THL_NovDec_2011

lawyerVolume 49 – Number 3 November/December 2011

inside...

Changes in the Litigation Landscape: New Laws from the 2011 General Session

Legal Ethics: Year in Review

The Ethical Challenges Facing In-House Counsel

Will You Be My Friend? Ethical Issues in Social Networking

The Ethical Minefield of E-Discovery

Professionalism and Ethics: More Than Just Words

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Changes in the Litigation Landscape: New Laws from the 2011 General Session By Patrice Pujol and Sharon M. Garner

Legal Ethics: Year in Review By Shayne newell

The Ethical Challenges Facing In-House CounselBy y. nicole MontGoMery

Will You Be My Friend? Ethical Issues in Social Networking By Scott a. Durfee

The Ethical Minefield of E-DiscoveryBy Gary wiener

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november/December 2011 Volume 49 number 3

FeAtURes

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002-6715. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1300 First City Tower, 1001 Fannin, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: [email protected] Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association, 2011. All rights reserved.

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join the houston Bar association’s 100 club The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal

profession and the betterment of the community. The following law firms, corporate legal departments, law schools and government agencies with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA.

firms of 5-24 attorneys Abraham, Watkins, Nichols, Sorrels, Agosto & FriendAdair & Myers PLLC Ahmad, Zavitsanos & Anaipakos, P.C. Ajamie LLP Allen Boone Humphries Robinson LLP Andrews Myers, P.C.Bair Hilty, P.C.Baker Williams Matthiesen LLP The Bale Law Firm, PLLCBarker Lyman, P.C.Barrett Daffin Frappier Turner & Engel, LLP Bateman/Pugh, PLLC Bell, Ryniker & Letourneau, P.C. Berg & Androphy Bingham, Mann & HouseBlank Rome LLPBrewer & Pritchard PC Buck Keenan LLP Burck, Lapidus, Jackson & Chase, P.C. Bush & Ramirez, L.L.C. Butler I Hailey Caddell & Chapman Cage Hill & Niehaus, L.L.P.Campbell & Riggs, P.C.Chernosky Smith Ressling & Smith PLLC Christian Smith & Jewell, L.L.P. Conley Rose P.C. Connelly • Baker • Wotring LLP Cozen O’Connor Crady, Jewett & McCulley, LLP David Black & Associates De Lange Hudspeth McConnell & Tibbets LLP Devlin Naylor & Turbyfill PLLC Diamond McCarthy LLPDinkins Kelly Lenox Lamb & Walker, L.L.P. Dobrowski L.L.P. Dow Golub Remels & Beverly, LLP Doyle Restrepo Harvin & Robbins, L.L.P. Drucker, Rutledge & Smith, L.L.P. Ebanks Horne Rota Moos LLPEdison, McDowell & Hetherington LLP Ellis, Carstarphen, Dougherty & Griggs P.C. Ewing & Jones, PLLCFernelius Alvarez PLLCFibich Hampton Leebron Briggs Josephson, LLP Fisher, Boyd, Brown & Huguenard, LLPFisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins, P.C.Fleming & Associates L.L.P. Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Fullenweider Wilhite PCFunderburk & Funderburk, L.L.P. Galloway Johnson Tompkins Burr & Smith Germer Gertz, L.L.P. Givens & Johnston PLLC Goldstein & Lipski, PLLC Gordon & Rees LLPGreer, Herz & Adams, L.L.P.Hagans Burdine Montgomery & Rustay, P.C.

Harris, Hilburn & Sherer Harrison, Bettis, Staff, McFarland & Weems, L.L.P.Hays McConn Rice & Pickering, P.C. Hicks Thomas LLP Hirsch & Westheimer, P.C. Hogan Lovells US LLP Holm I Bambace LLP Hunton & Williams LLP Jackson Gilmour & Dobbs, PCJackson Lewis LLPJenkins Kamin, L.L.P. Johnson DeLuca Kurisky & Gould, P.C. Johnson Radcliffe Petrov & Bobbitt PLLC Johnson, Trent, West & Taylor, L.L.P.Jones, Walker, Waechter, Piotvent, Carrere & Denegree, L.L.P.Joyce, McFarland + McFarland LLP Kane Russell Coleman & Logan PC Kelly, Sutter & Kendrick, P.C.Kroger | BurrusLeBlanc Bland P.L.L.C.Legge Farrow Kimmitt McGrath & Brown, L.L.P. Linebarger Goggan Blair & Sampson LLP Liskow & Lewis Lorance & Thompson, PC MacIntyre & McCulloch, LLPMcGinnis Lochridge & Kilgore LLP McLeod Alexander Powel & Apffel PC MehaffyWeber PCMiller Scamardi & Carraba Mills Shirley L.L.P. Morris Lendais Hollrah & Snowden Munsch Hardt Kopf & Harr, P.C.Murray | Lobb PLLCMyers DoyleNathan Sommers Jacobs Ogden, Gibson, Broocks, Longoria & Hall, LLP Ogletree, Deakins, Nash, Smoak & Stewart, P.C.Okin Adams & Kilmer LLPOlson & Olson LLPPagel Davis & Hill PC Perdue Brandon Fielder Collins & Mott Perdue Kidd & Vickery Phelps Dunbar LLP Phillips, Akers & Womac, PCPillsbury Winthrop Shaw Pittman LLP Ramey, Chandler, McKinley & Zito Ramsey & Murray PCRoach & Newton, L.L.P. Roberts Markel Weinberg PC Ross, Banks, May, Cron & Cavin, P.C.Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Rymer, Moore, Jackson & Echols, P.C.Schiffer Odom Hicks & Johnson PLLC Schirrmeister Diaz-Arrastia Brem LLPSchwartz, Junell, Greenberg & Oathout, LLP Schwartz, Page & Harding L.L.P. Shannon Martin Finkelstein & Alvarado, P.C.Shepherd, Scott, Clawater & Houston, L.L.P.

Shipley Snell Montgomery LLP Short Carter Morris, LLPSingleton Cooksey LLP Smith Murdaugh Little & Bonham, L.L.P. Smyser Kaplan & Veselka, L.L.P.Sprott, Rigby, Newsom, Robbins & Lunceford, P.C.Steele Sturm P.L.L.C.Stevenson & Murray Strong Pipkin Bissell & Ledyard, L.L.P.Stuart & Associates P.C. Tekell, Book, Allen & Morris, L.L.P.Thompson & Horton LLP Thompson, Coe, Cousins & Irons, LLP Tucker, Taunton, Snyder & Slade, P.C. Ware, Jackson, Lee & Chambers, L.L.P. Watt Beckworth Thompson & Henneman, LLP Weycer Kaplan Pulaski & Zuber, P.C. White Mackillop & Gallant P.C. Williams, Birnberg & Andersen, L.L.P.Williams Kherkher Hart Boundas LLP Williams Morgan & Amerson, P.C. Willingham, Fultz & Cougill, LLP Wilson, Cribbs & Goren, P.C. Wilson, Elser, Moskowitz, Edelman & Dicker Wong, Cabello, Lutsch, Rutherford & Brucculeri, P.C.Wright Abshire, Attorneys, PC Wright & Close, L.L.P.Yetter Coleman LLP Ytterberg Deery Knull LLPZimmerman, Axelrad, Meyer, Stern & Wise, P.C. Zukowski, Bresenhan & Sinex, L.L.P. firms of 25-49 attorneys Adams & Reese LLPAkin Gump Strauss Hauer & Feld LLPBaker & McKenzie LLP Beck Redden & Secrest, L.L.P. Beirne, Maynard & Parsons, L.L.P.Chamberlain Hrdlicka White Williams & Aughtry Coats I RoseCokinos Bosien & YoungGibbs & Bruns LLP Hoover Slovacek LLPJones Day Littler Mendelson, PCSeyfarth Shaw LLP firms of 50-100 attorneys Baker Hostetler LLP Gardere Wynne Sewell LLP Jackson Walker L.L.P. Martin, Disiere, Jefferson & Wisdom, L.L.P.Morgan, Lewis & Bockius LLP Porter Hedges LLP Thompson & Knight LLP Winstead PC

firms of 100+ attorneys Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski L.L.P. Haynes and Boone LLP Locke Lord LLPVinson & Elkins LLP

corporate legal Departments Anadarko Petroleum Corporation AT&T Texas BP CenterPoint Energy El Paso Corporation Kellogg Brown & Root Inc LyondellBasell MAXXAM IncNewfield Exploration CompanyPetrobras America Inc. Plains Exploration & Production Co. Pride International Inc. Rice University Sysco Corporation Texas Children’s Hospital Total E&P USA Inc. University of Houston System

law School faculty South Texas College of Law Thurgood Marshall School of Law University of Houston Law Center

Government agencies City of Houston Legal Department Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations OfficeMetropolitan Transit Authority of Harris County TexasPort of Houston Authority of Harris County Texas

39President’s MessageA Legacy of Professionalism By DeniSe ScofielD

from the editorProfessionalism 101By taMara Stiner tooMer

Placement Service

a Profile in Professionalism Daniella landers Partner, Sutherland Asbill & Brennan LLP

committee SpotlightThe Professionalism Committee By julie Barry

off the recordJim Berry: Using Golf to Model Core Values By julie Barry

Media reviewsDavid & Lee Roy: A Vietnam Story reviewed by Polly GrahaM

The ABA Spanish Legal Phrasebook reviewed by julie Barry

legal trendsExtreme Appellate Savings: Four Tips for Making Every Dollar Count on Appeal By chriStina crozier litigation MarketPlace

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The Houston Bar Association and the Houston Bar Foundation would like to thank all those who underwrote the 62nd Harvest Party. The generosity of our un-derwriters directly improves the lives of people in our community who could not otherwise afford or obtain access to justice.

$25,000Andrews Kurth LLPBaker Botts L.L.P.Bracewell & Giuliani LLPFulbright & Jaworski L.L.P.Locke Lord LLPVinson & Elkins LLPWilliams, Kherkher, Hart & Boundas, LLP

$10,000Akin Gump Strauss Hauer & Feld LLPBeirne, Maynard & Parsons, LLPJones DayKing & Spalding LLPMorgan, Lewis & Bockius LLPShell Oil Company

$7,500Beck, Redden & Secrest, L.L.P.Exxon Mobil Corporation

$5,000AmegyBaker Hostetler LLPBP America Inc.Burleson LLPCaddell & ChapmanConocoPhillips CompanyDe la Rosa & ChaumetteDLA PiperENSCOFibich Hampton Leebron Briggs Josephson, LLPGardere Wynne Sewell LLPGibbs & Bruns LLPHaynes and Boone, L.L.P.Hewlett Packard CompanyHBA Litigation SectionLyondellBasell IndustriesNavigant ConsultingSchirrmeister Diaz-Arrastia Brem LLPSusman Godfrey L.L.P.Sutherland Asbill & Brennan LLPThompson & Knight LLPWeil, Gotshal & Manges LLPWinstead PCWinston & Strawn LLP

$4,000HBA Family Law Section

$2,500Abraham, Watkins, Nichols, Sorrels, Agosto & FriendAjamie LLPAnadarko Petroleum CorporationArnold & Knobloch, LLPBHP Billiton LegalBlank Rome LLP

CenterPoint Energy, Inc.Chamberlain, Hrdlicka, White, Williams & AughtryChristian, Smith & Jewell, LLPCitgo PetroleumCoats | RoseCokinos, Bosien & Young, P.C.Connelly•Baker•Wotring LLPDewey & LeBoeuf LLPEnergy Transfer Partners L.P.Energy XXIEOG Resources, Inc.Fisher, Boyd, Brown & Huguenard, LLPFTI Consulting, Inc.Greenberg Traurig LLPHogan Lovells US LLPInsperity, Inc.Latham & Watkins LLPLegge, Farrow, Kimmitt, McGrath & Brown L.L.P.Martin, Disiere, Jefferson & Wisdom, L.L.P.McGuire Woods LLPNoble Energy, Inc.Pillsbury Winthrop Shaw Pittman LLPPlains All American Pipeline, L.P.Plains Exploration & Production CompanyRosetta Resources Inc.Rusty Hardin & Associates, P.C.Schwartz Junell Greenberg & Oathout, LLPSedgwick LLPSirius SolutionsSkadden, Arps, Slate, Meagher & Flom LLPStoneTurn GroupStrasburger & Price, LLPTekell, Book, Allen & Morris, L.L.P.The Lanier Law Firm

$2,000HBA Federal Practice Section

$1,500Benny Agosto, Jr.HBA Juvenile Law Section

$1,0003B Studio, Inc.Ahmad, Zavitsanos & Anaipakos, P.C.Alistair DawsonAllen Boone Humphries Robinson LLPBank of Texas, N.A.Berg & AndrophyBMC Software, Inc.Brent BenoitCampbell Harrison & Dagley L.L.P.Daniel HerinkDenise ScofieldDobrowski L.L.P.Donovan & WatkinsDuane Morris LLPEbanks Horne Rota Moos LLPEpstein Becker & Green, P.C.Frank, Elmore, Lievens Chesney & Turet, L.L.P.Fullenweider Wilhite PCGermer Gertz, L.L.P.Godwin Ronquillo PCGordon Arata McCollam Duplantis & Eagan, LLC

Hagans Burdine Montgomery Rustay, P.C.Hasley Scarano, L.L.P.HBA ADR SectionHBA Appellate Law SectionHBA Construction Law SectionHBA Corporate Counsel SectionHBA International Law SectionHBA Labor & Employment Law SectionHBA Oil, Gas & Mineral Law SectionHBA Real Estate Law SectionHicks Thomas LLPHirsch & Westheimer, P.C.Hughes Watters Askanase LLPJackson Walker L.L.P.Jenkins & Kamin, L.L.P.Jim Adler & Associates, P.C.Johnson, Trent, West & Taylor, L.L.P.JPMorgan ChaseKroll OntrackLighthouse Legal CopyLinebarger Goggan Blair & Sampson LLPLiskow & Lewis, A PLCLooper Reed & McGraw, P.C.Lumen LegalM.A. Mills P.C.MacIntyre & McCulloch, LLPMehaffyWeber, P.C.MetroNationalMichael PerrinMunsch Hardt Kopf & Harr, P.C.Nathan Sommers JacobsNovak Druce + Quigg LLPOgden, Gibson, Broocks, Longoria & Hall, LLPOlson & Olson, LLPPorter Hedges LLPProvidusReynolds, Frizzell, Black, Doyle, Allen & Oldham LLPRoach & Newton, LLPRoyston, Rayzor, Vickery & Williams, L.L.P.Schiffer Odom Hicks & Johnson PLLCShannon, Martin, Finkelstein & Alvarado, P.C.Shepherd, Scott, Clawater & Houston, L.L.P.Short Carter MorrisSiegmyer, Oshman & Bissinger, LLPSmyser Kaplan & Veselka, L.L.P.South Texas College of LawSprott, Rigby, Newsom, Robbins & Lunceford, P.C.Strong Pipkin Bissell & Ledyard, L.L.P.SyscoThomas M. RocheTotal Petrochemicals USA, Inc.UBS Wealth Management/Mark Elias & Dan CarterWare, Jackson, Lee & Chambers, L.L.P.Welsh & Chapoton LLPWestlake Chemical CorporationWilson, Elser, Moskowitz, Edelman & Dicker LLPWright & Close, LLPYetter Coleman LLPZimmerman, Axelrad, Meyer, Stern & Wise, P.C.

