but the rest are not. D. 2 and 4 are improper, but the rest are not. E. 2, 4, and 5 are improper, but the rest are not. F. 1 is proper, but the rest are improper.

ABOUT THE CENTER The Texas Center for Legal Ethics was created by three former chief justices of the Supreme Court of Texas to educate lawyers about ethics and professionalism. Lawyers can access the Texas Disciplinary Rules of Professional Conduct, the Texas Lawyer’s Creed, and a variety of other online ethics resources by computer or smart device at legalethicstexas.com. DISCLAIMER The information contained in Ethics Question of the Month is intended to illustrate an ethics issue of general interest in the Texas legal community; it is not intended to provide ethics advice that applies regardless of particular facts. For specific legal ethics advice, readers are urged to consult the Texas Disciplinary Rules of Professional Conduct (including the official comments) and other authorities and/or a qualified legal ethics adviser.

ANSWER: Much has been written regarding the tension between Rules 4.01 and 8.04(a)(3) on the one hand—quoted in answer A above—and Comment 1 to Rule 4.01, which states that “under generally accepted conventions in negotiation,” certain statements of “opinion or conjecture” may be regarded as “negotiating positions.” Although commentators often disagree with one another—and some readers may disagree as well—the expert consensus is generally that making a false and material factual statement is not permitted, while subjective opinions about the strength of the case or the amount the client will be willing to pay are an acceptable part of the negotiation process. Jerry’s representations in 1, 3, and 5 fall into the latter category, while 2 and 4 do not because they are disprovable factual assertions. The best answer is D. For a more in-depth discussion, to legalethicstexas.com. texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 441 LEADING BY EXAMPLE State Bar of Texas President Larry P. McDougal on being prepared for the unexpected.

interview by PATRICIA BUSA MCCONNICO

Larry P. McDougal always wanted to be a Marine like his father. The Tyler native grew up in a loving-yet-modest home in El Campo, a small town about 75 miles southwest of Houston, where he remembers getting their first window unit air conditioner. His dad, who was a veteran of Guadalcanal, Bougainville, and Leyte, had a strong work ethic that he passed on to his only child. McDougal thought of him as a hero, his hero. But when McDougal told his father that he wanted to follow in his footsteps and go into the military, the elder flat out said no. “He said he lived through hell so that I would not have to,” McDougal recalled. The compromise? McDougal would become a police officer. And so in 1977, McDougal became a deputy sheriff at 19, which was the minimum age requirement at the time. He attended the Houston Police Department K-9 Handler Academy and enjoyed having a partner he considered man’s best friend. One night McDougal’s K-9 partner saved his life as they were about to walk into an ambush.

442 Texas Bar Journal • July/August 2020 texasbar.com McDougal also attended the Houston Police Department SWAT making it profitable. The reward is the freedom of taking only Basic & Advanced program, where he worked on his negotiation the cases you want. It has also allowed me to take time off to skills and was trained to always be prepared for the unexpected. be with family. While working his way through college at the University of Houston as a police officer, McDougal was pulled aside one day YOU HAVE A HISTORY OF GIVING BACK TO THE COMMUNITY. WHY ARE YOU SO PASSIONATE ABOUT HELPING OTHERS IN YOUR by one of his professors, who convinced him to take the LSAT. COMMUNITY AND HOW DO YOU MOTIVATE OTHERS TO DO THE He began taking classes at South Texas College of Law that next SAME? spring. McDougal set goals and made sacrifices to meet them— Giving back is just something my parents engrained in me. I working, attending school, and studying. His determination and am not sure how you motivate others to do the same other than diligence paid off, and he landed a position with the Harris leading by example. All three of my daughters are schoolteachers County District Attorney’s Office, where he discovered what and practice leading by example in everything they do. happens with criminal cases after an arrest. During that time he YOUR STAFF HAS BEEN WORKING FROM THEIR HOMES SINCE MID- also worked as a criminal investigator, responding to several crime MARCH TO ENSURE THE SAFETY OF YOUR EMPLOYEES AND THE scenes, only now through the eyes of a prosecutor. McDougal COMMUNITY DURING COVID-19. HOW HAVE YOU HELPED GET THE eventually realized he wanted to hang his own shingle and started FIRM ADAPTED TO WORKING REMOTELY DURING THE PANDEMIC? WHAT PIECE OF ADVICE WOULD YOU GIVE TO OTHERS TO BE his own practice in Richmond with a focus on family law, PREPARED IN THE EVENT SOMETHING LIKE THIS HAPPENS AGAIN? criminal defense, and personal injury, helping all manner of Our firm consists of three attorneys and four licensed clients from juveniles to police unions and associations. His son paralegals. We decided that the personal safety of our staff was began working with him during college and law school, which our number one priority, so we closed the office and had brought them even closer together. Now they work together, everyone work from home. We invested in software that trying cases, helping people, and building a special father-son allowed us to access client files remotely. We set up a rotating bond like the one McDougal treasured with his own dad. system so we all took turns answering the phones. We stayed On June 26, 2020, McDougal was sworn in as president of in constant communication with each other through group the State Bar of Texas at the bar’s first-ever virtual annual meeting. chats, and the attorneys assigned work to the staff as if we McDougal recently talked with the Texas Bar Journal about were all in the office. Our clients’ access to us never changed. his career, making good choices, and practicing law during The problem became getting in touch with judges and court COVID-19. staff. The only real advice I can give is to plan ahead. We saw this coming in early January and started preparing early. WHO IS YOUR LEGAL ROLE MODEL OR MENTOR AND WHAT IMPRESSES YOU MOST ABOUT HIM OR HER? WHAT AREAS WILL YOU BE FOCUSING ON THIS YEAR AS STATE BAR Judge R.H. “Sandy” Bielstein. Sandy was a 3L when I was PRESIDENT? a 1L at South Texas College of Law. We were both police Several of the past presidents have told me that the year you officers, but he was a lieutenant in homicide. When I left the plan for is not the year you get. COVID-19 has certainly proven Harris County District Attorney’s Office, he was right there that to be true. We are watching the practice of law change before waiting on me. He helped me start my practice and was our very eyes and in ways many of us have never imagined. We available to me 24/7. Later when he became a judge, he must focus on keeping our State Bar strong and protecting and always gave me insight on what the judges wanted and the helping the lawyers through this crisis. My priorities also include mistakes he made as a lawyer. As a judge, he had an open- continuing to advocate for grievance reform as well as a statewide door policy and was always willing to help any lawyer with courthouse access badge for Texas lawyers. any problem, professional or personal. IF YOU COULD TRY A CASE WITH ANY LAWYER (DEAD OR ALIVE), WHO WOULD IT BE AND WHY? WHAT PROMPTED YOU TO GO INTO CRIMINAL LAW? WHAT DO YOU LIKE MOST ABOUT YOUR PRACTICE AREA AND WHY? That has already come true for me. My son is my law Having been a police officer and Harris County assistant partner and we try all our cases together. district attorney, the practice of criminal law chose me. Most of my clients are good people who just made a bad decision, WHAT DO YOU THINK THE LEGAL PROFESSION WILL LOOK LIKE 50 YEARS FROM NOW? and I enjoy helping them get their lives back. Yet there are I honestly have no idea. I suspect that in the next year we will those cases where you believe that your client was wrongly see the practice change more than it has in the past 50 years. accused. Those are the ones that keep me awake at night. NAME YOUR THREE ABSOLUTE FAVORITE THINGS TO DO ON THE WHAT LESSON OR EXPERIENCE HAS MOST IMPACTED THE WAY YOU WEEKEND. PRACTICE? I love to fly. I call it therapy with Dr. Cessna. While flying, I always try to look at things from my clients’ perspective. the only thing I am thinking about is flying the plane. I love When they show up at a criminal defense lawyer’s office, they spending time outdoors, whether it is hunting, fishing, are usually near hitting rock bottom. working the land on a tractor, or just playing with the cows. Most of all I just love spending time with my wife of 42 years. WHAT IS THE BIGGEST CHALLENGE AND WHAT IS THE BIGGEST REWARD OF WORKING IN A SMALL FIRM? We are into Jeeps, and we like driving on the beach at night, The biggest challenge was getting the firm started and building a campfire and just listening to the waves. TBJ

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 443 attorneys, who’ve recently passed the Texas Bar Exam, look on, ready to be sworn in by the chief justice of the Supreme Court. But in response to the COVID-19 pandemic, that ceremony was canceled. Instead of a 16,000-plus capacity arena, the venue for many inductions was home. Attorneys were given the option to be sworn in remotely by an authorized person—a judge, retired judge, clerk, or notary— before or after receiving their law license from the State Bar of Texas in the mail. Case Towslee, a recent graduate of South Texas College of Law Houston and the bar exam’s top scorer, spoke with the Texas Bar Journal about his experience earning the top honor and being sworn in by Justice Brett Busby via Zoom.

WHEN YOU PASSED THE TEXAS BAR EXAM, DID YOU ALREADY HAVE A JOB LINED UP? Yes, I was offered a job with Locke Lord last July when I completed the summer associate program. I accepted the job offer on the spot because of the firm’s great culture and the relationships I developed during my time there. The firm was a great fit for me because of the quality of work and the firm’s commitment to supporting young Logging On/Swearing In attorneys and their families. HOW DID YOU CONNECT WITH THEM? I initially connected with the firm The Texas Bar Exam’s top scorer is through the on-campus interview program at South Texas College of inducted into the bar via Zoom. Law Houston. I had heard great things about Locke Lord from my classmate/study partner, Zachary inTErviEw By ERIC QUITUGUA Horne, who had summered there previously. Zac and I studied together through law school and ach May, the New Lawyer Induction Ceremony during bar prep. Zac ended up getting the third highest score welcomes the state’s newest attorneys to the profession. on the bar this February. We are both associates at Locke Lord The usual scene: Seats fill up at the Frank Erwin Center now. Ein Austin as friends and family file in to witness the exact moment their loved ones begin their new careers. The WHAT AREA OF LAW DO YOU FOCUS ON? rumble of the crowd quiets as stage lights go up. All rise as the I am a corporate associate in the firm’s energy practice group. justices of the Texas Supreme Court and judges of the Court I was a petroleum landman prior to attending law school, so of Criminal Appeals make their way to their seats. The the transition was a natural one.

ABOVE: Case Towslee, the Texas Bar Exam’s top scorer, was sworn in as a Texas attorney by Texas Supreme Court Justice Brett Busby via Zoom on April 27, 2020. At his side are his wife, Traci, and daughter, Caroline, at their home in Spring. PHOTO COURTESY OF CASE TOWSLEE.

444 Texas Bar Journal • July/August 2020 texasbar.com HOW HAS YOUR PRACTICE BEEN IMPACTED BY COVID-19 SO FAR? thank for supporting me during my journey through law Like many attorneys during the early stages of this pandemic, school. my workday began in my home office. Prior to COVID-19, Locke Lord committed to Zac and me starting on March 30. WHAT WAS IT LIKE BEING SWORN IN BY JUSTICE BUSBY ON ZOOM? The firm honored its commitment and allowed us to begin It was surreal; over the preceding days we had discussed the our careers from home. I will be forever grateful for that event over the phone, but once the call started, the magnitude because having the firm’s support during these unprecedented of earning the high score began to set in. times has been one less concern weighing on my family. DID HE IMPART ANY WISDOM? WHEN DID YOU FIND OUT YOU PASSED THE EXAM WITH THE Justice Busby stressed the service aspect of being a lawyer, and HIGHEST SCORE? how it’s my duty as an attorney to help those in need. He also I found out I passed the bar exam around 8:30 a.m. on touched on the importance of distinguishing myself as an Friday, April 24. I had been checking for updates that attorney who is ethical, trustworthy, and one who adheres to morning knowing the results were imminent. I knew my score the law. would normally be in contention for one of the highest, but at that moment, the relief of passing was my main focus. I WHAT DID YOU SAY DURING THE ZOOM CALL? didn’t know I had received the highest score until Texas I expressed gratitude for the opportunity to be sworn in by Supreme Court Justice Brett Busby called me that afternoon. Justice Busby even though it was by means of a Zoom call. Justice Busby went above and beyond to make sure my WHAT WAS YOUR EXPERIENCE PREPPING FOR AND TAKING THE experience was special, and I can’t thank him enough for his TEST? Prepping for the bar exam was a long process. I started commitment to new attorneys. studying one day after taking my last law school final in WHAT DO YOU WANT THE OTHER LAWYERS WHO TOOK THE EXAM December 2019. I stuck with my bar prep program the entire AT THE SAME TIME TO KNOW? time, and I felt well prepared when I took the exam in I want those who took the bar exam with me to know how February. I think the best advice I received was to treat bar great of an accomplishment passing the bar is by itself. prep like a full-time job, and that’s exactly what I did. I Ultimately, achieving the top score doesn’t matter because we studied every day from 8 a.m. to 5 p.m., and I ended my are all equals. Whether they passed by one point or 100 evenings with practice questions covering MBE topics. South points, we all have a new beginning before us, and our future Texas College of Law also has a great bar prep program led by is what we make it. I hope they remember to lift up and Assistant Dean Lisa Yarrow. thank those who helped them reach this milestone, and they should continue to serve others with the same determination WERE THERE ANY SURPRISES? they displayed during law school and studying for the bar I think finding out I was the highest scorer and my study exam. TBJ partner was the third highest scorer was definitely a surprise. It was a great day for both of us, and it’s an accomplishment we will always be proud of. FEBRUARY 2020 BAR EXAM WHAT WERE YOUR ORIGINAL PLANS FOR WHAT WOULD HAVE BEEN THE CEREMONY AT THE FRANK ERWIN CENTER? WERE YOU PASS RATE INFORMATION EXCITED ABOUT COMING TO AUSTIN? The table below shows the number of graduates from each I believe any time you get to be in the same room with the accredited Texas law school who took the bar exam for the first chief justice and other justices from the Texas Supreme Court time in February, the number that passed, and the percentage is an honor. I planned on attending the ceremony even before that passed. I earned the highest score. The event is a great opportunity for recent bar passers, and I was looking forward to celebrating LAW SCHOOL TESTED PASSED PASS RATE the accomplishment with my family. Baylor 42 37 88.10% SMU 8 3 37.50% WHAT DID YOU PLAN TO SAY IN YOUR SPEECH? WHEN DID YOU FIND OUT THE CEREMONY WASN’T HAPPENING AND YOU’D INSTEAD BE South Texas 53 41 77.36% SWORN IN THROUGH ZOOM? WHAT WAS YOUR REACTION? St. Mary’s 36 20 55.56% I found out in the initial call with Justice Busby that I Texas A&M 8 5 62.50% wouldn’t be giving the traditional speech in Austin. It would Texas Southern 29 12 41.38% have been an honor, and I would have certainly cherished the Texas Tech 3 1 33.33% experience. While I was disappointed that the event was U. of Houston 28 19 67.86% canceled due to COVID-19, I am certainly understanding of the current situation the world is facing. Being the first group U. of North Texas 19 8 42.11% of lawyers sworn in by Zoom is also unique. If I had given the U. of Texas 9 5 55.56% speech, it would have sounded more like an Oscar award TOTAL 235 151 64.26% speech because of the countless friends and family I have to

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 445 2020 Election Results Texas lawyers elected Sylvia Borunda Firth, of El Paso, as the 2020-2021 State Bar of Texas president-elect. Jeanine Novosad Rispoli, of Waco, was elected president-elect of the Texas Young Lawyers Association. Results of those elections and the elections for directors of the State Bar and the Texas Young Lawyers Association are included here.

STATE BAR OF TEXAS

■ PRESIDENT-ELECT DISTRICT 4, PLACE 6 DISTRICT 11 Sylvia Borunda Firth, El Paso ..... 9,515 Andrew Tolchin, Houston ...... 3,282 Carra Miller, Corpus Christi ...... 368 Pablo J. Almaguer, Edinburg ...... 9,478 Write-In: 82 Write-In: 12 Write-In: 305 DISTRICT 12 DISTRICT 6, PLACE 3 Mary L. Scott, Dallas ...... 1,637 Lydia Elizondo Mount, McAllen ..... 590 Alyson A. Martinez, Laredo ...... 294 ■ DIRECTORS Rebekah Perlstein, Addison ...... 1,054 Write-In: 31 Write-In: 8 DISTRICT 4, PLACE 2

Benny Agosto, Jr., Houston ...... 2,795 DISTRICT 14 Daniel O’Neil, Houston ...... 1,150 DISTRICT 6, PLACE 4 Kimberly Pack Wilson, Stephenville ... 449 Write-In: 30 Chad Baruch, Dallas ...... 2,503 Write-In: 11 Write-In: 57

DISTRICT 4, PLACE 4 DISTRICT 17 Lucy Forbes, Houston ...... 2,066 DISTRICT 9, PLACE 1 Steve Fischer, El Paso ...... 356 JoAnne Musick, Houston ...... 1,760 D. Todd Smith, Austin ...... 1,870 Daniel Hernandez, El Paso ...... 315 Write-In: 24 Write-In: 55 Write-In: 4

TEXAS YOUNG LAWYERS ASSOCIATION

■ PRESIDENT-ELECT DISTRICT 5, PLACE 4 DISTRICT 10, PLACE 2 Jeanine Novosad Rispoli, Waco .... 1,937 Michael Gaston-Bell, Dallas ...... 477 Martin A. Garcia, Fort Worth ...... 207 Donald Delgado, College Station ..... 1,430 Write-In: 6 Write-In: 4 Write-In: 34

DISTRICT 6, PLACE 2 DISTRICT 12 ■ DIRECTORS Eduardo Canales, Houston ...... 679 Matthew S. Manning, Corpus Christi .... 51 DISTRICT 2 Write-In: 8 Write-In: 1 Padon D. Holt, College Station ...... 72 Write-In: 1 DISTRICT 6, PLACE 4 DISTRICT 14 DISTRICT 4 Ashley Hymel, Houston ...... 691 Kirk Cooper, El Paso ...... 115 Ryan R. Bauerle, Plano ...... 115 Write-In: 6 Write-In: 1 Write-In: 6 DISTRICT 8, PLACE 2 DISTRICT 16 DISTRICT 5, PLACE 2 Katie A. Fillmore, Austin ...... 398 Courtney White, Amarillo ...... 44 Hisham A. Masri, Dallas ...... 477 Write-In: 5 Write-In: 2 Write-In: 4

446 Texas Bar Journal • July/August 2020 texasbar.com Mediated Settlement Agreements Don’t put off until tomorrow what you can do at mediation. written by SCOTT BAKER

It happens at mediations across Texas each day. After a long, contentious, and exhausting day, the parties finally find terms on which they agree to end their conflict and they want to go home. Quickly. The attorneys draft a one-page, bullet-point list of the agreed terms that the parties sign. One of those terms provides that the attorneys will prepare and the parties will execute a “more formal settlement agreement” or other documents after the mediation.

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 447 Generally, three things can happen when the execution of of the mediated term sheet,4 then a court can on summary the parties’ final settlement agreement is put off until after the judgment decide as a matter of law whether the term sheet is mediation. Like with football’s forward pass, two of them are enforceable.5 However, as in many other types of cases, bad. And the third possibility often is not very good either. prevailing on summary judgment is certainly not assured. This article suggests counsel consider preparing before “Often it is a difficult question of fact” to determine the mediation a draft settlement agreement with anticipated terms parties’ intentions when they agreed to execute subsequent that the parties will desire or require and, after the agreement documents “and there are very many decisions holding both is revised throughout the day to reflect the parties’ mediated ways.”6 And even if a party obtains summary judgment, it will agreements, having the parties finalize and execute their have spent significant time and expense briefing, arguing, and settlement agreement at mediation. Doing so can save providing summary judgment evidence on the many factors significant time and expense and it can help to deliver the that a court may consider to decide the issue.7 reason the parties engaged in mediation—to put conflict When a court determines that the parties’ intent is behind them for good. ambiguous, then a trier of fact will be required to determine whether the parties intended for the mediated term sheet to Even when the subsequent “more formal be binding. Of course, the cost and delay that parties incur agreement” is executed, it is costly and time- to conduct a trial over the parties’ intentions will exceed even consuming to finalize the substantial time and expense involved with seeking “Bare bones” mediated settlement agreements include summary judgment. terms that all parties know are important—things like If it is decided, whether on summary judgment or at trial, payments, releases, and dismissals of litigation. But summary that the parties intended to be bound by the mediated term term sheets often do not address issues that one or both sheet, then the parties’ disputes are resolved. However, the parties believe will be included in the subsequent agreement terms of the parties’ agreements are restricted to the terms of because they may be considered to be merely boilerplate or the mediated term sheet without other terms that one or both otherwise noncontroversial. Terms such as confidentiality, parties may have desired or included had they known that choice of law or venue, non-disparagement, or the subsequent agreement would not be consummated. And indemnification may be thought to be so insignificant that if it is determined that the subsequent agreement was a they may not be discussed, or even considered, at the condition precedent to a binding settlement, then the parties mediation. are right back where they were before the mediation—they However, when counsel exchange drafts after mediation, it have no settlement of their disputes—but at substantial is not uncommon for there to be disagreement over terms that expense and delay. were not included on the summary term sheet or over the “formal” language for terms that were included.1 Consider finalizing the settlement agreement at Usually, parties and counsel work through those issues and mediation complete the subsequent agreement or other documents. But To avoid those potential issues, this article suggests counsel it can take hours of the lawyers’ and parties’ time, spanning consider finalizing settlement documents for the parties to weeks or months to finalize the settlement. While the parties execute at mediation. There are several benefits to finalizing have secured their settlement under this scenario, they will an agreement at mediation. have incurred sometimes substantial cost and delay to do so. The mediator can help. The parties hired a mediator for his or her assistance and skill in helping them resolve tough Parties are thrust back into litigation when they issues. Why work through only some of the issues and leave cannot agree upon the subsequent agreement or others to be negotiated later without the mediator’s help? Take other documents full advantage of the time with the mediator, his or her skill Appellate opinions from across Texas demonstrate that set, and the services he or she provides. parties sometimes do not agree upon, or otherwise do not Mediation is the best time to address and resolve issues. execute, the agreement or other documents called for in a Mediation presents a unique opportunity when all counsel mediated settlement agreement.2 What do the parties have and the parties’ decision-makers are in one place with then? To find out, they are required to litigate whether: undivided attention on resolving their disputes. After 1) the subsequent agreement is a condition precedent to the mediation, counsel and parties will spread their time and formation of an enforceable agreement, without which the focus to dozens of other concerns. Therefore, even without parties are not bound by the summary term sheet; or 2) the substantial disagreements over content, post-mediation subsequent agreement is to be merely a memorial of an negotiations and drafting of documents can take weeks or already enforceable contract—the mediated term sheet.3 months. Addressing all issues at mediation allows parties to more quickly and efficiently consider and work through The litigation paths are costly, time-consuming, settlement terms and to end their conflict. and can foreclose the ability to include terms The draft agreement is a checklist of terms to negotiate and that could have been negotiated at mediation resolve. It is not uncommon for the parties to focus on only If the parties’ intent is clear and unambiguous on the face one or two key issues at mediation such as payment and

448 Texas Bar Journal • July/August 2020 texasbar.com release terms. A substantially complete agreement can remind 1988) and John Wood Group USA, Inc. v. Ico, Inc., 26 S.W.3d 12, 15 (Tex. App.— counsel and parties of other issues that need to be negotiated Houston [1st Dist.] 2000, no pet.) (business negotiations); McCain v. Promise House, Inc., 2018 WL 2042009 *1 (Tex. App.—Dallas May 2, 2018, no pet.) (mem. op.) and and resolved at mediation. Gen. Metal Fabricating Corp. v. Sterigou, 438 S.W.3d 737, 741 (Tex. App.—Houston Achieve finality. Parties go to mediation to resolve their [1st Dist.] 2014, no pet.) (Rule 11 agreements). The analyses in these and similar disputes and to end litigation and the time and resources that opinions are applicable to mediated settlement agreements. it consumes. Mediators appreciate the opportunity to help 2. See, e.g., West Beach Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 258 (Tex. App.—Austin 2002, no pet.); Lerer v. Lerer, 2002 WL 31656109 *1 (Tex. App.—Dallas Nov. 26, parties end their conflict. Utilize your mediator and the 2002, pet. denied); Hardman v. Dault, 2 S.W.3d 378, 380 (Tex. App.—San Antonio mediation process fully by not leaving additional issues to be 1999, no pet.); Club Park Dev., Inc. v. Intervest-Churchill Pointe, Ltd., 1999 WL negotiated and possibly litigated. 33747844 *2 (Tex. App.—Eastland May 27, 1999, no pet.); Martin v. Black, 909 S.W.2d 192, 195 (Tex. App.—Houston [14th Dist.] 1995, writ denied). If it is not possible to finalize the agreement at 3. Border Gateway, L.L.C. v. Gomez, 2011 WL 4361485 *3 (Tex. App.—Houston [14th Dist.] Sept. 20, 2011, no pet.) (mem. op.); Hardman, 2 S.W.3d at 380; Martin, 909 mediation, make the parties’ intentions clear S.W.2d at 196. Getting a final mediated settlement agreement executed at 4. Cases provide guidance on language that Texas courts have found to be either clear or the end of mediation may not be possible in every case. A ambiguous on intent to be bound to a term sheet if subsequent documents mediated term sheet that requires the parties to execute contemplated by the term sheet are not executed. See cases cited in notes 8 and 10. 5. See West Beach Marina, Ltd., 94 S.W.3d at 258; Hardman, 2 S.W.3d at 380. additional documents later may be all that can be done. In 6. Foreca, S.A., 758 S.W.2d at 745 (citing A. Corbin, Corbin on Contracts § 30 at 97 those cases, the mediated term sheet should clearly provide (1963)); see also West Beach Marina, Ltd., 94 S.W.3d at 257 (stating that “[i]t is whether the parties intend to be bound by the term sheet if generally a fact question for the jury to determine whether the parties intended to be the subsequent agreement or documents are not bound by the written agreement or intended the agreement to be preliminary and without legal significance.”). consummated. Texas caselaw provides guidance for parties to 7. See Martin, 909 S.W.2d at 196-97 (identifying eight Restatement [Second] of Contracts do that—by using plain and unequivocal language that leaves factors that courts may consider to determine parties’ intent to be bound by a no room for doubt of the parties’ intentions.8 “[A] party who preliminary agreement). does not wish to be prematurely bound by a letter agreement 8. See, e.g., Med Vision, Inc. v. Medigain, LLC, 2017 WL 1190494 *12 (N.D. Tex. Mar. should include ‘a provision clearly stating that the letter is 31, 2017) (mem. op.); 1st Resource Group, Inc. v. Olukoga, 2017 WL 218290 *3 (Tex. App.—Fort Worth Jan. 19, 2017, no pet.) (mem. op.); Border Gateway, L.L.C., 2011 nonbinding, as such negations of liability have been held to WL 4361485 at *3-4; Castano v. San Felipe Agric., Mfg., & Irrigation Co., 147 S.W.3d 9 be effective.’” Caselaw cautions that simply making a 444, 448 (Tex. App.—San Antonio 2004, no pet.); see also John Wood Group USA, mediated term sheet “subject to” subsequent documentation is Inc., 26 S.W.3d at 17. not the type of clear language that reliably demonstrates the 9. John Wood Group USA, Inc., 26 S.W.3d at 19 (citing E. Allan Farnsworth, Farnsworth 10 on Contracts § 3.8b at 193 (1990)). parties’ intent. 10. See Martin, 909 S.W.2d at 197; Foreca, S.A., 758 S.W.2d at 746. For all other cases, consider going to mediation with a substantially complete settlement agreement that can be revised at the mediation to reflect the agreements the parties make during the session. Getting an executed and final settlement agreement can eliminate later disputes and the delay and cost associated with additional negotiations and, possibly, litigation. Walking away from mediation with a final agreement helps to achieve the benefit of mediation—ending SCOTT BAKER conflict for good. TBJ is the founder of Scott Baker Mediation. He uses over 20 years of litigation, negotiation, and mediation experience to focus solely on helping parties resolve disputes as a neutral mediator. Baker NOTES mediates disputes in Austin, Central Texas, and around the state. 1. The issues surrounding agreements to prepare subsequent documents arise in circumstances For more information, go to scottbakermediation.com. other than mediation. See, e.g., Foreca, S.A. v. GRD Dev. Co., 758 S.W.2d 744 (Tex.

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texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 449 #SQUADGOALS The power of finding and maintaining your group.

written by CHASITY WILSON HENRY and COURTNEY BARKSDALE PEREZ

ABOVE FROM LEFT: The NEW Roundtable Inc. Board of Directors: Courtney Barksdale Perez, Chalon Clark Thomas, Keitha Wright, Chasity Wilson Henry, and Kandace Walter.

uch has been written and myriad panels have been periodic happy hours for the group to reconnect. As the group convened on the topic of diversity and inclusion in continued to gather to discuss its successes and challenges, M the legal profession. This holds true across a variety group members recognized some recurring themes with of legal practices, including corporate law firms and respect to the challenges many were facing in their corporate legal departments. Yet, according to National professional development. Association for Law Placement statistics, representation of Law firm associates faced challenges receiving mentoring, women of color in the associate and partner ranks has sponsorship, “choice” work assignments, client contact, and stagnated and, in some cases, declined over the past decade. business development opportunities—all factors in Given this backdrop, how might women of color navigate partnership decisions down the line. In-house counsel implicit and explicit bias and other roadblocks to build a struggled to make connections with executive leadership successful career? Building, nurturing, and maintaining a teams, navigate the political landscape, and attain the visibility strong network is vital for every lawyer and especially so for and influence both internally and within the legal community women of color. The Network of Empowered Women, or necessary to ascend to general counsel and other leadership NEW, Roundtable Inc., provides an example of how being roles. intentional in supporting one another can be personally and After having these conversations and brainstorming professionally rewarding. solutions over a number of months and years, group members The NEW Roundtable Inc. is a nonprofit organization began to look around the table and realize that many of the comprising more than 80 black women in-house and outside opportunities they were seeking but to which they had little counsel attorneys in Dallas. NEW was founded in 2014 to access—business development, refinement of technical skills, drive the inclusion and advancement of black women speaking, writing, brand-building opportunities, and just attorneys through targeted relationship-building, professional moral support—could all be obtained if they leveraged the development initiatives, and mentoring. power of the network they had already been building and The organization began with about a dozen black women became more intentional about helping one another to in Dallas—primarily graduates of the University of Texas accomplish their goals. School of Law—who were junior to mid-level corporate law With the support and encouragement of many members of firm associates and in-house counsel, circa 2011 to 2014. A the informal group, NEW Founder and President Chasity couple of friends and classmates, including Courtney Wilson Henry, now senior vice president, general counsel, and Barksdale Perez, now a partner in Carter Arnett but then a corporate secretary at CECO Environmental, took steps to fourth-year associate at a Dallas law firm, began organizing formalize the group in mid-2014. By then, the group had

450 Texas Bar Journal • July/August 2020 texasbar.com expanded beyond UT Law alumna to include dozens of another for dozens of awards (and have won many of them), African American women (ranging from junior to mid-level including D CEO Corporate Counsel Awards, D Magazine and a few senior associates) with a mix of private and in-house Best Lawyers Under 40, Texas Lawbook Corporate Counsel practitioners. On October 22, 2014, Elizabeth Brandon (a Awards, and Texas Rising Stars; provided opportunities for founding member) hosted the new group at Vinson & Elkins’ members to join boards through NEW referrals, including the Dallas office. There were around 25 attendees. Henry gave a Human Rights Initiative, AT&T Performing Arts Center, and presentation and invited discussion of how members might Girls on the Run; participated in dozens of job interviews become more purposeful and impactful as a group. The (and landed jobs) facilitated by members; and most response was extremely enthusiastic from that core group of importantly, given back to the profession. For example, for women who would become the founding members of the the past two summers, through the Diverse Attorney Pipeline NEW Roundtable. Program, several NEW members have interviewed, coached, NEW stands for Network of Empowered Women while and mentored dozens of women of color law students for the Roundtable is a metaphor for how the group operates. NEW DAPP Summer Program, which includes summer internships is a group of women leveraging its collective talents and at partnering law firms and in-house legal departments. networks to overcome challenges and spur each other to success. Group members did not always have the opportunity to join those tables initially, so they created their own. And now, more than 80 black women lawyers in Dallas have been invited to pull up a chair. The mission remains unwavering: to empower, impact, and influence the legal community by (i) achieving individual goals collectively and attaining group success through building mutually beneficial relationships between in-house and outside counsel, facilitating career-development and advancement initiatives, and securing and sustaining relationships with career influencers; (ii) generating and facilitating opportunities for members to impact the profession and the community through board service, leadership programs, publishing, and ABOVE: September 2019: Founding and current NEW board members speaking engagements; and (iii) influencing the legal celebrate the organization’s accomplishments during the Five-Year profession through partnering with law firms, in-house legal Anniversary Gala hosted in Dallas. departments, and other legal employers to increase and improve the recruitment, hiring, retention, and promotion of A NEW day has come. Women are creating their own black women and partnering with law schools to help black paths and sharing their experiences and connections with women law students to be academically successful. other women. It is NEW’s great hope that women will Since its inception, NEW has facilitated job placements, continue to empower women, lifting each other as they climb professional awards, board placements, business referrals, and transforming the legal profession in the process. TBJ speaking engagements, and publishing opportunities for its members, representing over 30 law firms and 40 in-house legal departments in the Dallas-Fort Worth Metroplex, with members working for companies such as AT&T, Toyota, and FedEx Office and law firms including Gibson Dunn, Baker Botts, and Clark Hill Strasburger. NEW has been instrumental in the professional development and career advancement of its members. More than a dozen members Chasity henry have received job interviews and placements (both in-house is senior vice president, general counsel, and corporate and at law firms). secretary of CECO Environmental Corporation, a global Over the past five years, with the help of its members, leader in air quality and fluid handling serving the energy, industrial, and other niche markets. Prior to joining CECO, career influencers, and mentors, in-house members have she was assistant general counsel to Kimberly-Clark provided law firm members with business opportunities Corporation in the company’s Dallas World Headquarters. valued in the hundreds of thousands of dollars collectively. Henry is a 2006 graduate of the University of Texas School of Law. Moreover, several members’ origination credit within their law firms is directly attributable to NEW business referrals (one member has received 40% of her origination credit in just one Courtney Barksdale Perez is a trial attorney and partner in Carter Arnett in Dallas. She year from the group). Dozens more members have been has three beautiful children and is married to the love of invited to participate as panelists and keynote speakers at legal her life. Barksdale Perez is the chair of the Texas Young conferences, bar associations, and other professional events. Lawyers Association Board of Directors and president-elect of the NEW Roundtable. NEW members have nominated and been nominated by one

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 451 Presidential Leadership ANDLegal Professionalism The ties that bind—part two.

written by Talmage BosTon

452 Texas Bar Journal • July/August 2020 texasbar.com s there a relationship between best practices in presidential leadership and legal professionalism? Though many may believe these subjects are unrelated, in fact, as this article will demonstrate, they align in synchronicity. As the author of a presidential history I book and as a full-time practicing lawyer for over 40 years, I encourage the reader to go with the flow and recognize the clear parallels in these two seemingly disparate areas. History. Most lawyers enjoy history because so much of our business depends on precedent. History is so appealing because it shows how much things change and how much things stay the same. One way that history shows how much things stay the same is that the traits that make for a great presidential leader are the same in 2020 as they were in 1789 when George Washington got sworn in. For my book Cross-Examining History: A Lawyer Gets Answers From the Experts About Our Presidents, released in 2016 shortly before the election, I identified the most important leadership traits based on interviews with top presidential historians and Oval Office insiders and decided to call them “the Ten Commandments of Presidential Leadership.” Knowing that lawyers have historically been leaders—whether in their communities, at their law firms, or in bar activities—these commandments should be worthy of all lawyers’ attention, since they come from the people who faced their eras’ greatest challenges and met them in ways that set the standard for all in leadership positions.

