Annual Meeting 2021
By Justine Carreon, Adam Faderewski, Patricia Busa McConnico, and Eric Quitugua
The 2021 State Bar of Texas Virtual Annual Meeting
The State Bar of Texas held a two-day virtual Annual Meeting packed with CLE offerings, ethics programming, and more for its members.
The State Bar canceled its Annual Meeting in Fort Worth scheduled for June 17-18 due to COVID-19. Like last year, volunteers and staff members developed a virtual event to take its place, featuring 50 sessions of up to 10 hours of video-on-demand CLE and an awards presentation. State Bar sections and other entities provided programming on Thursday, which featured pre-recorded, practice-specific seminars. Executive Director Trey Apffel kicked off Friday’s programming with a welcome message. Additional content included a short awards presentation, parting remarks from 2020-2021 President Larry McDougal and 2020-2021 Texas Young Lawyers Association President Britney Harrison, and the swearing-in ceremonies of 2021-2022 President Sylvia Borunda Firth and 2021-2022 TYLA President Jeanine Novosad Rispoli.
Texas Supreme Court Justice Rebeca Huddle swore in Borunda Firth as president of the State Bar of Texas, thanking her for “answer[ing] the call for service” and celebrating her El Paso roots. Borunda Firth is the first Hispanic woman and first El Pasoan to serve as president of the State Bar. Borunda Firth said she ran for president because she felt it was important that State Bar leaders reflect diversity in race, ethnicity, gender identity, orientation, practice area, and geography. “It’s important because diverse perspectives bring about better outcomes and better outcomes help us continue achieving the State Bar’s essential functions of improving the quality of legal services and continuing regulating the profession,” she said. Borunda Firth drove home a message of unity, calling on the state’s 106,000 bar members—which include government lawyers, big firm lawyers, solo practitioners, or “something in between” and of any political affiliation or religious belief (or lack of)—to work together to improve the State Bar. The 21st century State Bar of Texas, she said, is “a place where all are welcome and all are encouraged to get involved in our unique system of self-governance.”
2019-2020 TYLA President Victor A. Flores, of Brownsville, swore in Rispoli as TYLA president at the Dallas Arboretum and Botanical Gardens. Rispoli is a Baylor Law graduate and family law practitioner at Rispoli & Altman in Waco. “I have the most heartfelt appreciation for the trust TYLA members have placed in me,” she said after taking the oath. “I am deeply grateful for the opportunity to serve you.” Rispoli thanked her many law “families,” including the Houston law community where she started practicing, Baylor Law School, her peers in the Waco and McLennan County legal communities, and TYLA for her “first big brother,” Flores. The State Bar of Texas and TYLA “wouldn’t be the strong communities we are today without the strong women who have led us and the men who truly value and listen to those strong women,” Rispoli said. “This year, we will create new projects and resources with a focus on civility, relationship wellness, and much more, so stay tuned,” Rispoli said of TYLA’s plans for her term. “It is my hope that each step of the way forward we will foster enduring change together.”
Below is a brief summary of the virtual panels that occured over the course of the 2021 State Bar of Texas Virtual Annual Meeting. This recap of the 2021 Annual Meeting is provided to help our members improve the quality of legal services they offer their clients. Views expressed are those of the individual speakers and not those of the State Bar of Texas.
Click for the list of the 2020-2021 BAR YEARS AWARDS. and our 50-YEAR LAWYERS for 2021.
Updates on Environmental Law Issues
State Bar of Texas Environmental & Natural Resources Law Section Chair David Klein shared updates on environmental law issues throughout Texas. The Texas Public Utility Commission suspended late fees, and deferred payment plans are still in place for Texans. In 1991, the U.S. Environmental Protection Agency published a regulation to control the lead and copper in drinking water. In 2020, updates to the Lead and Copper Rule included changing sampling protocols to 20% each year for testing copper and lead in drinking water to protect children in schools and day care centers. If the samples come back with high copper and lead in drinking water, Klein said, you must notify the public of the findings.
