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UNT Dallas law student wins Women and the Law Section writing competition

Wed, 04/24/2019 - 15:08

Aubrey Eyrolles, a student at University of North Texas Dallas College of Law, has been chosen the winner of the 2019 Harriet E. Miers Writing Competition Award offered by the State Bar of Texas Women and the Law Section.

The award, named for the first female president of the State Bar of Texas, includes $500 for law school educational expenses. Eyrolles won the competition for her essay, “The Female Incarceration Effect.”

Section Chair Deborah Cordova will present Eyrolles with the award at the section’s annual membership meeting on June 13 at the JW Marriott Hotel in Austin.

The competition, open to all Texas law students, called for essays identifying and analyzing legal challenges for women in Texas or around the country based on recent news reports. The section had the following goals: (1) help participating Texas law school students prepare to tackle legal and societal challenges after graduation; (2) increase awareness of and involvement with the section; and (3) further the section’s mission, which is to encourage and facilitate the active and effective participation of women in the legal profession and in the community, and to address women’s current needs and the issues affecting them.

Stories of Recovery: Finding a “life worth living”

Wed, 04/24/2019 - 13:28

Editor’s note: TLAP offers confidential assistance for lawyers, law students, and judges with substance abuse or mental health issues. Call TLAP at 1-800-343-8527 (TLAP) or find more information at tlaphelps.org.

My name is _____________. I am almost 60 years old, eight years clean in NA, and this is my first time in recovery. I thought I was okay despite a lifetime of using drugs, inner desperation, and outer chaos. I did not think I was an addict because I had not lost my job, home, or children. I had not yet learned that every hit, drink, or whatever I took led me further away from who I really was. I had had two marriages that lasted over a decade each and two children that I helped raise from birth in active addiction until they were about 10 and 12 years old. My life was use, work, use, live, use, travel, use, raise kids, use, do bad stuff, use until I could not any more. Energy, love, and motivation were gone. Life was purely mechanical. I could not live anymore in the masks I wore to get through the day.

When I was ready, a series of events and people led me to the loving arms of Narcotic Anonymous and helped me get clean. As I stayed, the members lifted me up saying: “It is good to see you grow.” NA became my spiritual path to living better. I went to meetings and began daily work on myself through the steps of NA with my sponsor. I started to heal. The steps helped me change the way I look at things. Drugs were no longer an obsession. The light I saw ahead, not the years of darkness behind, started to guide me. I found that the more I looked at myself, the less things around bothered me. My sponsor would say I was making spiritual deposits for future withdrawal when needed. The hard work paid off in serenity.

At two years clean, I received a phone call at five o’clock in the morning from the police to come pick up my daughter and son. Their mom’s mental illness had taken over and although she had always been a hands-on mother, she had put them in serious danger. They’ve not spent a night with her since. With assistance from my significant other and NA program members who had done it before, I started raising my children as a single parent and without the use of drugs. This was hard and different. Parenting, as everything else in my life, had always been done loaded or waiting to get there. How could I help my daughter when she cried for her mom and we didn’t know where she was? “Pray for her with them,” a member said. What a tool! “All they need from you is love. Everything else will fall into place.” NA came through—I really started to connect with a new spiritual way of life, looking for guidance through others, my higher power, and even connecting in my profession with clean colleagues who could be my role models.

Just as I began to grow and heal, some of life’s harshest realities showed up. My significant other’s son came to live with us full-time because of his father’s death due to addiction. Then my mom died. Then my niece, spark of the family, died in a car wreck, leaving three young children. But I did not use. I just do not use, no matter what. That includes alcohol and marijuana too.  Whether it is troubles guiding children traumatized by my active addiction with their mom now out of their lives or learning to get things done (or let them go) with work and two busy teens, I do not use. Now my significant other and I have a baby girl who gets all of me. I’m starting again. She doesn’t get those eyes, that anxiety, or those arbitrary moods because of drugs brought to my other children. My older kids are making their way toward college. So how do I balance it all? My recovery is first, every day, then everything else.

My recovery provides guidance. Everything else—keeping my priorities in order, keeping my children safe—falls into place. It starts early in the morning when I roll over and read a daily meditation, text a prayer to a friend, and then go for a walk. Then a little step work and the rest of the day falls into place—not always what I want to do, but what I am capable of, with help. Everything does not get done, but the third step helped me decide to let some things go and it revolutionized my life. For example, when the children came to live with me, evening meetings were gone. Then, after five years of making my home group every week, my mandatory parent activities at school blocked that. I miss some of those school things, too. I make NA meetings almost every day, but I go when and where I can and supplement with NA telephone meetings. I sponsor men, go to hospitals and institutions at least once a week, and work in the same profession I always have, but now eight years doing it clean!

I’m happy today seeing others find what I found through recovery—a life worth living. I am grateful for those who showed me the way to a life I never considered possible. I make sure to tell new members the message I was told: “It’s good to see you grow.” I now nurture my spirit by helping others.

State Bar of Texas announces 2019 winners of Law Day contests

Wed, 04/24/2019 - 08:00

The State Bar announced the winners of the annual Law Day editorial, photography, and poster contests this month.

