Texas Lawyer Blog

UPDATE: Love 'em or hate 'em, it's law school rankings time again

My posting regarding U.S.News & World Report’s annual law school rankings mistakenly stated that the University of Houston Law Center ranked 57th among the magazine’s list of the 100 top American Bar Association-accredited law schools. In fact, it's in the 55th position, tying with Baylor University School of Law in Waco and two other schools: Florida State University College of Law in Tallahassee, Fla. and Yeshiva University Benjamin N. Cardozo School of Law in New York.
--- Jeanne Graham

Lanier Law Firm opens second California office

The Lanier Law Firm has opened an office in Palo Alto, Calif., the second California office for the Houston-based firm. Christopher Banys, who left Howrey’s Palo Alto office to move to the Lanier Law Firm, says he has been working for the firm for a few weeks but the office opened officially on March 31. Banys says he couldn’t pass up the opportunity to work with W. Mark Lanier, founder of the Lanier Law Firm, and start a new office. “Mark Lanier has a fantastic reputation. I was very impressed. I thought I could learn a lot from him,” Banys says. “It’s a pretty exciting area of the patent litigation world, being on the plaintiffs side.” Lanier says in a written statement on March 31 that the Palo Alto office, located in the Silicon Valley, will help the firm expand its intellectual property litigation group. The Lanier Law Firm, which has 31 lawyers firmwide, moved into the California market when it opened an office in Los Angeles in October 2007. The firm’s New York City office dates back to 2005.

-- Brenda Sapino Jeffreys

Semper Fi

The best criminal-defense lawyer is one who can manage to get the charges against his or her client dismissed way before trial. So put Jack Zimmermann of Houston's  Zimmermann, Lavine, Zimmermann & Sampson in that category:  The Marine Corps dropped all of the charges against his client, Lance Cpl. Stephen B. Tatum, for his alleged involvement in the deaths of several Iraqi civilians in Haditha, Iraq, in 2005. A short press release issued by the Marine Corps explained that the charges were dropped against Tatum “in order to continue to pursue the truth seeking process into the Haditha incident.” Tatum had been charged in a military court with involuntary manslaughter, aggravated assault and reckless endangerment, the release noted. In previous hearings, the government contended that a squad of enlisted Marines including Tatum went on a rampage, seeking revenge for the loss of their comrade. [See  "Fog of War," Texas Lawyer, Sept. 3, 2007, page 1.] Many of those killed were women and children who were shot in their homes, some at close range, which suggested execution-style killings. Tatum has always denied the charges. “It became clear to the experienced prosecution team that the right thing to do was to dismiss all charges against LCpl Tatum.  We believe the evidence shows that LCpl Tatum reacted to an enemy attack the way he was trained to do,” Zimmermann wrote in a press release. “This result is consistent with the recommendation of the Article 32 investigating officer who recommended last summer that no court-martial be held in this case.” Zimmermann is a retired Marine colonel and decorated Vietnam veteran.
-- John Council

Love 'em or hate 'em, it's law school rankings time again

Four Texas law schools are ranked among the nation’s best 100, and six are among the most diverse, according to U.S. News & World Report’s annual rankings. The 2009 edition of the magazine’s “America’s Best Graduate Schools,” which includes rankings of American Bar Association-accredited law schools, hit the book stores this past weekend. It shows the University of Texas School of Law at Austin taking the highest rank – 16th place – among the Texas schools. Other Texas schools among the top 100 are 46th ranked Southern Methodist University Dedman School of Law in Dallas, 55th ranked Baylor University School of Law in Waco and 57th ranked University of Houston Law Center. The magazine considers the top 100 schools as its first and second tier rankings. The magazine places Texas Tech University School of Law in Lubbock in its third tier grouping and the remaining four ABA-accredited Texas schools in the fourth tier: South Texas College of Law in Houston, St. Mary’s University School of Law in San Antonio, Texas Southern University Thurgood Marshall School of Law in Houston and Texas Wesleyan University School of Law in Fort Worth. The magazine gives each school a diversity index, ranging from 0.0 to 1.0, based on the school’s total proportion of minority students and the mix of ethnic groups on the campus during the 2007-2008 academic year. The diversity index for Thurgood Marshall is 0.67, the highest among the schools. African-American students, the school’s largest minority population, make up 47 percent of the school’s student body. Other Texas schools on the most diverse list are St. Mary’s University with a diversity index of 0.51 and UT Austin with a diversity index of 0.47 for their Hispanic student populations of 24 percent and 16 percent, respectively; the University of Houston Law Center with a diversity index of 0.45 and South Texas with a diversity index of 0.41, both with 11 percent Asian-American students; and the Dedman School of Law with a diversity index of 0.39 with 10 percent Asian-American students. The magazine also ranks the 10 schools considered the best by law faculty for teaching certain specialties. UH Law Center is ranked second for health and seventh for intellectual property law; UT Austin is in a three-way tie for tenth in tax law and a three-way tie for ninth in trial advocacy. Two other Texas schools are also ranked among the best for trial advocacy: South Texas takes sixth place, and Baylor is tied for eighth.
-- Jeanne Graham

From motel to parking lot = change of address

Convicted sex offenders should take heed of a recent decision by the 5th Court of Appeals in Dallas. In its March 26 decision in Breeden v. State, the 5th Court affirmed a Dallas Criminal District Court No. 2 jury’s conviction of James Burt Breeden for failing to register as a sex offender. The issue upon which Breeden’s case hinged is whether moving out of a motel room and into a vehicle on the motel parking lot constituted a change of address. Justice Jim Moseley wrote in the opinion that Breeden, who had two prior convictions for sex offenses, moved into the Big Town Inn in Mesquite on March 28, 2005, but relocated to his truck parked on the motel parking lot April 1, 2005. Moseley further noted that Breeden moved to the Rodeo Motel in Mesquite on April 8, 2005, and appeared in person at the Mesquite Police Department to register his address April 13, 2005. At the time of Breeden’s alleged offense, Texas Code of Criminal Procedure Article 62.04(a) required a convicted sex offender to report any change of address to law enforcement officials not later than the seventh day after making the move. According to the opinion, the statute applied to Breeden, because he had two prior convictions for sexual assaults. As noted in the opinion, Breeden testified at trial that he visited the Mesquite Police Department to notify the detective in charge of his registration April 8, 2005, but was told that the detection was not there and to come back three days later. Breeden also testified that he called the detective and left messages, but the detective testified that he had not received any calls. The jury assessed Breeden’s punishment, enhanced by one prior conviction, at 55 years. The 5th Court rejected Breeden’s argument that his move from a motel room to a vehicle on the motel’s parking lot did not constitute a change of address. Justices David Bridges and Martin Richter joined Moseley in the decision.