Reasonable Accommodations and Protocols to Follow When Returning to Work
Brian East, of Disability Rights Texas in Austin, addressed some concerns in returning to work during COVID-19 in the session titled “COVID-19 and the ADA.” Employers can lawfully take employees’ temperatures before they enter the work building, ask if employees are experiencing symptoms, ask why the employee was absent from work, ask about known exposure, and encourage employees to get the vaccine, he said. Employers can also enforce forced leave until an employee gets a doctor’s approval when it is safe to return to work, East said. Of course, telework is possible if the employee’s job can be done at home, he said. Employers should have a general statement pertaining to employees who have been exposed to COVID-19, East said. If an employee lives with someone who is high risk, the employer is not required to make accommodations for them, East said. He advised to be flexible with the employee. For more information, the U.S. Equal Employment Opportunity Commission addresses COVID-19 concerns for employers and employees at eeoc.gov/coronavirus.
2021 Discovery Update: Full Disclosure and Other Changes in a Post-2020 Texas
Monica W. Latin, of Carrington Coleman Sloman & Blumenthal in Dallas, discussed some of the major discovery changes over the past year. Highlights include amended Rule 194.1 of the Texas Rules of Civil Procedure, which states that a party must provide to other parties the information or material described. In other words, Latin said, disclosures are mandatory—there is no such thing as request for disclosure anymore. Amended Rule 192.2 states that unless otherwise agreed to by the parties or ordered by the court, a party cannot serve discovery until after the initial disclosures are due. Latin also discussed amended Rule 194.2. “Now it is mandatory to disclose at the time of your disclosures a copy of all of the information, including electronically stored information, which the party may use to support its claims, or defenses,” she said. “It is a really broad standard. It requires a lot more upfront knowledge of your case.”
Lawyers at Risk: The Impact of Human Trafficking and Modern Slavery on Lawyers and Their Clients
“Human Rights Day honors the adoption of the Universal Declaration of Human Rights, which has inspired more than 60,000 human rights instruments,” said moderator Wajiha Ahmed, of Buttar, Cadwell & Company in Sydney, Australia. “Article 4 states that no one shall be held in slavery or servitude. Slavery and the slave trade shall be prohibited in all their forms.” Panelists Anne O’Donoghue, of Immigration Solutions Lawyers in Sydney; Judge Michael Kirby, of Institute of Arbitrators & Mediators in Sydney; Akiko Sato, of Business & Human Rights Resource Centre in Tokyo, Japan; and Nicole D’Souza, of Evatt Foundation in Sydney, discussed the impact of human trafficking and modern slavery on lawyers and their clients. O’Donoghue said Australia is leading the way in legislation against modern slavery. She said in-house counsel face ethical dilemmas and their first obligation is their duty to the court. “If you take away nothing else from this webinar as a corporate counsel, my ardent plea is for all corporate counsel to come to terms with what is human rights due diligence,” O’Donoghue said. “It requires a reframing of the traditional approach to corporate risk, corporate due diligence, an assessment of risk from the perspective of protection of reputation of the corporate entity.”
Social Justice and Policing
Since George Floyd’s murder in May 2020, members of the African American Lawyers Section have spoken with law enforcement officials across Texas about issues including duty to intervene, policing, qualified immunity, use of force, and how lawyers can make a difference in their communities. “If there’s anything you can say about this year, it’s about talking about these issues, trying to identify these issues, trying to confront these issues, and [the need to] have hard conversations,” Rudy Metayer, 2020-2021 section chair, said. “Because, guess what, if these issues were easy to us all, it would have already been done.” The panel—which included attorneys and law enforcement representatives—discussed current issues in policing, including the “defund the police” movement, duty-to-intervene policies, and qualified immunity. Panelist Metayer called social justice and policing one of the most vital conversations to have right now. “I think that what we can all agree on is that we want to have good policing no matter where it’s at,” he said.
A Work in Progress With LGBT Law
Panelists Shelly Skeen, of Lambda Legal in Dallas; Geron Gadd, of AARP Foundation in Washington, D.C.; Venita Ray, of Positive Women’s Network in Houston; Wesley Hartman, of Texas Health Action in Austin; and Cathy Sakimura, of National Center for Lesbian Rights in San Francisco, discussed ongoing concerns about LGBT law in the session titled “New Horizons for LGBT Rights.” The panelists said Texas is still struggling with implementing marriage equality but the state now recognizes U.S. citizenship of children who were born abroad through surrogacy to same-sex parents. “Birth certificates are not the only way to show you are a parent in custody hearings,” Skeen said. The Bostock decision, which was a landmark case in the U.S. Supreme Court, protects employees against discrimination regarding sexual orientation and gender identity. Hartman wrote the “Texas Name and Gender Marker Change Guide” to help with the process of changing a person’s name and gender identity. Ray discussed the ongoing battle of HIV discrimination. She said the Positive Women’s Network Texas Strike Force was successful in getting the Texas Department of State Health Services to reverse its decision to change income eligibility requirements—all people living with HIV will continue to receive medications.
