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April 2008

April 30, 2008

Burnt orange lights up

The tower at The University of Texas at Austin usually blazes with orange lights when one of the school’s sports teams scores a win. But for the seventh time since 1999, UT held a tower lighting April 29 in recognition of a UT School of Law team’s win of a national championship. UT law team members Jared Hoggan and Alexis Steinberg defeated a Loyola Law School Los Angeles team to claim the 2008 national championship in the Giles Sutherland Rich Memorial Intellectual Property Moot Court Competition. Hosted by the American Intellectual Property Law Association, the national rounds of the competition took place April 17-18 in Washington, D.C. In recognition of the win chalked up by Hoggan and Steinberg, the orange-lit UT tower featured the number 1 on it. Austin solo Jennifer Kuhn and her husband, Pierre Hubert, a principal in the Austin office of McKool Smith, coached the UT law teams that participated in the competition. 
-- Mary Alice Robbins

Lloyd Kelly gets paid

Lloyd Kelly must be feeling really good about himself right now. First a civil rights suit he filed against the Harris County Sheriffs Department led to the discovery of racist and sexist e-mails on Harris County District Attorney Chuck Rosenthal’s computer -- prompting Rosenthal’s resignation in February. In March the county decided to settle with his two clients, Sean and Erik Ibarra, for $2 million. The brothers alleged their civil rights were violated after they were arrested for allegedly filming a drug bust near their home. And yesterday the county agreed to pay Kelly $1.4 million in attorney’s fees, according to Houston TV station KHOU's Web site --- not bad scratch for filing a case that became hotter than the Houston summer.
--- John Council

Running the numbers

Stephanie Cecere, editor-in-chief of the Houston Law Review, will enter her final year at the University of Houston Law Center this fall. She expects excitement about her publication to pick up about the same time. That's when the journal will publish an article by Scott Phillips, a professor of sociology and criminology at the University of Denver.  After studying Harris County death penalty statistics, he found that -- all other factors, such as the type of crime committed, being equal -- a black defendant is more likely to be sentenced to death than a white defendant in Harris County. Already, critics have begun to question Phillips' article, which was described in a column appearing on The New York Times Web site on April 29 with a link to a draft. The column quotes Jon Sorensen, a professor of justice studies at Prairie View A&M University in Texas, as questioning the study's methodology. Phillips focused on statistics from prosecutions that occurred between 1992 to 1999. We'd like to know what Harris county attorneys who have been on both sides of the criminal justice system -- prosecuting and defending -- believe a careful analysis of stats from more recent years would show.
-- Miriam Rozen

April 29, 2008

No. 17 provides a twist on Dallas County DNA exonerations

On this sunny Tuesday morning, 265th District Court Judge Mark Stoltz signed an order exonerating James Woodard of a murder the former inmate has consistently argued for 27 years that he did not commit. While these DNA exoneration hearings are becoming an almost monthly occurrence in the Frank Crowley Courts Building -- Woodard’s is the 17th of its kind -- there something a bit different about this one, says his attorney, Jeff Blackburn, senior counsel at the Innocence Project of Texas. According to a press release from the Dallas County District Attorney’s Office, this is what happened in the case: Woodard was convicted by a jury of murder of Beverly Jones and was sentenced to life in prison. Jones had been sexually assaulted, and Woodard had had a relationship with her. Woodard was convicted largely on the basis of eyewitness testimony, but a December DNA test of a rape kit of the victim did not match Woodard’s DNA. Blackburn says that the DA’s office could have said “So what about the DNA? He was convicted of murder. That doesn’t clear him.” But the Dallas DA’s office didn’t do that and had its Conviction Integrity Unit look into the matter. A subsequent investigation found that three men had been seen with Jones shortly before the murder --- two of whom had previous sexual assault convictions, according to the release. That information was not provided to Woodard’s defense attorney before his 1981 trial, according to the release. Now the Dallas DA’s office is looking at other cases in which DNA is not the only factor which could exonerate an inmate. “We can change the system, not to make it easier” for exonerations, Dallas County DA Craig Watkins said during the hearing,“but to make it better.”  Woodard said during the hearing that he was glad Watkins and his office were willing to review his innocence claims. “I’m especially thankful for Mr. Watkins,” Woodard says, who he described as a DA of integrity.
--- John Council

Want to teach?

University of Houston Law Center faculty members Aaron Bruhl and Barbara Evans are offering a free, two-hour workshop on Saturday, May 10, for alumni interested in advice about obtaining faculty positions, according to a release on the law school’s Web site. Alumni planning to attend should R.S.V.P. at www.briefcase@uh.edu.
-- Jeanne Graham

The sweet sound of trademark litigation

Austin attorney E. Stephen Lee, owner of Austin Jookbox and Austin Wedding Jookbox, which offer disc jockey and band services for hire, has sued a competitor whose business has a similar sounding name.  Lee, a partner in Perdue Brandon Fielder Collins & Mott, filed Lee v. McDow on April 25 in Austin’s 353rd District Court. In his original petition, Lee alleges that the name McDow uses for his Austin Jukebox is “a colorable imitation and phonetically identical” to Austin Jookbox, the business name that Lee has used since January 2003. As alleged in the petition, Lee owns the marks, Austin Jookbox and Austin Wedding Jookbox, which are registered under the Texas Trademark Act. McDow began using the mark, Austin Jukebox, in July 2007, Lee alleges in the petition. That’s confusing to consumers, the petition continues. Lee alleges, among other causes of action, that McDow has infringed on Lee’s state-registered mark and is seeking an unspecified amount of damages, including punitive damages. Lee declines comment on the suit. McDow did not immediately respond to an e-mail message seeking comment.  It looks like the two competitors may have to duke it out – or dook it out – in court.
-- Mary Alice Robbins

Gregory’s nomination approved

The U.S. Senate confirmed the nomination of Becky Gregory to become the U.S. attorney for the Eastern District of Texas today, making her one of the last of President George W. Bush’s nominees in Texas awaiting confirmation to win final approval. Gregory replaces John L. Ratcliffe, who was appointed by then-U.S. Attorney General Alberto Gonzales to serve after Matt Orwig stepped down to enter private practice. Senate confirmations are traditionally hard for presidents to win during their final year in office. Gregory served most of her legal career in the U.S. attorney’s office and became the first assistant U.S. attorney for the Eastern District of Texas from 2002-2005. Gov. Rick Perry appointed Gregory to the 283rd Judicial District Court in Dallas in 2005, where she served until she lost in the Democratic sweep of Dallas’ courthouses in the 2006 general election. In 2007, Gregory joined Dallas’ Curran, Tomko, and Tarski as senior counsel, where she practices white collar defense.
--- John Council

