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Updated: 50 min 37 sec ago

Scams Continue to Target Texas Attorneys

Wed, 03/13/2019 - 13:35

Update 3/13/19: We received a report of another scam. A Texas attorney received an email inquiry for a new case through the attorney’s firm website. The scammer requested to retain the firm for help in getting repayment for a loan. A copy of the supposed loan agreement was sent to the firm. The address used for the loan borrower is local to the firm’s location. The address the scammer listed as their own is located in Hong Kong. The scammer used the name Mr. Zhang Chang. A similar scam by someone with that name was previously reported by two Ontario law firms.

Update 1/30/2018: We received a report of another scam. A Texas attorney recently received an email that is part of an ongoing scam directed to attorneys in which the scammer is attempting to get the attorney to wire real funds after receiving fraudulent payments (bad checks or fake credit cards). The text of the email is as follows:

Hello,

I am in need of your legal assistance regarding a breach of loan agreement I provided a friend of mine in the amount of $750,000. He needed this loan to complete an ongoing project he was handling last year. He now resides in your jurisdiction and the loan was for 24 months with interest accrued at the rate of 7.5%. The capital and interest were supposed to be paid May last year but he has only paid $50,000 which was in October.

Please let me know if this falls within the scope of your practice, so that I can provide you with the loan documents and any further information you need to know.

Thanks,

Scott Steinberg.

Update 1/25/2018: We received a report of another scam. A Texas law firm received an inquiry through their website asking if they could draw up a contract for the sale of used construction heavy equipment. The firm responded asking for more details, and the “seller” in Florida sent a detailed appraisal and photograph of the equipment, complete with serial number and a signed letter of intent from a buyer in Texas. The “seller”, “buyer,” and “broker” information all checked out online in Florida, and the “buyer” information also checked out on the Texas Secretary of State website. All were legitimate businesses involved in that type of transaction.

The “seller” signed the engagement letter and sent a paper check from New York that looked legitimate and appeared to be issued by the “buyer.” The firm deposited the check into their trust account. Later that week, the “seller” asked them to wire part of the funds for an inspection of the equipment. Because the check hadn’t cleared the firm’s bank and the wire was to a location in Asia, the firm didn’t send the money, and they inspected further.

The firm called the “seller” who answered using the name of the legitimate Florida businessman. He provided a number during that call that went to a recorded voicemail matching the “broker” details. They called a phone number from the broker’s website, and the real broker answered and said they were the second firm that week to call him (the other was from Delaware), that a scammer had ripped off his letterhead and information, and that he was not involved in any transaction like they described. The firm also contacted the “buyer” using an independent number they found, and the local person who answered said that he ran a legitimate business but was not buying any equipment and knew nothing of the transaction.

The firm contacted their bank, and the bank president contacted the issuing check bank. The issuing check bank was a real bank, but the check and account number with that bank were phony.

Update 11/15/2017: We have received a report of another scam. A person in Australia was contacted by a scammer using a Texas attorney’s information. The person who was contacted was scammed previously and lost money, and he believes it is the same scammers who are contacting him again. In the emails, the scammers say they can recover the person’s money for him from a company, Norton Pearce Associates, that has filed for Chapter 7 bankruptcy.

Update 9/13/17: We have received a report of another scam. A person in New York received a phone call from someone claiming to be her grandson, who lives in Texas. She was told that he was in jail and needed bail money. They told her to call (877) 386-6064 for the Bradford Law Firm and ask for attorney Allen Roberts. The phone number has been disconnected, and the Texas attorney Allen Roberts is deceased.

Update 7/13/17: We received a report from an attorney who was contacted through their firm Facebook page and by e-mail by someone who claims that the attorney represents them in a lawsuit in Kenya. The person is not a client of the firm, and they have no record of any previous communication with the person.

Update 6/26/17: We received a report of another scam targeting Texas attorneys. An attorney received a scam email seeking representation to draft a purchase and sales agreement for a boat sale. The scammer sent the email using another attorney’s name in the email address. View the scam email attachment.

Update 5/26/17: We received a report of another scam targeting Texas attorneys.

A lawyer received a call from someone purporting to be from the State Bar of Texas. The caller, who identified the date the lawyer was admitted to practice law in Texas, offered the attorney a half-year free membership and listed associated benefits. After the attorney refused and ended the conversation, the caller attempted to contact another lawyer in his office but was stopped by the receptionist.

The State Bar of Texas Membership Department does not call attorneys with special offers for membership dues.

Update 5/4/17: We received reports of two more scams targeting Texas attorneys.

A law firm received emails from a person asking to hire the firm to collect payment for goods provided to a third party. The firm also received an email from the third party. Both emails were fake. The firm also received a check as a retainer, and upon verification with the Canadian bank listed on the check, confirmed it was fake. View the scam emails and fraudulent check.

Another law firm received several scam emails within a few days of each other from different senders from locations in Europe, the Netherlands, Africa, and the United States. The emails were requests for various legal services including help with a real estate loan default, seeking assistance with an investment, and drafting a purchase and sales agreement for a drilling rig. The firm also received a fake out of office reply email from a sender they did not contact.

Update 4/17/17: We received a report of another scam in which a law firm’s accounting department received an email purporting to be from the president of the firm, instructing them to pay a statement for $19,500 for professional service. When accounting requested more information, the president responded that the email was not from him. The address it appeared to come from was exeuva@comcast.net.

Update 4/11/2017: We received reports of two more scams targeting Texas attorneys.

An attorney received a phishing email. He tried to open an email which appeared to be from a referring attorney sending documents via DocuSign. Over 20 people on his contact list also received the email. The hackers sent out thousands of fake emails to his contacts which appeared to be coming from him. The hackers also responded to inquiries from his contacts questioning if the phishing email was legitimate.