-- Mary Alice Robbins

Trademark fight at the Kiddie Korral

A Texas maker of children’s clothing alleges that an Ohio importer of "clothing knock-offs” is infringing on its copyrights, trademarks and trade dress. In Kiddie Korral Co. v. Taj Imports Inc., et al., filed March 24 in U.S. District Court for the Northern District of Texas, Kiddie Korral of Dallas claims that Taj Imports of Oakwood Village, Ohio, and Robert Lafferty of Richardson are infringing on the Western theme of Kiddie Korral’s clothing line for young girls by importing and selling in the United States “nearly identical” clothing that is sold under the brand name of “Krazy Kids.” Kiddie Korral, the complaint states, sells “a unique child’s clothing ensemble intended for young girls that consists generally of a shirt top and a skirt.” Kiddie Korral’s logo is an outline of two boots pointing in the same direction, which is featured on the ensemble’s shirt. Taj Imports and Lafferty are violating Kiddie Korral’s copyright and trademark rights in the logo, the suit alleges, as well as Kiddie Korral’s trade dress rights in the ensemble. “Defendants’ acts are calculated to deceive, or are likely to deceive, the public who associates the Kiddie Korral Trade Dress with Kiddie Korral,” the complaint states. Kiddie Korral seeks an injunction, damages and attorneys’ fees.
-- Jonathan Fox

Giving in gratitude

Scott Placek and Scott Arnold opened their firm in the Austin suburb of Round Rock in February 2003.  Five years later, Arnold & Placek is thriving, and the two founding shareholders have found a way to mark the milestone by giving back to the community. In celebration of the firm's fifth anniversary, shareholders have announced their “5 for Five Campaign,” with the Round Rock Community Foundation and the Chisholm Trail Communities Foundation. Through the campaign, the firm will donate 5 percent of its gross annual revenue for distribution to nonprofits in Williamson County and Central Texas.  Placek, chairman of Arnold & Placek’s foundation committee, estimates that the now six-lawyer firm will donate more than $50,000 to nonprofits this year.  “We just wanted to do something to celebrate the fact that we’ve been in Williamson County five years,” Placek says. “This came to us.” Notes Arnold, “We wanted to return something back to the communities that have been so supportive of us in our first five years of operations.”  It’s an idea worth copying.
-- Mary Alice Robbins

Justice, your hero is calling

Don Willett, a normally quick-witted as well as witty Texas Supreme Court justice, admits he didn’t quite know what to do or say when his court assistant told him in early February that his intellectual hero had called wanting to talk to him. “My court assistant says, 'Judge, George Will’s office called.'  My incisive response: ‘Huh?’ ” Willett recalls. “She tries again, ‘George Will’s office.  Here’s the number.’  She has no idea why he’s calling, and I couldn’t conjure up a reason,” Willett says. As it turns out, Will had read a copy of a book review Willett wrote for the Texas Review of Law & Politics, a University of Texas School of Law journal on which Willett has served on the advisory board for several years. The review was of Arthur C. Brook’s "Who Really Cares: The Surprising Truth About Compassionate Conservatism." Will said some gracious things about the book review, and the justice and the ABC News political analyst/Washington Post and Newsweek columnist chatted for a while, Willett says. “I mentioned how his Newsweek and newspaper columns had helped sustain me in the political wilderness of law and grad school in the early '90s and how I’d spent some late and nerdy nights reading column after column from his various collections,” Willett says. Weeks after Will and Willett spoke, Will’s office sent a rough draft of his column and asked if Willett would look it over and share his thoughts. “Having a Pulitzer Prize winner invite you to review his writing is sort of like having Sinatra invite you to critique his crooning — a little otherworldly,” Willett says. So six weeks went by, and Willett says he thought Will has gone on to more pressing topics and decided not to publish the column for some reason. Then, on the morning of March 27, a friend in Washington, D.C., e-mailed Willett a copy of Will’s latest Washington Post column in which Willett is featured in the first paragraph. “Not a bad way to start the day,” Willett says.
-- John Council

Another departure at the Harris County DA's office

Kerry Stevens, who was the executive secretary to former Harris County District Attorney Chuck Rosenthal, was scheduled to retire from the Harris County DA's office, effective 5 p.m. today. Romantic e-mails that Rosenthal sent to Stevens were disclosed as part of discovery in a federal civil rights suit (the Houston Chronicle reported on Dec. 29, 2007, that Rosenthal acknowledged they had an intimate relationship during his prior marriage but denied a current affair). Rosenthal later resigned after other, unrelated embarrassing e-mails surfaced. Gov. Rick Perry appointed Ken Magidson, a federal prosecutor, as acting DA to finish Rosenthal’s term. After Magidson was sworn in on March 19, he chose his own executive secretary, says Scott Durfee, general counsel for the Harris County DA’s office. As a result, Durfee says, Stevens was reassigned to work as an administrative assistant in the office’s grand jury division, receiving a salary cut and the loss of her county car. The salary cut occurred because only the DA’s executive secretary could receive that level of pay as an administrative assistant, Durfee says. Magidson also ended the practice of allowing the DA’s executive secretary to receive county cars, Durfee says. Durfee says that Stevens had been a employee of the district attorney’s office since 1979, serving as an administrative assistant and executive secretary to Rosenthal from 2001 to 2008. Durfee said that she decided to retire on her own. “She is clearly a dedicated public servant and did really good work all of those years,” Durfee says. “She will be missed.” A Houston telephone number for Stevens could not be located.
-- Jonathan Fox

Back to the classroom

James Alfini, president and dean of South Texas College of Law in Houston, says he’ll step down at the end of the 2008-2009 academic year.  Alfini informed the STCL board of directors of his plans on March 25.  The good news is that Alfini will remain on STCL’s faculty. Alfini, who has been at the helm at STCL for the past five years, says he’s become more and frustrated that he cannot spend as much time teaching and writing as he would like. “I love being a law professor,” Alfini says, who adds that he has taught mediation, constitutional law and First Amendment law but will be open to teach whatever courses STCL needs. 
-- Mary Alice Robbins

Lawyering up in multibillion-dollar buyout battle

San Antonio’s Clear Channel Communications Inc. and two private equity companies poised to buy out the radio/television/outdoor advertising company for $26 billion brought out some really big Texas guns on March 26 for a courthouse battle with bankers. On March 26, Clear Channel and CC Media Holdings Inc., an acquisition company for Bain Capital LLC and Thomas H. Lee Partners LP, filed a petition in state court in Bexar County, alleging a group of banks committed to help fund the merger between Clear Channel and CC Media have interfered with the merger contract “most recently, by refusing to execute necessary documents in an overt effort to ‘run out the clock’ and cause Plaintiffs’ Merger Agreement to collapse.” In Clear Channel Communications Inc., et al. v. Citigroup Global Markets Inc., et al. the plaintiffs seek actual damages they estimate could exceed the $26 billion value of the deal, plus unspecified punitive damages. The plaintiffs’ team of lawyers for Clear Channel and CC Media is a who’s who of the Texas trial bar, including Joseph Jamail, a partner in Jamail & Kolius in Houston; David Beck, a partner in Houston’s Beck, Redden & Sechrest; Ricardo Cedillo and Les Strieber III, shareholders in Davis, Cedillo & Mendoza in San Antonio; Robin Gibbs and Kathy Patrick, partners in Gibbs & Bruns in Houston, and Jacks C. Nickens Jr. and Thomas Farrell, partners in Nickens Keeton Lawless Farrell & Flack in Houston. Working fast, the plaintiffs team secured an ex parte temporary restraining order on March 26 from 131st District Judge John Gabriel of Bexar County that prevents the defendants, among other things, from “taking any action that would interfere with or thwart consummation of the Merger Agreement,” from interfering with or thwarting consummation of the agreement by refusing to fund the transaction as agreed in the commitment letter, from violating the agreement or depleting funds available for purposes of the merger. The TRO expires on April 8, the same day Gabriel set a hearing on the plaintiffs’ application for a temporary injunction. The suit names Citigroup Global Markets Inc., Citicorp USA Inc., Citicorp North America Inc., Morgan Stanley Senior Funding Inc., Credit Suisse Securities USA LLC, RBS Securities Corp., Wachovia Investment Holdings LLC, Wachovia Capital Markets LLC and Deutsche Bank Securities Inc. as defendants, and it alleges they collectively pledged more than $22 billion to the transaction. A spokeswoman for Citigroup, Danielle Romero-Apsilos, issued a statement on March 26 on behalf of the banks, saying the litigation was meritless, but she could not immediately be reached for comment. Jamail, Cedillo, Gibbs and Nickens did not immediately return telephone messages, and Beck’s assistant referred comment to a company spokeswoman. However, outside spokesman Ray Yeung says he cannot comment beyond press releases. Terms of the deal call for CC Media, through the merger, to become the owner of Clear Channel no later than June 12.
-- Brenda Sapino Jeffreys