April 28, 2008

Poll politics

Usually, I don’t write articles about polls and the law. You know why? The two don’t mix and aren’t meant to. The law is supposed to be immune to the vagaries of public opinion. So before I deposit this press release touting a poll in the trash, let’s ponder the Institute for Legal Reform’s recent Lawsuit Climate 2008: Ranking the States in which Texas scores 41 out of 50 states for lawsuit abuse. This association is an affiliate of the U.S. Chamber of Commerce, so you know where their allegiance in the tort reform war is going be. And to gain their meaningful insight into the legal climate across the country, they polled more than 900 “in-house general counsel or other senior litigators at companies with annual revenues of at least $100 million.” Trial lawyers: Raise your hands how many times you’ve seen an “in-house” lawyer at the counsel table in a state district courtroom in Texas. Yeah, it happens, but not that often. More often than not, big companies hire outside counsel to represent them when a case needs to be dealt with in a courtroom. And for argument's sake, let’s give the Chamber the right to leave their enemies -- plaintiff lawyers -- out of their poll. Defense lawyers -- the kind that make their livings in Texas courtrooms -- would tell them a very different tale about Texas’ legal climate. Talk to any defense lawyer about how business is, and they’ll tell you it ain’t that great. Traditional Texas defense firms are shedding lawyers or closing up all together, because tort reform laws in Texas are so strong that their isn’t much to litigate anymore, especially in medical malpractice field. See H.B. 4. And say a company gets hit with a huge jury verdict. In Texas, more often than not, the award gets chopped on appeal -- if not altogether reversed, something I’ve written about countless times in 12 years at Texas Lawyer. But don’t listen to me, I only watch, observe and report on the Texas civil justice system for a living.
--- John Council

Imagine a copyright infringement battle

The late John Lennon's wife Yoko Ono, his two sons and a record label on April 22 sued three Dallas-based companies after they allegedly included a snippet of Lennon's signature song "Imagine" in a new documentary starring actor Ben Stein. Dallas-based Premise Media Corp. LP is the producer of "Expelled: No Intelligence Allowed," a Michael Moore-style documentary from a more conservative perspective that lambastes educators for supposedly forbidding efforts to teach intelligent design in schools alongside Darwinian evolution. Premise Media Distribution LP of Dallas, C&S Production LP doing business as Rampant Films of Gonzales, Texas, and Rocky Mountain Pictures Inc. of Salt Lake City, Utah, are also named defendants in the suit. "Upon information and belief," Ono's suit states, "Defendants have intentionally and willfully used the Song without authorization because they knew that they would likely be unable to secure permission from Plaintiffs and/or because they wished to avoid the costs associated with lawfully licensing these works and paying royalties." Ono alleges that in the film, the filmmakers used "Imagine" in a fashion that suggests Ono approved of its use. Ono seeks a permanent injunction against Premise and other defendants, which would require them to take the song out of the movie, and at least $75,000 in damages. The suit is Lennon, et al. v. Premise Media Corp., et al., filed April 22 in U.S. District Court for the Southern District of New York.
-- Jonathan Fox

April 25, 2008

United Way extends kudos to lawyer

Lynne Liberato, a partner in the appellate practice group at Haynes and Boone in Houston, is known for her service to the State Bar of Texas and her term as Bar president in 2000-2001.  Less known, perhaps, is the fact that Liberato has spent more than 15 years as a volunteer for the United Way. “That’s my passion,” Liberato says.  On April 28, the United Way of Greater Houston will name Liberato its Volunteer of the Year. A Haynes and Boone press release says one of Liberato’s contributions to the United Way is the creation of the Law Firm Initiative, an effort to enhance awareness and increase donations by Houston’s firms, lawyers and staff.  Since its inception in 2002, the initiative has raised more than $12 million for the Houston community, according to the press release. Given Liberato’s busy schedule as an attorney, how does she finds the time to be a United Way volunteer? The answer is simple: she just makes time for volunteering.  “I just really believe in the mission of the United Way,” Liberato says.
-- Mary Alice Robbins

April 24, 2008

Nimmer named UH law permanent dean

The University of Houston today named Raymond T. Nimmer permanent dean of the University of Houston Law Center, according to a press release from the university. Nimmer is currently the law school’s Leonard Childs Professor of Law and co-director of the Houston Intellectual Property and Information law Center. He has served as interim dean at the law center since June 2006, following former Dean Nancy Rapoport’s resignation during a controversy regarding the school’s lower rankings in U.S.News & World Report. [See "Rankings Rift Hastens UH Law Dean’s Resignation,’" Texas Lawyer, April 24, 2006, page 1.] In 2007, the law center jumped 10 positions – from 70 to 60 – in the annual law school rankings by U.S.News & World Report. In the magazine’s rankings released this year [See "A Healthy Score," Texas Lawyer, April 7, 2008, page 3.], the UH Law Center, along with Baylor University School of Law in Waco, was in a four-way tie for 55th place.
-- Jeanne Graham

April 23, 2008

Appellate boutique expands into Dallas

Alexander Dubose Jones & Townsend will open its Dallas office effective May 1, according to Doug Alexander, a partner in the firm’s Austin office. Founded in 2003, the firm also has an office in Houston. “It really gives us a statewide presence,” Alexander says of the firm’s new two-lawyer Dallas office. Charles T. Frazier Jr., a shareholder in Cowles & Thompson, and LaDawn Conway, a shareholder in Munsch Hardt Kopf & Harr, will join Alexander Dubose as partners in Dallas. Both Frazier and Conway are board certified in civil appellate law by the Texas Board of Legal Specialization. With their addition, 10 of the firm's 13 lawyers will be board certified in civil appellate law by the TBLS, Alexander says. Three of Alexander Dubose’s attorneys are former chairmen of the State Bar of Texas Appellate Section, he says.  "We’re  the largest appellate boutique in the state," Alexander says.
-- Mary Alice Robbins

Lawyer-led rights group to meet in the Alamo City

The Mexican American Legal Defense and Educational Fund, which works to promote and protect the rights of 45 million Latinos living in the United States, will celebrate four decades of work on April 24 by hosting its 40th anniversary conference at the downtown campus of the University of Texas at San Antonio. John Trasvina, the organization’s president and general counsel, and Phil Hardberger, San Antonio’s mayor, will deliver opening remarks. Panel discussions on voting rights, education, employment and immigrants’ rights, as well as a video chronicling MALDEF’s 40-year history, will highlight the day. Among MALDEF’s notable victories over the years was the U.S. Supreme Court’s 2006 decision League of United Latin American Citizens, et al. v. Perry, et al., in which the court said that the Texas Legislature’s 2003 congressional redistricting plan discriminated against Latino voters in Congressional District 23.

-- Mary Alice Robbins

Paying for the potty

For $5,000, you, too, can fund a restroom. Austin trial lawyer Dicky Grigg's donation to the Texas Tech University School of Law endowed the men’s room in the new Mark and Becky Lanier Professional Center. Dean Walter Huffman says a plaque outside the door of the men’s room says: “This room made possible through the generosity of Dicky Grigg.” Grigg, a partner in Spivey & Grigg, says, “I wanted to buy a room that would be meaningful not only to lawyers but to laymen.” He adds, “When you come into the Lanier Center, even though you are not a lawyer and don’t want to attend classes, you can benefit.” Grigg, a Lubbock native who graduated from Texas Tech University in 1970 with a degree in math, says he previously endowed two other men’s restrooms at the college: one near the alumni association’s offices and another in the athletic center.  Huffman says no one has come forward to endow the women’s restroom, but the law school is open to it. Houston lawyer W. Mark Lanier and his wife Becky Lanier gave $6 million toward the $13.65 million construction cost of the addition to the law school. Huffman says Grigg’s $5,000 donation to endow the restroom is part of $1.2 million the law school raised from alumni and firms for the opportunity to put their names on different rooms within the new professional center. The money will be used for scholarship and professional programs, Huffman says. The Lubbock law school held a ribbon-cutting on April 22 for the 34,000-square-foot professional center, attended by several hundred people, including members of the Texas Supreme Court, who heard oral arguments in two appeals in the new Donald M. Hunt Courtroom.
-- Brenda Sapino Jeffreys