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 453 When the stories of the presidents who epitomized these leadership commandments are matched with the Texas Disciplinary Rules of Professional Conduct and the Texas Lawyer’s Creed, it helps explain why so many of our commanders in chief started their careers as lawyers and went about their business with the same traits that later served them well when they led the country. Turning now to the Ten Commandments, the presidents who epitomized them, and how they apply to lawyers, let’s finish with six through 10 (to read one through five, see pages 378-382 of the June 2020 issue).

Seventh Commandment of Presidential Leadership: A great leader shalt recognize the importance of good timing in pursuing initiatives, and not force things when the time isn’t right, but seize the moment when it is. The philosopher Carlos Castaneda said, “Warriors/great leaders recognize the cubic centimeter of chance that can make or break them. When it pops up, they move on it with the necessary speed and prowess to capitalize on the opportunity.” The president who epitomized this commandment was Lyndon B. Johnson in the way he went about getting American history’s most important civil rights legislation enacted. In June 1963, after being in office two and a half years, Kennedy finally offered Congress a strong civil rights bill though Sixth Commandment of Presidential Leadership: A great it promptly got stuck in committee and JFK had no idea how leader shalt remain calm in a crisis. to get it unstuck before his assassination five months later. After The president who exemplified this commandment was Kennedy’s death, Johnson seized the moment and proceeded John F. Kennedy. In October 1962, at the height of the Cold to strong-arm Congress about the frozen bill by telling them War, the Soviet Union delivered nuclear missiles into Cuba. the best way to make a powerful statement to the grieving During the 13 days it took to resolve the missile crisis, all of American public and honor JFK’s memory in a meaningful way Kennedy’s top advisers met with him for a total of 43 hours at would be to make him the martyr for legislation advancing civil meetings he and his attorney general brother Robert Kennedy rights. Using that angle as his motivator, Johnson leaned on secretly taped. The tapes were finally made available to the senators, got the bill out of committee and onto the floor, fought public in the 1990s and revealed that all his advisers kept through a filibuster, and got it passed into law in July 1964. telling JFK during the 13 days that strong retaliation by the The same thing happened a year later with the Voting Rights United States would be necessary to get Russia to remove its Act. Frustrated over Congress’ unwillingness to pursue a missiles. Obviously, such extreme proposed action could have voting rights law, LBJ waited until the nation became horrified triggered the start of World War III. The tapes show that as after watching Bloody Sunday in Selma, Alabama, on television, his advisers got more riled up each day with increasing as police troops bludgeoned the non-violent African Americans bellicosity, Kennedy was the only guy in the room who stayed attempting to march from Selma to Montgomery in protest calm, which allowed him to reach an agreement with the over Alabama’s refusal to give them voting rights. Using the Russians whereby they removed their missiles from Cuba nation’s moral outrage in response to the televised beatings as without there being any military incident. the wind in his sail, a week after Bloody Sunday, LBJ made How does the Sixth Commandment’s leadership trait his “We shall overcome” speech to both houses of Congress about the need to stay calm in a crisis apply to lawyers? and a national television audience. Then, days after that Section III of the Texas Lawyer’s Creed answers this question: electrifying speech, he submitted his voting rights bill to “Ill feeling between clients shall not influence a lawyer’s Congress, which soon became the Voting Rights Act of 1965. conduct, attitude, or demeanor toward opposing counsel. A The same thing happened three years later on the issue of lawyer shall not engage in unprofessional conduct in fair housing legislation. Housing bills were hopelessly stuck retaliation against other unprofessional conduct.” When between the two houses of Congress until Martin Luther King tempers flare between clients or lawyers, it often creates a Jr. was assassinated on April 4, 1968. Again, Johnson seized on crisis for the case. Will an anger outburst cause those involved a tragic event and leaned on the House to approve the Senate’s to go into a downward spiral or will a cool head stay above version of the bill, as a means of showing the country how the crisis and bring the players into a mode of professional important it was to pay tribute to King in an impactful way. equilibrium? The lawyer’s job is to be that cool head. How does the Seventh Commandment’s leadership trait about

454 Texas Bar Journal • July/August 2020 texasbar.com the need to be mindful of when to wait and be patient and when to On June 12, 1987, the time was right, the place at West Berlin’s seize the day apply to lawyers? Section II, paragraph two of the Texas Brandenburg Gate was right, and Reagan’s entire foreign policy Lawyer’s Creed addresses this where it says, “[A] lawyer will message, which he had been saying since his first political speech in endeavor to achieve [his or her] client’s lawful objectives in legal 1964, finally arrived. To heck with the State Department and the transactions and in litigation as quickly and economically as possible.” National Security Council, he said the words that will forever give All seasoned lawyers know the importance of timing. In him a special place in history: “Tear down this wall.” Four words— the litigation arena, sometimes disputes are ripe for mediation each one syllable—simple, clear, passionate, and right on the mark. As early in a case, while some lawsuits should be mediated only important as his words, Reagan then followed through on what he said after discovery and summary judgment skirmishing. There are by leading the charge to tear down the wall and end the Cold War. centimeters of chance for achieving resolution at junctures How does the Eighth Commandment’s leadership trait of being a throughout the timeline of a case, and the skilled lawyer great communicator and following through on what is said apply to knows when the time is right to wait and when it’s right to lawyers? The answer: A person cannot be a great leader without strike quickly to expedite the litigation’s resolution. being a great communicator and a person cannot be a great lawyer without being a great communicator. Once a lawyer communicates clearly to a court, or another lawyer, or a client, per section I, paragraph one of the Texas Lawyer’s Creed, his or her “word” had better be his or her “bond”—meaning the lawyer had better follow through on what he or she said, unless, of course, circumstances materially change that make recalibration necessary.

Eighth Commandment of Presidential Leadership: A great leader shalt be a great communicator and shalt not only speak well but shall also follow through on what he or she says. The president who hit the Eighth Commandment out of the park in the modern era was Ronald Reagan. The conventional wisdom regarding why Reagan’s word power skills were so extraordinary was the fact that he had spent half his adult life Ninth Commandment of Presidential Leadership: A great as an actor, which trained him to look the camera in the eye leader shalt put the country’s interest above his or her own and deliver his message with full dramatic force. For anyone personal political interest. who ever watched Reagan’s movies and television shows, The president in the modern era who tied his presidency to this however, the truth is he was not a particularly good actor. commandment was George H.W. Bush. At the 1988 Republican Contrary to conventional wisdom, what made Reagan such National Convention, when Bush accepted his party’s nomination for a great communicator was his sunny disposition and cheerful president, he said six important words to the national television countenance that caused him to speak to the American people audience: “Read my lips: No new taxes.” The people at the convention with a spirit of optimism and inspired hope, allowing him to cheered, and that promise was a key to his winning the election. The channel the people’s inner voice. tax issue was politically huge at the time, but it was a two-edged sword. His chief of staff and secretary of the treasury, James Baker, The Reagan tax cuts had been popular throughout his presidency but believes it was Reagan’s consistent confident message over time had caused substantial increases in the federal deficit. in communicating his steadfast opposition to Soviet communism After becoming president, Bush soon realized that although his that built the momentum that led to the Cold War’s end. In the “No New Taxes” pledge had been based on the nation’s economic modern era, presidents’ speeches are written by speechwriters; for circumstances as they existed in August 1988, these circumstances had foreign policy speeches, the U.S. Department of State and the materially changed by 1990. Because the deficit had continued to National Security Council also provide input. Obviously, though, grow to unprecedented heights through the first part of Bush’s the boss decides what’s in the final draft. The most memorable presidency, the rest of the world had started reducing the amount of line of Reagan’s presidency came as he attempted to bring an end American treasury bills they purchased in large part over their to the Cold War and said, “Mr. Gorbachev, tear down this wall!” concerns about the health of the American economy. When the time The speech containing that line went through many drafts. The came in 1990 to get a budget deal done, there was only one way to State Department and National Security Council kept taking the get an agreement with the Democratic-controlled Congress on how line out. They believed it was too inflammatory and would to provide funding that would be used to cut the deficit, given their alienate the Soviet Union. Reagan kept putting the line back in. refusal to agree to any spending cuts. Federal funding to reduce the

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 455 deficit could only come from increased tax revenue—i.e., higher taxes. the divisive issue of slavery during the Civil War, he managed In response to the budget and unexpected deficit crises, Bush made to find a politically acceptable way to issue the Emancipation the decision to break his convention pledge and agree to the tax increase Proclamation by declaring that its passage was not because he because of the changed circumstances that necessitated such action. His wanted to abolish the evil institution of slavery, but because doing so caused a Newt Gingrich-led revolt in the Republican Party, emancipation was needed as a matter of “military necessity.” which became a key factor in Bush’s losing the 1992 election. Could Why did he say that? Because he knew how conflicted public Bush have kept his 1988 convention promise and refused to approve sentiment was on slavery in 1862—especially in the border states— new taxes in the 1990 budget talks? Of course, but it would have caused when he sat down to write the Emancipation Proclamation. Because a budget impasse with Congress, thereby triggering a government of his knowledge of the people’s mindset, Lincoln knew that if shutdown, which would have caused the deficit to keep growing, he said he was emancipating Southern slaves because of an further reducing the world’s confidence in the American economy. altruistic desire to achieve equal rights for all people, regardless How does the Ninth Commandment’s leadership trait about the of race, and thereby wipe out evil slavery, there would have been need to always put the public interest above one’s own personal major pushback from the border states, where many people still political interest apply to lawyers? Section II of the Texas Lawyer’s owned slaves. Because of Lincoln’s awareness of the public sentiment, Creed answers that question: “A lawyer shall not be deterred by any the proclamation did not free the slaves in the border states. real or imagined fear of judicial disfavor or public unpopularity, nor be Above all, when he wrote the proclamation in 1862, Lincoln influenced by mere self-interest.” This part of the creed means that the knew that the public sentiment in the North and the border person who the lawyer must put first is the client. Sometimes lawyers states was to the effect that the people desired more than have clients who are not esteemed in their communities or in certain anything else for the Civil War to end with a Union victory as courts. To make a zealous stand on behalf of such a client is typically soon as possible. Thus, they wanted everything done by their not in a lawyer’s self-interest, though by making such a stand, the commander in chief to end the war. The proclamation freed lawyer thereby has the opportunity to follow in Atticus Finch’s Southern slaves so they could run away from their masters, join footsteps, in the way Atticus zealously represented Tom Robinson. the Union army, and increase its manpower, producing ultimate victory to the North sooner than if there were no additional military troops available to support the Union war effort. His strategy worked. After the proclamation was issued on January 1, 1863, it received little pushback and was a key factor in turning the tide toward a Union victory. How does the Tenth Commandment’s trait to know and then mold public sentiment apply to lawyers? Section II, paragraph three of the Texas Lawyer’s Creed answers this when it says, a lawyer “will be loyal and committed to [his or her] client’s lawful objectives, but [he or she] will not permit that loyalty and commitment to interfere with [the lawyer’s] duty to provide objective and independent advice.” Yes, a lawyer had better know the sentiments of his or her clients, but he or she also had better be in the business of coming up with sound Tenth and Final Commandment of Presidential Leadership: strategies to mold and guide clients’ sentiments toward his or A great leader shalt stay abreast of public sentiment and her own professional vision in order to achieve the best possible find ways to shape it, so that it aligns with his or her vision. result for the matter he or she has been hired to handle. The president who demonstrated this commandment better than anyone was Abraham Lincoln, who once said, “Public After now seeing how closely all of the Ten Commandments sentiment is everything. Whoever molds public sentiment goes of Presidential Leadership align with the Texas Disciplinary deeper than he who enacts statutes, or pronounces judicial decisions.” Rules of Professional Conduct and the Texas Lawyer’s Creed, is Lincoln understood that in his era, the people who best knew it any wonder why of the 44 men who have served as president the public sentiment in their communities were those who ran the of the United States (Grover Cleveland served two non- local newspapers. Wherever he traveled on business, he always consecutive terms), almost 60% have been lawyers? Yes, the made it a point to meet with the local newspaper publishers, traits that make a presidential leader great are also what make and from them, he caught up on the talk of their town. Once a lawyer become a consummate professional. Thus, it might he knew the public sentiment, Lincoln then devised strategies be useful for the lawyer who aspires to elevate his or her ethics to change it to align with his thoughts. As president, he shaped to start boning up on best practices in presidential history. TBJ public opinion by writing newspaper editorials, giving eloquent speeches, strategically leaking information to newspapers, and writing letters to newspaper editors that he circulated to other Talmage BosTon is a partner in the Dallas office of Shackelford, Bowen, newspapers around the country. McKinley & Norton and the author of four history books, Here’s an example of how Lincoln got out in front of an issue including Raising the Bar: The Crucial Role of the Lawyer in by knowing the public’s feelings about it, and then succeeding Society (TexasBarBooks, 2012) and Cross-Examining History: A Lawyer Gets Answers From the Experts About in shaping public opinion to align with his own viewpoint. On Our Presidents (Bright Sky Press, 2016).

456 Texas Bar Journal • July/August 2020 texasbar.com Fifty-year lawyers reflect on how the legal profession has changed since 1970. Every year at the State Bar of Texas Annual Meeting, the bar celebrates its 50-year lawyers with a reception, a time to catch up with colleagues and classmates and to meet new peers and swap stories.1 This year, we asked the 634 members who took the oath in 1970 to tell us how the legal profession has changed since they began practicing law. We heard from attorneys across the state and from different practice areas, and their responses made it very clear that technology—more than any other factor—has unequivocally transformed the legal profession over the past five decades. From computers and fax machines to the internet and cellphones, technology has changed the way lawyers work. Kelly Frels, one of four past State Bar presidents from this class—the others are Terry O. Tottenham, Harriet Miers, and Allan K. DuBois—wrote the following: “The technology revolution has changed the law practice the most. The fax machine was the first major change followed by FedEx and other overnight document delivery services. The internet has facilitated emails and texts, which have resulted in instant communication by handheld devices—forever changing the way lawyers communicate.” But as much as the way lawyers communicate has forever been changed, the manner in which they strive to uphold the rule of law has not. In the words of Clinton S. Morse: “The people we serve are still considered clients, not customers and they still respond with great appreciation to the loyal attorneys who have done the very best job that they can to represent them professionally.” Read the following excerpts to learn what other 50-year lawyers have to say.

“The legal profession has changed since 1970, not “It seems today that the younger lawyers are not as friendly because the individuals practicing law have changed, but as we were ‘back in the day.’ We used to be able to fight it out technology has dictated the change with the personal in the courtroom representing our respective clients and then computer, cell telephone, online research, among others, sit down with opposing counsel afterwards and perhaps have a driving that change. No longer is the attorney subservient to drink and laugh about it. Today, younger lawyers seem more the office library, the staff assistant, or the office itself. Each, goal-oriented and less friendly and accommodating. I think the in a way, have become anachronisms. The attorney of 2020 legal profession has lost some of its glamour and, in my opinion, is independent, that independence being the gift of the profession needs to get back to some of the respect that technology.” we had in the 1970s and 1980s. I still enjoy practicing law, even after 50 years, but I do miss the good old days.” —CALVIN A. HARTMANN Spring —DENNIS R. CROMAN Irving

“In 1970, my firm asked me for a list of law students to recruit for the following year. I turned in a list with several “As both a prosecutor and defense attorney the women on it and was told ‘the firm was not quite ready for development of DNA has been one of the most remarkable that yet.’ I never thought I was ‘championing women and and significant developments I have seen and worked with minorities in the law.’ I just wanted my firm to hire the best during the past 50 years. DNA has aided with the prosecution young lawyers possible so that we could win. Today of course, of serious criminal cases and the protection of the innocent. our firm has a big HR department, policies and committees DNA is critical in eliminating reasonable doubt.” on behalf of every group imaginable, and mandatory annual sex harassment and EOO training.” —GEORGE S. “STEVE” HEBERT Conroe —CLINTON S. MORSE Hunt

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 457 “Big Changes in Three Ways: “In fall 1969, as I entered the last year of my law study at Texas Southern University School of Law, I approached one of 1. From NO advertising to Lots of Ads. my professors with an idea I had been considering for a few If I were starting out now, I would probably do it. However, I months: ‘How would this new piece of technology called the still believe the only way to build a lasting, loyal clientele is computer change the way we practice law?’ He stated that I diligent work and word of mouth. should put my ideas on paper and send them to a list of 10 law schools. I did so and each school wrote back requesting 2. General Practice vs. Specialists. more detail. I immediately outlined my proposal for graduate East Texas still has a number of GPs like myself. It was the programs in computer law. Six of those law schools admitted only way to make a living then. Now, criminal law, family me to their program of study and I accepted the offer from law, personal injury, real estate, probate, etc., the specialists Stanford University School of Law. prevail. My proposal suggested that the computer would create both new legal problems in the areas of contracts, torts, 3. Women. privacy, intellectual property, and many more. I also believed There were few, if any, female practitioners. Now, at least that the computer could be programed to aid the lawyer in his 50% serve in East Texas, particularly judges. This has changed or her practice. I arrived at these ideas because I worked my the legal profession for the better.” way through law school as a software analyst in the space program. —JOHN E. TRUBE In June 1971, I graduated from Stanford University School Tyler of Law with a graduate degree in computer law and I have spent the last 49 years of my life helping and watching many of my predictions come true.” “Four E’s mark developments in the Texas practice of law: —JAMES M. DOUGLAS Houston • Exponential Expansion: Statutes and caselaw multiply faster than rabbits. Lawyers become specialists or fade away. • E-filing Experts: E-filing is great for courts since clerks and “The practice of law has changed greatly in the 50 years lawyers no longer haul boxes of paper to the courtroom. A since I was licensed in 1970. There were fewer lawyers in 1970, computer easily handles legal research; no more dusty and virtually all of them were white men who claimed to be library trips! Keeping up with the necessity for encryption trial lawyers. There were only 13 women in my University of and double passwords changed every fortnight does mean Texas School of Law graduating class with only a couple a bit more effort. minority students. In 2020, half the law students are women • Ethics Education: Once upon a time, ‘Trust me, I’m a with an increasing minority student representation. Litigation lawyer!’ meant something solid. No more! If an agreement in 2020 is no longer the overwhelmingly dominant legal between counsel isn’t written, it doesn’t exist. A court order practice—business and transactional lawyers abound. Today is even better. about 10% of Texas lawyers work for corporations while • Everlasting Evolution: From discovery to complex another 10% are employed in some level of government.” relationships between federal and state law, the practice of —KELLY FRELS law will continue to evolve. So, it’s never dull and boring!” Houston

—MARY ELLEN KEITH Meadowlakes “The last 50 years of law in general was a meteoric evolution of existing concepts and theories that have coupled with new “There have been many changes since 1970. There used to technologies to take American jurisprudence to its zenith in be compassion in the practice of law. … I can only hope that some areas while at the same time plunged others into in the next 50 years there will be a reversion to protect the professional despair. Specifically, the arena known as tort law rights of our citizens. I sincerely urge my brother and sister exploded as we came out of law school and the boomers took attorneys to work toward that end.” over the making of law. More specifically, legal malpractice was not even a required course in law school. Why then in 1972 —RANDY WILSON did law schools begin to teach the subject? Answer: Nixon was Abilene one of us and we lost the public trust in more than one way.”

—LARRY JOE DOHERTY Burton

458 Texas Bar Journal • July/August 2020 texasbar.com “When I started practicing the IBM Selectric typewriter “I have the perspective of having represented clients for over was a new phenomenon. There were no fax machines, emails, 25 years, and, as a business executive for the last 24 years, been and, of course, no internet. … Another phenomenon that a client. When I began practice, very few firms saw the need came of age during the last 50 years was the mediation for professional management. Many firms seemed to fear that practice. The mediation practice ‘thinned out’ many cases that becoming more businesslike could degrade their professionalism. would have gone to trial but did not. Obviously, people will The need for businesslike management later became apparent look at this as a good thing since it did away with cases that as firms’ profitability became a competitive issue in the hiring were clogging the courts’ dockets. However, it also did away and retention of talent. But, by the ’90s, some firms had with the ability for young lawyers to try the minimal exposure become focused on maximizing profitability, sometimes at the cases. As a trial lawyer, the abolition of the weekly docket call expense of client service and fair billing practices. Some failed, in Harris County removed an event where both sides of the others opted to merge with, or disappeared into, larger firms. bar would meet, discuss their cases and establish personal Most business clients can see through a law firm which relationships with trial lawyers on both sides of the docket. regards a client or a new matter as a business opportunity Today, with the seven days a week, 24 hours a day filing rather than an opportunity to serve. However, other firms process, the personal relationships that were created among who, competing on the basis of excellent legal service, have trial lawyers at the courthouse is gone.” remained professional while operating in a businesslike manner and earned long-term client loyalty.” —WILLIAM BOOK Houston —SCHUYLER B. MARSHALL IV Dallas

“To use a phrase from a poem, ‘Let me count the ways’ the legal profession has changed. I must start with the obvious: “Today, we routinely exchange ‘Rule 11 letters.’ TRCP Rule COMPUTERS AND SOFTWARE. Probably more 11 says that, for an agreement involving a lawsuit to be binding, important was the congeniality of the opposing counsel. We it must be in writing. When I started practicing law in 1970, never played the game with malice and there were no personal Rule 11 was ‘on the books’ just like it is today. Back then, it attacks on the opposing counsel. … I am just thankful that I would have been an insult to ask a lawyer to put in writing an was blessed with the opportunity to practice law in the state agreement regarding a lawsuit. With a few exceptions, every of Texas with a bunch of people that for the most part lawyer that I dealt with back then considered his word to be respected one another and enjoyed the company along the equivalent with his honor. So, no one would ever suggest that way. Thanks for everything to all the judges and opponents I you needed something in writing to be assured that the opposing faced over my 50 years of practicing law. Still practicing today. lawyer would abide by his commitments. If the issue of what was promised ever came into question, the lawyer on the other —DON CHRESTMAN side would say, ‘If that’s how you remember it, that’s how it is.’ Weatherford In those few instances where disputes arose and the matter was taken to court, judges looked askance on anyone who would call into question another lawyer’s ‘honor.’ So, if such a disagreement “I decided to become a lawyer when I was 13 years old when happened, the judge would be likely to say, ‘Both of you go away, I discovered my magic lawyer skill—I could talk the neighborhood and, from now on, as between the two of you, perhaps everything bullies out of beating me up. Later, I found myself in the should be in writing.’ This, of course, would be a huge insult University of Houston library building with 200 or so law to at least one of the parties. It would be a signal to the rest of students crammed into the small underground law school. I the legal community not to count on ‘the honor’ of that person.” did well, and so it looked like my 13-year-old unbruised self —ROBIN M. GREEN was right. After working in D.C. in the age of Nixon, I started Lubbock my practice in Houston. In those days, our tools were mechanical typewriters. We literally cut and pasted with scissors and tape and tried cases with discovery taking place during trial. Then along came MS-DOS. OMG. Starting with the crackle of automated typewriters, floppy discs, WordPerfect, and all the Notes rest, work eventually became portable in our notebook computers. 1. Since the COVID-19 pandemic forced the cancellation of the in-person 2020 State Bar Annual Meeting in Dallas, these 50-year lawyers will be honored with a reception at the Now we bring our office home, to the coffee shop, and to the 2021 Annual Meeting in Fort Worth. courthouse in tiny electronics. When I was in law school, I never imagined that I would be that 13-year-old kid, now 73-year-old lawyer, with a Dick Tracy device on my wrist. But there it is.

—RICHARD L. PETRONELLA Houston

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 459 [OPINION] Recovering From COVID-19 Restoring civil rights and liberties for young people in Texas schools.

written by ANDREW R. HAIRSTON

ince the tragic shooting at Columbine High School in The First Amendment does protect the freedom of speech, the Colorado in 1999, federal, local, and state policymakers have Fourth Amendment does prevent the government from conducting engaged in numerous debates on how to prevent mass unreasonable searches and seizures, and the 14th Amendment does Sshootings and ensure school safety for K-12 learners. In the extend equal protection of the law across the land. There should absence of movement on any meaningful gun control legislation, be no place where this should ring truer than within a school many policymakers turned to the idea of increasing policing, building, or, in this moment, a home where a young person has security, and surveillance budgets to address the issue of mass engaged in distance learning for the past few months. In fulfilling violence in schools. The result has been catastrophic for young the promise of Tinker, state and local jurisdictions could transform people across the United States; based on the most recently the definition of school safety. Policing and surveillance measures available federal data, black children represented 15% of the are equated with the current, broadly accepted definition of school nation’s public school enrollment and accounted for 31% of safety, and it must shift to one where a nurturing learning referrals to law enforcement across the country—a 16% disparity.1 environment is the defining characteristic of this idea. Children are frequently arrested and surveilled for routine, age- Although the landscape might be tricky, Texas could be a fertile appropriate behavior and unnecessarily placed into contact with testing ground for achieving some sense of actual school safety. the criminal legal system before they even begin high school.2 There are a few factors to consider for adopting this approach in Tens of thousands of police officers patrol schools throughout Texas. In 2019, the Texas Legislature passed SB 11, which—in the country, school districts dedicate millions of dollars to extra part—mandates behavioral threat assessment teams in local school security services, and external companies bid for the opportunity districts across the state. However, the law also creates a per-student to get their technology in the hands of state and local education school safety spending allotment.6 This money can either be spent agencies—to conduct facial recognition, social media monitoring, on mental health support services or the hardening measures and other forms of surveillance of kids.3 This “hardening” of previously discussed. Data must be collected and analyzed to schools occurs as many of them face a crumbling physical determine how local education agencies across Texas chose to infrastructure, inadequate investments in health care and mental spend this money but parents, young people, and advocates have health professionals, and high attrition rates for black teachers— consistently called for districts to prioritize the former category of who are often greatly impactful in instructing black students.4 spending.7 Finally, the federal Coronavirus Aid, Relief, and Economic With the introduction of the coronavirus pandemic onto the Security, or CARES, Act allocated money to the states to deal with global stage, the lopsided spending on these hardening measures various budget shortfalls associated with the coronavirus pandemic; has come into full focus—especially in majority black and brown the Texas Education Agency will distribute this money to local communities. With brick and mortar school buildings closed for education agencies in stages over the next several months. the remainder of the 2019-2020 school year, state legislatures, state In surviving the coronavirus pandemic, young people and their agencies, and school districts have had to contend with difficult communities will undoubtedly face unprecedented levels of trauma. questions: In addition to processing mass death, which has likely personally Where can budget cuts be justified? How can essential public affected them in some way, they must navigate the economic services be efficiently delivered in the 2020-2021 academic year devastation and the academic demands placed upon them. They and beyond? will have to deal with disciplinary referrals that may have arisen In this moment, these agencies have a unique opportunity to from their use of district-loaned technological resources, as virtual divest from these policing and security measures in favor of resources threat assessments may still proceed in Texas at this time. They will that could truly create holistic learning environments—such as return to schools in the early fall—or even later—attempting to nurses, school counselors, and trauma-informed resources for staff balance the expectations of a new school year with the impact of members and young people. Moreover, such a shift in spending prodigious loss. could stand to reinforce the idea that young people have civil rights With all of this considerable information in mind, districts can and liberties while in school, as contemplated in the seminal U.S. employ various concrete policies to minimize violations of civil Supreme Court decision of Tinker v. Des Moines Independent rights and liberties. As an initial matter, school districts should Community School District.5 Although that case dealt with a silent explore the idea of a moratorium on suspensions and expulsions high school protest of the Vietnam War, it stood for a fundamental for the 2020-2021 academic year. As they work through the PTSD principle that young people do not shed their constitutional rights caused by COVID-19, young people may express themselves in simply by crossing the threshold of a school door. Subsequent unconventional ways at school, which may be interpreted as school interpretations of the decision have ceded much deference to the disruption. A moratorium on exclusionary discipline would give security concerns of a school, but this point in the 21st century young people the license to process this trauma and also protect could be a pivotal moment for local districts to restore the teeth the First Amendment’s guarantee for freedom of speech. In a post- and spirit of the opinion. COVID-19 world, even when a young person might yell out in

460 Texas Bar Journal • July/August 2020 texasbar.com frustration, there should be resources present in their schools— and nurses could create learning environments filled with grace championed by school administrators and teachers—to allow and compassion. Moreover, a shift in spending in these areas could them to be heard and work through the pain they’re experiencing. address the unequal protection of the law that so many children Next, the state of Texas should reimagine how it approaches continue to experience in their K-12 education, demonstrated threat assessment teams. The Secret Service developed the method largely by the 16% disparity in the public school enrollment of that is widely used by threat assessment teams across the country, black children and their referrals to law enforcement.10 and a number of states have formally adopted these provisions into Generally, the road to recovery after COVID-19 will not be their education codes.8 Ostensibly, threat assessment teams identify easy; that is especially true for efforts to secure education justice. a credible threat made by a young person at school or online and Civil liberties and rights for students have been slowly eroding for move to act before it could be carried out. decades, given the overreliance on policing to address virtually all The Texas version of this program requires for school districts to school-related issues.11 However, a new standard can emerge from engage in thorough data collection and use other school resources to this moment. Toward the end of spring 2020, after the tragic murder address certain behaviors, such as substance use. Even before SB 11 of George Floyd, Minneapolis Public Schools and Portland Public went into effect, social media conduct formed the basis of many Schools took historic steps to end their longstanding school terroristic threat prosecutions throughout the state.9 Based on policing contracts.12 A significant change in spending priorities, anecdotal evidence, it appears that the use of threat assessments has accompanied with a philosophical shift, will have to deliver this not greatly altered that result. Texas Appleseed has heard fairly form of justice—one that has long been denied to so many children consistent stories from parents saying that their black daughters often in America. These recent actions prove that it is possible. receive threat assessment and disciplinary alternative education Indeed, it will be difficult, but the result will be long overdue program referrals for content posted on their personal social media and worth it. TBJ pages. School administrators and school police officers will collaborate to save the material they find on these social media channels and use Notes it for the purpose of disciplining students. School police officers will 1. 2015-2016 Civil Rights Data Collection: School Climate and Safety, U.S. Dept. of Educ. Office of Civil Rights (April 2018; revised May 2019), https://www2.ed.gov/about/offices/list/ confront the young people about the social media content and inform ocr/docs/school-climate-and-safety.pdf. them that they will face a disciplinary alternative education program 2. See, e.g., Jason P. Nance, Students, Police, and the School-to-Prison Pipeline, 93 Wash. Univ. Law Review 919 (2016). referral—all before a threat assessment team has been convened. 3. See, e.g., Cheryl Corley, Do Police Officers In Schools Really Make Them Safer?, NPR Following the formal threat assessment process, further disciplinary (Mar. 8, 2018, 5:00 AM), https://www.npr.org/2018/03/08/591753884/do-police- officers-in-schools-really-make-them-safer; see also Benjamin Herold, Schools Are action may be taken against the students. So often, the statements Deploying Massive Digital Surveillance Systems. The Results Are Alarming, Educ. Week that kick off the threat assessment process appear to be those that (May 30, 2019), https://www.edweek.org/ew/articles/2019/05/30/schools-are-deploying- massive-digital-surveillance-systems.html. were made in jest, not at all the basis of a credible threat. 4. See, e.g., Laura Jimenez, The Case for Federal Funding for School Infrastructure, Center As the Texas Education Agency awaits data from local school for American Progress (Feb. 12, 2019, 4:00 AM), https://www.americanprogress.org/issues/education- k-12/reports/2019/02/12/466104/case-federal-funding-school-infrastructure/; see also districts on the first year of statewide threat assessments, which will Matt Barnum, Black teachers leave schools at higher rates—but why?, Chalkbeat (July 25, likely be available in the last quarter of 2020, local school districts 2018, 5:06 PM), https://www.chalkbeat.org/2018/7/25/21105406/black-teachers- leave-schools-at-higher-rates-but-why. should take the bold step of halting threat assessments over the 5. 393 U.S. 503 (1969). summer—and for at least the first half of the next school year. In 6. See generally School Safety after Senate Bill 11, Tex. Ass’n of Sch. Bds. (2019), https://www.tasb.org/ services/legal-services/tasb-school-law-esource/business/documents/school-safety- their place, schools can employ Multi-Tiered Systems of Support, after-senate-bill-11.pdf. or MTSS, and Positive Behavioral Interventions and Supports, or 7. See, e.g., Tracy Maness, Memorial students advocate for better mental health services, Houston Chronicle (Feb. 14, 2019, 12:49 PM), https://www.chron.com/neighborhood/ PBIS. Pulling back on threat assessments would be especially memorial/news/article/Memorial-students-advocate-for-better-mental- important during a time when the lines are blurred between 13617046.php. 8. See generally NTAC—National Threat Assessment Center, Dept. of Homeland Sec., school-related activities and non-school-related activities, which https://www.secretservice.gov/protection/ntac/; see also Stephen Sawchuk, What are all occurring at home. Even if school districts don’t halt threat Schools Need to Know About Threat Assessment Techniques, Educ. Week (Sept. 4, 2019), https://www.edweek.org/ew/articles/2019/09/04/what-schools-need-to-know-about- assessments, they should be viewed as an extraordinary measure threat.html. 9. See, e.g., Deborah Fowler & Morgan Craven, Collateral Consequences, Tex. Appleseed, and an action of last resort. available at http://stories.texasappleseed.org/collateral-consequences (last visited on If schools suspect that conduct arises from mental health June 8, 2020). 10. Supra n.1. challenges or substance use, they should use the provisions of SB 11. Cops and No Counselors: How the Lack of School Mental Health Staff is Harming 11 that authorize existing school-based programs to step in and Students, ACLU, https://www.aclu.org/sites/default/files/field_document/030419- acluschooldisciplinereport.pdf. address the behavior. In a similar vein to the proposed exclusionary 12. Katie Reilly, ‘Police Do Not Belong in Our Schools.' Students Are Demanding an End to discipline moratorium, pausing threat assessments would allow Campus Cops After the Death of George Floyd,’ Time (June 5, 2020, 12:26 PM), https://time.com/5848959/school-contracts-police/?utm_source=twitter&utm_ young people to freely express themselves and openly communicate medium=social&utm_campaign=editorial&utm_term=_&linkId=90212299. with each other during this tumultuous time—all without fear of getting in trouble for it. This approach would also honor the spirit of the Fourth Amendment, as such exhaustive examinations of Opinions expressed on the Texas Bar Blog and in the Texas Bar Journal are solely those of the authors. Have an opinion to share? Email us your letters to the young people’s social media accounts could trigger a search in the editor or articles for consideration at [email protected]. View our submission right case. guidelines here. Finally, schools should broadly divest from school policing, security, and surveillance and repurpose those funds for mental health support services and professionals. In Texas, these hardening ANDReW R. HAIRstoN measures disproportionately harm black and Latinx children, LGBTQ is a project director at Texas Appleseed, a public interest young people, and kids with disabilities. The state response to the justice center based in Austin. At Texas Appleseed, he works coronavirus pandemic, and efforts to rebuild, present a critical to dismantle the school-to-prison pipeline and support educational equity initiatives for historically underserved juncture where these harms can begin to be repaired. Prioritizing students. Hairston earned his bachelor’s degree from Howard investments in school counselors, social workers, psychologists, University and his law degree from Louisiana State University.