The Celis saga continues

Mauricio Celis of Corpus Christi, who faces criminal charges of falsely holding himself out as a lawyer and civil suits alleging he engaged in the unauthorized practice of law, got some good news on March 24 in a long-running suit pending in Zapata County. In an order on March 24, Judge David Peeples, the administrative judge for the fourth region, granted in part and denied in part motions for summary judgment sought by Celis, CGT Law Group International and other defendants in a tortious interference suit. In Gonzalez & Associates Law Firm, et al. v Chris Pinedo, et al. , Gonzalez & Associates Law Firm of McAllen and its client, Priscilla De Los Santos, allege Celis, CGT and others tortiously interfered with the firm’s “valid contract” to represent De Los Santos in a suit stemming from a 2004 house fire. In the order, Peeples granted summary judgment to Celis, CGT and other defendants on negligence claims brought by the plaintiffs in Gonzalez v. Pinedo. He also granted a motion for summary judgment in favor of Celis, CGT and other defendants on Gonzalez & Associates’ unauthorized practice of law and conspiracy causes of action. But Peeples denied Celis, CGT and other defendants summary judgment on UPL and conspiracy claims De Los Santos brought. Peeples denied a motion for summary judgment brought by Celis, CGT and other defendants on the plaintiffs’ intentional interference with contract claims, but he granted summary judgment to Celis and Chris Pinedo, a former lawyer at CGT, on frivolous-pleadings allegations under Rule 13 of the Texas Rules of Civil Procedure and Chapter 9 and 10 of the Texas Civil Practices & Remedies Code. In a written statement, Andrew M. Greenwell, an attorney for Celis and CGT in the Zapata County suit, writes that his clients won a “measure of vindication” with the summary judgment order. “This is yet another example that shows that Mauricio Celis is the victim of a baseless hue and cry . . . The reason Mauricio Celis is winning, and will continue to win, is because he’s right and has done nothing wrong,” writes Greenwell, a partner in Harris & Greenwell in Corpus Christi. Plaintiffs’ attorney Raymond Thomas, a partner in Kittleman, Thomas & Gonzales in McAllen, says he is pleased Peeples “allowed the bulk of our causes of action to remain intact.” Thomas says the suit is set for trial in October. “What the judge did is he went through the petition and cleaned up the pleadings and decided what claims were viable,” Thomas says. But Celis’ most pressing legal matter may be the criminal charges pending in Nueces County. In November 2007, a Nueces County grand jury indicted Celis on 10 criminal charges: seven counts of falsely holding himself out as a lawyer, one count of aggravated perjury, one count of impersonating a public servant and one count of theft. He has pleaded not guilty.
-- Brenda Sapino Jeffreys

Don't put those checkbooks away quite yet

Patrick Oxford, the chairman of Houston's Bracewell & Giuliani, chaired his partner and former New York Mayor Rudy Giuliani's now-aborted campaign for president. He says the campaign will return -- as required by law -- donations earmarked for spending in the general election in November. Make sense, since Giuliani isn't running in November. But Oxford says the former candidate most likely will hold out his hat to get donations to help retire debt still owed for the primary race obligations. The campaign has to make a good faith effort, Oxford says, to raise the money.
-- Miriam Rozen

Too much information?

Virtually ensuring that sex offenders will never work again, Texas' sex offender registry soon will begin listing the offenders' places of employment and job titles. The registry’s Web site already lists the name, date of birth, home address, physical description and photo of the offender. Why the extra information? Because Texas Attorney General Greg Abbott says the sex offender employment data is public information, according to an article in The Dallas Morning News. Maybe so. But what employers will want the world knowing they’ve hired a sex offender? And, honestly, what would you rather have: a sex offender who works 40 hours a week and contributes to society or one who is unemployed, hangs around his publicly listed residence all day and looks for trouble? 
--- John Council

UPDATE: SpaghettiOs maker sued after alleged choking death

An update on my earlier post: Anthony Sanzio, a spokesman for Campbell Soup, calls the incident "a tragedy" but says the company investigated the matter and "has no reason to believe it bears any responsibility for what occurred to Marquez Dozier while he was at a day-care facility." Sanzio provided a copy of a March 21, 2006, autopsy report from the Harris County Medical Examiner's Office that states the cause of Marquez's death as "undetermined." The report states that Marquez became unresponsive while eating, but that "[a] clinical suggestion . . . of  'choking' was not substantiated." The report further states: "[T]he food that was being provided . . . would not have formed a bolus."  A bolus is a small, round mass. Sanzio also states that SpaghettiOs is safe and meant for children ages 6 through 10, but that parents and caregivers must exercise judgment in feeding children. "There's no reason to believe that SpaghettiOs presents a choking hazard," he says. Sanzio says that in October 2007, Kevin Kelley, a partner in Kelley|Witherspoon and lead counsel for the plaintiffs in the case, made a $20 million settlement demand on Campbell Soup, which the company declined. Kelley says, "An autopsy that is undeterminative isn't an uncommon thing." He says that a report by the Houston Fire Department and another medical report show an obstructed airway. Kelley notes that his demand letter stated that the claims could result in a jury verdict of $20 million, but he says he's not seeking that amount. Rather, he wants Campbell Soup to add a warning label to SpaghettiOs and "fairly and adequately compensate this family."

-- Jonathan Fox

SpaghettiOs maker sued after alleged choking death

A Houston couple is suing Campbell Soup Co. alleging wrongful death after their 17-month-old son allegedly choked on a meatball in a can of SpaghettiOs, a Campbell Soup product. In Dozier, et al. v. Campbell Soup Co., filed March 7 in the 127th District Court of Harris County, Angellia and Gary Dozier allege that Campbell Soup, by failing to include a warning label on SpaghettiOs disclosing a potential choking risk, failed "to adequately warn consumers of the dangers associated with children eating SpaghettiOs." Campbell Soup's alleged failure to include a warning of the "child choking risk" associated with SpaghettiOs, which are marketed toward children, led to the death of the Doziers' son Marquez, the plaintiffs allege. Marquez died in March 2006 when a babysitter allegedly fed him SpaghettiOs; emergency workers were unable to revive him, according to a March 25 statement released by Kelley|Witherspoon, a Dallas firm representing the Doziers. "The total absence of product warnings, labels and other methods of informing consumers of the choking risks associated with SpaghettiOs is grossly negligent and likely the cause of numerous incidents nationwide," the Doziers' allege in their suit. The Doziers also are suing Campbell Soup Supply Co., the Grocers Supply Co. Inc. and Fiesta Mart Inc. in the wrongful-death suit, which includes theories of strict products liability, breach of warranty and negligence. The Doziers' suit does not specify a dollar amount of damages, but seeks mental anguish and exemplary damages. Kelley|Witherspoon's news release says the Doziers' pleading "requests the immediate removal of SpaghettiOs products from all retail establishments," although the Doziers' original petition does not seek an injunction. Kevin Kelley, a partner in Kelley|Witherspoon and lead counsel for the Doziers, declines further comment. A Campbell Soup representative did not immediately return a telephone call.