Helpful Guidelines Concerning Taxes
“When money moves, there are usually tax issues,” said Joshua Smeltzer, of Gray Reed & McGraw in Dallas. Smeltzer took a deep dive in explaining tax issues between client and attorney in a session titled “A Guide to Federal Tax Controversy and Litigation.” When a tax issue occurs through inheritance, divorce, legal settlement, business assets/stock sales, change in corporate structure, change in ownership, change or expansion of business lines, and raising capital for expansion, it is helpful to ask a tax attorney what your options are before a potential audit notice, he said. Tax opinions that are made by a tax attorney can help show the IRS you took steps to rectify your taxes or help your case in court, Smeltzer said. Tax practitioner privilege does not cover communication made to prepare a tax return and does not apply to criminal tax proceedings or to state or local tax matters. It only applies to civil administrative proceedings. Make sure you have clear lines with your client on what is privileged information and what is not—if parties aren’t careful, things might be disclosed that should not be, Smeltzer said. United States v. Kovel allows attorney-client privilege with an accountant that is hired by the attorney to assist with legal advice, he said. Get your client to sign the IRS Form 2848 so you can contact the IRS on his or her behalf and then order the IRS transcript online that will show all the taxpayer’s activity to help with the audit, Smeltzer said. If your client receives a notice of deficiency, ensure you and your client make the 90-day deadline because this deadline will not be extended and you will lose your chance to go to tax court to try your case, he said. Verify all communication is in writing and keep a record of everything, Smeltzer said.
The Sitch at Twitch, Triller, and TikTok: The Rich Fail to Properly License Music
Chris Castle and Gwen Seale, entertainment lawyers in Austin, discussed the ways social media platforms are relying on Section 512 (safe harbor) of the Digital Millennium Copyright Act, or DMCA, to avoid proper licensing of music. Platforms specifically site the creation of user-generated content, or UGC, by the posters of the work. Castle and Seale explained the licensing issues applicable to each platform. A possible solution to the current situation would be the creation of the Copyright Alternative in Small-Claims Enforcement Act, or CASE Act, that would establish a voluntary alternative dispute resolution system for both users and copyright claims. The CASE Act would create a Copyright Claims Board, a three-person panel of officers that would rule on infringements brought by copyright owners, counterclaims and defenses, declaration of noninfringement brought by users, and misrepresentation of DMCA takedown notice or counter-notification. Castle and Seale said safeguards for the proper licensing of music would be penalties for bad faith claims/actors, and the U.S. Copyright Office can limit the number of claims that can be brought.
Consumer & Commercial Law—Legislative Update
In Austin-based Karen Neeley’s observations, COVID-19 reshaped the Pink Dome in some ways while keeping things the same in others. On the former, there was a split in handling bill testimonies—some committees accepted them electronically; others did not. Elsewhere, the session surprised Neeley, who anticipated a noticeable dip in the number of bills filed compared with the previous session—that number exceeded 7,000 with about 200 passing at the time of Neeley’s Annual Meeting panel “Legislative Update” on May 21. But with Republican control of the Senate, House, and governor’s mansion, there’s a “totally different scenario with regard to how much influence the Democratic Party might have in amending different kinds of bills,” she said. She also noted 2021 as a redistricting year. However, that will have to wait until census data becomes available—one modest estimate from the Houston Chronicle puts that in September at the earliest.