Law Day is celebrated annually across the country on May 1 to honor the rule of law and underscore how the legal process contributes to the freedoms that all Americans share. The State Bar of Texas and the Texas Young Lawyers Association celebrate the importance of law and its impact on our nation and local communities by hosting the K-12th grade statewide editorial, photo, and poster contests based on the American Bar Association Law Day yearly theme. Local bars and young lawyer affiliates are encouraged to hold local contests and submit their first-place winners in each category to the State Bar for the statewide contest.

This year’s theme, “Free Speech, Free Press, Free Society,” encouraged students to reflect on how today’s society is impacted by freedom of speech and freedom of the press and what role these tenants of our society play in our representative government. The winners of the State Bar contests, who creatively interpreted the national theme, will be recognized at the Texas Law Center May 1.

Below is an excerpt from the editorial of first-place winner, Luke Frei of Holland High School in Temple, representing the Bell County Young Lawyers Association:

Freedoms from Holland, Texas to Sea to Shining Sea

By Luke Frei

It’s 8 AM, at tiny Holland High School, the school I have come to love. A reassuring monotone voice booms across the loudspeaker imploring my fellow classmates to rise, face the American flag, and pledge allegiance to the country I love so dear. I have looked forward to this moment since Kindergarten and as my final days of my senior year draw to a close, I breathe it in and loudly exclaim each and every word. I am beyond proud to be an American as my parents have instilled the values of God, family and country into me.

However, on this day, I look across the row, and see a fellow classmate who is new to our school sitting quietly at her desk, not saluting the flag and not reciting. I find out later that she is abstaining for religious reasons. At first I am bewildered, and some of my friends are angered, but as the days and weeks go on, my pride swells. This is truly why America is different. This is truly why America is still the greatest country in the world. Despite our massive amount of differences, our 2019 America is great because of the freedoms of speech and press we still enjoy today.

Peruse the rest of Luke’s editorial, the other winning entries, and the top photographs and posters at texasbar.com/lawday.

MidSouth Bank joins Texas Access to Justice Foundation’s Prime Partner Bank program

Tue, 04/23/2019 - 09:00

MidSouth Bank has partnered with the Texas Access to Justice Foundation’s Prime Partner Bank program. As part of the program, MidSouth Bank will voluntarily pay higher interest rates for Interest on Lawyers’ Trust Accounts, or IOLTA.

“Many Texans face serious legal issues, such as escaping situations of domestic violence or avoiding foreclosure, and simply do not have the resources to hire an attorney,” said Richard L. Tate, chair of the Texas Access to Justice Foundation Board of Directors, in a press release. “By paying higher interest rates on IOLTA accounts, MidSouth Bank is helping ensure that low-income Texans have access to lifesaving civil legal services.”

All attorneys are required to keep client funds in IOLTA accounts until they can be made available to the clients. TAJF receives funding from the interest generated by these accounts and uses it to distribute grants to Texas legal aid providers. This funding provides legal assistance to more than 150,000 Texas families each year.

Low interest rates have led to a 53% decline in IOLTA revenue since 2007 resulting in a loss of nearly $152 million for legal services for disadvantaged Texans. Prime Partner Bank program members pay 75% of the federal funds target rate on IOLTA accounts.

“MidSouth Bank is committed to making our communities batter places to live and work,” said Chris Mosteller, chief banking officer of MidSouth Bank, in a press release. “We encourage others in the community to join our efforts to level the legal playing field for the economically disadvantaged among us, and we are excited to be a part of the Prime Partner Bank program, which can drastically improve the lives of these fellow Texans.”

For more information on TAJF, go to teajf.org. Additional information on the Prime Partner Bank program can be found at teajf.org/financial_instiutions/prime_partners.aspx.

Texas Bar Journal announces 2019 Short Story Contest winners

Mon, 04/22/2019 - 11:00

Thank you to the 29 writers who submitted entries to the Texas Bar Journal Short Story Contest this year.

Author names were removed from entries before being submitted to judges in order to keep the contest fair and impartial. Two panels of judges faced the challenging task of selecting the winners, and for each round the same evaluation form was used for consistency. Ten entries advanced to the final round, which was judged by Pamela Buchmeyer of Dallas and Jupiter, Florida; Mike Farris of Dallas; last year’s winner, Rosanne Gordon of Dallas; and last year’s second-place finisher, Ron Uselton of Sherman.

The winner, “Crowd Work,” by Caryn L. Carson, earned the highest number of points.

Please congratulate these attorney-authors for making it through the competitive first round of judging to the finals.

“Crowd Work,” by Caryn L. Carson (First Place)

“If Wishes Were Clients,” by David Jones (Second Place)

“The Kid’s Gun,” by Blair Dancy (Third Place)

“Frames and Mirrors,” by Daniel Elms

“We All Get Touched,” by Michael E. Jimmerson

“The Coast Theory,” by Charles K. Eldred

“The Ghost of Christmas Presence,” by Steve Fogle

“The Payne Family Tree,” by Claire Smith

“The Case of the Nuncas,” by Jose Angel Gutierrez

“Enter the Darkness,” by Victor H. Segura

Here’s an excerpt from “Crowd Work”:

“With a hand on either side of the sink, Paige leaned towards the mirror of the second floor ladies restroom in the courthouse. ‘This is it,’ she whispered to the face in the mirror. ‘This is the grind. You chose this. Don’t embarrass yourself.’ She checked her watch and re-lipsticked for the third time. Two regrettable blueberry doughnuts she had lifted from the office breakroom still churned along with the familiar butterflies in her stomach. Paige was the appellant’s lawyer in the third case on the docket and would be going up around 11 a.m. She knew better than to miss her spot. She better be in the courtroom when the court clerk called her case.”

