Annual Meeting 2018

By Adam Faderewski, Patricia Busa McConnico, Eric Quitugua, and Amy Starnes

Stepping Up

THE SCENE Clockwise from top left: President’s Party; Marriott Marquis in Houston; Joe K. Longley; Podcast recording; Professionals networking.

Joe K. Longley urges Texas lawyers to put their minds and hearts together to take the lead in remedying tragedies.

After being sworn in by Texas Supreme Court Justice Eva Guzman, State Bar of Texas President Joe K. Longley touched on current immigration issues and his experience years ago on the day of the University of Texas tower shooting to highlight the need for attorneys to act now. “We obviously are the people who can come up with constitutional solutions,” he said.

On August 1, 1966, Longley, who was working for Gov. John Connally and had been accepted into the University of Texas School of Law, was leaving the Main Building on the UT campus when shots rang out. His then wife, Susan, was targeted but not hit. However, dozens were killed or wounded. Connally tasked Longley with visiting Brackenridge Hospital to get names of the victims so the governor could notify the next of kin. “That was 52 years ago and now, almost bi-monthly, we see the same carnage happening over and over again,” Longley said. He urged attorneys to “put our minds together, put our hearts together, and see if there’s some way we can remedy what I was a personal witness to that day in August 1966.”

Longley then touted many of the recent successes of the bar, including his work with Immediate Past President Tom Vick to implement a 5 percent reduction from the general fund budget. Longley was optimistic about the future of access to justice, pointing to the work of Executive Director Trey Apffel, Vick, Texas Young Lawyers Association President Sally Pretorius, and TYLA Immediate Past President Baili Rhodes as facilitators. But, he said, there’s more work to be done. “We have got to figure a way as lawyers and members of this noble profession to give homage to the words on the Statue of Liberty: ‘Give me your tired, your poor, / Your huddled masses yearning to breathe free . . . ’”

Longley talked about the immigration issues along the Texas-Mexico border and the need for attorneys to help reunite children with their parents. “In Spanish there is a phrase, which is ya basta. It means, generally, ‘Enough’ or ‘enough is enough,’ he said. “As I look to all of the members of the bar who are here today and who’ve honored me with their presence, I close with these words, ‘ya basta.’ ”

History Lesson

Author Douglas Brinkley, a history professor at Rice University and a presidential historian for CNN, talked with Dallas attorney Talmage Boston about the importance of 1968—the year in which two champions of the civil rights movement, Martin Luther King Jr. and Robert F. Kennedy, were both assassinated. “Martin Luther King Jr. was an incredible writer, an amazing orator, and a very good grassroots political organizer,” Brinkley said. “You combine those three, and he’s a very unique individual.” We picture him almost as a giant, he said, because of the conviction with which he carried himself—the key being his Christianity. Kennedy’s own entry into civil rights came after influence by labor leader and activist Cesar Chavez, who had a shared Catholicism with the presidential candidate, Brinkley said. Fifty years after their deaths, Brinkley pondered how the two would view today’s political climate and said they would be troubled by the “backlash period” the country faces today— that King would be sympathetic toward Black Lives Matter and engaged in U.S.- Mexican border issues while Kennedy would stand on the Democratic side of all issues.

U.S. Supreme Court Update
At a panel discussion sponsored by the Appellate and Civil Liberties & Civil Rights sections, Erin G. Busby, of the University of Texas School of Law; Justice Brett Busby, of the 14th Court of Appeals in Houston; and Aaron Streett, of Baker Botts; provided an update of U.S. Supreme Court cases. The panelists discussed Abbott v. Perez, a case concerning the 2013 Texas redistricting plan; Gill v. Whitford, a case involving the constitutionality of partisan gerrymandering; Minnesota Voters Alliance v. Mansky, a case related to political speech in a polling place venue; and Epic Systems Corp. v. Lewis, a case decided about the National Labor Relations Act, or NLRA, and the Federal Arbitration Act, or FAA, and how they relate to whether employment contracts can legally bar employees from collective arbitration.