-- Jonathan Fox

It’s a shame about Ray

Way to go lemonhead. Rockwall County District Attorney Ray Sumrow has sent plenty of defendants to the Texas Department of Criminal Justice in his more than 20 years as DA. But soon he’ll find out if he’ll be fitted for his own prison jumpsuit. On March 24, a Dallas County jury found Sumrow guilty of theft by a public servant -- a felony conviction that could cost Sumrow his position as DA. He faces up to 10 years in prison but is eligible for probation. Retired State District Judge John Nelms may decide Sumrow’s sentence today and whether he can keep his job while he appeals the jury’s verdict. Sumrow was indicted for allegedly stealing from his “fee fund” -- an account he maintained from fines collected from hot-check writers in his county. Sumrow was accused of using those funds for computer equipment for personal use and for airline tickets for his girlfriend. He pleaded not guilty. While the jury found Sumrow guilty on the theft charge, it deadlocked on other charges including forgery and records tampering.

UPDATE: The Star-Telegram reports that Rockwall County District Attorney Ray Sumrow was sentenced to four years in prison by a Dallas County jury. The judge in the case will decide whether Sumrow is free pending appeal and whether Sumrow will remain DA pending his appeal.

--- John Council

Cisco's new blog policy

Blogging just won’t be the same for Cisco employees anymore, under a new amended corporate policy on employee blogging. In a posting on its official corporate blog, San Jose, Calif.-based Cisco Systems Inc. announced the new policy on March 24. The new policy comes in the wake of controversy and litigation brought by two East Texas lawyers after in-house intellectual property lawyer Richard Frenkel identified himself as the author of the Patent Troll Tracker Blog. The new policy includes the clause: “If you comment on any aspect of the company’s business or any policy issue the company is involved in where you have responsibility for Cisco’s engagement, you must clearly identify yourself as a Cisco employee in your postings or blog site(s) and include a disclaimer that the views are your own and not those of Cisco.” The policy also bars Cisco employees from circulating blog postings they know are written by Cisco employees without informing the recipient of that fact. In a posting on The Platform, The Official Cisco Blog, the company wrote that the changes in the blog policy follow Frenkel’s disclosure that he was the blogger. In Patent Troll Tracker, Frenkel wrote frequently about so-called patent trolls -- companies that allegedly buy patents simply to use them to file infringement suits. Cisco wrote in the March 24 posting that it learned some “clear lessons” from its investigation of the employee blogging issue. Cisco wrote that no one from the company edited Frenkel’s anonymous posting or required him to write on any topic, and only his immediate supervisor, among his supervisors, knew he was the Patent Troll Tracker author. While Frenkel intended the blog to solely reflect his opinions, Cisco wrote, the in-house lawyer’s relationship to Cisco “should have been made clear and Cisco takes responsibility for the content of the blog.” Also, Cisco wrote that a few Cisco employees used “poor judgment” when they suggested topics to Frenkel for the blog or pointed third parties to the blog without mentioning that a Cisco employee wrote it. “These are not appropriate communications activities for Cisco employees and are inconsistent with our values and principles.” Cisco also wrote it is committed to allowing employees to express themselves online and Frenkel is free to continue to post on Patent Troll Tracker in compliance with the new policy. “Rick has many fans who appropriate the information he collects and disseminates on patent litigation trends and recognize his blog as an important voice in the on-going dialogue on patent issues,” Cisco wrote in the official company blog. Frenkel could not immediately be reached for comment. After Frenkel outed himself as the blogger, two East Texas lawyers filed defamation suits in Gregg County against Frenkel and Cisco. T. John Ward Jr., a partner in Ward & Smith in Longview and a son of U.S. District Judge T. John Ward of the Eastern District, filed his amended petition on Feb. 27 in Gregg County, but he refiled in Arkansas’ Texarkana Division on March 13. Eric Albritton, of the Albritton Law Firm in Longview, filed a similar defamation suit on March 3 in Gregg County, but Cisco removed it on March 14 to the Eastern District of Texas.

-- Brenda Sapino Jeffreys

Freezing out competition?

The two biggest sellers of packaged ice in the United States are engaging in anticompetitive price-fixing and market-allocating activities, a new class-action suit alleges. In Massino, et al. v. Arctic Glacier Income Fund, et al., filed March 20 in U.S. District Court for the Northern District of Texas, Joseph Massino, who operates a beer distributorship in Glenside, Pa., and has purchased packaged ice in the recent past, alleges that Reddy Ice Holdings Inc. of Dallas and Arctic Glacier International Inc. of West St. Paul, Minn., the U.S. subsidiary of Arctic Glacier Income Fund of Canada, have conspired in their industry to violate antitrust laws by price fixing and allocating markets to avoid competition with each other. The suit alleges that the two icemakers agreed to split up the U.S. market so that Reddy had the dominant market position in 31 states comprising the South, Southwest and Northwest, while Arctic had the dominant market position in 15 states in the Northeast, Midwest and West. The Department of Justice is investigating possible antitrust violations by the two companies, the suit alleges. Massino, on behalf of a putative class, is seeking treble damages under the antitrust laws. He is represented by attorneys Barry C. Barnett and Terrell W. Oxford of Susman Godfrey’s Dallas office, as well as lawyers from Minnesota and Pennsylvania.
-- Jonathan Fox

You can stop the beat

A federal court has ordered Abner Anderson, a Houston-area man, to pay $23,670 to several major recording labels for violating their copyrights through Internet file sharing. In Atlantic Recording Corp., et al. v. Anderson, filed Nov. 14, 2006, in U.S. District Court for the Southern District of Texas, Atlantic and other four record companies claimed Anderson infringed their copyrights by placing 31 recordings in “his KaZaA shared folder on his computer,” allowing other file sharers to download the songs. On March 12, U.S. District Judge Vanessa D. Gilmore granted summary judgment in favor of the record companies. After an investigator determined Anderson’s IP address, the record companies used that address to ascertain Anderson’s identity by subpoenaing Time Warner Cable, according to a statement of facts in the summary judgment order. The 31 recordings include songs by Avril Lavigne, Beck, MC Hammer, 50 Cent and Jennifer Lopez, Gilmore stated in the order. She awarded the companies $750 per infringed song for a total of $23,250, as well as $420 in costs.
-- Jonathan Fox

Fee filing: Pay up, Chuck

Houston plaintiffs lawyer Lloyd Kelley, whose litigation against Harris County helped trigger the resignation of former Harris County District Attorney Chuck Rosenthal, wants money for the legal work he has completed. On March 19 Kelley filed a fee application in federal court in Erik Adam Ibarra, et al. vs. Harris County et al, seeking to have U.S. District Judge Kenneth Hoyt order Rosenthal and Scott Durfee, a Harris County assistant district attorney and chief of the general litigation division, pay Kelley, his co-counsel David Tang and their legal assistant's fees for their pursuit of a contempt action against Rosenthal, Durfee and Harris County First Assistant District Attorney Bert Graham. Hoyt is investigating a possible contempt charge against Rosenthal, who admitted to deleting more than 2,500 e-mails. At the time, some of Rosenthal's computer correspondence was subject to a subpoena in Ibarra. Kelley asks Hoyt to order Rosenthal and Durfee to pay $31,625 immediately and another $100,000 if Rosenthal and Durfee appeal any findings in the contempt proceedings. Kelley's fee request is in addition to the $4.4 million in fees and $149,978 in expenses he requested for his legal team in a fee application filed in Ibarra on March 17, in which Kelley referred to his legal work as "extraordinary." Kelley asked the judge to order that Harris County pay those fees as part of its agreement to settle Ibarra, a deal announced on March 3. That day, Harris County Commissioners voted unanimously to pay all attorney fees and expenses to Kelley, who brought Ibarra, a claim filed by two brothers alleging wrongful arrest after they photographed and videotaped sheriff's deputies during a 2002 drug raid of their neighbors .
-- Miriam Rozen