The entire story, along with the second and third place winning entries, will be published in the June issue of the Texas Bar Journal.

Apffel: We Will Defend the State Bar of Texas

Thu, 04/18/2019 - 15:02

In March 2019, three Texas lawyers sued the State Bar of Texas claiming that under Janus v. AFSCME (2018), it is unconstitutional for an attorney to be required to join the State Bar of Texas in order to practice law. The plaintiffs also challenge bar programs that they claim exceed the bar’s “core regulatory functions.”

The State Bar of Texas will vigorously defend its existing statutory structure, which was established by the Texas Legislature in aid of the Texas Supreme Court’s inherent authority to regulate the practice of law.

There are a number of similar lawsuits pending around the country targeting mandatory bar associations. None has been successful.

That’s because U.S. Supreme Court precedent is clear. Mandatory membership in a state bar and payment of compulsory fees are constitutional because of the state’s interest in regulating the legal profession and improving the quality of legal services.1

All State Bar of Texas programs further the state’s interests in regulating the legal profession or improving the quality of legal services. Through these activities, the State Bar protects the public, serves its members, and supports the administration of the legal system.

It is disappointing that the plaintiffs have targeted the State Bar’s access to justice, legislative, and diversity efforts, which are specifically designed to improve the quality of legal services in Texas.

• Access to Justice: The plaintiffs want to stop the State Bar from supporting initiatives to ensure legal representation for Texans and indigent clients who need legal aid. More than 5.6 million Texans qualify for civil legal aid, but only 10 percent of their legal needs are being met because of inadequate resources. The State Bar helps fill this justice gap by supporting access to justice programs that provide legal help to veterans, active-duty military, and their families; people affected by natural disasters; victims of domestic violence and abuse; and many other Texans in need. Support for increased access to justice consistently draws strong bipartisan support.

• Legislative Program: The State Bar’s legislative activities are constitutional and serve to improve the law in Texas. State Bar legislative proposals are generally crafted by the bar’s practice-area sections through the work of volunteer attorneys with extensive knowledge of needed improvements.

• Diversity: The State Bar’s diversity programs, which are open to all Texas attorneys, help the legal profession better serve Texas’ growing population. These programs are widely supported by the Texas legal and business communities because they improve the quality of legal services.

As Texas lawyers, we have been fortunate to practice in a self-regulated profession with an independent grievance system since the creation of the State Bar of Texas in 1939. The State Bar has undergone sunset review four times since then, most recently in 2017 when the Legislature continued us for 12 more years.

Through a mandatory bar, we are able to gather our collective might to advance and improve the legal profession as well as safeguard shared principles including protection of the public, adherence to the rule of law, and promotion of equal access to justice. In fact, it is the oath we take as lawyers, and the right to access to justice that we defend every day, that make our profession different from all others.

The structure of our State Bar has served Texas well for 80 years. We will continue to defend it, for the betterment of all Texans.

To read the State Bar’s response and related filings in McDonald v. Longley, go to .

NOTE

1. See Lathrop v. Donohue, 367 U.S. 820 (1961) and Keller v. State Bar of Calif., 496 U.S. 1 (1990).

The State Bar of Texas’ career center offers tips for job seekers

Mon, 04/15/2019 - 11:00

The Texas Bar Career Center provides tips for new lawyers and those attorneys seeking a new career on its webpage, texasbar.com/careercenter.

In addition to being a resource for jobs, the career center also features helpful tips and offers users the option to upload anonymous résumés to be found by recruiters and employers. Job seekers can also set alerts so that they will be notified when jobs they are interested in have been posted.

Articles such as “Five Simple Tips to Advance Your Career,” “Simple, Practical Advice to Succeed in Life and Work,” and “45 Pieces of Career Advice that Will Get You to the Top” are full of tips and advice to assist with career development and success.

For more information about the Texas Bar Career Center or to search for jobs or post employment opportunities, go to texasbar.com/careercenter.

TexasBarCLE honors outstanding volunteers

Thu, 04/11/2019 - 16:00

Four attorneys were honored for their exceptional contributions in 2018 to the State Bar of Texas’ continuing legal education efforts.

TexasBarCLE gave Standing Ovation Awards to Joe R. Anderson, of Burns Anderson Jury & Brenner in Austin; John C. Grace, of the Lubbock City Attorney’s Office; Mark T. Murray, of Stevenson & Murray in Houston; and Kristal C. Thompson, of Langley & Banack in San Antonio.