Thinking Outside the Box
Tom Melsheimer, of Winston & Strawn in Dallas, detailed his “outside the box” experiences on several cases while giving attendees ideas of how to promote creative thinking on a trial team. Among his ideas: Trial by agreement— work with opposing counsel to come to as many trial parameters as possible and only disagree about things that truly matter to your case. If you believe your case is so complicated that you feel you need far more time than opposing counsel has agreed to, that is a case you ought to settle, he said. Also, let young lawyers argue important motions. Judges may allow young lawyers more time or look upon your team favorably by offering young lawyers valuable experience. Plus, the judge may be sick of your face, Melsheimer added to rousing laughter.

Texas Young Lawyers Association

Sally Pretorius was sworn in as 2018-2019 TYLA president during an evening reception that acknowledged the group’s projects, previous officers, new leaders, and outstanding attorneys. To see a list of award winners, go to texasbar.com/annualmeetingawards.

Advertising on Social Media
The Federal Trade Commission, or FTC, is cracking down on how paid advertisements are posted on social media. Danica Mathes, of Bell Nunnally & Martin in Dallas, and Erin Rodgers, of Rodgers Selvera in Houston, said attorneys need to advise their clients to be extremely careful about how they market on social media. New requirements from the FTC include placing hashtags such as #paid, #advertisement, and #sponsor at the top of social media posts to immediately indicate the status to viewers. In addition, clients should be aware of the way their products are portrayed by customers and influencers— accounts with many followers. Businesses should clarify unsubstantiated claims made by customers in posts and should make sure that social media influencers inform their followers that they are being paid for using the business’s product. Mathes and Rodgers also stressed that businesses should use their own content for posts and only use third-party content with explicit permission.

(Photographs above by Lowell Brown, Adam Faderewski, Jim Lincoln, Patrica Busa McConnico, and Eric Quitugua.)

Texas Bar Foundation

Award winners were recognized during the Texas Bar Foundation’s 2018 Annual Dinner on June 22. Front row from left: Dan A. Naranjo, G. Allan Van Fleet, James M. Alsup, Professor Nancy A. Welsh, and David Ray McAtee. Back row from left: Professor Thomas M. Featherston Jr., Allyson N. Ho, Michael M. Guerra, Texas Supreme Court Justice Phil Johnson, Mark A. Shank, and Frank Griffith Jones. To see a list of award winners, go to texasbar.com/annualmeetingawards

Diversity Forum
At a panel analysis of “Diversity and Inclusion Initiatives: What’s Working and What Needs Revising?” experts including Kenya Woodruff, of Haynes and Boone, noted that great strides have been made in recruiting diverse new lawyers but improvements are still needed in the areas of retention and promotion. Panelists said diverse lawyers should not just be on a firm’s recruiting committee or diversity committee but on the compensation committee as well. Charlene Tsang-Kao, of Marathon Oil, put it succinctly: “It’s not a women’s issue or a minority issue, but a company issue.”

Implicit Bias
Judge Tonya Parker, of the 116th Civil District Court in Dallas, spoke about how implicit bias is pervasive in our daily lives and can run wild and unchecked in a civil trial environment. As a result, it’s necessary to address implicit bias in the courtroom, she said. Parker advocated for three proposed jury instructions that would instruct jurors to be aware of their implicit biases and give them instructions on how to assess witness testimony in a way to avoid bias.

A View From the Federal Bench
Less than 1 percent of civil cases are heard before a jury in the federal system, said Judge Xavier Rodriguez, of the U.S. District Court for the Western District of Texas, during a panel discussion sponsored by the Litigation Section and Texas Young Lawyers Association. Judge Nancy Atlas, of the U.S. District Court for the Southern District of Texas, said we now live in an audio-video world and judges and juries have come to expect that from attorneys. The change in focus has resulted in a much shorter attention span for both judges and juries. As such, the greater number of visual aids and diagrams an attorney can provide for the judge and jury, the better, such as including diagrams showing who the witnesses and key players are, as judges and juries often forget who certain people are by the end of a long trial. Rodriguez said attorneys need to be certain their diagrams won’t backfire though, as PowerPoint presentations followed verbatim can lull the jury (and judge) to sleep. Both judges encouraged maintaining contact with the jury in order to feel whether a line of questioning has the jury’s attention.