D.C. Circuit filets Wal-Mart union

After nine years of controversy, the D.C. U.S. Circuit Court of Appeals has held that retailing giant Wal-Mart does not have to bargain with a union local that represented 10 meat-cutting workers in its Jacksonville, Texas, store and that in 2000 became known as Wal-Mart’s first union. According to United Food and Commercial Workers, AFL-CIO, Local 540 v. National Labor Relations Board, issued March 14, the Jacksonville 10 meat-cutters in February 2000 elected United Food and Commercial Workers Union Local 540 as their bargaining representative. Wal-Mart, the opinion states, then changed its operations throughout the United States so that it no longer needed meat-cutters in its stores; instead, its stores now receive prepackaged meat for sale. Wal-Mart, which strongly opposes unions in its stores, later refused to bargain with Local 540 on the ground “that the meat-department bargaining unit was no longer appropriate.” In 2006, the NLRB decided the case in Wal-Mart’s favor, holding that Wal-Mart had no duty to bargain with Local 540 over an employment contract. The NLRB did order Wal-Mart to bargain with the union over the effects of the change to prepackaged meat. The D.C. Circuit found no error in the NLRB’s decision. “It is surely appropriate,” the D.C. Circuit states, “for the Board to take account of the technological changes that make specialized skills unnecessary and thereby render inappropriate a bargaining unit that is premised on employees’ possessing those skills.”
-- Jonathan Fox

Future lawyers to hear tales from Gitmo

Former U.S. Army Captain and chaplain James Yee will be sharing his story -- from ministering to prisoners at Guantanamo Bay, to his arrest and solitary confinement as an alleged spy, to his eventual exoneration and honorable discharge -- at the University of Texas School of Law auditorium in Austin on March 20. The West Point grad and convert to Islam authored a book about his experience titled "For God and Country: Faith and Patriotism Under Fire."  The event is open to the public and seating is on a first-come, first-served basis.
-- Jeanne Graham

5th Circuit to reconsider death penalty ruling

Sherman solo Scott Smith was so excited when he learned the news that the 5th U.S. Circuit Court of Appeals granted en banc rehearing in Moore v. Quarterman on March 12 he could hardly contain himself. Smith has had countless sleepless nights worrying about the appeal in which he represents death row inmate Eric Lynn Moore. Moore is mentally retarded. And that’s not just a claim Smith has presented during federal habeas litigation; it’s a ruling U.S. District Judge Leonard Davis of Tyler made in 2005. The U.S. Supreme Court’s 2002 opinion in Atkins v. Virginia forbids the execution of the mentally retarded as cruel and unusual punishment. Yet in the 5th Circuit's original June 29, 2006, opinion in Moore, the 2-1 court dismissed without prejudice Moore's Atkins claim, because he had not first exhausted the same claim in state court as required under Texas' abuse-of-the-writ doctrine found in Texas Code of Criminal Procedure §11.071. On June 27, 2007, the 5th Circuit panel issued a second 2-1 opinion almost identical to the first, except it denied Moore's Atkins claim with prejudice. The full 5th Circuit will soon have to decide whether a procedural rule takes precedence over a constitutional rule. The en banc argument is scheduled for May. “This is one of those cases that, you know, you just want to go after it from an emotional point of view,” Smith says. “And a lot of times appellate advocacy doesn’t encourage raw emotion. This may be one where we have to.”

--- John Council

Jurisdiction smackdown in South Texas

The 13th Court of Appeals has settled a dispute between two South Texas courts for jurisdiction over a construction litigation case. In Joe Williamson Construction Co. v. Raymondville Independent School District, issued March 13, the 13th Court held that the 139th District Court of Hidalgo County erred in granting a temporary injunction enjoining Joe Williamson Construction Co. (JWCC) from complying with an arbitration order issued earlier by the 107th District Court of Willacy County. The dispute arose from two suits filed by Raymondville Independent School District (RISD) against JWCC involving construction issues related to JWCC’s work as general contractor in the construction of three schools. In 2005, RISD filed one suit in Willacy County against JWCC, followed several months later by another suit in Hidalgo County. According to the opinion, RISD claimed the two suits involved “separate and distinct claims.” When the 107th Court ordered the parties to arbitrate their claims, RISD sought an injunction in the 139th Court to halt the arbitration. In holding that the 139th Court erred in granting the injunction, the 13th Court of Appeals found that the 107th Court “had dominant jurisdiction over the matter in controversy and the parties involved.”
-- Jonathan Fox

Blogger who dissed EDTX to litigate there and WDAR

Litigants in two defamation cases that have set the patent bar abuzz are headed to federal court. Cisco Systems Inc. and in-house lawyer-turned-blogger Richard Frenkel will face off against two Eastern District IP lawyers in the Western District of Arkansas and Eastern District of Texas. Frenkel revealed himself as the previously anonymous author of Patent Troll Tracker, a blog popular among IP litigators. [See "Patent Attorneys Sue Cisco Systems, Blogger, Alleging Defamation," Texas Lawyer, March 17, 2008, page 1.]  T. John Ward Jr., a partner in Ward & Smith in Longview and a son of Eastern District Judge T. John Ward, filed his amended defamation petition against Cisco and Frenkel on Feb. 27 in 188th District Court in Gregg County but refiled in Arkansas' Texarkana Division on March 13. Ward alleges that Frenkel defamed him by posting blog entries in October 2007, which stated that Ward and Eric Albritton,  who are plaintiffs local counsel in a patent infringement case against Cisco, conspired with the Eastern District clerk's office to alter an infringement suit's filing date. Albritton of the Albritton Law Firm in Longview filed a similar defamation suit on March 3 against Cisco and Frenkel in County Court-at-Law No. 2 in Gregg County. On March 14, Cisco  filed a notice of removal requesting that Albritton's case be removed from state court and tried in federal court on the basis of diversity juristiction, since Cisco and Frenkel are California citizens and Albritton is a Texas citizen. That same day, the clerk of the Eastern District of Texas assigned the case to U.S. District Judge Michael H. Schneider.
-- Miriam Rozen

No liability for city despite wait for ambulance

If you are ill or injured, but after the 911 call the ambulance arrives late and you subsequently die, is the city liable? A new opinion issued by the 5th Court of Appeals in Dallas on March 11 answers that question in the negative. In Gipson v. City of Dallas, the 5th Court set out the following facts: In the early morning hours of Aug. 5, 2004, Dallas resident Gwendolyn Foster became short of breath. Someone called 911, but 13 minutes passed with no ambulance, so one of Foster’s sons drove Foster to a nearby fire station. Rescue personnel treated Foster and took her to a hospital, but she died the next day. A city investigation later found an “unacceptable delay” in getting an ambulance underway and en route to Foster’s house. Foster’s family sued the city, alleging that the city’s "negligence in the use of tangible personal property and/or a motor driven-vehicle: to wit an ambulance which failed to respond promptly to a medical emergency," meant that the city had waived its sovereign immunity and was liable as a result. But the city filed a plea to the jurisdiction, and the trial court granted the plea, dismissing the family’s suit on the ground of sovereign immunity. On appeal, the 5th Court found that the ambulance did not cause Foster’s injuries; rather, the family’s claim arose from the city’s delay in responding to the 911 call. Thus, the court found no “nexus” between the use or operation of the ambulance and Foster's injury. Consequently, the court concluded that the city did not waive its governmental immunity pursuant to Texas Civil Practice & Remedies Code §101.021(1), which waives governmental immunity when negligent operation or use of a motor-driven vehicle causes personal injury.
-- Jonathan Fox