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 461 [OPINION]

LOVE (OF THE CONSTITUTION) AND LIBERTY IN THE TIME OF COVID-19 The role of a lawyer is vigilance. written by ELIZABETH BRENNER

riting this article in my home office, I look back wistfully at the carelessness with which I did what was once so mundane: meeting face to face with a client, going to an office, a courthouse, a grocery store, a W restaurant, a coffee shop. I moved through the world with an ease that I took for granted. What was once the realm of the ordinary came to a swift and sharp halt as cities and states began implementing measures forcing us to stay home. Beginning in March, most of us could no longer leave our houses except to perform what the government deemed to be an “essential activity” or to work in an “essential business.” Cities, counties, and states issued orders shuttering business, prohibiting public gatherings and religious services, mandating people to stay inside, and restricting our contact with one another. And this is not all. States across the nation passed laws burdening the right to interstate travel. Many courts ceased all but emergency hearings, delaying access to justice for tens of thousands, including the most vulnerable. The Centers for Disease Control and Prevention is now receiving location data from our cellphones to track the spread of the coronavirus.1 The government may begin working with private application developers to use phone-tracking applications to trace our movements to reduce spread of the virus. Within a matter of months, the government implemented extraordinary and unprecedented restraints on many of our fundamental liberties: the Free Exercise Clause of the

462 Texas Bar Journal • July/August 2020 texasbar.com First Amendment; the First Amendment right to assembly; the right prevention, and as we develop new technology and treatments to interstate travel under the Commerce Clause; privacy rights to reduce its effects. Government imposed restrictions that survive under the Fourth Amendment; and for those lingering in prisons strict-scrutiny analysis today will likely not meet this standard and jails, the right to a speedy trial under the Sixth Amendment. in the future. Even as states loosen restrictions, these measures But these are unprecedented times. We are in the midst of the may return with the ebb and flow of coronavirus transmission. worst pandemic in a century in which there is no cure; there is no In this global crisis, we all have a place in public service: vaccine, treatment is extremely limited, and the only known sources thousands of health care providers risk their lives to save ours daily; of prevention are good hygiene, tracing, and restricting human scientists across the globe work at a superhero’s pace for a vaccine; contact. The virus itself and the method of spread is not yet fully grocery workers, delivery drivers, and mail carriers venture out into understood. As of this writing over 100,000 people have died in the the world so we can safely access our basic needs from home. U.S. alone in just a few months from a virus that seems to be most As lawyers, we have a role as well: our job is vigilance. As infectious through droplets in the air. By acting quickly, our local and Thurgood Marshall once said, “grave threats to liberty often state governments limited the impact of the spread, giving scientists come in times of urgency.” Power once in the hands of time to better understand the virus and health officials time to authority can be difficult to unravel. We witnessed a huge reinforce our health care system, potentially saving tens of thousands expansion of government surveillance after 9/11 that still exists of lives. Swift government action was literally a matter of life or death. today. In times of war, there is a delicate balance between In the midst of a public health emergency, state and local national security and personal liberties. Lawyers have the governments indeed have the authority to enact measures to unique power—and therefore responsibility—to be sure the protect the welfare, health, and safety of their residents. What government doesn’t upset or abuse this precarious balancing act. would in other circumstances be an imposition on In late March, Politico reported that in response to the constitutionally protected rights is within the realm of states’ pandemic, the Department of Justice sought emergency police powers under the 10th Amendment, which include, for powers from Congress to detain individuals indefinitely example, forced isolation for public health purposes.2 In fact, without trial.9 Whether access to justice, constitutionally on May 30, 2020, the U.S. Supreme Court in a 5-4 decision protected health care services, or the ballot box, we must be considered and denied injunctive relief against the state of wary of governmental overreach in times of crisis. As we California for limiting gatherings in churches. Chief Justice continue to grapple with measures to limit the devastating John Roberts in his concurring opinion recognized the effects of the virus, it is up to lawyers and policymakers to uniqueness of our “extraordinary health emergency” that is ensure such measures don’t have lasting impact on our “fraught with medical and scientific uncertainties” as well as fundamental rights. Let’s not have to be wistful about the loss the highly contagious nature of the virus, stating that leeway of constitutional freedoms we once took for granted. should be given to states’ power to protect health and safety.3 Stay safe out there—and be vigilant. TBJ When restricting fundamental rights such as those under the First Amendment, the state must survive a strict scrutiny analysis; Notes the government must use the least restrictive means necessary to 1. Byron Tau, Government Tracking How People Move Around in Coronavirus Pandemic, Wall Street J. (Mar. 28, 2020), https://www.wsj.com/articles/government-tracking- achieve a compelling government interest. In March, a judge upheld how-people-move-around-in-coronavirus-pandemic-11585393202. a challenge to New Hampshire’s statewide ban on gatherings of 50 2. Gibbons v. Ogden, 22 U.S. 1 (1824); Compagnie Francaise v. Bd. of Health, 186 U.S. 380 (1902). people or more. Explaining the clear and compelling government 3. S. Bay United Pentecostal Church v. Gavin Newsom, Governor of California, 590 U. S. ____ interest, the court cited the “imminent danger” of the virus stating (2020) citing Marshall v. United States, 414 U.S. 417, 427 (1974). 4. David Binford, Holly Beene and Eric Couture v. Chris Sununu, Docket No. 217-2020- that it could not “imagine a more critical public objective than CV-00152 (N.H. Sup. Ct. March 25, 2020). protecting the citizens of this state and this country from becoming 5. Gov. Abbott issued Executive Order No. GA-11 and Executive Order No. GA-12 requiring anyone entering Texas by plane from New York, Connecticut, or New 4 sick and dying from this pandemic.” In the court’s opinion, the fact Jersey—or by plane or car from New Orleans, Louisiana—to self-quarantine for 14 that the ban had an expiration date on the restriction helped it meet days. On March 30, 2020, the travel restrictions were expanded to include California, Louisiana, Washington, Georgia, Illinois, Michigan, and Florida. These orders were the least-restrictive-alternate test. rescinded by subsequent Executive Order GA-24 of May 21, 2020. Governors, including Gov. Greg Abbott,5 temporarily 6. Edwards v. Calif., 314 U.S. 160 (1941); Saenz v. Roe, 526 U.S. 489 (1999). 7. Bayley’s Campground, Inc. v. Mills, No. 2:20-cv-00176-LEW (D. Me. May 29, 2020). curtailed interstate travel by imposing a mandatory quarantine 8. Id. on those arriving from certain states with high incidence of the 9. Betsy Woodruff Swan, DOJ seeks new emergency powers amid coronavirus pandemic, Politico (Mar. 21, 2020, 1:01 PM), https://www.politico.com/news/2020/03/21/doj- virus. These policies, as wise as they may have been given the coronavirus-emergency-powers-140023. national health emergency, implicate our constitutional right to interstate travel.6 A challenge to the state of Maine’s quarantine Opinions expressed on the Texas Bar Blog and in the Texas Bar Journal are solely those of the authors. Have an opinion to share? Email us your letters to the was rejected by a federal court using a strict-scrutiny analysis.7 editor or articles for consideration at [email protected]. View our submission The court found that while a fundamental right was burdened guidelines here. by the travel restrictions, the plaintiffs failed to show a less restrictive way for the state to reduce the spread of the virus.8 But not every form of exercise of a state’s police power is elizabeth breNNer constitutional even in the midst of a national health emergency. is an attorney with Burns Anderson Jury & Brenner in Government action that falls within the rubric of “compelling Austin, where she practices probate and trust litigation, probate administration, and guardianship. She began her government interest” and “least restrictive means” will likely career in public interest work. shift as we understand more about the virus, including means of

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 463 LGBT n recent sessions, the Texas Legislature has been pulled in Iseemingly opposite directions over LGBT equality and religious liberty. But the U.S. Supreme Court has intimated EQUALITY, that these interests can, and should, be reconciled. LGBT-equality advocates cite evidence of considerable discrimination against gay and transgender people in employment, RELIGIOUS housing, and public accommodations.1 Religious-liberty advocates say they fear an increasingly hostile culture toward traditional views LIBERTY, AND about human sexuality, gender, and marriage.2 Both claim a need to be legally protected not just in constitutionally sensitive private spheres (like homes and churches) but in heavily regulated public MASTERPIECE ones (like employment and business services). One major debate, whether states must recognize same-sex marriages, was decided in favor of gay couples in Obergefell v. CAKESHOP Hodges (2015).3 More than 513,000 same-sex couples are now married in the United States.4 The celebration of these marriages has also occasioned a few high-profile confrontations between Issues to consider. gay couples and wedding-service providers. The larger issue of interest-reconciliation received suggestive treatment in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n

written by DALE CARPENTER (2018), which held that such disputes could not be adjudicated with animus toward religion.5 Enter the Texas Legislature, where clashes between LGBT- equality advocates and religious traditionalists have repeatedly erupted. In the 2019 session, more than 20 bills opposed by Equality Texas, the statewide LGBT-lobbying organization, were filed.6 Several of the bills sought specific faith-based exemptions from occupational regulations and local nondiscrimination laws.7 One, dubbed the “license to discriminate” bill by opponents, would have prohibited licensing agencies or other state regulatory authorities from taking adverse action against a service provider who claimed a regulation burdened their religious beliefs. The bill was not limited to shielding religious objections based on sexual orientation or gender identity. However, it would have had a disparate impact by permitting widespread denials of service to LGBT people, who are not otherwise protected by state or federal law.8 The bill passed the Senate but died in the House.9 The only religious-liberty measure that actually became law, commonly known as the “Save Chick-fil-A” bill, amended the Texas Government Code to prohibit adverse state action against an individual or business based on membership in, or support of, a religious organization.10 The law is not limited to protecting only those who oppose LGBT equality. However, impetus for the bill arose after San Antonio decided not to award an airport- concession contract to Chick-fil-A, which had previously donated funds to Christian groups opposed to same-sex marriage.11 In many respects, the law duplicates existing constitutional protection against government action targeting religion. LGBT-equality advocates countered with proposals of their own in 2019. These included bills to ban discrimination based on sexual orientation and gender identity in employment, housing, public accommodations, state contracting, and other domains. The bills generally exempted religious organizations.12 Other bills banned “conversion therapy” by mental health providers to try to change a minor’s sexual orientation or gender identity,13 a practice opposed by the major

464 Texas Bar Journal • July/August 2020 texasbar.com national mental health associations. with nondiscrimination laws under Free Speech or Free Exercise principles. 6. 2019 Equality Texas Legislative Scorecard, Equality Tex. 22, https://www.equalitytexas.org/ These bills did not pass either. The net result was a stand-off wp-content/uploads/2019/10/EQTX-2019-Legislative-Scorecard.pdf (last visited June 3, in 2019. 2020). 7. See Tex. H.B. 4497, 86th Leg., R.S. (2019), https://legiscan.com/TX/text/HB4497/2019; Controversies may flare again in the 2021 session. In Tex. H.B. 1035, 86th Leg., R.S. (2019), https://legiscan.com/TX/text/HB1035/2019 January, Virginia became the first Southern state to approve a (religious exemption for “marriage-related goods and services” and for the belief that 14 “male,” “man,” “female,” and “woman” refer to “immutable biological sex” as comprehensive LGBT nondiscrimination statute. In May, a determined by “anatomy and genetics” at birth); Tex. S.B. 1107, 86th Leg., R.S. bipartisan group of Texas lawmakers announced plans to (2019), https://legiscan.com/TX/text/SB1107/2019; Tex. H.B. 2892, 86th Leg., R.S. 15 (2019), https://legiscan.com/TX/text/HB2892/2019 (conscience exemption for health introduce similar legislation in 2021. They are touting care providers to refuse services); Tex. S.B. 85, 86th Leg., R.S. (2019), 16 benefits to the state economy from such a law. https://legiscan.com/TX/text/SB85/2019 (religious exemption to permit psychologists to refuse services); Tex. H.B. 4357, 86th Leg., R.S. (2019), Opponents of such nondiscrimination laws may demand https://legiscan.com/TX/text/HB4357/2019 (religious exemption to permit mental new religious exemptions. Texas Values, a religious-conservative health providers to refuse services); Tex. H.B. 4512, 86th Leg., R.S. (2019), lobby, has identified several priorities.17 The Baptist General https://legiscan.com/TX/text/HB4512/2019; Tex. S.B. 1009, 86th Leg., R.S. (2019), https://legiscan.com/TX/text/SB1009/2019 (religious exemption allowing refusal to Convention of Texas has called for laws allowing “faith-based solemnize marriages). family service providers” to refuse service “based on their deeply 8. Unlike most states, Texas has no law prohibiting discrimination in public accommodations. 18 As of this writing, three related cases before the Supreme Court may determine whether held religious beliefs.” sexual-orientation and gender-identity employment discrimination are already Is there a way forward? In Masterpiece Cakeshop, the U.S. prohibited as forms of sex discrimination under Title VII. Amy Howe, Argument Analysis: Justices Divided on Federal Protections for LGBT Employees (UPDATED), Supreme Court unanimously affirmed that states have the power SCOTUSblog (Oct. 8, 2019, 2:14 PM), https://www.scotusblog.com/2019/10/ to broadly protect LGBT Americans from private discrimination.19 argumentanalysis-justices-divided-on-federal-protections-for-lgbt-employees/. However the cases are decided, the outcome may influence how sex discrimination is understood for Even the most conservative members of the court agreed: purposes of other federal and state nondiscrimination laws. 9. Progress of S.B. 17 Through the Texas Legislature, Tex. Leg. Online, https://www.legis.state.tx.us/ BillLookup/BillStages.aspx?LegSess=86R&Bill=SB17. Our society has come to the recognition that gay persons 10. Tex. Gov’t Code Ann. § 2400.002. and gay couples cannot be treated as social outcasts or as 11. Rebekah Allen & Lauren McGaughy, ‘Save Chick-fil-A’ Bill Signed into Law by Texas Gov. Greg Abbott, Dallas Morning News (June 11, 2019 3:30 PM), inferior in dignity and worth. For that reason the laws and https://www.dallasnews.com/news/politics/2019/06/11/save-chick-fil-a-bill-signed- the Constitution can, and in some instances must, protect into-law-by-texas-gov-greg-abbott/. 20 12. Tex. S.B. 151, 86th Leg., R.S. (2019) https://legiscan.com/TX/text/SB151/2019; Tex. them in the exercise of their civil rights. H.B. 244, 86th Leg., R.S. (2019), https://legiscan.com/TX/text/HB244/2019; Tex. H.B. 254, 86th Leg., R.S. (2019), https://legiscan.com/TX/text/HB254/2019; Tex. The court noted that religious objections to same-sex H.B. 2692, 86th Leg., R.S. (2019), https://legiscan.com/TX/text/HB2692/2019. 13. Tex. H.B. 4466, 86th Leg., R.S. (2019), https://legiscan.com/TX/text/HB4466/2019; marriage are “in some instances protected forms of expression.” Tex. S.B. 1251, 86th Leg., R.S. (2019), https://legiscan.com/TX/text/SB1251/2019; But it added that “such objections do not allow business owners Tex. H.B. 1190, 86th Leg., R.S. (2019), https://legiscan.com/TX/text/HB1190/2019; Tex. H.B. 517, 86th Leg., R.S. (2019), https://legiscan.com/TX/text/HB517/2019. and other actors in the economy and in society to deny 14. H.B. 1049, 2020 Gen. Assemb., R.S. (Va. 2020), https://legiscan.com/VA/text/HB1049/ protected persons equal access to goods and services under a id/2182961. 21 15. Allie Morris, LGBTQ Texans Would Get Nondiscrimination Protection Under Proposed neutral and generally applicable public accommodations law.” Bipartisan Texas House Legislation, Dallas Morning News (May 27, 2020, 12:26 PM) The U.S. Constitution does not require Texas to protect https://www.dallasnews.com/news/politics/2020/05/27/lgbt-texans-would-get- nondiscrimination-protection-under-proposed-bipartisan-texas-house-legislation/. LGBT persons from such private discrimination. Nor does it 16. One economist projects an increase of $19.8 billion in annual tech and tourism gross require Texas to excuse all faith-based objections from product and 180,000 new jobs by 2025. The Potential Impact of a Comprehensive Non- Discrimination Act on Business Activity in Texas, Perryman Group (May 27, 2020), compliance with nondiscrimination laws. The Legislature could https://www.perrymangroup.com/publications/report/the-potential-impact-of-a- choose a winner-take-all approach. comprehensive-non-discrimination-act-of-business-activity-in-texas/. 17. Issues, Tex. Values, https://txvalues.org/issues/ (last visited June 3, 2020). Texas Values Or the Texas Legislature could choose to accommodate the is concerned about attempts to pass LGBT nondiscrimination ordinances at the local core needs of both LGBT residents and religious traditionalists. level. James Wesolek, San Marcos Sneaks in LGBT Policy During COVID-19, Tex. Values (May 14, 2020), https://txvalues.org/2020/05/14/san-marcos-sneaks-in-lgbt- Specifically admonishing only adjudicators, the court concluded policy-during-covid-19/. its Masterpiece Cakeshop decision with words that might also 18. Religious Liberty, Baptist Gen. Convention of Tex., https://texasbaptists.org/ministries/ guide legislators in the next session: “[T]hese disputes must be clc/public-policy/issues/religious-liberty (last visited on June 3, 2020). Religious traditionalists are also expected to push back specifically on a range of transgender resolved with tolerance, without undue disrespect to sincere issues, including participation in school sports. Webinar: Preview to Texas Legislature— religious beliefs, and without subjecting gay persons to indignities Anti-Trans Bills, Equality Tex. (April 22, 2020), https://www.equalitytexas.org/ 22 webinar-preview-to-texas-legislature-anti-trans-bills/. when they seek goods and services in an open market.” TBJ 19. Masterpiece Cakeshop, 138 S. Ct. at 1731. 20. Id. at 1727. 21. Id. This principle applies to employers and landlords, as well as service providers. notes 22. Id. at 1732. 1. Christy Mallory, Taylor N.T. Brown, Stephen Russell & Brad Sears, The Impact of Stigma and Discrimination Against LGBT People in Texas, UCLA Sch. of Law Williams The author would like to thank his research assistants, Nita Hight and Joe LeCroy, Inst., April 2017, at 25-30, https://williamsinstitute.law.ucla.edu/wp-content/uploads/ for their excellent work on this article. Impact-LGBT-Discrimination-TX-Apr-2017.pdf. 2. Lathan Watts, CNN’s Opinion Column Grossly Mischaracterized Those of Us Who Fight for Religious Freedom, FIRST LIBERTY INST. (May 29, 2020), https://firstliberty.org/news/cnns- opinion-grossly-mischharacterized-religious-freedom/. 3. Obergefell v. Hodges, 135 S.Ct. 2584, 2608 (2015). 4. Christy Mallory & Brad Sears, The Economic Impact of Marriage Equality Five Years After Obergefell v. Hodges, UCLA Sch. of Law Williams Inst., May 2020, at 1, Dale Carpenter https://williamsinstitute.law.ucla.edu/wp-content/uploads/Economic-Impact-SS- is a professor of law and the Judge William Hawley Atwell Marriage-May-2020.pdf. Chair of Constitutional Law at SMU Dedman School of Law. 5. Masterpiece Cakeshop Ltd., v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018) (holding that Colorado could not enforce a nondiscrimination law against a baker who refused to make a wedding cake for a gay couple). The court side-stepped larger questions about whether wedding-service providers must be generally excused from compliance

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 465 Lawyers facing the consequences for sharing controversial WATCH YOUR comments online is hardly a new phenomenon. In 2016, Florida prosecutor Kenneth Lewis posted comments on Facebook after the Pulse nightclub mass shooting in Orlando, TWEETS AND Florida, seemingly blaming the victims as he referred to such nightspots as “utter cesspools of debauchery” and calling for the city of Orlando to be “leveled.” Lewis was fired shortly WASH YOUR thereafter.2 In September 2017, Travis County attorney Robert Ranco criticized U.S. Secretary of Education Betsy DeVos’ Title IX policies, tweeting that he was “ok if #BetsyDevos was HANDS sexually assaulted.” The firestorm ignited by Ranco’s comments led to Ranco’s resignation from the Austin civil Digital hygiene for the rights firm where he was a partner.3 The following month, CBS vice president and senior COVID-19 pandemic. counsel Hayley Geftman-Gold posted comments in a Facebook exchange that were decidedly unsympathetic to victims of the tragic Las Vegas, Nevada, mass shooting during a country music concert on October 1, 2017. Using a slur for written by JOHN G. BROWNING Republicans, Geftman-Gold posted, “I’m actually not even sympathetic [because] country music fans often are uring this pandemic, anxiety over the physical and Republican gun toters.”4 She was quickly fired, as CBS economic well-being of our country can feel distanced itself from her, stating, “Her views as expressed on overwhelming. Add in the stress of sheltering in place social media are deeply unacceptable to all of us at CBS. Our D 5 and working from home (for those who are still hearts go out to the victims in Las Vegas and their families.” working), and it’s understandable why people seem more But losing a prestigious in-house job and being at the active on social media than ever, reaching out seeking to epicenter of a high-profile controversy was just the beginning reduce that “social distance” if only in a virtual sense. And as for Geftman-Gold. A group called Citizens for Judicial with any major newsworthy subject, social media brings out Reform initiated an online petition calling for the New York the best and worst in us—sharing stories of hope and State Bar Association to take professional disciplinary action resilience that comfort us, along with conspiracy theories and against her over the “reprehensible and despicable remarks,” partisan attacks that divide us. Yet it’s vital for lawyers to questioning whether she was capable of remaining remember that venting on social media carries unique risks professional in response to a national tragedy. Within days, including disciplinary action, loss of employment, and the petition had over 12,000 signatures.6 damages to professional and personal reputations.1 With a more casual “WFH” environment, easy access to

466 Texas Bar Journal • July/August 2020 texasbar.com online platforms, and the constant worry about COVID-19’s freedom of speech also comes with ethical limitations such as impact on our health and our economy combining to form a the duty to protect our clients’ confidential information. perfect storm, it’s hardly surprising that lawyers and law firms There’s also the risk of creating a “positional” conflict of also have had to contend with fallout from controversial interest. In November 2016, the District of Columbia Bar pandemic-related social media posts. California lawyer Scott Legal Ethics Committee became the first in the country to McMillan, 56, has faced widespread criticism and even death address the risk of creating such conflicts when blogging, threats for a “glib” tweet about the pandemic’s impact on the posting, or tweeting about legal developments or even news. economy. McMillan tweeted, “The fundamental problem is When a lawyer advances one position online but is called upon whether we are going to tank the entire economy to save to argue the opposite on a client’s behalf, a “positional” conflict 2.5% of the population which is (1) generally expensive to exists. For example, a lawyer whose firm represents the maintain, and (2) not productive.”7 The tweet triggered a viral National Rifle Association or a firearms manufacturer might backlash, leading McMillan to take it down and express be seen as having taken a position contrary to his or her client regrets. “Had I been a little bit more thoughtful of the if he or she sent a tweet deploring the proliferation of guns. situation people were going through,” McMillan With internet sources having displaced personal acknowledged, “I wouldn’t have said it.”8 recommendations as the leading method for obtaining legal Louisville, Kentucky, lawyer James Troutman, 53, is facing services, a lawyer’s online persona is more important than not just online critics, but criminal charges for his pandemic- ever. What’s posted or tweeted online has a permanence and a related Facebook posts. In one post critical of Kentucky Gov. potential to reach wide audiences that lawyers (and many Andy Beshear’s handling of the crisis, Troutman said someone others) frequently underestimate. In this era of endless hand should ask the governor about “his thoughts on William washing, wipes, and sanitizers, remember to practice good Goebel” (a reference to Kentucky’s 34th governor, who was digital hygiene too. Make sure you understand the shot in 1900 the day before he took office).9 In another functionality of any social media site you use, including its Facebook post that referenced a rally to protest business privacy protocols. Bottom line—if you wouldn’t express it in a closings and whether authorities would be “shooting” phone call, a letter, or a pleading filed with the court, then (recording) the license plates of protesters, Troutman allegedly don’t share it with the world on social media. TBJ stated, “With any luck the gov will be the one at whom the shooting will be directed.” As a result, Troutman was arrested Notes and charged with “terroristic threatening,” a misdemeanor 1. See generally John G. Browning & Jan L. Jacobowitz, Legal Ethics and Social Media: A 10 Practitioner’s Handbook (2017). that carries a maximum punishment of a year in jail. 2. Id. at 217–18. 3. James Wilkinson, Texas professor resigns from law firm after tweeting he’d be ‘ok’ with Betsy And it’s not just our own comments as lawyers engaging DeVos being sexually assaulted after she changed Title IX rules for campus rape cases, on social media that we need to be mindful of; under Texas DailyMail.com (Sept. 12, 2017, 3:59 PM), https://www.dailymail.co.uk/news/article- 4877732/Texas-prof-tweeted-d-OK-DeVos-sex-assault.html. Disciplinary Rule of Professional Conduct 5.03, attorneys 4. Debra Cassens Weiss, CBS fires lawyer over Facebook posts calling Vegas shooting victims must also make “reasonable efforts to ensure” that the conduct likely ‘Republican gun toters’, ABA J. (Oct. 2, 2017, 2:56 PM), https://www.abajournal.com/news/article/cbs_fires_lawyer_over_facebook_comments of nonlawyers whom they supervise “is compatible with the _calling_vegas_victims_likely_republ. professional obligations of the lawyer.” Lawyers at Dallas- 5. Id. 6. Jennifer Williams-Alvarez, Petition to Look at Former CBS Lawyer Underscores Ethical Risks based Thompson & Knight certainly had this in mind in early of Social Media, Law.com (Oct. 6, 2017, 7:33 PM), https://www.law.com/insidecounsel/sites/ May when they learned that the firm’s document services insidecounsel/2017/10/06/petition-to-look-at-former-cbs-lawyer-underscores-ethical- risks-of-social-media/?slreturn=20180201132812. manager, Kevin Bain, had made disturbing comments on 7. Debra Cassens Weiss, Lawyer’s ‘glib’ coronavirus tweet spurs outrage and death threats, Facebook related to his anger at retail businesses requiring ABA J. (Mar. 27, 2020, 11:39 AM), https://www.abajournal.com/news/article/lawyers- coronavirus-tweet-spurs-outrage-and-death-threats. shoppers to wear face masks during the pandemic. Referring 8. Id. 9. Debra Cassens Weiss, Lawyer is accused of threatening governor in social media posts, ABA to a local grocery store’s policy, Bain posted that any business J. (Apr. 24, 2020, 4:17 PM), https://www.abajournal.com/news/article/lawyer-is- insisting that he wear a mask “will get told to kiss my Corona accused-of-threatening-governor-in-facebook-posts. 10. Id. ass and will lose my business forever.” Following a series of 11. Aebra Coe, Thompson & Knight Fires Manager For COVID-19 Mask Post, Law360 threatening comments, Bain went on to say, “They have (May 9, 2020, 6:41 PM), https://www.law360.com/articles/1272075/thompson- knight-fires-manager-for-covid-19-mask-post. reached the limit. I have more power than they do . . . they 12. Id. just don’t know it yet.”11 Thompson & Knight reacted swiftly to their employee’s social media outburst, firing Bain for the “threatening and offensive” post. The firm also released a statement, saying, “This post is a complete violation of the values of our firm, including our commitment to the health and safety of the communities we serve. We have terminated this individual’s JoHN G. BRoWNING employment and notified the proper authorities about the is a partner in Spencer Fane in Plano, where he handles 12 commercial litigation, employment, health care, and post as a precaution.” personal injury defense matters in state and federal courts. While lawyers have the same First Amendment rights as He is an award-winning legal journalist for his syndicated any other citizen, their rights are not without risks—such as column, “Legally Speaking,” and is the author of the Social Media and Litigation Practice Guide and a forthcoming the risk of losing clients or one’s job, as well as risking damage casebook on social media and the law. Browning is an adjunct professor to one’s reputation. Additionally, for a lawyer, the right to at SMU Dedman School of Law.

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 467 ‘YOU HAVE A VOICE’

The Texas Young Lawyers Association president seeks to empower future leaders of the legal profession.

interview by ERIC QUITUGUA

RIGHT: “As a young lawyer, you are constantly faced with new challenges and new opportunities,” Texas Young Lawyers Association President Britney Harrison said. “Though the lessons learned may come from mistakes or failures, it is completely worth it.”

hen Britney Harrison was a kid, she aspired WHAT PIQUED YOUR INTEREST IN FAMILY LAW? to work for the FBI as the real-life Clarice I worked at a litigation boutique my first three years of W Starling, making sure from an early age to practice but did not have much courtroom exposure. The one keep her background as clean as possible for time I did go to court, I saw that the majority of the cases future background checks. But as lousy eyesight would have were family law cases. I decided to take a pro bono divorce it, a life of chasing cannibalistic serial killers as a federal agent case through Volunteer Legal Services in Austin. Once I met wasn’t in the cards. with the client and developed a plan of action, I fell in love Instead, Harrison went the law route after being inspired with family law. I realized what was missing from my current by a criminal law course she took at the University of North work (other than the lack of actual litigation)—I was not able Texas. The criminal justice major and social science minor to help people on an individual basis. I was finally able to moved on to earn a law degree at the University of Texas combine my two passions, litigation and helping individuals. School of Law. And after working with clients pro bono, she YOU ALSO HELPED YOUR DAD GO TO COLLEGE. TELL US MORE realized she wanted to work in family law. ABOUT THAT. Perhaps that’s no shocker as Harrison is close with her own I’ve always been a “daddy’s girl.” My dad was the best family. She grew up in north Austin within a five-mile radius person I knew, and he understood and appreciated my of most of them, joining in Bible school, Pop Warner extreme nerdiness, which I fully embrace now. He worked for cheerleading, tap dancing, twirling, and cooking wars on UPS for 30 years as a delivery driver. He worked hard to allow holidays. Not shying away from her self-described nerdiness, my mom to stay home with my sister and me—which we Harrison admits to playing school with her cousins in the were very fortunate to have. He always dreamed of finishing summer and thanks to that scholarliness, we find her now at college and becoming a teacher. I remember him tutoring the helm of the Texas Young Lawyers Association. students after working long days delivering packages and even Harrison, who was sworn in June 26, 2020, spoke with the attending some night classes at Austin Community College. Texas Bar Journal about her plans for promoting financial When I learned he was finally able to retire and wanted to literacy and business planning as well as educating students on go back to school, I had to help. It worked out that he was pioneering women in civil rights in the upcoming year for TYLA. retiring the same month that I was graduating from law

468 Texas Bar Journal • July/August 2020 texasbar.com school. I had a job lined up and knew that I could afford to am so excited that we received a grant from the Texas Bar pay his tuition. I wanted him to be able to be a full-time Foundation to develop a program called Iconic Women in student and not have to carry the burden of student loans in Legal History, which will consist of educational videos and his retirement. He reapplied to Texas, was accepted, and written content satisfying state educational curriculum started back in fall 2010. He graduated December 2013. focused on the role of women and their organizations in Dropping him off to line up in the robing room where I had promoting and protecting civil rights. gone for two of my graduations was so surreal. That was one of our family’s favorite memories. We are so proud of him! WHO IS THE BIGGEST INFLUENCE IN YOUR CAREER? John Barrett in Austin. I tried my first case with him. We WHEN DID YOU FIRST BECOME INVOLVED WITH TYLA AND WHY? were preparing for trial and I was extremely nervous about Early on in my career I learned about TYLA and saw all of putting on my first witness. He said four simple words that the projects that TYLA developed. I was so encouraged by the literally changed the trajectory of my career and helped me amount of resources available for the boost my confidence. He said, “You public and members of the bar. The have a voice.” I wrote those four small servant leader approach was right up but powerful words down on a Post-it my alley, and I knew TYLA would be and put it in my trial binder. I will a wonderful way for me to give back carry those words with me the rest of and serve others. I applied to TYLA my life. Honestly, I don’t know that I for an at-large large city director spot would have run for president-elect in spring 2015. However, my had I not had that encouragement application was not selected. I was sad from John early on in my career. but did not give up. I applied for Though he’s retired now and I moved LeadershipSBOT that summer and to Dallas, to this day, I still call him had the wonderful experience learning to get advice as well as hear one of his more about TYLA, the State Bar, and “war stories.” I always learn leadership in general. I knew that something every time we talk. serving on the board was the next WHAT’S THE BEST PIECE OF ADVICE step. I applied again for the at-large YOU’VE RECEIVED? position the next year and was In addition to “You have a voice,” selected. As soon as I went to new other words I live by: “All money is director orientation, I was hooked. not good money.” My mom has always said that phrase and it applies in so WHAT PROJECTS HAVE YOU WORKED ON THAT YOU’RE THE MOST PROUD OF? many different situations. I left a big The Free from Violence website firm salary behind to pursue my passion aimed toward survivors of domestic as a family lawyer. Best decision I could abuse and elder abuse and the Not a have ever made. Though family law Victim website are probably my favorite can be stressful, I love my job. I’ve projects. Both projects featured declined to take a case despite a client compelling stories about survivors and willing to pay a high retainer. Some their journey to rebuild their lives. They situations are not worth the hassle. educated the public about the WHAT’S THE TOUGHEST PART ABOUT resources available to survivors and BEING A YOUNG ATTORNEY? the legal rights and responsibilities ABOVE: (Top) Britney Harrison poses with her family during Confidence. I am often faced with related to domestic violence and her father’s commencement ceremony at the University of opposing counsel who have had decades Texas in fall 2013. From left: sister Brandi Harrison Trotter, sexual assault from the perspective of mother Jackie Harrison, father Richard Harrison, Britney of experience. You can feel unsure survivors, family, and friends as well Harrison, and nephew Brayden Harrison. about yourself, but I find it best to (Bottom) John Barrett and Britney Harrison at the 2019 as the accused. Advanced Family Law CLE in San Antonio. turn that around and just prepare even harder. I don’t second-guess WHAT WILL BE YOUR FOCUS GOING INTO YOUR YEAR AS PRESIDENT? myself as much now that I am almost 10 years in, but I still We have so many great projects that center around have some of those nights where the anxiety keeps me up. empowerment, innovation, and education. I plan to focus on young lawyer issues such as business development and WHAT’S THE MOST REWARDING PART? financial literacy as well as providing resources and Gaining knowledge and learning lessons. I am the type of opportunities meant to empower young lawyers to become person that always enjoyed school and enjoyed learning. (Confession, our future leaders of the profession. Given the current nature one of my favorite summer pastimes was playing school with my of things (i.e., the pandemic), we will need to be innovative in cousins.) As a young lawyer, you are constantly faced with new our approach to reaching the public. This will come in the challenges and new opportunities. Though the lessons learned form of podcasts and other virtual events and programming. I may come from mistakes or failures, it is completely worth it. TBJ texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 469 2019-2020 STATE BAR OF TEXAS COMMITTEE {REPORTS } Committee reports are included in the July/August issue of the Texas Bar Journal to update Texas lawyers on State Bar activities. The reports do not necessarily reflect the position or official policy of the State Bar of Texas, which is formulated by the State Bar Board of Directors or by the membership through referendum. For more information or to complete a Committee Volunteer Interest Form, go to texasbar.com/committees or call 800-204-2222, ext. 1516.