Mass Air Disaster Litigation
Alan H. Collier, a Los Angelesbased attorney who focuses on aviation risk prevention and drone law, led the discussion on litigating aviation and why attorneys should pay more attention to cases coming. Collier pointed to several disasters abroad that warranted some level of U.S. investigation due, in part, to the use of American technology. When SilkAir Flight 185 crashed in Indonesia in 1997, the National Transportation Safety Board had jurisdiction due to the plane’s manufacturer being U.S.-based Boeing. When Air France Flight 358 crashed in Canada, the NTSB again stepped in because the plane’s engine was built by Ohiobased GE Aviation. Other reasons international aviation disaster cases can come to the U.S. include service to America and the flight having a U.S. passenger or crew connection to the states. Collier gave pointed advice for attorneys on both sides of a potential disaster case—for the plaintiff’s counsel, coordinate a lead counsel under a cost-sharing agreement but don’t expect settlement talks until U.S. jurisdiction is a sure thing. For defense counsel, Collier recommended hiring counsel in possible jurisdictions as soon as possible, removing cases to a federal court, and never underestimating a “bad” judge or jury.

Responding to Hate Crimes
FBI special agent Alfred Tribble Jr. told attendees at an Asian Pacific Interest Section panel that hate crimes are so widespread that they occur almost everywhere, including potentially at your home, school, and church. Ruben Perez, special crimes bureau chief of the Harris County District Attorney’s Office, reminded attendees that it’s not a crime to be a bigot or racist. It’s only when that hatred is mixed with a true threat that an action could become a hate crime. The panel worked through several hate crime scenarios looking for criminality while enlightening attendees as to the prevalence of the problem.

Stepping Up for Others in Need

“My parents were looking down at me,” said Jim McIngvale. “They were saying to me, ‘You know what to do.’” McIngvale, better known as “Mattress Mack,” opened up his furniture stores as a place for people to stay during Hurricane Harvey, and through his generosity, he was able to help many Houstonians who would have otherwise been without shelter. About 2,000 people stayed at one of his stores. As the keynote speaker at the Bench Bar Breakfast, he talked about the synergy in Houston to rally together to help those in need. “People want to know that you care,” McIngvale said. “We need unity in community. We need to look at the past to see what we need for the future.”

Speaking before McIngvale, Texas Supreme Court Chief Justice Nathan L. Hecht gave a brief report on the state of the judiciary in Texas, touching on the pro bono efforts of the bar during Hurricane Harvey and the support from Congress in the approval of a $410 million budget for Legal Services Corporation, or LSC, for next year; a new judicial commission on mental health formed with the Texas Court of Criminal Appeals; a new bar exam task force that recommended Texas go to the uniform bar exam; the so-called “Texas PACER System,” which will allow for easy access to cases; and judicial compensation, which will be at the forefront of the legislative session.

The Texas Citizens Participation Act
C.B. Burns, of Kemp Smith in El Paso; Scott Fiddler, of Fiddler & Associates in Houston; and 269th Civil Court Judge Dan Hinde weighed in on the Texas Citizens Participation Act, otherwise known as the Texas Anti-SLAPP statute, during a session sponsored by the Labor and Employment Law Section. Although the act is only seven years old, it has already resulted in numerous opinions from the Texas Supreme Court. Recent decisions related to the TCPA include ExxonMobil Pipeline Co. v. Coleman (Tex. 2017), which said challenged speech need not be public, and Elite Auto Body L.L.C. v. Autocraft Bodywerks, Inc., (Tex. 2017), which ruled that discussions among incumbent employees about leaving to join a competitor is protected speech. It was noted in the discussion that when entering motions to dismiss SLAPP cases, attorneys should be certain to get a written order from the court as proof of dismissal. There is no requirement for the court to make a written order for a motion to dismiss.