$500HBA Health Law SectionMark Kelly

2011 Harvest Party Underwriters

In each issue, The Houston Lawyer in-cludes a “Profile in Professionalism,” an article in which a selected member of Houston’s bench or bar contemplates what professionalism means to him or her. One of the most meaningful privi-

leges of serving as HBA president is the opportunity to select those six lawyers and judges who will be the featured authors of the professional-ism profiles in a given bar year. I spent quite a bit of time thinking about who to choose this year; I wanted to be sure to select persons who repre-sent various practices and backgrounds and who share the same fundamental com-mitment to profes-sional excellence, service, and integ-rity. For inspiration, I thumbed through issues of The Houston Lawyer dating back years to see who has been profiled in the past. I read the pieces authored by John Eddie Williams, Judge David Hittner, Jim Sales, Joe Jamail, Ileana Blanco, Randy Sorrels, Judge Frank Rynd, Tracie Renfroe, Kelly Frels and others – a veritable who’s who of Houston’s finest lawyers and judges. I thought about who I have practiced with, against, and in front of, and I realized that narrowing the list to six would be very hard.

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By Denise scofielDMorgan, lewis & Bockius llP

We are fortunate to practice in a legal community in which it is difficult to pick from whom you would like to hear about the meaning of professionalism. Not only is Houston home to many of the most skilled lawyers in the country, but, by and

large, we also enjoy a high degree of col-legiality and respect among our peers and colleagues, even in the most hotly con-tested disputes. Col-legiality and respect for one another are among the hallmarks of professionalism. A few years ago, my firm hosted a couple of litigators from a large national firm out of Chicago as we prepared jointly for trial on behalf of co-defendants. On many occasions, our guests marveled at the professional

courtesies shown them both by lawyers within my firm and those lawyers from other Houston firms who represented other parties in the litigation. They re-marked that we all seem to know, or at least know of, each other and how dif-ferent that was from their experience back home.

In fact, while our bar association is comprised of over 11,000 members, it feels much smaller to me. I know that participating in the social and professional

activities offered by the HBA and other local bar associations fosters that sense of smallness – of community, collegiality, and respect. Nowhere is that more ap-parent than at the Harvest Party each fall. Demonstrating the true spirit of profes-sionalism, nearly 1,100 of our members and guests came together again this year to raise funds to provide access to justice to indigent Houstonians. Over the course of the year, the HBA offers many other opportunities for our members to come together, including continuing education programs, legal clinics, the bench-bar conference, mentor-protégé events, and the annual dinner, to name just a few. By spending time together and building re-lationships with one another, we help to ensure that the legacy of professionalism that exists within our community will continue.

As I was surveying the previous profes-sionalism profiles for inspiration about who to select this year, I was particularly struck by the article authored by Texas Supreme Court Justice Eva Guzman back when she served on the Fourteenth Court of Appeals in 2005. Justice Guz-man wrote, “Our commitment to profes-sionalism must be the driving force in our day to day activities, and must encompass not only a strict adherence to professional responsibility standards, but also an un-wavering devotion to civility, honesty, integrity, fairness and public service.” I know you will agree that the lawyers and judges who have been selected to write about professionalism this bar year exem-plify those qualities identified by Justice Guzman.

A Legacy of Professionalism

“We are fortunate to practice

in a legal community in

which it is difficult to pick

from whom you would like

to hear about the meaning

of professionalism. Not only

is Houston home to many

of the most skilled lawyers

in the country, but, by and

large, we also enjoy a high

degree of collegiality and

respect among our peers

and colleagues, even

in the most hotly contested

disputes.”


10 Waysthe HBA serves you.

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thehoustonlawyer.com november/December 2011 7

What exactly is professionalism? Many articles have been written and speeches given on this topic, but do we really understand what it means to carry out our duties as attorneys in a professional manner? There are

the ABA Model Rules of Professional Conduct and the Texas Disciplinary Rules of Professional Conduct to use as our guide; and, of course, our gut will usually give us a sense of what is right and wrong. Still, it is not al-ways clear what to do when faced with situations that are considered “grey” areas. Because professionalism can at times be murky, I thought I’d share a tip that I recently received and have found quite helpful.

We have all been there. You’re at a hearing and the judge asks you a question, but the law isn’t exactly on your side. A senior partner asks you to conduct research on some ambiguous topic that you don’t understand, but you want to maintain the appearance that you’re on top of things. Opposing counsel is not the most (let’s say) courteous person, but you must figure out a way to work with him to keep the relationship from deteriorating to best serve your client. I’m sure you could come up with your own list of scenarios where you’re not sure what to do and whether your course of action will be compatible with the values and ideals of the legal profession.

So what do you do in such situations? Do you argue your position to the court and completely ignore any un-favorable law? Do you lick the end of your finger and hold it up in the air hoping that the direction of the wind will determine the answer you come up with to the se-nior partner’s obscure research question? Do you match with equal force opposing counsel’s “sunny disposition” in hopes that seeing himself in the proverbial mirror will deter such future bad behavior? Of course not. I think we can all agree that such courses of action would not adhere to any rule of professional conduct. But then what does?

The simple answer: Pancake Bunny, a/k/a Oolong.Sending a picture of Pancake Bunny is your solution

in any situation where it is not so clear what direction to take to stay on the road of professionalism. What better

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By TaMara sTiner TooMerMcGuireWoods llP

aSSociateeDitorS

Julie BarryAttorney at Law

Keri BrownBaker Botts L.L.P.

Angela L. DixonAttorney at Law

way to signal the judge that you have terrible law against you, but that she should grant your mo-tion anyway? How else can you respectfully tell the senior

partner that you have no idea what he is asking for and frankly neither does he? Is there really any other diplo-matic way to deal with a rambunctious adversary who is one condescending comment away from getting his hat handed to him?

In conclusion, when in doubt, Pancake Bunny will help you navigate the murky waters of professionalism. Always keep a copy of Pancake Bunny nearby because you never know when a questionable situation may arise.

I hope this column has provided you with some valu-able guidance. For different perspectives (and possibly a more accurate discussion) on certain aspects of profes-sionalism, check out the articles written by Nicole Mont-gomery, Scott Durfee, and Gary Wiener. While not the quick and dirty answer to questions of professionalism as Pancake Bunny, these articles analyze ethical issues that confront attorneys in various areas of the practice of law. Also in this issue of THL are great year-in-review articles by Patrice Pujol, Sharon Garner, and Shayne Newell summarizing new laws passed by the Texas Leg-islature and recounting ethical issues that arose in 2011. Last, but certainly not least, are THL’s recurring columns that highlight dynamic HBA members and committees, trends in the law, and different forms of media that we think might interest our readers.

This is all I have for now. I hope you enjoy reading this issue. Until next time...

Editor’s Note: Special thanks to Katherine S. who introduced me to the con-cept of Pancake Bunny and added much needed levity to long working sessions. For more information on Oolong, visit http://en.wikipedia.org/wiki/Oolong_(rabbit) or Google “Pancake Bunny.”

Professionalism 101

Don Rogers Harris County District Attorney’s Office

Robert W. Painter Painter Law Firm PLLC


BOARD OF DIRECTORS

DIRECTORS (2010-2012) Benny Agosto, Jr. Todd M. Frankfort Warren W. Harris John Spiller

DIRECTORS (2011-2013) Hon. David O. Fraga Jennifer Hasley Neil D. Kelly Daniella D. Landers

EDITORIAl STAFFeditor in chief

Tamara Stiner Toomer

associate editors

Julie Barry Keri D. Brown Angela L. Dixon Robert W. Painter Don Rogers

editorial Board

Sharon D. Cammack Don D. Ford III Sammy Ford IV Polly Graham John S. Gray Al Harrison Farrah Martinez Judy L. Ney Edward J. (Nick) Nicholas Caroline C. Pace Benjamin K. Sanchez Joy E. Sanders Hannah Sibiski Gary A. Wiener N. Jill Yaziji

Managing editor

Tara Shockley

HBA OFFICE STAFF

ADvERTISIng SAlESDESIgn & pRODuCTIOn

QuantuM/Sur12818 Willow Centre, Ste. B, Houston, TX 77066

281.955.2449 • www.quantumsur.com

PublisherLeonel E. Mejía

Production ManagerMarta M. Mejía

advertisingMary Chavoustie

executive DirectorKay Sim

administrative assistantAshley G. Steininger

administrative assistantBonnie Simmons

receptionist/resource SecretaryLucia Valdez

Director of educationLucy Fisher

continuing legal education assistantAmelia Burt

community education assistantNatasha Williams

Membership and technology Services Director Ronald Riojas

Membership assistant Ariana Ochoa

committees & events Director Claire Nelson

committees & events assistant Brian Edwards

communications DirectorTara Shockley

communications/ web DesignerBrooke Eshleman

PresidentDenise Scofield

President-electBrent Benoit

first Vice PresidentLaura Gibson

Second Vice PresidentM. Carter Crow

Secretary Alistair B. Dawson

treasurer David A. Chaumette Past PresidentT. Mark Kelly


chanGeS in the litiGation lanDScaPe:

New Laws from the

2011 General Session

thehoustonlawyer.com March/april 2011 11

that may “materially advance the ul-timate termination of the litigation.”16 Essentially, the new statute removes the previous requirement that all par-ties agree to such an appeal.17

Moreover, although the appeal does not stay the underlying proceedings, the trial court can stay those pro-ceedings or the parties can agree to a stay.18 No later than 15 days after the trial court signs the order that will be the subject of the appeal, the appeal-ing party should file its application for interlocutory appeal that explains why the appeal is warranted.19 The rules ap-plying to accelerated appeals will gov-ern this appeal.20 Additionally, the Tex-as Supreme Court has proposed new Texas Rule of Appellate Procedure 28.3 to clarify the specific requirements of this appeal.21 The date on which the ap-pellate court enters the order accepting the appeal starts the time applicable to filing the notice of appeal.22

• Allocation of Litigation CostsHB 274 amends the manner in which a party may make an “offer of settle-ment” under Chapter 42 of the Civil Practice and Remedies Code.23 Under the previous law, a defendant could re-cover only court costs, reasonable fees for two expert witnesses and reason-able attorney fees.24 In addition, the amount of recovered litigation costs was determined using a complicated formula that depended on the amount of damages awarded to the plaintiff.25 But under the new statute—and the Texas Supreme Court’s proposed amendments to Texas Rule of Civil Procedure 167—the amount of recov-erable litigation costs now includes reasonable deposition costs.26 In ad-dition, a formula is no longer used.27 Now, the awarded litigation costs may not exceed “the total amount that the claimant recovers or would recover before adding an award of litigation costs... in favor of the claimant or subtracting as an offset an award of litigation costs... in favor of the defen-

ing meetings leading up to the dead-line.8

Additionally, the new statute re-quires a trial court to award attorneys’ fees and costs to any party, plaintiff or defendant, who prevails on such a mo-tion to dismiss.9 This requirement—a remnant of the “loser pays” concept contained in the initial version of HB 274—will not apply to cases brought by or against the state, governmental entities, or public officials.10 Regard-less, because an award of attorneys’ fees is otherwise available to the suc-cessful party, proponents believe this provision will help deter groundless lawsuits and inappropriate motions to dismiss.11

• Expedited Civil ActionsIn another rule-making initiative, Ar-ticle 2 of HB 274 requires the Texas Supreme Court to “adopt rules to pro-mote the prompt, efficient, and cost-effective resolution of civil actions” in which the total costs, “whether actual or exemplary, a penalty, attorney’s fees, expenses, costs, interest, or any other type of damage of any kind, does not exceed $100,000.”12 The new rules must not conflict with the provisions of the Medical Liability Act, the Fam-ily Code, the Property Code, or the Tax Code.13

The Texas Supreme Court has ap-pointed a task force to advise the Court regarding these rules. The task force’s recommendations, which should be made to the Court by February 1, 2012,14 should “address the need for lowering discovery costs in these ac-tions and the procedure for ensuring that these actions will be expedited in the civil justice system.15

• Interlocutory Appeal of Controlling Question of Law Article 3 of HB 274 permits a trial court or the parties to immediately appeal a written order on a controlling question of law “on which there is a substantial ground for difference of opinion” or

This year’s Texas legislative ses-sions brought about many changes to the litigation land-scape. Key among these are tort reform and the resulting changes

in the rules of civil and appellate procedure, new protocols for certain areas of criminal law, and the streamlining of procedures in the handling of a decedent’s estate. All of these changes are discussed below.

TEXAS TORT REFORM – HOUSE BILL 274Perhaps the most discussed bill—both during its various mutations in the leg-islative process and after its passage into law—is House Bill 274 (“HB 274”), the Legislature’s latest effort at tort reform.1 HB 274 originally included sweeping “loser pays” fee-shifting provisions that eventually failed to attract sufficient sup-port.2 As passed, HB 274 contains five subparts, four of which create new av-enues of dismissal, expedited actions, appeal, and cost-shifting. The fifth sub-part modifies the practice of designating responsible third parties. All of these new provisions became effective on Septem-ber 1, 2011.3

• Early Dismissal of ActionsArticle 1 of HB 274 requires the Texas Supreme Court to “adopt rules to pro-vide for the dismissal of causes of ac-tion that have no basis in law or fact on motion and without evidence.”4 The new rules are expected to allow a trial court to scrutinize a plaintiff’s claims at the outset of litigation—in a procedure similar to a Federal Rule 12(b)(6) mo-tion to dismiss—rather than during or after significant discovery.5 However, these motions will not be permitted in cases under the Family Code.6

At present, the Texas Supreme Court Advisory Committee is working on the proposed rules.7 The deadline for re-leasing the proposed rules is March 1, 2012, but the committee is expected to discuss and refine these proposals dur-

By Patrice Pujol and Sharon M. Garner


for youth, families, and communities.36

Another effort at reform, House Bill 215, amends the Code of Criminal Pro-cedure by adding Article 38.20, which mandates the Bill Blackwood Law En-forcement Management Institute of Texas (“Institute”) to develop and disseminate a model policy and training materials on the proper way to conduct a photographic or live lineup.37 This legislation is aimed at reducing the number of erroneous identifications, an issue that has garnered nationwide attention and that the United States Supreme Court is addressing in its November 2011 term.38 The legislation also mandates law enforcement to adopt techniques that are proven to reduce false identifications.39 The Institute is required to develop these new protocols by Decem-ber 31, 2011, and law enforcement should implement them by September 1, 2012.40

Other noteworthy developments in the area of criminal law include:

• House Bill 417 on Compensating the Wrongfully Convicted – This legislation broadens and clarifies the

dant.”28 Finally, an offer of settlement made pursuant to section 42.003 need not be filed with the court.29

• Designation of Responsible Third PartiesThe last substantive change brought by HB 274 repeals section 33.004(e) of the Civil Practice and Remedies Code.30 This former statute allowed plaintiffs to join designated responsible third parties (“RTPs”) as new defendants regardless of the applicable statute of limitations.31 Under the new statute, a defendant may not designate a person as an RTP after the statute of limitations expires if the defendant failed to comply with an ob-ligation, if any, to timely disclose that the person may be designated as an RTP under the Texas Rules of Civil Pro-cedure.32 In other words, if the defen-dant is under an obligation to disclose the RTP to the plaintiff—for instance, in its answers to requests for disclo-sure—then the defendant must move to designate that RTP before the statute of

limitations expires. Otherwise, if there is no obligation, then a defendant may designate an RTP any time before the deadline under section 33.004(a) (at least 60 days before trial).33