Another attorney received a fraudulent check. He received a $400,000 check that cleared his bank and was told it was part of a $1,000,000 deal. He also received a second payment. He received instructions to deduct his fee and wire the remaining funds to Kenya. He called his bank to verify the check. The check had a name and address on it that appeared to belong to an oil company but was that of a U.S. insurance company.

Update 3/9/2017: We have received a report of a phishing scam targeting Texas attorneys. The scammer stated they were seeking legal counsel. View a copy of the scam email.

Update: 2/23/17: We have received reports of another scam email targeting Texas attorneys. Some attorneys have received emails that appear to be coming from another attorney. It appears that the scammer was able to access attorneys’ email address books for the purpose of forwarding the e-mail from one attorney to another giving the appearance that it is a referral. It is apparently a scam enlisting attorneys to prepare legal documents upon receiving a cashier’s check deposited in trust accounts with an overpayment of legal fees being returned to the scammer from the attorney’s trust account. The initial payment is fraudulent.

Law firms in Canada and the UK have received similar e-mails.

The scam emails are coming from the following accounts with the name Tijmen Smit: systemspecified@yahoo.com and jamescrosbyhalifax@yahoo.co.uk.

Update: 9/23/16: A San Antonio lawyer has notified the State Bar of Texas that he received a fraudulent check as part of an attempted scam. View the fraudulent check and scam letter.

Update 2/26/16: We received a report about another fraudulent check scam targeting attorneys.

Update 2/3/16: We received a report of a new scam targeting clients of attorneys. Scammers are “spoofing” phone numbers of attorneys and calling clients to get money. Read the full story.

Update 10/23/15: The State Bar of Texas has been alerted to a potential email scam involving a debt collection. On October 20, a Fort Sam Houston attorney received an email from a sender who claimed that she had lent a sum of money to a borrower, and that the borrower had not yet repaid the loan in full and had since moved to Texas. The sender claimed she was seeking legal assistance in the matter and requested information about the attorney’s fees. The message also included a copy of two checks (here and here) and an alleged loan agreement promissory note.

Update 10/8/15: We received a recent report of a scam targeting attorneys. An attorney was contacted by a company and received a bogus check. Read the details on this fraudulent check scam.

Update 2/26/15. We have received a report of a scam from an attorney who received a request for assistance. She spoke on the phone to the proposed client, who asked that a buyer send the firm a 15 percent deposit from a purchase price to use as a retainer, that the firm bill their fees against it, and return the remainder to the client. Upon further searching, the attorney uncovered a scam.

Update 6/4/14. We received a report this week about a sophisticated scam involving collection with a fraudulent certified check that has affected at least three Texas attorneys. Read the details here. 

10/18/13. We received a report today that the name of a San Antonio law firm is being used in a debt collection scam, where scammers apparently obtained files from a payday loan company. The scammers are calling people all over the country, saying they are with the law firm, and threatening the people with arrest if they do not immediately pay their debts. Law enforcement and the Secret Service in San Antonio are investigating the matter.

9/17/13

Texas attorneys should be extra-vigilant regarding potential scams involving fraudulent checks or wire transfers. These scams are increasing in sophistication, sometimes involving innocent third parties who seek legal services at the request of a scam artist.

The bottom line is this: Never issue a check from a trust account until deposited funds have been collected.

Scam scenarios include:

  • a request for help in collecting a divorce settlement from an ex-spouse
  • unsolicited email requests for legal help collecting money or judgments, sometimes apparently coming from actual professionals whose identities have been stolen
  • a real estate transaction for an overseas client (whose identity was stolen by a scam artist) involving an innocent third-party realtor
  • impersonation of law firms by scam artists who issue bogus checks and attempt to charge a fee for the checks to clear
  • a bogus check received by a law firm, purportedly for payment regarding representation of an inmate
  • impersonation of a lawyer and law firm by a scammer “collecting debts” under the attorney’s name

Again, be vigilant and do not disburse funds from your accounts until underlying funds have cleared your bank (and not simply been made “available”).

Cases involving bank fraud are investigated by the Secret Service. If you are targeted, contact an office in your area. Internet fraud should be reported to the Internet Crime Complaint Center.

If a scam has targeted you or your firm, please leave a comment below describing the scenario or tactics the scammer used.

Detective: Scammers using threats of legal action to prey on vulnerable individuals

Wed, 03/13/2019 - 09:16

A Texas police detective is issuing a warning that scammers are attempting to use the legal profession as a tool to bilk money from people who may be unfamiliar with the justice system.

George Schilter, a detective in the criminal investigations division of the Webster Police Department and a licensed Texas lawyer, wrote to the State Bar of Texas with concerns over recent scamming practices.

Schilter wants the help of anyone who may work with immigrants, undocumented individuals, the elderly, or people who are struggling to learn English in order to help educate them about scammers who prey on these groups because of their lack of knowledge about the U.S. justice system.

Schilter recounted details of a Houston-area fraud investigation reported in January. A Spanish-speaking woman reported that in mid-2018 she received a phone call from someone claiming she had won an electronic tablet. She gave the person her information and a few weeks later received the tablet. She began using the device, and months later received a call from a Spanish-speaking woman advising her that she needed to be in court in Washington D.C. because, the woman alleged, there were software products on the tablet that the victim did not pay for.

The woman told the victim that she needed a lawyer to help her clear up the matter and gave her a reference of a lawyer to use. The woman contacted the person claiming to be the lawyer who continued the scam story with claims of fees, fines, and community service that the woman would need to pay and complete. In all, the scammers obtained more than $20,000 from the victim. Detectives learned some of the money came from loans or was borrowed from relatives and friends.