470 Texas Bar Journal • July/August 2020 texasbar.com 2019-2020 committee reports

ADMINISTRATION continues an educational initiative Development Subcommittee and bar OF RULES OF EVIDENCE encouraging lawyers to report ads that staff to propose topics for CLE Leslie Sara Hyman, Chair do not comply with the advertising rules programs and to discuss issues facing The Administration of Rules of (Rule 7.07 of the Texas Disciplinary TexasBarCLE and TexasBarBooks. Evidence Committee evaluates the rules Rules of Professional Conduct). The Because of the COVID-19 pandemic, of evidence to ensure they are internally committee is advising State Bar staff on TexasBarCLE had to reschedule, cancel, consistent, match the actual practice of how lawyers can report noncompliance or offer some scheduled live, in-person law, and track the Federal Rules of as the committee wants to avoid seminars online. TexasBarCLE provided Evidence. Issues under review and the imposing penalties for failing to do so. free webcasts on practicing law remotely subcommittee chairpersons: Patrick The committee has met both in person and other relevant topics. Committee Maher chairs a subcommittee considering and by teleconference every quarter. members and staff continue to monitor whether the allied litigant work product This year the committee met in Austin the situation and make adjustments as protection should be extended to parallel and in Fort Worth. A proposed meeting needed. TexasBarCLE continues to or related cases; David Starnes chairs a in Houston was canceled due to the emphasize practical consequences—how subcommittee considering amendments to coronavirus pandemic. changes in law affect practice. The CLE the ancient documents hearsay exception committee continues to assist in in Rule 803(16) and co-chairs a ANNUAL MEETING developing programs that address subcommittee with Angela Olalde Amy M. Stewart, Co-chair technology benefits and risks. considering whether to propose Quentin Brogdon, Co-chair TexasBarCLE and the Computer & amendments in light of the Texas Ellen L. Farrell, Co-chair Technology Section created free videos Supreme Court’s In re City of Dickinson Due to COVID-19, the 2020 Annual addressing technology issues, listed decision; Olalde chairs a subcommittee Meeting scheduled to be held June 25- online at texasbar.com/tech-resources. considering whether audit response 26 in Dallas was canceled. Instead, the TexasBarCLE remains committed to live letters should be included within the committee offered the first-ever virtual programs, but expanding webcasts and confidentiality protections of Texas Rules Annual Meeting On Demand, which online classes is also a priority. of Evidence Rule 503(a)(5); Judge Charles included a diverse selection of quality TexasBarBooks published new editions Michael Davis and Olalde co-chair a CLE. With more than 25 informative of the Texas Pattern Jury Charges— subcommittee considering an amendment learning sessions of up to 8 hours of Family & Probate and the Essentials of clarifying the “Dead Man’s Rule” in video on demand CLE, this year’s Texas Water Resources. Most titles in Texas Rules of Evidence Rule 601(b); meeting featured programs for everyone, TexasBarBooks’ catalog are available in Johnathan Stone chairs a subcommittee from the first-year associate to the downloadable or online form, and considering amendments or a comment seasoned professional. State Bar sections TexasBarBooks’ customer service staff is clarifying the physician-patient and provided practice-specific programs, available to help attorneys with these mental health information privileges in including Computer & Technology: resources if they make the transition to Rules 509-510; and Aamir Siddik Being an Adaptable Lawyer; General work remotely. Scholarships are chairs a subcommittee considering a Practice, Solo & Small Firm; and Family available for all CLE programs and blockchain rule. The committee voted Law. Friday’s programming included TexasBarBooks publications. not to proceed with creating an parting remarks from 2019-2020 accountant privilege. President Randall O. Sorrels and 2019- COURTS RULES 2020 Texas Young Lawyers Association Giana Ortiz, Chair ADVERTISING REVIEW President Victor Flores, the swearing in Since the committee’s last year-end Chuck Noteboom, Chair of 2020-2021 President Larry report, the committee has transmitted a The Advertising Review Committee McDougal and 2020-2021 TYLA number of proposals to the Texas submitted revised advertising rules to President Britney Harrison, a brief Supreme Court for consideration the State Bar Board of Directors. The presentation of awards, and a 30- including proposed amendments to board submitted these to the Committee minute CLE on lawyer well-being led Texas Rules of Civil Procedure Rules on Disciplinary Rules and Referenda, by Texas Lawyers’ Assistance Program 21a, 99, and 107 to provide that a where the rule revisions have been studied professionals. Be sure to mark your plaintiff must serve a non-answering and modified, to be resubmitted to the calendars for the 2021 Annual Meeting defendant with new citation for a more board of directors. In 2019-2020, the on June 17-18 in Fort Worth. onerous amended petition before ARC focused on the use of accolades by seeking a default judgment; Rule 190.3 lawyers (“bragging about results”), the CONTINUING to limit requests for production and requirements of the disclaimer “principal LEGAL EDUCATION requests for admission to 30 each absent place of business,” and “Best”/“Top” Judge Xavier Rodriguez, Chair an agreement of the parties or court lawyer lists. The committee will publish The Continuing Legal Education order; and Texas Rules of Appellate educational information regarding their Committee met with the State Bar Procedure Rule 49 to provide that use in advertisements. The committee Board of Directors’ Professional motions for rehearing need not be texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 471 Education by the Barr,, for the Bar

Dear TTeexasBarCLE friiends and colleagues,

We hope all of you are staying safe and healthy in these difficult times. As businesses beegin to reopen graduallyy,, we will continue to closely monitor the COVID-19 situation and follow guidelines issued by officials where future conferences are planned. Our last in-person events were presented mid-March, but nearly all TexasBarCLE programs have been quickly converted to a webcast format, allowing the continued timely delivery of high-quality CLE for Texas lawyers.

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The format of the events below has been changed to webcast. Speakers will present their topics as listed in the course brochure. All course materials will be available to view/download in PDF format, and live webcasts will have a new chat feature allowing you to interact with participating speakers and registrants! Can’t make the webcast at the scheduled date? Register now and view the recording at your convenience. All webcasts are archived after the broadcast and available to review as many times as you like! For group viewings of a webcast, contact Firm & Group Sales Manager Laura Angle at 512-263-2802 or [email protected]. CheckTe TexasBarrCLE.com to register or get more information about these webcasts and to see the latest status of upcoming events.

Real Estate Law 101 32nd Annual Advanced Administrative Law Course (REPLAAYY) July 8, 2020 MCLE Credit: 6 hrs (includes 2 ethics) July 23-24, 2020 MCLE Credit: 12.25 hrs (includes 3.5 ethics) 42nd Annual Advanced Real Estate Law Course 17th Annual Advanced Insurance Law 2020 (REPLAAYY) July 9-11, 2020 MCLE Credit: 16.75 hrs (includes 3 ethics) July 23-24, 2020 MCLE Credit: 12 hrs (includes 2.75 ethics) Advanced Intellectual Property Litigation Intermediiate Estate Planning (REPLAAYY) July 9-10, 2020 MCLE Credit: 12.25 hrs (includes 1.25 ethics) July 28, 2020 MCLE Credit: 7 hrs (includes 1 ethics) Criminal Law 101 44th Annual Advanced Estate Planning and Probate (REPLAAYY) July 12, 2020 MCLE Credit: 4.5 hrs (includes .75 ethics) July 29-31, 2020 MCLE Credit: 20.75 hrs (includes 3.5 ethics) 46th Annual Advanced Criminal Law Course 36th Annual Advanced Personal Injury Law Course Jul y 13 -16 , 2020 MMCLEC re dit: 22 .75 h rs (inc lu des 2752.75 ethi cs) Jul y 29-31 , 2020 MCLE Cre dit: 17. 5 hrs (inc lud es 4. 75 ethi cs) 43rd Annual Advanced Civil Trial Course Government Law 101 July 15-17, 2020 MCLE Credit: 16.75 hrs (includes 3.75 ethics) July 29, 2020 MCLE Credit: 6 hrs (includes 1.25 ethics) 22nd AnnualTe Texass Bar College Summer School 32nd Annual Advanced Government Law July 16-18, 2020 MCLE Credit: 17 hrs (includes 2.5 ethics) July 30-31, 2020 MCLE Credit: 12.5 hrs (includes 3 ethics) Oil, Gas & Mineral Title Examination Course (REPLAYAY) July 23-24, 2020 MCLE Credit: 13 hrs (includes 2.75 ethics)

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Practicing Law in the Shadow of COVID19 MCLE Credit: 1 hr ethics TTaax Stimulus Packages for Law Firms in the Wake of COVID 19 MCLE Credit: .5 hr Beneﬁts and Challenges of Invoking Force Majeure Clauses in the Age of the Coronavirus MCLE Credit: 1 hr

Thehlil Online Classroom iss always availilblfable 24/7 for your CLE needdihs, with over 2500 hours of professionally recorded video presentations and MP3s at your ﬁngertips.

Listings may change without notice. Connect with TexasBar Listings may change withoutn otice Connect with TexasBarCLE To verify information or to rregister, call 800-204-2222, x1574, M-F 88a-5p CST or vvisitT TTeexasBarCLE.comm. 2019-2020 committee reports denied solely on the basis that there no DIVERSITY IN Committee and county and district longer is a majority of justices sitting at THE PROFESSION clerks, by appearing at their gatherings the court at the time the motion for Kandace D. Walter, Chair to discuss matters pertaining to jury rehearing is filed. Additionally, the The Diversity in the Profession service. The committee continues to committee has approved proposed Committee continued to enhance review the responses to the Jury Service amendments to TRAP 34.5 to provide a opportunities for attorneys from diverse Experience Questionnaire, which timeline for provision of any omitted backgrounds and to increase their remains available online and serves as a items considered mandatory under participation in State Bar of Texas rich source of feedback from jurors. The TRAP 34.5(a) or that have been timely activities. A committee goal for 2019- committee is also working to post requested under Rule 34.5(b), as well as 2020 was to increase bar prep scholarship information for citizens to review to add supersedeas bond to mandatory program funding and to award more addressing some common concerns of items under TRAP 34.5(a), and a suite recipients with these scholarships. The jurors and setting forth reasonable of additional proposed amendments to committee received a $10,000 grant expectations for them during their the TRCP to provide that certain from the Texas Bar Foundation and service. The committee submitted an notices and orders from the court must obtained several vouchers from BARBRI article to the Texas Bar Journal to raise be sent to parties electronically. and Themis. In 2018-2019, the awareness of issues facing Texas jurors committee awarded five scholarship and highlight the committee’s efforts to DISABILITY ISSUES recipients with vouchers from bar prep improve their overall experience. The Sean Pevsner, Chair companies, and in 2019-2020, the committee continues its work to create a The Disability Issues Committee committee awarded over $20,000 to public service announcement promoting invited guests to quarterly meetings to more than 20 Texas law students. The jury service and warning citizens of ever- collaborate on developments in disability committee hosted the annual Texas present and evolving criminal scams. rights law and create continuing Minority Counsel Program to provide education courses about the effect these continuing education, client LAW FOCUSED EDUCATION developments have on those with development training, and networking Kevin Vela, Chair disabilities. The committee is also opportunities. The committee conducted The Law Focused Education creating CLE webcasts on supportive three outreach programs for K-12 Committee worked with Law Focused decision-making, home and community- students in Dallas, Austin, and San Education Inc. to create a new webpage based services, and disabled veterans’ Antonio. The committee also submitted “Attorney Classroom Resources” on the benefits. In August 2019, the committee three articles related to diversity to be Texas Law-Related Education website, formed the Mental Health Subcommittee included in issues of the Texas Bar texaslre.org. The page features lessons by to inform lawyers, judges, and the Journal. The committee planned to host grade level for attorneys to use in a public about mental health law. The two annual events, the Texas Minority classroom. Additionally, the “What Do subcommittee’s objective for 2019-2020 Attorney Program and the Texas Attorneys Do?” section features different was to research intercept points of a Minority Law Student Program, but scenarios that prompt discussion with mental health crisis, either hospitalization they were postponed due to the students during classroom visits. A or imprisonment, and how lawyers can coronavirus pandemic. For more flipbook on the page provides resources aid those with mental health conditions information about diversity in the for community outreach. LFE before, during, or after a crisis. The profession, go to Committee members continued to meet committee also gathered mental health texasbar.com/minorityaffairs. with their local school districts, private resources, available on the committee’s school networks, and community website. The committee comprises three JURY SERVICE groups, providing them with the latest other subcommittees: Legal Education, Doryn Danner Glenn, Chair materials developed by the Law-Related Public Education, and Courthouse The focus of the Jury Service Education Department. Committee Accessibility. The Legal Education Committee is improving the manner in members used these web-based materials Subcommittee has scheduled upcoming which jurors are treated within the to give classroom presentations and meet presentations with Texas law schools; judicial process and developing and with community groups and local bar the Public Education Subcommittee is implementing programs to ensure broad associations about law-related education. developing recommendations for parents citizenship participation and support. In the upcoming year, committee members of children with disabilities in the school The committee continues to promote will continue to speak to participants at system; and the Courthouse Accessibility Jury Appreciation Week by providing local Law Focused Education events and Subcommittee continues to monitor activity suggestions, as well as templates promote the use of the Law Focused courthouse accessibility and accommodations for stickers highlighting one’s service. Education Inc. website. compliance with Title II of the Americans The committee has also sought to with Disabilities Act. To learn more about collaborate with other groups to LAW PRACTICE MANAGEMENT the committee and view online resource promote its mission, including the State Penny Robe, Chair lists, go to texasbar.com/disabilityissues. Bar of Texas Law Focused Education The Law Practice Management

474 Texas Bar Journal • July/August 2020 texasbar.com 2019-2020 committee reports

Committee worked to fulfill its three immigration services at the YMCA of LEGAL SERVICES TO THE purposes: (1) the implementation of Greater Houston. Unfortunately, the POOR IN CIVIL MATTERS programs conducive to the effective, ethical spring El Paso meeting, which was Brian McGiverin, Chair delivery of legal services; (2) the delivery scheduled to include a visit to the U.S. The Legal Services to the Poor in Civil of legal services at reasonable prices, with consulate in Ciudad Juárez, Mexico, was Matters Committee creates and sufficient return to ensure viability; and canceled due to the coronavirus. The implements programs such as legal aid (3) an increase in the management skills summer meeting continues to be or pro bono efforts to assure delivery of of State Bar members. The committee coordinated with the State Bar of Texas legal services in civil matters to all Texans. created new subcommittees on the Immigration and Nationality Law The committee comprises attorneys and different phases of a law practice: Section. LRIN now has State Bar officers advocates from law firms, legal aid starting a practice, maintaining a on the committee so coordination with providers, law schools, and corporations— practice, growing a practice, and closing a the section has been greatly facilitated. all committed to enhancing access to practice. The subcommittees work closely justice. Again this year, the committee with each other to support the purposes of LAWYERS’ recognized deserving individuals, groups, the committee. The committee presented ASSISTANCE PROGRAM and entities that perform exceptional a daylong seminar at the 2019 State Bar Vickie Mather, Chair work in the field of legal services to the of Texas Annual Meeting in Austin, The Lawyers’ Assistance Program poor through the Pro Bono Excellence including topics about succession Committee comprises several Awards. The committee also continued planning, online advertising, and subcommittees assisting the Texas its annual task of recommending topics navigating the new grievance rules. Lawyers’ Assistance Program in and speakers for the access to justice, or Committee members continued to improving mental health and outreach ATJ, track of the Bar Leaders mentor and train lawyers in the Texas to Texas attorneys. The Suicide Conference. The committee is Opportunity & Justice Incubator Prevention and Outreach developing a response plan and program. The committee continues to Subcommittee implemented a statewide guidance for local bar associations to develop the Law Practice Management suicide prevention campaign, which address legal issues that may arise website. The website had an average of includes training and materials for following mass shootings, including a 1,600 visitors per month in 2019-2020 lawyers. The subcommittee also advised list of external organizations, charities, and offers how-to guides, free resources, on outreach, allowing TLAP to offer or support groups available to victims and publications. To learn more about free CLE programs and participate in and at-large communities. A deliverable the Law Practice Management Program, solo-practitioner events. The Law is expected in the next committee term. go to texaslawpracticemanagement.com. School and Special Populations Subcommittee attended law school LEGAL SERVICES TO THE LAWS RELATING TO orientations with the Texas Board of POOR IN CRIMINAL MATTERS IMMIGRATION AND NATIONALITY Law Examiners and sponsored five Jani Maselli Wood, Chair Linda Brandmiller, Chair wellness forums during Mental Health The Legal Services to the Poor in The LRIN Committee had another Week. The subcommittee and TLAP Criminal Matters Committee serves one active year despite having activities crippled coordinated with the Texas Young of the State Bar’s purposes by providing with the coronavirus pandemic. The fall Lawyers Association, the State Bar legal services to and combatting current San Antonio meeting included an update Office of Minority Affairs, and legal issues of indigent defendants. The from U.S. Immigration and Customs minority organizations to find ways to committee comprises members of the Enforcement and the city of San Antonio better serve special populations. The judiciary, prosecution, and public immigration liaison. A tour of the Helping the Impaired Lawyer defense, as well as representatives of welcoming center for immigrants was also Subcommittee maintains a project court administration, state agencies, and provided and some members attended where attorneys provide information nonprofit organizations with a focus on the Texas Immigration Convening, a about local mental health resources and indigent defense. In 2019-2020, the daylong annual event providing updates programs. To commemorate TLAP’s 30th committee focused on: (1) updating and gaining community input on anniversary, the subcommittee organized State Bar performance guidelines for immigration issues. The winter LRIN events statewide. The subcommittee also non-capital criminal defense Committee meeting in Houston included advised on improving accessibility to representation; (2) planning the updates from the director of International TLAP’s resources, assisting TLAP in University of Texas School of Law 20th Student and Scholar Services Office at the implementing a text messaging program. anniversary of the Texas Fair Defense University of Houston, the legal director TLAP will continue to use Act symposium; (3) developing of the Houston Immigration Legal videoconferencing as a way to broadcast guidelines for the state when Services Collaborative, and EB-5 visa programs. To get help with mental health prosecuting indigent defendants; and policy changes from a regional and substance use issues, call the (4) promoting guidelines for the development center. Some members also confidential TLAP line at 800-343-8527 representation of juvenile participated in providing pro bono (TLAP) or text TLAP to 555888. defendants. The committee received texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 475 2019-2020 committee reports excellent recommendations for its accreditation of a continuing education PATTERN JURY CHARGES— Michael K. Moore and Warren activity. The staff presents certain CRIMINAL Burnett awards, and recipients were proposals to the committee for review, Wendell Odom, Chair to be recognized at the State Bar and the committee determines whether The Pattern Jury Charges—Criminal Annual Meeting in June. Andrew the program consists of legal education Committee is responsible for Davies was honored with the Michael or ethics within the definition of maintaining four published volumes of K. Moore Award and the Warren accreditation standards. Though not model jury instructions for use in Burnett Award was given to David G. always clear, this task is intellectually criminal cases. The committee recently Hall and Ariel Payan. The committee challenging. It is a far larger task than released both the 2019 edition and a will continue to study and collect most attorneys realize: The staff receives special supplement to the third volume information for entities involved in over 48,000 applications per year from of the series, Texas Criminal Pattern Jury the provision of quality representation non-accredited sponsors, existing Charges—Intoxication, Controlled to indigent persons involved in accredited sponsors, and out-of-state Substance & Public Order Offenses. New criminal matters. attorneys seeking credit. It would not in this edition are instructions and be possible to review such an amount commentary on tampering with a LOCAL BAR SERVICES without the dedication of the fabulous governmental record, revisions to the C. Michael Davis, Chair staff, particularly committee liaison, instructions and additional commentary The Local Bar Services Committee Nancy Smith, who retired at the end on the renunciation defenses to inchoate enhances communication between of 2019. offenses, and updates to controlled- State Bar leadership and local bar substance-offense instructions associations to assist local bar leaders PATTERN JURY CHARGES— occasioned by Beltran de la Torre v. in the development of their BUSINESS, CONSUMER, State, 583 S.W.3d 613 (Tex. Crim. App. associations. Resources available from INSURANCE & EMPLOYMENT 2019) (mere-presence and joint- the State Bar’s Local Bar Services William J. Chriss, Chair possession instructions are comments on Department include speaker The PJC—Business, Consumer, the weight of the evidence), and HB coordination, membership assistance, Insurance & Employment Committee 1325 (excluding hemp from the program coordination, and guidance is finalizing updates for its new edition definition of marijuana). The committee on creating a new association. Yearly, to be published at the end of the has also made significant progress in the committee plans the annual Law calendar year. This new edition revising and expanding its last volume Day contest, Stars of Texas Bars includes a comprehensive update of the in the set, Texas Criminal Pattern Jury Awards, and the Local Bar Leaders Piercing the Corporate Veil and Charges—Crimes Against Persons & Conference. This year, those events Defamation chapters, as well as new Property, scheduled to be released this year. were canceled due to COVID-19. The jury questions in the Employment Stars of Texas Bars Awards recognize chapter. The committee participated in PATTERN JURY CHARGES— local bar associations for outstanding a cross volume taskforce and worked FAMILY AND PROBATE involvement and commitment to the closely with the PJC—Oversight Stewart W. Gagnon, Chair legal profession. The 2020 awards will Committee to evaluate new caselaw The committee published its 2020 edition be recognized at the 2021 Annual affecting recovery of attorneys’ fees. of Texas Pattern Jury Charges—Family & Meeting in Fort Worth. This work resulted in updates to the Probate. Preparation of the new edition discussion on attorneys’ fees to reflect followed a review of caselaw and 2019 MINIMUM CONTINUING significant new developments in the legislation. Changes include revised questions LEGAL EDUCATION law. In collaboration with the other and commentary on attorneys’ fee awards in John Boyce, Chair PJC volumes and the Oversight both family law and probate contexts. The The Minimum Continuing Legal Committee, the committee revised the committee updated jury instructions Education Committee administers discussion on broad-form submission relating to divorces and rights of minimum continuing education and preservation of error. The conservators and commentary about programs established by Article XII of committee is working with the PJC— geographic restrictions in conservatorships, the State Bar Rules and the regulations Oil and Gas Committee to review and disregarding corporate entities in divorces, and accreditation standards promulgated update common materials. In and informal marriages. The book includes therefrom. In summer 2019, the accordance with its purpose, the revised will contest commentary relating to committee proposed changes to the committee updated its own volume to the burden of proof and testamentary MCLE regulations to simplify the fee reflect developing caselaw and new capacity. Additionally, the committee schedule for prospective sponsors. The statutes as needed. The committee will updated comments regarding breach of State Bar of Texas Board of Directors post new drafts online at duty by a personal representative and unanimously approved the changes in texasbarbooks.net before publication determining whether a party offering a September. A majority of committee and welcomes input from the bench will for probate is in default. After work entails reviewing proposals for and bar. publication of the 2020 edition, the

476 Texas Bar Journal • July/August 2020 texasbar.com 2019-2020 committee reports

Texas Supreme Court amended Texas Malpractice, Premises & Products include updates to charges and Rule of Civil Procedure 277 to require Committee continues to develop new commentary throughout to reflect specific findings of fact in suits to charges and commentary addressing current statutory law and new caselaw. terminate the parent-child relationship. numerous areas of law. The committee The committee will post drafts of new The committee will issue a is updating its charges and commentary charges prior to publications. supplemental slip insert to purchasers on emergency medical care to reflect Comments and questions from the of the volume that will reflect the final recent statutory changes. Additionally, bench and bar, as well as suggestions for changes to Rule 277. Comments and the committee is drafting expanded new topics, are welcome and may be questions, as well as suggestions for new commentary regarding inferential sent to [email protected]. topics for inclusion in future editions, rebuttal instructions. Topics of ongoing may be sent to [email protected]. study for possible additions to the PATTERN JURY CHARGES— volume include a potential new charge OVERSIGHT PATTERN JURY CHARGES— or commentary for open and obvious Justice Jane Bland, Chair GENERAL NEGLIGENCE, conditions in premises liability and The Pattern Jury Charges— INTENTIONAL PERSONAL TORTS possible new commentary about the Oversight Committee supports the & WORKERS’ COMPENSATION legal-duty exception to the affirmative work of the other pattern jury charge Daniel B. Linebaugh, Chair defense of plaintiff’s suicide. The committees. The committee strives to Pursuant to the Crosstex v. Gardiner committee is also studying possible ensure clarity and accuracy by opinion, the committee is retitling revisions to the wording of jury charges harmonizing jury instructions Chapter 12 from “Nuisance Actions” to for damages and commentary about throughout the volumes and resolving simply “Nuisance.” The committee is negligent misrepresentation, slip-and- inconsistent approaches. This year, the also refining the definition of falls in hospitals, negligent hiring in committee updated attorneys’ fees “intentionally” used in 12.2A and 12.3A premises liability, and tolling and the instructions throughout the volumes to to more clearly reflect intent under the discovery rule in legal malpractice reflect new case authorities. The Crosstex opinion. The committee is also actions. The committee continues to committee also reviewed updates to updating the commentary to 4.1, 4.4, keep a close eye on new Piercing the Corporate Veil, and 28.3 to include a discussion of developments in Texas law. The Defamation, and Employment (PJC UM/UIM caselaw. The commmittee is mission remains the same—to “get it Business), Improper Use of Real also updating citations appearing in the right.” Property (PJC Oil and Gas) and comments under PJC 3.4 (Unavoidable EMTALA and Emergency Care (PJC Accident) and PJC 28.3 (Personal PATTERN JURY CHARGES— Malpractice, Premises & Products). Injury Damages). The committee is OIL AND GAS The committee began work with the working with other relevant PJC Ricardo Morales, Chair malpractice and general negligence publications to determine whether PJC The Pattern Jury Charges—Oil and committees to consider their pre- 28.8 (Exclusionary Instruction for Gas Committee has been working on existing conditions instruction. The Other Condition) and 28.9 its third edition of jury charges, which committee approved revisions to the (Exclusionary Instruction for Preexisting will be published later this year. In broad-form discussion in the PJC Condition That Is Aggravated) should collaboration with the Pattern Jury Family and Probate volume and made be updated to better reflect Texas law. Charges—General Negligence, corresponding changes in the other The committee has also decided to Intentional Personal Torts & Workers’ civil volumes. The committee reviewed delete references to pre-2003 law. Compensation Committee, the updates proposed by the PJC— Finally, the committee is researching committee worked on extensive updates Criminal Committee for its upcoming how studies concerning implicit bias to the charges on Improper Use of Real publication. PJC Oversight welcomes impact juries and ultimately hopes to Property and the corresponding input from practicing trial lawyers on work in conjunction with the Texas damages charges. The committee also ways to improve all PJC publications. Supreme Court Rules Committee in participated on a cross-volume task Comments and question should be determining what improvements, if any, force with the Pattern Jury Charges— sent to [email protected]. might be made to the book’s Oversight Committee to draft updates Admonitory Instructions. The to the question and discussion on PROFESSIONALISM committee welcomes new ideas and may attorneys’ fees based on new caselaw. Suzanne M. Duvall, Chair be contacted at [email protected]. The committee continued to The Professionalism Committee collaborate with the Pattern Jury identifies factors that influence PATTERN JURY CHARGES— Charge—Business, Consumer, professionalism and seeks to improve MALPRACTICE, PREMISES & Insurance & Employment Committee the development of new lawyers and PRODUCTS on updates to contracts material their relationships with the judiciary Jack McGehee, Chair included in both volumes. The and fellow members of the profession. The Pattern Jury Charges— committee’s third edition will also Last July, the committee presented a texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 477 2019-2020 committee reports seminar at the State Bar of Texas Bar COVID-19 pandemic. The committee submissions, develops issue topics, and Leaders Conference in Houston that looks forward to creating stellar helps set the general editorial direction acquainted local bar leaders with the government transparency panels for the for the magazine. In 2019-2020, the services offered by the Professionalism 2021 event. Bar Journal examined a number of Committee, such as the mentorship subjects of interest to Texas lawyers, program, tips on presenting a “Day REAL ESTATE FORMS including the changing practice of law, of Civility” at their local bar Sara E. Dysart, Chair children and juveniles, wellness, association, and promoting ethics The State Bar of Texas published a forensics, international law, privacy, the programs to their members. In supplement to the third volume of the judiciary, and social media. The Bar October, the Law Schools Texas Real Estate Forms Manual in Journal also featured coverage of the Subcommittee partnered with the February. The Real Estate Forms Texas Young Lawyers Association’s University of Texas School of Law to Committee reviewed the existing project on well-being, offered an promote professionalism and civility manual and drafted this supplement to informative “Year in Review” issue, to law students. The Mentoring update the commentary and forms based presented an overview of the 86th Network Subcommittee is revising upon recent caselaw and legislative session of the Texas Legislature, and the mentorship program to enactments. The supplement also conducted its annual Short Story accommodate younger attorneys who provides new forms and includes Contest. In the June 2020 issue, the Bar use social media as a means of references to recent State Bar CLE Journal debuted a fresh, clean look, communication. The ethics articles. Users who purchase an online which enhances content readability and subcommittee maintains an online subscription or digital download can enjoyment. “Need Ethics?” database of speakers access editable Microsoft Word and who are willing to speak on PDF forms. The digital and online WOMEN IN THE PROFESSION accredited CLE ethics to local bar versions provide links to primary Bridget Vick, Chair associations. An ongoing goal of the research, including cases, statutes, and In fall 2019, the Women in the committee is to provide Texas CLE articles. Hard copies are also Profession Committee set goals to Lawyer’s Creed brochures and posters available that include access to the identify barriers facing women in the for judges and attorneys to display. In digital download version. The manual is profession and looked to the past, 2019-2020, the committee dispersed intended to be a starting point for present, and future of women attorneys over 150 posters, 1,700 English recognizing issues and drafting documents to develop new programs and make language brochures, and 100 Spanish for real estate transactions. Since 1970, recommendations to the State Bar language brochures. For information committee members have identified Board of Directors. The committee’s about professionalism resources, go and responded to changes in the law 2019-2020 objectives were set to to texasbar.com/professionalism. and enhanced the value of this evaluate “Where We Came From, manual. A recurring goal of the Where We Are Now, and Where We PUBLIC AFFAIRS committee is to provide relevant Are Going.” The committee continued Julie Doss, Chair information and resources for to promote Rough Road to Justice: The During the 2019-2020 bar year, the understanding how to handle a real Journey of Women Lawyers in Texas, a Public Affairs Committee hosted the estate transaction. TexasBarBooks publication by author Betty 2019 Texas Gavel Awards and worked Trapp Chapman. The book details the hard to create meaningful CLE courses TEXAS BAR JOURNAL many “firsts” of women lawyers in Texas: as part of the Open Government BOARD OF EDITORS how they learned the law, established Seminar at the 2020 State Bar of Texas Miles J. LeBlanc, Chair professional careers, and balanced private Annual Meeting. The committee’s The Texas Bar Journal is the official lives with the demands of practicing law. mission is to expand public understanding publication of the State Bar of Texas. Additionally, the committee reviewed of the legal system and to foster relations In print since 1938, the magazine and commented on the parental leave with the news media to advance that serves as a publication of record for rule pending before the State Bar Court goal. Through the Texas Gavel Awards, the Texas Supreme Court, a scholarly Rules Committee. The committee the committee honored outstanding legal journal, and the association continues to monitor parental leave issues Texas journalism that enhanced public magazine for the State Bar of Texas. as many committee members have understanding of our legal system. Each month (except a combined experienced the need for such a rule. Learn more about the awards and read July/August issue), the Texas Bar Finally, the committee hosted a the winning pieces at Journal is mailed to approximately Houston social to foster relationships texasbar.com/gavelawards. The 117,000 subscribers, is available in and discuss issues women face in their committee is saddened by the digital format, and is the only practices. The committee will continue cancellation of the 2020 in-person publication reaching every lawyer in to promote women lawyers by Annual Meeting and thus its annual Texas. The Texas Bar Journal Board of strengthening relationships among Open Government Seminar due to the Editors reviews legal article women in the profession. TBJ

478 Texas Bar Journal • July/August 2020 texasbar.com 2019-2020 STATE BAR OF TEXAS SECTION {REPORTS} Section reports are included in the July/August issue of the Texas Bar Journal to update Texas lawyers on State Bar section activities. Section membership and dues are voluntary. These reports do not necessarily reflect the position or official policy of the State Bar of Texas, which is formulated by the State Bar Board of Directors or by the membership through referendum. The Animal Law Section did not submit a report. For more information or to join a section, go to texasbar.com/sections or call 800-204-2222, ext. 1420.