NEW CRIMINAL LEGISLATIONSeveral important efforts at streamlining and reforming areas of criminal law and practice also emerged from the 2011 leg-islative session. First, legislators approved the merger of the Texas Youth Commis-sion (“TYC”) and the Texas Juvenile Probation Commission into a new state agency, the Texas Juvenile Justice Depart-ment.34 Under Senate Bill 653, lawmakers expanded community-based programs as an alternative to large, state-run facilities for youth offenders.35 The new agency will have a 13-member board appointed by the Governor and is intended to establish a unified state juvenile justice agency that works in partnership with local county government, the courts, and communi-ties to promote public safety and to create a system that produces positive outcomes


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tions of the Probate Code:• Amended Section 59 now al-

lows combining the execution of the will and the self-proving affi-davit so that the testator and wit-nesses sign only once.47 Section 59 also provides the specific language to include in the will to accom-plish the one-signature method.48

• Amended Section 128A now pro-vides a simplified method for provid-ing notices to beneficiaries. Whereas personal representatives of the testate decedent were previously required to send notices via certified mail to all of the beneficiaries named in the will, notices now are unnecessary as to (1) a beneficiary who is receiving proper-ty valued at $2,000 or less or who has received all gifts to which he or she is entitled within 60 days of the order admitting the will to probate, or (2) a person whose interest arises on the occurrence of a contingency that has not occurred.49 In addition, notices

criteria for seeking compensation for wrongful imprisonment, including requiring the Texas Department of Criminal Justice to provide specific in-formation to the potential claimant.41 Because the procedure allows the wrongfully convicted person to seek compensation without the assistance of a third party, the new legislation also prohibits someone, including an attorney, from charging or collecting a fee for seeking the compensation on another’s behalf unless the fee is based on a reasonable hourly rate.42

• House Bill 1199 on New DWI Pen-alties – This legislation increases the punishment for a driving while intoxicated (“DWI”) offense that leaves a person in a persistent vegeta-tive state (as opposed to an offense that causes serious bodily injury).43 Under the new law, a DWI offense that leaves a person in a persistent vegetative state is a second-degree felony punishable by up to 20 years

in prison.44 Additionally, a DWI de-fendant whose blood-alcohol level is 0.15 percent or higher now faces up to one year of jail time if convicted; the previous punishment was a maxi-mum jail term of up to 180 days.45

• House Bill 1573 on DNA Testing – This legislation amends Article 64.01 of the Code of Criminal Procedure by permitting a convicted person to file a verified motion for forensic DNA testing of biological materials that were not tested previously by the state, or that were tested previously but can be subjected to testing with newer testing techniques that may yield more accurate and probative results.46

NEW ESTATE PLANNING & PROBATE LEGISLATIONSenate Bill 1198 provides broad changes to the law relating to a decedent’s estate. Some of the more significant changes in-clude amendments to the following sec-


need not include a copy of the will and the order admitting it to probate. Instead, the notices may contain only a summary of the testamentary gifts to the beneficiary, as well as cer-tain probate docket information.50

• New Section 145A allows the ben-eficiaries of an estate to give the inde-pendent administrator the authority to sell the real property of the estate by signing a consent form before the administrator is appointed.51 Signing the consent before the appointment ensures that the power of sale will be included in the appoint-ing order.52 This consent may be given in cases where there is no will or where the will is silent on this power.53

• Amended Sec-tion 250 now permits inven-tories to be kept private under certain circumstances.54 Specifically, if at the time the inven-tory is due, there are no unpaid debts, except for secured debts, taxes and administration expenses, then inde-pendent executors and independent administrators may file an affidavit in lieu of the inventory, thereby keeping the inventory private and disclosed only to estate beneficiaries.55

OTHER LEGISLATIVE INITIATIVESNew legislation also revamped certain areas of property law and family law. In the area of eminent domain, Senate Bill 18 amends Chapter 2206 of the Government Code to prohibit a government agency or private entity from taking private property through the use of eminent domain if the taking is not for a public use.56 Carved out of this prohibition, however, is the taking of private property for certain projects

and purposes, including the operations of a common carrier pipeline.57 Senate Bill 18 also enacts new limitations on ease-ments and sets forth the new procedures required to initiate eminent domain pro-ceedings.58

Senate Bill 1353 expands the scope of professionals now protected from claims under the Texas Deceptive Trades Practic-es Act to include real estate brokers and salespeople.59 This is an expansion of the same protection granted to other profes-sionals in 1995 that failed to include real-tors.60 However, this new legislation does

not protect realtors from claims based on (1) an express mis-representation of a material fact or un-conscionable action or course of action that cannot be char-acterized as advice, judgment, or opin-ion; or (2) a failure to disclose information that violates section 17.46(b)(24) of the DTPA.61

In the area of fam-ily law, new legislation now permits a purported father to challenge an alleged mistaken paternity. Under Senate Bill 785, a man who has either signed an acknowl-edgement of paternity or is adjudicated to be the father of a child without obtain-ing genetic testing may petition a court to have the parent-child relationship termi-nated.62 If, however, a man is the child’s adoptive father, he is the intended father under a court-approved gestational agree-ment, or the child was conceived by as-sisted reproduction that was consented to by the man, then he is precluded from challenging paternity.63

In addition, House Bill 3833 amends the Family Code to create the Uniform Col-laborative Family Law Act (“CFLA”).64 The collaborative law process is a type of alternative dispute resolution that en-ables couples to collaboratively dissolve their marriage through a settlement-type

procedure that best meets the needs of the parties, including their children.65 Essen-tially, the CLFA clarifies and conforms the collaborative process into uniform proto-cols and procedures.66

Sharon Garner is a litigation attorney in the Houston office of Forman Perry Watkins Krutz & Tardy, LLP. She repre-sents clients throughout the United States specializing in toxic tort litigation.

Patrice Pujol is a litigation and appellate attorney in the Houston office of Forman Perry Watkins Krutz & Tardy, LLP. She serves as secretary of the Stonewall Law Association of Greater Houston, and is a former editor in chief of The Houston Lawyer.

endnotes1. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274.2. Mike Ward, Unexpected Deal Reached on

“Loser Pays” Lawsuit Legislation, AUSTIN AM. STATESMAN, May 21, 2011, at http://www.statesman.com/news/texas-politics/unexpected-deal-reached-on-loser-pays-lawsuit-legislation-1490178.html.

3. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274, §§ 6.01, 6.02.

4. Id. at § 1.01; see TEX. GOV’T CODE § 22.004(g) (Vernon Supp. 2011).

5. House Research Org., Bill Analysis, Tex. H.B. 274, 82nd Leg., R.S. (2011) at 3-5, at http://www.hro.house.state.tx.us/pdf/ba82r/hb0274.pdf#navpanes=0; Tr. of Meeting of Sup. Ct. Advisory Comm. at 21467:8-12 (May 13, 2011), at http://www.supreme.courts.state.tx.us/rules/scac/2011/051311-trans.pdf.

6. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274, § 1.01; see TEX. GOV’T CODE § 22.004(g) (Vernon Supp. 2011).

7. Telephone interview with Marisa Secco, Texas Supreme Court Rules Attorney (Oct. 17, 2011).

8. Id.9. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274, §

1.02; see TEX. CIV. PRAC. & REM. CODE § 30.021 (Vernon Supp. 2011).

10. Id.11. House Research Organization, Bill Analysis, Tex.

H.B. 274, 82nd Leg., R.S. (2011) at 5, at http://www.hro.house.state.tx.us/pdf/ba82r/hb0274.pdf#navpanes=0.

12. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274, § 2.01; see TEX. GOV’T CODE § 22.004(h) (Vernon Supp. 2011).

13. Id.14. Id.15. Am. Appointment of Task Force for Rules in

Expedited Actions, Misc. Docket No. 11-9201 (Oct. 5, 2011), at ¶ 2.

16. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274, § 3.01; see TEX. CIV. PRAC. & REM. CODE § 51.014(d) (Vernon Supp. 2011).

17. Id.18. TEX. CIV. PRAC. & REM. CODE § 51.014(e)

(Vernon Supp. 2011).19. Id. at § 51.014(f).20. Id.21. Am. Order Adopting R. 168 of the Tex. R. of Civ.

P. & Amendments to R. 28 of the Tex. R. App. P.,

“Senate Bill 1353

expands the scope

of professionals now

protected from claims

under the Texas

Deceptive Trades

Practices Act to

include real estate

brokers and

salespeople.”


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Misc. Docket No. 11-9183 (Sept. 9, 2011).22. TEX. CIV. PRAC. & REM. CODE § 51.014(f)

(Vernon Supp. 2011).23. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274, §§

4.01-4.04; see TEX. CIV. PRAC. & REM. CODE §§ 42.001 (5), (6), 42.002(b), (d), (e), 42.003(b), 42.004(d) (Vernon Supp. 2011).

24. TEX. CIV. PRAC. & REM. CODE § 42.001(5) (Vernon Supp. 2011).

25. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274, § 4.04.

26. Id. at § 4.01; see TEX. CIV. PRAC. & REM. CODE § 42.001(5) (Vernon Supp. 2011). See also Order Adopting Am. Tex. R. Civ. P. 167, Misc. Docket No. 11-9175 (Aug. 31, 2011).

27. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274, § 4.04.

28. TEX. CIV. PRAC. & REM. CODE § 42.004(d) (Vernon Supp. 2011).

29. Id. at § 42.003(b).30. Act of May 25, 2011, 82nd Leg., R.S., H.B. 274, §

5.02.31. Id. at § 5.01; see TEX. CIV. PRAC. & REM. CODE §

33.004(d) (Vernon Supp. 2011).32. TEX. CIV. PRAC. & REM. CODE § 33.004(d)

(Vernon Supp. 2011).33. Id.34. Act of May 5, 2011, 82nd Leg., R.S., S.B. 653, §

201.002.35. Senate Comm. on Gov’t Organization, Bill Analysis,

Tex. S.B. 653, 82nd Leg., R.S. (2011) at 1, at http://www.legis.state.tx.us/tlodocs/82R/analysis/pdf/SB00653F.pdf#navpanes=0.

36. Id.37. Act of May 18, 2011, 82nd Leg., R.S., H.B. 215, § 1.38. Erica Goode and John Schwartz, Police Lineups

Start to Face Fact: Eyes Can Lie, N.Y. TIMES, Aug. 28, 2011, at http://www.nytimes.com/2011/08/29/us/29witness.html?ref=us; Adam Liptak, 34 Years Later, Supreme Court Will Revisit Eyewitness IDs, N.Y. TIMES, at http://www.nytimes.com/2011/08/23/us/23bar.html?ref=memory. The U.S. Supreme Court case is No. 10-8974, Perry v. New Hampshire; for more information, go to the Supreme Court’s website at www.supremecourt.gov.

39. House Research Organization, Bill Analysis, Tex. H.B. 215, 82nd Leg., R.S. (2011) at 1-2, at http://www.hro.house.state.tx.us/pdf/ba82r/hb0215.pdf#navpanes=0.

40. Act of May 18, 2011, 82nd Leg., R.S., H.B. 215, § 2(a), (b).

41. Act of May 21, 2011, 82nd Leg., R.S., H.B. 417, §§ 2, 3, 8; see TEX. CIV. PRAC. & REM. CODE §§ 103.001, 103.002 (Vernon Supp. 2011); Tex. Gov’t Code § 501.091(a) (Vernon Supp. 2011).

42. Act of May 21, 2011, 82nd Leg., R.S., H.B. 417, §§ 5, 7; see TEX. CIV. PRAC. & REM. CODE §§ 103.051, 103.101 (Vernon Supp. 2011).

43. Act of May 27, 2011, 82nd Leg., R.S., H.B. 1199, § 2. This legislation is known as the Abdallah Khader Act, named for a two-year-old Fort Worth boy who, in February 2009, was crushed in his baby seat after his parents’ car was rear-ended by a seven-time-convicted drunk driver. See Jim Douglas, Abdallah case highlights battle for tougher DWI laws, at http://www.wfaa.com/news/crime/Abdallah-case-highlight-battle-for-tougher-DWI-laws-91962694.html. See Tex. Penal Code § 49.04(d) (Vernon Supp. 2011).

44. Act of May 27, 2011, 82nd Leg., R.S., H.B. 1199, § 3, see Tex. Penal Code § 49.04(b-4) (Vernon Supp. 2011).

45. Id. at § 2; see Tex. Penal Code § 49.04(d) (Vernon Supp. 2011).

46. Act of May 21, 2011, 82nd Leg., R.S., H.B. 1573, § 5; see Tex. Code Crim. P. art 64.01.

47. Act of May 29, 2011, 82nd Leg., R.S., S.B. 1198, § 1.12; see Tex. Prob. Code § 59 (Vernon Supp. 2011).

48. Act of May 29, 2011, 82nd Leg., R.S., S.B. 1198, § 1.12(a-1); see Tex. Prob. Code § 59(a-1) (Vernon Supp. 2011).

49. Act of May 29, 2011, 82nd Leg., R.S., S.B. 1198, § 1.18; see Tex. Prob. Code § 128A (Vernon Supp. 2011).

50. Id.51. Act of May 29, 2011, 82nd Leg., R.S., S.B. 1198,

§ 1.22; see Tex. Prob. Code §§ 145A, 145B, 145C (Vernon Supp. 2011).

52. Id.53. Id.54. Act of May 29, 2011, 82nd Leg., R.S., S.B. 1198,

§ 1.28; see Tex. Prob. Code § 250 (Vernon Supp. 2011).

55. Id.56. Act of May 6, 2011, 82nd Leg., R.S., S.B. 18, § 2; see

Tex. Gov’t Code § 2206 (Vernon Supp. 2011).57. Id.58. Id.59. Act of May 17, 2011, 82nd Leg., R.S., S.B. 1353, §

1; see Tex. Bus. & Com. Code § 17.49(i) (Vernon Supp. 2011).

60. Senate Comm. on Bus. & Commerce, Bill Analysis, Tex. S.B. 1353, 82nd Leg., R.S. (2011) at 1, at http://www.legis.state.tx.us/tlodocs/82R/analysis/pdf/SB01353F.pdf#navpanes=0.

61. See n.59, supra.62. Act of April 14, 2011, 82nd Leg., R.S., S.B. 785, § 2;

see Tex. Fam. Code § 161.005.63. Id.64. Act of April 14, 2011, 82nd Leg., R.S., H.B. 3833, §

1; see Tex. Fam. Code Title 1-A, Ch. 15.65. Id.; House Comm. on Judiciary & Civ.

Jurisprudence, Bill Analysis, Tex. H.B. 3833, 82nd Leg., R.S. (2011) at 1, at http://www.legis.state.tx.us/tlodocs/82R/analysis/pdf/HB03833H.pdf#navpanes=0.

66. See n.64, supra.


leGal ethicS:

Year in

Review

Each Texas lawyer must swear this oath upon induction into the Texas State Bar. The oath seems clear and concise, but the details of how to ethi-

cally discharge these duties are some-times less obvious. This article provides a brief overview of ethics-related topics that affected Texas lawyers in the past year, including discussion of the defeated amendments to the Texas Disciplinary Rules of Professional Conduct (the “Tex-as Rules”) and an overview of Texas and ABA ethics opinions released in 2011.

Texas Disciplinary Rules of Professional Conduct

As most Texas lawyers are aware, in late 2010, there was rigorous debate sur-rounding some of the proposed amend-ments to the Texas Rules. The details of the proposed amendments are beyond the scope of this article, but the propos-als covered a wide array of topics, includ-ing a proposed amended definition of “confidential information,” a ban on sex-ual relations with clients, removal of the “substantial relationship” test for current client conflicts, and changes to the rules on representation of multiple clients in the same matter.2

In early 2011, the proposed amend-ments were divided into six sections, and each section was put to a vote. On February 17, 2011, the State Bar of Texas announced that Texas lawyers had voted down the proposed amendments. Ap-proximately 38,000 Texas lawyers voted in the referendum, with approximately 80% voting against the proposed chang-es.3 As a result, no changes were made to the existing Texas Rules.