“To recognize CLE volunteers who stand out each year for their extraordinary energy, commitment of time, and leadership, the TexasBarCLE staff created the Standing Ovation Award,” said Hedy Bower, director of TexasBarCLE. “The State Bar thanks these committed lawyers who strive to improve the profession through education.”

TOJI accepting applications for 5th cohort

Thu, 04/11/2019 - 11:14

The Texas Opportunity & Justice Incubator, or TOJI, is accepting applications for its fifth cohort, which begins in July.

TOJI is a State Bar of Texas program that helps attorneys build solo law practices that serve low- and modest-income Texans. Participants receive training, coaching, and resources to move their businesses forward and meet the legal needs of underserved populations.

The program is seeking applications from people interested in collaborating with innovative attorneys who are making a difference in the community.

Applications, open through May 15, are available at txoji.com/apply-now. For more information, go to txoji.com or visit TOJI on Facebook at facebook.com/txoji.

ABA seeks attorney volunteers to help along Southern Border

Thu, 04/11/2019 - 08:28

The American Bar Association is seeking licensed attorney volunteers to help with two projects to assist asylum-seekers and immigrant children along Texas’ southern border with Mexico.

The ABA’s Commission on Immigration is leading week-long volunteer trips each month from April to October to direct-service projects along the Texas-Mexico border. Volunteers will work at the South Texas Pro Bono Asylum Representation Project (ProBAR) in Harlingen. Volunteers for this effort are not required to have immigration law experience or speak Spanish to participate. Volunteers will meet with adult immigrants and asylum-seekers at the Port Isabel Detention Center in Los Fresnos and provide assistance with applications for relief. Details and how to volunteer can be found here.

Separately, the ABA’s Children’s Immigration Law Academy (CILA) is seeking Spanish-speaking volunteer attorneys with basic immigration law knowledge to provide legal services on weekends from April through June to detained immigrant children being held in the Rio Grande Valley. Volunteers again will be working with South Texas ProBAR. For details of this effort and how to volunteer, go here.

Sponsored Content: How Law Firms Can Prevent Client Non-Payment

Tue, 04/09/2019 - 23:01

Chasing down non-paying clients is the bane of most lawyers’ existence. You may not be able to avoid ever having to deal with non-paying clients. However, if you take some intentional steps throughout your case, you can certainly reduce the incidence of non-payment.

Communicate Regularly

Likely, the vast majority of the work you do for a client will not be performed in front of her. So if she rarely sees you in person and your primary communication is an invoice with a single line item for “Services Rendered,” she may feel less than thrilled about just cutting you a check, no questions asked.

Realistically, you can’t send daily email updates to every client. But to prevent payment delays, you should at least make sure the important correspondence (i.e., billing statements) meets certain criteria:

  1. Descriptive and easy to understand.

You don’t have to outline your time to the minute, but use separate line items for the larger tasks and include a brief summary of the work you did. As much as possible, avoid legal jargon. Your objective is to give the client visibility into what you’re doing for them. And if you use too much technical language, your client may end up with even more questions.

  1. Delivered electronically and via postal mail.

Letters still sometimes get lost in transit and emails can get caught in SPAM filters. That’s why you should always send digital as well as hard copies of every invoice and keep records of when each was sent.

  1. Sent at approximately the same time each month.

As part of your intake process, establish when the client would prefer to receive her invoices. If you can ensure your invoice arrives consistently, there’s a greater chance she’ll be able to properly budget for it.

Sometimes you might find yourself in a bit of a holding pattern due to circumstances outside your or your client’s control and so you won’t have anything to bill for one month. In those situations, whenever possible you should try to still send some sort of note to let your client know her case hasn’t fallen by the wayside. It’s a small gesture but it shows your client you appreciate her situation. When a client feels appreciated, she’s less inclined to be oppositional when it comes to payment.

Be Flexible About Payments

Offering multiple payment methods can decrease opportunities for delinquent accounts. While cash and checks are, of course, the standard, for many Americans they are becoming increasingly less popular ways to pay for products and services. In fact, only about half of all U.S. adults make sure they have cash on hand.

Consequently, a growing number of law firms are now accepting credit card and eCheck payments. And the most forward-thinking practices use online payment solutions, which make it even easier to avoid non-payment. With an online payment solution, you can accept payments in-person or on a secure payment page. You can also save yourself time by automating your invoicing and billing processes.

Unfortunately, there will likely be instances where you make the payment process as easy and straightforward as possible and clients still don’t pay. However, if you follow this advice, you’ll be in a position where dealing with non-payment can be a little less painful and far less frequent.

TRLA launches disaster-preparedness community meetings

Fri, 04/05/2019 - 07:28

Texas RioGrande Legal Aid, with funding from the Texas Bar Foundation, is launching disaster-preparedness community meetings beginning today in the McAllen area.

The meetings are designed to inform the public about legal solutions to many post-disaster problems.

Tonight’s meeting will be delivered in Spanish. It will begin at 6:30 p.m. at La Union Del Pueblo Entero, 1601 Business US-83, San Juan, Texas, 78589.

 

Abraham Watkins kicks off Text Free Texas Scholarship Contest

Wed, 04/03/2019 - 14:00

Houston firm Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz is sponsoring its 7th annual Text Free Texas Scholarship Contest this month.