Texas Supreme Court
Steven J. Knight, of Chamberlain, Hrdlicka, White, Williams & Aughtry, provided an update on the Texas Supreme Court’s term from September 2020 to August 2021, including statistics from the 2020 term and updates on the Texas Citizens Participation Act, or TCPA; premises liability; negligence; the Prompt Payment of Claims Act; underinsured motorists; and workers’ compensation. In the 2020 term, the Supreme Court granted review for 11% of petitions and issued 136 opinions. Regarding the TCPA, the court ruled in Montelongo v. Abrea that because the submission of an amended petition added new causes of action, the 60-day deadline applied with respect to the amended petition. In Catholic Diocese of El Paso v. Porter, the court ruled that “a person on the property to perform volunteer work for a third party benefits the third party rather than the property owner and therefore is not the owner’s invitee.” In a negligence case, the court ruled in JLB Builders, LLC v. Hernandez that a “general contractor who, while observing a safety hazard firsthand, directly orders a subcontractor’s employee to perform the injury-causing task incurs a duty with respect to the task’s performance … However, there is no indication that JLB was aware that the wind posed a particular danger that day.” The court reversed and remanded in Hinojos v. State Farm Lloyds, stating that petitioner Louis Hinojos had to establish the amount State Farm is contractually liable for, that State Farm failed to comply with statutory deadlines, and damages based on the amount contractually owed was less than the amounts paid within the statutory deadlines. In In re State Farm Mutual Automobile Insurance Company, the court rejected the claim that the plaintiff could avoid the ordinary sever and abate concept by only asserting extra-contractual claims. Finally, in Berkel & Company Contractors, Inc. v. Lee, the court reversed and rendered for Berkel because “no evidence supports an inference that Miller … believed the equipment would break and collapse, and that it was destined to collapse on Lee, who stood beyond the construction barricade at grade level.”
Building an Effective Diversity and Inclusion Program at Your Workplace
“Statistics have shown that companies with a diverse workforce are more successful and have higher revenues than companies that are not,” said Toni Nguyen, of PowerSchool in Austin. “Diverse companies are more successful because they bring diverse point of views and solutions. Clients are demanding working with a lawyer that looks like them, therefore making law firms cater to their clients and hiring more diverse attorneys.” In “Key Elements to Building an Effective Diversity & Inclusion Program”, panelists John Treviño, of Perkins Coie in Dallas; Nguyen; Albert C. Tan, of Haynes and Boone in Dallas; and Natara Williams, of Trace Midstream in Houston, discussed diversity and inclusion in the workplace. The legal profession is behind other professions when it comes to diversity. “Over the past decade, there has been a slight increase in minority representation in the legal profession,” Treviño said. According to U.S. Bureau of Labor statistics, the legal profession went from 11.6% in 2009 for minority representation to 17.4% in 2019. The percentage of women attorneys in the U.S. has continued to increase from 32.4% in 2009 to 36.4% in 2019 but still lags other professions, Treviño said. Minority attorneys make up 22% of the State Bar of Texas. Williams said you must be explicit and intentional to have conversations about growing diversity and inclusion in your workplace. Tan shared tips for helping a law firm be proactive in having diversity and inclusion—create a task force that focuses on how you recruit, how you assign and evaluate work, how you determine promotions, and how you get leadership involved, and have a budget and resources for the task force. Then develop and execute the plan. Panelists said companies need to create systemic changes to foster long-term inclusion and equity in the workplace.
Implicit Bias and Legal Ethics—What You Need to Know
Judge Audrey Moorehead, of Dallas County Criminal Court #3, and Jonathan Smaby, executive director of the Texas Center for Legal Ethics, discussed implicit bias and legal ethics. Smaby said implicit bias is an unconscious bias based on the attitudes and stereotypes that affect a person’s understanding, actions, and decisions. Implicit bias works due to the way the brain is wired, Smaby said, as the brain makes quick decisions to save energy, which is highly efficient but often wrong. These snap decisions can lead to problems such as the “in-group/out-group phenomenon,” Smaby said, which results in people who are similar not judging each other harshly and more harshly judging those in the out-group. Smaby cited the Thomas Meyer Study in which 60 law partners were asked to judge a millennial’s legal writing skills. According to Smaby, partners reviewed legal memos with 22 errors baked in for a white Thomas Meyer and a Black Thomas Meyer. The scores showed the white Meyer receiving a score of 4.1 and the Black Meyer receiving a 3.2, with the comments about the Black millennial being decidedly negative. “A lot of people don’t want to admit that they have an implicit bias,” Moorehead said, “or believe that they have one.” The impact of implicit bias affects how the public sees the legal system, Moorehead said. “We have to come to a certain realization that the public, the community, the society doesn’t have the confidence in our system of justice that we thought they had,” Moorehead said. Techniques for what can be done about implicit bias include understanding how your brain processes information, being aware of your biases, challenging yourself, creating in-house programs, initiating discussions at home and at work, and looking for it in your own life, Moorehead said. “There’s no justification for throwing our hands up in resignation.”