Texas Ethics OpinionsDuring 2011, the Professional Ethics Committee for the State Bar of Texas (the “Committee”) released seven opinions on a variety of topics, some relating to specific circumstances and others with

By Shayne newell

“On my oath I will support the constitutions of the United States and of this state and will honestly demean myself in the practice of law and will discharge my duty to my client to the

best of my ability.” 1

applicable;3. The lawyer provides only the in-

formation that is necessary for the law firm to determine its compli-ance with Texas Rules 1.09 or 1.10, as applicable; and

4. The lawyer does not disclose any client information that would, in the lawyer’s reasonable judgment, create a significant risk of adverse effect on the material interests of the client.15

The opinion states that it is “gener-ally consistent” with ABA Formal Eth-ics Opinion 09-455.16 However, the ABA opinion affords substantially more lee-way in the timing of the disclosure and does not require a legally enforceable agreement between the lawyer and hir-ing law firm.17

The Texas opinion appears to ignore the practical reality of law firm business; namely, that conflicts can readily derail a lawyer’s lateral move and often are show-stoppers that reasonably ought to be addressed before discussions of finan-cial terms make any sense. Indeed, both the transferring lawyer and the law firm probably need to confirm there are no conflicts before engaging in any discus-sions that would thereby create a mate-rial limitations conflict under Texas Rule 1.06(b).

Texas lawyers should take note of this opinion and consider what impact it may have on their current hiring procedures.

3. Opinion 610 – Acquisition of Security Interest in the Subject Matter of Litigation to Secure Lawyer’s Fee With Respect To That Litigation

In August 2011, the Committee con-sidered whether a lawyer may acquire a proprietary interest in the subject matter of litigation that the lawyer is handling in order to secure payment of the lawyer’s fee with respect to the litigation.18

In the circumstances presented to the Committee, the proposed security inter-est was created by the terms of the con-tract between the attorney and the client, which did not meet either of the excep-

gardless of whether the lawyer’s clients intend to “follow” the lawyer to the new firm. Neither the ABA Model Rules nor the Texas Rules contain any explicit dis-cussion of whether and to what extent a lawyer may disclose this client informa-tion to the new firm without violating his or her duty of confidentiality.

ABA Formal Ethics Opinion 09-455 concluded that limited disclosure of cli-ent information to the hiring firm is per-missible, but that such disclosure should not be made until reasonably necessary.11 The ABA opinion noted that what consti-tutes “reasonably necessary” may vary widely depending upon the firm’s inter-nal processes and the seniority level of the lateral lawyer.12

The new Texas opinion imposes ad-ditional restrictions on the disclosure of client information in the lateral hir-ing context. Texas Rule 1.05 generally prohibits a lawyer from disclosing client confidential information other than for the benefit of the client.13 However, when a lawyer moves from one law firm to an-other, a certain amount of disclosure will be necessary to permit both the lawyer and the hiring law firm to comply with the requirements of Texas Rule 1.09 re-garding former client conflicts. Thus, the Committee concluded that “in the circumstances considered, limited dis-closure concerning a lawyer’s clients and prior legal work is necessary to comply with applicable Texas Disciplinary Rules and is therefore permitted by Rule 1.05(c)(4).”14 Such a disclosure should be made, however, only when the following four requirements are met:

1. All other material issues regard-ing the law firm’s employment of the lawyer have been favorably re-solved;

2. The lawyer provides the informa-tion pursuant to a legally enforce-able agreement, preferably in writ-ing, that the law firm will keep the information confidential and use it solely for purposes of making the hiring decision and compliance with Texas Rules 1.09 or 1.10, as

broader application.4 Those opinions are discussed briefly here.

1. Opinion 604 – Communication with Members of a Board of a State AgencyIn January 2011, the Committee ad-dressed the question of whether a law-yer may communicate privately with the members of a board of a state agency about the agency’s consideration of a reg-ulation that would require the lawyer’s client to apply for and obtain a permit and, if the regulation is adopted, about the client’s planned permit application.5

The Committee examined the provi-sions of Texas Rule 3.05 and concluded that it is inapplicable to ex parte commu-nications when the board of a state agen-cy is considering whether to act in a leg-islative capacity (e.g., whether to pass a proposed regulation).6 If the regulation is adopted, however, Texas Rule 3.05 does apply and prohibits a lawyer from com-municating privately with members of the state agency’s board for the purpose of influencing that body’s decision on a client’s permit application.7 Additionally, Texas Rule 8.04(a)(1) prohibits a client or other non-lawyer representative from engaging in such communication.8 This opinion clarifies the Committee’s previ-ous statements on this issue in Opinion 587.9

2. Opinion 607 – Disclosure of Information Regarding Clients in Connection with Lateral HiringIn Opinion No. 607, the Committee ad-dressed the long-standing issue of wheth-er a lawyer may disclose to another law firm information relating to the lawyer’s prior work for clients so that the law firm can determine whether the employment of that lawyer would create conflicts of interest for the firm.10

When a lawyer changes law firms or enters private practice following govern-ment service, the hiring law firm must conduct a conflicts check on the lawyer’s clients to determine if hiring the lawyer would create any conflicts of interest with the firm’s existing clients. This is true re-


tions set out in Texas Rule 1.08(h).19 Be-cause it was created by contract, the se-curity interest was not “a lien granted by law to secure the lawyer’s fees or expens-es.”20 And, while it is permissible to con-tract for a contingent fee, the Committee distinguished between the contingent fee itself and a separate security interest in a litigation matter, which is not an essen-tial part of a contingent fee arrangement under Texas Rule 1.04.21

Thus, the Committee concluded that Texas Rule 1.08(h) prohibits a lawyer from entering into a contingent fee agree-ment for a litigation matter that grants the lawyer a security interest in the cause of action that is the subject of the litiga-tion.22

4. Other OpinionsIn addition, the Committee issued opin-ions relating to whether a law firm may keep its name following the departure of a name partner,23 holding unearned fees in a trust account where the lawyer be-lieves the funds may have been obtained

improperly,24 representation of a client in a child custody dispute by a legal services lawyer where other lawyers in the same organization have duties to adverse par-ties,25 and sharing of office space between a non-lawyer insurance adjuster and a lawyer employed by an insurance com-pany.26

ABA Formal Ethics OpinionsThe pervasiveness of email communica-tion today presents additional opportu-nities for lawyers to make missteps in protecting the confidentiality of client information. Two of the four American Bar Association ethics opinions released in 2011 dealt with email communication.

To that end, the ABA concluded that a lawyer who communicates with a client via email ordinarily must warn the cli-ent about the risk of sending or receiving electronic communications using a com-puter or other device where there is a sig-nificant risk that a third party may gain access to the device or email account.27

In another opinion, the ABA opined

that when an employer’s outside counsel receives copies of an employee’s private communications with his or her own counsel, which the employer rightfully accessed in the employee’s business email or workplace computer, the ABA Model Rules do not require the employer’s law-yer to notify opposing counsel of the receipt of those communications.28 The opinion noted, however, that court deci-sions, the applicable rules of civil proce-dure, or other law may impose a duty to notify, which, if not followed, may sub-ject the lawyer to discipline.29

The two remaining opinions address the old-fashioned issues of changing fee arrangements during a representation and advising clients regarding direct contact with represented persons. With regard to fee arrangements, the ABA con-cluded that modification of an existing fee arrangement during a representation is permissible under the Model Rules if (a) the lawyer can show that the modifi-cation was reasonable under the circum-stances and (b) the modification is com-municated to and accepted by the client.30 Many law firms, of course, raise their hourly billing rates periodically. These in-creases are permissible if this practice is communicated to and accepted by the cli-ent at the outset of the representation and the increase is reasonable under the cir-cumstances.31 Regardless of what modifi-cations are made, the fee must continue to be reasonable under Model Rule 1.5(a).32

In ABA Formal Ethics Opinion 11-461, the ABA addressed the issue of whether a lawyer may advise a client regarding the substance of a proposed communication between the client and someone the law-yer knows to be represented by counsel.33 This situation might arise, for example, where deal negotiations are at an impasse and the client wants to talk to his busi-ness counterpart on the other side to see if they can work out a solution without the involvement of lawyers. If the client seeks the lawyer’s advice about his com-munication with the other side, lawyers must be careful in this situation not to vi-olate Model Rule 8.4(a), which prohibits a

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lawyer from assisting another in acts that would violate the ethics rules.34

The ABA concluded that a lawyer may advise a client in this situation so long as the advice does not violate the underly-ing purpose of Model Rule 4.2, which is to protect persons who have chosen to be represented by a lawyer from over-reaching or interference by other lawyers participating in the matter and from the uncounselled disclosure of information relating to the representation.35 Thus, the lawyer may need to counsel the client to advise the other party to consult with counsel before entering into obligations, making admissions or disclosing infor-mation.36

ConclusionWhile there was no overarching theme to developments that occurred in the area of legal ethics during 2011, several of the issues are widely applicable to lawyers re-gardless of practice area or firm size. As we seek to discharge our duty to repre-sent our clients to the best of our abilities, we must remain mindful of our ethical duties and how they impact the ways in which we “honestly demean [ourselves] in the practice of law.”

Shayne Newell is Assistant General Counsel at Baker Botts L.L.P. in Houston, where she advises lawyers firmwide on issues relating to legal ethics, conflicts of interest, compliance, and risk management.

endnotes1. Tex. Gov. Code § 82.037.2. See 73 Tex. B.J. 900 (2010).3. See http://www.texasbar.com/Content/

NavigationMenu/ForLawyers/GrievanceInfoandEthicsHelpline/ReferendumTotal2011WEB.pdf

4. The opinions are available from the University of Houston Texas Ethics Reporter website (http://www.law.uh.edu/Libraries/ethics/) and are also published in the Texas Bar Journal.

5. Texas Comm. on Prof’l Ethics, Op. 604, 74 Tex. B.J. 154 (2011).

6. I.d7. I.d8. I.d; see also Texas Disciplinary Rules Prof’l Conduct

8.04(a)(1), reprinted in Tex. Gov. Code Ann., tit. 2, subtit. G, app. A (West 2005).

9. Texas Comm. on Prof’l Ethics, Op. 587 (2009).10. Texas Comm. on Prof’l Ethics, Op. 607, 74 Tex. B.J.

770 (2011).11. ABA Comm. on Prof’l Ethics & Grievances, Formal

Op. 455 (2009).12. I.d The ABA Commission on Ethics 20/20 has

proposed an amendment to Model Rule 1.6 that would

include explicit permission for lawyers to disclose confidential information as part of the hiring process.

13. Texas Disciplinary Rules Prof’l Conduct 1.05(b).14. Texas Comm. on Prof’l Ethics, Op. 607, 74 Tex. B.J.

770 (2011).15. I.d16. I.d17. ABA Comm. on Prof’l Ethics & Grievances, Formal

Op. 455 (2009).18. Texas Comm. on Prof’l Ethics, Op. 610, 74 Tex. B.J.

857 (2011).19. I.d20. I.d21. I.d22. I.d23. Texas Comm. on Prof’l Ethics, Op. 605, 74 Tex. B.J.

418 (2011).24. Texas Comm. on Prof’l Ethics, Op. 606, 74 Tex. B.J.

660 (2011).25. Texas Comm. on Prof’l Ethics, Op. 608, 74 Tex. B.J.

772 (2011).

26. Texas Comm. on Prof’l Ethics, Op. 609, 74 Tex. B.J. 856 (2011).

27. ABA Comm. on Prof’l Ethics & Grievances, Formal Op. 459 (2011).

28. ABA Comm. on Prof’l Ethics & Grievances, Formal Op. 460 (2011).

29. I.d30. ABA Comm. on Prof’l Ethics & Grievances, Formal

Op. 458 (2011).31. I.d32. I.d33. ABA Comm. on Prof’l Ethics & Grievances, Formal

Op. 461 (2011). ABA Model Rule 4.2 prohibits communication between a lawyer and a person that the lawyer knows to be represented by counsel, unless that person’s counsel has consented to the communication.

34. Model Rules of Prof’l Conduct R. 8.4(a) (2011).35. ABA Comm. on Prof’l Ethics & Grievances, Formal

Op. 461 (2011).36. I.d


The Ethical

Challenges Facing

In-House Counsel

pliance and employment matters. There is a great ethical challenge for in-house counsel when conducting these investi-gations. Although Ms. Stevens’ acquittal may be comforting to in-house counsel, it still is a sobering reminder that law-yers do not get a free pass if they commit crimes or assist their clients in doing so.4

Waiver of Attorney-Client Privilege In-house counsel do not set out to com-mit crimes or assist their clients in do-

ing so. In fact, most law school graduates and law firm lawyers seek in-house posi-tions for economic stability during tur-bulent job markets, to enhance work-life balance, or for an opportunity for more involvement with business is-sues. However, the involvement of in-house counsel with business decisions is both a blessing and a curse.5 The benefit of in-house counsel in-volvement is the abil-ity to build more co-hesive business unit teams within the organization, while there is a danger

that the attorney-client privilege may be waived because the in-house counsel becomes part of the business decision making process. When in-house counsel become linked with their business col-leagues, the advice can easily shift from

that Ms. Stevens ever imagined that one day she would have to choose between representing her client zealously or risk-ing federal prosecution. The FDA alleged that Ms. Stevens obstructed an official proceeding (i.e., an FDA inquiry into her company’s promotional program), concealed documents and made false statements to the FDA. In granting the acquittal, the court focused on Ms. Ste-vens’ role as an attorney whose consul-tation with outside counsel determined what documents and statements to pro-vide to the FDA. Ad-ditionally, the court determined that Ms. Stevens’ responses were in accordance with the “Safe Har-bor” rule2 that pro-tects an attorney who zealously repre-sents her client.3

Ms. Stevens may have been able to avoid this situation if she worked with out-side counsel to han-dle the investigation, instead of conduct-ing the investigation in-house. Using out-side counsel helps more clearly define the attorney-client relationship because of a clear separation between the orga-nization and legal representation, thus reducing the likelihood that in-house counsel is seen as part of the management team during the company’s response to the investigation. In-house counsel are requested to investigate a variety of mat-ters for an organization, including com-

The complexities of ethical considerations for many in-house counsel are similar to the predicament described by Charles Dickens in A Tale of

Two Cities: “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness...”1 Often, in-house counsel find themselves in a conflicting dual role between busi-ness partner and corporate watch dog, constantly on the lookout for unethical or questionable behavior. Finding the right balance is not easy. How often are in-house counsel told to “rush this one,” “just sign it” or risk facing the wrath of pushy and aggressive senior managers or the occasional rogue CEO? In-house counsel must develop an awareness of when the line has been crossed versus when the client is standing dead cen-ter on the line. Such breach can expose them to disciplinary action and poten-tially cause the loss of their bar license. Of the many ethical challenges encoun-tered by in-house counsel daily, this ar-ticle discusses (1) the potential danger of handling investigations in-house, (2) waiver of the attorney-client privilege when in-house counsel become part of the business decision making process, (3) identifying the client while taking di-rection from an organization’s employee, and (4) handling confidential informa-tion.