April 22, 2008

Judge tells Texas Department of Public Safety to pay up

A black state trooper who claims he was discharged from the detail that protects Gov. Rick Perry and his family because he reported racial discrimination and sexual harassment within the detail could receive more than $900,000. In an April 21 final judgment, 345th District Judge Stephen Yelenosky of Austin ordered the Texas Department of Public Safety to pay Thomas Williams that amount based on a jury’s findings last month. The jury returned its verdict in Williams v. Texas Department of Public Safety on March 6. According to the jury charge, jurors found that DPS transferred Williams from the governor’s protective detail in 2004, because he filed a discrimination complaint under Chapter 21 of the Texas Labor Code. As noted in the charge, the jury also found that Williams’ race was a “motivating factor” for his transfer. Philip Durst, Williams’ attorney and a shareholder in Austin’s Deats Durst Owen & Levy, says Williams had “a spotless record” before he wrote a June 2003 memo in which he alleged that white males on the detail received the best assignments, including ones that paid for overtime, and that a female trooper was being sexually harassed. Durst says Williams received bad evaluations on his job performance after sending that complaint to the head of the protective detail. DPS spokeswoman Tela Mange says the agency has not decided whether to appeal the judgment, but she declines further comment.  Durst says he expects the state to appeal.
-- Mary Alice Robbins

April 21, 2008

Church sues over sprinkler requirement

A Pentecostal church has filed a federal civil rights suit against Texas City, because the city’s fire marshal has required the church to install a sprinkler system in its new building, which houses a day-care operation for more than 100 children. In Apostolic Lighthouse Church v. City of Texas City, initially filed in the 212th District Court of Galveston County but removed on April 18 to the U.S. District Court for the Southern District of Texas, the church alleges that the city is “arbitrarily and capriciously seeking to require the addition of a sprinkler system to a building which was constructed in accordance with City approved plans that did not require a sprinkler.” Adding sprinklers to the finished building, the church says, will cost $170,000, because the structure must be bolstered to include the sprinklers. The church admits in its original petition that if it had built the facility to include sprinklers, it would have been a “relatively minor cost increase.” The church, which says that the city has threatened to shut down its day-care operation, is suing the city for allegedly violating its substantive and procedural due process rights for the “ex post facto imposition” of the sprinkler requirement.
Jonathan Fox

No question for you

After a marathon two-day hearing, 51st District Judge Barbara Walther ruled on April 18 that the 416 children removed from a secretive polygamist ranch in Eldorado by Child Protective Services would remain in state custody. But to get to that ruling, Walther had to deal with more than 400 lawyers representing the children, the parents and the government who wanted to question witnesses during the hearing. Sometimes, Walther had to be rather abrupt with them. Hundreds of the lawyers involved in the uunprecedented, massive hearing were forced to attend the proceedings in the San Angelo City Auditorium via teleconference. To be recognized by Walther, lawyers in the auditorium had to stand in front a podium in that building until the judge called on them. One of them was Gerry Goldstein, a prominent criminal defense attorney and partner in San Antonio’s Goldstein, Goldstein & Hilley who stood patiently at the podium on April 17 in an attempt to ask a question of a witness. Goldstein represents the Fundamentalist Church of Jesus Christ of Latter Day Saints, which runs the ranch. Unfortunately for Goldstein, Walther had already established that the church was not a party to the CPS removal case before Goldstein could ask his question. “Have a seat Mr. Goldstein,” Walther told him during the hearing. 
--- John Council

Texas can set new execution date

The U.S. Supreme Court today denied Texas death-row inmate Carlton Turner’s petition for a writ of certiorari, clearing the way for the state to set another execution date for him. The Supreme Court had granted Turner a last-minute stay of execution on Sept. 27, 2007, pending the court’s decision in Baze v. Rees, the Kentucky case that challenged lethal injection procedures. The high court’s stay of Turner’s execution came two days after the state executed Michael Richard, whose attorneys were unable to file his petition for a stay with the Court of Criminal Appeals on Sept. 25, 2007, the same day that the Supreme Court agreed to hear Baze. Richard’s attorneys were seeking a stay for him but could not file the necessary paperwork before the CCA clerk’s office closed at 5 p.m. that day. In the wake of Richard’s execution, complaints were filed with the State Commission on Judicial Conduct against CCA Presiding Judge Sharon Keller. Michael Richard's widow, Marsha Richard,  alleges in her complaint that Keller ordered the CCA's clerk not to accept any paperwork for Michael Richard after 5 p.m. on Sept. 25. But Keller contends in her motion to dismiss that, while the clerk's office closed in keeping with Texas Government Code §658.005(a), which sets the operating hours for state agencies as 8 a.m. to 5 p.m., the CCA remained open: Judges remained at the court-house to accept any motions. On April 16, a divided Supreme Court upheld the Kentucky Supreme Court’s finding in Baze that the lethal injection procedures do not violate the Eighth Amendment’s ban on cruel and unusual punishment. The Baze decision enables states – including Texas – to resume executions. That poses an interesting question: Was the uproar over Richard’s execution justified? 
-- Mary Alice Robbins

April 18, 2008

5th Circuit says judge's comments show "generalized impertinence"

A Harris County trial judge's off-the-record comment in open court that he was "doing God's work to see that defendant [Carl Wayne] Buntion gets executed" is not grounds as a matter of law for a new trial, according to a April 11 opinion by the 5th U.S. Circuit Court of Appeals. In Buntion v.Quarterman, the 5th Circuit denied habeas corpus relief to Buntion, who was convicted of capital murder of a police officer and sentenced to death in 1991 before Judge William Harmon of Harris County's 178th District Court. Harmon, now judge in Harris County Criminal Court-at-Law No. 2, said his comments were meant as a joke, the opinion states. Buntion's defense attorneys at trial also complained that Harmon placed a postcard depicting Judge Roy Bean, the infamous Texas "hanging judge," on the bench during portions of jury selection. Harmon, the opinion states, had altered the message on the postcard to read, "Judge Bill Harmon: Law West of the Perdernales." Harmon, the opinion states, also commented that "sooner or later" Buntion would be convicted and executed, and failed to question a juror about a sheriff's comment that the juror was "dressed to kill," an apparent attempt at gallows humor. Another judge rejected Buntion's recusal motion against Harmon at trial, the opinion states. While the U.S. District Court for the Southern District of Texas granted conditional habeas relief to Buntion on April 28, 2006, the 5th Circuit vacated that judgment in its opinion. "Judge Harmon's comments and actions are certainly inappropriate and indeed atypical for a trial proceeding," the 5th Circuit stated. "However, none of these comments or actions demonstrate that the judge has any of the established bases for presumptive bias." The 5th Circuit stated that to obtain habeas relief, Buntion had to demonstrate that the state court "unreasonably determined that Judge Harmon was not actually biased in his case." The court went on: "Many of Judge Harmon's actions, while revealing lapses in Judge Harmon's judicial temperament, tend to show generalized impertinence and do not provide the kind of evidentiary support needed for an actual bias allegation."
-- Jonathan Fox

Drink with a hottie to help kids

There are at least 100 good reasons for a fundraising effort scheduled to begin in Dallas next week.  The MDA’s 2008 Dallas Legal Leaders: The Hot 100 Who Care will hold its kick-off event at 5:30 p.m. April 22 at the Ghostbar. Robert Witte, a shareholder in Winstead in Dallas and founding chairman for the effort, says Dallas-area lawyers are raising money to send children with muscular dystrophy to the MDA summer camp held locally at Camp John Marc in Meridian. This is the second year that Dallas lawyers have raised money to send children to the one-week camp. “Last year, we raised $108,000, which totally underwrote the local MDA component for the summer camp project,” Witte says.  Audrey Mross, a shareholder in Munck Butrus Carter in Dallas, is one of the 100 lawyers who are trying to raise $1,000 each.  Mross says the camp has room for about 100 children at a per-head cost of about $1,000 each.  “I’m reaching out and touching all of my friends,” Mross says.  “I’m very close to achieving my goal, thanks to all of my friends.” 
-- Mary Alice Robbins

April 17, 2008

What's in a name?