The Ever-Changing World of Social Media
Andrew Tolchin, of Tolchin Law Firm in Angleton, and Michelle W. Cheng, of Whitehurst, Harkness, Brees, Cheng, Alsaffar, Higginbotham & Jacob in Austin, spoke about some of the positive benefits of social media for attorneys during a session sponsored by the Law Practice Management Committee. Tolchin talked about the Texas Lawyers group on Facebook, which has become a soundboard for attorneys who have questions about their different cases. Attorneys can ask a question of the group and have multiple authorities in that area of law opine on it—and come to an eventual agreement as to what is the proper solution for a matter. Additionally, the group serves as a support mechanism for attorneys who may be experiencing personal issues. The group has helped direct troubled attorneys to the Texas Lawyers’ Assistance Program, or TLAP, for help with their issues.

Building Your Brand

“What happens if all the stars align and you get clients?” asked Tiffany Kamuche, of the Kamuche Law Firm in Dallas, at a panel discussion on building branding for solos. “Always be prepared.” Kamuche told the group not to re-create the wheel if you don’t have to—have systems and processes in place, use a virtual assistant, and think about hiring a contract or part-time person to help. “If I can’t justify a person sitting in my office, then I don’t hire someone,” Kamuche said. If you do hire full-time employees, be sure to have an employee manual to set expectations— and update it at least once a year, Kamuche said. “It is imperative to protect your mental health,” Kamuche noted. “Take your breaks. Take those vacations. That is why you train your staff well.”

Legal Legends
“A legacy is not merely created by your acts but is evidenced by those that come behind you,” Vicki Blanton, assistant vice president/senior legal counsel to AT&T, said as she introduced the newest inductee into the Texas Legal Legends: Carolyn Wright, chief justice of the 5th Court of Appeals in Dallas. After Wright’s induction, she joined a panel that included Harriet Miers, of Locke Lord, and Ruby Sondock, retired Texas Supreme Court justice. The “legends” discussed their experiences growing up, life events, and the paths they took to their respective positions.

50-Year Lawyers

The State Bar of Texas recognized 610 lawyers for their 50 years of membership, with more than 45 of those honorees attending a celebratory reception that provided them with an opportunity to catch up with colleagues and friends and featured a visit from State Bar Executive Director Trey Apffel.

The Intersection of Race, Inequality, and Private Law Firm Practice
A theme explored in the “Race and the Law” CLE was the role African- American lawyers play in their communities. In light of a bevy of socioeconomic issues facing black communities in America, that role lies in activism, Dallas attorney Ezekiel Tyson said. Tyson led attendees through candid discussions on historic and modern housing discrimination, black prison populations, police brutality, and whether the civil rights movement of the 1960s should have been more economic-based. Racial bias, he said, is something that has to be addressed by not only black communities, but also by black bar associations. “There’s a slight difference between being an advocate for your client and for your community,” Tyson said. “In my opinion, you have a duty to be an advocate for your community.”

Metadata and the Cloud
Tom Kulik, of Scheef & Stone in Dallas, spoke about the need to protect clients’ metadata when it is stored in the cloud. Kulik said that data in the cloud is hard to protect because it is difficult to detect a breach. Many of the apps used by attorneys for metadata transfer and store that metadata on their own servers, meaning attorneys could be unknowingly divulging their clients’ data to third parties. These thirdparty software providers are great tools for attorneys, Kulik said, but there are risks involved. Popular apps such as Dropbox, Evernote, and Google have all experienced data breaches in recent years—Dropbox was hacked in 2012, Evernote and Google in 2014. Kulik emphasized that these apps are great for attorneys, but said that attorneys should always spend the money for the paid version of the app.