Temporary Orders: A View From the Bench
Moderator Deborah Mackoy, of Mackoy, Hernandez, Qualls, Jones, and Woods in Frisco, started the session by asking Judge Emily Miskel, of the 470th District Court, her take on temporary orders. Miskel said that at temporary orders, she’s not looking to hear every bit of evidence she will hear again at trial. “I want to make sure that everyone is safe—that everyone hasn’t starved. That we can basically Band-Aid a good enough D-minus solution to get everyone to their trial date,” Miskel said. “And so also, I understand that after I hear more information at trial, I may very well totally change my mind. Some attorneys perceive that if a judge did something on temporary orders, that is a forgone conclusion that they’re not going to change their mind at trial. I don’t see it that way.” Judge Brody Shanklin, of the 211th District Court, said his job during temporary orders is to maintain the status quo. Miskel said that for third-party witnesses, she thinks we will see much more use of Zoom. “A lot of my self-represented litigants do better on Zoom,” Miskel said. “The upside is that people share more facts. As a judge, I believe I get better decisions if I have relevant, reliable evidence.”
Texas Courts of Appeals
Former Texas Supreme Court Chief Justice Wallace B. Jefferson moderated a roundtable discussion with nine of the 14 chief justices from the Texas Courts of Appeals. Topics of discussion included most common cases, opinion and administration of the court, restructuring, diversity and inclusion on the courts, transferring cases, and Zoom trials. Chief Justice Darlene Byrne, of the 3rd Court of Appeals in Austin, said the most common cases in her court are the administrative laws of appeals for the Texas government. “We still get a lot of criminal appeals; about two-thirds of our cases are criminal appeals,” said Chief Justice John M. Bailey, of the 11th Court of Appeals in Eastland. Chief Justice Tracy Christopher, of the 14th Court of Appeals in Houston, said her court sits in panels of three with the vast majority of the cases heard decided by the three-judge panels. Christopher said the 14th Court of Appeals has a high rate of concurring and dissenting opinions, with 9% of cases having them, whereas the 1st Court of Appeals in Houston has 0.02% dissenting or concurring opinions. The chief justices also addressed Senate Bill 11, the proposed restructuring of the courts of appeals from 14 to seven, which did not pass and was left pending in committee during the regular session of the Texas Legislature. “All the courts of appeals are effective, and I attribute that to them being spread out throughout the state and not centered in one, two, or three locations,” said Chief Justice Bonnie Sudderth, of the 2nd Court of Appeals in Fort Worth. Bailey said the number of courts of appeals and locations are best left to the Legislature. “My bigger concern would be how far would someone from a small county have to travel if they chose to attend court in an urban area,” Bailey said. Chief Justice Robert D. Burns III, of the 5th Court of Appeals in Dallas, said the proposed restructuring “would really make things challenging for us, for litigants, and appellate attorneys,” and predicted it would be three or four years of difficulty before things got back to normal. Chief Justice Dori Contreras, of the 13th Court of Appeals in Corpus Christi, said she thinks consolidating the courts of appeals would reverse gains in diversity in the court system and result in chaos. Chief Justice Rebeca Martinez, of the 4th Court of Appeals in San Antonio, said the country has “a growing percentage of women and people of color on the bench,” which shows the next generation there is a place for them in the judiciary.
The Promise and Peril of Technology
In February 2019, the Texas Supreme Court adopted Comment 8 to American Bar Association Model Rule 1.01, which deals with the ethical duty of technology competence. Moderator Elizabeth Rogers, of Michael Best & Friedrich in Austin, framed the discussion by reminding panelists Shawn E. Tuma, of Spencer Fane in Plano; Anne-Marie Rábago, of Modern Juris in Austin; and William Smith, of Business Talent Group in Austin, of that fact. “The comment is relatively very simple—it is less than 20 words,” Rogers said. “But these words have somewhat become a game changer. It asks us to become familiar with not only the benefits of but the risks of technology during the course of representing our clients.” Smith discussed the evolving nature of artificial intelligence and how it is being used in law enforcement and the judicial system. “We are starting to see the technology moving faster than the regulation does or even public awareness does,” Smith said. Tuma said the focus needs to be not only on the impact of technology on lawyers but also the impact on humanity. “I’m going to bring the bad to the discussion,” Tuma said. “I love technology. It is a source of livelihood for me. But what I’ve learned over the years is that every tool that is developed for good is also used for bad.” He added that privacy goes to the essence of humanity, and when we lose it, it’s gone. Rogers shifted the discussion to how to distribute technology with more equity. Rábago said the most recent U.S. Census data showed about one-third of all Texans, or 10 million people, don’t have access to broadband. Smith brought the discussion full circle to practicing attorneys and stressed the importance of cybersecurity. “If you take nothing else away from this panel,” he said, “a lot of these ransomware attacks happen not because they are sophisticated but because people are not using basic things.” Smith recommended using a virtual private network, or VPN; using a complicated password; making sure you know where your data is stored; and enabling encryption on your devices.