The contest is intended to raise awareness about the dangers of distracted driving, especially texting while driving, among teenagers.

Each year, the firm invites four Houston high schools to participate in the contest. High schools participating this year are Chavez High School, East Early College High School, Kashmere High School, and Mount Carmel Academy. During April, driving-age students from the schools will submit pledges explaining why they commit to not text and drive. The firm will select the best pledge from each school and award those students a $250 scholarship. Winners will be announced in the first week of May.

The contest targets teen drivers, who are the youngest and least experienced on the road, and are in the age group where cellphone use while driving is most common.

Find out more about the Text Free Texas Scholarship Contest at TextFreeTexas.com.

South Texas College of Law Houston names new dean, president

Wed, 04/03/2019 - 11:00

South Texas College of Law Houston named Michael F. Barry, assistant dean and practitioner in residence at St. Mary’s University School of Law, as its new dean and president. He will assume the new roles prior to the 2019-2020 school year and will replace Don Guter, who has served as dean since 2009.

“I am delighted and fully confident in turning over the reins of South Texas College of Law Houston to Mike Barry, a proven and successful leader, businessman, and scholastic innovator,” Guter said in a press release. “His impressive track record of integrity, leadership, and ingenuity will serve STCL Houston and its students well as they approach the law school’s 100th year of excellence in legal education.”

Barry was a member of the faculty of St. Mary’s University School of Law for four years. During his tenure there, he implemented Law Success, a three-year program designed to enable students to be successful in law school, on the bar exam, and in practice.

“I am honored to join the South Texas College of Law Houston family and look forward to becoming part of the Houston community,” Barry said in a press release. “The law school has a strong track record of exceptional teaching and scholarship, and South Texas graduates are known as capable, dedicated attorneys committed to serving their clients and their community. I am excited to work with the faculty, staff, students, alumni, and community in support of the school and its students.”

Prior to St. Mary’s, Barry served as senior vice president and general counsel to USAA and as director, assistant general counsel, and associate general counsel to Capital One Services. He received his law degree from Yale Law School.

For more information about South Texas College of Law Houston, go to stcl.edu.

SXSW: Social Media Ethics for 2019

Tue, 04/02/2019 - 09:00

A litany of rule changes have been made and ethics opinions issued by bar associations across the country in order to catch up with the pace of social media. A South by Southwest panel covered changes regarding competence, unintentionally transmitted communications, and disappearing data.

Competence with Social Media
Lisa Borodkin, founder and principal in Lisa Borodkin, Attorney at Law, covered updates to the competency requirement for attorneys as framed in American Bar Association Model Rule 1.1, comment 8 issued in August 16, 2018.

“It’s actually built into the competence requirement that lawyers must keep up with changing technologies and be competent not only in using new technologies, but also advising clients and those they supervise in using new technologies and all of the risks and issues,” Borodkin said.

Another change to competency was issued by California under Rule 1.1, renamed from former Rule 3.1.

“Now the rule of competence for attorneys generally says you have an ethical duty to handle matters that you are competent to handle,” Borodkin said. “What’s new in the California rule regarding experience is that it specifically says that you can refer a matter that you’re handling from an existing client to a competent attorney.”

Unintentionally Transmitted Writings
Hanna Shafran, an associate of Zaller Law Group, discussed new California Rule 4.4, which codified the 2007 ruling in Rico v. Mitsubishi.

Shafran said the Rico case regarded a plaintiff’s attorney inadvertently receiving information from the defense that he then disseminated to his co-counsel and used to impeach an expert witness. At the time, there was no rule governing the handling of unintentionally transmitted documents.

“Comment 1 to Rule 4.4 cites the Rico holding and suggests that an attorney who upon reading a communication that was received inadvertently,” Shafran said. “Immediately upon realizing that you had received a confidential communication, whether it was labeled as such or not, you should stop reading it and return it to the sender, and further reach an agreement to stop any inadvertent use. If you can’t reach an agreement on the inadvertently received information, seek the guidance of a tribunal.”

However, rules vary by jurisdiction and Shafran cited Texas Ethics Opinions 664 & 665 from 2017 as a counter to California Rule 4.4, Comment 1.

“In Texas, there is an obligation on the sender,” Shafran said. “They do it as more of a breach of the attorney-client privilege. The person who sent the information was the one who made the mistake. If you receive an inadvertent communication in Texas you’re allowed to use it—so long as you are acting truthfully.”

Keeping Clients Informed and Disappearing Data
California Rule 1.4, former Rule 3-500, “[i]mposes a duty on attorneys to keep clients reasonably informed of significant developments and promptly comply with request for information and significant documents,” Shafran said.

New to the rule is an addition and exception for this obligation, which in effect address the way information is transmitted, Shafran said.

“You may delay the transmission of information if it’s likely to cause imminent harm,” Shafran said. “There’s a feeling of instantaneous demand for information and I think it’s just to remind attorneys—that although you do have this obligation—to slow down and think about the information you’re conveying. Just because you can give it immediately doesn’t mean that you’re required to give it right this second.”

A popular new method of conveying information to clients has been through disappearing data, Borodkin said.