Schilter asks that anyone who has access to or works with individuals or groups who may be vulnerable to similar scams to help spread the word. He offers the following tips to pass along to vulnerable communities:

  • If a deal sounds too good to be true, it usually is.
  • Many scams involve the use of gift cards purchased at stores and loaded with money. Beware of any request to pay for goods or services in this manner.
  • Always report suspected criminal activity to law enforcement. It’s easier to vet a possible scam than it is to seek justice after the fact. Recovering money in scams (most of which originate outside the country) is nearly impossible.
  • Scammers are depending on their victims to be afraid of law enforcement or ashamed as a way to continue their criminal activity.

State Bar offers update on online dues payment process

Wed, 03/13/2019 - 06:00

Editor’s Note: The following notice was originally published in the March 2019 issue of the Texas Bar Journal.

To All State Bar of Texas Members:

Your annual State Bar of Texas membership dues are due on June 1 of each year. If you are an emeritus member of the State Bar, only section dues, if applicable, are due on June 1. In our continuing efforts to become more efficient and reduce costs, all membership dues and fees for fiscal year 2019-2020 will be paid online through the State Bar website (texasbar.com).

Most members of the State Bar already pay their dues and fees online using the State Bar’s website. Changing to a 100 percent online payment system will save the State Bar of Texas approximately $100,000 annually in printing and postage costs. By taking the dues/fees collection process to a 100 percent online system, the State Bar will have in place a payment process that is consistent across the board and applies to all State Bar members equally.

Members will receive their annual electronic membership dues reminder notice by email between April 15 and May 1, 2019, with a direct link to the State Bar’s secure online payment process. Members also will be sent a dues reminder notice by regular mail on or before May 1, 2019. Payments for dues and fees may be paid securely by credit card or by electronic funds transfer (EFT). There is no fee to pay by EFT. However, as in prior years, payment using a credit card will require a $5 processing fee. This $5 fee is charged to offset the amount the State Bar of Texas is required to pay to its credit card processor. Checks will no longer be accepted. Checks received without first obtaining authorization based on disability or undue hardship will be returned to sender.

Law firms using the firm billing process will have a new, secure online portal for firm coordinators this year. The online portal will allow the firm coordinators to create/change their rosters, choose which fees will be paid by the firm, and add/change section memberships or Access to Justice contributions. Payments for firm billing may be made by credit card or electronic funds transfer (EFT). There is no fee to pay by EFT. As in prior years, payment using a credit card will require a $5 processing fee for each attorney whose dues/fees are paid through the firm billing portal. This $5 is charged to offset the amount the State Bar of Texas is required to pay its credit card processor. If the firm did not participate in firm billing last year, please contact the Membership Department, and we will provide login information for the firm billing portal. Checks will no longer be accepted for firm billing payments. Checks received for firm billing payments without first obtaining authorization based on disability or undue hardship will be returned to sender.

All payment data supplied to the State Bar of Texas website is transferred using industry-standard encryption methods. Encryption is one of the most important means of providing data security for information in transit across computer networks. The State Bar does not retain member payment card data or bank information on its network servers. This information is only used to submit member payment transactions to the trusted payment network for payment card or electronic funds transfer processing.

The State Bar is required, by law, to keep an email address on file for all Texas attorneys. To update your preferred email address, log on to your My Bar Page at texasbar.com and select “Edit Contact Info” prior to April 1, 2019. If you have an email address on file and have not received any emails from the State Bar recently, please contact the Membership Department.

If you have questions or need additional information, please contact the Membership Department at (800) 204-2222, ext. 1383; (512) 427-1383; or by email at onlinefees@texasbar.com.

K&L Gates hosts Women’s Day events in Texas offices

Fri, 03/08/2019 - 10:00

Members of the K&L Gates Dallas office take part in International Women’s Day activities.

K&L Gates’ offices in Austin, Dallas, Fort Worth, and Houston are among the firm’s locations around the globe celebrating International Women’s Day on March 8.

Receptions at Texas offices aim to bring men and women together to celebrate the theme of #BalanceforBetter, focusing on building a gender-balanced world.

As part of the celebration, offices will host activities, such as discussion panels comprised of women from the legal and business community, documentary viewings, and self-defense classes.

TBLS inducts attorneys and paralegals

Thu, 03/07/2019 - 14:00

 

Two hundred and sixty-six attorneys and 35 paralegals were certified by the Texas Board of Legal Specialization, or TBLS, during its annual induction ceremony at the AT&T Executive Education and Conference Center in Austin on March 1.

The freshly certified attorneys and paralegals represented myriad areas, including family law, criminal law, and oil and gas law. The ceremony also saw the first group of certifications for child welfare law and property owners association law. The new inductee class is an increase from 2018’s 194 attorneys and 30 paralegals.

Texas Supreme Court Justice Jeff Brown delivered the keynote address, drawing comparisons between the Texas Lawyer’s Creed and the 12 points of Boy Scout law. He gave the newly certified attorneys some general advice: be friendly to more than your friends, treat everyone from legal secretaries to people in the mailroom to baristas with respect, work on making yourself happy, and respect the beliefs of others. “Justice, justice shall now pursue,” Brown said. “Congrats to you and welcome to the rank of the board certified.”

TBLS Executive Director Leo Figueroa recognized the work of TBLS staff, including Assistant Executive Director Odessa Bradshaw; Denise Schumann, website coordinator; Priscilla Leal, lead certification analyst; Brenda Martinez, certification analyst; and Molly Galvez, certification analyst. He then presented the Tom Garner Award to former TBLS Chair David Dickson in recognition of his contributions to the certification program. Dickson is a former State Bar of Texas director and was chairman of the bar’s Professionalism Committee.