Pandemic Plea Bargains
With the COVID-19 pandemic in full swing, in-person hearings went by the wayside in favor of online proceedings, a move Philip Mack Furlow, district attorney for the 106th Judicial District in Dawson County, said puts a limit to an attorney’s ability to negotiate a plea. “You cannot get much done doing what we’re doing right here on Zoom,” he said. “…[T]he likelihood of being able to reach resolution to get something done is when everyone is there in person.” In person, attorneys can meet with each other, look each other in the eyes, shake hands, talk about the case, go back and forth, and have give-and-take, Furlow said. District attorney offices across Texas have continued to indict cases and conduct grand jury proceedings over the course of the last year. Without live dockets, cases haven’t been getting resolved, he said. “No trials, no leverage.” However, Furlow’s district is returning to live trials soon and faces a backlog of cases that are opportunities to strike plea deals. He has 27 cases pending in the docket with only one trial team to handle them. “We’ll see what we can get done.” Furlow then mused over tricks he’s learned in plea bargaining—such as reducing state jail felonies to Class C misdemeanors like possession of drug paraphernalia with intent to distribute—before praising the return to live court. “It’s blue light special time. Be creative. Get stuff done.”
Chapter 13 Trustees & CARES Act
The Bankruptcy Law Section hosted a panel moderated by Jessica Hanzlik, of Vahemelrijck Law Offices in San Antonio, with Chapter 13 trustees Pam Bassel, of North Richard Hills; Stuart Cox, of El Paso; Carey Ebert, of Plano; and David Peake, of Houston. The panelists discussed forbearances during the time of COVID-19 and the confusion that arose through a lack of good communication from the government. The confusion caused many people looking for more information on the forbearances to accidentally agree to one by clicking a button for “more information,” Bassel said. When Bassel encountered people who had unwillingly committed to a forbearance she made sure that the forbearance was withdrawn and that the debtor’s credit history was amended to reflect it wasn’t requested. When debtors did request a loan modification, Ebert said the terms being offered weren’t always as good as the current contract and might extend repayment of the loan. The panelists also discussed using Zoom for meetings during COVID-19. Peake said Zoom has offered “a clear and efficient way to do meetings.” Cox agreed, saying he imagined that remote 341 hearings will be with us long into the future. The absenteeism rate and the need to reset has been down, Bassel said. Debtors can now have their 341 hearing over the phone during their lunch break rather than having to take a day off work and losing out on sorely needed income, she said.
Back to the Future: A Judicial Perspective on Courtroom Technology
In this session moderated by Rick Robertson, of KoonsFuller in Plano, panelists U.S. District Judge Xavier Rodriquez, 470th District Court Judge Emily Miskel, 394th District Judge Roy Ferguson, and Reginald Hirsch, of the Law Office of Reginald Hirsch in Houston, discussed technology in the courtroom and what it might look like going forward. Ferguson said that the 36th emergency order issued by the Texas Supreme Court restored some control to local jurisdictions to decide how to hold in-person hearings. Miskel said there have been variations since the start of the pandemic. “If anyone requested in person, I had to accommodate them on the fly,” she said. “Based on experience, hybrid proceedings are terrible. They are the worst of both worlds. Doing everybody on Zoom works fine. Doing everybody in person works fine. Half the people on Zoom and half the people in person is a logistical and IT constant effort and toil.” Rodriquez said the order would not affect federal courts. Ferguson said his court proceedings are still fully virtual unless parties can show good cause to be in person. They don’t have the budget to install equipment for hybrid proceedings, he said. Rodriguez said most judges have been cautious. “By and large I would say mostly it is remote with pleas and sentences,” Rodriguez said. “By and large, we have not had criminal jury trials being conducted. By and large, we have gone forward with bench trials in civil cases and bench trials in criminal cases where the defendant has waived his right to a jury trial with the concern about limiting the number of people in a courtroom