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ADMINISTRATIVE University School of Law, and Texas ANTITRUST AND AND PUBLIC LAW Southern University Thurgood Marshall BUSINESS LITIGATION Andrea Moore Stover, Chair School of Law, as well as the African Law Brad Weber, Chair The section saw great success on its Student Association at Thurgood Marshall The Antitrust and Business Litigation significant projects, the 2019 Advanced School of Law, to support programming, Section is an organization of Texas Texas Administrative Law Seminar held attendance at conventions, and awarding lawyers who focus on antitrust law August 15-16 and the annual Mack of scholarships to their members. The compliance, enforcement, and complex Kidd Administrative Law Moot Court section hosted meet and greets across litigation affecting Texas. This year the Competition. The moot court Texas, including section members, local section awarded its annual competition is designed to introduce bar leaders, and area law students, to Distinguished Counselor Award to Wm. Texas law students to administrative law connect minority attorneys and law Frank Carroll, of Dallas. The award and to provide experience in brief students and encourage involvement in recognizes service to the section, writing and presenting oral arguments local bar associations and the section. It excellence in antitrust and business before higher court justices and also hosted a Martin Luther King Jr. litigation, and high professionalism and experienced administrative law Day of Service in Houston. The section ethical standards. The section also practitioners. The 2019 winning team presented several virtual CLEs, granting continued its tradition of supporting came from St. Mary’s University School over 6 hours of credit, and recognized initiatives promoting pro bono legal of Law, prevailing in the championship Kimberly Cunningham (Trailblazer services, lawyer assistance, and antitrust- round argued before the 3rd Court of Award), Hon. Eric V. Moyé (Distinguished focused legal education. The section Appeals in Austin’s Chief Justice Jeff Rose, Jurist Award), and Chasity Henry carried out this tradition by making Justice Chari Kelly, and Justice Thomas (Outstanding Achievement Award). donations for a scholarship at SMU Baker. The 2020 competition is planned Dedman School of Law, charitable gifts for October 23-24. This year’s seminar— ALTERNATIVE to the Texas Access to Justice cosponsored by the University of Texas DISPUTE RESOLUTION Foundation and the Sheeran-Crowley School of Law Continuing Legal Linda Meekins McLain, Chair Trust, and a paid internship for a law Education Department—is tentatively The Alternative Dispute Resolution student to work at the Antitrust scheduled September 3-4 at the AT&T Section has continued its ongoing Division of the Office of the Attorney Hotel and Conference Center in Austin mission to promote all forms of ADR, General of Texas. and will offer 13.5 hours of CLE credit, including arbitration and mediation. The including 2.25 hours of ethics. All seminar Alternative Dispute Resolution Handbook is the APPELLATE attendees are invited to a networking culmination of the collective expertise and Kent Rutter, Chair reception following the first day’s experience of the brightest stars in the dispute The Appellate Section provides members program. Section members are eligible for resolution profession and is accessible in the with more benefits than ever before. The a $25 discount on registration fees and the “members only” area of the section’s section regularly updates its online library seminar will also be offered via live webcast website. Plans for revamping the website of appellate CLE videos that members by the law school. Please check the and employment of a web administrator can watch for free, from anywhere, to appropriate website for any change of plans. are underway. The section continues to earn MCLE and ethics credit. Members explore ADR certification with the Texas also receive access to the online library AFRICAN-AMERICAN LAWYERS Board of Legal Specialization. The section of written CLE articles and forms for Modinat “Abby” Kotun, Chair is assisting ADR practitioners across Texas frequently filed appellate motions, as well The African-American Lawyers in meeting the challenges of delivering as the section’s outstanding electronic Section is proud to assist local African- professional services during COVID-19. journal, The Appellate Advocate. In American bar associations and Black The section has assembled a team of ADR addition to legal education, the Appellate Law Students Associations, or BLSA, in providers who are experienced in online Section offers opportunities to meet providing legal education seminars, models of mediation and arbitration as a appellate judges over coffee and sponsors community service, and financial resource for section members who have diversity-related events and receptions assistance. The section supported the technical, practical, or ethical questions. for appellate lawyers and judges all across J. L. Turner Legal Association On January 24, 2020, the section hosted Texas. Many members also participate Foundation Scholarship Gala in Dallas its annual meeting and advanced ADR in the appellate pro bono program, which and L. Clifford Davis Legal Association continuing education program. Next allows advocates to gain experience while Gala in Fort Worth, which raised year’s program is scheduled for January helping Texans in need. In the law schools, scholarships for minority law students. 2021. Section members across the state the Appellate Section engages with the The section granted sponsorship provided complimentary CLE through appellate lawyers of tomorrow, presenting requests to BLSA chapters at SMU “roadshow” lunch presentations, and the brief-writing awards at every Texas law Dedman School of Law, the University section will move forward with plans for school including a recently presented of Houston Law Center, South Texas presentations in Lubbock and East Texas forum at the Thurgood Marshall School College of Law Houston, Texas A&M upon release of the pandemic restrictions. of Law at Texas Southern University. To

480 Texas Bar Journal • July/August 2020 texasbar.com 2019-2020 SECTION REPORTS learn more about the Appellate Section, scholarship was awarded to Austin L. BUSINESS LAW please go to tex-app.org. And if you’d like Turman, a rising 2L at the University of Stephen C. Tarry, Chair to join the terrific lawyers and judges who Houston Law Center. Turman gave a The Business Law Section is make this all happen, please go to the well-received presentation on his brief continuing its work to provide resources website to learn more about the section’s on a recent aviation case. On November in the fields of corporate, securities, committees and contact me to get involved. 8, the section held its third annual CLE commercial, banking, and bankruptcy and networking event in San Antonio. law to its members. The section also ASIAN PACIFIC INTEREST The Council Retreat followed on continually updates its website to Paul Yin, Chair November 9. Unfortunately, SMU provide information that is useful to its The Asian Pacific Interest Section has Dedman School of Law’s Air Law members. The site now contains tentatively rescheduled its 25th annual Symposium was canceled this year. materials for the CLEs presented by the Conference to August 15, 2020, at the Work continues on the section’s section, including a back catalog of Hilton in downtown Austin. In addition application for an aviation law selected CLE papers; current and prior to CLEs and networking, the section specialization, drafted and spearheaded issues of the Texas Journal of Business will present the following awards: Best by Stepp and David Norton. On Law, which the section continues to Under 40—Kat Li, Meyling Ly Ortiz, March 6, the application was presented publish; forms (including LLC and Sang Shin; Affiliate of the Year— to the Texas Board of Legal operating agreements) of use to business Asian American Bar Association of Specialization in Austin, which went lawyers; and information about the Houston; Pro Bono Attorney—Yu- well. section’s current events, webinars, and cheng “Jack” Fan; Outstanding committees. The section conducts many Mentor—Alison Chen; Champion of BANKRUPTCY LAW of its activities through its committees. Diversity—Warren Huang; and the Thomas Rice, Chair Among other things, the committees Justice Wellington Chew Award—Judge The Bankruptcy Law Section continue to draft and monitor proposed George Thomas. The luncheon keynote continues to support its members, as legislation that affects Texas businesses, will feature John Kuo, of Varian well as the residents of Texas, by including, for example, the preparation Medical Systems; Gina Shishima, of delivering exciting opportunities for of updates to the Texas Business Norton Rose Fulbright; and Albert Tan, education on the laws and decisions as Organizations Code. The section’s of Haynes and Boone, and will be they affect the rights of parties in the General Practice Committee operates a moderated by Judge Ravi Sandill, of the bankruptcy process, offering forums for mentorship program in which seasoned 127th Civil District Court of Harris members of the legal and financial Texas business attorneys share County. The section appreciates the communities to facilitate discussion experience and knowledge with new or continued support of its sponsors. More about bankruptcy law, and encouraging developing Texas business attorneys. All details regarding the rescheduled members to give back by providing pro Texas attorneys who have an interest in conference will be posted on the bono legal services to the underserved business law matters are welcome to join section’s website and Facebook page. communities of Texas. The section the section and to become members of The website also features published continues to promote online education its committees. newsletters highlighting by offering free webinars to section accomplishments of its members and members. These one-hour webinars CHILD PROTECTION LAW other notable events in the community. address both business and consumer Justice Debra H. Lehrmann, Chair bankruptcy topics. The online legal The Child Protection Law Section is AVIATION LAW forum is used by several members to in its third year and going strong. After Andrea Palmer, Chair support their practice and provide two successful CLEs, the section’s third The Aviation Law Section began the guidance to solve tough legal questions. was set to be the best yet with a record year with a CLE and section meeting at Hard work over the years has expanded number of registrants. The section is the State Bar Annual Meeting on June the pro bono clinic that has proven looking forward to honoring one of its 13 in Austin. At that meeting, the exceedingly successful at the University keynote speakers, Bruce Perry, with a section elected the following officers: of Texas School of Law and St. Mary’s Lifetime Achievement Award in Andrea Palmer, chair; Peter Busher, vice- University School of Law. These recognition of his groundbreaking work chair; Bruce Marshall, immediate past initiatives are underway across Texas at on childhood trauma. Unfortunately, plans chair; Paula Knippa, treasurer; Christa several other law schools. The section were interrupted by the coronavirus Hinckley, secretary; and Bryan David, and its volunteers are hard at work outbreak, and the section has postponed newsletter/membership. The following providing legal assistance to those in the conference. The section will do its at-large council members were also need across the state. The section best to bring Perry back to be honored elected: Greg Reigel, Jad Stepp, Morgan remains committed to bringing its when things return to normal. The Schweinzger, Kristin Newman, Kerry members the best possible benefits for section also provided a very successful Adams, and Derrick Hahn. Also at the advancement of the practice of Zoom CLE for members titled Annual Meeting, the section’s bankruptcy law. “Handling a CPS Case During a texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 481 2019-2020 SECTION REPORTS

Pandemic,” which had nearly 400 of growing the collaborative practice in general membership meeting, and a attendees. Please see the website, Texas with a focus on expanding and “Tweet and Greet” gathering held childprotectionlawtx.com, for additional adapting it for the future. The section during the State Bar of Texas Annual information regarding upcoming events originally planned a very exciting Meeting in June 2019 in Austin. For and joining the section. Many thanks to presentation for the State Bar Annual more information, contact the the State Bar for its continued support Meeting, which we look forward to administrator at [email protected]. and to section members who remain presenting at a future rescheduled date. devoted to the well-being of children. The section will present an exciting CLE CONSTRUCTION LAW Times like these serve as a stark reminder that will be rescheduled due to the Fred Wilshusen, Chair of the importance of protecting the most Annual Meeting’s cancellation. The The Construction Law Section vulnerable among us. Section members planned program is an interactive focuses on continuing education for its continue to be up to the challenge. presentation building on the interest- 2,700 members through its CLE based negotiation model, deepened by programs and scholarly publications. In CIVIL LIBERTIES unique elements brought to the table by addition to serving as a joint sponsor of & CIVIL RIGHTS The Likeable Lawyer. Our presenters, two significant CLE programs, the Joshua Abrams, Chair Brian Hammer and Jeff Stec, will bring section publishes the Construction Law The Civil Liberties & Civil Rights techniques from improvisational acting Journal semi-annually, publishes a highly Section had a fantastic year thanks to the and their unique expansive negotiation regarded monthly caselaw update hard work of the section’s members. The model that are designed to increase known as the “Change Order,” and section continued its efforts to promote creative input into the negotiation provides webinars on timely topics for discussion regarding constitutional issues and process and further enlarge the pie so its members. The section proudly civil liberties and civil rights, which are of that everyone gets more of what they supports the Texas Access to Justice ever-increasing importance in the nation. To really want. This program will leave Foundation and will donate $25,000 that end, the section co-hosted the 14th participants with new tools to achieve this year to provide much-needed funds annual Bill of Rights Course in Austin, a more solutions in negotiations. for legal services to low-income Texans. full-day CLE that brings together judges, The annual Basic Course in law professors, and attorneys from across the COMPUTER & TECHNOLOGY Construction Law was held on nation. The section also co-sponsored a John G. Browning, Chair December 5-6, 2019, in Houston where half-day CLE at Annual Meeting and The mission of the Computer & nearly 200 attendees learned about a continues to sponsor the Texas Journal on Technology Section is to be a resource to variety of introductory topics. Another Civil Liberties & Civil Rights, a law review the legal profession in matters involving 900 attendees at the 33rd annual published by the University of Texas School technology. This mission is especially Construction Law Conference on of Law and provided free to members. The important in light of the Texas Supreme March 5-6, 2020, in San Antonio heard section is pleased to announce that the 2019 Court’s recent change to paragraph 8 of presentations on cutting-edge legal and recipient of the Patrick Wiseman Award the comment to Rule 1.01 of the Texas industry topics. The section selected the for Civil Rights was Mark Whitburn, of Disciplinary Rules of Professional Construction Education Foundation, or Whitburn & Pevsner, in Arlington. Conduct. That change made clear that CEF, as the designated charity for this Finally, the section website redesign is to maintain competence in the practice year’s annual conference. CEF is a underway, with a planned launch before of law includes knowing about relevant nonprofit organization that has trained the end of the year. In sum, exciting technology. For the third consecutive thousands of skilled laborers and things are happening. If you are not a year, the section sponsored “With supervisors for the construction section member yet, please join. Technology and Justice for All CLE.” industry. Over $20,000 was raised for This year’s CLE focused on adhering to CEF to continue transforming the lives COLLABORATIVE LAW the new duty of tech competence. The of its students. For more information, P. Lindley Bain, Chair section publishes Circuits, a quarterly go to constructionlawsection.org. The section continued promoting members-only newsletter, provides collaborative law throughout all practice speakers for live webcasts on tech-related CONSUMER AND areas, educating colleagues and clients and topics like artificial intelligence, and has COMMERCIAL LAW supporting local bars’ efforts in doing the added videos to its series titled TechBytes, Jerry J. Jarzombek, Chair same. The section is updating its website and which is available to all Texas lawyers at In its continuing tradition of offering social media to support and promote local texasbar.com/tech-resources. Section the highest quality CLE, the Consumer bar and local practice group initiatives to members continue to enjoy the Texas and Commercial Law Section hosted become the centralized location for Legal App, which provides access to two well-received programs: a half-day information and connection regarding Texas rules and codes with links to event at the State Bar of Texas Annual collaborative law in Texas. The annual two- caselaw. The section also sponsored the Meeting and a two-day program on day Collaborative Law Conference took place Adaptable Lawyer Track, which advanced consumer and commercial law in Austin this spring, celebrating 20 years included programming, a section topics. The section’s next advanced

482 Texas Bar Journal • July/August 2020 texasbar.com 2019-2020 SECTION REPORTS program will be August 27-28 in More details and resources are available lightning rod but also a litigant whose Austin. The section’s 2019 Richard at the section’s website at cases can impart lessons for attorneys. In Alderman Award for CLE Excellence texascorporatecounsel.com. Join us. November, the Entertainment Law Institute was awarded to Raul Noriega, of Texas provided programs running the gamut of RioGrande Legal Aid in San Antonio. CRIMINAL JUSTICE music, film, art, and trademarks. A popular Information about the section’s activities Dwight McDonald, Chair-elect special boot camp, Entertainment Law 101, is available at txconsumerlawyers.org. The CJS’s mission is to promote was held the day before ELI, providing a The section has spent the year working collaboration between judges, prosecutors, concise overview of entertainment law with user experience company Standard and defense lawyers to benefit the basics. All section members receive the Beagle Studio to overhaul the section’s criminal justice system as a whole. As e-newsletter TESLAW Tidbits, which website and hopes the new website will such, council members have diligently provides summaries of recent court go live before the annual meeting. worked together this year to improve decisions as well as helpful practice Finally, the section continues to offer services for all section members, such as documents. Additionally, members receive members free subscriptions to its revamping the website to make it more the Texas Entertainment and Sports Law acclaimed Journal of Consumer & interactive and easier to navigate for Journal, which provides in-depth analysis Commercial Law, published in members, updating the newsletter and of legal issues facing the entertainment cooperation with the University of bylaws, as well as creating trial notebook and sports industries. TESLAW is a Houston Law Center; the Lexology supplements on Evidence, Sexual Assault section for lawyers practicing in the news feed featuring articles on timely Crimes, and Common Objections. The fields of art, entertainment, and sports consumer and commercial law section continues to allow free membership law, as well as those who are simply decisions; and discounted attendance at for lawyers in their first two years of interested. select CLE programs, including the practice. To maintain the section’s annual Advanced Consumer & commitment to providing low-cost CLE ENVIRONMENTAL & Commercial Law Seminar. opportunities to lawyers in underserved NATURAL RESOURCES LAW regions, CJS had scheduled a CLE in Susan M. Maxwell, Chair CORPORATE COUNSEL Waco and planned to host a half-day ENRLS includes lawyers in private Stephen E. Stein, Chair criminal law CLE at the State Bar Annual practice, government agencies, in-house The Corporate Counsel Section serves Meeting before both were canceled due counsel, and nonprofit organizations. more than 4,600 lawyers representing to COVID-19. Finally, the section is Over the past year, the section built companies in Texas, including in-house currently looking for prosecutors and upon its programming in legal education, and outside counsel. The section’s many criminal defense attorneys who are publications, and law school programs. benefits include CLE programs for free interested in serving on State Bar In August 2019, ENRLS presented the or at discounted rates to section members, disciplinary grievance committees. The Texas Environmental Superconference, a invitations to complimentary local and Criminal Law Section thinks it is two-day CLE program now in its fourth statewide networking events, and imperative that every grievance decade. In February 2020, ENRLS co- collaboration with company legal committee has members who are presented with the REPTL Section the departments to provide on-site programs experienced in criminal law and 21st annual Changing Face of Water directed to their unique needs. Programs understand the complexity of criminal Law, a two-day CLE program focusing for this bar year included In-House law issues like Brady. on emerging water law issues. The new Counsel 101 and Advanced In-House ENRLS website launched in 2019 and Counsel co-sponsored with ENTERTAINMENT features an expanded archive of TexasBarCLE, the SMU Corporate AND SPORTS LAW conference materials and publications. Counsel Symposium, and the Legal Ethics Dena Weaver, Chair The section named Ashleigh Acevedo & Compliance Program. For over 36 years The Texas Entertainment and Sports editor in chief of the Texas Environmental the section has co-sponsored the Corporate Law Section, or TESLAW, continued Law Journal. Two other sponsored Counsel Institute with the University of providing members with information publications remain primary resources Texas School of Law. Other valuable about the applicable law surrounding for lawyers, with a sixth edition of resources are provided to members through entertainment, arts, and sports. At the Essentials of Texas Water Resources the section’s publications, including the State Bar of Texas Annual Meeting in released in spring 2020 and the annual highly regarded Corporate Counsel Review June 2019, TESLAW offered “When Good update of the two-volume Texas published at the South Texas College of Festivals Go Bad and Other Legal Issues Environmental Law practice series. Law Houston, the section newsletter Surrounding Live Music Performances” Many ENRLS members contribute to Corporate Counsel Currents, and and “Austin FC—The Inception of an these publications. Each academic year, Newsstand. The section has long MLS Franchise” CLE programs. The ENRLS sponsors career-oriented supported pro bono organizations by final program was “What Kanye Can programs on Texas law school campuses awarding grants to providers and Teach Us About Litigation,” examining and continues its practice of holding a offering service opportunities in Texas. how Kanye West is not only a cultural quarterly council meeting to coincide texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 483 2019-2020 SECTION REPORTS with a campus program. The section highlighting free or inexpensive programs February and is planning the 33rd expanded its scholarship program in 2019 that are helpful in a practice and for court annual Texas Health Law Conference: and funded eight summer internships at presentations. Given the current climate of texhealthlaw.org. The conference, which various governmental agencies. remote access and use of programs such as offers an estimated 13 hours of quality Zoom, the section finds this CLE is most CLE, is co-sponsored by the Texas FAMILY LAW relevant. The council is working hard to Hospital Association and is scheduled Chris Nickelson, Chair produce and publish an annotation to the for October 4-6 at the AT&T Hotel The mission of the Family Law Texas Disciplinary Rules of Professional and Conference Center in Austin. If an Section is “to promote the highest Conduct, which is anticipated to be another in-person gathering is not practicable, degree of professionalism, education, on-going project, just as the General Practice the conference will occur as a live, fellowship, and excellence in the practice Digest, which is published three times a year. virtual event. We will be monitoring the of family law.” The section attempts to circumstances surrounding the COVID- fulfill its mission by publishing practical GOVERNMENT LAW 19 pandemic and will make alternative literature to educate and assist attorneys, by Ryan Henry, Chair arrangements if necessary. Major generating legislation to keep the law The Government Law Section provides initiatives of the section include recruiting predictable, by working with TexasBarCLE to services and resources for members and attracting future talent by offering produce some of the best CLE in the nation, working with state and local governments. opportunities for law school students to by sponsoring socials so attorneys from across One of the section’s major initiatives this learn more about the practice of health law. the state can become better acquainted, and year has been to explore certification of The section also provides a weekly e- by promoting pro bono representation local government law as an area of legal newsletter for all members that tracks through pro bono seminars. The section’s specialization. Many standard rules and proposed and adopted health law-related publications include the Family Law understandings apply differently when rules and regulation published in the Texas Checklists, Predicates Manual, Family Law At dealing with a governmental entity, and Register. Your Fingertips, the Family Lawyer’s Essential this—along with a broad understanding Toolkit, and The Client Handbook. The of other areas of law that are recognized HISPANIC ISSUES section updates and the State Bar of Texas as specialties in their own right—have Valerie Ann Carrillo, Chair publishes the Texas Family Law Practice driven our efforts with the Texas Board This past year has been an extremely Manual, an essential tool for family law of Legal Specialization. The section challenging one, starting with the tragic attorneys. If you are interested in purchasing provides education to help lawyers Walmart shootings in August 2019 any of these publications, go to sbotfam.org. understand the unique rules in this area targeted toward people of Hispanic Membership in the section is only $40 a of law and provides a monthly newsletter ethnicity and today we are in the midst year, and members receive the Family to members, along with routinely emailed of having to deal with the coronavirus Lawyer’s Essential Toolkit, a quarterly Family case summaries and changes in law related pandemic in the United States and Law Section Report, and discounts on State to the section. The section also continues across the world. In spite of these Bar family law seminars. If you are already a to update its website, bringing current events, the Hispanic Issues Section has member, thank you. If not, please join. resources and information to readers. been able to focus on outreach efforts to Finally, the section provides traveling recruit new leadership to the section. GENERAL PRACTICE, roadshows to bring affordable, live CLE to Because of this, the section has a strong, SOLO AND SMALL FIRM different parts of Texas. The section plans to diverse group of officers and council Carmen Samaniego, Chair host the 2020 Advanced Government Law members from across the state. This Staying up to date on State Bar activities Seminar in July on the San Antonio River year, the Hispanic Issues Section reached is an important goal for the General Practice, Walk. Speakers will present topics useful for out to the El Paso Bar Association to Solo and Small Firm Section. The section new government lawyers as well as material offer its support and assistance in represents general practitioners, and as the that will interest those who have been providing resources to the El Paso economy changes, it sees more firms moving practicing in government law for many years. community following the shootings. toward a general practice. The section also Additionally, the section participated in sees a growing trend of solos and small firms HEALTH LAW the Texas Access to Justice Foundation across Texas. The section wants to make sure Lisa L. Hill, Chair 35th anniversary dinner fundraiser, the State Bar takes into consideration solo The Health Law Section continues to where John Grisham was the keynote and small firm needs and challenges that are focus on creating better understanding speaker. It was an extremely successful often quite different than those of larger firms and cooperation among attorneys and event and an important fundraiser as or governmental organizations. The section other professions involved in the health TAJF serves as the lead funding source continues to offer relevant CLEs including a care industry, including attorneys who for legal aid in Texas. Finally, Judge half-day seminar at the State Bar of Texas represent hospitals, doctors, and life Victor Villarreal (vice-chair) hosted Annual Meeting. The section is also working sciences industries. The section provided five mock trials and a networking on a statewide CLE road show presentation a webinar on new and proposed federal event in Webb County. Stay healthy, of Technology: Old Dogs, New Tricks, and state legislation to its members in everyone.

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IMMIGRATION AND printed and electronic versions of the INTERNATIONAL LAW NATIONALITY LAW Journal of Texas Insurance Law, the Gabriela Smith, Chair Lisa Sotelo, Chair section issues weekly “Right Off The The ILS encompasses various practice This past year was one of several Press” email updates that provide areas and its constituents are lawyers “firsts” for the Immigration and summaries and links to recent Texas from all kinds of backgrounds, Nationality Law Section as it focused state and federal decisions that touch including immigration, business law, on providing free CLE to its members. upon related issues, as well as current mergers and acquisitions, technology, In Dallas, it hosted its first free, half- listings of insurance-related employment cybersecurity, employment, and many day CLE program titled “Mandamus & opportunities. The section continues others. For these reasons, the ILS makes Declaratory Judgment Litigation providing quality continuing education efforts to provide learning and Training,” presented by two of the opportunities to members by offering networking opportunities that touch country’s most well-known immigration webinars on cutting-edge issues and by many of these areas in the international litigators, Ron Klasko and Tammy Fox- presenting its Annual Advanced realm. This year the ILS held CLE and Isicoff. In Houston, the section hosted Insurance Law Course, held in a virtual networking events in Austin, Houston, its first annual Pro-Bono Project: format. During this event, the section and Dallas prior to the interruptions Immigration Primer & Family updated membership on the section’s caused by the COVID-19 pandemic. Preparedness Training Clinic, a full-day, activities and recognized outgoing Unfortunately, the Annual Institute, free CLE held at the South Texas council members. The Russell H. planned for April 2020, and the College of Law Houston that focused McMains Legend of Texas Insurance International Trip to Canada, planned on immigration and family law while Law Award was presented to Mike for May 2020, were postponed to a also providing pro bono opportunities. Huddleston, of Dallas. Finally, this year, future date to be announced. Additionally, the section’s website has the section has awarded a number of Fortunately, the ILS also provides been updated to provide resources to scholarships to outstanding Texas law opportunities to its constituents via members, include volunteer/pro bono students preparing to enter the field of online and digital activities. The ILS opportunities, and offer options to insurance law. continues to publish its online newsletter obtain CLE related to immigration and (https://ilstexas.org/resources/ils- nationality law. The section also INTELLECTUAL PROPERTY LAW newsletter/) as well as a monthly e-blast sponsored its first annual Immigration Derrick Pizarro, Chair with legal content and other ILS Trivia Contest & Happy Hour at the In February, the section held its 33rd information. In response to the State Bar of Texas Advanced annual Advanced Intellectual Property COVID-19 pandemic, the ILS is, as of Immigration Law Conference in Law Course in Houston. The two-and- the date of this writing, working on Houston; it also worked with the State a-half-day course included a trademark rolling out an online learning series on Bar Laws Relating to Immigration and workshop, industry-specific courses, the effect of COVID-19 on Nationality Committee to share and a patent track, along with a international legal issues. The ILS’s information related to immigration and reception. The Women in IP International Human Rights Committee nationality law. The section’s newsletter Committee hosted its 10th annual has continued with its significant efforts was revamped to provide quarterly breakfast. The section contributed a and contributions on the realm of updates on immigration news, trends in virtual presentation for the State Bar’s international human rights. adjudication, insight to new 5th Circuit revised Annual Meeting On Demand. caselaw, and more. The section hosted well-attended pro JUDICIAL bono events in Nacogdoches and Justice Gina Benavides, Chair INSURANCE LAW Lubbock and has planned a pro bono Like many of you, I write this William J. Chriss, Chair event for San Antonio. The section message sheltered in place and facing The Insurance Law Section highlighted its pro bono efforts to the the pandemic of COVID-19. The continues improving services provided Subcommittee on Courts, Intellectual judiciary has been thrust into a new to members. The section began the Property, and the Internet of the U.S. world that is unknown and a little scary. 2019-2020 year by conducting a House Committee on the Judiciary at But as public servants, we are rising to strategic planning retreat to develop the subcommittee’s request. Kudos to the occasion. The Texas Supreme Court goals and projects for the year. The the attorney volunteers. The section has and Court of Criminal Appeals have Young Lawyers Committee hosted selected its 2020 Texas IP Legend—V. issued emergency orders dealing with networking events across the state to Bryan Medlock—for recognition. The civil procedure, family law matters, and involve new members and promote the section’s quarterly newsletter, the criminal due process. Presiding judges of exchange of ideas. The section Tipsheet, features many IP Section our trial bench are gathering troops to improved its website, events and topics of interest. The ensure that the wheels of justice turn by insurancelawsection.org, by adding section’s website continues to be a embarking on new frontiers by using additional content and making it more resource for Texas intellectual property technology to hold hearings. It hasn’t user-friendly. In addition to the practitioners. been easy, but we have no choice. In the texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 485 2019-2020 SECTION REPORTS interim, the Judicial Section has begun 33rd annual conference in Galveston in via the website. The section reached its work with the Legislature to prepare February. Over 350 people attended out to law students with panels of for the next session by monitoring the from all juvenile law disciplines, experienced practitioners at law work of the Texas Commission of including judiciary, prosecution, state schools around Texas to meet with Judicial Selection and begin addressing agency, probation, law enforcement, and students, answer their questions, and the lasting consequences of COVID-19 defense—including a defense attorney discuss the choice of labor and to the judiciary. The Judicial Section for an exonerated juvenile defendant in employment law as a practice area. was instrumental in the last Legislature the 1989 Central Park Five case. Two The section supported internships at to ensure that the judiciary continues to mothers of accused youth also presented nonprofit organizations involved in be the third branch of government and to give parent perspectives—the mother labor and employment law and built retains its independence. The Judicial of exoneree Yusef Salaam, who was good relations between practitioners, Section remains committed to exonerated in 2002 for the Central Park who often oppose one another in continuing its work and remaining as a jogger case, and the guardian of an 11- practice, by providing them resource and advocate during these year-old charged with a misdemeanor in opportunities to meet and socialize interesting times. Please stay safe and Texas. The section continues to outside the context of any specific healthy. Together, we will persevere. emphasize new ways to address case. The section welcomes members resolving youthful delinquency by of other sections whose practices JUSTICE OF bringing together all stakeholders for touch on labor and employment law THE PEACE COURTS meaningful conversation and to join. Howard M. Bookstaff, Chair cooperation. There is a renewed The Justice of the Peace Courts emphasis on treating the underlying LAW STUDENT DIVISION Section is continuing to work hard. causes of juvenile delinquency with a Brandon Cofield, Chair Several board members have been greater awareness of how adverse The Law Student Division met its instrumental in providing educational childhood experiences affect children. goal of increasing access to resources for opportunities for section members. Additionally, during the current health law students. The division partnered During the past year, the section had crisis, the section has a renewed interest with student leaders from across the CLE luncheon presentations on 2019 and awareness of those occupationally state to raise awareness about the many legislation and the use of receiverships involved in the juvenile justice field events and initiatives available to in justice courts and added material to with compassion fatigue and other division members. For a $15 annual the section website. The section looks issues. The section seeks to provide membership fee, law students receive forward to providing additional CLE more meaningful resources to its many great benefits including a student presentations, including one on the members, such as updated forms and bar card, exclusive scholarship jurisdictional increase in the justice contact information for members. The announcements, free memberships in court. The purpose of the section is to: section requests that members provide selected State Bar of Texas sections, a (i) further the administration of justice input and ideas on ways to increase monthly subscription to the Texas Bar in the justice courts, (ii) provide a member involvement. Journal, and much more. During these forum for the exchange of information trying and seemingly uncertain times, on matters of practice and procedure in LABOR AND EMPLOYMENT LAW members continue to rely on these justice courts, (iii) provide information David L. Wiley, Chair resources to help cope with external and educational opportunities for the The section includes attorneys who stressors and adapt to a unique law membership, and (iv) cooperate closely represent workers, companies, and school experience. with the State Bar of Texas and other governments in workplace issues and is professional organizations in developing, among the larger of the sections. In the LEGISLATIVE supporting, and promoting legal and 2019-2020 bar year, the section AND CAMPAIGN LAW professional activities affecting justice of provided members with quarterly Elizabeth Hadley Ross, Chair the peace courts. In addition to licensed updates via newsletters concerning the The Legislative and Campaign Law attorneys in good standing with the latest court opinions, prepared and Section’s most exciting State Bar of Texas, membership in the edited by law professors who teach accomplishment this year: the new Justice of the Peace Courts Section is labor and employment law. The section legislative and campaign law open to all current and former Texas subsidized and presented affordable certification approved by the Texas justices of the peace. Justices of the and high-quality continuing legal Board of Legal Specialization and the peace who are not licensed attorneys can education via its annual Labor and Texas Supreme Court. The section is become associate members of the section. Employment Law Institute and keeps planning for the first certification an expanding database of jury charges exam later in 2020. The section JUVENILE LAW and verdicts in labor and employment hosted its annual CLE in December, Mike Schneider, Chair cases in Texas. CLE and database featuring topics on issues related to The Juvenile Law Section held its materials are available to all members election law, campaigns, redistricting,

486 Texas Bar Journal • July/August 2020 texasbar.com 2019-2020 SECTION REPORTS updates on the Texas Ethics LITIGATION practice military law and/or veterans Commission, an update and review of Jennifer Doan, Chair law. VA law has undergone a sweeping the Sunset process from the Texas The section continued to excel in its change since February 2019. Military Sunset Advisory Commission, and a mission of empowering advocates, law also experienced major changes in look ahead at the interim legislative promoting justice, and preserving the 2019, and the effects of many of those year. The section has enjoyed hosting rule of law. Through the Litigation changes are starting to show up both in several happy hours throughout the year Champions Challenge, the section trial and on appeal. The MVLS plans to for members to network and exceeded membership and host two CLEs—one in the fall and communicates regularly with members participation goals, and Sustaining another in the spring. Each will be full through newsletters and e-blasts with Membership reached historical gains. of important information concerning updates on state and federal laws The Texas Legal Legends continued to both military and veterans law. The affecting legislative and campaign law, as thrive with the induction of James MVLS CLEs planned will enable VA- well as court decisions and ethics Sales and James Coleman—two lions accredited attorneys to understand and commission opinions applicable to the of the bar who effected positive change best represent their veteran clients. The profession. The section participated in by enforcing the rule of law, acting as MVLS invites any Texas attorney with the 2019 State Bar Annual Meeting by gatekeepers of justice, and making a an interest in military justice or providing a half-day CLE that featured difference in countless lives. Giving veterans law to join the Military and a legislative and ethics update and a back through pro bono services, Veterans Law Section. presentation on state and federal numerous grants, much needed election law. internships to nonprofit legal MUNICIPAL JUDGES organizations, and CLE scholarships Laura Anderson, Chair LGBT LAW continued as a section hallmark. The COVID-19, social distancing, video Elliott Beck, Chair award-winning publication The conferencing, court closures, essential The LGBT Law Section began the Advocate covered stirring symposia on hearings, and interpreting emergency 2019-2020 year at the Annual Meeting pro bono, ethics, effective trial orders from the president, governor, by hosting a full day of CLE, leading a advocacy, and the Litigation Update Texas Supreme Court, county judges, local LGBT Bar Association Affiliate Institute, while News for the Bar and mayors. What happens when Congress, hosting back-to-back provided bimonthly news, pointers, someone violates emergency orders? receptions, and participating in the and “Top 10” articles. Litigation Can we close our court? How do you State Bar of Texas Diversity Forum. The Update Institute, the Annual Meeting, Zoom anyway? Where do we start? section provided financial and and litigationsection.com delivered First, we wash our hands. After looking promotional support to local LGBT bar exceptional CLE. The Litigation at precedent, the section was somewhat organizations in Austin, Dallas, and Section canceled several in-person prepared for court closures because two Houston, in addition to organizational CLEs, changing course to prepare years ago at the State Bar of Texas and programming resources. In exceptional online CLE opportunities Annual Meeting, Judge Elaine Marshall, December, the section worked closely instead. The section’s new strategic presiding judge of the city of Houston with the State Bar to produce another plan provides guidance into the next Municipal Courts, hosted “How full day of live CLE covering a broad decade and forecasts changes for all Houston Survived Harvey: Getting array of LGBT legal topics titled Texas lawyers. Finally, all of these Your City Ready for Disaster.” The “LGBTQ Legal Issues in Changing benefits and more are on panel included the police chief, who Times: What Every Texas Practitioner litigationsection.com—a revamped, spoke of building relationships prior to Needs to Know.” Presentations one-stop and must-have resource for all the disaster, planning, and being included a legislative update, current Texas trial lawyers. nimble. The section also looks to the LGBT issues before the Supreme Texas Municipal Courts Education Court, and LGBT immigration and MILITARY AND VETERANS LAW Center and the Office of Court asylum, followed by a networking event Wade Faulkner, Chair Administration for guidance. With after the CLE for leaders in the LGBT Wow, what a tremendous and traditional seminars on hold, both legal community from around the state. incredible year for the Military and agencies went into overdrive by setting The section also reconnected with its Veterans Law Section and world. First, up opportunities not only to learn fellow minority bar associations by the section’s CLE for spring 2020—like remotely but also conduct hearings hosting a table at the 2019 Texas many sections’ CLEs—fell victim to remotely. The 2020 section meeting Minority Counsel Program, and it is COVID-19 and stay-at-home orders. will host a panel called “Mental assisting the National Trans Bar MVLS will be back in the fall with Health and Municipal Courts: How Association in establishing a third hub Chair-elect Jon Shelburne leading Judges Can Lead.” The question of in Texas, which would be the only instructive CLE for military and VA whether or not the meeting will be location in existence outside of a major law. MVLS, true to its name, will conducted remotely should be coastal city. present CLE for those attorneys who answered by the time of publishing. texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 487 2019-2020 SECTION REPORTS