The fruits of a $6 million donation to Texas Tech University School of Law from Houston lawyer W. Mark Lanier and his wife Becky Lanier, will be harvested on April 22, when the law school holds a ribbon cutting for its new $13.65 million Mark and Becky Lanier Professional Development Center. “It’s very exciting for our law school and it’s also very important,” Dean Walter Huffman says about the 34,000-square-foot addition to the law school building that’s been under construction since 2003. “It’s a magnificent facility,” he says. The addition includes a 150-seat high-technology courtroom -- the Donald M. Hunt Courtroom -- and an auditorium that will seat more than 300, which Huffman says will allow the law school to host some events it couldn’t without the new building, such as major continuing legal education programs. On April 22, the Texas Supreme Court will break in the courtroom, Huffman says, by holding oral arguments on two cases, and the ribbon cutting will follow those arguments. He says the school’s Office of Academic Success Programs, Career Services and Alumni Development moved into new offices in the Professional Development Center on April 11. Mark Lanier, of the Lanier Law Firm in Houston who has built a national reputation as a trial lawyer, graduated from the law school in 1984. Huffman, dean for six years, says Lanier was the first alumni he approached when seeking funding for the addition, and he didn’t need to ask for contributions from anyone else. “There are a lot of things a person can say when you ask them for $6 million,” Huffman recalls. “What he and Becky said was, ‘We are honored you asked us.’” Huffman says the state provided matching funding in the form of $7.5 million in tuition revenue bonds. While the professional development center is named after Becky and Mark Lanier, Huffman says the Laniers asked the university to name the courtroom after Hunt, a partner in Lubbock’s Mullin Hoard Brown who is an adjunct professor at the law school and was Mark Lanier’s moot court coach when he was in law school. Mark Lanier did not return a telephone call seeking comment before presstime on April 17. Hunt says Lanier’s $6 million gift is significant because the law school needed the additional courtroom to accommodate the needs of its multiple advocacy teams. “We just have too many teams vying for too little space,” he says. Hunt, however, won’t get much opportunity to coach teams in the new courtroom that bears his name: He says he’s retiring in June as an adjunct professor after 34 years, but will volunteer as needed.

April 16, 2008

Happy in their work

Most general counsel at U.S. corporations find their jobs very rewarding, according to a new survey made public on April 15 by the Washington, D.C.-based Association of Corporate Counsel. The vast majority, 85 percent, of 1,166 U.S. general counsel who responded to ACC’s Eighth Annual Chief Legal Officer Survey conducted in October and November 2007 expressed “deep satisfaction” with their jobs, even though their roles have changed considerably over the past few years, particularly due to governance reforms. Legal department budgets increased slightly in 2007, according to the survey. The GCs who responded to the survey work at companies with yearly budgets ranging from $50,000 to $750 million, and they manage outside counsel budgets ranging from $10,000 to $500 million. During 2007, outside firms did the best job of improving their relationship with legal departments by offering alternative billing, flexible billing and e-billing, the GCs report. The GCs say in the survey they expect to spend most of their time in 2008 on transactional work, with compliance work and board relations two other areas that take a lot of their time. The important issues they expect to work on during 2008 include compliance, governance, e-discovery and records management as well as the recruiting, retention and training of staff. Meanwhile, the news isn’t too encouraging for lawyers on the hunt for in-house jobs. More than half of the GCs who responded to the survey say they do not plan to expand the size of their legal department during 2008. Law departments did grow slightly in 2007, according to the survey. ACC asked 5,355 of its U.S. members to participate in the survey. About half of the 1,166 who responded to the survey work at private companies.

"Wolfman" files pro se shaving suit

Inmate Jerry L. Percival, who is incarcerated in Midway and known by the alias “Wolfman,” has filed a pro se civil rights suit against Gov. Rick Perry and state prison authorities after allegedly being sanctioned for refusing to shave his beard. In Percival v. Office of the Governor, et al., filed April 14 in U.S. District Court for the Southern District of Texas, Percival says that around June 2006, he decided to live his life “in accordance to the Hebrew scripture of the Holy Bible.” He requested that prison authorities amend his religion of record to reflect “Messianic Jewish.” Upon further study of Biblical laws, Percival says, “I learned that my religion prohibits me from shaving the edges of my beard.” He refused to shave in August 2007, which he says violated the Texas Department of Criminal Justice’s clean-shaven policy. Percival says that as a result of his refusal to shave, he lost his credits for good behavior and work, his commissary privileges and his recreation privileges. He says he also was placed in “Category III 24-hour-a-day cell restriction.” He alleges that Perry and state prison authorities are violating his freedom to practice his religion under the 14th Amendment.
Jonathan Fox

The 16th man

Another day, another DNA test proves a convicted man innocent in Dallas County -- or so it seems. This afternoon, 291st State District Judge Susan Hawk will consider the post-conviction DNA test results of Thomas McGowan, who was sentenced to two consecutive life terms for 1985 aggravated sexual assault and burglary convictions. McGowan was convicted on the basis of eyewitness testimony, which is becoming a theme in some of the cases of Dallas men freed from prison after DNA test results proved they couldn’t have committed the crimes of which they were convicted. McGowan is represented by the New York-based Innocence Project and has consistently maintained that he did not commit the crime, in which a woman was assaulted by a man when she returned home to her apartment in Richardson. The Dallas County District Attorney’s Office agreed to a DNA test in McGowan’s case after being contacted by the Innocence Project in August 2007, according to press release from the DA’s office. A test of the remaining evidence in the case clears him, according to the release.
--- John Council

April 15, 2008

R. Ted Cruz: proud papa

Congratulations to soon-to-be former Texas Solicitor General R. Ted Cruz and his wife Heidi. On April 14 at 4:16 p.m. the first-time parents welcomed daughter Caroline Camille Cruz into the world. The baby weighs in at 7 pounds, 14 ounces, according to Texas Supreme Court Justice Don Willett. But Cruz won’t have much time to enjoy his baby girl this week. He’s boarding an airplane for Washington, D.C., today to take care of some unfinished Texas solicitor general business. On April 16, he will argue before the U.S. Supreme Court in Kennedy v. Louisiana. Texas is the lead amicus for several states in the case that are trying to persuade the  justices that the Eighth Amendment does not prohibit a child rapist from being sentenced to death.