TBLS Chair William Frank Carroll—who is certified in civil appellate law and civil trial law—recognized leadership of the State Bar of Texas Paralegal Division, including, Brenda Colvin and Board Advisor Stephanie Sterling, and Supreme Court Justice Jeff Brown and recently retired Justice Phil Johnson. Carroll then presented the John F. Sheehy, Jr. Distinguished Attorney Award to Johnson.

For more information about the Texas Board of Legal Specialization, go to tbls.org.

Scenes from around the state: Rockwall

Thu, 03/07/2019 - 12:00

Judge David Rakow of the 439th District Court in Rockwall County with criminal defense attorney Leigh DeMasi and her 5-year-old granddaughter Savannah Leigh Easley, who was invited to take the bench. According to DeMasi, Judge Rakow ordered her to buy Easley as much ice cream as she wanted, which prompted another attorney to say, “Finally, a reasonable judge on the bench.”
Submitted by Leigh DeMasi

Houston Bar Association names new executive director

Wed, 03/06/2019 - 14:00

The Houston Bar Association named Mindy G. Davidson as its new executive director. She succeeds longtime executive director Kay Sim, who retired March 1.

“I am inspired by the commitment of the HBA staff to serving the needs of the Houston-area lawyers and our community,” Davidson said in a news release. “It is an honor and I look forward to working with the board of directors and the HBA staff to build on this strong foundation as we approach the HBA’s 150th anniversary.”

Mindy G. Davidson

Davidson has spent the past three decades advising clients on the design, implementation, and administration of broad-based and executive compensation and benefits strategies. She most recently served as senior director of Alvarez & Marsal. Davidson has also served as lead counsel for compensation and benefits to LyondellBasell.

“We are excited to have Mindy join us as executive director, building on Kay Sim’s enormous contributions to HBA,” said HBA President Warren Harris in a news release. “Mindy’s legal background will be a great asset as she leads us in this time of change. I look forward to the new energy and insight she will bring to the HBA.”

Davidson is certified with distinction in nonprofit leadership and nonprofit finance by the Rice University Center for Philanthropic & Nonprofit Leadership and holds a senior certified professional certificate from the Society for Human Resource Management. Davidson is a Houston Bar Foundation Life Fellow and a Texas Bar Foundation Fellow. She also serves on the Houston Area Women’s Center Board of Directors and is a leader in the Center for Women in Law.

For more information about the HBA, go to hba.org.

In Memoriam

Wed, 03/06/2019 - 10:00

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

Ken Andrews, 80, of Fort Worth, died February 9, 2019. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1964.
Charles D. Baxter, 89, of Topeka, Kansas, died January 6, 2019. He received his law degree from Washburn University School of Law and was admitted to the Texas Bar in 1955.
Robert Lee Busselman, 84, of Karnes City, died November 24, 2018. He received his law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1970.
W. Stephen Cockerham, 56, of Ovilla, died December 7, 2018. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1986.
Frank William Colburn, 89, of Houston, died December 15, 2018. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1956.
Liam S. Coonan, 83, of San Antonio, died September 8, 2018. He received his law degree from NYU School of Law and was admitted to the Texas Bar in 1993.
Tina Denise Davis-Rincones, 47, of Anton, died January 24, 2019. She received her law degree from Texas Tech University School of Law and was admitted to the Texas Bar in 2001.
Joe Micah Enis, 52, of Conroe, died January 8, 2019. He received his law degree from Baylor Law School and was admitted to the Texas Bar in 1992.
Sheila Frederick, 45, of Montgomery, died November 25, 2018. She received her law degree from the University of Houston Law Center and was admitted to the Texas Bar in 2000.
Mike D. Gibbs, 71, of Dallas, died September 27, 2018. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1971.
Patrick Huzinec, 53, of Corpus Christi, died October 26, 2018. He received his law degree from Samford University Cumberland School of Law and was admitted to the Texas Bar in 1990.
Darrell Eddy Jordan, 80, of Dallas, died January 30, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1964.
J. David Kirkland Jr., 60, of Houston, died September 12, 2018. He received his law degree from Yale Law School and was admitted to the Texas Bar in 1983.
John A. MacDonald, 69, of Seattle, Washington, died January 13, 2019. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1975.
Chilton Maverick, 78, of San Antonio, died September 1, 2018. He received his law degree from St. Mary’s University School of Law and was admitted to the Texas Bar in 1969.
Charles J. McGuire III, 77, of Dallas, died February 2, 2019. He received his law degree from Southern Methodist University School of Law and was admitted to the Texas Bar in 1967.
Hurshal F. Moore, 84, of Fort Worth, died February 7, 2019. He received his law degree from the University of Texas School of Law and was admitted to the Texas Bar in 1959.
Steven Owens, 37, of Fate, died February 2, 2019. He received his law degree from Samford University Cumberland School of Law and was admitted to the Texas Bar in 2008.
Paul William Phy, 84, of Dallas, 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 1961.
Derral K. Sperry, 88, of Houston, died December 12, 2018. He received his law degree from the University of Houston Law Center and was admitted to the Texas Bar in 1962.
George Troxell IV, 47, of Austin, died January 12, 2019. He received his law degree from Tulane Law School and was admitted to the Texas Bar in 2012.
Michael B. Udell, 67, of Plainfield, Indiana, died December 27, 2018. He received his law degree from South Texas College of Law and was admitted to the Texas Bar in 1978.

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, or by email at tbj@texasbar.com.

State Bar of Texas Paralegal Division elects Edna W. Garza-Guerra president-elect

Wed, 03/06/2019 - 09:00

Edna W. Garza-Guerra, a litigation paralegal with Walsh McGurk Cordova Nixon in McAllen, will serve as the 2019-2020 State Bar of Texas Paralegal Division president-elect. She joined the division in 2011 and has served as a sub-chair for its CLE committee, helping to generate 53 free CLE hours for District 15, and on its board of directors.