Social Media and Government
Texas Supreme Court Justice Jeff Brown’s car has its own Twitter account— @camryofjustice. Speaker of the Texas House Joe Straus’ office has received Public Information Act requests for his Twitter direct messages. Navigating public information laws in the age of social media is becoming more complicated by the minute. State Bar of Texas Public Affairs Committee Chair Rudy England helped a panel of experts including Brown, Texas Tech University School of Law Professor Robert T. Sherwin, and Anne Weismann, chief counsel to Citizens for Responsibility and Ethics in Washington, unravel some of the complications to operating in a social media world and being governed by public information laws. This year’s Open Government panels were streamed live on Facebook and can be found at facebook.com/statebaroftexas.

Branded for Life

Companies talk about the importance of a brand, but it is important to do it at the personal level too, said Adaptable Lawyer Track keynote speaker Donna Serdula, of Vision Board Media. It is a different world—the internet and social media have flipped things around. People do business with people, Serdula said. When you are branded at the individual level, you don’t look for a job—jobs find you, she said. But she noted that building a brand is hard—you have to look at yourself objectively and ask yourself tough questions such as “Who are you?” “What have you accomplished?” “What differentiates you from others?” You have to understand that your resume isn’t the same thing as a profile, Serdula said. Your resume is just your professional past. Your LinkedIn profile is your career future, Serdula said. It’s your first impression and digital introduction. It’s your online brand message, she said. Serdula suggested ways to create a great profile, starting with a good profile picture (look directly at the camera and smile), an eye-catching background graphic (this sets the tone of your profile), and a compelling headline (this is your tag line that needs to be infused with your main keywords). You determine how people perceive you, Serdula said. Create a strong profile.

Atticus Finch and Moral Witness

“The truth is Atticus Finch is America’s ideal lawyer,” said author and historian Joseph Crespino. “He is the model not only for lawyers but he’s kind of a civic ideal in the way he functions in our political culture.” Crespino, who is a professor at Emory University and the author of Atticus Finch: The Biography, talked about the fictional character and his role in the legal profession during his keynote address at the Bar Leaders Recognition Luncheon. The Atticus in Harper Lee’s To Kill a Mockingbird was noble and kind and has been seen as emblematic of empathy and tolerance, but in Lee’s Go Set a Watchman, published in 2015, two decades have passed and Atticus has joined the White Citizens’ Council to the dismay of his daughter, who can’t understand why her father has turned into a small-minded racist reactionary. Crespino talks about the duality of Atticus, a character inspired by Lee’s father, A.C. Lee, who was also an attorney. “The Atticus of Go Set a Watchman is kind of exactly what you would think a white, male Southerner who is 70 years old and arthritic would be like in south Alabama in the 1950s,” Crespino said. “He doesn’t like the changes that are coming to the region.” Crespino described the turbulent times in U.S. history during those years to provide context. He said that civil rights leader Martin Luther King Jr. did not know if there were enough moral white people to effect change, but he believed—he had faith—and change did happen. “We should remember too the strange way that Harper Lee’s novel and the character she created, Atticus Finch, emerged as a token of that faith,” Crespino said. “All of the dispiriting things that we face today in our politics— the racial divisions, the impulses that seek to drive people back into narrow tribal identities, extreme partisanship that turns political opponents into mortal enemies. All of these things are things that Martin Luther King and Harper Lee faced in their own day, yet they did not give up their faith in the power of moral witness,” said Crespino. “I hope we don’t give up on ours today.” To see a list of local bar association award winners, go to texasbar.com/annualmeetingawards.

Disaster Prep and Recovery
The kind of storms businesses may need to weather vary—Texas keeps a close eye on the Atlantic and Gulf of Mexico each hurricane season and droughts in the summer can leave the state susceptible to fires. But there is also the threat of a pandemic, explosions, human error or sabotage, the death of a partner, or a partner leaving for another firm, according to panelists of the Law Practice Management’s “Disaster Prep and Recovery” session. No matter what mask disaster wears, law firms need to have plans in action to keep business and staff thriving. John Meredith, chief operating officer of Chamberlain, Hrdlicka, White, Williams & Aughtry in Houston, and Penny R. Robe, owner of the Robe Law Firm in Plano, each relayed their experiences—his helping his firm bounce back from damage caused by Hurricane Ike and her keeping business going while hospitalized for a disability. Backed by their combined experiences, they laid out detailed pointers on responding to a crisis, including ensuring employees and their families are safe and have supplies, assessing whether continuing a client’s case is feasible and then prioritizing it among others, notifying insurance carriers, identifying community resources, finding temporary office space, and looking for ways to improve emergency response plans. “Part of resilience is being prepared,” Meredith said. “Hope for the best, plan for the worst.”