A Sobering ReminderOn May 10, 2011, Lauren Stevens, a for-mer GlaxoSmithKline in-house coun-sel, was acquitted by the U.S. District Court Judge for the District of Maryland of charges that she obstructed a federal investigation by the Food and Drug Ad-ministration (FDA). It is difficult to think

By y. nicole MontGoMery

“Often, in-house counsel

find themselves in

a conflicting dual role

between business partner

and corporate watch dog,

constantly on the lookout

for unethical or

questionable behavior.

Finding the right balance

is not easy. How often

are in-house counsel

told to ‘rush this one,’

‘just sign it’ or risk facing

the wrath of pushy and

aggressive senior

managers...”


legal to business and increase the likeli-hood that managers will view in-house counsel less as an attorney and more as a team member.6 At times, this change in the interpersonal relationship is ad-vantageous for in-house counsel, as it enables them to learn more about the business deal from its inception, which can help prevent ma-jor problems at the final hour of a deal. Un q ue s t ion a b l y, lawyers add value to business deals with their analyti-cal skills, the ability to evaluate potential risk, find solutions, and see many sides of an issue.7 How-ever, maintaining the attorney-client privilege is also valuable to the organi-zation. The attorney-client privilege for a

corporate client prevents in-house coun-sel from disclosing confidential com-munications between the corporation’s

representatives and its attorneys when the communications are made to obtain legal services.8 Yet, the attorney-client privilege does not apply when the attor-ney has performed non-legal work and instead becomes part of the business deci-sion process of the organization. This is particularly cumber-some for in-house counsel who work closely with the busi-

ness team. Some believe that lawyers should actively participate in the key business decisions of the organization to help avoid compliance issues and other legal issues. This approach is primarily

emphasized because it is difficult to pre-dict when legal issues will arise in a mat-ter, and thus everyone benefits from fre-quent and easy communication with all of the business partners.9 However, it is important for in-house counsel to focus on the legal issues that arise during busi-ness matters or, at minimum, be aware of the potential impact on the organiza-tion’s attorney-client privilege.

Who is the Client?Likewise, the ethical lines blur for in-house counsel when representation of and a close professional relationship with the business partner advocating a particular decision is coupled with a need to please senior managers or the CEO, or when a decision affects the orga-nization’s bottom line. This ethical chal-lenge is perhaps highlighted most when determining the identity of the client in order to apply the attorney-client privi-lege. For in-house counsel, the client is the corporation or entity for whom they are employed and represent. The client

“During those times

when the organization’s

interests are adverse

to those of an

employee, the in-house

counsel should clearly

inform the employee that

the attorney represents the

organization, not the

employee, and that there

is a potential conflict

of interest.”


direction and receives information from employees of the company, the in-house counsel has a responsibility to follow the organization’s policies and rules when individual employees take action that is contrary to those procedures. The is-sue of whether in-house counsel have the independence to tell senior manage-ment, the CEO, or the board of directors something they do not want to hear is not always easy for in-house counsel to address, particularly when considering their unique position as a fulltime em-ployee of the organization. Senior man-agers sometimes have difficulty under-standing that an in-house counsel is not “their” lawyer, but rather represents the organization’s interests. Furthermore, in-house counsel are required to take appropriate action when “an officer, em-ployee, or other person associated with the organization has committed or in-tends to commit a violation of a legal ob-ligation to the organization or a violation of law which reasonably might be im-puted to the organization, the violation

is not the individual employees or senior managers whose interests may appear to be in conflict with those of the corpora-tion or entity. During those times when the organization’s interests are adverse to those of an employee, the in-house coun-sel should clearly inform the employee that the attorney represents the organi-zation, not the employee, and that there is a potential conflict of interest. The at-torney should encourage the employee to obtain independent representation.10 In-house counsel may consider having the employee sign a document acknowl-edging that they fully understand that the in-house counsel does not represent them and that they should obtain their own legal representation. Rule 1.12 of the Texas Disciplinary Rules of Professional Conduct require a lawyer representing an entity to act as necessary in the best interest of the organization, despite that the lawyer may report to or accept direc-tion from “duly authorized constituents” of the organization.11

Although the in-house counsel takes

is likely to result in substantial injury to the organization; and the violation is related to a matter within the scope of the lawyer’s representation of the orga-nization.”12 This ethical responsibility conflicts considerably with the reality that employees of the organization hire in-house counsel, review their perfor-mance, and can potentially fire them—especially considering that their employ-ment may be the only stream of income for many in-house counsel.

Handling Confidential InformationIn addition to the struggle to maintain in-dependence, in-house counsel must also carefully consider when they reasonably believe that an employee’s actions are not in the best legal interest of the organiza-tion. Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct requires attorneys to keep confidential any privi-leged and unprivileged client informa-tion and gives limited exceptions.13 In those situations when an in-house coun-sel develops a reasonable belief that se-

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nior management is taking actions that are not in the best legal interest of the organization, the counsel has the ability to raise the issue to the CEO or board of directors. However, there are few al-lowances for the in-house counsel to re-veal the confidential information when the situation escalates and the in-house counsel reasonably believes the actions of the CEO or board of directors are not in the best legal interest of the organiza-tion. The in-house counsel must believe that revealing the information is neces-sary to prevent the client from commit-ting a criminal or fraudulent act or to rectify the consequences of the client’s criminal or fraudulent act committed through the benefit of lawyer’s servic-es.14 Preserving the client’s confidential information is critical to the fiduciary relationship between the lawyer and the client; it promotes free discussion so that the lawyer is fully informed and the client obtains the full benefit of the legal system.15 An additional, but more difficult option is withdrawing from

representation if the counsel is unable to convince senior management or the governing body to refrain from the ques-tionable action.

ConclusionUnquestionably, in-house counsel face many ethical challenges in their legal practice. Although most in-house legal departments report directly to the CEO, senior management should not be al-lowed to circumvent the authority of the in-house legal department. In-house counsel should educate the CEO and se-nior management regarding these ethical challenges and ensure that all parties in-volved carefully and promptly consider challenges as they arise. Otherwise, in-house counsel risk the development of a corporate culture in which in-house counsel are discouraged from discussing and possibly finding resolutions for these real and tangible ethical issues.

Y. Nicole Montgomery is senior counsel for the Metropolitan Transit Authority of

Harris County, handling primarily trans-actional matters. She is a former Assistant City Attorney with the City of Houston.

endnotes1. CHARLES DICKENS, A TALE OF TWO CITIES (1859).2. 18 U.S.C. §1515 (c) (2010). (This chapter does not

prohibit or punish the providing of lawful, bona fide, legal representation services in connection with or anticipation of an official proceeding.)

3. W. Brown, P. Burton, & M. Madigan, http://www.orrick.com/fileupload/3663.pdf (last visited October 31, 2011).

4. I.d5. Steven Andersen, Tough Calls, Inside Counsel, May

2009 at 51.6. I.d7. Al Driver, Helping Guide the Corporation to Do the

Right Thing: Editor interviews Thomas J. Sabatino, Jr., Executive Vice President and General Counsel, Schering-Plough Corporation. The Metropolitan Corporate Counsel, June 2007 at 64.

8. Nguyen v. Excel Corp, 197 F.3d 200, 206 (5th Cir. 1999).

9. Al Driver, Helping Guide the Corporation to Do the Right Thing: Editor interviews Thomas J. Sabatino, Jr., Executive Vice President and General Counsel, Schering-Plough Corporation. The Metropolitan Corporate Counsel, June 2007 at 51.

10. Tex. Disciplinary R. Prof’l Conduct 1.12 cmt. 4.11. I.d 1.12(a).12. I.d 1.12(b).13. I.d 1.05.14. I.d 1.05(c)(7)-(8).15. I.d 1.05 cmt. 1.


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Program each year, and to increase that goal each year. For more information contact Kay Sim at (713) 759-1133.

large firm championsAndrews Kurth LLPBaker Botts L.L.P.Bracewell & Giuliani LLPFulbright & Jaworski L.L.P.Locke Lord LLPVinson & Elkins LLP corporate championsBaker Hughes IncorporatedBPCenterPoint Energy, Inc.ConocoPhillipsContinental Airlines, Inc.Exxon Mobil CorporationMarathon Oil CompanyPort of Houston AuthorityRosetta Resources Inc.Shell Oil Company intermediate firm championsBeirne, Maynard & Parsons, L.L.P.Gardere Wynne Sewell LLPHaynes and Boone, L.L.P.King & Spalding LLPThompson & Knight LLP Mid-Size firm championsAkin Gump Strauss Hauer & Feld LLPAdams & Reese LLPBaker Hostetler LLPChamberlain, Hrdlicka, White, Williams & AughtryGreenberg Traurig, LLPJackson Walker L.L.P.Jones Day

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Will You Be My

Friend? Ethical

Issues in Social

Networking

of Facebook, however, Hudson felt no qualms about approaching her and seek-ing her online friendship.

What accounts for this disconnect? It likely is because Hudson defined online “friendship” differently than many of us define real-world friendship, not as a signifier of affection or commitment, but simply as a benign link allowing him to access information about someone interesting to him. He probably put no more thought into asking for her friend-ship than he would have into asking for Charlie Sheen’s. This explains why he did not understand that he had done something wrong – he likely (and incor-rectly) thought he could still fairly judge this person’s case even as her “friend.”

This disconnect between the virtual world and the real world is not unusual: a 2010 Reuters Legal analysis found that, since 1999, at least 90 verdicts have been the subject of challenges because of al-leged Internet-related juror misconduct, and more than half of the cases occurred between 2008 and 2010. The study found that judges granted new trials or overturned verdicts in 28 criminal and civil cases – 21 since January 2009, and in three-quarters of the cases in which judges declined to declare mistrials, they nevertheless found Internet-related misconduct on the part of jurors.4

In response to these concerns, many states and federal circuits have promul-gated model jury instructions to instruct jurors on the limitations of social media use during trial.5 In Texas, Rule of Civil Procedure 284 mandates that judges in-struct the jury as follows:

Immediately after jurors are selected for a case, the court must instruct them to turn off their phones and other electronic devices and not to communicate with anyone through any electronic device while they are in the courtroom or while they are delib-erating. The court must also instruct them that, while they are serving as jurors, they must not post any infor-mation about the case on the Internet or search for any information outside

It is no secret that social media – a term that encompasses everything from blogs, microblogs, social net-works, and media sharing platforms – has integrated itself into the often

stubbornly anachronistic practice of law in this country. Lawyers tell war stories online, judges befriend supporters on their Facebook pages, and jurors tweet about their jury service. Sometimes, these activities take place while a trial is ongoing, giving readers an insider’s per-spective about the deliberative process and the individual participants.

This has prompted much concern about whether new ethical rules need to be enacted to address these technologi-cal developments. Care should be taken, however, to recognize what has actually changed. These new social media plat-forms have not created new categories of content that are not addressed in the existing ethical rules. The rules already address improper communications, rela-tionships, and other interactions.

Instead, what have changed are three things: the rapidity of these communi-cations, the scale of social interactions, and the ease of using these platforms. Messages that once may have taken days to receive are now received in-stantaneously; the content of a personal conversation between friends that may have taken weeks to circulate by word of mouth gossip is now circulated at the speed of light. A lawyer’s disdain for a jury verdict that may have been shared with three or four close friends may now be shared with three or four thousand blog readers or Facebook friends: Doing so is just a few keystrokes and a mouse click away.

In some cases, the effect of this new ubiquity has been to disconnect users from generally understood and accepted standards of conduct. Consider Jona-than Hudson’s case, described above. In the absence of Facebook, it is highly unlikely that Hudson would ever have considered approaching the civil defen-dant in person during trial and trying to start a friendship. In the virtual world

• In July 2011, Jonathan Hudson sent a friend request to Courtney Down-ing on Facebook. Their relationship? Hudson was a juror in a civil car wreck case and Downing was the defendant. After Downing reported the contact, Hudson was removed from the jury and held in contempt. Afterward, his lawyer explained: “He seemed to be a very nice kid who made a silly mistake. It is a reflec-tion of the times. Most everyone has smartphones now. They can hop on at almost any time. And there’s a lot of down time in jury duty, so what most people do is hop on their phone. But the rules are there for a reason.” Hudson was less sanguine, expressing his dismay at the con-tempt finding, as one might expect, on his Facebook account.1

• On September 9, 2008, North Carolina Judge B. Carlton Terry, Jr. Facebook friended Charles Schieck, an attorney handling a child custody case in Judge Terry’s court that day. That night, Schieck posted the ques-tion, “How do I prove a negative?” on his Facebook account. Judge Terry responded, commenting on the merits of the case. Schieck then posted: “I have a wise judge.” Judge Terry was later publicly reprimanded.2

• In December 2009, during the cor-ruption trial of former Baltimore Mayor Sheila Dixon, Maryland Circuit Court Judge Dennis Sweeney learned that five jurors had become Face-book friends with each other. Swee-ney called a hearing on the matter. After that, he said, a young male juror posted on his Facebook page, “F --- the Judge.” Judge Sweeney said he asked the juror about the of-fensive comment and was told: “Hey Judge, that’s just Facebook stuff.”3

By Scott a. Durfee


social networking websites such as Facebook, Twitter, or Myspace]. Do not allow anyone to discuss the case with you or in your hearing. If anyone tries to discuss the case with you or in your hearing, tell me immediately. We do not want you to be influenced by something other than the evidence admitted in court.8 No similar rule or instruction for ju-

rors has been promulgated for Texas criminal courts or for courts in the Fifth Circuit.9 There should be.

There should also be some guidance for the judiciary. From the unique po-sition of being both disinterested ar-biters and elected politicians, Texas judges have to walk the razor’s edge of maintaining the distance necessary to preserve the impression of impartiality while also communicating with constit-uents and supporters. They also have to avoid the same disconnect between ac-tivities in the social media universe and in the real world.

Consider Judge Terry’s conduct.

of the courtroom, including on the In-ternet, to try to learn more about the case.If jurors are permitted to separate be-fore they are released from jury duty, either during the trial or after the case is submitted to them, the court must instruct them that it is their duty not to communicate with, or permit them-selves to be addressed by, any other person about any subject relating to the case.6

The mandates of Rule 284 have been integrated into the instructions given jurors at the beginning of voir dire, after jury selection, and immediately prior to deliberations.7 For example, the instruc-tions now give a trial judge the option of specifically prohibiting the use of social media (the bracketed language is currently optional):

3. Do not discuss this case with any-one, even your spouse or a friend, ei-ther in person or by any other means [including by phone, text message, email message, chat room, blog, or

Caught up in the culture of Facebook, he engaged in ex parte communications in which he likely would have never en-gaged during a face-to-face conversation with Schieck. The ease of use overcame his inhibitions, the rapidity of the com-munication put his message out instan-taneously, and the scale of dissemina-tion made the communication extremely public.

Judge Terry is not alone in using Face-book. According to an August 2010 sur-vey by the New Media Committee of the Conference of Court Public Information Officers, forty percent of the responding judges reported that they are on social media profile sites; the majority of these judges are on Facebook.10 Many Texas judges and judicial candidates use Face-book for political networking, while oth-ers use social networking solely for per-sonal communications in a non-judicial capacity.

In some instances, however, social networking may influence the adjudi-catory process. For example, Galveston County District Judge Susan Criss has spoken about a case in which she grant-ed a lawyer a one-week continuance be-cause of a death in the lawyer’s family. When the lawyer’s senior partner asked Judge Criss to extend the continuance to a month, she denied the request, telling the lawyer’s partner, “I knew from her bragging on a Facebook account that she had been partying that same week.”11 Al-though one cannot argue with the end result, one could argue with the means by which Judge Criss got there. Judicial notice only goes so far.