-- John Council

When Morrissey talks, people listen

Texas Gov. Rick Perry announced in an April 14 news release the promotion of attorney Mike Morrissey to senior adviser on the governor’s executive staff.  Morrissey, a 1985 graduate of the University of Arkansas School of Law, has served as director of the Budget, Planning and Policy Division in the Office of the Governor since 2001.  According to the news release, Morrissey will continue to oversee budget policy issues but also will advise Perry on fiscal responsibility and transparency as well as government operations.  Morrissey previously served as fiscal policy director for former Lt. Gov. Bill Ratliff, budget director when Perry was lieutenant governor, and budget director and special assistant to former Lt. Gov. Bob Bullock.  He also served as legal counsel and budget examiner at the Legislative Budget Board from 1986–1994.  Perry notes in the news release that Morrissey played a key role in helping to certify the 2004-2005 state budget after then-Comptroller Carole Strayhorn initially declined to do so. In the release, Perry says of Morrissey, “He’s the kind of guy you keep around and, most of all, listen to carefully.”
-- Mary Alice Robbins

April 14, 2008

Jones retiring, sort of

Anyone who wants to know anything about lawyers’ pro bono work has probably talked at sometime with Emily Jones at the State Bar of Texas.  Jones, who has been with the State Bar for almost a dozen years, serves as director of Texas Lawyers Care and the Legal Services Division.  She also serves as executive director of the Texas Access to Justice Commission.  Jones says she is retiring at the end of May, but don’t look for her to be sitting in a rocking chair anytime soon.  Jones says she plans to apply to work part time as  the TATJC’s executive director. 
-- Mary Alice Robbins

Name change no problem

The Austin firm of Hilgers Bell & Richards has changed its name to Richards Rodriguez & Skeith. Paul Skeith, managing partner of Richards Rodriguez, says the partners  changed the firm’s name April 1 when partner Bill Hilgers retired.  Skeith says the nine-lawyer firm provides full services to mid-size businesses and serves as an out-sourced general counsel for larger businesses.  The name change has not caused any confusion for the firm’s clients, Skeith says.  “People call up for individual lawyers anyway,” he says.  “And people still know the number.”
-- Mary Alice Robbins

April 11, 2008

Rhyme and reason

Don Willett, the newest – and youngest – justice on the Texas Supreme Court, must have had the new movie “Horton Hears a Who” in mind when he wrote a concurring opinion in April 11's Lewis v. Funderburk, a medical-malpractice case that deals with a plaintiff’s submission of a second expert’s report after the report submitted by the plaintiff’s first expert was deemed inadequate. According to Willett’s concurring opinion, an extension can forgive a deficient report, not an absent report. “If reports are missed, not just amiss, courts are remiss if they do not dismiss,” Willett wrote. Now that’s poetic justice.
-- Mary Alice Robbins

Tribal courts’ jurisdiction on the line

The jurisdiction of American Indian tribal courts to adjudicate civil tort claims between tribal members and nonmembers is at issue in a case the U.S. Supreme Court will hear April 14. David Frederick, co-director of the Supreme Court Clinic at the University of Texas School of Law, will argue Plains Commerce Bank v. Long Family Land and Cattle Co., which involves a dispute over land located on an American Indian reservation. In its first case to be argued before the nation’s highest court, the UT law school clinic represents Ronnie and Lila Long, members of the Cheyenne River Sioux tribe in South Dakota. The Longs are asking the Supreme Court to uphold the jurisdiction of the Cheyenne River Sioux Tribal Court over the non-American Indian bank, which is seeking to repossess land that has been in the Long family for generations. The bank petitioned the Supreme Court to hear the case after the 8th U.S. Circuit Court of Appeals held in 2007 that the tribal court has jurisdiction over the bank. According to the bank’s petition, the Longs failed to exercise their option to purchase land that the bank held as collateral against the Long Cattle Co.’s debt. The Longs contend in their response to the bank’s petition that the bank discriminated against them by asking them to pay more for the land than other buyers. The bank argues in its petition that “the inherent sovereign powers of a tribe do not extend to the activities of nonmembers.” In its brief opposing their bank’s cert petition, the Longs argue that the Supreme Court’s 1981 decision in Montana v. United States is the “pathmarking case” concerning tribal civil authority over nonmembers. The Supreme Court held in Montana that a tribe may regulate “through taxation, licensing, or other means” the activities of nonmembers who enter into consensual relationships with tribal members involving commercial dealings, contracts, leases or other arrangements.  The bank argues in its petition that Montana limits a tribal court’s jurisdiction to taxation, licensing or “similar legislative controls.” The decision does not give a tribal court jurisdiction over tort claims, the bank contends.
-- Mary Alice Robbins

How good lawyers go bad

Good attorneys end up in an ethical or legal difficulty because of rationalization of wrongdoing, peer pressure and diffusion of responsibility among potential whistle-blowers, according to Nancy Rapoport, former dean of the University of Houston Law Center and a law professor at the William S. Boyd School of Law at the University of Nevada at Las Vegas. Rapoport spoke April 11 at a panel discussion on legal ethics held at the 2008 ABA Section of Business Law spring meeting in Dallas. When attorneys commit or acquiesce in others' wrongdoing, they experience cognitive dissonance: the uncomfortable feeling of holding two conflicting thoughts at once. To get rid of that feeling, Rapoport says, "[a]t some point you'll rationalize your bad behavior so you can still think of yourself as a good person." Peer pressure and diffusion of responsibility -- assuming someone else will report misconduct-- are the other two reasons why "smart people find themselves in a fix," she says. Panelists discussed what to do when an attorney working for a company observes misconduct. "Stick to your guns on your professional judgment," says Paul Koning, a partner in the Dallas office of K&L Gates. "Lay out for your constituency at the company what's wrong and what's right and what they should do." Panelists stressed following the proper procedure under Sarbanes-Oxley and state ethics rules for reporting misconduct within a company's chain of command -- with going to the authorities as an ultimate last resort. Koning also suggested that attorneys faced with such a dilemma independently hire an attorney to help determine the correct reporting requirements and staying within ethical guidelines. Attorneys representing companies don't need to "run up the ladder each time" misconduct surfaces, Koning says. "That kind of obligation is reserved for substantial injury" to a company, such as materially incorrect securities filings. Unfortunately, resignation may become necessary if the company fails to heed your advice, says Heather Kreager, senior vice president and general counsel of Sammons Corp. of Dallas. "There are bad boards [of directors], and you cannot always hope they will come to rational decisions."
-- Jonathan Fox

How to spot -- and avoid -- a bad client

At the American Bar Association Section of Business Law's annual spring meeting in Dallas on April 10, business attorneys talked about improving firm intake procedures to screen out bad potential clients. "The biggest exposure for firms," said Henry S. Bryans, an attorney and senior vice president of Aon Risk Services of Radnor, Pa., "is dealing with people who you wish you never met." Firms need an objective decision-maker to decide whether to represent questionable clients, and executive committees must back up this person, said Sarah M. Bricknell, a partner in the Philadelphia office of Duane Morris. "It's never worth it to bring in a bad client," she said, "because at the end of the day it will be your most stressful, worst nightmare." Paul M. Koning, a partner in the Dallas office of K&L Gates, said firms should train rainmakers to be sensitive to intake issues. Thorough background checks to check for bankruptcies, criminal activity, suits against former attorneys and unexplained departures of executives are necessary, Bricknell said, but such investigations must be expedient; speakers recommended a 24-hour turnaround. Filings with the U.S. Securities and Exchange Commission, including related-party transactions, are also useful in conducting background checks. "It gives you an indication if [executives] view the company as a quasi-piggy bank," Bryans said. Attorneys must ask some potential clients why they left their former attorneys, Koning said. If the potential client answers "I don't want to talk about it" or instructs you not to talk to the previous attorneys, "alarms should be going off that something is wrong," Koning said. Other warning sides, Koning said, include irrational goals or attitudes, an extreme concern about fees or a lack of concern about fees.
-- Jonathan Fox