Disappearing data regards information that lawyers and clients exchange through apps designed to not create a record of that exchange.

“The host does not keep the information after it’s sent,” Shafran said. “Once the recipient receives the information, views it for whatever time period is allotted, then it’s lost and gone forever.”

Borodkin said disappearing data figured prominently in Waymo LLC v. Uber Technologies, Inc. when the Uber counsel used Wickr, an app specializing in disappearing data, to communicate with clients.

The judge scolded the attorneys for Uber at the time, but did not sanction them, Shafran said. However, there is no concrete ruling about disappearing data, so usage remains unclear and is up for ethical debate.

After Waymo v. Uber, Jennifer DeTrani, general counsel to Wickr, was interviewed by Law360.com about disappearing data, Shafran said.

“Using disappearing data shows an intent by the attorney to keep attorney-client communications privileges because you know it’s going to disappear and no one else is going to see it,” Shafran said, summarizing DeTrani’s argument. “[DeTrani] contrasted that by text messages, which she was citing as less secure. She was saying how texting with clients was almost less secure and almost showing less intent of keeping attorney-client privilege.”

Another opinion on disappearing data was an article from Duquesne University School of Law associate professor Agnieszka McPeak published in the Wisconsin Law Review, Shafran said.

“There is a duty under the federal rules to preserve data for discovery, but it’s not clear what your obligations are in using it under a disappearing data context,” Shafran said, summarizing McPeak.

Catfishing and Lawyering Don’t Mix
A number of new California Rules were issued, including Rules 3.4, 4.1, and 4.3, to address how attorneys behave on the internet, Borodkin said.

“You can’t be a sock puppet or an anonymous coward and then go on the internet and do your private investigation work or try to sway public opinion,” Borodkin said.

Borodkin said the new rules in California are an extension of the attorney’s duty to be honest at all times.

“In general, the reasoning is a lawyer is required to be truthful all the time not just when dealing with clients or opposing counsel but even third parties,” Borodkin said.

That honesty also extends to attorneys communicating with unrepresented persons online, which was addressed in ethics opinions from the New York City Bar Association, Oregon State Bar, and the Texas State Bar, Borodkin said.

“Lawyers may not anonymously contact witnesses,” Borodkin said in regards to Texas Ethics Opinion 671 from March 2018. “It’s another violation of the duty to be honest and not to mislead.”

No Anonymous Trolling
Borodkin cited the ruling in the Supreme Court of Louisiana in In Re Perricone as a warning to attorneys attempting to act anonymously online. The case involved Salvador Perricone, a former U.S. attorney, posting pseudo-anonymous comments on the Times-Picayune website regarding a trial he was involved in.

“This attorney would go online and make comments like ‘they’re obviously guilty’ or ‘the jury is definitely going to convict them,’” Borodkin said. When the judge learned of the comments regarding the case, they were forced to set aside the conviction of the defendants, Borodkin said.

The final decision in In Re Perricone resulted in the disbarment of the attorney, Borodkin said.

“It’s very, very clear now that commenting anonymously on an active case is not only an ethical violation, it is so severe that it can result in disbarment,” Borodkin said. “The consequences can be quite dire.”

Even framing a current case as a hypothetical can be dangerous, Borodkin said, and cited ABA Committee on Ethics Formal Opinion 480 from March 2018.

“Attorneys must be hyper aware and hyper careful when framing real-client situations, even as hypotheticals, that it isn’t a case where the identity of the client could be derived,” Borodkin said. “That is disciplinary cause for investigation and discipline.”

Judges Can Be Facebook Friends
Shafran reviewed the 4-3 ruling in Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto Ass’n, a Florida Supreme Court case, dealing with whether a judge must recuse if they are Facebook friends with an attorney in their trial.

“[The Florida Supreme Court] did the classic analysis of looking up the definition of friendship,” Shafran said. “They went through Merriam-Webster’s Dictionary, pared out what it means to be friends, applied it to traditional friendships—face-to-face—and what that means today.”

The majority opinion stated that Facebook friendships did not equal a friendship in the traditional definition of the word, calling them far more casual and less direct in nature, Shafran said.

“Just knowing a judge isn’t immediate grounds for disqualification of that judge,” Shafran said.

The minority opinion suggested a Facebook friendship between judge and attorney was a categorical disqualification, Shafran said.

While in agreement with the majority, one justice wrote a concurring opinion where “he suggested that judges, upon being confirmed, delete their social media and delete their Facebook to avoid any potential conflicts to alleged impropriety,” Shafran said.

In Memoriam – March 2019

Mon, 04/01/2019 - 15:45

The State Bar of Texas’ Membership Department was informed in March 2019 of the deaths of these members. We join the officers and directors of the State Bar in expressing our deepest sympathy.