The act itself of “friending” also car-ries some ethical freight. Canon 2(B) of the Texas Code of Judicial Conduct forbids a judge from lending the pres-tige of judicial office to advance the private interests of others, or to convey (or permit others to convey) the impres-sion that they are in a special position to influence the judge.12 Although the judge may subjectively believe that ac-cepting a friend request (or extending one) is a social or political nicety with-

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out substance, the judge’s good-faith be-lief is only the first step of the inquiry. The conduct must also meet an objective standard of review as to whether the “judge’s impartiality might reasonably be questioned.”13 Objectively, the pub-lic exercise of discretion by a judge to friend (or not friend) a lawyer sends a message to the litigants in that judge’s court about how that judge perceives the lawyer. Although a judge’s disclaimer on his or her Facebook account may help clarify the true meaning of a decision to “friend” a lawyer, the label remains ob-jectively meaningful.

It appears that no state has outright forbidden the use of social media by the judiciary. Professor Samuel Jones at John Marshall Law School recently ob-served that “research has not revealed a court decision or ethics opinion that found that a judge violated the Judicial Code by simply joining an ESN site, such as Facebook or Twitter.”14 In fact, New York, Florida, South Carolina, Oklahoma, and Ohio have all issued advisory opinions permitting the use of social networking sites, although Flor-ida and Oklahoma forbid judges from “friending” lawyers who may appear be-fore the judge.15 The common theme in all of these opinions is that judges who use social media should be sensitive to how their online activities are perceived and adhere to the applicable canons of judicial conduct.

Here in Texas, the Supreme Court has not provided guidance on the param-eters of social media use by judges. It is high time that they do so. The question is ripe: besides the various academics and state ethics advisory committees that have considered the question, the American Bar Association’s Commis-sion on Ethics 20/20 is considering the issue as well, having recently solicited comments on “what, if any guidance it should offer to lawyers who might want to link to judges on a social or profes-sional networking site.”16

The Supreme Court and the Bar should also provide some guidance to lawyers


about the manner in which “friending” can be used deceptively as a tool for in-vestigation. In 2009, the Philadelphia Bar Association Professional Guidance Committee was asked whether a lawyer could instruct a non-lawyer to friend a witness in litigation for the purpose of accessing the witness’s friend-only Face-book account page.17 In short, the lawyer wanted to use a Trojan Horse to access the target’s secure account.

The Philadelphia Bar disapproved:[T]he committee believes that the pro-posed course of conduct contemplated by the inquirer would violate Rule 8.4(c) [the equivalent to Texas Rule 8.04(a)(3)] because the planned com-munication by the third party with the witness is deceptive. It omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtain-ing information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness.18

The committee gave no weight to the witness’s lack of discrimination in ac-cepting friend requests. It was the de-ceptiveness of the proposed conduct that was dispositive in their opinion:

Even if, by allowing virtually all would-be “friends” onto her Facebook and MySpace pages, the witness is exposing herself to risks like that in this case, excusing the deceit on that basis would be improper. Deception is deception, regardless of the victim’s wariness in her interactions on the Internet and susceptibility to be de-ceived.19

The committee also concluded that this conduct would violate the ethical rule against making false statements of material fact to others.20

Again, this raises the fascinating dis-connect between the virtual world on-line and the real world. If the attorney sent a real person to befriend the wit-ness and pump her for information, it would be costly and difficult. The wit-ness’s natural defenses would be up and

she would be naturally suspicious of the “friend’s” motives. Running a virtual friend at the witness, however, costs next to nothing and, in the wide-open Facebook culture, has some likelihood of succeeding.

The Texas Professional Ethics Com-mittee has not yet addressed the issue of whether this kind of deception is per-mitted. Ethics Opinion 575, however, suggests that the kind of deceptiveness described in the Philadelphia Bar As-sociation opinion would be similarly disapproved in Texas. In that case, the Committee approved surreptitious tap-ing of telephone calls, but specifically did not approve of a lawyer making a false representation about whether the taping was taking place.21 The same rea-soning could apply to false friending in Texas: an attorney could make a friend request to a witness who could choose to friend or not friend the attorney, but the attorney could not ethically use a false identity or an intermediary to de-ceive the witness. This issue should be taken up and resolved sooner than later.

In conclusion, although social net-working is a relatively new technologi-cal development, the challenges it pres-ents are less about content and more about learning how to make the same wise decisions people have always made, but in a much faster, much more efficient environment.

Scott A. Durfee is an assistant district attorney for the Harris County District Attorney’s Office. He is also the co-chair of the Houston Bar Association Law & the Media Committee, and a member of the State Bar’s Texas Disciplinary Rules of Professional Conduct Committee.

endnotes1. Eva-Marie Ayala, Tarrant County juror sentenced

to community service for trying to ‘friend’ defendant on Facebook, FORT WORTH STAR-TELEGRAM, Aug. 28, 2011, http://www.star-telegram.com/2011/08/28/3319796/juror-sentenced-to-community-service.html#storylink=omni_popular?storylink=addthis#ixzz1WRRPLufa.

2. Public Reprimand of Terry, N.C. Jud. Stds. Comm. Inquiry No. 8-234 (April 1, 2009), www.aoc.state.nc.us/www/public/coa/jsc/publicreprimands/

jsc08-234.pdf.3. Brian Grow, As Jurors Go Online, U.S. Trials Go

Off Track, REUTERS LEGAL (December 8, 2010), http://newsandinsight.thomsonreuters.com/Legal/News/2010/12_-_December/As_jurors_go_online,_trials_go_off_track/; see also Hon. Dennis Sweeney, Worlds Collide: The Digital Native Enters the Jury Box, 1 REYNOLDS COURTS & MEDIA L.J. 121, 125-127 (Spring 2011) (Judge Sweeney’s account of the “Facebook Five” matter).

4. See Grow, supra, n. 3.5. Eric P. Robinson, Jury Instructions for the Modern

Age, 1 REYNOLDS COURTS & MEDIA L.J. 307 (Summer 2011).

6. TEX. R. CIV. P. 284.7. See Amendments to Texas Rules of Civil

Procedure 281 and 284 and to the Jury Instructions Under Texas Rule of Civil Procedure 226A, Misc. Docket No. 11-9047, www.supreme.courts.state.tx.us/miscdocket/11/11904700.pdf.

8. TEX. R. CIV. P. 226a.9. See Robinson, supra n.5, at 316, 394.10. Conference of Court Public Information Officers,

New Media and the Courts, at 69 (August 26, 2010), www.ccpio.org/documents/newmediaproject/New-Media-and-the-Courts-Report.pdf.

11. Miriam Rozen, Social Networks Help Judges Do Their Duty, TEX. LAWYER (Aug. 25, 2009). Judge Criss also related the story of how, when a lawyer posted, “Bond reduction. Joy,” on Facebook, anticipating a favorable bond ruling in a pending criminal case before Judge Criss, she posted, “Joy postponed.”

12. TEX. CODE OF JUDICIAL CONDUCT Canon 2(B).

13. See TEX. CODE OF JUDICIAL CONDUCT Canon 2(A); Caperton v. A.T. Massey Coal Co., Inc., 129 S.Ct. 2252, 2267 (2009) (“Almost every State … has adopted the American Bar Association’s objective standard: ‘A judge shall avoid impropriety and the appearance of impropriety.’”)

14. Samuel V. Jones, Judges, Friends, and Facebook: The Ethics of Prohibition, 24 GEO. J. LEGAL ETHICS 281, 286 (Spring 2011); see also Genelle I. Belmas, That’s What “Friend” is For? Judges, Social Networks and Standards for Recusal, 1 REYNOLDS COURTS & MEDIA L.J. 147, 155-161 (Spring 2011) (surveying state rulings on social media usage).

15. N.Y. Advisory Comm. on Jud. Ethics, Op. 08-176 (2009); Florida Sup. Ct., Jud. Ethics Advisory Comm., Op. 2009-20 (2009); S.C. Advisory Comm. on Stds. of Jud. Conduct, Op. 17-2009 (2009); Ohio Bd. of Comm’rs on Grievances & Discipline, Op. 2010-7 (2010); Okla. Jud. Ethics Advisory Panel, Op. 2011-3 (2011); see also Washington Ethics Advisory Comm. Op. 09-05 (2009) (permitting blogging).

16. See ABA Commission on Ethics 20/20 Working Group on the Implications of New Technologies, For Comment: Issues Paper Concerning Lawyers’ Use of Internet Based Client Development Tools (Sept. 10, 2010), www.legalethicsforum.com/files/letterhead-client-development-issues-paper-final-9.20.10.pdf.

17. Philadelphia Bar Assn. Prof’l Guidance Comm., Op. 2009-02 at 1 (2009).

18. I.d at 3.19. I.d20. I.d21. Tex. Prof’l Ethics Comm. Op. No. 575 at 3 (2006).


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The Ethical

Minefield of

E-Discovery

tal role of lawyers in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law. To maintain the requi-site knowledge and skill of a competent practitioner, a lawyer should engage in continuing study and education.”8 This applies to e-discovery no less than it does

to other areas of legal practice.

Federal courts will not, and Texas judges should not, accept any longer a lawyer’s excuse of technologi-cal ignorance. The response from the bench may well be that of this Florida judge: “As an attor-ney, the Plaintiff is familiar with the rules of discovery and should have [un-derstood] his dis-covery obligations... His claim that he is so computer illiter-ate that he could not

comply with production is frankly ludi-crous.”9

Hazard #2: ConfidentialityTDRPC 1.05(b) addresses the duty of counsel to safeguard the confidentiality of client information, whether privileged or unprivileged.10 An attorney “should keep in confidence information relating to rep-resentation of a client except so far as dis-closure is required or permitted” by the Rules or by law.11

The Texas Rules of Civil Procedure are more forgiving than those of many juris-dictions regarding the “clawback” of in-advertently-produced documents that are subject to privilege, as long as the error is caught promptly. Under TRCP 193.3(d), the mistaken production of privileged information does not waive the privilege claim if the error is caught promptly or within ten days after production, and if opposing counsel is notified of the error.12

Lawyers must become competent in e-discovery and the relevant rules, par-ticularly where the predominant form of evidence in litigation is quickly becom-ing electronic. What if the attorney is not competent in this area? The Texas ethical rules provide an out: involve an-other lawyer who is competent to handle e-discovery.5 Pass-ing responsibility to practice support or IT staff, or handing it to a service ven-dor, is not a solution authorized under the Rules.6 Commentator Ralph Losey, national e-discovery counsel for Jackson Lewis, LLP, addressed this issue:

Can a lawsuit be fair if only one side has an attor-ney competent to explore the elec-tronic depths, to uncover the truth of what happened? Is the process fair if the attorneys on both sides lack the competence to find the facts hidden in the electronic writ-ings? If the attorneys agree not to look behind the paper curtain and try a case without knowing the electronic truths, is that a fair trial for anyone? [¶]Attorneys must put aside their per-sonal pecuniary interest and act in the best interests of the client. If they are not yet competent in e-discovery, or if they have limited competence and face a problem beyond their means, they must retain co-counsel who is able, rather than avoid it or do it negligent-ly. They have an ethical duty to do so, even though this will lower their fees or prove embarrassing to their false pride. The interests of the client must always come first.7

Comment 8 to TDRPC 1.01 sums up the obligation nicely: “Because of the vi-

Every day, potentially thousands of Texas lawyers breach their obligations under the Texas Disciplinary Rules of Profes-sional Conduct (“TDRPC”). In

most cases, of course, these ethical lapses are completely unintentional. Thanks to technology, one of the more dangerous areas for these missteps is electronic dis-covery, or “e-discovery.”

You are probably aware that e-discovery refers to the production of non-privileged electronically-stored information (“ESI”) along with legacy paper documents dur-ing litigation discovery. Both the Texas1 and Federal2 Rules of Civil Procedure explicitly permit requests for production of ESI – not just emails, word processing docs or spreadsheets, but anything that can be stored electronically.

Ethical lapses tend to occur because most attorneys have not learned their e-discovery obligations under the Rules and the case law. E-discovery is not only a problem in federal practice; the Texas Supreme Court has embraced the emerg-ing jurisprudence regarding interpreta-tion of the Federal Rules with respect to e-discovery.3

Only when you know where the big-gest ethical pitfalls lie can you avoid them. The various ethical dilemmas that lawyers face in dealing with e-discovery deserve a more thorough treatment than this article can provide, so consider this a general map to help you navigate this ethical minefield.

Hazard #1: CompetenceThe TDRPC states unequivocally: “A law-yer shall not accept or continue employ-ment in a legal matter which the lawyer knows or should know is beyond the law-yer’s competence...”4 This is a fundamen-tal ethical tenet of the legal profession. E-discovery is playing a larger role in liti-gation today, and knowledge of e-discov-ery rules is an important component in satisfying one’s professional obligations.

By Gary wiener

“Ethical lapses tend to

occur because most attorneys

have not learned their

e-discovery obligations

under the Rules and the

case law. E-discovery is

not only a problem

in federal practice;

the Texas Supreme Court

has embraced the emerging

jurisprudence regarding

interpretation of the Federal

Rules with respect to

e-discovery.”


(A reasonably similar protection is afford-ed by Federal Rule of Evidence 502.)

The ethical implications arise when counsel decides to over-produce ESI in order to beat a discovery deadline, and then attempts to claw back documents where the privilege was not discovered until after production. Even if the TRCP allows such a clawback, would such a tac-tic be ethical? Other state bar associations have analyzed the analogous ABA Mod-el Rules and warned, “If... the disclosure occurred because counsel failed to re-view the documents to be made available to possessing counsel with the thorough-ness and prepara-tion... or the skill and care required under [the Rules], the inad-vertence could be an ethical violation.”13

Hazard #3: Evidence PreservationA lawyer’s ethical duties regarding e-dis-covery also extend to reasonable efforts to locate and produce the relevant ESI. Un-der TDRPC 3.04, a lawyer may not “un-lawfully obstruct another party’s access to evidence; ...unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act.”14 This is because ESI can be tricky to locate, but easy to overlook, alter, or delete.

The duty to preserve electronic evidence attaches once a party is sued or when the party can reasonably anticipate that it is likely to be sued in the future.15 This duty applies both to in-house counsel,16 who may neither intentionally nor negli-gently spoliate (destroy or meaningfully alter) evidence,17 and outside counsel, who must “make certain that all sources of potentially relevant information are identified and placed ‘on hold.’”18 Outside

counsel must also periodically remind the client and key custodians (witnesses who possess relevant evidence) of their con-tinuing obligations to preserve documents until the litigation has concluded.19

If some of this evidence goes missing, the court has the option to award sanc-tions in the form of potentially crippling penalties, up to and including dismissal

of pleadings, against the offending party. It stands to reason that if electronic docu-ments are spoliated due to the willful ac-tions of counsel20 and the court issues sanc-tions to penalize one party as the result, the offending attor-ney has not only vio-lated TDRPC 3.04, but, by virtue of the effect of the sanction, has also failed in his

ethical obligation to zealously represent his client.

Hazard #4: Candor to the CourtTDRPC 3.03(a) prohibits a lawyer from knowingly making “a false statement of material fact or law to a tribunal” or of-fering “evidence that the lawyer knows to be false.”21 An emerging body of case law finds a number of e-discovery situations where counsel or their clients have tried to “hide the ball” and been caught. The results have not been pretty.