AI Has Landed
Panelists Ron Chichester, of Tomball; Mark I. Unger, of San Antonio; Jason Smith, of Apttus; and John Browning, of Passman & Jones; provided attendees with an overview of how artificial intelligence, or AI, is affecting the legal profession. Why does AI matter to lawyers? Chichester said that as AI replaces more staff, the more clients’ ability to pay for lawyers’ services declines. Law firms are using AI for contracts, mergers, and acquisitions, among other areas, Browning said. But while AI can help people do their jobs, it will probably hasten the need for lawyers in new areas, Browning added. The panelists agreed that when questions are involved, there is always a need for lawyers.

Texas Women in the Civil Rights Era
“I don’t know about you, but when I was growing up, I didn’t see women of color on the bench,” Rebeca Martinez, of the 4th Court of Appeals in San Antonio, told attendees at a discussion of “Texas Women in the Civil Rights Era,” hosted by the Hispanic Issues Section. After stumping the audience with several history questions, Martinez urged attendees to accept all invitations to participate in their communities. “View it as an opportunity, not an obligation,” she said. “Remember back in the day, when we weren’t invited?”

Laugh Track

In the panel “The Way of Improvisation: The Uses of Humor for Better Advocacy Persuasion, and Professionalism,” writer and attorney Pamela Buchmeyer and Dallas attorney Rocky Dhir, of Atlas Legal Research, talked about the intersection of humor and the law. Buchmeyer told the group that her father, the late Judge Jerry L. Buchmeyer, who wrote a humor column for the Texas Bar Journal from 1980 to 2008, integrated humor into his life as much as possible. “It helps with stress—anything we can do to take a deep breath and smile at those moments,” Buchmeyer said. “It can help save someone from a heart attack.” Dhir mentioned that humor can be used to learn as well. “As a group, we are committed to becoming better,” Dhir said. “The better prepared you are, the more you can use humor in an effective way.” He talked about a judge who allowed his law clerk to draft an opinion based on a LeAnn Rimes song. She had to work hard and it was an effective exercise, Dhir said. “Nothing works quite like humor to help you remember a lesson.”

Protecting Against Notorious Notarios
Jill Campbell, of BakerRipley in Houston; Mark Steiner, of South Texas College of Law Houston; and Lisa Virgen, of Lone Star Legal Aid in Houston; discussed notorio fraud during a session sponsored by the Consumer and Commercial Law Section. Many notarios present themselves as legal experts or claim to be working with a “backroom” attorney who is handling the client’s case. The misrepresentations not only defraud people of money but also cause incredible problems for immigrants trying to gain entry into the United States.

Hernandez v. State of Texas: The Gus Garcia Story
The landmark Hernandez v. State of Texas and story of Mexican-American civil rights lawyer Gus Garcia served as the backdrop for a larger discussion facilitated by author Isidro Aguirre and journalist Millie Diaz about ethnic consciousness and discrimination experienced by Latinos in Texas. In January 1954, before the U.S. Supreme Court, Garcia represented Pedro Hernandez, a Mexican-American agricultural worker found guilty in Texas by an all-white jury for the murder of Joe Espinoza. Garcia’s challenge of the exclusion of people of Mexican origin from juries across Texas led to the high court’s unanimous decision, which extended constitutional protections under the 14th Amendment to Mexican-Americans and afforded Hernandez a new trial with a jury that included Mexican-Americans. Ten years later, Garcia, who struggled with alcoholism, died from liver failure, homeless in San Antonio. But his work served as the lens through which the speakers relayed their experiences with racism in a small town and imagined Gus Garcia’s message in 2018: “[He’d say] help people register to vote—continue your education,” Aguirre said.