Garza-Guerra, who is certified in civil trial law by the Texas Board of Legal Specialization, brings 28 years of professional experience. Her focus is on civil litigation, real estate, and transactional work. After graduating from the first paralegal program at South Texas Vo-Tech in 1990 Garza-Guerra became a part-time paralegal instructor at her alma mater and began working for a Rio Grande Valley attorney who specialized in wrongful death, products liability, and mass environmental cases.

She is also a Realtor and has experience as a buyer’s representative and a seller’s representative and has worked on the sale of bank foreclosures. Garza-Guerra works as a Realtor part-time on weekends and after paralegal work during the week.

For more information about the State Bar of Texas Paralegal Division, go to txpd.org.

Bishop Lynch High School wins Texas High School Mock Trial Competition

Wed, 03/06/2019 - 08:00

The team from Bishop Lynch High beat more than 25 high school teams to win the final round of the Texas High School Mock Trial Competition on Saturday, March 2, at the George Allen Sr. Courthouse in Dallas.

The teams argued a hypothetical criminal court case that was written by local attorneys from the Dallas Bar Association. Judges and attorneys served as jurors and also selected the teams who best prepared and demonstrated exceptional presentation skills. Students served as prosecution, defense attorneys, and witnesses.

One Day Academy, of Austin, took home second place while Regents School, of Austin, and Lubbock High School were semi-finalists.

Bishop Lynch will represent Texas at the 2019 National High School Mock Trial Competition in Athens, Georgia, May 16-19. The national competition is designed to promote an understanding and appreciation of the American judicial system through competition.

The Texas program, which the Dallas Bar Association has sponsored and coordinated since its inception in the 1970s, has drawn more than 120,000 participants in its 40 years and awarded nearly $300,000 in scholarships.

For more information, go to texashighschoolmocktrial.com or dallasbar.org.

Above: The Bishop Lynch High School team won the Texas High School Mock Trial Competition in Dallas on March 2 and will represent the state at the National High School Mock Trial Competition in Athens, Georgia, May 16-19. Photo by the Dallas Bar Association.

Texas Bar Foundation announces 2019 Terry Lee Grantham Memorial Award recipient

Tue, 03/05/2019 - 11:00

The Texas Bar Foundation named Dallas attorney Talmage Boston as its 2019 Terry Lee Grantham Memorial Award recipient.

Talmage Boston

Boston will be honored and presented with the award on June 14 at the Texas Bar Foundation Annual Dinner at the JW Marriott in Austin. Texas Tech University School of Law—Grantham’s alma mater—will receive $5,000 for student scholarships in the study of energy law.

Award winners exemplify “the qualities of an accomplished, talented and dedicated practitioner, a servant of the profession and an advocate for those we serve, demonstrating dedication and service with the same passion” that defined Grantham’s life and work.

Boston, who is a partner in Shackelford, Bowen, McKinley & Norton, is certified in civil trial law and civil appellate law by the Texas Board of Legal Specialization. He has served as past chair of the State Bar of Texas Litigation Section, Council of Chairs, and Annual Meeting Committee, and he has served on the State Bar Board of Directors and the Texas Bar Journal Board of Editors. He has received eight Presidential Citations for outstanding service.

A graduate of the University of Texas and the University of Texas School of Law, Boston has published four books.

For more information about the Texas Bar Foundation, go to txbf.org.

Free legal clinic for veterans in Galveston

Mon, 03/04/2019 - 09:00

The Galveston County Bar Association and the Houston Bar Foundation’s Veterans Legal Initiative are sponsoring a free legal clinic for veterans on Saturday, May 5, from 9 a.m. to noon.

Veterans and spouses of deceased attorneys can receive one-on-one advice and counsel from volunteer attorneys in family law, wills and probate, consumer law, real estate and tax law, and disability and veterans benefits.

Pro bono attorneys from the Houston Volunteer Lawyers may be assigned to veterans in need of ongoing legal representation and who qualify for legal aid.

No appointment is necessary.

The clinic will be held at the Galveston VA Outpatient Clinic, 3828 Avenue N., Galveston, 77550.

For more information, go to hba.org or call (713) 759-1133.

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.

Texas Supreme Court addresses attorneys’ tech competence in amended comment to disciplinary rule

Fri, 03/01/2019 - 13:27

A Texas attorney’s duty to maintain competence in the practice of law includes knowing about relevant technology, according to a new Texas Supreme Court order.

The court, in Misc. Docket No. 19-9016, amended Paragraph 8 of the comment to Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct, which deals with competent and diligent legal representation. Under the amended comment, maintaining proficiency and competence in the practice of law includes knowing “the benefits and risks associated with relevant technology.”

The amendment mirrors a change made to the American Bar Association model rule in 2012.

The State Bar of Texas Computer and Technology Section and the bar’s Professional Development/Continuing Legal Education Committee passed resolutions in April 2018 supporting the change. At that time, 31 states had adopted language similar to the ABA model rule related to technological competence, according to the resolutions.

The Computer and Technology Section resolution, signed by then-chair Michael Curran, said that “the practice of law is now inextricably intertwined with technology for the delivery of services, the docketing of legal processes, communications, and the storage and transfer of client information, including sensitive and confidential private information and other protected data.”

“[L]awyers have become increasingly dependent upon mobile applications to perform core legal functions and the electronic creation of and transmission of attorney client work product and storage of all of this information in the cloud and, therefore, they require a fundamental skillset to effectively manage their law practice,” the section resolution states.