Dallas solo sidelined

Former Godwin Gruber partner Phillip W. Offill Jr. won’t be having a very happy spring because on May 1, he’s going to have to turn in his bar card to the State Bar of Texas. According to a judgment issued by a State Bar grievance panel on March 13, Offill, now a Dallas solo, will be suspended from the practice of law for three years and will be on probated suspension for another two years. He will be prevented from practicing law from May 1, 2008, until April 30, 2011, and will be on suspended probation from May 1, 2011, until April 30, 2013. The grievance panel found that Offill committed professional misconduct during his representation of Consolidated Sports Media Group (CSMG), a client that filed a legal malpractice suit against Offill and his former firm Godwin Gruber, which has since dissolved. CSMG accused Offill of representing CSMG and its executives, while at the same time representing investors who were offering to put up $1 million to CSMG to distribute a video titled “Race Track Girls Go Nutz.” That legal-mal suit settled last year. But in the 10-page judgment, the grievance panel found among other things that: Offill failed to turn over CSMG’s complete file upon termination although he was requested to do so numerous times over many months by both the client and the client’s subsequent attorneys; he acted as a lawyer on “all sides of the transaction” between CSMG and its investors; and he never counseled any of his clients concerning the legal aspects of his involvement with all of them. Offill did not immediately return a call for comment.    

-- John Council

Rosenthal's memory deleted, too

On March 14, Gov. Rick Perry appointed Kenneth Magidson, an assistant U.S. attorney in the Southern District of Texas, as Harris County district attorney. Magidson, an assistant DA in Harris County from 1977 until 1983, when he became a federal prosecutor, will serve as DA until the end of December.  A newly elected DA will take office in January. Magidson most recently was the Organized Crime Drug Enforcement Task Force regional coordinator for the Southwest Region, and is also past chief of the Task Force Narcotics Division. Magidson takes a job that opened when Chuck Rosenthal, the DA since 2001, resigned on Feb. 15. Rosenthal resigned after the Texas Office of the Attorney General informed his lawyer that it would file a suit to remove him from office. The AG’s office had been investigating Rosenthal’s actions in connection with a series of e-mails that became public in January; those e-mails on Rosenthal’s work computer included several romantic notes to his executive assistant and some sexual and racial content. Meanwhile, also on March 14, in sworn testimony in a federal suit, Rosenthal wrote that he cannot rely on his memory in connection with how he managed the e-mails on his work computer. Rosenthal provided the supplemental declaration for U.S. District Judge Kenneth Hoyt, as evidence for a motion seeking a contempt finding and sanctions against Rosenthal for deleting thousands of e-mails from his computer that were under subpoena. Rosenthal testified on Feb. 1, at a hearing in Hoyt’s court, that he deleted thousands of his e-mails in November 2007 in an effort to “simplify my desktop.” But in the declaration filed on March 14 in Eric Ibarra, et al. v. Harris County, Texas, et al. Rosenthal wrote that parts of a sworn statement he signed on Dec. 18, 2007, about the e-mails he deleted is incorrect. “While I believed the Declaration to be correct when I signed it, I now understand that I am unable to rely on my memory regarding the steps I took to manage the contents of my desktop and need to rely on reconstructing events from available documents and records,” Rosenthal wrote. “I have now consulted a medical specialist and am informed by him about conditions that have affected my perception and recollections over the past months.” Rosenthal wrote that while he testified on Feb. 1 that he had deleted e-mails older than July 24, 2007, from his deleted folder, “I now believe that this portion of my Declaration is incorrect.” In his resignation letter, Rosenthal wrote that the e-mail brouhaha and the media attention it attracted was a reason he decided to resign from office. He also wrote that prescription drugs had impaired his judgment.

-- Brenda Sapino Jeffreys 

Introducing Brits to Texas politics

When Steve Bickerstaff, adjunct professor at the University of Texas School of Law, was writing “Lines in the Sand: Congressional Redistricting in Texas and the Downfall of Tom DeLay,” he never guessed where the book might lead him.  But in May, Bickerstaff will deliver a lecture at the London School of Economics.  Bickerstaff says his book has received a great deal of international attention. The book tells the behind-the-scenes story of the Republican Texas Legislature’s mid-decade redrawing of the lines for the state’s 32 congressional districts in 2003 and the role that DeLay, then majority leader in the U.S. House, played in that redistricting effort. “Forty-two nations elect from districts, including most of the countries in the European Union,” Bickerstaff says.  In July, Bickerstaff is scheduled to present a lecture on the use of single-member districts in the United States’ multi-ethnic society at a symposium in Caen, France.  Bickerstaff says the London School of Economics is hosting the symposium on behalf of the European Union.  “The fact that they’re interest in hearing from an old West Texas boy is really exciting,” he says.
-- Mary Alice Robbins

Cruising to the 99th win

Tackling the issue of a cruise ship’s legal liability for medical malpractice by the ship’s doctor, a three-member team of students from South Texas College of Law won first place at the Judge John R. Brown Admiralty Law Moot Court Competition in New Orleans last weekend. The win marked STCL’s 99th national title, reports Sheila Hansel, the law school’s spokeswoman. In the final round of the admiralty law competition, the STCL team of Justin Jenson, Neeley Morgan and Chrystal Peal defeated a team from Tulane University School of Law. The judges named Morgan the top advocate of the final round. Students from 28 law schools competed in the moot law competition.  Congratulations go to the STCL team.
-- Mary Alice Robbins

Prophetic lines from Client 9

After The New York Times reported that New York Gov. Eliot Spitzer, who announced his resignation today, allegedly started using the services of prostitutes eight months ago and brought them to Washington, D.C., and Dallas, I got curious. Could Spitzer -- aka Client 9 -- have had company when he visited Dallas to give a lecture at Southern Methodist University? I covered that November 2005 speech by Spitzer, then the hard-charging, corruption-busting New York attorney general, and what he said seems particularly relevant in light of his resignation announcement today. Here’s a snippet of what I wrote in 2005:

Eliot Spitzer has a secret about how to persuade a Wall Street investment banker to accept a plea deal: Shame works wonders. . . . The New York attorney general and candidate for governor of his home state has made a name for himself by using his powers as AG to take on Wall Street. He explained that, in the world of deregulation, where the federal government's enforcement role has been decentralized, it's the states that now have the power -- a role he covets. He especially enjoys exposing double-dealing in the investment banking industry and exposing those who took advantage of unsophisticated investors. "I'm not saying there's anything wrong with using shame as a motivating factor," Spitzer said of his prosecution of some Wall Street executives. After they're exposed through shame, they roll over a lot more quickly than the organized crime bosses his office previously has prosecuted, he said. Investment bankers "came into my office and looked me in the eyes and said, 'Eliot, you're right, but we're not as bad as our competitors,'" Spitzer said. "I didn't know whether to laugh or to cry. In this world of moral relativism, they thought what they had done wasn't wrong."

Deeeelicious.