#MeToo
Buena Vista Lyons and Rachel Ullrich, both of Ford Harrison in Dallas, reported that the #MeToo movement has empowered more workers who have experienced sexual harassment to raise their hands, but at this time, the U.S. Equal Employment Opportunity Commission has not recorded an increase in the number of charges. Lyons and Ullrich, speaking on the impacts of the movement as part of a panel sponsored by the Women and the Law Section, noted that surveys show only about 30 percent of individuals who have experienced sexual harassment in the workplace will report it to a supervisor and even fewer file formal complaints. The lawyers, however, said that due to the #MeToo movement’s impacts they expect increased scrutiny by investigators of such allegations. They also expect the next wave of class-action lawsuits to target gender pay gap concerns.

Smart Contracts
The next big thing is already here— and it’s not artificial intelligence or robotics. It’s blockchain, according to speaker D. Hull Youngblood Jr., of Ford Murray in San Antonio, at the “Blockchain Technology Smart Contracts” panel. Youngblood said that blockchains now number in the thousands and allow for the protected exchange of money and data. In fact, every 10 minutes, a new block of data is created and added to the blockchain, and this data is virtually impossible to hack due to the intricacies and myriad connections each data block has in the chain. The smart contracts created using blockchain have eliminated the middleman, Youngblood said, but are best used for small, repetitive tasks that don’t require a lot of interface. More complex contracts, such as a merger, are unlikely to be completed by a smart contract, he said. Will attorneys need to be able to code to create blockchain smart contracts? Youngblood doesn’t think so.

Starting a Practice
In “Top 10 Perks and Pitfalls of Starting a Practice,” panelists Erich Birch, of Birch, Becker & Moorman in Austin; Joshua Massingill of Joshua Massingill, Attorney at Law in Cedar Park; and Jessica Vittorio, of the Law Office of Jessica Vittorio in Frisco; discussed the pros and cons of hanging a shingle. As a solo, you can’t know everything about various practice fields, which can lead to ethical issues, said the panelists. The sooner you can narrow the scope of your practice, the better, they said. Be sure to limit the scope of your representation in your agreements—say what you will not do. The panelists talked about the importance of a business plan so that you can identify what the law firm is going to do. A few pitfalls included procrastination (systems can prevent it), invoicing (you can’t get paid unless you do the work and send an invoice), names (be aware that you can’t call yourself Smith & Associates if you don’t have any associates), and office locations (realize that technology has changed the world—and where you can do business).

State Bar Board Update

Board Hires Firm for Transparency Review, Elects General Counsel
By Lowell Brown

SWEARING IN
Randy Sorrels of Houston takes the oath of office as 2018-2019 State Bar president-elect.

The State Bar of Texas Board of Directors voted unanimously June 20 to hire a Texas-based advisory firm, Weaver, to review the State Bar’s communications and transparency efforts and make recommendations for improvement. The findings will be reported to the board and shared publicly.

The board voted in April to request proposals from qualified firms to conduct the review. The Audit and Finance Committee recommended Weaver out of four responses to a request for proposals. The cost of the review is not to exceed $32,695.

The review will confirm the existence of processes to ensure the bar is complying with open government laws, said Public Member Director August W. Harris III, of Austin, who serves on the Audit and Finance Committee. The review will also help the bar consider any best practices that could enhance transparency beyond what the law requires, he said. “The key here is that the consultant will provide an independent, third-party review of the State Bar,” Harris told the board.

2017-2018 State Bar President Tom Vick described the review as part of a series of recent efforts to enhance transparency, including the launch of a financial transparency webpage at texasbar.com/finances and the videotaping of board meetings.

As part of Weaver’s review, a survey was emailed in July to all State Bar members, except those who had opted out of receiving such communications. A link to the survey also was made available on each attorney’s My Bar Page profile at texasbar.com.

Weaver is expected to provide an update on its work at the board’s September 28 meeting in Austin.