The State Bar of Texas Board of Directors voted in June 2018 to submit the resolutions to the Supreme Court for consideration. The court then asked the Committee on Disciplinary Rules and Referenda, or CDRR, to study the matter.

The CDRR voted December 5 to recommend the change, noting that the same language is found in the comment to ABA Model Rule 1.1 and is part of the ethics code in many states.

March must-reads

Fri, 03/01/2019 - 11:30

Need a head start on the Texas Bar Journal before your copy arrives in the mail? We’ve got you covered. Check out our editorial staff’s top picks for a look at discovery related features and the state of the judiciary in Texas. And don’t forget to read Movers and Shakers, Disciplinary Actions, and Memorials.

In Style
The onset of smart clothing and the rise of privacy concerns.
By Peggy Keene

Making a Plan
Select discovery issues that are important to the practitioner.
By Xavier Rodriguez and James Wes Christian

E-Discovery
Direct access of electronic devices after In re Marion Shipman.
By Dustin B. Benham

The State of the Judiciary in Texas
Remarks of Chief Justice Nathan L. Hecht as prepared for delivery to the 86th Legislature.

Best interest of the child under the Individuals With Disabilities Education Act

Fri, 03/01/2019 - 10:00

It is a timeless and eternal verity that we all cherish our children and seek to ensure their overall well-being in every facet of their lives and stage of development. No sacrifice is too great to achieve that paramount aim. In the context of family law and the dissolution of marriage where children are involved, the summum bonum of all such cases is to arrive at a resolution that serves the best interest of the child, as that legal lodestar is defined in Tex. Fam. Code § 153.002: “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”

This legal standard is more poignant and urgent when children with disabilities are seeking educational opportunities under the federally mandated law of the Individuals with Disabilities Education Act, or IDEA (IDEA was formerly the Education for All Handicapped Children Act, or EHA). This article will examine Texas court opinions related to the overarching themes of this broad, expansive, comprehensive, and “subjectively inclined to interpretation” law. The central themes upon which Texas courts have opined range from what constitutes a Free Appropriate Public Education, or FAPE; interpretations of a Least Restrictive Environment, or LRE, (20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114); due process rights of parents of children with disabilities; judicial deference to school boards and educators when crafting Individualized Educational Plans or Programs, or IEPs, for students who have been assessed as having learning disabilities; and placement issues. Any detailed explanation into other IDEA-related themes is beyond the scope of this article.

History
On a national level, prior to 1975, courts rarely mentioned children with disabilities and their right to public education. Pre-1975, educators would make unilateral decisions often without any input or consultation with the parents of children suspected of having learning and other disabilities in determining the manner in which children with disabilities would best be served educationally.

In 1975, Congress passed IDEA (20 U.S.C. §§ 1400-1482). Influenced by the language of the landmark decision of Brown v. Board of Education, (347 U.S. 483, 74 S. Ct. 686 (1954)) the momentous words of the Supreme Court would serve as the backdrop to the passage of IDEA: “[E]ducation is perhaps the most important function of state and local governments,” (Id. at 493). The unanimous Supreme Court further stated that: “In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms,” (Id.). Notably, this language has been cited in innumerable cases nationwide, including cases involving students with disabilities demanding equal educational opportunities. After enactment and passage of IDEA, every state had to abide by IDEA’s mandate to evaluate, test, and place any suspected students with disabilities in educational settings that provided a FAPE in an LRE. Moreover, post determination that a student had learning disabilities, an IEP had to be established by the school board and the child’s educators, in collaboration with the child’s parents and other professionals to serve the best interest of the student based on his or her specific educational needs.

Under IDEA, “[T]he schoolchild and his or her parents are entitled to be involved in the process of developing an IEP,” ((20 U.S.C. § 1401(a)(20) (Under 20 U.S.C. § 1415, the statute mandates collaboration between educators and parents/guardians when developing the IEP via numerous, well-defined, procedural safeguards. The IEP must be reviewed at least annually (20 U.S.C. § 1414(a)(5); Teague Indep. Sch. Dist. v. Todd L., 999 F.2d 127, 129 n.3 (5th Cir. 1993)). Additionally, 20 U.S.C. § 1414 mandates that the IEP be created by an “individualized education program team” comprised of parents, educators, and disability professionals.

Congress, in enacting IDEA, was unequivocal in its purport that collaboration between the parents of the child with disabilities and various school officials was an indispensably pivotal and crucial element in crafting an IEP that would best serve his or her specific needs as well as deliver optimal results (20 U.S.C. §§ 1400-1482).

As broad and complex as the law of IDEA may be, nowhere is this collaborative process more compelling or in demand than the crafting of an IEP that specifically addresses the learning needs of a child with disabilities and how to successfully approach those unique learning challenges. The crafting of the IEP must ensure in its substance, content, and application that a FAPE in an LRE has been accomplished. In this regard, the author contends that it is an unforgiving, unwelcome, and harsh reality that Congress’ generalizations of the terms “appropriate” and “least restrictive” lends itself to multiple, subjective, and disparate interpretations that frequently give rise to differing opinions and conflict between the educators and the parents of children with disabilities.

Indisputably, the crafting of the proper IEP for children with disabilities is paramount and potentially outcome determinative in whether the student’s IEP will confer sufficient educational benefit to allow him or her to make academic and educational progress.