and courthouse. Here is where architecture has worked against us. Our buildings were never meant to handle a pandemic.” The panelists discussed the differences of availability of technology in courtrooms. Hirsch said some courtrooms in Houston are equipped with the latest technology, but Ferguson said some in West Texas are not. Miskel said she and Ferguson both serve on a task force appointed to look at barriers to remote proceedings. “In talking to different groups across the state, everybody is in agreement that we need to have remote proceedings as a tool in our toolbox,” Miskel said. Legal aid groups are adamant that remote proceedings help access to justice, and attorney groups agree that for non-evidentiary hearings, they prefer not to have to drive and park and pay for parking to attend in person, she said. “My crystal ball gazing 10 years into the future is when jurors find out that we could have let them participate from their home or office virtually in jury duty but we chose and forced them to get in their car, take a day off from work, find child care, and come see us in person, they will be driving the shift to virtual jury selection,” Miskel said. “And I think they won’t be wrong.” Ferguson said it depends on who ultimately makes the change. “If the change is made by the Legislature, then they will be listening to their voters. And if the voters en masse go to the legislators and say we want you to stop making us go to the courthouse for a full day for every jury trial, then the little percentage of lawyers who say I don’t want to do that aren’t going to carry a lot of weight with the legislators,” Ferguson said. “If, however, it comes through rule making through the Supreme Court, well, there is a possibility that they will listen in larger part to the lawyers and the complaints that the lawyers have. It really depends on how that is presented.”
Incorporating the New Disciplinary Rules Into Your Practice
Austin lawyer Claude Ducloux, a member of the Committee on Disciplinary Rules and Referenda, provided an update on the eight newly approved rules from the 2021 Rules Vote, which took effect July 1. Ballot Item A related to clients with limited capacity and included the key provision that a “lawyer may take reasonably necessary protection action … [that] may include, but is not limited to, consulting with individuals or entities that have the ability to take action to protect the client.” Ducloux said the new measure was permissive for attorneys but not mandatory. Ballot Item B, Ducloux said, “removes all doubt” about what is permitted in securing legal ethics advice by making it clear that a lawyer may reveal confidential information to secure legal advice about the lawyer’s compliance with the disciplinary rules. Ballot Item C relates to the confidentiality exception to permit disclosure to prevent client death by suicide. “When a lawyer has reason to believe it is necessary to reveal confidential information in order to prevent the client from dying by suicide, the lawyer shall have the option of making that disclosure,” Ducloux said. He emphasized the “option” of making the disclosure as this is permissive action, and not mandatory. To promote pro bono services by narrowing the range of conflicts of interest, Ducloux said, Ballot Item D “exempts pro bono lawyers from compliance with the conflict-of-interest rules governing current and former clients, and lawyers serving as intermediaries, unless the lawyer actually knows that the representation presents a conflict of interest.” Many new rules were added as part of Ballot Item E, Ducloux said, with the removal of Texas Rules of Disciplinary Procedure 7.01 to 7.07 and the replacement with new Rules 7.01 to 7.06. He said the new rules focus on false and misleading statements, advertisement versus solicitation, and trade names. The changes now allow trade names as long as they are not false or misleading. Ballot Item F extended existing self-reporting and reciprocal-discipline provisions to cover certain professional disciplinary actions by a federal court or agency, Ducloux said. New Rules of Disciplinary Procedure 3.01, 3.02, and 3.03 were added as part of Ballot Item G, which deals with the assignment of judges in disciplinary complaints and related provisions, he said. Finally, Ballot Item H “authorizes a lawyer to voluntarily designate a custodian attorney to assist with the designating attorney’s cessation of practice and provides limited liability protection for the custodian attorney,” Ducloux said.