Also at the June 20 meeting, the board accepted reports from 2017-2018 President-elect Joe K. Longley’s Transparency and Financial Responsibility & Fiscal Control task forces. (Read the reports at texasbar.com/president.)

Directors voted to allow the task forces’ terms to expire on June 22 along with the term of the president-elect, as provided by State Bar policy. “We thank the members of both task forces for their service to the bar,” Vick said in an email message to members. “We will fully consider their recommendations.”

Longley, who was sworn in as State Bar president on June 22, had asked the board to extend the task forces into his presidential term. He voted against allowing them to expire. (To watch the full discussion on the task forces, go to texasbar.com/board, click on “Board Meeting Videos,” select the June 20 video link, and skip ahead to the 44:50 mark.)

Dallas attorney Mark Ticer, chair of the Transparency Task Force, appeared before directors to answer questions raised at their April 27 board meeting. The task force was the subject of a lengthy discussion at the April meeting after then-Director Scott Stolley, of Dallas, who was appointed to the Transparency Task Force but later resigned, raised concerns over its objectivity and asked Longley to disband it. Among other concerns, Stolley said that statements made by members of the State Bar legal counsel’s office to the task force in March were taken from their intended context and used against the bar in pending litigation.

Ticer said he apologized to State Bar Legal Counsel John Sirman after learning how the statements had been used. “There was no intent by anybody on our committee to set them up or anything of that nature,” Ticer said. “We’re just gathering information on PIA (Public Information Act) procedures and those types of things.”

After that, State Bar leaders hindered the task force’s work by refusing to commit to additional in-person interviews, Ticer said. He defended the task force, saying it was “not an adversarial group” but simply people committed to open government.

Also on June 20, directors voted unanimously to elect Ross Fischer, of Austin, as the board’s general counsel, a statutory position under the State Bar Act. The General Counsel Search Committee interviewed six Texas lawyers out of 12 respondents for the position before recommending Fischer, an attorney with the Gober Group who specializes in legislative and campaign law, professional ethics, and government integrity matters. “Mr. Fischer comes to the position with a vast amount of experience, and the board of directors is eager to work with him,” Vick said.

In other action, the board:

• Approved submitting a State Bar Advertising Review Committee report to the newly created Committee on Disciplinary Rules and Referenda for study. The report includes proposed amendments to the Texas Disciplinary Rules of Professional Conduct related to lawyer advertising. (Read the report at texasbar.com/adreviewreport.)

• Agreed to submit two resolutions to the Texas Supreme Court dealing with a proposed amendment to Texas Disciplinary Rule of Professional Conduct 10.01, comment 8. The resolutions—one jointly signed by the board’s Professional Development Subcommittee and the State Bar Continuing Legal Education Committee, the other by the State Bar Computer and Technology Section—recommend the comment be revised to reflect that a lawyer’s competency should include knowledge of “the benefits and risks associated with relevant technology.”

Laura Gibson, of Houston, speaks after being sworn in by Texas Supreme Court Justice Phil Johnson as 2018-2019 chair of the board of directors.

Houston attorney Randy Sorrels was sworn in as State Bar president-elect on June 21, and Laura Gibson, of Houston, succeeded Rehan Alimohammad, of Sugar Land, as chair of the board of directors. Texas Supreme Court Justice Phil Johnson administered the oath of office to new officers and directors.

2017-2018 Texas Young Lawyers Association President Baili B. Rhodes updated the board on TYLA’s latest projects, including “Spanish for Lawyers,” a free online CLE course offering beginner Spanish instruction focused on the use of legal vocabulary. For information on the project, go to tyla.org.

Alimohammad presented the following awards:

• Outstanding Third-Year Director Award: Andrew Tolchin, Angleton
• Michael J. Crowley Award: Philip Mack Furlow, Lamesa
• Public Member Award: August W. Harris III, Austin

State Bar Executive Director Trey Apffel honored meeting planner Caryn Truitt with the Staff Excellence Award. TBJ

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