For example, in Teague, the 5th Circuit was tasked with opining the sufficiency of an IEP that was challenged as to its merits by the parents of the child in question. The court held that the IEP was sufficiently substantive and the student “received significant benefit from his public school placement.” (In Teague, the 5th Circuit noted: “As a condition of federal funding, IDEA requires states to provide all children with a “free appropriate public education,” 20 U.S.C. § 1412(1), with the statutory term “appropriate” designating education from which the schoolchild obtains some degree of benefit. (See Board of Educ. v. Rowley, 458 U.S. 176, 200, 102 S. Ct. 3034, 3047, 73 L. Ed. 2d 690 (1982). See 20 U.S.C. § 1412(5); Rowley, 458 U.S. at 202, 102 S. Ct. at 3049; Sherri A.D. v. Kirby, 975 F. 2d 193, 206 (5th Cir. 1992)). The 5th Circuit explained the underlying rationale for IDEA, reflecting the best interest of the child as it is also reflected within Brown:

“IDEA was intended to redress a long history of discrimination by public schools against disabled children. Isolation of a schoolchild or reduction of the quality or amount of a child’s educational programming solely for the convenience of staff violates IDEA.” See, e.g., Rowley, 458 U.S. at 179, 189, 102 S. Ct. at 3037, 3042 (Congress’ intent, in passing EHA, was to prohibit schools which receive federal funds from discriminating against disabled children) (Teague, 999 F.2d 127, 129 n.4 (5th Cir. 1993)).

To reiterate, Texas courts, in evaluating IDEA-related cases, have applied the “best interest of the child” legal standard in delivering its opinions. In Christopher M. v. Corpus Christi Indep. Sch. Dist., the court was tasked to opine whether a shortened school day due to the nature of the child’s disability was a violation of the FAPE portion of IDEA. The court in applying the “best interest of the child” legal barometer, stated: The board was not required to provide a full day of educational programming for the student with multiple disabilities whose educational programming consisted of basic sensory stimulation, since it was not in his best interest (933 F.2d 1285 (5th Cir. 1991)).

Further, in discussing the original mandate of EHA the precursor to IDEA, the court reiterated that it was instituted in order:

“[t]o create an educational program tailored to the unique needs of each child. The drafters of EHA were guided by the principle that “each child must receive access to a free public program of education and training appropriate to his learning capabilities.” Rowley imposes an obligation on the states that the IEP must be “reasonably calculated to enable the child to receive educational benefits,” and “In reviewing the appropriateness of an IEP, [the] court has previously considered these very factors: “our analysis is an individualized, fact-specific inquiry that requires us to examine carefully the nature and severity of the child’s handicapping condition, his needs and abilities, and the school’s response to the child’s needs.” (See Rowley, 458 U.S. 176, 189, 102 S. Ct. 3034, 3042, 73 L. Ed. 2d 690 (1982); and Christopher M., 933 F.2d 1285, 1289 n.7 (5th Cir. 1991)).

In sum, despite Congress’ intent to serve the educational needs of children who qualify for special education services, this area of the law, due to its broad mandates, continues to be fertile ground for litigation, which arguably does not serve the best interest of the child due to its emotionally charged, protracted, combustible, and costly process.

Ultimately, it is this author’s opinion that in the context of meeting the educational needs of children with disabilities, it is imperative that parents and educators set aside any animus, pre-conditioned biases they may harbor and work together in a spirit of compromise, compassion, equanimity, and reasonableness with the singular and ennobling aim of serving the best interest of the child.

Kamran Mashayekh is a partner in Mashayekh & Chargois in Houston. He has practiced law for nearly 30 years in Texas in the area of civil litigation. Mashayekh received his law degree from South Texas College of Law and has testified before state legislatures in assisting them in crafting anti-predatory lending laws.

Beware non-compete agreements in Louisiana: ‘Toto, I’ve a feeling we’re not in Texas anymore’

Thu, 02/28/2019 - 10:00

Multi-state non-compete agreements are commonplace. Enforcing these agreements is generally not a problem, as most states use a reasonableness test for determining their enforceability. Texas law requires an evaluation of reasonableness as to time, geographical area, and activity being restrained, not unlike most other states (Tex. Bus. and Com. Code § 15.50). If the reasonableness test is met, these agreements can be enforceable. Not so in Louisiana.

Companies and individuals outside of Louisiana seeking to do business there are often surprised by Louisiana’s non-compete law. Louisiana does not use a reasonableness test to determine the validity of non-compete agreements. To the contrary, contracts that restrain someone’s right to work are presumed to be invalid in Louisiana. Moreover, Louisiana law prevents efforts to avoid the applicability of Louisiana’s strict law in contractually providing for the applicability of another state’s law in a non-compete agreement involving an employer/employee relationship. In short, in seeking to enforce a non-compete agreement in Louisiana, Louisiana law cannot be avoided.

The validity of non-compete agreements in Louisiana is strictly controlled by a single statutory provision—Louisiana Revised Statutes § 23:921—and its judicial interpretation. Louisiana Revised Statutes § 23:921(A)(1) begins with the general prohibition against any agreement whereby “anyone is restrained from exercising a lawful profession, trade, or business,” unless one of the narrow exceptions to the general prohibition contained therein is satisfied. It provides:

“Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.”

Louisiana has long had a strong public policy against non-compete agreements. Because these agreements are in derogation of the common right—the right to work in your chosen field—Louisiana jurisprudence has narrowly construed the exceptions to the general prohibition listed in Louisiana Revised Statutes § 23:921. These exceptions, for the most part, are based upon relationships. The list of exceptions include the employee/employer relationship, the sale of the goodwill of a business, the dissolution of a partnership, the franchisor/franchisee relationship, the employer/computer employee relationship, the corporation/shareholder relationship, the partnership/partner relationship without consideration of any possible dissolution, and the limited liability company/member relationship.

Once it is demonstrated that a particular non-compete agreement falls within one of the listed exceptions, most Louisiana courts require a valid non-compete agreement to contain an area of prohibition described by parishes, municipalities, or parts thereof, together with a term of no longer than two years from date of termination of the relationship. These requirements are derived directly from statutory language.