--- John Council

Mortgage brokers seek overtime pay

Two mortgage brokers have brought a class-action suit against Highland Capital Lending Inc., a Dallas mortgage lender, alleging that their employer failed to pay them overtime as required by the Fair Labor Standards Act (FLSA). According to the facts alleged in the complaint in Parkey, et al. v. Highland Capital Lending Inc., filed March 6 in U.S. District Court for the Northern District of Texas, Aaron Parkey and Darrin Gilliam, two mortgage brokers and ex-employees of Highland Capital, were paid on a commission basis and “routinely worked in excess of 40 hours per week, but were not paid time-and-one-half their regular rate of pay for those hours.” FLSA requires employers to pay workers overtime pay for hours worked above 40, with the exception of several classes of workers, including executive, administrative and professional employees. Highland Capital’s “failure to compensate employees for hours worked in excess of 40 in a workweek as required by the FLSA,” the plaintiffs state in their complaint, “results from a policy or practice of misclassifying loan officer/mortgage brokers as exempt.”
-- Jonathan Fox

Big civil-rights suit settles

In Texas -- where big business is king, unions are rare and employees are used to getting kicked in the pants -- it’s not often an employer-defendant folds up the tent on a federal civil-rights suit and signs off on a $1.9 million settlement and three-year consent decree. But that’s what happened in Equal Employment Opportunity Commission v. Allied Aviation Services, according to lawyers representing the EEOC and 15 current and former employees of a large aviation fueling company. In a press conference held today outside the Dallas office of the EEOC, lawyers alleged that the current and former employees --- who are all African-American and Hispanic --- were subjected to a hostile work environment by their co-workers on a daily basis. As alleged, racial graffiti including swastikas and the n-word were commonplace and written in plain sight in employee restrooms, on fuel tanks and on aircraft. Nooses also were hung at the workplace, the lawyers allege. The consent decree, which the parties signed on March 7, requires that the company provide diversity training for all Allied Aviation employees in U.S. facilities. The consent decree is awaiting approval from U.S. District Judge Sam Lindsay of Dallas. Paul Hash, a partner in the Dallas office of Jackson Lewis who represents Allied Aviation, did not immediately return a call for comment. Eric Mitchel, a Dallas Cowboys running back and former employee of Allied Aviation who first complained to the EEOC four years ago, says he’s relieved by the settlement. “It’s been a long haul,” Mitchel says. “We have been vindicated. The money means something. But it doesn’t ease the pain.”

-- John Council

Rosenthal hearing a no-go

The courtroom show featuring former Harris County District Attorney Chuck Rosenthal won’t go on after all on March 14. A hearing on a motion seeking contempt and sanctions against Rosenthal, for allegedly deleting e-mails under subpoena, was scheduled to resume on March 14. But following a telephone conference with attorneys on March 11, U.S. District Judge Kenneth Hoyt of Houston canceled it. Instead, according to an order issued on March 11, Hoyt ordered counsel for Rosenthal to file two declarations – one from Rosenthal and one from his physician – by March 14. The judge wrote that with the declarations – he wants the declaration from Rosenthal’s doctor to be filed under seal -- the evidence in the contempt proceeding would be closed, and he would issue a memorandum and order. The March 14 hearing would have been the third day of testimony in the motion for sanctions. Hoyt heard evidence on Jan. 31 and Feb. 1 from Rosenthal and others at the DA’s office who testified about what they did to comply with a subpoena that sought e-mails from Rosenthal and others who work for him at the DA’s office as a part of discovery in a civil rights suit. But the contempt hearing ended abruptly on Feb. 1, when Hoyt granted a recess at the request of Rosenthal’s attorney, Houston criminal-defense lawyer Ronald Lewis, a partner in Marshall & Lewis. Lewis could not immediately be reached for comment. Neither could Lloyd Kelley, of Lloyd E. Kelley & Associates in Houston, who represents the plaintiffs in Erik Adam Ibarra, et al. v Harris County Texas, et al., the underlying civil rights suit, and sought the contempt finding and sanctions against Rosenthal.

-- Brenda Sapino Jeffreys

What do you call 10,000 lawyers at the bottom of the ocean?

Frank Thomas “Tom” Read (left), South Texas College of Law professor and STCL’s former president and dean, joined Rennard Strickland, dean emeritus of the University of Oregon School of Law, in writing “The Lawyer Myth: A Defense of the American Legal Profession,” released this month by Ohio Press and Swallow Press. Read says the idea for the book had its genesis four years ago when he and Strickland were sitting together at the annual meeting of the Association of American Law Schools and telling each other lawyer jokes. It struck them that the endless sarcasm about lawyers should be addressed, Read says. He says the book he and Strickland produced is aimed at several audiences:  anyone in the general public who wants to know more about lawyers and the legal profession; the young person who plans to attend law school; and lawyers interested in reading it and in giving the book as gifts to clients.  The book’s theme, Read says, is change. Read says the book includes jokes – even some lawyer jokes – and anecdotes to keep the prose moving. 
-- Mary Alice Robbins

DLA Piper opens in Houston

DLA Piper, the world’s largest firm, expanded its reach in Texas with a new office in Houston that opened on March 10. Jack O’Neill and Mark White, formerly of Howrey’s Houston office, and Jack Langlois, who comes from Akin, Gump, Strauss, Hauer & Feld in Houston, joined DLA Piper on March 10 to open the office. DLA Piper, with 3,700 lawyers worldwide, has 47 lawyers in Austin and Dallas. O’Neill, who had been head of Howrey’s global litigation group in Houston, is now chairman of DLA Piper’s commercial, energy, oil and gas litigation practice. White joins the firm’s litigation and regulatory practice, while Langlois, who led Akin, Gump’s energy projects practice in Houston, joins the corporate practice. O’Neill, White and Langlois could not be reached for comment. Stephen Cagle, managing partner of Howrey’s 67-lawyer Houston office, says the firm is sad to see O’Neill and White go, but “they leave on very good terms and we wish them the best.” Christine LaFollette, the partner in charge of Akin, Gump’s Houston office, could not be reached for immediate comment.

-- Brenda Sapino Jeffreys

Former attorney loses reinstatement bid

The 5th Court of Appeals in Dallas has upheld a trial court’s denial of a former attorney’s petition for reinstatement of his law license. In Landerman v. State, the 5th Court rebuffed Allen Landerman’s bid to reinstate his law license, holding that sufficient evidence supported the trial court’s decision to deny the petition. The petition for reinstatement came nearly a decade after then-attorney Landerman was convicted of being a “conspirator in a scheme to commit mail fraud, wire fraud, and money laundering.” This conviction was overturned due to errors made by the federal district court, but federal prosecutors brought another case against Landerman, and he pleaded guilty to the second round of charges. On April 17, 1998, Landerman was sentenced by a federal district court to 60 months in prison and a $10,000 fine, according to the 5th Court. The basis of the conviction, the 5th Court stated, was that Landerman “essentially agreed to hold fraudulently obtained funds for a client in [his] attorney trust account,” and kept the client even after learning of the client’s illegal conduct. After his release from prison, Landerman resigned his law license in 2000. Because Landerman assisted the federal government in prosecuting his former client, the government discharged him from supervised release early. In 2006, Landerman filed his reinstatement petition, noting that he had worked as a paralegal, tutor and tax preparer since his release from prison, and he had become active in his temple and in charitable causes. He testified that his past experiences deepened his faith and he now understood “what is required to lead a moral life.” At the hearing on his petition, several witnesses testified to his rehabilitation. Nonetheless, the trial court denied the petition. The 5th Court found that the trial court properly considered three separate disciplinary actions by the State Bar of Texas that occurred before the conviction — “a private reprimand, a public reprimand, and an active suspension from the practice of law due to appellant's neglect of four different clients' matters” — in rejecting Landerman’s petition. Reached for comment, Landerman says that he is “incredibly disappointed” by the 5th Court’s decision. He also says that he is considering an appeal.
-- Jonathan Fox