Implicit Bias: Views From the Bench
Judge Tonya Parker, of the 116th Civil District Court in Dallas, recalled the murder of George Floyd, saying people seeing incidents recorded on cellphones has made them curious about why certain people are disproportionately harmed in different arenas of our civil systems. “When we look at the data that comes back and tells us again and again and again that poor people are not getting access to health care and getting the same treatment in health care that other people are getting, that Black and brown people are disproportionately suffering from being victims of excessive force … it caused us to start the discussion about these issues in those settings but even in the bar society—certainly in the civil courts—it prompted us to want to look at … how they may manifest in the civil courts.” The panelists gave examples of biases such as assuming a woman working on complex commercial litigation is a paralegal. Parker gave the example of a judge siding with a gray-haired, seasoned lawyer over a younger one by virtue of assumed experience. In that case, it could be a false assumption that the older attorney has more experience as a lawyer because of their age, she said. Bias training should teach people to be more cognizant of these biases and intentional in rooting them out in decision making, Parker said. The panel discussed mandatory implicit bias for judges, with Judge Ravi Sandill, of the 127th District Court in Harris County, recommending four hours every four years, something he’s pitched to the state judiciary. “I feel it’s important because we’re dealing with all types of different people all the time.” Among the most prevalent issues he sees in Houston: economic disparity. “We only hang out with people like us and that is primarily socioeconomic. We don’t understand the trials and tribulations of those [who] are less than, for the most part. Having that awareness is critical,” he said. Judge Maria Salas-Mendoza, of the 120th Judicial District Court in El Paso, offered ways she gets ahead of biases in her courtroom. She said people want a neutral arbitrator and to be treated fairly. In her courtroom, her staff, day-in and day-out, asks people how they want to be treated and then treats them that way, Salas-Mendoza said. If a name is new to her, she’ll ask the person to pronounce it so she can say it as well as she can. If she isn’t sure of a pronoun, she will ask. “We need to continue this talk, not just among judges and lawyers, but really with all the people that we run into to make sure that we’re mindful of being better people,” she said.
TLAP Offers Ways to Help Reach Your Zen
Texas Lawyers’ Assistance Program Director Chris Ritter discussed TLAP’s free mental health services. He said attorneys face high levels of stress and anxiety, depression, burnout, secondary trauma, and substance use issues because they handle everyone else’s stress and many times see clients at their lowest moments in life. Some attorneys use alcohol to relieve stress but oftentimes, usage gets worse over time. TLAP helps people manage stress and anxiety in a healthy way, Ritter said. Here are some suggestions: put limits on technology, don’t check your email or social media when you first wake up but do breathing exercises instead, turn off notifications, don’t charge your phone by your bed, go for a walk, write down what you are grateful for each day, volunteer at a local charity, and download the Calm app for meditation tips. Confidential help is available 24/7 by calling or texting TLAP at 800-343-TLAP (8527). Additional resources are available at tlaphelps.org.
Trial Tips for Child Welfare Attorneys Representing Parents and Children
Travis County 261st Civil District Court Judge Lora Livingston opened the session with a quote from author Barbara Coloroso, who has worked in the juvenile justice consulting arena: “If kids come to us from strong, healthy, functioning families, it makes our job easier. If they do not come to us from strong, healthy, functioning families, it makes our job more important.” Livingston said, “So I want to say to all of you—your job is extremely important.” She then went over the basics, reminding the audience that Child Protective Services cases are family cases and civil cases, meaning the Texas Rules of Civil Procedure apply. “Use those rules to your advantage,” Livingston said. She stressed the importance of prepping witnesses, being prepared, and telling the client’s story. When starting a case, an attorney needs to really know his or her client, which means honing interviewing skills and asking open-ended questions, Livingston said. The lawyer should make sure the client’s voice is heard and think about ACEs—adverse childhood experiences, she said. Then tie those ACEs into the theme and theory of the attorney’s case and help others understand, Livingston said. “I like to say trauma rhymes with drama,” she said. “So if there has been drama, there has been trauma.” Livingston stressed the need to guard against any triggers that could potentially set off a client. She also stressed how important it is at the onset to set expectations and get resources to help the client succeed, such as housing, job placement and addiction recovery. During the middle of the case, Livingston said, an attorney needs to be proactive. “You need to not be on autopilot,” she said. “You need to be out there advocating in front of problems to help your client.” Livingston said an attorney should be mindful of what he or she knows and what he or she can prove and take advantage of data that can help. She said discovery is extremely important, especially pertaining to how an attorney can challenge opposing counsel’s experts. Livingston said an attorney will want to tie expert testimony to the facts and might consider an expert in cultural expectations. “If you haven’t done a good job in the middle, you can forget being successful at the end,” she said. At trial, an attorney needs to show the client as sympathetic because others will try to show that client as pathetic—a very fine line, Livingston said. The notion of challenging removal continues through the trial stage, she said. “If the removal was wrong in the first place, it can’t possibly justify the termination,” Livingston said. “That is something I think we don’t hear enough at trial. Don’t forget who has the burden of proof,” she said. “As an advocate, you have to object ... hold them to their burden of proof.” TBJ