OIL, GAS AND ENERGY to 14 CLE hours. In lieu of speaker and public interest focus and features RESOURCES LAW volunteer gifts, donations were made to presentations from knowledgeable Michael D. Jones, Chair the Austin Bar Foundation. TAPS 2020 poverty law practitioners and private The Oil, Gas and Energy Resources Law is scheduled to be held September 16-18 attorneys. Section originated in 1938 and now has over in San Antonio. The division’s annual 4,000 members. During this year, OGERL Europe trip to Budapest was postponed. PUBLIC UTILITY LAW elected to open its membership to individuals The Paralegal Ethics Handbook 2019 Brad Bayliff, Chair not licensed to practice law in Texas by edition was published by Thomson The Public Utility Law Section establishing an associate membership Reuters. The Texas Paralegal Journal provides opportunities for utility law category. Associate members can join for made its debut president’s video for the practitioners in Texas to interact with the same annual membership fee “Keep Your CLE Certificates” campaign and learn from each other to keep its charged to Texas-licensed attorneys. (to view, go to https://bit.ly/2XpA3zg). members advised on laws, decisions, However, associate members cannot The Paralegal Pulse e-newsletter and governmental regulations. The vote or hold any elected or appointed transitioned into a new formal format 2019 conference was a great success and office in OGERL and cannot represent and included information from each included commissioners or executive themselves as Texas-licensed attorneys. district. Next year, the board plans to staff from state agencies such as the Associate members have access to the continue its efforts to maintain Public Utility Commission of Texas, the oilgas.org website maintained by OGERL competency in both legal and Railroad Commission of Texas, and the and OGERL’s section report. This internet technological support and improve Texas Commission on Environmental portal provides historical access to the membership benefits. Quality who shared perspectives on issues continuing legal education articles and of importance to practitioners working presentations sponsored by OGERL. The POVERTY LAW with regulated entities such as electric, section report provides the most recent Melissa Thrailkill, Chair natural gas, telecommunications, and legal articles on developments affecting This year, the Poverty Law Section water utilities. Speakers and attendees the oil, gas, and energy resources inducted new officers and added new council from private practice and the public industry. OGERL provides members. New officers: Melissa Thrailkill sector interacted to make this an programming and sponsorship of seven (chair), of the Law Offices of Brandy Voss; enriching and economical day of continuing legal education seminars in Shelby Jean (vice-chair), of Legal Aid of MCLE. The council continues to any given year. OGERL forms planning NorthWest Texas; Thai-Anh Nguyen evaluate its operations and committees and provides speakers for (secretary), of Lone Star Legal Aid; and programming and may offer additional the TexasBarCLE energy programs and Cathryn Ibarra (treasurer), of the Texas activities. This could include more, or the UT Law CLE energy programs. Access to Justice Commission. New different, MCLE programs, member OGERL provides internships to five council members: Liana Dixon, of Texas mixers, or sponsoring one or more state agencies and awards scholarships RioGrande Legal Aid; Alma Gonzalez, interns at state agencies. The council to the two highest-grade recipients each of LANWT; John Grieger, of LANWT; requests input from section members semester in the general oil, gas, and Denise Moy, of the Texas Advocacy on how it can better serve PULS mineral law survey course(s) at all of Project; and Tracey Whitley, of TRLA. members. the Texas law schools. The section honored several advocates at the 2019 Poverty Law Conference. REAL ESTATE, PROBATE PARALEGAL DIVISION Lucille Wood, of the University of Texas AND TRUST LAW Megan Goor, President School of Law, received the Impact Eric Reis, Chair This year, the division focused on Award for her work delivering services The Real Estate, Probate and Trust growth and competency in the paralegal to persons with disabilities and their Law Section had a particularly profession. Paralegal student liaisons families. Laurie Hallmark, of TRLA, ambitious legislative program this year, were appointed and reached out to also received an Impact Award for spanning both the real estate and students by email and visited schools. creating the first psychiatric advance probate divisions of the section. Section The president also reached out by directive legal clinics in Texas. Jennifer volunteers devoted thousands of hours videoconferencing. The division’s Harbury received the Noble Lifetime to exhaustively researching, drafting, annual meeting was held for the first Achievement Award for her dedication vetting, and discussing proposed bills, and time in conjunction with its annual to fighting for human rights for the section looks forward to presenting CLE event, the Texas Advanced immigrants for over 30 years. The next this legislation to the Texas Legislature Paralegal Seminar, or TAPS, celebrating Poverty Law Conference is scheduled for next year. In addition to legislative work, its 20th anniversary on September 18- September 2-4, 2020, in Austin. The the section also contacted the governor 20, 2019 in Austin. “There’s No Place section is closely monitoring the current and Texas Supreme Court to offer Like TAPS—20 Years of CLE public health crisis and will announce assistance with possible executive or Excellence” had approximately 200 alternate plans, if necessary. The judicial actions addressing practice issues attendees and 64 speakers, offering up conference offers targeted CLE with a in the COVID-19 emergency. REPTL

488 Texas Bar Journal • July/August 2020 texasbar.com 2019-2020 SECTION REPORTS honored two of its finest lawyers, TAX planned by the section at the Annual Sharon Reuler (real estate) and Barbara Christi Mondrik, Chair Meeting titled “From the Right to Own Anderson (probate), as its 2019 As of March 2020, the Tax Section Property and Vote to Eve’s Law, the Distinguished Lifetime Achievement visited nine Texas law schools to Right to Control Her Body and Award recipients. The section published conduct tax law outreach panels. In Fertility” and the section presented the four issues of the REPTL Reporter under 2019, the section assisted 37 pro se following awards: Sarah T. Hughes the exemplary leadership of its editor in taxpayers at 11 U.S. Tax Court docket Women Lawyers of Achievement Award, chief, Gerry Beyer, and sent multiple e- calls and three pro bono days. The Louise B. Raggio Award, Barbara Culver blasts on legal developments, section section also conducted Adopt-A-Base Clack Award, and the second annual news, practice tips, and CLE. Section Volunteer Income Tax Assistance Harriet E. Miers Writing Competition members enjoyed more than $65,000 in training sessions at five Texas military Award, which provided scholarships to TexasBarCLE registration discounts. bases and presented six free webinars to law students. Additionally, the Women’s The section awarded $10,000 in grants members on current tax topics. The Tax Advocate, a newsletter highlighting to the Access to Justice Foundation and Section issued comment letters on section members, issues pertaining to Texas Community Building with Proposed Regulations Concerning the women lawyers, and articles of its Attorney Resources and continued its Deferral of Gain Recognition on members, was published. partnership with the Oil, Gas and Amounts Reinvested in Qualified Energy Resources Law Section in Opportunity Funds and Proposed WORKERS’ COMPENSATION funding the Texas Title Standards Joint Regulations on Certain Employee Robert Graves, Chair Editorial Board. Remuneration in Excess of $1,000,000 At the time of this writing, the under Internal Revenue Code Section Workers’ Compensation Section SCHOOL LAW 162(m) and testified twice before members, including attorneys Marney Collins Sims, Chair Congress in support of its comments. representing system participants; The School Law Section consists of Nineteen graduates successfully administrative law judges, or ALJs; and practitioners who serve schools, completed the 2019-2020 leadership agency staff, have embraced the administrators, teachers, parents, and academy program. The section challenges associated with COVID-19. students. Although the section conducted in-person CLE seminars at Members are demonstrating remarkable represents an array of entities and the International Tax Symposium and cooperation and ingenuity in working individuals, it is united in its desire to Tax Law in a Day. The Property Tax with the Division of Workers’ make a positive contribution to the Seminar was postponed due to COVID- Compensation to keep the Texas future by supporting the education of 19. This spring, the section will grant workers’ compensation system schoolchildren in Texas. The section’s scholarships awards to Texas law operating. Most members are working clients are “first responders” in their students, as well as the Outstanding remotely. The DWC has successfully communities; this year that has never Texas Tax Lawyer Award. Section adapted to the current environment, been more evident. Schools have faced benefits include texastaxsection.org, providing necessary services for Texas the unprecedented task of completely featuring a 24/7 free CLE library; Texas employers, employees, and insurance changing traditional education while Tax Lawyer; and 22 active committees. carriers, including incorporating continuing to provide meals and other Join us. telephonic legal proceedings processes support to the community during a and accommodating new logistical time of crisis. School lawyers are beside WOMEN AND THE LAW issues while ensuring everyone’s safety. their clients helping them navigate this Nicondra Chargois-Allen, Chair This past year, the section held the 2019 brave new world. The section is also The Women and the Law Section Advanced Workers’ Compensation known for the collegiality and mutual comprises 1,200 women attorneys. Its Seminar and hosted an event of Topgolf respect between its members and its mission is to encourage and facilitate benefiting Kids’ Chance of Texas. The significant focus on providing superior the active and effective participation of recipient of the 2019 Barbed Wire legal education to members. The women in the legal profession and in Award was Ken Wrobel. The section also section’s winter CLE conducted with the community and to address the presented a special award in memory of University of Texas School of Law took current issues affecting women. In Bob Lang, a longtime ALJ who served in place in February and was a great support of its mission, the section numerous capacities and was one of the success. The section’s summer CLE provided free monthly telephonic CLEs architects of the current workers’ retreat is scheduled to take place in July. to members from September until May, compensation benefit dispute process. The At the retreat, the section will present which were well attended. Topics ranged 2020 Advanced Workers’ Compensation the Kelly Frels Lifetime Achievement from “Intellectual Property Traps in Seminar will be held virtually in August. Award, which was received by Wayne Contracts and Premarital and The section anticipates a half-day Haglund in 2019 in recognition of his Postmarital Agreements” to presentation regarding the basics of outstanding contributions to the “Implications of Implicit Bias on workers’ compensation and two days for section. Women in Law Practice.” A CLE was the advanced course. TBJ texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 489 IN THE SUPREME COURT OF TEXAS Misc. Docket No. 20-9066 FIFTEENTH EMERGENCY ORDER REGARDING THE COVID-19 STATE OF DISASTER

ORDERED that:

1. Governor Abbott has declared a state of disaster in all 254 counties in the State of Texas in response to the imminent threat of the COVID-19 pandemic. This Order is issued pursuant to Section 22.0035(b) of the Texas Government Code.

2. Paragraph 7 of the Twelfth Emergency Order (Misc. Dkt. No. 20-9059) provides that in any action for eviction to recover possession of residential property under Chapter 24 of the Texas Property Code and Rule 510 of the Texas Rules of Civil Procedure: (a) no trial, hearing, or other proceeding may be conducted, and all deadlines are tolled, until after May 18, 2020; (b) a writ of possession may issue, but the posting of the written warning required by § 24.0061(d)(1) of the Property Code and the execution of the writ of possession may not occur until after May 25, 2020, and the deadlines in Rules 510.8(d)(1)–(d)(2) are suspended while this Order remains in effect; and (c) new filings may be accepted, but the time period in Rule 510.4(a)(10) is suspended, and issuance and service of citation may not occur until after May 18, 2020. Beginning May 19, 2020, eviction proceedings may resume and deadlines are no longer tolled, and beginning May 26, 2020, warnings may be posted and writs of possession may be executed.

3. For eviction proceedings filed from March 27, 2020, through July 25, 2020, a sworn petition containing “a description of the facts and grounds for eviction” required by Texas Rule of Civil Procedure 510.3(a)(2) must state that the premises are not subject to the moratorium on evictions imposed by Section 4024 of the CARES Act.

4. This Order is effective immediately and expires July 25, 2020, unless extended by the Chief Justice of the Supreme Court.

5. The Clerk of the Supreme Court is directed to:

a. post a copy of this Order on www.txcourts.gov;

b. file a copy of this Order with the Secretary of State; and

c. send a copy of this Order to the Governor, the Attorney General, and each member of the Legislature.

6. The State Bar of Texas is directed to take all reasonable steps to notify members of the Texas bar of this Order.

Dated: May 14, 2020

Nathan L. Hecht, Chief Justice Paul W. Green, Justice Eva M. Guzman, Justice Debra H. Lehrmann, Justice Jeffrey S. Boyd, Justice John P. Devine, Justice James D. Blacklock, Justice J. Brett Busby, Justice Jane N. Bland, Justice

490 Texas Bar Journal • July 2020 texasbar.com IN THE SUPREME COURT OF TEXAS Misc. Docket No. 20-9067 SIXTEENTH EMERGENCY ORDER REGARDING THE COVID-19 STATE OF DISASTER ORDERED that: b. file a copy of this Order with the Secretary of State; and 1. Governor Abbott has declared a state of disaster in all 254 counties in the State of Texas in response to the c. send a copy of this Order to the Governor, the imminent threat of the COVID-19 pandemic. This Order Attorney General, and each member of the Legislature. is issued pursuant to Section 22.0035(b) of the Texas Government Code. 6. The State Bar of Texas is directed to take all reasonable steps to notify members of the Texas bar of this Order. 2. This Order is effective upon the expiration of the 14th Emergency Order Regarding the COVID-19 State of Disaster. Dated: May 14, 2020

3. In any action to collect consumer debt as defined by Texas Finance Code Section 392.001(2): JUSTICE BOYD dissents as to paragraph 3.b. and would instead instruct courts and turnover receivers to apply a. Issuance and service of writs of garnishment and any applicable substantive federal or state law when turnover orders may resume, but an individual determining whether any stimulus payments affected by judgment debtor or receiver shall be entitled, upon garnishment or turnover should be released or refunded. request, to a hearing (either in person or remotely, as local circumstances permit), within two business JUSTICE BLACKLOCK dissents and would allow the days of the court’s receipt of the request, to determine proceedings in question to resume under their normal what funds are attributable to a stimulus payment procedures. received pursuant to Section 2201 of the CARES Act;

b. Courts and turnover receivers appointed under Texas Civil Practice & Remedies Code Section 31.002 must Nathan L. Hecht, Chief Justice release or refund any stimulus payments affected Paul W. Green, Justice by garnishment or turnover; Eva M. Guzman, Justice Debra H. Lehrmann, Justice c. Receivers and judgment creditors shall send an John P. Devine, Justice additional notice to the judgment debtor in the same manner prescribed by Rule 663a of the Texas Rules J. Brett Busby, Justice of Civil Procedure, that shall read as follows: Jane N. Bland, Justice

“IF YOU RECEIVED A STIMULUS PAYMENT FROM THE IRS UNDER THE CARES ACT, THE AMOUNT YOU RECEIVED MAY BE SUBJECT TO A COURT STAY PROTECTING THOSE FUNDS DURING THE CURRENT EMERGENCY. YOU HAVE A RIGHT TO REQUEST A HEARING WITH THE COURT, AND THE COURT WILL CONSIDER YOUR REQUEST ON AN EXPEDITED BASIS.”

4. This Order expires August 12, 2020, unless extended by the Chief Justice of the Supreme Court.

5. The Clerk of the Supreme Court is directed to:

a. post a copy of this Order on www.txcourts.gov;

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 491 IN THE SUPREME COURT OF TEXAS Misc. Docket No. 20-9068 ORDER DELAYING EFFECTIVE DATE OF AMENDMENTS TO TEXAS RULES OF CIVIL PROCEDURE 116 AND 117 AND WEBSITE FOR SERVICE OF PROCESS ORDERED that:

1. Senate Bill 891, enacted by 86th Legislature, requires the Office of Court Administration to create a website for publishing citation by June 1, 2020, and directs the Court to establish procedures for the website by June 1, 2020. Act of May 27, 2019, 86th Leg., R.S., ch. 606 (SB 891).

2. On January 14, 2020, in Misc. Dkt. No. 20-9009, the Court preliminary approved amendments to Rules 116 and 117 of the Texas Rules of Civil Procedure. The order made the amendments effective on June 1, 2020, after the expiration of a public-comment period.

3. The state of disaster in Texas due to the COVID-19 pandemic requires that the effective date of the website and rules amendments be extended to July 1, 2020.

4. Any Texas statute requiring or permitting citation by publication on the website or requiring the Office of Court Administration to generate a return of citation is suspended until July 1, 2020.

5. The Clerk of the Supreme Court is directed to:

a. post a copy of this Order on www.txcourts.gov;

b. file a copy of this Order with the Secretary of State; and

c. send a copy of this Order to the Governor, the Attorney General, and each member of the Legislature.

6. The State Bar of Texas is directed to take all reasonable steps to notify members of the Texas bar of this Order.

Dated: May 26, 2020

492 Texas Bar Journal • July/August 2020 texasbar.com IN THE SUPREME COURT OF TEXAS Misc. Docket No. 20-9070 ORDER AMENDING TEXAS RULES OF CIVIL PROCEDURE 47, 500.3, 509.2, and 509.6

ORDERED that: RULE 47. CLAIMS FOR RELIEF

1. In accordance with the Act of May 26, 2019, 86th An original pleading which sets forth a claim for relief, Leg., R.S., ch. 696 (SB 2342), the Supreme Court whether an original petition, counterclaim, cross-claim, or approves the following amendments to Rules 47, third party claim, shall contain: 500.3, 509.2, and 509.6 of the Texas Rules of Civil Procedure. (a) a short statement of the cause of action sufficient to give fair notice of the claim involved; 2. The amendments are effective September 1, 2020. (b) a statement that the damages sought are within the 3. The amendments may be changed before September jurisdictional limits of the court; 1, 2020, in response to public comments. Written comments should be sent to [email protected]. The (c) except in suits governed by the Family Code, a statement Court requests that comments be sent by August 30, that the party seeks: 2020. (1) only monetary relief of $100,000 or less, including 4. The Clerk is directed to: damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees; or a. file a copy of this order with the Secretary of State; (2) monetary relief of $100,000 or less and non-monetary b. cause a copy of this order to be mailed to each relief; or registered member of the State Bar of Texas by publication in the Texas Bar Journal; (3) monetary relief over $100,000 but not more than $200,000$250,000; or c. send a copy of this order to each elected member of the Legislature; and (4) monetary relief over $200,000$250,000 but not more than $1,000,000; or d. submit a copy of the order for publication in the Texas Register. (5) monetary relief over $1,000,000; and

(d) a demand for judgment for all the other relief to which Dated: May 26, 2020. the party deems himself entitled.

Nathan L. Hecht, Chief Justice Relief in the alternative or of several different types may be Paul W. Green, Justice demanded; provided, further, that upon special exception Eva M. Guzman, Justice the court shall require the pleader to amend so as to Debra H. Lehrmann, Justice specify the maximum amount claimed. A party that fails Jeffrey S. Boyd, Justice to comply with (c) may not conduct discovery until the John P. Devine, Justice party’s pleading is amended to comply. James D. Blacklock, Justice J. Brett Busby, Justice Jane N. Bland, Justice RULE 500.3. APPLICATION OF RULES IN JUSTICE COURT CASES

(a) Small Claims Case. A small claims case is a lawsuit brought for the recovery of money damages, civil penalties, personal property, or other relief allowed by law. The claim can be for no more than $10,000$20,000, excluding statutory interest and court costs but including attorney fees, if any. Small claims cases are

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 493 governed by Rules 500-507 of Part V of the Rules of RULE 509.2. CONTENTS OF PETITION; COPIES; FORMS AND Civil Procedure. AMENDMENTS

(b) Debt Claim Case. A debt claim case is a lawsuit brought (a) Contents of Petition. The petition must be in writing to recover a debt by an assignee of a claim, a debt and must include the following: collector or collection agency, a financial institution, or a person or entity primarily engaged in the business of (1) the street address of the residential rental property; lending money at interest. The claim can be for no more than $10,000$20,000, excluding statutory interest (2) a statement indicating whether the tenant has received and court costs but including attorney fees, if any. in writing the name and business street address of Debt claim cases in justice court are governed by the landlord and landlord’s management company; Rules 500-507 and 508 of Part V of the Rules of Civil Procedure. To the extent of any conflict between Rule (3) to the extent known and applicable, the name, business 508 and the rest of Part V, Rule 508 applies. street address, and telephone number of the landlord and the landlord’s management company, on-premises (c) Repair and Remedy Case. A repair and remedy case manager, and rent collector serving the residential is a lawsuit filed by a residential tenant under Chapter rental property; 92, Subchapter B of the Texas Property Code to enforce the landlord’s duty to repair or remedy a condition (4) for all notices the tenant gave to the landlord requesting materially affecting the physical health or safety of an that the condition be repaired or remedied: ordinary tenant. The relief sought can be for no more than $10,000$20,000, excluding statutory interest and (A) the date of the notice; court costs but including attorney fees, if any. Repair and remedy cases are governed by Rules 500-507 (B) the name of the person to whom the notice and 509 of Part V of the Rules of Civil Procedure. To was given or the place where the notice was the extent of any conflict between Rule 509 and the given; rest of Part V, Rule 509 applies. (C) whether the tenant’s lease is in writing and (d) Eviction Case. An eviction case is a lawsuit brought requires written notice; to recover possession of real property under Chapter 24 of the Texas Property Code, often by a landlord (D) whether the notice was in writing or oral; against a tenant. A claim for rent may be joined with an eviction case if the amount of rent due and unpaid (E) whether any written notice was given by certified is not more than $10,000$20,000, excluding statutory mail, return receipt requested, or by registered interest and court costs but including attorney fees, if mail; and any. Eviction cases are governed by Rules 500-507 and 510 of Part V of the Rules of Civil Procedure. To (F) whether the rent was current or had been the extent of any conflict between Rule 510 and the timely tendered at the time notice was given; rest of Part V, Rule 510 applies. (5) a description of the property condition materially (e) Application of Other Rules. The other Rules of Civil affecting the physical health or safety of an ordinary Procedure and the Rules of Evidence do not apply tenant that the tenant seeks to have repaired or except: remedied;

(1) when the judge hearing the case determines that (6) a statement of the relief requested by the tenant, a particular rule must be followed to ensure that including an order to repair or remedy a condition, the proceedings are fair to all parties; or a reduction in rent, actual damages, civil penalties, attorney’s fees, and court costs; (2) when otherwise specifically provided by law or these rules. (7) if the petition includes a request to reduce the rent:

(f) Examination of Rules. The court must make the Rules (A) the amount of rent paid by the tenant, the of Civil Procedure and the Rules of Evidence available amount of rent paid by the government, if for examination, either in paper form or electronically, known, the rental period, and when the rent is during the court’s business hours. due; and

494 Texas Bar Journal • July/August 2020 texasbar.com (B) the amount of the requested rent reduction (E) award court costs and attorney’s fees, excluding and the date it should begin; any attorney’s fees for a claim for damages relating to a personal injury. (8) a statement that the total relief requested does not exceed $10,000$20,000, excluding interest and (3) If the judge orders the landlord to repair or remedy court costs but including attorney’s fees; and a condition, the judgment must include in reasonable detail the actions the landlord must take to repair (9) the tenant’s name, address, and telephone number. or remedy the condition and the date when the repair or remedy must be completed. (b) Copies. The tenant must provide the court with copies of the petition and any attachments to the petition (4) If the judge orders a reduction in the tenant’s rent, for service on the landlord. the judgment must state:

(c) Forms and Amendments. A petition substantially in the (A) the amount of the rent the tenant must pay, if form promulgated by the Supreme Court is sufficient. any; A suit may not be dismissed for a defect in the petition unless the tenant is given an opportunity to correct (B) the frequency with which the tenant must pay the defect and does not promptly correct it. the rent;

(C) the condition justifying the reduction of rent; RULE 509.6. JUDGMENT: AMOUNT; FORM AND CONTENT; ISSUANCE AND SERVICE; FAILURE TO COMPLY (D) the effective date of the order reducing rent;

(a) Amount. Judgment may be rendered against the (E) that the order reducing rent will terminate on landlord for failure to repair or remedy a condition at the date the condition is repaired or remedied; the residential rental property if the total judgment and does not exceed $10,000$20,000, excluding interest and court costs but including attorney’s fees. Any party (F) that on the day the condition is repaired or who prevails in a lawsuit brought under these rules may remedied, the landlord must give the tenant recover the party’s court costs and reasonable attorney’s written notice, served in accordance with Rule fees as allowed by law. 501.4, that the condition justifying the reduction of rent has been repaired or remedied and the (b) Form and Content. rent will revert to the rent amount specified in the lease. (1) The judgment must be in writing, signed, and dated and must include the names of the parties (c) Issuance and Service. The judge must issue the to the proceeding and the street address of the judgment. The judgment may be served on the landlord residential rental property where the condition is in open court or by any means provided in Rule 501.4 to be repaired or remedied. at an address listed in the citation, the address listed on any answer, or such other address the landlord (2) In the judgment, the judge may: furnishes to the court in writing. Unless the judge serves the landlord in open court or by other means (A) order the landlord to take reasonable action to provided in Rule 501.4, the sheriff, constable, or other repair or remedy the condition; authorized person who serves the landlord must promptly file a return of service in the justice court. (B) order a reduction in the tenant’s rent, from the date of the first repair notice, in proportion to (d) Failure to Comply. If the landlord fails to comply with the reduced rental value resulting from the an order to repair or remedy a condition or reduce condition until the condition is repaired or the tenant’s rent, the failure is grounds for citing the remedied; landlord for contempt of court under Section 21.002 of the Texas Government Code. TBJ (C) award a civil penalty of one month’s rent plus $500;

(D) award the tenant’s actual damages; and

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 495 IN THE SUPREME COURT OF TEXAS Misc. Docket No. 20-9071 SEVENTEENTH EMERGENCY ORDER REGARDING THE COVID-19 STATE OF DISASTER ORDERED that: f. Require every participant in a proceeding to alert the court if the participant has, or knows of 1. Governor Abbott has declared a state of disaster in another participant who has: (i) COVID-19 or flu-like all 254 counties in the State of Texas in response to the symptoms, or a fever, chills, repeated shaking with imminent threat of the COVID-19 pandemic. This Order chills, cough, shortness of breath or difficulty is issued pursuant to Section 22.0035(b) of the Texas breathing, muscle pain, headache, sore throat, loss Government Code. of taste or smell, diarrhea; or (ii) been in close contact with a person who is confirmed to have COVID-19; 2. The Twelfth Emergency Order Regarding the COVID-19 State of Disaster (Misc. Dkt. No. 20-9059) g. Take any other reasonable action to avoid issued April 27, 2020, Paragraphs 3, 4, 5, 6, and 9, are exposing court proceedings to the threat of COVID-19. renewed as amended. 4. Courts must not conduct in-person proceedings 3. Subject only to constitutional limitations, all courts contrary to guidance issued by the Office of Court in Texas may in any case, civil or criminal—and must to Administration regarding social distancing, maximum group avoid risk to court staff, parties, attorneys, jurors, and the size, and other restrictions and precautions. Prior to holding public—without a participant's consent: any in-person proceedings on or after June 1, 2020, a court must submit an operating plan that is consistent with the a. except as provided in paragraph (b), modify or requirements set forth by the Office of Court Administration’s suspend any and all deadlines and procedures, Guidance for All Court Proceedings During COVID-19 whether prescribed by statute, rule, or order, for a Pandemic issued on May 4, 2020. Courts must continue to stated period ending no later than September 30, 2020; use all reasonable efforts to conduct proceedings remotely.

b. in all proceedings under Subtitle E, Title 5 of the 5. Existing grand juries may meet remotely or in-person Family Code, specifically including but not limited as long as adequate social distancing and other restrictions to Section 263.401(b): and precautions are taken to ensure the health and safety of court staff, parties, attorneys, jurors, and the public. (i) modify or suspend a deadline or procedure— Courts should consider extending the term of a grand whether imposed by statute, rule, or order—for jury under Section 24.0125 of the Texas Government a stated period not to exceed 180 days; Code and reassembling discharged grand juries under Article 19.41 of the Texas Code of Criminal Procedure. (ii) extend the dismissal date for any case previously retained on the court’s docket for an additional period 6. A court must not hold a jury proceeding, including not to exceed 180 days from the date of this Order. jury selection or a jury trial, prior to August 1, except as authorized by this Order. c. Allow or require anyone involved in any hearing, deposition, or other proceeding of any kind— 7. The Office of Court Administration, in coordination with including but not limited to a party, attorney, wit- the Regional Presiding Judges and the local administrative ness, court reporter, grand juror, or petit juror—to judges, should assist trial courts in conducting a limited number participate remotely, such as by teleconferencing, of jury proceedings prior to August 1, whether in-person videoconferencing, or other means; or remote proceedings involving grand and petit jurors, and, no later than July 31, must submit a report to the Court outlining d. Consider as evidence sworn statements made its observations regarding those jury proceedings and making out of court or sworn testimony given remotely, out of recommendations regarding procedures for jury proceedings. court, such as by teleconferencing, videoconferencing, or other means; 8. A jury trial conducted as part of the limited number of jury trials permitted prior to August 1 must: e. Conduct proceedings away from the court’s usual location with reasonable notice and access to a. be at the request of the judge presiding over the participants and the public; the case;

496 Texas Bar Journal • July/August 2020 texasbar.com b. ensure adequate social distancing and other proceedings, requests for relief from which should be directed restrictions and precautions are taken to ensure the to the court involved and should be generously granted. health and safety of court staff, parties, attorneys, jurors, and the public; 12. In determining a person’s right to possession of and access to a child under a court-ordered possession schedule c. require the consent of all parties to the case in a Suit Affecting the Parent-Child Relationship, the existing except in a proceeding which is non-binding, in which trial court order shall control in all instances. Possession of case the consent of the parties is not required; and access to a child shall not be affected by any shelter- in-place order or other order restricting movement issued d. take all reasonable steps to protect the parties’ by a governmental entity that arises from the pandemic. constitutional and statutory rights; The original published school schedule shall also control, and possession and access shall not be affected by the e. require the admonishment of petit jurors as school’s closure that arises from the pandemic. Nothing appropriate to ensure that proper attention is given by herein prevents parties from altering a possession schedule each juror and that outside influence is removed; and by agreement if allowed by their court order(s), or courts from modifying their orders on an emergency basis or otherwise. f. permit the Office of Court Administration to observe the processes used during the proceeding 13. All deadlines, whether prescribed by statute, rule, or in order for the Office of Court Administration to order, that expired or would have expired between March 13, prepare its report to the Court and to develop best 2020, and July 1, 2020, are extended until August 15, 2020: practices for other courts’ use. a. in attorney professional disciplinary and disability 9. Except for non-binding proceedings, a court may proceedings; and not permit or require a petit juror to appear remotely unless the court ensures that all potential and selected petit b. relating to the issuance or renewal of certifications, jurors have access to technology to participate remotely. licenses, or registrations issued by the Judicial Branch Certification Commission, or for fulfilling mandatory 10. Pursuant to Sections 74.046 and 74.047 of the continuing education. Texas Government Code, the Regional Presiding Judges are assigned the following duties: 14. This Order is effective immediately and expires July 31, 2020, except as otherwise stated herein, unless a. ensure that all courts in each region are operating extended by the Chief Justice of the Supreme Court. in full compliance with the Court's Orders and the guidance issued by the Office of Court Administration; 15. The Clerk of the Supreme Court is directed to:

b. ensure that all trial court judges in each region, a. post a copy of this Order on www.txcourts.gov; including justices of the peace and municipal court judges, do not conduct in-person proceedings b. file a copy of this Order with the Secretary of inconsistent with the Court's Orders and the latest State; and guidance issued by the Office of Court Administration; c. send a copy of this Order to the Governor, the c. report to the office of the Chief Justice of the Attorney General, and each member of the Legislature. Supreme Court any proceedings that are being conducted in the regions—and the court in which 16. The State Bar of Texas is directed to take all reasonable the proceedings are being conducted—that are steps to notify members of the Texas bar of this Order. inconsistent with the Court's Orders and the guidance issued by the Office of Court Administration; and Dated: May 26, 2020 Nathan L. Hecht, Chief Justice d. assist each region's local governments and courts Paul W. Green, Justice to ensure that courts have the ability to conduct court Eva M. Guzman, Justice business. Debra H. Lehrmann, Justice Jeffrey S. Boyd, Justice 11. Any deadline for the filing or service of any civil case John P. Devine, Justice that falls on a day between March 13, 2020, and July 1, 2020, James D. Blacklock, Justice is extended until August 15, 2020. This does not include J. Brett Busby, Justice deadlines for perfecting appeal or for other appellate Jane N. Bland, Justice

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 497 IN THE SUPREME COURT IN THE COURT OF CRIMINAL OF TEXAS APPEALS OF TEXAS Misc. Docket No. 20-9075 Misc. Docket No. 20-012 FINAL APPROVAL OF AMENDMENTS TO TEXAS FINAL APPROVAL OF AMENDMENTS TO TEXAS RULE OF EVIDENCE 103(c) RULE OF EVIDENCE 103(c)

ORDERED that: ORDERED that:

1. On January 22, 2020, the Supreme Court of Texas (Misc. 1. On January 22, 2020, the Court of Criminal Appeals (Misc. Docket No. 20-9011) and the Court of Criminal Appeals Docket No. 20-001) and the Supreme Court of Texas (Misc. (Misc. Docket No. 20-001) approved amendments to Docket No. 20-9011) approved amendments to Rule Rule 103(c) of the Texas Rules of Evidence, to be effective 103(c) of the Texas Rules of Evidence, to be effective June 1, 2020, and invited public comment. June 1, 2020, and invited public comment.

2. The comment period has expired, and no additional 2. The comment period has expired, and no additional changes have been made to the rule. This Order gives changes have been made to the rule. This Order gives final approval to the amendments set forth in Supreme final approval to the amendments set forth in Court of Court of Texas Misc. Docket No. 20-9011 and Court of Criminal Appeals Misc. Docket No. 20-001 and Supreme Criminal Appeals Misc. Docket No. 20-9011. Court of Texas Misc. Docket No. 20-901.