Miers entangled as exec/lege branch fight moves to court

In Committee on the Judiciary, U.S. House of Representatives v. Harriet Miers, et al., filed in U.S. District Court for the District of Columbia on March 10, federal lawmakers, as the plaintiffs, have asked U.S. District Judge John D. Bates to rule that Miers, a partner in the Dallas and Austin offices of Locke Lord Bissell & Liddell and former White House counsel, is not immune from an obligation to appear before the judiciary committee. The suit is the most recent chapter in a battle that pits the committee against Miers and White House Chief of Staff Joshua Bolton. The committee wants Miers and Bolton to testify before it about the firing of eight U.S. attorneys in 2006. Julie Gilbert, a spokeswoman for Locke Lord, did not immediately return a telephone call seeking comment. An assistant to Miers refers calls related to the litigation to the White House. The White House press office also did not immediately return a call. In a press release announcing the filing, Judiciary Committee chairman John Conyers, D-Mich., states: "We will not allow the administration to steamroll Congress. . . . Under our system of checks and balances, Congress provides oversight of the executive branch to make sure that government power is not abused. The administration’s extreme claims to be immune from the oversight process are at odds with our constitutional principles on which this country was founded, and I am confident the federal courts will agree." For documents related to the contempt fight, click here.
-- Miriam Rozen

You’ve been served

Dallas County won’t be side-stepping a whistleblower suit filed against it by a court reporter who claimed she was fired after a dispute with a judge, according to a recent opinion by Dallas’ 5th Court of Appeals. Cayce Coskey filed Coskey v. Dallas County in 2006 in state district court alleging that Sally Montgomery, judge of Dallas County Court-at-Law No. 3, fired her after she alleged the judge failed to accurately disclose to lawyers the contact that a bailiff had with a jury about the death of a witness in a case the jury was hearing. In an interview, Montgomery denied she fired Coskey. However, lawyers from the Dallas County District Attorney’s Office who are defending the county in the suit filed a plea to the jurisdiction and a motion to dismiss arguing Coskey did not give the county proper notice of the suit by certified or registered mail under §89.00041(b) of the Texas Local Government Code and that complybing with the section is jurisdictional. A trial court denied the plea to the jurisdiction and the motion to dismiss --- rulings the county appealed. On March 4, the 5th Court affirmed the trial court’s rulings. The opinion by Justice James Moseley, in which he is joined by Justices Joseph Morris and Mike O’Neill, found that compliance with §89.00041(b) was jurisdictional. The 5th Court also found that Coskey’s manner of service “substantially complied” with §89.00041(b). According to the opinion, a copy of Coskey’s suit and other materials were delivered to then-Dallas County Judge Margaret Keliher a day after Coskey filed the suit. “The manner of delivery specified by the statute assures that county officials will receive notice of a suit after it has been filed to enable it to respond timely and prepare a defense. Here, it is undisputed that Coskey’s citation, her original petition and request for disclosure, and exhibits met these purposes of the notice of suit requirement,” Moseley wrote.

-- John Council

More appellate and IP punch

Pillsbury Winthrop Shaw Pittman’s Houston office boosted its appellate and intellectual property strength by hiring Claudia Wilson Frost and Jeremy Gaston, who left Mayer Brown’s Houston office on Feb. 29. Frost and Gaston joined Pillsbury as partners on March 1. Frost, who joined Mayer Brown in 2003 after leaving Slusser & Frost, says she’s excited to become co-leader of Pillsbury’s national appellate practice. “I like to create things and build things and this was a real great opportunity for me to do that,” she says. Frost says she has a large appellate practice, but she’s done more intellectual property litigation over the past two-and-a-half years than anything else, largely because of client needs. Gaston, who joined Mayer Brown in 2004, says he moved to Pillsbury for the opportunity to continue to work with Frost, and also because he’s excited to “chart out an area in the appellate space” at Pillsbury. He says he has a background in computer science, and expects that to come in handy because New York-based Pillsbury has a strong presence in California, which is home to many technology companies. Frost and Gaston decline to identify clients they brought with them to Pillsbury, but Frost notes that Mayer Brown and Pillsbury share a number of clients. Michael Niebruegge, the Mayer Brown partner in charge in Houston, could not immediately be reached for comment.

-- Brenda Sapino Jeffreys

McCain and the brush with fame

Texas’ legal community was well represented last night as U.S. Sen. John McCain of Arizona clinched the Republican nomination for president and announced it from a Texas venue. The victory party at the Fairmont Hotel in Downtown Dallas was a typically Texan affair, with Texas Rangers standing by in their Stetsons, country music playing over the loud speakers, and chips and guacamole among the goodies provided. An attorney from Atlanta noted that nowhere but Texas could they get away with flying the state flag higher than the U.S. flag as they did on the backdrop of the stage. Texas attorneys attending included: Joe Fox, chief labor and employment lawyer for Dallas-based Celanese Corp.; Paul Theiss and Andrew Wirmani, associates with Jones Day who are volunteers with the McCain campaign; and David Ritter of Kane Russell Coleman & Logan, also a volunteer. “I like the fact that McCain is honest, willing to compromise when necessary, and that he’s got a lot of good ideas to move the country forward,” said Ritter, who added that he displays a McCain campaign sign in his yard. Wirmani said he and Theiss made some of the signs around the room, all with a patriotic theme — “Duty Honor Country,” “An American Hero” — “to highlight the contrast between McCain and the Democratic candidates, neither of whom have served in the military like McCain has.” Piers Morgan, a judge from the TV reality show “America’s Got Talent” and a contestant on “The Celebrity Apprentice,” was a guest at the Fairmont. Morgan, in Dallas holding auditions for the next season of the talent show, wandered up to the ballroom to see what the commotion was. Morgan, a former newspaperman who studied journalism at Harlow College in Essex, England, and worked at several British dailies in his “former life,” chatted amiably about covering the news, American politics and the McCain event.

-- Kristine Hughes

Waiting with abated breath

The Texas Office of the Attorney General on Feb. 28 temporarily halted a civil suit it filed in Travis County last October, alleging Mauricio Celis of Corpus Christi has engaged in the unauthorized practice of law. The AG’s office also alleged in the petition that CGT Law Group International of Corpus Christi permitted Celis as a “non-lawyer”  to share in fees and referrals. On Feb. 28, 53rd District Judge Scott Jenkins in Travis County signed an agreed order that will stay proceedings in The State of Texas v. CGT Law Group International, et al.for the earlier of 10 months or until criminal proceedings against Celis in Nueces County are resolved. In the motion seeking the stay, the AG’s office alleged it sought the stay to “preserve state resources” since the criminal prosecution in Nueces County is based in large part on the same conduct that’s at issue in its civil suit. But in a written statement on Feb. 29, a defense attorney for Celis in the AG’s suit, Phyllis Pollard, questions the motivation of the AG’s office. “Why is it that the AG’s office thought this case was so extremely urgent when it was making headlines, but is suddenly willing to postpone it now that the focus is elsewhere?” Pollard, a partner in Scott, Douglass & McConnico in Austin, wrote. “All this about wanting to ‘save resources’ is a cop out. They certainly weren’t worried about wasting taxpayer money when they first filed their complaint.” Pollard wrote in the statement that AG Greg Abbott’s purpose in suing Celis was to “smear a politically-connected Democrat.” Jerry Strickland, a spokesman for the AG’s office, writes in a statement that the AG’s office will continue to assist Nueces County District Attorney Carlos Valdez with the investigation and prosecution of Celis. “Because the defendant's law firm has dissolved, and because criminal cases are subject to constitutional protections that do not apply in civil cases, this office is abating its lawsuit until the criminal charges are resolved. At such time, we will resume our pursuit of any remedies available to Texans harmed by the defendant's unauthorized practice of law," Strickland writes. When asked to respond specifically to Pollard’s statements, Strickland says his written statement explains why the AG’s office sought the stay. However, Strickland notes that it’s an agreed order. In November, a Nueces County grand jury indicted Celis on 10 criminal charges: seven counts of falsely holding himself out as a lawyer, one count of aggravated perjury, one count of impersonating a public servant and one count of theft. He has pleaded not guilty.
-- Brenda Sapino Jeffreys