While not contained within the statute, some Louisiana courts also require a valid non-compete agreement to define narrowly and accurately the business in which the individual is prohibited from competing. Other Louisiana courts deny the need for this additional non-statutory-based requirement. If the business is defined within the agreement, however, the definition must be narrow and accurate.

In further protecting the right of employees to work in their chosen field of employment, Louisiana Revised Statutes § 23:921 prohibits a contract of employment from designating by contractual provision the applicability of another state’s law unless the employee re-confirms such choice of law after the occurrence of the incident which is the subject of the dispute. Thus, once an employee is terminated and begins competing with his or her ex-employer, the applicability of the provision in the non-compete agreement selecting another state’s law is only valid if the employee agrees to it again, once his or her ex-employer complains about the alleged violation of the non-compete agreement.

Louisiana Revised Statutes § 23:921(2) provides:

The provisions of every employment contract or agreement, or provisions thereof, by which any foreign or domestic employer or any other person or entity includes a choice of forum clause or choice of law clause in an employee’s contract of employment or collective bargaining agreement, or attempts to enforce either a choice of forum clause or choice of law clause in any civil or administrative action involving an employee, shall be null and void except where the choice of forum clause or choice of law clause is expressly, knowingly, and voluntarily agreed to and ratified by the employee after the occurrence of the incident which is the subject of the civil or administrative action.

As demonstrated herein, drafting multi-state non-compete agreements that include Louisiana are problematic. An enforceable non-compete agreement in Louisiana requires much more than reasonableness. All requirements of Louisiana Revised Statutes § 23:921 must be met for a valid non-compete agreement in Louisiana. One approach is to exclude Louisiana from your multi-state non-compete agreements, with a separate agreement for Louisiana, compliant with Louisiana law. Doing so will protect your client’s business in today’s competitive marketplace.

Jude C. Bursavich is a partner in the Baton Rouge, Louisiana, office of Breazeale, Sachse & Wilson. He practices in the area of complex business and commercial litigation and has concentrated on business protection issues for over 25 years. Bursavich has extensive experience in drafting and litigating non-compete agreements throughout Louisiana. He represents both individuals and local and national companies in business matters.

Cochran Firm celebrates Black History Month

Wed, 02/27/2019 - 11:00

Larry Taylor Jr., a Texas partner in the Cochran Firm, presents a $500 check to competition winner Jhaniya Rodgers.

The Cochran Firm in Dallas kicked off its inaugural High School Black History Cooking Competition to celebrate Black History Month and the soul food traditions of African Americans. Select culinary programs from Dallas area high schools participated and six finalists crafted meals on February 19 at Cedar Hill High School.

Larry Taylor Jr., a Texas partner in the Cochran Firm, awarded the winner, Jhaniya Rodgers, of Cedar Hill High School, a $500 prize; runner-up, Keyonna Hickman, of Cedar Hill High School, a $250 prize; and third-place finisher Terry McGill, of Lincoln High School, a $250 prize.

“I’m honored to continue the legacy Johnnie L. Cochran has set by supporting and inspiring all youth to fulfill their professional dreams in all fields,” Taylor said in a press release. “It’s no doubt these students have culinary skills and potential star quality.”

Other competitors were Kaelyn Cruz, of Cedar Hill High School; Aerial White, of Lincoln High School; and Jamendra Glenn, of Lincoln High School.

The event was co-hosted by the Cedar Hill High School Culinary program and its instructor, chef Alex Goss.

Entries sought for local bar association awards

Tue, 02/26/2019 - 06:00

The State Bar of Texas Local Bar Services Committee is now accepting local bar association submissions for the annual Stars of Texas Bars Awards and Judge Sam Williams Award.

The Stars of Texas Bars Awards include eight award categories that recognize local bar associations for outstanding community involvement, commitment to increasing access to justice, dedication to the profession, and excellent reporting from May 1, 2018, to April 30, 2019. Each local bar has the opportunity to receive awards based on its division. Divisions are broken down by the size of bar membership.

The Judge Sam Williams Award honors one individual who demonstrates a commitment to fostering and maintaining the relationship between his or her local bar and the State Bar of Texas. The award, established in 1990, is named in honor of Judge Sam Williams, the longtime president of the Northeast Texas Bar Association. Judge Williams, an outstanding leader of the local bar, exemplified the highest ideals of the position and significantly contributed to maintaining the local bar’s relationship with the State Bar of Texas.

For more information about the awards and to view submission criteria, go to texasbar.com/stars.

The deadline to submit entries is 5 p.m. CST April 30. For questions, please email localbars@texasbar.com or call (800) 204-2222, ext. 1514.

Winners will be honored at the State Bar of Texas Annual Meeting on Thursday, June 13, 2019, at the JW Marriott in Austin.

Governor appoints Brett Busby to Texas Supreme Court

Thu, 02/21/2019 - 14:04

Governor Greg Abbott announced Thursday he has appointed former 14th Court of Appeals Justice Brett Busby to the Texas Supreme Court for a term set to expire on December 31, 2020. Busby’s appointment, which is subject to Senate confirmation, follows the retirement of Justice Phil Johnson in December.

Read the governor’s announcement.

Reminder: Comments accepted on proposed advertising rules

Thu, 02/21/2019 - 06:04

The Committee on Disciplinary Rules and Referenda (CDRR) will continue to accept public comments concerning the proposed lawyer advertising rules through March 1, 2019. You can submit comments here.

Interested in law firm trade names? Take the CDRR’s poll.

The CDRR is responsible for overseeing the initial process for proposing a change or addition to the disciplinary rules (Gov’t Code § 81.0873). For more information, go to texasbar.com/CDRR.

To subscribe to email updates, including notices of public hearings and published rules for comment, click here.

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