3. The Clerk is directed to: 3. The Clerk is directed to:

a. file a copy of this order with the Secretary of State; a. file a copy of this order with the Secretary of State;

b. cause a copy of this order to be mailed to each registered b. cause a copy of this order to be mailed to each registered member of the State Bar of Texas by publication in member of the State Bar of Texas by publication in the the Texas Bar Journal; Texas Bar Journal;

c. send a copy of this order to each elected member of c. send a copy of this order to each elected member of the Legislature; and the Legislature; and

d. submit a copy of the order for publication in the Tex a s d. submit a copy of the order for publication in the Tex a s Register. Register.

Dated: May 26, 2020. Dated: June 1, 2020.

Nathan L. Hecht, Chief Justice Sharon Keller, Presiding Judge Paul W. Green, Justice Michael Keasler, Judge Eva M. Guzman, Justice Barbara Hervey, Judge Debra H. Lehrmann, Justice Bert Richardson, Judge Jeffrey S. Boyd, Justice Kevin P. Yeary, Judge John P. Devine, Justice David Newell, Judge James D. Blacklock, Justice Mary Lou Keel, Judge J. Brett Busby, Justice Scott Walker, Judge Jane N. Bland, Justice Michelle M. Slaughter, Judge

Rule 103. Rulings on Evidence *** (c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court must allow a party to make an offer of proof as soon as practicable. In a jury trial, the court must allow a party to make the offer outside the jury’s presence and before the court reads its charge to the jury. At a party’s request, the court must direct that an offer of proof be made in question-and-answer form. Or the court may do so on its own. ***

498 Texas Bar Journal • July/August 2020 texasbar.com IN THE SUPREME COURT OF TEXAS Misc. Docket No. 20-9076 ORDER AMENDING RULE 11(d) OF THE RULES GOVERNING ADMISSION TO THE BAR OF TEXAS ORDERED that:

1. On April 29, 2020, in Misc. Dkt. No. 20-9060, in light of uncertainty regarding the COVID-19 pandemic, the Court determined that the Board of Law Examiners (“Board”) should administer the Texas bar examination in both July 2020 and September 2020.

2. The Board, in consultation with public health authorities regarding best practices for administering the July and September 2020 bar examinations safely, now recommends shortening and reweighting the examination, and the Court approves the Board’s recommendations.

3. Accordingly, the Court approves the following amendments to Rule 11(d) of the Rules Governing Admission to the Bar of Texas, which take effect immediately.

4. The Board will administer the Texas bar examination on July 28-29, 2020, and on September 9-10, 2020.

5. The Clerk of the Supreme Court is directed to:

a. post a copy of this Order on www.txcourts.gov;

b. file a copy of this Order with the Secretary of State; and

c. send a copy of this Order to the Governor, the Attorney General, and each member of the Legislature.

6. The State Bar of Texas is directed to take all reasonable steps to notify members of the Texas bar of this Order. The Texas law school deans are requested to take all reasonable steps to notify their affected students of this Order.

Dated: June 2, 2020. Nathan L. Hecht, Chief Justice Paul W. Green, Justice Eva M. Guzman, Justice Debra H. Lehrmann, Justice Jeffrey S. Boyd, Justice John P. Devine, Justice James D. Blacklock, Justice J. Brett Busby, Justice Jane N. Bland, Justice

Rule 11 Texas Bar Examination *** (d) The Texas Bar Examination administered before the February 2021 administration will last two and one-half days and consist of the Multistate Performance Test (MPT), given on Tuesday morning; the Procedure and Evidence Questions (P&E), given on Tuesday morning; the Multistate Bar Examination (MBE), given on Wednesday; and the Texas Essay Questions (Essays), given on Thursday. After grading the answers to the MPT, the P&E, and the Essays, the resulting raw scores on each of these portions will be scaled to the MBE, using the standard deviation method. Scores on the various portions of the examination will be weighted as follows: MPT, 10%; P&E, 10%; MBE, 40%50%; and Essays, 40%30%. An Applicant must earn a combined scaled score of at least 675 (out of a possible 1,000 points) to pass the Texas Bar Examination. A partial score on any portion of a failed examination must not be applied to any subsequent examination. *** texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 499 ethics opinion Issued by the professIonal ethIcs commIttee for the state bar of texas

The Supreme Court of Texas appoints the nine members of the Professional Ethics Committee from the bar and the judiciary and designates one of the members as chair. According to section 81.092(c) of the Texas Government Code, “Committee opinions are not binding on the Supreme Court.” The Committee posts drafts of its proposed opinions online at texasbar.com/pec for public comment before the opinions are finalized and printed in the Texas Bar Journal.

Opinion No. 688, May 2020 QUESTIONS PRESENTED 1. When a lawyer retained under a contingent fee agreement withdraws from the representation due to a nonconsentable conflict of interest discovered shortly after he filed plaintiff’s lawsuit, is it a violation of the Texas Disciplinary Rules of Professional Conduct for the withdrawing lawyer to refer his client to a lawyer in another law firm and arrange for a division of fees between the withdrawing lawyer and the lawyer to whom the matter is referred? 2. Is it a violation of the Rules for the withdrawing lawyer to reach an agreement with his former client that provides for the withdrawing lawyer to be reimbursed for costs and compensated for attorneys’ fees incurred before the lawyer realized he had a nonconsentable conflict?

STATEMENT OF FACTS the first $1 million of any recovery and that the case and not because the referring lawyer A lawyer signed a contingent fee the successor lawyer receive 25% of the performed work on or assumed any joint agreement with a plaintiff who sustained fees, and he proposed that he and the responsibility for the matter. Opinion 568. serious injuries in a car accident. Soon successor lawyer divide the fees on any Division of Fees “In Proportion to the thereafter, the lawyer filed a lawsuit for the recovery above $1 million on a 50-50 basis. Professional Services Performed.” The Rules plaintiff against the defendant driver. The Alternatively, the withdrawing lawyer allow for a division of fees “in proportion defendant filed an answer and a third-party wanted to recoup case expenses and the to the professional services performed by action against a third-party defendant, who reasonable value of the legal services performed each lawyer.” Rule 1.04(f)(1)(i). “A division was a long-time client of the plaintiff’s lawyer. before the conflict was discovered. of a fee based on the proportion of services The lawyer determined that to protect The lawyer sought guidance as to whether rendered by two or more lawyers the plaintiff’s interests he would need to he could refer the case to another lawyer and contemplates that each lawyer is performing amend the petition to assert a claim against agree to the proposed division of fees provided substantial legal services on behalf of the the third-party defendant and aggressively for by a contingent fee agreement or, client with respect to the matter” and requires prosecute that claim. As a result, the lawyer alternatively, whether he could be reimbursed that “each lawyer who participates in the fee have concluded he had a conflict of interest under for his expenses and the reasonable value of performed services beyond those involved in Rule 1.06(b)(2), in that his representation the services he had provided as of the date initially seeking to acquire and being engaged of the plaintiff appeared to be adversely the conflict was discovered. by the client.” Comment 12 of Rule 1.04. limited by both his responsibilities to his Thus, if a referring lawyer does not long-time client and by his own interests in DISCUSSION perform substantial legal services before continuing a harmonious attorney-client Rule 1.04(f) of the Texas Disciplinary withdrawing from the representation, the relationship with that long-time client. Rules of Professional Conduct addresses the referring lawyer may not agree to a division Additionally, because the lawyer believed division of fees between lawyers who are of fees in proportion to the professional that his representation of the plaintiff not in the same firm. Rule 1.04(f)(1) services performed. In the present case, one would in fact be materially affected by his provides that a division or arrangement for could argue that the lawyer did not perform relationship with the third-party defendant, division of a fee between lawyers who are substantial legal services because (1) the the lawyer concluded the conflict of interest not in the same firm may be made only if lawyer spent fewer than 10 hours on the was “nonconsentable,” that is, he could not the division is “(i) in proportion to the case before identifying the conflict, and (2) continue the representation even if he professional services performed by each the case involves serious personal injuries obtained the informed consent of the lawyer; or (ii) made between lawyers who and will probably require much more work affected clients. See Rule 1.06(c)(1). Thus, assume joint responsibility for the before it is resolved. But whether a lawyer he decided he was obligated to withdraw representation. . .” Thus, “fee divisions has performed “substantial legal services” is from representation of plaintiff. between lawyers not in the same firm must a question of fact that depends on all the Before the conflict was identified, the be made either in proportion to the circumstances of the particular representation. withdrawing lawyer had prepared, filed, professional services performed by each In some instances, a qualitative assessment and served the original petition. He had lawyer or based on the lawyers’ assumption of “substantial legal services” may be more spent less than 10 hours on the case, and of joint responsibility for the representation.” appropriate than a purely quantitative the only costs he had incurred were filing Professional Ethics Opinion 568 (April assessment. Based on the limited facts presented, fees and fees related to service of process. 2006). Any such agreements must comply the Committee cannot conclude that the Although he was withdrawing from the with the requirements of Rule 1.04(f)(2), lawyer did (or did not) provide substantial representation due to a conflict, the which include the requirement of written legal services before deciding to withdraw. withdrawing lawyer wanted to retain a client consent prior to the proposed The Committee nevertheless concludes significant fee interest in the case and association or referral. that the fee division proposed by the proposed a division of fees with the successor The adoption of Rule 1.04(f) abolished referring lawyer cannot reasonably be lawyer. Specifically, the withdrawing lawyer the pure referral fee—a fee paid to a considered a division “in proportion to the proposed that he receive 75% of the fees on referring lawyer simply because he referred professional services performed.” The

500 Texas Bar Journal • July/August 2020 texasbar.com ethics opinion proposed fee division is a predetermined does not mean that the lawyer must attend S.A. (LAN-Chile), 76 F.3d 658, 662 (5th formula whereby the referring lawyer is to every proceeding or review every document, Cir. 1996). Whether Texas law allows a lawyer receive 75% of the fees earned on the first it does require that the “referring lawyer be to recover in quantum meruit on the facts $1 million of recovery and 50% thereafter. reasonably informed of the matter, respond described in this Opinion is a question of In order to divide fees in proportion to the to client questions, and assist the handling law beyond the authority of this Committee. professional services performed under Rule lawyer when necessary.” Id. Nevertheless, assuming there is no 1.04(f)(1)(i), “[t]here must be a reasonable It is impossible for a lawyer who withdraws common law prohibition, the Committee correlation between the amount or value of from an ongoing representation due to a concludes that a lawyer who withdraws due service rendered and responsibility assumed, conflict of interest to exercise joint to a conflict of interest does not violate the and the share of the fee to be received.” responsibility for the representation after the Disciplinary Rules merely by seeking Comment 12 of Rule 1.04. In the opinion withdrawal. The very conflict that prevents quantum meruit relief regarding the services of the Committee, there is no “reasonable the lawyer from continuing the initial provided before the conflict was discovered. correlation” between the amount or value representation of the plaintiff also prevents Further, in such a circumstance, a lawyer of services rendered in merely filing a petition the lawyer from meeting the joint may also attempt to reach an agreement and a predetermined 75% or 50% share of responsibility requirements outlined in with the client pertaining to compensation all fees earned from future recovery in a Comment 13 to Rule 1.04. See, e.g., New for the reasonable value of legal services serious personal injury case. York State Bar Association Committee on provided to the client before withdrawal The Committee does not reach the Professional Ethics, Opinion No. 745 (July and the reasonable and necessary expenses question of whether a lawyer may ever enter 18, 2001) (concluding that “where a lawyer actually incurred on behalf of the client. into a fee division “in proportion to the is unable to assume sole responsibility for a A lawyer should be mindful that courts professional services performed” if the lawyer matter due to a conflict of interest, that lawyer “scrutinize with jealousy” all modifications to will not be representing the client at all is also disqualified from assuming joint a client fee agreement during the representation. after entering into a fee division agreement. responsibility”). Accordingly, a lawyer who Archer v. Griffith, 390 S.W.2d 735, 739 (Tex. Compare Rule 1.04(f)(i), which does not withdraws from an ongoing representation 1964). “There is a presumption of unfairness or specifically require continuing representation due to a conflict of interest may not enter invalidity attaching to the contract, and the by both lawyers who agree to divide fees into an agreement to divide fees based on burden of showing its fairness and reasonableness based on the proportion of services provided, the acceptance of joint responsibility for the is on the attorney.” Id. See also Opinion with comment 12 to Rule 1.04, which representation with client’s new lawyer. 679 (September 2018) (renegotiating fee provides that a proportional services fee Pure Referral Fee. As mentioned above, a during representation) and ABA Formal division agreement “contemplates that each pure referral fee is no longer allowed under Opinion 11-458 (2011) (“Changing Fee lawyer is performing substantial legal services the Rules. Determination of whether a Arrangements During Representation”). on behalf of the client with respect to the proposed fee division agreement calls for a matter” (emphasis added). See also ABA pure referral fee depends on the facts and CONCLUSION Comm. on Ethics & Prof’l Responsibility, circumstances, including the intent of the Under the Texas Disciplinary Rules of Formal Op. 487 (2019) (“Fee Division with parties. A fee division agreement may be Professional Conduct, lawyers who are not in Client’s Prior Counsel”) (addressing division characterized as an impermissible pure the same firm may divide fees either on the of a contingent fee by client’s prior counsel referral fee agreement even though the lawyer basis of the proportion of services they render and successor counsel when prior counsel provided some services before withdrawing or if the lawyers assume joint responsibility was terminated without cause and observing from the representation due to a nonconsentable for the representation. But, a lawyer who that ABA Model Rule 1.5(e), which is similar conflict. Here, given the relatively limited withdraws from the representation based to Texas’ Rule 1.04(f), “is limited to situations services provided before the discovery of the upon a nonconsentable conflict of interest where two or more lawyers are working on nonconsentable conflict, it is possible that may not enter into an arrangement to divide a case simultaneously—not sequentially”). the withdrawing lawyer’s proposed division fees based on joint responsibility. Further, a Division of Fees Based on Assumption of of fees is based entirely on the referral of the lawyer may not enter into an agreement to Joint Responsibility. The Rules also allow for case. If so, any agreement to divide the fees divide fees based on the proportion of services a division of fees between lawyers who between the two lawyers is impermissible, when the lawyer has not performed assume joint responsibility for the whether or not the agreement otherwise substantial legal services on behalf of the representation. Rule 1.04(f)(1)(ii). Joint appears to be in compliance with Rule 1.04(f). client, or when there is no reasonable responsibility entails ethical responsibility Quantum Meruit. The lawyer also asks correlation between the amount or value of for the representation, including making whether a lawyer who withdraws due to a service rendered and responsibility assumed efforts to assure the adequacy of the conflict of interest violates the Rules by and the share of the fee to be received. Finally, representation by a lawyer whom the seeking recovery in quantum meruit for regardless of how the fee division is referring lawyer believes is competent to services provided before the conflict was characterized, a lawyer may not enter an handle the matter. See comment 13 of Rule discovered. agreement for a pure referral fee. The Rules 1.04. It also requires that the referring lawyer Texas common law often does allow a do not prohibit a lawyer from recovering or “monitor the matter throughout the lawyer to recover in quantum meruit after seeking to recover the reasonable value of representation and ensure that the client is the representation terminates prematurely, services provided to the client and the informed of those matters that come to the but ordinarily does not allow a lawyer to reasonable expenses actually paid by the lawyer’s attention and that a reasonable recover in quantum meruit if the lawyer lawyer before the representation ended, lawyer would believe the client should be terminated the representation without “just assuming such recovery is permissible under aware.” Id. While the monitoring requirement cause.” Augustson v. Linea Aerea Nacional-Chile Texas common law. TBJ texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 501 TYLA presidenT’s pAge

Contact TYLA at [email protected] or go to tyla.org. Inspiring Our FUTURE LEADERS Welcome to the 2020-2021 bar year! We are in the middle of a global pandemic. Leaving the house requires new armor: face masks, sanitizing wipes, and hand sanitizer if you are lucky enough to find any. For months, we have been in our homes, rationing toilet paper, adjusting to the new morning commute to the living room, and joining myriad Zoom meetings. On top of the pandemic, people are filling the streets across the nation to protest the death of George Floyd at the hands of the Minneapolis Police Department, while we still mourn the senseless killings of Ahmaud Arbery and Breonna Taylor. Over the past few weeks, many of my non-black friends and colleagues have turned to me to provide insight and advice on what they can be doing to help change the frequent injustice perpetuated against black Americans in this country. My suggestions are: Listen, speak up and speak out against injustice, and start the dialogue within your firms and organizations. The conversations may be uncomfortable, but they are long overdue. Young lawyers are in a unique position to effectuate change—and now is the time. I will say I am encouraged that people are beginning to speak out more and acknowledge the racial injustice plaguing this nation. People are finally beginning to understand that saying “Black Lives Matter” does not mean other lives do not matter or that other lives matter less. Eliminating racism is not a political issue. It is about equality and humanity. Over this next year, one of my goals is to inspire young lawyers to become our future leaders. As members of the Texas Young Lawyers Association, we exist for all Texans. We are here to facilitate the administration of justice, foster respect for the law, and advance the role of the legal profession in serving the public. We have some statewide initiatives planned this year including expanding upon the Vote America project. We plan to get voter registration information more widely disseminated and available to the public. By reaching out to younger voters and stressing the importance of voting and the benefits of being a voter, we hope to inspire more citizens to become engaged in the election process. Additionally, inspired by the San Antonio Young Lawyers Association’s e-clinic, we plan to coordinate an evening of answering pro bono questions at texaslegalanswers.com with our TYLA local affiliates. Our goal is to answer all outstanding questions on the website in one night. We also plan to continue addressing attorney wellness and well-being. We cannot adequately assist our clients if we are not well and not making self-care a priority. TYLA is developing an attorney well-being retreat that will teach attorneys healthy ways to cope with the stress of the practice of law and provide tips for implementing self-care, better nutrition, and other stress-reducing activities. We have a big year ahead of us, and I am excited to see what we can accomplish together. Let’s get started!

BRITNEY HARRISON 2020-2021 President, Texas Young Lawyers Association

502 Texas Bar Journal • July/August 2020 texasbar.com solo/small firm

created by President Dwight D. Eisenhower you want to prevent from taking up Manage and popularized by Stephen Covey. space in your life are things like minor tasks that hold no significant outcome or YOUR TIME, URGENT NOT URGENT that someone else could do. Keeping this metaphor in mind helps to

Q1 Q2 IMPORTANT MANAGE prioritize where to spend your time. TBJ CRISES PREVENTION EMERGENCIES PLANNING YOUR LIFE IMPROVEMENT IMPORTANT useful tips for inside O IMPORTANT NOT and outside the office. Q3 Q4 RUBY L. POWERS is the founder and managing INTERRUPTIONS TIME WASTERS attorney of Powers Law Group. written by ruby l. powers Located in Houston, the two- attorney firm focuses solely on

NOT IMPORTANT immigration law. She is certified in immigration and nationality law URGENT NOT URGENT by the Texas Board of Legal Specialization. A graduate of the University of North Carolina One Of the mOst valuable skills to Graph based on Alex Czarto’s School of Law, Powers is an alumna of have in your personal toolkit is time The Four Quadrants of Time Management Goldman Sachs 10,000 Small Businesses and Leadership Houston. She is a 2020 graduate of management. Time management is not Class XLVIII of the American Leadership Forum. based solely on increasing your The first quadrant holds the tasks that Powers authored AILA’s book Build and Manage productivity but allows you to create a are urgent and important, things like Your Successful Immigration Law Practice (Without Losing Your Mind). After years of healthy work/life balance and take family emergencies. The second quadrant advocacy at the border, the state capital, and in control of your calendar, not the other holds the tasks that are not urgent but her community, she decided to run for public way around. Being successful at time important; these are things like firm office and continues to support her community. management comes from trial and error, improvement and exercise. In general, think utilizing best practices, and developing preventative work that mitigates crises. the proper habits. It is something that The third quadrant holds tasks that takes time, because if you move too fast, are not important but urgent, these are you risk becoming overwhelmed. things like interrupting emails, calls, and Healthy habits lead to greater success. texts that are not of immediate significance. This was something I learned The fourth quadrant holds tasks that are through a lot of tried-and-true not urgent or important; these waste experiences as a business owner, former your time, i.e., for non-essential purposes, political candidate, immigration surfing the internet with no aim. Using attorney, and mom of two. Below are the matrix and planning your tasks out some of my favorite tips from my law according to the quadrants will help you practice management book, Build and to effectively maximize your day. As you Manage Your Successful Immigration Law master the matrix, you can easily move Practice (Without Losing Your Mind). away from the “important and urgent” category and stay in the second quadrant, Eat the Frog important and non-urgent. The old adage “eating the frog” is a reminder to tackle your most important Rock Metaphor tasks earlier in the day—whether having This metaphor offers a visual that a difficult conversation with an employee demonstrates the importance of or finishing a brief—which allows you to prioritization. The ability to fit large focus and avoid agonizing over it all day. rocks, small rocks, sand, and water in a Practice pointer: If you like this visual, bowl depends on prioritization from the you could keep a plastic frog at your start. If out of order, these elements fill office—this lets people know that you up the unimportant in your life, shouldn’t be disturbed if the frog is out. represented by sand and water, and misplace what is most crucial, the “rocks.” Time Management Matrix The “rocks” you want to fill your life with The Time Management Matrix is one are things that adhere to long-term goals of my favorite time management tools, in life and in your career. The elements

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 503 disciplinary actions

Contact the Office of Chief Disciplinary Counsel at 512-453-5535, the Board of Disciplinary Appeals at 512-475-1578 or txboda.org, or the State Commission on Judicial Conduct at 512-463-5533.

DISBARMENTS ordered to pay $1,900 in restitution and was disbarred by an evidentiary panel of On April 2, 2020, BRENDA GAIl $1,760 in attorneys’ fees and direct the District 9 Grievance Committee. The HANSEN [#24010087], 66, of Arlington, expenses. panel found that Robertson was hired to was disbarred effective March 2, 2020. assist his client with probating an estate, The District 7 Grievance Committee On February 6, 2020, CHRISTIANSON O. an IRS lien, a business foreclosure, and an found that in May 2018, the complainant HARTMAN [#24056682], 39, of oil and gas lease. Robertson neglected hired Hansen for representation in a Sweetwater, was disbarred. An evidentiary these matters, failed to communicate with family law matter. Hansen neglected the panel of the District 16 Grievance his client, failed to render an accounting legal matter entrusted to her by failing to Committee found that Hartman failed to of the work performed, and failed to return perform any legal services on behalf of the hold a client’s or third person’s funds the client’s file or any unearned fees. complainant. Hansen failed to keep the separate from his own property, Robertson further failed to file a written complainant reasonably updated as to the misrepresented facts and failed to disclose response to this grievance as directed. status of her legal matter and failed to information to a tribunal when disclosure Robertson violated Rules 1.01(b)(1), promptly respond to reasonable requests was necessary to avoid assisting a criminal 1.03(a), 1.14(b), 1.15(d), and 8.04(a)(8). for information from the complainant. or fraudulent act, engaged in conduct He was ordered to pay $11,532 in Upon termination of representation, involving a serious crime, and engaged in restitution and $3,779.70 in attorneys’ Hansen failed to refund advance payments conduct involving dishonesty, fraud, fees and direct expenses. of a fee that had not been earned. Hansen deceit, and misrepresentation. failed to timely furnish to the Office of Hartman violated Rules 1.14(a), 1.14(c), SUSPENSIONS Chief Disciplinary Counsel a response or 3.03(a)(1), 3.03(a)(2), 8.04(a)(2), and On February 5, 2020, GAylyN lEON other information as required and did not 8.04(a)(3). He was ordered to pay $15,100 COOPER [#04774700], 66, of Port Arthur, in good faith timely assert a privilege or in attorneys’ fees and direct expenses. received a four-year probated suspension other legal ground for failure to do so. effective April 1, 2020. An evidentiary Hansen violated Rules 1.01(b)(1), On February 5, 2020, DAMON DEAN panel of the District 3 Grievance 1.03(a), 1.15(d), and 8.04(a)(8). She was ROBERTSON [#24005285], 46, of Austin, Committee found that, in one matter, Cooper neglected a legal matter entrusted to him, failed to keep his client reasonably ATTORNEY GRIEVANCES informed about the status of their legal matter and failed to promptly comply Hasley Scarano, L.L.P. with reasonable requests for information, DON’T REPRESENT YOURSELF! attorneys & counselors and failed to explain a legal matter to the extent reasonably necessary to permit his How often do you advise clients to represent WE BET ON THE DARK HORSE client to make informed decisions themselves when accused of wrongdoing? regarding the representation. In a second Why give yourself different advice? • Grievance Defense matter, Cooper failed to hold funds • Ethics Consultation belonging to his client that were in his CONSULTATION possession in connection with the • Disciplinary Appeals OR REPRESENTATION representation separate from his own • Legal Malpractice property. In both matters, Cooper STEVEN L. LEE frequently failed to carry out completely the obligations he owed to his clients and, OVER 35 YEARS EXPERIENCE upon termination of representation, failed to refund advance payments of fees that 11 years experience with the State Bar of had not been earned. Texas as Assistant and Deputy General Cooper violated Rules 1.01(b)(1), Counsel as well as Acting General Counsel WE LIKE OUR ODDS 1.01(b)(2), 1.03(a), 1.03(b), 1.14(a), and Jennifer A. Hasley 1.15(d). He was ordered to pay $2,350 in LAW OFFICE OF Board Certified, Civil Trial Law restitution and $2,687.50 in attorneys’ fees. Texas Board of Legal Specialization STEVEN L. LEE, P.C. 25+ Years Trial Experience On March 16, 2020, AMy DAlAINE 1411 WEST AVENUE, SUITE 100 including as Assistant Disciplinary Counsel lONG [#24036984], 53, of Tyler, received AUSTIN, TEXAS 78701 State Bar of Texas a 24-month fully probated suspension (512) 215-2355 5252 Westchester, Suite 125 effective March 4, 2020. An evidentiary Houston, Texas 77005 panel of the District 2 Grievance Representing Lawyers & Law Students Since 1991 713.667.6900 / 713.667.6904 FAX Committee found that on September 21, STATEWIDE REPRESENTATION [email protected] www.hasleyscarano.com 2018, the complainant hired Long to represent him in a modification of child

504 Texas Bar Journal • July/August 2020 texasbar.com disciplinary actions

custody case. In representing the received a three-year fully probated representing four clients in separate matters, complainant, Long neglected the legal suspension effective February 15, 2020. Tennant neglected legal matters entrusted matter entrusted to her by failing to An evidentiary panel of the District 4 to him, failed to keep clients reasonably provide legal services to help the Grievance Committee found that while informed about the status of their legal complainant obtain custody of his child. representing a client, Tennant neglected matters and failed to promptly comply Long failed to keep the complainant the legal matter entrusted to him and with reasonable requests for information, informed about the status of his case. Long failed to refund advance payments of fees failed to surrender papers and property to also failed to explain to the complainant that had not been earned. While representing which clients were entitled, and failed to the process of filing a child custody another client, Tennant failed to surrender refund advance payments of fees that had modification and that she would not be papers and property to which his client not been earned. Tennant also engaged in representing him in Colorado to the extent was entitled and in both matters, he failed conduct involving dishonesty, fraud, deceit, reasonably necessary to permit the to timely furnish to the Office of Chief or misrepresentation and failed to timely complainant to make informed decisions Disciplinary Counsel a response or other furnish to the Office of Chief Disciplinary regarding the representation. Further, Long information as required by the Texas Rules Counsel a response or other information as failed to timely respond to the grievance. of Disciplinary Procedure. required by the Texas Rules of Disciplinary Long violated Rules 1.01(b)(1), 1.03(a), Tennant violated Rules 1.01(b)(1), Procedure. 1.03(b), and 8.04(a)(8). 1.15(d), and 8.04(a)(8). He was ordered Tennant violated Rules 1.01(b)(1), 1.03(a), to pay $700 in restitution and $500 in 1.15(d), 8.04(a)(3), and 8.04(a)(8). He was On May 27, 2020, roBerT clarence attorneys’ fees and direct expenses. ordered to pay $2,300 in restitution and newark iii [#24040097], 45, of Dallas, $500 in attorneys’ fees and direct expenses. agreed to a 12-month fully probated On February 12, 2020, GeorGe B. suspension effective June 1, 2020. The TennanT Jr. [#24042016], 51, of Pearland, On May 8, 2020, PeTer Michael District 6 Grievance Committee found received a three-year fully probated ZavaleTTa [#22251600], 59, of Corpus that on March 6, 2019, Newark was suspension effective February 15, 2020. Christi, agreed to a two-year fully probated retained by the complainant to represent An evidentiary panel of the District 4 suspension effective June 1, 2020. An her in a civil matter. In representing the Grievance Committee found that, while investigatory panel of the District 11 complainant, Newark neglected the legal matter entrusted to him by failing to adequately prepare for trial and by allowing a default judgment to be rendered against the complainant. Newark failed to keep the complainant reasonably informed about the status of her legal matter. Newark engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation when he made misrepresentations regarding the status of the complainant's legal matter. Newark violated Rules 1.01(b)(1), 1.03(a), and 8.04(a)(3). He was ordered to pay $675 in attorneys’ fees and direct expenses.

On April 30, 2020, Dennis raMireZ [#24037327], 43, of Donna, agreed to a one-year fully probated suspension effective April 1, 2020. An evidentiary panel of the District 12 Grievance Committee found that Ramirez failed to hold client funds separate from his own property and failed to deliver funds to parties entitled to receive the funds Two Riverway, Suite 1080 promptly. Houston, Texas 77056 Ramirez violated Rules 1.14(a) and 1.14(b). He was ordered to pay $1,000 in attorneys’ fees and direct expenses. [email protected] On February 12, 2020, GeorGe B. CLLEGAL.COM TennanT Jr. [#24042016], 51, of Pearland, texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 505 disciplinary actions

Grievance Committee found that Zavaletta to pay $2,500 in restitution and $1,000 in fitness as a lawyer in other respects] and neglected a client’s matter, failed to keep a attorneys’ fees. 8.04(a)(3) [A lawyer shall not engage in client reasonably informed, failed to return conduct involving dishonesty, fraud, unearned fees, and failed to protect a On May 19, 2020, Dennis Warren deceit, or misrepresentation]. client’s interest. Craggs [#04975000], 75, of Houston Van Dyke was ordered to pay $6,400 in Zavaletta violated Rules 1.01(b)(1), accepted a two-year partially probated attorneys’ fees and direct expenses. 1.03(a), 1.15(a)(1), and 1.15(d). He was suspension effective May 19, 2020. An ordered to pay $10,000 in restitution and evidentiary panel of the District 4 On May 5, 2020, TaJ aDarryl Warren $900 in attorneys’ fees and direct expenses. Grievance Committee found that Craggs [#24060802], 42, of Dallas, agreed to a failed to file a response to the grievance. 36-month partially probated suspension On May 6, 2020, Juana Maria Craggs violated Rule 8.04(a)(8). He effective May 15, 2020, with the first 18 Calvillo [#24067537], 39, of Houston agreed to pay $500 in attorneys’ fees and months actively served and the remainder accepted a one-year partially probated direct expenses. probated. An investigatory panel of the suspension effective May 28, 2020, with District 6 Grievance Committee found the first week actively served and the On April 30, 2020, Jason lee van Dyke that Warren neglected the legal matter by remainder probated. An evidentiary panel [#24057426], 40, of Decatur, agreed to an not timely serving the defendant in a civil of the District 4 Grievance Committee 18-month partially probated suspension suit that he filed on the client’s behalf. found that Calvillo neglected a client’s effective May 1, 2020, with the first six Warren failed to properly communicate legal matter, failed to keep her client months actively served and the remainder with the client. Warren failed to safeguard reasonably informed, and failed to timely probated. The 271st Judicial District Court the retainer paid to Warren for future legal furnish a response to the Office of Chief of Wise County found that Van Dyke services and failed to return the client’s Disciplinary Counsel and did not in good committed professional misconduct by case file and refund any unearned fees. faith timely assert a privilege or other legal violating Rules 8.04(a)(2) [A lawyer shall Further, Warren failed to notify the court ground for failure to do so. not commit a serious crime or commit any and client of his suspension by June 1, 2019, Calvillo violated Rules 1.01(b)(1), other criminal act that reflects adversely as required by a previous disciplinary 1.03(a), and 8.04(a)(8). She was ordered on the lawyer’s honesty, trustworthiness or judgment, and failed to comply with

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State Bar of Texas Disciplinary Rules of Proofese sional JIM BURNHAM Conduct Committee Former Chairman of the State Bar District 6 Grievance Committee Disciplinary Review Committee Former President of the Dallas Bar Texas Bar Foundation, Fellow Association State Bar of Texas, Member Brazos County Bar Association, Member Former Dallas Assistant District Austin Bar AitiMb As a former Panel Chair and District 6 Attorney Grievance Committee Chair I have the Dallas Bar Association Trial Lawyer experience to help you defend your of the Year reputation and livelihood. Fellow of the American College of Call me at 214-336-7364 or Trial Lawyers email me at [email protected] Law Offices of Jim Burnham Jeanne M. Huey Principal Office 9– 79.694.7000 6116 N. Central Expy. Ste. 515 1515 Emeralld Plaza • College Station, TX 77845 Hunt Huey PLLC Dallas, Texas 75206 Austin – By AApppointment – 512.501.3617 1012 Rio Grande St.•AAuustin, TX 78701 100 Crescent Court Ste. 700 www.jburnhamlaw.com Dallas, Texas 75201 www.hunthuey.com [email protected] www.legalethicstoday.com Office: (214) 750-6616 wweestwebblaawww..com

506 Texas Bar Journal • July/August 2020 texasbar.com disciplinary actions

Texas Rules of Disciplinary Procedure fraud, deceit, or misrepresentation while number in parentheses indicating the Rule 13.01 relating to notification of an acting as a notary on a release of lien frequency of the violation. Please note attorney’s cessation of practice. document as well as when he filed a that an attorney may be reprimanded for Warren violated Rules 1.01(b)(1), 1.03(b), document with the clerk’s office. more than one rule violation. 1.14(a), 1.15(d), 8.04(a)(7), and 8.04(a)(10). Giwa violated Rule 8.04(a)(3). He was 1.01(b)(1)—for neglecting a legal He was ordered to pay $4,500 in restitution ordered to pay $1,500 in attorneys’ fees. matter entrusted to the lawyer (2). and $500 in attorneys’ fees and direct expenses. 1.01(b)(2)—for failing to carry out On May 1, 2020, pAUL MArtin weiss completely the obligations owed to a On May 19, 2020, Christopher eriC [#24034732], 59, of San Antonio, accepted client (1). Dennis [#90001539], 49, of Levelland, a public reprimand. An investigatory panel 1.03(a)—for failing to keep a client agreed to a judgment of indefinite of the District 10 Grievance Committee reasonably informed about the status of a disability suspension, effective found Weiss neglected a client’s matters, matter and promptly comply with immediately. The Board of Disciplinary failed to respond to a client’s request for reasonable requests for information (2). Appeals signed an agreed judgment of information, and upon termination of 1.15(d)—Upon termination of indefinite disability suspension based on representation, failed to return unearned representation, a lawyer shall take steps to Dennis’ agreement that he suffers from a fees and failed to respond to grievances in the extent reasonably practicable to protect disability that results in his inability to a timely fashion. a client’s interests, such as giving reasonable practice law. Weiss violated Rules 1.01(b)(1), 1.03(a), notice to the client, allowing time for 1.15(d), and 8.04(a)(8). He agreed to pay employment of other counsel, surrendering pUBLiC repriMAnDs $2,050 in restitution and $800 in attorneys’ papers and property to which the client is On May 5, 2020, GABrieL iBUkUn GiwA fees and direct expenses. entitled and refunding any advance payments [#07990170], 66, of Houston, accepted of fee that has not been earned. The lawyer an agreed judgment of public reprimand. privAte repriMAnDs may retain papers relating to the client to An evidentiary panel of the District 4 Listed here is a breakdown of Texas the extent permitted by other law only if Grievance Committee found that Giwa Disciplinary Rules of Professional Conduct such retention will not prejudice the client in engaged in conduct involving dishonesty, violations for four attorneys, with the the subject matter of the representation (1). TBJ NED BARNETT CRIMINAL DEFENSE Defending Texans Since 1994

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texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 507 MOVERS AND SHAKERS

For more information or to submit a listing, go to texasbar.com/moversandshakers or email [email protected].