April 10, 2008

Boots made for walking

A change is in the works at the Texas Office of Solicitor General. Texas Attorney General Greg Abbott announced in an April 9 news release that he will appoint James C. “Jim” Ho, currently of counsel at Gibson, Dunn & Crutcher in Dallas, to replace Solicitor General Ted Cruz, who will leave office later this spring. The solicitor general since 2003, Cruz says he decided to return to private practice, because he and his wife are expecting their first child. Cruz says he is talking to several firms but has not made a final decision where he will go. Ho, who will assume his duties as solicitor general when Cruz leaves, jokes, “I would say I have huge shoes to fill but for the fact that Ted wears boots.” But Ho says he is “humbled and honored” by the opportunity to serve the state in this capacity. A 1999 graduate of the University of Chicago Law School, Ho served as a law clerk to 5th U.S. Circuit Court of Appeals Judge Jerry Smith in the 1999-2000 term and worked at the U.S. Department of Justice from 2001 to 2003, first in the Civil Rights Division and later in the Office of Legal Counsel. While at the DOJ, Ho joined John Yoo, now a professor at the University of California at Berkeley Boalt Hall School of Law, in writing a law review article, “The Status of Terrorists,” published in 2003 in the Virginia Law Journal of International Law. At the time they wrote the article, Yoo was a deputy assistant attorney general in the Office of Legal Counsel at the DOJ and Ho was an attorney-adviser. In that paper, Ho and Yoo argued in support of President George W. Bush’s determination in the wake of the Sept. 11, 2001, terrorist attacks on the United States that members of the al Qaeda terrorist network and the Taliban militia are illegal combatants under the laws of war and not entitled to prisoner-of-war status under the Third Geneva Convention of 1949. Among his other published writings is a 2008 article in the University of Richmond Law Review that addressed birthright citizenship. After leaving the DOJ, Ho served as general counsel to U.S. Sen. John Cornyn, R-Texas, from 2003 to 2005 and was a law clerk for U.S. Supreme Court Justice Clarence Thomas during the 2005-2006 term. In 2006, Ho joined Gibson, Dunn in Dallas. Karl Nelson, partner in charge of Gibson, Dunn’s Dallas office, writes in a statement, “Jim Ho is an extremely accomplished and talented attorney, who will serve the people of the state of Texas well.”

-- Mary Alice Robbins

Haynes takes the 5th

Bolstered by strong support from U.S. Sen. John Cornyn, R-Texas, Catharina Haynes, a litigation partner in Baker Botts in Dallas and a former state district judge, won Senate confirmation of her nomination to the 5th U.S. Circuit Court of Appeals by unanimous consent April 10. Prior to the voice vote, Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., said on the Senate floor, “I begin by acknowledging the support of Sen. Cornyn and his work with me to schedule her nomination for a hearing and report it from the Judiciary Committee last week,” according to a copy of Leahy’s statement posted on his Senate Web site. As noted in the statement, Leahy said Haynes’ confirmation not only filled the last vacancy on the 5th Circuit, “but it fills another vacancy listed as a judicial emergency.” President George W. Bush nominated Haynes for the 5th Circuit in July 2007, to fill the vacancy created when Judge Harold DeMoss Jr. took senior status. Haynes, a 1986 graduate of Emory University School of Law, served eight years as judge of the 191st District Court in Dallas, beginning in 1998. Haynes, a Republican, lost her bid for re-election in 2006. In a written statement, Cornyn says of Haynes, “Her legal experience and dedication to justice make her exceptionally well qualified to serve in this position.” Baker Botts spokesman Mike Cinelli, speaking on Haynes’ behalf, says, “She’s honored by the confirmation.”

-- Mary Alice Robbins

April 09, 2008

DA primary runoff results

If there was ever a reason to never bet on politics, the April 8 Republican primary runoff for Harris County district attorney provided one as Pat Lykos crushed Kelly Siegler in a race to replace DA Chuck Rosenthal. Lykos, a former state district court judge, came in second in the March 4 Republican primary behind Siegler, a longtime Harris County DA, forcing a runoff because neither received more than 50 percent of the vote in the four-candidate race. Siegler looked strong because  an army of assistant district attorneys volunteered to work on her campaign throughout the runoff, walking neighborhood blocks and talking to voters. But yesterday, the tables turned as Lykos defeated Siegler by winning 53 percent of the runoff vote, according to unofficial Harris County Election Department results. “I attribute it to all of the volunteers who worked for me. I’ve had people working five days a week full time,’’ says Lykos. “And the hunger for change and reform” put her over the top, she says. Lykos cast herself as the outsider who could provide new leadership at the Harris County DA's office, which has been plagued by scandal involving Rosenthal, who resigned from his post earlier this year. Siegler did not return a telephone call seeking comment. Lykos will face Democrat C.O. “Brad” Bradford in the November general election. “I feel very humbled,” Lykos says. "I’ve had complete strangers come up to me and say they have been praying for me.” In Travis County, Rosemary Lehmberg, a 31-year veteran prosecutor, handily defeated Mindy Montford in the April 8 Democratic primary runoff for district attorney.  The unofficial vote totals published on Travis County’s Web site show Lehmberg claimed about 65 percent of the total, to Montford’s 35 percent.  No Republican filed for the job that Ronnie Earle will give up Dec. 31 after three decades as DA. Unless someone mounts a successful write-in campaign, Lehmberg, Earle’s first assistant for the past decade, will become Travis County’s first female DA in January 2009.  Lehmberg’s effort to succeed Earle, her longtime mentor, seemed less than a sure thing after the March 4 Democratic primary in which four candidates competed. Lehmberg won about 35 percent of the more than 186,000 votes cast in the primary, while Montford claimed about 31 percent of the vote.  The lopsided vote for Lehmberg in the runoff election came despite the well-financed media campaign run by Montford, a prosecutor in the trial division of Earle’s office and the daughter of former state Sen. John Montford.  Mindy Montford maintains that Lehmberg ran a negative campaign.  In her campaign advertising and at candidate debates, Lehmberg frequently questioned whether Montford is independent enough to oversee the public integrity unit in the Travis County DA’s office after accepting hefty campaign contributions from Capitol lobbyists. “At the end of the day, it worked,” Montford says of Lehmberg’s campaign tactic. Lehmberg says her frequent comments about Montford’s contributions from lobbyists were not meant as an attack on Montford but as “public education.” It was an issue people were interested in, Lehmberg says. Lehmberg says she will spend the next few months talking with Earle and the staff in the DA’s office to determine what needs to be done in that office.  One of the things she will look at, Lehmberg says, is more alternatives for young drug offenders. That could include expanding the county’s drug court program, which moves eligible nonviolent drug offenders out of the criminal justice system and provides them treatment, rather than jail time, to help them stop using drugs. However, Lehmberg doesn’t have any immediate plans to change the way the DA’s office has run under Earle’s administration. “There are so many things we’re doing well,” she says.  “There’s no need to fix what’s not broken.”