Laura R. Allbritton, 66, of Pipe Creek, died February 17, 2019. She received her law degree from the University of Iowa College of Law and was admitted to the Texas Bar in 1981.
Harold B. Berman, 92, of Dallas, died March 25, 2019. He received his law degree from Harvard Law School and was admitted to the Texas Bar in 1950.
Rachel H. Blumenfeld, 56, of Knoxville, Tennessee, died February 17, 2019. She received her law degree from Memphis State University College of Law and was admitted to the Texas Bar in 1989.
T. Wayne Brimhall, 77, of Hilltop Lakes, died February 7, 2018. He received his law degree from Loyola University New Orleans College of Law and was admitted to the Texas Bar in 1974.
Charles Lee Caperton, 81, of Dallas, died February 16, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1964.
Alfred J. Coco, 84, of Denver, Colorado, died January 21, 2018. He received his law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1960.
Lauren Cook, 38, of Kaufman, died March 11, 2019. She received her law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 2007.
Scott S. Cramer, 66, of Fort Collins, Colorado, died December 6, 2018. He received his law degree from the University of Houston Law Center and was admitted to the Texas Bar in 1980.
James A. Cribbs, 86, of Pantego, died March 15, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1955.
James E. Cummins, 90, of Corsicana, died February 24, 2019. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1981.
James R. Dallas, 75, of Albuquerque, New Mexico, died January 28, 2019. He received his law degree from Texas Tech University School of Law and was admitted to the Texas Bar in 1972.
Houston Lee Daniel, 73, of Liberty, died March 6, 2019. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1972.
John J. Davis, 73, of Angleton, died June 16, 2018. He received his law degree from the University of Houston Law Center and was admitted to the Texas Bar in 1973.
John Jay Douglass, 96, of Houston, died January 24, 2019. He received his law degree from the University of Virginia School of Law and was admitted to the Texas Bar in 1975.
David L. Elmers, 68, of Belden, Mississippi, died November 16, 2018. He received his law degree from the University of Mississippi School of Law and was admitted to the Texas Bar in 1977.
Bryant W. Ferrell, 97, of Garland, died March 21, 2019. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1949.
Michael John Foley, 77, of Key West, Florida, died January 31, 2019. He received his law degree from South Texas College of Law and was admitted to the Texas Bar in 1976.
Marlin L. Gilbert, 80, of Georgetown, died May 14, 2018. He received his law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1967.
Edmund Gomez, 68, of Dallas, died March 3, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1977.
David F. Gossom, 61, of Wichita Falls, died February 28, 2019. He received his law degree from Texas Tech University School of Law and was admitted to the Texas Bar in 1982.
Ralph Hall, 95, of Rockwall, died March 5, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1951.
James F. Hart, 86, of Clovis, New Mexico, died February 7, 2019. He received his law degree from the University of Arkansas School of Law and was admitted to the Texas Bar in 1962.
Joel Held, 79, of Edmond, Oklahoma, died March 17, 2019. He received his law degree from Boston University School of Law and was admitted to the Texas Bar in 1974.
Ben E. Jarvis, 93, of Tyler, died September 19, 2018. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1951.
Vincent R. Krist, 70, of Irving, died February 20, 2019. He received his law degree from Texas Tech University School of Law and was admitted to the Texas Bar in 1973.
J.D. Lambright, 69, of Conroe, died March 9, 2019. He received his law degree from South Texas College of Law and was admitted to the Texas Bar in 1999.
Victor Eugene Lanfear Jr., 89, of San Antonio, died January 21, 2019. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1952.
Israel Lerner, 92, of Houston, died February 28, 2019. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1951.
Fredia J. Lewis, 78, of Houston, died December 27, 2017. She received her law degree from the University of Houston Law Center and was admitted to the Texas Bar in 1978.
Ruth Diane Lown, 62, of San Antonio, died August 17, 2018. She received her law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1981.
John L. McConn Jr., 95, of Houston, died January 6, 2019. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1949.
William C. McDonald Jr., 90, of Fort Stockton, died March 14, 2019. He received his law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1956.
James Nowlin, 63, of San Antonio, died March 22, 2019. He received his law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1980.
John W. Payne, 90, of Ennis, died March 16, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1961.
Warren Young Pennington, 91, of LaGrange, died June 22, 2018. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1953.
William Charles Powers Jr., 72, of Austin, died March 10, 2019. He received his law degree from Harvard Law School and was admitted to the Texas Bar in 1980.
Harry Ton Price, 77, of Napa, California, died February 12, 2019. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1968.
Leslie Rasner, 95, of Waco, died November 22, 2017. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1950.
Patrick J. Sheehy, 69, of Washington, D.C., died January 8, 2019. He received his law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1974.
H.C. Sibley Jr., 76, of Dallas, died March 25, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1967.
Charles A. Thompson, 84, of Dallas, died March 13, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1966.
Oscar Turner III, 81, of Katy, died January 15, 2019. He received his law degree from South Texas College of Law and was admitted to the Texas Bar in 1964.
Donald Ray Uher, 81, of Bay City, died March 9, 2019. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1962.
William D. Vaughn, 68, of Austin, died October 5, 2018. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1975.
Samuel N. Vilches Jr., 87, of Dallas, died February 22, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1964.
James Vincent, 80, of Reddick, Florida, died March 3, 2019. He received his law degree from Drake University Law School and was admitted to the Texas Bar in 1993.
Rhonald Walker, 80, of Garland, died February 20, 2019. She received her law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1968.
Patrick David West, 58, of Fort Worth, died February 26, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1987.
John Doty Williamson, 84, of Dallas, died March 1, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1957.
John Houston Withers, 83, of Dallas, died March 18, 2019. He received his law degree from Southern Methodist University and was admitted to the Texas Bar in 1964.