CENTRAL GULF KaLi a. ParK is now an attorney with Lisa L. Pittman, of Coats Rose in Austin, LesLie tan is now senior counsel to Harris, Finley & Bogle in Fort Worth. was appointed as a nonresident fellow of Chamberlain, Hrdlicka, White, Williams the Rice University Baker Institute for & Aughtry in Houston. Public Policy’s Drug Policy Program. Brian aLLen BoLton is now a partner in Locke Lord in Dallas. aBe goren, of Wilson Cribbs + Goren Cori HasH is now a partner in Lincoln- in Houston, was reappointed to the Goldfinch Law in Austin. Midtown TIRZ/Redevelopment Board missy Luton is now assistant vice by Houston Mayor Sylvester Turner. president, associate general counsel, and privacy officer of the Federal Reserve LayLa D. miLLigan is now an assistant Bank of Dallas. attorney general with the Bankruptcy & vaLerie g. HenDerson, of Baker, Collections Division of the Office of the Donelson, Bearman, Caldwell & Texas Attorney General. Berkowitz in Houston, was elected KatHerine a. Kinser, of Kinser & Bates shareholder in the firm. in Dallas, was named a national EAST “diplomate” of the American College of JoHn a. PeraLta, previously with the Family Trial Lawyers. Angelina County District Attorney’s BiLL Kroger, of Baker Botts in Houston, Office, has opened the Law Office of was elected president of the Houston Bar Association. FranK CarroLL, of the Law Offices of John A. Peralta, 103 E. Denman Ave., Wm. Frank Carroll in Colleyville, was Lufkin 75901. reelected chair of the board of the Texas gregory C. uLmer, of Baker & Board of Legal Specialization. Carroll Hostetler in Houston, was elected to the also received the Distinguished TRADEMARK firm’s Policy Committee. Counselor Award from the State Bar of Copyright & Patent Searches Texas Antitrust and Business Litigation CHaunteLLe wooD, of Liskow & Lewis Section. for attorneys worldwide” in Houston, was selected to join the National Black Lawyers Top 40 Under The Law oFFiCe oF JD Foster moved to FEDERAL SERVICES & RESEARCH: 40 network. 133 Chieftain Dr., Ste. 102, Waxahachie Attorney directed projects at all Federal agencies in Washington, DC, including: 75165. USDA, TTB, EPA, Customs, FDA, INS, FCC, ICC, SEC, USPTO, and many others. JoHn sParaCino is now a principal in McKool Smith in Houston. tina CamPBeLL, previously with the Freedom of Information Act requests, copyright deposits, document legalization Tarrant County Domestic Relations @ State Dept. & Embassies, complete Office, is now a staff attorney with trademark, copyright, patent and TTAB Jason wagner is now owner of Wagner Law, 1110 Kingwood Dr., Ste. 280, McCarty-Larson in Midlothian. COMPREHENSIVE: U.S. Federal, Houston 77339. State, Common Law and Design searches, LinDsay H. Ferguson and t. aLLen INTERNATIONAL SEARCHING mCConneLL are now partners in EXPERTS: Our professionals average NORTH over 25 years experience each moniCa w. Latin is now a managing Sheppard Mullin in Dallas. FAST: Normal 2-day turnaround partner in Carrington, Coleman, Sloman with 24-hour and 4-hour service available & Blumenthal in Dallas. Kevin mCgLinCHey is now of counsel to

GOVERNMENT LIAISON SERVICES, INC. Ivins, Phillips & Barker in Dallas. 200 N. Glebe Rd., Suite 321 Lee Hunt and george tHomas BosweLL Arlington, VA 22203 are now attorneys with Brackett & Ellis SOUTH Ph: 703-524-8200, Fax: 703-525-8451 in Fort Worth. russeLL mayne is now an associate of Minutes from USPTO & Washington, DC Santoyo Wehmeyer in San Antonio. TOLL FREE:1-800-642-6564 Brittany g. ruPPLe is now a litigation www.GovernmentLiaison.com van LinDBerg [email protected] associate of Bourland, Wall & Wenzel in is now a partner in Taylor Fort Worth. English Duma in San Antonio. TBJ

508 Texas Bar Journal • July/August 2020 texasbar.com SAVE A LIFE! CALL US! 32% of lawyers under 31 and 21% of all lawyers have a TLAP SAVES LIVES DRINKING PROBLEM 1-800-343-8527 (TLAP) TLAPHELPS.ORG 28% of lawyers struggle with DEPRESSION 19%

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JAMES B. ADAMS JERRY ED BAIN president of tax for Cooper Industries Adams, 93, of Bain, 80, of Tyler, from 1987 to 2006 in Houston; Kerrville, died April died March 11, 2020. practiced at Gardner Sewell in Houston 25, 2020. He served He received his law from 2006 to 2014; was in private practice in the U.S. Army degree from the in Houston from 2014 to 2019; and was an during World War II University of Texas adjunct professor at the University of and was part of the School of Law and Houston Law Center in taxation law. U.S. occupying force was admitted to the Leightman was top of his class at the in Japan after the war. Adams received Texas Bar in 1964. Bain was a University of Texas School of Law and his law degree from Baylor Law School shareholder in Loftis, Rowan, Files, had the highest score on the Texas Bar and was admitted to the Texas Bar in Bain, Clayton & Clarke in Tyler from Exam in 1966. He and his wife devoted 1949. He was a prosecuting attorney in 1976 to 1998, in Bain, Files, Jarrett, their spare time to the Houston Ballet as the Limestone County District Bain & Harrison in Tyler from 1998 to board members, supported the Attorney’s Office. Adams served in the 2016, and in Bain, Files, Jarrett & Leukemia & Lymphoma Society’s Texas Texas House of Representatives in 1951. Harrison in Tyler from 2016 to 2020. Gulf Coast Chapter, and participated in He was a special agent in the FBI in He was president of the Texas Young many other nonprofit organizations. Seattle, Washington, San Francisco, Lawyers Association from 1973 to 1974, Leightman played bridge in high school California, and Administrative Service served on the State Bar of Texas Board and college, became a life master in the Divisions from 1951 to 1959; an of Directors from 1989 to 1992, was a American Contract Bridge League (along assistant special agent in charge of the member of the American Academy of with his mother and sister), played FBI office in Minneapolis from 1959 to Matrimonial Lawyers, and was a Texas extensively in the Houston and regional 1972; special agent in charge of the FBI Bar Foundation fellow. Bain was always bridge community, and served as a board office in San Antonio in 1972; and held smiling and wanting to help others member for the league. He discovered various positions including inspector including young lawyers. He truly sailing in California and often sailed with his division supervisor, chief personnel enjoyed helping clients through the family and friends off the coasts of Newport officer, assistant director of the Office of rough times and showing them a better Beach and San Francisco Bay. Leightman is Planning and Evaluation, assistant to future laid ahead. Bain loved the survived by his wife of 53 years, Evelyn; son, the director, and deputy associate for outdoors and sharing it with others. He Michael; daughter, Rebecca Leightman; investigations. Adams was appointed is survived by his wife of 58 years, sister, Judy; and his four grandsons. FBI acting director by President Jimmy Barbara Bain; daughters, Sherry B. Agee Carter in 1978 and later served as and Denise B. Graber; son, Bruce D. WENDELL L. EVANS JR. associate director under Judge William Bain; brother, David Sam Bain; and Evans, 88, of Dallas, Webster until 1979 and was appointed seven grandchildren. died February 15, director of the Texas Department of 2020. He received his Public Safety and chief of the Texas EUGENE DANIEL LEIGHTMAN law degree from Rangers by Gov. Bill Clements in 1980. Leightman, 79, of Washington He was in charge of identifying Houston, died University School of concerns and implementing December 30, 2019. Law and was admitted improvements at the FBI following the He served in the U.S. to the Texas Bar in 1983. Evans was Watergate scandal. Adams was described Navy from 1963 to admitted to the Missouri Bar in 1957. by a high-ranking FBI official as the 1968. Leightman He was a solo practitioner in Lebanon, “backbone” of the bureau. As chief of received his law degree Missouri, from 1957 to 1966; executive the Texas Rangers, he modernized from the University of Texas School of vice president of Missouri Savings and selection and training of officers and Law, his LL.M. in tax law from Boston Loan League in Jefferson City, Missouri, investigatory techniques and methods University School of Law, and was from 1966 to 1972; vice president of and broadened the role of the agency. admitted to the Texas Bar in 1966. He Farm & Home Savings & Loan in Adams received the U.S. Attorney began his law practice with the IRS in Nevada, Missouri, from 1972 to 1975; General’s Distinguished Service Award Washington, D.C., from 1968 to 1979; served as chief executive officer and in 1978 and the National Intelligence was manager of tax for Parsons president at various savings and loans Distinguished Service Medal in 1979. Corporation in Pasadena, California, banks in Connecticut, Louisiana, He is survived by his wife of 64 years, from 1979 to 1985; was director of tax Michigan, Minnesota, Missouri, and Ione LaRae Winistorfer. for Intel from 1985 to 1987; vice Texas from 1975 to 1984; and was chief

510 Texas Bar Journal • July/August 2020 texasbar.com memorials executive officer of AmeriWest Financial Ranch in Edwards County. He is Chris; brothers, Tom Patterson and in Dallas from 1984 until retirement. survived by his wife, Diane; sons, Hilary Stephen Patterson; sister, Priscilla Evans was a city judge and B. Doran III, David Doran, and Patterson; and six grandchildren. prosecuting attorney for Laclede Gregory Doran; daughter, Katherine County, Missouri. He was morally Diane Keller; and one grandchild. RICHARD KEVIN HARDAGE ethical and a diligent worker. Evans Hardage, 58, of loved his family. He is survived by his WILLIAM ROBERT COHRS Dallas, died April 3, wife of 63 years, Jean Rule Evans; son, Cohrs, 69, of 2020. He received his Wendell L. Evans III; daughters, Coppell, died January law degree from attorney Sara J. Evans and Elisabeth 21, 2020. He received Southern Methodist Evans Davis; seven grandchildren; and his law degree from University School of six great-grandchildren. the University of Law and was admitted Virginia School of to the Texas Bar in 1989. Hardage was WILLIAM R. “BILL” PAKIS Law and was admitted an associate of Gardere & Wynne from Pakis, 86, of Waco, to the Texas Bar in 1992. Cohrs was 1989 to 1991, general counsel to died April 23, 2020. admitted to the Georgia Bar in 1980. Carrington Laboratories from 1992 to He was an instructor He was a trademark and copyright 1993, an associate of Locke Purnell for the U.S. Army lawyer for Hurt, Richardson, Garner, Rain Harrell from 1993 to 1998, and a Finance Corps from Todd & Cadenhead in Altanta, Georgia, portfolio manager and eventually 1955 to 1957. Pakis and with King & Spalding in Atlanta manager of Brown Brothers Harriman. received his law and practiced international law with He worked at U.S. Trust Company and degree from Baylor Law School and was Exxon Mobil Corp. in Dallas. Cohrs was a founding member of Turtle Creek admitted to the Texas Bar in 1960. He received a full basketball scholarship to Management. Hardage was a private was a founding partner in Pakis, Giotes, Michigan State University, where he pilot with instrument rating and owned Page & Burleson in Waco from 1963 to received his bachelor’s degree in interests in several planes with friends. 1987. Pakis was certified in estate mechanical engineering and master’s in He was an accomplished athlete, ran planning and probate law by the Texas engineering. He is survived by his wife of seven marathons, and was a frequent Board of Legal Specialization. He had a 40 years, Susan Blakemore Cohrs; sons, participant of the Hotter’N Hell gift for analyzing all types of situations David Lynn Adams, Matthew W. Adams, Hundred bike race in Wichita Falls. and offering wise, sensible advice. His and Luke E. Adams; brothers, Fred Robert Hardage loved the mountains of Colorado, family was of the utmost importance to Cohrs, Daniel Cohrs, and Timothy where he enjoyed fly-fishing with his him. Pakis is survived by his son, David Cohrs; sisters, Mary Ann Weaver and extended family. He is survived by his wife Pakis; daughters, Mary Katherine Nancy J. Cohrs; six grandchildren; and of 27 years, Tania Hardage; sons, Will Tetirick, Laura O’Brien, and Alison two great-grandchildren. Hardage and Jack Hardage; daughter, Naylor; brother, George Pakis Jr.; and Margaret Hardage; mother, Willie Mae 13 grandchildren. EDWARD J. PATTERSON JR. Estes; brothers, Kelly Hardage and Mike Patterson, 84, of Hardage; and sister, Ginger Carlin. HILARY BRUMLEY DORAN JR. Galveston, died April Doran, 83, of Del 19, 2020. He received MARLOW PRESTON Rio, died December his law degree from Preston, 76, of 21, 2019. He served the University of Georgetown, died in the U.S. Air Force Texas School of Law March 22, 2020. He from September 1958 and was admitted to received his law to June 1962 and in the Texas Bar in 1957. Patterson spent degree from the the Reserve from July his entire career with Royston & Rayzor University of Texas 1962 to January 1977. Doran received from 1957 to 2000, starting as an School of Law and his law degree from the University of associate and eventually becoming was admitted to the Texas Bar in 1969. Texas School of Law and was admitted managing partner in Galveston before Preston practiced consumer bankruptcy to the Texas Bar in 1965. He was an working as a mediator. He enjoyed the law in Dallas, Houston, and Austin. He attorney for Doran, Gulley & Etzel practice of maritime law and the was named National Association of from 1966 to 1975; joined the staff of satisfaction of successful compromise of Consumer Bankruptcy Attorneys Gov. Bill Clements in 1979, eventually disputes via mediation. Patterson loved Member of the Month in April 2005. becoming chief of staff; and was the University of Texas, Longhorn Preston was a member of Omicron employed by Johnson & Johnson in football, the Simpsons, fast cars, and Delta Kappa Fraternity. He loved to Austin until his retirement. Doran was Willie Nelson. He is survived by his read history, economics, and politics. involved in church leadership and wife of 59 years, Connie Russo Preston enjoyed camping, traveling, and enjoyed hosting hunts at his Doran Patterson; sons, attorney Eddie and being outdoors. He is survived by his texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 511 MEMORIALS wife of 53 years, Nancy Preston; daughter, later a wildlife watcher. Pickens was JERRY CHARLES WALKER Elizabeth Hall; three grandchildren; and fond of country and western dancing. Walker, 76, of Fort two great-grandchildren. He is survived by his wife of 13 years, Worth, died October Maridean Bock; son, Kyle Pickens; 23, 2019. He served JOHN E. GANGSTAD daughter, Paige Stotts; brother, William in the U.S. Navy from Gangstad, 71, of Pickens; and three grandchildren. 1967 to 1968. Walker Austin, died received his law November 22, 2019. DAVID B. SCHNEIDER degree from Texas He received his law Schneider, 75, of Wesleyan School of Law and was degree from the Oklahoma City, admitted to the Texas Bar in 1995. He University of Texas Oklahoma, died was an associate of the Law Office of School of Law and February 9, 2020. He Terry L. Cox in Marshall in 1995 and was admitted to the Texas Bar in 1974. received his law owner of the Law Office of Jerry Walker Gangstad was an attorney at Turner, degree from the in Fort Worth from 1995 to 2019. Hitchins, McInerney, Webb & Hartnett University of Texas Walker enjoyed the rodeo, fishing, and in Dallas from June 1974 to August School of Law and was admitted to the golf. He is survived by his wife of 51 1981, a partner in Brown McCarroll in Texas Bar in 1969. Schneider was years, Pam Walker; daughter, attorney Austin from September 1981 to June admitted to the Oklahoma Bar in 1978. Julie Jan Walker; and sister, Jan Cason. 2000, and an attorney at Bickerstaff He worked for the Interstate Commerce Heath Delgado Acosta in Austin from Commission in Washington, D.C.; as JOSEPH M. MARCUM June 2000 to November 2019. He was in counsel to Yellow Freight System in Marcum, 55, of the Order of the Coif at the University of Kansas City, Missouri; and practiced Corpus Christi, died Texas School of Law. Gangstad worked transportation law in Oklahoma City. March 21, 2020. He with the homeless. He enjoyed golfing Schneider was Transportation Lawyers received his law degree and gardening. Gangstad is survived by Association president in 1996-1997. He from the University of his wife, Cynthia Gangstad; son, Erik E. is survived by his son, Jerome Arkansas School of Gangstad; daughters, Allison Gangstad Schneider; daughter, Michelle Law and was admitted Litton and Amy Gangstad; brothers, Jim Schneider; and five grandchildren. to the Texas Bar in 1991. Marcum was an Gangstad and Karl Gangstad; sister, associate of Meredith, Donnell & Lillis Marie Teran; and four grandchildren. EVERETT S. MCCRUM Abernethy in Corpus Christi from 1990 McCrum, 88, of to 1997, a partner in Donnell, Abernethy ROBERT J. PICKENS Brownwood, died & Kieschnick in Corpus Christi from Pickens, 83, of Tynan, January 6, 2020. He 1997 to 2006, a principal in Joseph M. died March 24, 2020. received his law Marcum, Attorney & Counselor at Law He received his law degree from the in Corpus Christi from 2006 to 2010, of degree from the University of Texas counsel to the Rangel Law Firm in University of Texas School of Law and Corpus Christi from 2010 to 2017, and School of Law and was admitted to the Texas Bar in 1954. of counsel to Hoblit Darling Ralls was admitted to the McCrum was admitted to the Louisiana Hernandez & Hudlow in Corpus Christi Texas Bar in 1961. Pickens served in the Bar in 1980. He was a legal assistant at from 2018 to 2020. His article U.S. Air Force, Reserve, and Texas Air Shell Oil in Midland from 1955 to “Continuing Erosion of the Peremptory National Guard from 1961 to 1967. He 1963; an assistant division attorney at Challenge in Equal Protection Litigation” was in private practice in Beeville and Mobil Oil in Midland from 1963 to was published in the Arkansas Law Review Corpus Christi from 1961 to 1967; a 1972 and a senior attorney at Mobil Oil in fall 1989. Marcum enjoyed working corporate oil and gas attorney for Sun in Houston from 1972 to 1976; legal alongside, mentoring, and encouraging Oil in Beaumont from 1967 to 1970; director of Mobil Oil Exploration & his daughter, Amanda, in her legal career. vice president and director of the Buchel Producing Southeast in New Orleans, He was an honest, determined, National Bank of Cuero from 1970 to Louisiana, from 1976 to 1986; and general hardworking, loving husband, and father. 1974; a corporate oil and gas attorney at counsel to Mobil Producing Texas & New Marcum played shortstop at both Eastern Marathon Oil from 1974 to 1999, Mexico in Houston from 1986 to 1988. Michigan University and the University including two years in London, U.K., as McCrum was legal chair of the Offshore of Michigan from 1983 to 1987. He senior counsel for worldwide Operators Committee in New Orleans loved spending time with children— exploration on projects in the North from 1985 to 1986. He was chair of the coaching them in baseball and basketball Sea; and a title attorney at Willey, Texas Mid-Continent Oil & Gas and instructing them in the fine art of Edwards and Wright in Houston from Association from 1986 to 1988. fishing. Marcum never missed an 1999 to 2005. Pickens enjoyed farming McCrum enjoyed golfing. He is survived opportunity to support his children in and ranching. He liked to hunt and was by his wife of 61 years, Betty A. McCrum. sports or educational activities. Marcum

512 Texas Bar Journal • July/August 2020 texasbar.com memorials is survived by his wife of 30 years, Karen 1968 to 1975 and vice president and Association from 1977 to 1978. Reilly L. Marcum; son, Casey D. Marcum; general counsel to Occident Chemical received the State Bar of Texas daughters, attorney Amanda P. Marcum, from 1975 to 1985. McGaw enjoyed Intellectual Property Law Section Meredith G. Marcum, and Mattie R. painting, collecting wine and art, and Chair’s Award for 1987 to 1988. He was Marcum; mother, Lee Marcum; father, J. reading. He is survived by his wife of 52 an avid golfer and enjoyed swimming and Douglas Marcum; brothers, Doug years, Patricia McGaw, and daughter, reading. Reilly is survived by his sons, Marcum and Jason Marcum; and sisters, Kimberly McGaw. Thomas V. Reilly and attorney Kenneth J. Tammy Minder and Cindy Dellanno. The Reilly; daughters, Ann Harris and Barbara family requests that you consider a ABRAHAM F. BARKER Wheat; sister, Mary Nemec; nine colonoscopy screening to raise awareness Barker, 50, of Austin, grandchildren; and nine great-grandchildren. of colon cancer—this screening could save died May 22, 2020. a life. He received his law DESMOND T. JENKINS degree from Ohio Jenkins, 33, of Trinidad, EARL F. HALE JR. Northern University died August 14, 2019. Hale, 74, of Comfort, College of Law and He received his law died February 27, was admitted to the degree from Baylor 2020. He received his Texas Bar in 2010. Barker was admitted Law School and was law degree from to the California Bar in 1996 and admitted to the Texas Columbia Law School admitted to practice in Tennessee in Bar in 2012. Jenkins and was admitted to 1999. He was a federal law clerk for was a summer associate of Potter Minton the Texas Bar in 1970. U.S. District Judge Elizabeth V. in Tyler in 2011, an associate of Stevens Hale was admitted to practice in New Hallanan, of the Southern District of Henry in Longview from 2012 to 2013, York in 1980. He was a partner in West Virginia, in Charleston from 1997 an associate of DeHay & Elliston in Carrington, Coleman, Sloman & to 1999; an attorney at King & Ballow Dallas from 2014 to 2017, an associate Blumenthal in Dallas from 1970 to in Nashville, Tennessee, from 1999 to of the Bassett Firm in Dallas in 2018, and 1999 and a member of the Executive 2000; a partner in Constangy, Brooks & an associate of Starr Schoenbrun & Comte Committee, and he was in private Smith in Nashville from 2000 to 2009; in Tyler from 2018 to 2019. He went out practice as a mediator and arbitrator in a senior associate of Henslee Schwartz in of his way to help others and was heavily Dallas from 1999 to 2015. Hale was Austin from 2010 to 2013; and a involved in his church in Trinidad. Jenkins chairman of the St. Paul Hospital shareholder in Eichelbaum Wardell is survived by his father, Ernest Lee Jenkins; Foundation in 2001 and served the Hansen Powell & Muñoz in Austin mother, Vassandral Dawson; brothers, Texas Center for Legal Ethics. He was a from 2015 to 2020. Barker enjoyed Corey Jenkins, Quincy Jenkins, Ahmad creative problem solver. Hale loved traveling, sports, and animals. He is Jenkins, and Jerell Williams; and sisters, modern art, classical music, Lebanese survived by his wife, Colleen Hannafin Kimberly Dawson and Jacqueline Carr. food, and golfing. He is survived by his Barker; sons, Gabrial Frederic Lee wife of 24 years, Janet Gish Hale; Barker and Quentin Lee Barker; daughters, BENJAMIN RAYE COLLIER daughter, Elizabeth Hale Spitzer; Isabella Pistone and Sofia Pistone; and Collier, 89, of Dallas, stepsons, Andrew Richard Hayslett, mother, Kathy Barker. died July 24, 2019. He Tyler Randolph Hayslett, Gregory served in the U.S. Army Patrick Hayslett, and Bryan Austin JAMES ARTHUR REILLY from 1951 to 1953. Hayslett; and three grandchildren. Reilly, 103, of Collier received his law Lakeway, died May degree from Southern KENNETH A. MCGAW JR. 23, 2020. He served Methodist University McGaw, 90, of in the U.S. Navy from School of Law and was admitted to the Houston, died March 1942 to 1946. Reilly Texas Bar in 1956. He was an assistant 9, 2020. He received received his law degree district attorney in the Dallas County his law degree from from Rutgers Law District Attorney’s Office in Dallas from the University of School and was admitted to the Texas Bar 1957 to 1959, an attorney at Superior Illinois College of in 1966. He was admitted to the District Insurance Company in Dallas from 1959 Law and was admitted of Columbia Bar in 1952. Reilly was a to 1960, a partner in Stigall, Maxfield to the Texas Bar in 1975. McGaw was patent attorney at Esso Production & Collier in Dallas from 1960 to 1990, admitted to practice in Illinois in 1953 Research from 1951 to 1982, founding and a solo practitioner in Dallas from and was admitted to the California Bar the law department in 1964 and retiring 1990 to 2006. Collier enjoyed golfing, in 1961. He served in the U.S. Army as general counsel in 1982, and of counsel hunting, and fishing. He is survived by Judge Advocate General’s Corps from to Arnold, White & Durkee from 1983 his son, Forrest B. Collier; daughter, 1953 to 1958. McGaw was general to 1991. He was president of the Elizabeth Blair Lechtenberger; and three counsel to Occidental Chemical from Houston Intellectual Property Law grandchildren. TBJ texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 513 CLASSIFIED ADVERTISING

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516 Texas Bar Journal • July/August 2020 texasbar.com news from around the bar

U.S. 5TH CIRCUIT CHIEF JUDGE Former State Bar of Texas TO KEYNOTE HEMPHILL DINNER U.S. Court of Appeals for the 5th Circuit director honored with Chief Judge Priscilla R. Owen will be the keynote speaker at the Texas Supreme ABA pro bono award Court Historical Society’s 25th Annual G. Allan Van Fleet, who served on the State Bar of John Hemphill Dinner at 7 p.m. CDT Texas Board of Directors from 2005 to 2008, will be on September 11. For the first time ever, awarded a 2020 Pro Bono Publico Award by the the dinner will be held virtually because American Bar Association at its upcoming virtual ABA of concerns surrounding COVID-19. Annual Meeting. The Pro Bono Publico Awards are Prior to her confirmation to the federal the top honors given by the ABA Standing Committee on Pro Bono and Public Service. They bench in 2005, Owen served for a honor individual lawyers, law firms, and corporate law decade on the Texas Supreme Court. departments for demonstrating outstanding commitment to volunteer legal services First elected in 1994, she was just the for the poor and disadvantaged. Van Fleet is an antitrust, litigation, and legal ethics second female justice to be elected to lawyer based in Houston and Galveston. His pro bono work dates to 1976 while he the court in its history. More details was a student at Columbia Law School. According to his resume, he retired in July about accessing the broadcast will be 2017 after 40 years of practice, including as a senior partner in Vinson & Elkins, Greenberg Traurig, and McDermott Will & Emery. He now handles pro bono cases released closer to the date. For more and serves as an expert witness in antitrust, litigation, and legal ethics matters. The information about the event, go to other national individual winners are Leah Godesky, of O’Melveny & Myers, and Neil texascourthistory.org/hemphill or email Steiner, of Dechert, both from New York. [email protected].

LEGISLATIVE SUBCOMMITTEE TO MEET The State Bar Legislative Policy Subcommittee is tentatively scheduled to meet JUDGE SIDES WITH August 13-14, 2020, to discuss all legislative proposals that have been properly STATE BAR OF TEXAS IN submitted for consideration by the committee. To read the proposals, for details MANDATORY DUES LAWSUIT on the meeting date and location, or for instructions on how to provide comments On May 29, Judge Lee Yeakel, of the to the committee, go to texasbar.com/legislativeprogram or contact the State Bar U.S. District Court for the Western Governmental Relations Department at [email protected] or 800-204- District of Texas, granted the State Bar of 2222, ext. 6826. Texas’ cross-motion for summary judgment in McDonald v. Sorrels, in BILL KROGER IS NEW which three lawyers sued the State Bar, HOUSTON BAR ASSOCIATION PRESIDENT challenging the requirement that they Bill Kroger, of Baker Botts, took office as the join the State Bar and pay mandatory 2020-2021 Houston Bar Association president on dues in order to practice law. The May 12, succeeding Benny Agosto Jr. Along with a plaintiffs have filed a notice of appeal to new president, the Houston Bar elected new the U.S. Court of Appeals for the 5th officers, including President-elect Jennifer A. Circuit. “We are very pleased with Judge Hasley, First Vice President David Harrell, Second Yeakel’s measured and thoughtful Vice President Diana Gomez, Treasurer Chris decision,” 2019-2020 State Bar President Popov, and Secretary Daniella D. Landers. Agosto Randy Sorrels said in a statement. will serve on the board as immediate past “Almost six decades of U.S. Supreme president. Kroger’s focus includes forging strategic partnerships to help Houston Court precedent supports the recover from the COVID-19 pandemic, providing enhanced services as HBA constitutionality of the unified bar members meet new challenges in the practice of law, and increasing pro bono structure. This is reinforced by the recent service to low-income Houstonians facing issues tied to the pandemic. At Baker decisions of the court to deny the Botts, where he has practiced law his entire 31-year legal career, Kroger has chaired plaintiffs’ petitions for certiorari in Fleck the Energy Litigation Practice Group for over a decade. He has represented the v. Wecht and Jarchow v. State Bar of oil and gas, power, renewable, and real estate industries and has been recognized Wisconsin challenging mandatory for his work by several law publications and ranking services. Among Kroger’s membership in the state bars of North accolades is the Karen H. Susman Jurisprudence Award, which he won in 2020 Dakota and Wisconsin. The State Bar of for exhibiting exceptional commitment to equality, justice, fairness, and community Texas is carrying out its statutory service. In 2017, he was elected to the American Law Institute. Two years later, obligations by regulating the legal Kroger received the Leon Jaworski Award from the Houston Bar Association profession and improving the quality of Auxiliary for a lifetime of public service. For more information, go to hba.org. legal services in Texas.”

texasbar.com/tbj Vol. 83, No. 7 • Texas Bar Journal 517 atj pro bono champion

The ATJ Pro Bono Champion is a quarterly feature highlighting the work of an attorney chosen by the Texas Access to Justice Commission. To learn more about pro bono work in Texas or to get involved, go to probonotexas.org.

hoW did you geT sTarTed WiTh pro bono cases and Why did you Take Them on? Richard During my second year of law school, I worked part time for Bexar County Legal Aid in a poor part of San Antonio. Although this wasn’t DANYSH pro bono work, I saw firsthand how the poor and underprivileged had rIchard danysh, of counsel to bracewell In san antonIo, little or no access to legal services despite having legitimate legal claims attrIbutes hIs sense of gIvIng back to hIs catholIc or defenses. I have to admit that during much of my career I did little uPbrIngIng. sPurred by hIs exPerIence workIng Part tIme to act on what I had seen, but the experience never left me. I finally for bexar county legal aId & Pro bono servIces, acted on it and wish I had done so earlier. he focused hIs Pro bono efforts on famIly law. WhaT Types of cases Were you volunTeering your Time on? IntervIew by eric QuiTugua I began taking on pro bono cases for the Community Justice Program Photo courtesy of richard danysh of the San Antonio Bar Association, mostly in the areas of family law. The need I saw while in law school was still there, and I wanted to help out. I eventually began to devote more time to pro bono efforts by taking on responsibilities as a pro bono mediator for the Bexar County Dispute Resolution Center and becoming involved in pro bono immigration work. The immigration work included intake work at the Dilley detention facility, making presentations to local bar associations to recruit lawyers to take on immigration work, trying to establish a network of pro bono translators to help the pro bono non-Spanish speakers (like me), and actual casework. I have also taught at trial academies sponsored by the American College of Trial Lawyers and the Texas Access to Justice Commission, teaching young lawyers working for nonprofits basic trial and advocacy skills.

WhaT pro bono case sTands ouT The mosT To you? An immigration case in which I represented a young woman from Mexico in her late teens and early 20s who was seeking asylum or protection from removal after a series of horrific events suffered at the hands of one of Mexico’s cartels. The cartel murdered her husband, brother-in-law, and 5-year-old daughter. After escaping, she sat in a detention center for almost a year waiting for her case to be heard. By the time I took the case, deadlines were tight. Getting evidence out of Mexico was extremely challenging. The legal standards were in flux and changing—and not in my client’s favor. The case was tried before a San Antonio immigration judge. We put on a credible case. The court acknowledged the horrible things experienced by the client but denied her relief, claiming we did not prove that the cartel would do it again if she returned to Mexico. It was a confounding and illogical conclusion requiring an unrealistic and incredibly high standard. In the end, my client was deported. It was extremely disappointing.

WhaT did you Take aWay from The experience? These individuals genuinely need legal help. They are in a different Tell us a liTTle biT abouT yourself, your upbringing, and country, largely to find a new and better life for their families, with your career. WhaT area of laW do you pracTice? limited or no language skills trying to navigate their way through an I am a civil trial lawyer in private practice in Bracewell’s San Antonio already complex and increasingly hostile immigration system with office. Over the course of my 40-plus-year career, I have tried quite a limited resources. I have also had the opportunity to meet and work number of jury trials mostly representing commercial clients. I was born with an incredibly diverse, talented, and dedicated group of lawyers, and raised in San Antonio and attended Catholic elementary and high assistants, professionals, social workers, and volunteers whom I otherwise schools where there was a constant emphasis on helping those less would have never met. That experience has truly enriched my life. fortunate than oneself. The importance of giving back to the community is something that has stayed with me. I earned my undergraduate degree Why should neW aTTorneys do pro bono Work? at Tulane University and attended law school at St. Mary’s University First, because there is such a need. So many individuals have legal School of Law. problems and cannot afford lawyers. Second, pro bono work is the essence of client service. These people really need help and do not have in WhaT Ways did your upbringing shape your laW career? the resources to get that help. Third, practicing law is a privilege. I I grew up and was educated in a fairly diverse part of our community, believe lawyers should give back to the legal system and our where social and racial distinctions were less common than elsewhere. I communities for that privilege with pro bono services. Finally, it is very like to think this gave me a tolerant view of our community, our fulfilling and satisfying to know that you helped a vulnerable client nation, and the world. solve a problem that otherwise may not have been resolved. TBJ

518 Texas Bar Journal • July/August 2020 texasbar.com

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