-- John Council and Mary Alice Robbins

Update: Dean leaving San Fran for Cowtown

Texas Wesleyan University School of Law has a confirmed start date for its new dean, Frederic White: July 15, according to Abby E. Dozier, communications specialist for the Fort Worth law school. As reported in Tex Parte on April 2, White will succeed Cynthia L. Fountaine, law professor and interim dean since June of 2006. Fountaine will continue as interim dean until July 14 -- about six weeks longer than earlier announced -- beginning her year-long sabbatical in mid-July, Dozier says. White is currently dean of the Golden Gate School of Law in San Francisco.
-- Jeanne Graham

Transgendered woman states sex-stereotyping claim, judge rules

A federal judge on April 3 declined to dismiss a suit in which a transgendered woman in Houston alleges sex discrimination, claiming a company rescinded a job offer after a background check indicated she was biologically male. In Lopez v. River Oaks Imaging & Diagnostic Inc., filed Dec. 18, 2006, in U.S. District Court for the Southern District of Texas, Izza Lopez, formerly Paul Lopez, alleges that she interviewed with River Oaks Imaging & Diagnostic Group Inc., which offered her the position of scheduler but then rescinded the offer when a background check revealed her birth gender, according to a memorandum and order issued by Judge Nancy Atlas. River Oaks, Atlas states, says it withdrew the job offer, because Lopez misrepresented herself as a woman, a claim that Lopez denies. Lopez says she thought her interviewers knew she was transgendered and that she put her birth name on her job application paperwork. Lopez filed a discrimination suit under Title VII of the Civil Rights Act of 1964, alleging that “River Oaks impermissibly rescinded its job offer to her because she failed to conform with traditional gender stereotypes.” River Oaks, Atlas states, argued that “there is no Title VII protection for transgendered individuals.” Atlas agreed that transgendered persons are not a protected class under Title VII but found that Lopez’s “transsexuality is not a bar to her sex stereotyping claim. Title VII is violated when an employer discriminates against any employee, transsexual or not, because he or she has failed to act or appear sufficiently masculine or feminine enough for an employer.” Thus, Atlas found that Lopez stated a claim under Title VII and denied both Lopez’s and River Oaks’ motions for summary judgment, allowing the matter to go to trial on whether River Oaks discriminated against Lopez. Lopez is represented by attorneys with Lambda Legal, a gay rights organization.
-- Jonathan Fox

The four-year itch

Cogan_john2 John P. Cogan Jr.  (left), former head of the global projects practice at Akin Gump Strauss Hauer & Feld, is now at McDermott Will & Emery’s new office in Houston. Cogan left Akin Gump’s Houston office, where he had practiced since 2004, to join McDermott Will on April 1 as head of the firm’s global projects and infrastructure practice group. McDermott, now with five lawyers in Houston, is the fourth firm Cogan has joined in Houston since he left Baker Botts in 1997. “I was getting the four-year itch,” Cogan says. “I guess I’ve got a little bit of an entrepreneurial sense to me, and it’s an exciting opportunity.” Cogan declines to identify clients he’s kept in his move to McDermott, which was founded in Chicago and opened its Houston office on March 3 staffed by three energy lawyers from Houston firm Bracewell & Giuliani. [See “McDermott Opens in Houston,” Texas Lawyer, March 3, page 3.]  Cogan says he’s excited about the chance to build a global projects practice at McDermott. In a written statement on April 8 announcing Cogan’s move, Paul Pantano, head of McDermott’s Energy Practice Group, writes that Cogan’s experience will complement the practices of the other four Houston partners, who also include Robert Stephens, David Locascio and Jose Luis Vittor. Also, on March 28, James H. Wilson, former head of King & Spalding’s corporate practice in Houston, joined McDermott’s Houston office as a partner. Wilson says McDermott is a “terrific fit” for his corporate securities and mergers-and-acquisitions practice because of the team on board in Houston, the firm’s national practice, its support in practice areas including employee benefits and ERISA, and the strong New York City and Washington, D.C., offices. Wilson says he brings clients including Newfield Exploration Co. and Eschelon Energy Partners, both of Houston. Christine LaFollette, partner in charge in Houston for Akin Gump, and Robert Meadows, the managing partner of King & Spalding’s Houston, office, could not immediately be reached for comment.
-- Brenda Sapino Jeffreys

April 08, 2008

Toobin opines on "The Nine"

When Jeffrey Toobin, the author and CNN senior legal analyst, touted his newest book "The Nine: Inside the Secret World of the Supreme Court," at a meeting sponsored by the Dallas Bar Association on April 8, he told the audience of more than 100 lawyers that in his reporting he had uncovered much more collegiality at the high court than he had expected to find when he embarked on the project. But Toobin also said that the court, with the departure of former Justice Sandra Day O'Connor, had become much more conservative. He said O'Connor's departure was tragic personally, since she left because her husband suffered from Alzheimer's disease, and tragic politically, since the court's two newest members -- Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. -- have taken the court in a direction so far from her views. Toobin also lamented the failure of the nomination of former White House counsel Harriet Miers, who, if confirmed, he noted, would have been the one justice on the high court who had not come up through the ranks of the federal judiciary. In his book, Toobin describes Miers' nomination to the Supreme Court in 2005 as "quickly devolv[ing] into political black comedy." Miers had planned to attend his talk in Dallas, Toobin told his audience, but had to cancel because she had jury duty. "She will probably be picked to serve on a panel because she is fair-minded," Toobin predicted. Indeed, after Toobin's lunchtime talk, an assistant to Miers, who now is a partner in Dallas' Locke Lord Bissell & Liddell, confirms that Miers was picked to serve on a jury panel on April 8. Miers did not respond to an e-mailed inquiry before presstime.

-- Miriam Rozen

It's déjà vu all over again

A white student has sued the state and the University of Texas at Austin, alleging that the university’s admissions policies and procedures discriminate against her in violation of the 14th Amendment to the U.S. Constitution and federal civil rights laws. Abigail Noel Fisher, an 18-year-old senior at Stephen F. Austin High School in Sugar Land, filed Fisher v. State of Texas, et al. April 7 in the U.S. District Court for the Western District in Austin. Fisher alleges in her original complaint that UT-Austin rejected her application in a March 25 letter, even though she ranks in the top 12 percent of her high school class, scored 1,180 out of a possible 1,600 on the SAT college entrance exam and is an accomplished cellist. According to the complaint, Louisiana State University and Baylor University have offered Fisher scholarships based on her achievement, but UT-Austin encouraged her to enroll in other universities in the UT System. Fisher is asking U.S. Judge Sam Sparks to enjoin UT-Austin from using racially discriminatory policies. Fisher also is asking Sparks to require UT-Austin to admit her if she is qualified for admission under race-neutral criteria. Fisher’s complaint brings to mind the case that shook up higher education in Texas in the 1990s. In 1996’s Hopwood v. Texas, the 5th U.S. Circuit Court of Appeals prohibited the University of Texas School of Law from considering race as criteria for admissions. However, the U.S. Supreme Court held in 2003’s Grutter v. Bollinger that universities have a compelling interest in “student body diversity” and, under limited circumstances, may consider race or ethnicity as a factor for admissions. But, according to Grutter, government must narrowly tailor its policies when it pursues diversity. Fisher alleges in her complaint that UT-Austin’s race-based admissions policies are not narrowly tailored, because the university has failed to employ other means to achieve diversity. As noted in Fisher’s complaint, it’s unclear how much weight UT-Austin gives to an applicant’s race when considering whom to admit. But Fisher alleges in the complaint that “it is clear that UT-Austin grants to African-American and Hispanic students a substantial advantage in the admissions procedure that it does not grant to other students.” 
-- Mary Alice Robbins