One very prominent 2008 case caught the attention of litigators across the coun-try. In Qualcomm v. Broadcom,22 the mag-istrate judge found that Qualcomm inten-tionally withheld tens of thousands of key documents, blamed Qualcomm’s outside counsel for failure to properly supervise the production, and ordered Qualcomm to pay $8.5 million in sanctions. The court also referred six of the outside at-torneys to the California bar for investiga-tion of ethical violations.23

Even though the “Qualcomm Six” were ultimately able to prove that their client

had misled them as to the existence of the ESI,24 the court made its point loud and clear: attorneys have an ethical obliga-tion to be honest and forthcoming with the court, and to do their best to ensure that their clients do so as well. In this re-spect, the attorney’s obligations have not really changed, despite the increase in e-discovery:

[T]he duties to make a reasonable in-quiry and a reasonably diligent effort in responding to discovery requests and not to conceal potentially relevant ma-terial compel an attorney to review and produce ESI with the same candor and good faith as with hardcopy documents stored in a rusty old file cabinet or a cli-ent’s desk drawer.25

Hazard #5: Failure to CooperateTDRPC 3.02 states: “In the course of liti-gation, a lawyer shall not take a position that unreasonably increases the costs or other burdens of the case or that unrea-sonably delays resolution of the matter.”26

This Rule addresses those situations where a lawyer or the lawyer’s client perceive the client’s interests as served by conduct that delays resolution of the matter or that increases the costs or other burdens of a case. Because such tactics are frequently an appropriate way of achieving the legitimate inter-ests of the client that are at stake in the litigation, only those instances that are unreasonable are prohibited.27

The problem is that many attorneys convince themselves that cooperation with opposing counsel is in direct conflict with their notion of “zealous advocacy,” or might be perceived by the opposition as a sign of weakness. The federal courts have been active in trying to encourage – or require – counsel to work together:

It cannot seriously be disputed that compliance with the “spirit and pur-poses” of [the FRCP] discovery rules requires cooperation by counsel to identify and fulfill legitimate discovery needs, yet avoid seeking discovery the cost and burden of which is dispro-

“TDRPC 3.02 states:

In the course of litigation,

a lawyer shall not take

a position that

unreasonably increases

the costs or other

burdens of the case

or that unreasonably

delays resolution

of the matter.”

34 july/august 2011 thehoustonlawyer.com

portionally large to what is at stake in the litigation. Counsel cannot “behave responsively” during discovery unless they do both, which requires coopera-tion rather than contrariety, communi-cation rather than confrontation.28

One New York federal magistrate minced no words in issuing a “wake-up call” to the bar regarding cooperation between opposing counsel: “Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. ...It is time that the Bar – even those lawyers who did not come of age in the computer era – understand this.”29

Hazard #6: The Ethics of MetadataMetadata, frequently referred to as ESI “data about the data,” poses an ethical di-lemma on two fronts:

1. Should metadata be purged or “scrubbed” from an electronic file before it is produced to opposing counsel?

2. Is it fair for opposing counsel to attempt to “mine” the metadata for clues to privileged information that the producing party might have missed?

To Scrub or Not to Scrub?Metadata typically consists of information regarding the creation of and changes to an electronic document. Certain metada-ta such as the software used to create the file, who created the file, and when the user created the file tends to be relatively benign. More important metadata usually reveals a record of changes made to the content and comments typed in during the revision process, as well as who made the changes and comments. For instance, a Microsoft Word document may contain a complete version history of the docu-ment if the application’s “Track Changes” setting had been selected.

If counsel is not aware that old ver-sions of the content are being tracked and stored, it would be very easy to miss this metadata during privilege review. As a re-

sult, an attorney may inadvertently reveal her client’s bottom line on a contract ne-gotiation by failing to erase comments on a draft to another party.

Is it ethical for counsel to scrub metada-ta before sending ESI to opposing counsel in discovery? On the one hand, changing or deleting metadata within an electronic file is tantamount to changing the file it-self, and therefore amounts to intentional spoliation of the data. On the other, many attorneys have for years tried to avoid the review of metadata by imaging all elec-tronic files into paper or TIFF format – thereby stripping all metadata except for the visible content – and then including an electronic “load file” containing limit-ed metadata so that the receiving counsel can load the files and metadata into their own document review platform.

Much of the practice of selective scrub-bing should have come to a stop when the Federal Rules of Civil Procedure were amended in December 2006. FRCP 34(b) requires the parties, in the absence of an

agreement to the contrary, to produce ESI as normally kept by the party in the usual course of business.30 This typically requires production of the native ESI files along with their metadata. Similarly, TRCP 196.4 requires the requesting party to specify the form of production sought, and the responding party must produce responsive ESI that “is reasonably avail-able to the responding party in its ordi-nary course of business.”31

While there certainly is nothing unethi-cal about redacting and logging hidden metadata that may be subject to privilege, a lawyer arguably breaches her ethical duty of competence if her “technophobia” results in privileged metadata ending up in the hands of her more technogically-adept opponent.

Mining the MetadataThe magnitude of such a failure expands because jurisdictions cannot agree on whether “mining” or examining the meta-data in received ESI productions is ethi-


cal. A technologically proficient user who knows what she is looking for and how to find it can unearth a potential treasure trove of useful metadata. For example, the metadata might contain a list of peo-ple who collaborated on a document and the date on which it was created and sent. This metadata might then be used to im-peach a witness who testifies that he was the sole author of the document and that he created and sent the document on a different date.

The Texas Supreme Court Profession-alism Committee has not yet spoken to this issue. The national and state bars that have addressed it cannot agree as to whether metadata mining is ethical or un-ethical, or even whether a bright-line test is appropriate.32

ConclusionThere are more potential hazards of which attorneys should be aware, but the upshot is simple: those attorneys who have not educated themselves about e-discovery, or do not work with attorneys who have, are in breach of their ethical obligations under the Texas Disciplinary Rules. Many attorneys might argue that they pay a sup-port staff to tackle just such technological issues, but that argument will not fly any longer.

It is the attorneys, not the support staff, who must represent to their clients and to the court that they are competent to han-

dle matters involving ESI. It is the attor-neys, not the support staff, who may have to answer to a grievance committee if they fail to do so. As the use of ESI in litiga-tion increases, your ethical duties to your clients and to the court demand that you learn the language of e-discovery.

Gary Wiener (Twitter: @GaryWiener) is an e-discovery instructor and subject matter expert for Autonomy, Inc. He also is a member of The Houston Lawyer Editorial Board.

endnotes1. TEX. R. CIV. P. 196.4.2. FED. R. CIV. P. 34(a) (hereinafter “FRCP”).3. In re Weekley Homes, L.P., 295 S.W.3d 309, 316-17

(Tex. 2009).4. TEX. DISCIPLINARY R. PROF’L CONDUCT 1.01(a),

reprinted in TEX. GOV’T CODE ANN. tit. 2, subtit. G app. A (Vernon 2005) (hereinafter “TDRPC”).

5. TDRPC 1.01(a)(1).6. See, e.g., First Amended Complaint, J-M Mfg. Co.,

Inc. v. McDermott Will & Emery (Case No. BC463832, Cal. Supr. Ct. L.A., July 28, 2011) (available at http://commonscold.typepad.com/files/j-m_mfg_v_mcdermott_1st_amended_complaint_lasuperiorcourt.pdf) (last visited Nov. 10, 2011).

7. Ralph Losey, “Ethics Interview,” e-Discovery Team, http://e-discoveryteam.com/interviews/ethics-interview (last visited Nov. 10, 2011).

8. TDRPC 1.01, cmt 8.9. Martin v. Northwestern Mutual Life Ins. Co., 2006 WL

148991 (M.D. Fla., Jan. 19, 2006).10. TDRPC 1.05(a).11. TDRPC Preamble paragraph 3.12. TEX. R. CIV. P. 193.3(d).13. Laura Catherine Daniel, The Dubious Origins and

Dangers of Clawback and Quick-Peek Agreements: An Argument Against Their Codification in the Federal Rules of Civil Procedure, 47 WM. & MARY L. REV. 663, 681-82 (2005), citing D.C. Bar, Ethics Op. No. 256 (1995) and Ky. Bar Ass’n, Ethics Op. No. E-374 (1995). See also Colo. Bar Ass’n Ethics Comm., Formal Op. 119 (May 17, 2008).

14. TDRPC 3.04(a).15. See Silvestri v. GMC, 271 F.3d 583, 591 (4th Cir.

2001); Pension Committee of the Univ. of Montreal Pension Plan v. Banc of Am. Securities, LLC, 685 F. Supp. 2d 456, 466 (S.D.N.Y. 2010).

16. See, e.g., Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (Zubulake IV); Micron Tech., Inc. v. Rambus, Inc., No. 09-1263, 2011 WL 1815975 (Fed. Cir. May 13, 2011).

17. See, e.g., Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 (N.D. Cal. 2008) (sanctioning defendant with adverse inference at trial); Great Am. Ins. Co. of N.Y. v. Lowry Dev., LLC, 2007 WL 4268776 (S.D. Miss. 2007) (reducing the plaintiff’s burden of proof as spoliation sanction against defendant).

18. Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422, 430 (S.D.N.Y. July 2004) (Zubulake V).

19. Id.20. “As a general rule, in this circuit, the severe sanctions

of granting default judgment, striking pleadings, or giving adverse inference instructions may not be imposed unless there is evidence of ‘bad faith.’” Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 614 (S.D. Tex. 2010); but cf. Pension Committee, supra n. 17.

21. TDRPC 3.03(a)(1) and (5).22. No. 05-CV-1958-RB (BLM), 2008 WL 66932 (S.D.

Cal. Jan. 7, 2008) (Major, Mag. J.), vacated on other grounds, No. 05-CV-1958-RB (BLM), Slip. Op. at *4-6 (S.D. Cal. Mar. 5, 2008).

23. Id. at *17-18.24. See Qualcomm, No. 05-CV-1958-RB (BLM), Slip. Op.

at 6 (S.D. Cal., Apr. 2, 2010).25. David Cross and Ty Carson, Ethics and E-Discovery

– ‘Reasonable Inquiry’ in the Wake of Qualcomm v. Broadcom, 9 Digital Discovery & e-Evidence (BNA) No. 01, at 2 (Jan. 1, 2009).

26. TDRPC 3.02.27. Id., cmt 1.28. Mancia v. Mayflower Textile Servs. Co., et al., Civil

Action No. 1:08-CV-00273-CCB (D. Md. Oct. 15, 2008).

29. William A. Gross Const. Associates, Inc. v. Amer. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. March 19, 2009).

30. FED. R. CIV. P. 34(b)(2)(E)(i).31. TEX. R. CIV. P. 196.4.32. See “Metadata Ethics Opinions Around the U.S.,”

American Bar Ass’n, http://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/charts_fyis/metadatachart.html (last visited Nov. 10, 2011).


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PlaceMent PolicyThe Houston Bar Association Lawyer Placement Service will assist members by coordinating place-ment between attorneys and law firms. The ser-vice is available to HBA members and provides a convenient process for locating or filling positions.

1. In order to place an ad, attorneys and law firms must complete a registration record. Once registration is complete, your position wanted or available will be registered with the placement service for six months. If at the end of the six-month period you have not found or filled your position, it will be your responsibility to re-register with the service in writing.

2. If you are registered, resumes will be sent out under their assigned code numbers. Once a firm has reviewed the resumes, they are to contact the placement office with the numbers they are interested in pursuing. The placement coordinator will then contact the attorney, give him/her some background information on the inquiring firm, and the attorney will then let the coordinator know if he/she wishes personal in-formation to be released to the firm. This pro-cess will insure maximum confidentiality and get the information to the firms and attorneys in the most expedient manner.

3. In order to promote the efficiency of the Houston Lawyer Placement Service. PleaSe notify the PlaceMent coorDinator of any PoSition founD or filleD.4. To reply for a position available, send a letter to HBA, placement coordinator at the Houston Bar Association, 1300 first city tower, 1001 fannin Street, houston, texas 77002 or e-mail Brooke Eshleman at [email protected]. Include the code number and a resume for each position. The resume will be forwarded to the firm or company. Your resume will not be sent to your previous or current employers.

PlaceMent DeaDlineS Jan. 1 Jan./Feb. Issue Mar. 1 March/April Issue

positions Available


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Legal professionalism requires an appre-ciation of the complex role of law and its impact on our society. According to Aristotle, “law is reason free from pas-sion.” Trust me, I understand the intent

of Aristotle’s assertion—simply that law is not bi-ased, or at least is not intended to be, and should not be subject to inconsistent, unbridled desires and passions. In that sense, Aristotle is correct, though he did not go far enough.

Rather, I think that reason and passion are the two halves of one complete whole, equally yoked in the legal profession. In fact, reason has no endurance in the search for justice, fairness and truth without the motivating force of passion. Reason guides. Passion

A Profilein pRoFessionAlism

DaNieLLa LaNDeRS Partner, Sutherland Asbill & Brennan LLP

drives. Lawyers are supposed to be the navigators of both simultaneously.

Constant challenges to the integrity of our profes-sion amplify the pressures on attorneys, firms, judg-es and the courts to tackle the gamut of social, eco-nomic, civil and criminal issues facing the people in our society. To be most effective, we, as members of the bar, must remain passionate to the enduring values of honesty, diligence, compassion, patience, and respect that have historically made our profes-sion a positive force on all mankind. So, while the law may be considered “reason free from passion” to Aristotle and perhaps others, the truth is that our great legal profession encompasses reason eternally coupled with passion in perfect harmony.


committee spotlight

The American Bar Association defines professionalism as “strict adherence to a core body of values which sets members of the profession apart and jus-

tifies their claim to an exclusive right to engage in the profession’s activities.” The Houston Bar Association has promulgated its own interpretation of profes-sionalism through its Lawyer’s Mandate which states in its preamble that “the conduct of a lawyer should be characterized at all times by honesty, can-dor, and fairness. In ful-filling his or her primary duty to a client, a lawyer must be ever mindful of the Profession’s duty to the legal system.”

The Professionalism Committee fulfills HBA’s commitment to fostering its mandate. The commit-tee consists of approximately 22 members and many other volunteers. Its co-chairs for this year are Jim Winton, a partner with Baker Hostetler LLP, and Erin Lunc-eford, a shareholder with Sprott, Rigby, Newsom, Robbins & Lunceford, P.C., both of whom have years of experience and professionalism under their belts.

The committee promotes professional-ism within the legal community through its two key programs, Professionalism Day and the Mentor/Protégé Program. Professionalism Day is an annual con-ference the committee conducts for law students attending Houston’s three law schools. It features a keynote speaker,

such as Judge Keith Ellison, who gener-ously devoted his time to the task this fall. Students are then divided into small breakout sessions, and discuss a set of hypothetical ethical scenarios with local attorneys and judges. Approximately 50 breakout leaders recruited by the commit-

tee assist with the conference,The most recent Professionalism Day

was conducted October 28 on the campus of Texas Southern University’s Thurgood Marshall School of Law. Six hypothetical ethical scenarios were discussed at that time. “We try to use scenarios that are relevant,” explained co-chair, Jim Win-ton, who believes the hypotheticals can provide valuable lessons for attorneys at every level.

The Mentor/Protégé Program, which in its present form was started by Justice Eugene Cook in 1997, pairs any attorney who has three years of experience or less and requests one with a mentor who prac-

tices in the same area of law. It also spon-sors bi-annual breakfast gatherings for the mentors and their protégés. The program paired over 1,100 Houston attorneys with a mentor since 1997.

In addition to its two core programs, the Professionalism Committee also spon-

sors a fall and a spring ethics lecture designed for attorneys with two years of experience or less. Area judges provide the lectures, and participants are able to receive CLE credit. Last but not least, the committee gives each member of the Harris County judiciary a framed copy of HBA’s Mandate on Professionalism, provides each new HBA member with a copy suitable for framing, and provides a copy of the mandate to every law student en-rolled in professional re-

sponsibility classes at Houston’s three law schools.