If you would like to have a memorial for a loved one published in the Texas Bar Journal, please go to texasbar.com/memorials. If you have any questions, please don’t hesitate to contact the Texas Bar Journal at (512) 427-1701 or toll-free at (800) 204-2222, ext. 1701.

Celebrating 50 Years of Texas Pattern Jury Charges

Mon, 04/01/2019 - 14:00

Once again, after many months of hard work by attorney-authors and in-house staff, TexasBarBooks has successfully updated the civil series of the Texas Pattern Jury Charges. For 50 years, the Texas Pattern Jury Charges have been valued tools for both the bench and the bar for drafting questions, instructions, and definitions in a broad variety of cases.

To reach the point of publication, volunteer committees meet regularly to discuss legislative and caselaw changes that affect the volumes and new topics that should be covered in them. TexasBarBooks staff publications attorneys and editors then review and fine-tune the material provided by these committees, after which the printed books go into production and the digital downloads are created.

The State Bar of Texas Book Fund was established in 1960, and the first book designed to assist lawyers in their practice that appears to have had substantial staff support was Texas Pattern Jury Charges, Volume 1, published in 1969. “This year we celebrate 50 years of the esteemed Texas Pattern Jury Charges,” said TexasBarBooks Assistant Director Jill Hoefling. “We are proud to present the 2018 civil editions and wish to thank the members of our PJC committees, who work tirelessly to ensure that every word in new and existing jury charges correctly reflect current law, and our dedicated staff for its hard work and diligence in getting these volumes into the hands of Texas lawyers.”

Texas Bar Journal Must-Reads for April

Mon, 04/01/2019 - 10:14

Spring is here and the April issue of the Texas Bar Journal is in bloom. If you’re looking for a head start before your copy arrives in the mail, we have you covered. Check out our editorial staff’s top picks for a deep dive on transportation issues, Q&As with State Bar and TYLA president-elect candidates, and an attorney’s legal career after going inactive with the bar. And don’t forget to read Movers and Shakers, Memorials, and Disciplinary Actions.

On the Road
Driverless cars are disrupting norms and legal standards.
By Laura J. Grabouski

SBOT President-elect Candidates Q&A
2019-2020 president-elect candidates Jeanne Cezanne “Cezy” Collins and Larry P. McDougal Sr. sound off on the issues facing the bar.

TYLA President-elect Candidates Q&A
What issues do young lawyers in Texas face? TYLA president-elect candidates Britney Harrison and Tim Newman give their perspectives.

ATJ Pro Bono Champion
Austin-based Lynda Frost talks “debtor’s prison programs” and volunteer legal work after retiring from the Hogg Foundation.
Interview by Eric Quitugua

TBLS accepting certification applications for 2019

Fri, 03/29/2019 - 10:36

The Texas Board of Legal Specialization is accepting certification applications for 2019. You can find the specific requirements for each of the 24 specialty areas at the “Apply” section of tbls.org.

Certification applications are only available until April 30, 2019 and the exam is October 14, 2019 in Austin.  If you have questions about the TBLS Board Certification program, please contact TBLS at 1-855-277-TBLS (8257) or send an e-mail to tbls@tbls.org.

DVAP will host free legal clinics for Dallas County residents in April

Thu, 03/28/2019 - 10:19

 

The Dallas Volunteer Attorney Program, an initiative of the Dallas Bar Association and Legal Aid of NorthWest Texas, is hosting 11 free legal clinics for county residents who meet financial guidelines. The clinics, which will be held throughout April, will offer legal advice and consultation in civil matters.

Applicants are asked to bring proof of income, identification, and legal papers. For more information, go to dallasvolunteerattorneyprogram.org. For media inquiries, contact DVAP Director Michelle Alden at (214) 243-2234.

Clinics begin at 5 p.m., with the exception of the veteran’s clinic, which begins at 1:30 p.m.

Schedules and locations:

East Dallas (Grace United Methodist Church—4105 Junius St., Dallas 75246)

  • Thursdays—April 4 and April 18

South Dallas (Martin Luther King, Jr. Center—2922 MLK Blvd., Dallas 75215)

  • Tuesdays—April 2, April 9, and April 23

West Dallas (2828 Fish Trap Rd., Dallas 75212)

  • Thursdays—April 11 and April 25

Garland (Salvation Army—451 W. Avenue D, Garland 75040)

  • Thursday—April 18

Friendship West Baptist Church (2020 West Wheatland Rd., Dallas 75232)

  • Wednesday—April 17

St. Phillip’s Community Center (1600 Pennsylvania Ave., Dallas 75215)

  • Tuesday—April 16

Veterans Resource Center (for veterans and their families only—4900 S. Lancaster Rd., Dallas 75216)—1:30 p.m.

  • Friday—April 5

 

To view a list of other free veteran legal clinics around the state, please go to the State Bar’s Texas Lawyers for Texas Veterans website at texasbar.com/veterans.

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