Sect lawyers oppose broad law enforcement search

Lawyers for leaders of the Fundamentalist Church of Jesus Christ of Latter Day Saints will argue tomorrow morning before a state district judge that the constitutional rights of their clients were violated during a massive search at the religious sect’s ranch in Eldorado.  The motion before 51st District Judge Barbara Walther argues that state law enforcement officials overstepped their authority while searching “each and every residence, structure, school, vehicle, place of business, temple or other facility.” Church members “consider it a desecration of one of their holiest sites for a non-member to enter their temple,” the motion alleges. “Such a desecration would be irreparable.”  But the district attorney for the 51st Judicial District argues that leaders of the sect have no expectation of privacy during such a search. The search was conducted after authorities received a call from a 16-year-old girl who claimed she was married to a 50-year-old church member and allegedly has a child by that man. So far 401 children who lived at the sect’s compound have been taken into temporary custody by Child Protective Services making it the largest such act by the agency in state history.
-- John Council

Hitting 100

On April 5, a team of South Texas College of Law students won the 21st annual August A. Rendigs Jr. National Products Liability Moot Court Competition in Cincinnati, marking the 100th national advocacy win for the Houston law school.  A team made up of Stephanie Howell, Jessica Sykora and Kristen Welsh defeated a team from John Marshall Law School to win the moot court competition. The students argued a fictional case about injuries allegedly caused by the chemicals used to make butter flavor in microwave popcorn. Some of the praise for the win also should go to the team’s coaches: T. Gerald Treece, STCL’s associate dean; Rob Galloway, a lecturer at the law school; and J.D. Schacht and Wade Vandiver, associates at Eggleston & Briscoe in Houston.  The students and coaches can pat themselves on the back.
-- Mary Alice Robbins

April 07, 2008

Suit alleges mistreatment of unaccompanied minors at detention center

On the federal government's behalf, Cornell Companies Inc.'s Hector Garza Center in San Antonio  detains minors apprehended by the U.S. government after they immigrated illegally without their parents. It's also a place where teenage detainees are allegedly beaten and sent to other facilities when they try to meet with legal aid attorneys, according to a suit filed by two 18-year-old former detainees, an attorney and a priest. The latter two are suing on behalf of six minors who are in or have been in the facility. In Fabian, et al. v. Dunn, filed April 2 in U.S. District Court for the Western District of Texas, the plaintiffs are suing Cornell, directors and guards at the facility, federal government officials and the San Antonio police. "[R]ampant physical abuse at the Abraxas facility is open and notorious," the suit states. "[T]he Defendants have lost control of the Abraxas facility and the Plaintiffs and other children are at all times in danger of imminent and serious bodily harm." The suit claims that: a guard tackled a 17-year-old boy who did not immediate get up when ordered, because he was engaged in prayer, then later gave the teen a black eye; a teacher "severely battered" a 16-year-old boy after he whispered in class; guards later put the same boy in a half nelson after he tried to defend another boy who was being beaten, the punched him repeatedly in the back until he lost consciousness; guards assaulted a 15-year-old boy, leaving him with an arm injury that needed treatment at a hospital; and three guards beat a 17-year-old, forcing "his hands high above his back, causing excruciating pain." According to the suit, one boy stated that he was "so traumatized by these events that he once stated that although he wishes to remain in the United States, he would rather be deported than remain at the Abraxas center." The suit also claims that the center transfers children to other facilities in Indiana and elsewhere when they attempt to meet with legal aid attorneys. The plaintiffs allege that the defendants are violating the 1996 Flores v. Reno settlement agreement that sets requirements for daily care, protection, education, medical assistance and other humanitarian services to be provided by the United States to all unaccompanied minors. The plaintiffs in their suit seek an injunction requiring compliance with Flores.
-- Jonathan Fox

To disclose or not to disclose?

Admittedly, response to a February survey by the Task Force on Professional Liability Insurance Disclosure was low: Only 6.6 percent of the State Bar of Texas membership responded. State Bar president Gib Walton established the task force at the request of the state’s Supreme Court, after the high court received a request to consider such disclosure. But the survey results indicate that those lawyers who bothered to take the survey strongly oppose the adoption of a rule requiring Texas lawyers in private practice to disclose whether they carry legal malpractice insurance: 77.4 percent of the respondents said “no” to that idea. Even more interesting was the response to the survey question: Is it in the best interest of the client to know whether an attorney does or does not carry professional liability insurance? A whopping 61.5 percent of the survey respondents answered that question in the negative. State Bar spokeswoman Kim Davey says the task force will survey the public on the liability insurance disclosure issue this month. It will be interesting to see whether members of the public agree with lawyers that it’s not in a client’s best interest to know whether his or her attorney is insured.
-- Mary Alice Robbins

A year’s notice of office shutdown

Dewey & LeBoeuf will close its 16-lawyer Austin office but plans to “consolidate and substantially grow its Texas presence” in the firm’s Houston office, according to a statement that the firm released Friday in response to a Texas Lawyer inquiry.  As noted in the statement, the firm’s Austin attorneys have been encouraged to transfer to the Houston office, which is a regional center for the firm’s energy and litigation practice, or they can transfer to another office within the firm.  The Austin lawyers have time to decide what they want to do.  The firm’s statement indicates that its lease for the Austin office will not expire until March 2009, giving the attorneys about a year to relocate.
-- Mary Alice Robbins

April 04, 2008

The golden hour

Plaintiffs’ lawyer Brent Coon finally got his chance on April 4 to depose John Browne, the former chief executive officer of British energy company BP. Coon has been trying for two years to depose Browne about the 2005 explosion at a BP refinery in Texas City that killed 15 people. But Coon only got an hour question Browne; instead of meeting with the former CEO face-to-face, Coon was in Houston when he questioned Browne via teleconference from London. Never mind that; Coon says he was “generally satisfied” with the deposition, even though Browne didn’t deliver any “smoking gun” testimony that would give plaintiffs’ lawyers a big boost in their courthouse battles with BP in suits stemming from the explosion. “Every deposition helps,” Coon says. “I do not believe it changes the values of the cases one way or another . . . His testimony is some added value to the totality of evidence.” A Texas Supreme Court ruling earlier this year paved the way for the short deposition of Browne, who resigned unexpectedly in May 2007. Coon, who heads the plaintiffs’ steering committee for BP litigation stemming from the blast, says Browne’s testimony will help the plaintiffs’ team in upcoming trials. For instance, according to Coon, Browne testified that he did make budget cuts at BP, but he was not aware of deferred maintenance problems at particular plants, such as the Texas City plant, because of those cuts. “He agreed that the b