The Houston Bar Association and the Professionalism Committee want to en-sure that every Houston lawyer begins his or her career with the ethical tools to tack-le any scenario. To find out more about the Professionalism Committee, please contact Kay Sim, Ashley Steininger, Claire Nelson, or Brian Edwards at the HBA at 713-759-1133.

Julie Barry, attorney at law, focuses on U.S. and international commercial transactional matters. She is an associate editor for The Houston Lawyer.

The Professionalism CommitteeBy julie Barry

law students attend a breakout session during the october 28, 2011 Professionalism Day, hosted this year by thurgood Marshall School of law. the small group sessions, led by distinguished houston attorneys and judges, assist students in learning how to deal with ethical issues that could arise once they are in practice.


oFF the RecoRd

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By julie Barry

Although he was temporarily filling in for another cad-dy, for about 15 minutes, at the age of 13, Jim Berry caddied at the U.S. Open. The daunting responsibility of his task did not go unrecognized by Jim, nor did the pride and the confidence that it instilled in him. That

was the point in his life when his passion for golf began to take off. Since that time, the golf green has provided Jim with a lifetime of pleasure, and he in turn has made it his mission to give back to the sport he loves and better his community in the process. As an active member of the Houston Golf Association (HGA) and this year’s Chairman of the Board of Directors, Jim has devoted countless hours to enabling golf to serve as a character building ve-hicle for Houston-area youth.

The HGA was founded in 1946 by a group of Houstonians who wanted to bring a PGA tour event to the area. Since 1974, that event has been the Shell Houston Open, which has generated more than $53 million for its charitable causes. Youth development and educa-tion has always been a core HGA objec-tive in supporting multiple charities, but in recent years, with the enormous success of its First Tee program, the HGA has added greater focus to the development of this particular program.

The First Tee of Greater Houston operates an “in school” pro-gram throughout the Houston metropolitan area, which currently reaches 142 schools, serving approximately 70,000 elementary-aged students. First Tee works through the health fitness pro-grams at its participating schools in teaching children golf skills and at the same time instilling them with the organization’s Nine Core Values. Through the First Tee program, the HGA also funds two green grass facilities at Redstone and Houston Oaks, which provide First Tee participants with access to golf greens and ad-ditional coaching assistance. Enabling students to play on actual greens has been fundamental to teaching them sportsmanship and courtesy. Teachers and school administrators attest to the success of the program with stories of improved behavior and

academic performance from student participants. Because of the measured success of the program and the increasing demand by other schools in the Houston area, the HGA has made it a future mission to increase the First Tee program by 275 schools, reach-ing an additional 137,500 children, and to add two more green grass facilities within the metropolitan area during the next five years. These are lofty aspirations for the HGA, but this organiza-

tion is all about perseverance. When Jim is not spending time fa-

cilitating others in enjoying the sport of golf, he manages to play a bit himself. He and his golfing buddies play at dif-ferent courses all over the city, and he notes that the accessibility of so many golf venues in one city is a huge benefit that Houston has to offer to the lover of the game. Notwithstanding that Jim has been playing golf for more than 40 years, he still advocates taking a golf les-son every now and then to break those bad habits we all fall into over time.

Don’t think that Jim spends all of his time on the golf course. As a sharehold-er of Chamberlain Hrdlicka, he is board certified in commercial real estate. Jim also boasts extensive experience

representing automobile dealerships. He joined the firm fresh out of law school and has been there ever since. His colleagues at Chamberlain describe him with enormous respect as an indi-vidual having the utmost integrity. As a lawyer, Jim is known for his sound legal and business judgment, and most of all, for his honesty and professionalism.

In fact, the HGA could not have chosen a better leader to serve as chairman of an organization dedicated to its purpose of mak-ing a difference in the Houston community and its youth through golf and charity.

For more information about the Houston Golf Association and how you can volunteer your time, visit www.hga.org.


Jim Berry:

Using Golf to Model Core Values

jim Berry with a young participant at the first tee championship challenge.


David & Lee Roy: A Vietnam Story By David r. nelson and

randolph B. Schiffer

texas tech. university Press, 2011

255 pages reviewed by Polly GrahaM

David & Lee Roy, a book writ-ten by Houston lawyer David Nelson, takes

its reader on a journey that begins with a bond between two children growing up on the Southern Plains, traverses the battlefields of Vietnam, and ends with one man’s quest to honor a lost friend. It is the poignant story of a young marine, Lee Roy Herron, who heroically gives his life defending his country and his friend, David Nelson, who keeps his memory alive.

The book opens with a casket deliv-ered home on a windy March day, but quickly rolls time back to earlier years. In simple prose, Nelson describes grow-ing up with Herron in Lubbock, Texas. The initial chapters are a series of snap-shots capturing key moments, both or-dinary and extraordinary, that reveal Herron’s competitive, intensely patriotic, and reflective character.

As time progresses, the young men en-roll at Texas Tech University, where Her-ron dreams of becoming a marine officer and Nelson hesitantly follows in his path. In the summer of 1966, with the United States involved in the war in Vietnam,

Nelson chronicles his experiences at a marine training camp, where daily life is governed by new and often brutal norms.

As 1967 comes to a close, the demands of work and marriage lead the men on separate paths. Herron arrives at basic training in Quantico, Virginia. Nelson enters Southern Methodist School of Law, where he describes the difficulties of legal studies. Throughout the book, Nelson recognizes the sacrifices of a de-manding career, including time lost with his eldest daughter and his absence at Herron’s wedding.

While Nelson struggles in law school, across the world twenty-four year old Lieutenant Herron, only four months into his tour in Vietnam, takes command of a platoon of marines pinned down by enemy fire in the A Shau Valley. In recognition of his extraordinary valor on that fateful day, the United States Navy awards Herron

its highest distinction, the Navy Cross. In the book’s final chapters, Nelson re-

flects on the highs and lows of his legal career in Houston, candidly admitting that for a brief time he envied Herron for avoiding the continuous challenges of work, family and politics. Eventu-ally, Nelson begins a search to remember and honor Herron. He gathers accounts of Herron’s last moments and travels to Vietnam, where he decides to create a scholarship in Herron’s memory.

David & Lee Roy is an elegant and candid account of friendship, loss, and renewal. It will touch the reader and en-courage all to make the most of each mo-ment of time.

Polly Graham is an associate in the appellate practice group at Haynes and Boone, LLP and is a member of The Houston Lawyer editorial board.

The ABA Spanish Legal Phrasebook By Samantha Snow ward and corinne cooperamerican Bar association, 2010 104 pages $34.95 — www.ababooks.org reviewed by julie Barry

As a commercial law practitio-ner who speaks a fair amount of Spanish but who would like to elevate my abilities to a more professional level,

I recently purchased The ABA Spanish Legal Phrasebook, by Samantha Snow Ward and Corinne Cooper. This pocket-size, 104-page resource offers the reader a quick Spanish reference to many legal terms used in everyday practice. The book provides a short section on com-mon legal phrases and then divides into seven sections based on areas of prac-tice, such as criminal law, family law, business law, and immigration. Each section contains terms common to that practice area. For example, the personal injury and medical malpractice section contains translations for phrases such as “degenerative changes,” “collateral source rule” and “claims paid coverage.” The bankruptcy section contains translations for terms such as “dischargeable debt,” “debtor in possession,” and “motion to lift automatic stay.”

Because the ABA phrasebook is divid-ed into sections, you must give an edu-cated guess as to which section a partic-ular phrase will fall under in searching the resource. This task is not difficult in

mediA RevieWs


most cases, but is something to keep in mind. Additionally, you cannot use this resource to look up Spanish legal phras-es for translation into English.

As useful as the information is, don’t be fooled into thinking this resource will teach you how to speak Spanish. It is intended to assist professionals who already have a working knowledge of the language. With just a little over 1,000 words and phrases, the phrase-book also does not attempt to give the reader a highly sophisticated vocabulary of legal terms. Some of the phrases are in fact quite basic but are not the types of words you would find in a typical pocket dictionary. For example, I checked some random phrases from the “Business Law” section, such as “audit,” “quo-rum” and “fiduciary” to see if I could find them in my Barron’s Spanish English Pocket Dictionary. None of these words were in my Barron’s dictionary. Clearly,

other phrases in the ABA phrasebook are more complex, which is the real value of this resource. You can find the Spanish translation for such phrases as “share-holder derivative suit,” “contingency fee agreement,” “liquidated damages” and “temporary restraining order” in the ABA book.

The authors of The ABA Spanish Legal Phrasebook have attempted to find a bal-ance in the level of sophistication they have produced in the book. There are a multitude of practicing attorneys who are fluent in Spanish who will have no need for this book. Additionally, there are many attorneys with little knowledge of Spanish who will not find the Phrase-book particularly helpful if they are un-able to communicate with their clients in Spanish on the most basic level. The ABA Spanish Legal Phrasebook, however, fills a clear void in reference materials available for Spanish-speaking lawyers

mediA RevieWs

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who need a technical legal vocabulary. Both authors of The ABA Spanish Legal

Phrasebook are licensed attorneys who have a number of years of experience in their fields and strong backgrounds in Spanish. They both also have published numerous treatises for the ABA and are contributors to the forthcoming ABA publication entitled Letters for Spanish-Speaking Clients.

At $34.95, The ABA Spanish Legal Phrasebook is a bit pricey compared to your typical pocket Spanish diction-ary (my Barron’s pocket dictionary cost me $8.99). But this resource is well worth purchasing by the professional who is working towards Spanish profi-ciency.


UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISIONPUBLIC NOTICE

REAPPOINTMENT OF INCUMBENT MAGISTRATE JUDGESTEPHEN W. SMITH

The current term of the office of United States Magistrate Judge Stephen W. Smith at Houston, Texas, is due to expire July 21, 2012. The United States District Court is required by law to establish a panel of citizens to consider the reappointment of

Magistrate Judge Stephen W. Smith to a new 8 year term.

The duties of a Magistrate Judge position include the following:

1. Conducting most preliminary proceedings in criminal cases; 2. Trial and disposition of misdemeanor cases; 3. Conducting various pretrial matters and evidentiary proceedings on delegation from the judges of the district court; and, 4. Trial and disposition of civil cases upon consent of the litigants.

The court invites comments from members of the bar and the public as to whether the panel should recommend the reappointment of Magistrate Judge Stephen W. Smith to the court. Direct comments to: Stephen W. Smith Reappointment Panel; Attention: David J.

Bradley, U. S. District Clerk, (under confidential cover), P.O. Box 61010, Houston, Texas 77208.

Comments must be received no later than January 20, 2012, 5:00 p.m.


legAl tRends

Extreme Appellate Savings: Four Tips for Making Every Dollar Count on AppealBy chriStina crozier

Whether your client is an individual, a small busi-ness owner, or a general counsel at a large cor-poration, spending liti-

gation dollars wisely is a high priority in this economy. Now more than ever, part of being a true counselor to clients means caring about their bottom line and helping them to avoid unnecessary spending.

After trial and on appeal, there are sev-eral things that you can do to save your clients thousands of dollars without cut-ting corners on quality work product.

• Scrutinize costs in the final judgment. Parties often fail to thoroughly comb through the costs sought by a prevail-ing opponent. Under Texas law, costs generally include the fees and charges required by law to be paid to courts or their officers. Costs do not include the expenses incurred in prosecuting or defending a lawsuit. Examples of unre-coverable costs include fees for photo-copies (unless those copies are required by law), expert witnesses, delivery services, travel, binding of documents, and “other expenses in preparation of trial.” By weeding out unrecoverable costs, you can put thousands of dol-

lars back into your clients’ pockets.

• Consider whether your client can ob-tain alternate security. The traditional way to suspend enforcement of a judg-ment pending an appeal is through a su-persedeas bond in the amount of com-pensatory damages, interest, and costs. But when your client has been hit with a $1 million judgment, ponying up $1 million in cash for a supersedeas bond can be devastating and cost-prohibitive. You can lower the cost of the bond, how-ever, under certain circumstances. First, a supersedeas bond cannot exceed 50 percent of the judgment debtor’s current net worth. For example, if the judgment against your client is for $1 million and your client’s net worth is only $500,000, you can lower the amount of the bond to $250,000. Second, regardless of your client’s net worth, the amount of a supersedeas bond must not cause the judgment debtor “substantial econom-ic harm.” Under the same example, if paying any more than $100,000 in cash would drive your client into bank-ruptcy, you might secure the judgment with just a $100,000 bond. Third, a supersedeas bond cannot exceed $25 million. In the rare case where a judg-ment exceeds this amount, you can cap the cost of the bond at $25 million.

• Don’t over-designate the record. A large appellate record can cost more than $30,000. The appellant is respon-sible for designating the contents of both the clerk’s record and the report-er’s record, and the cost of the record will ultimately depend on how big it is. Rather than throw in every conceiv-able document, take the time to really consider what parts of the record will be necessary to make your appellate arguments. Cut out irrelevant motions, pleadings, and parts of the trial tran-script such as voir dire and opening statements. Not only will your clients

save money on the record, but they will also save money on the time that you would otherwise spend digging through a cumbersome record as you prepare your brief. If you later realize that you need a document that you did not des-ignate, you can supplement the record.

• Consider whether you really need an oral argument. As satisfying as a good oral argument can be, proper prepara-tion is time-intensive and expensive, and the return on the investment is of-ten minimal. Most judges will tell you that they make their decisions based on the briefs, and you are more likely to lose your case in oral argument than win it. If your case is relatively straight-forward and can be adequately ad-dressed by the briefs, it might not be cost-effective to request oral argument.

With smart planning and a little extra effort, these tips can reap big financial rewards for your clients. And in today’s economy, every dollar counts.

Christina Crozier is an associate in the appellate practice group at Haynes and Boone, LLP.

endnote1. Sterling Bank v. Willard M L.L.C., 221 S.W.3d 121,

125 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see, e.g., TEX. CIV. PRAC. & REM. CODE § 31.007 (describing permissible costs).

2. Sterling, 221 S.W.3d at 125. 3. TEX. R. CIV. P. 140; Shaikh v. Aerovias de Mexico,

127 S.W.3d 76, 82 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

4. Headington Oil Co. v. White, 287 S.W.3d 204, 212 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).

5. Shenandoah Assocs. v. J & K Props., Inc., 741 S.W.2d 470, 487 (Tex. App.—Dallas 1987, writ denied).

6. TEX. CIV. PRAC. & REM. CODE § 52.006(a).7. For a detailed discussion of alternate security, see

Elaine Carlson, Reshuffling the Deck: Enforcing and Superseding Civil Judgments on Appeal after House Bill 4, 46 S. TEX. L. REV. 1035, 1092-96 (2005).

8. TEX. R. APP. P. 24.2(a)(1)(A); TEX. CIV. PRAC. & REM. CODE § 52.006(b)(1).

9. TEX. R. APP. P. 24.2(b); TEX. CIV. PRAC. & REM. CODE § 52.006(c).

10. TEX. R. APP. P. 24.2(a)(1)(B); TEX. CIV. PRAC. & REM. CODE § 52.006(b)(2).

11. See TEX. R. APP. P. 34.5(a)(13); TEX. R. APP. P. 34.6(b)(1).

12. TEX. R. APP. P. 34.5(c); 34.6(d).


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Documents

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llp batemanpugh

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baker williams matthiesen

reviewthe ethical challenges

pllc bell