Texas Lawyer Blog

Pay me now or pay me later

I am not now nor will I ever be an insurance lawyer. However, I can tell you this: When an insurance company decides to deny coverage to its insured and rolls the dice by filing a declaratory judgment action, hoping to get a court to declare it doesn't owe a duty to defend, the insurance company usually is going to lose. The reason is Texas’ eight corners rule. It provides that when a third party sues an insured, courts will determine the duty to defend solely by the terms of the policy and the third party's pleadings. That’s what snagged an insurance company in the 5th U.S. Circuit Court of Appeals'  Jan. 28 decision in Mid-Continent Casualty Co. v. JHP Development Inc. According to the opinion, Mid-Continent denied its insured, JHP, coverage and declined to defend it in a construction case. JHP got hit with a $1.5 million default judgment. Then Mid-Continent filed the dec action. The trial court held that Mid-Continent had a duty to defend and so did the 5th Circuit. The sweetest words for JHP in the 5th Circuit decision were: “Further, Mid-Continent is bound by the default judgment in the underlying suit.”
-- John Council

Lawyer-mom lament

After laboring in the world of billable hours, lawyer moms who opt to stay home with their kids or to scale back their careers can’t help but apply the same focus and intensity to their new job of parenting. That’s the premise of an essay by lawyer-mom Elana Sigall that appears in the February issue of The American Lawyer and is posted online. Whether the lawyer-moms are micromanaging the PTA bake sale or coaching a soccer team to certain victory, Sigall writes, “These women intended to step back from their high-intensity careers, but they can't completely let go of their former selves.” One source, a former NYC litigator turned stay-at-home mom, admits she will “create complexity where it doesn't exist.” Another former big firm mom reveals she’s a chronic list-maker and says, “[Y]ou make yourself busy because that's how you're programmed.” These women still feel a need to accomplish, and it “can pervade every activity,” Sigall writes. “[W]e rely on the methods we know best to get the high-level results we still crave. We produce cupcakes in the same way that we ran litigations and corporate deals.” I found this article quite remarkable and scarily spot on. As a mom, lawyer and a full-time journalist, I never actually stopped working, but I remember well those months at home during maternity leave. I found the boredom and monotony excruciating. After passing the bar exam in two states and winning a shelf of writing awards, it seemed like my life had become all about laundry, 24-7. So I fell back on the behavior I knew best: work. Unable to go back to my office until my leave was completed, I took on freelance assignments. I learned it was possible to type while breastfeeding. When I gave birth to my second baby, I brought trade magazines with me to the hospital, since I knew I’d have some “down time.” I couldn't help it and neither can these lawyer-moms. But really, is it such a bad thing? Let’s hope my kids -- and all kids with lawyer-moms -- are better off because mom’s a busy bee. At least the PTA will be happy when it gets the most organized bake sale on the planet. What do you think? Are there any lawyer-moms out there with a recipe for slowing down? Got a good argument for why it’s better to keep moving in a higher gear?
-- Jenny B. Davis

Let the hand-shaking and back-slapping begin

Dallas solo Rhonda Hunter and Terry Tottenham, partner-in-charge of the Austin office of Fulbright & Jaworski, will face off in an election this spring for a chance to become the 130th president of the State Bar of Texas. The State Bar today announced the nomination of Hunter and Tottenham for president-elect at the Bar’s board of directors meeting in Waco. Both Hunter and Tottenham have served on the Bar board. Hunter is board certified in family law by the Texas Board of Legal Specialization. Tottenham, who heads Fulbright’s pharmaceutical and medical device litigation group, is board certified by TBLS in personal injury and civil trial law. Tottenham says he has been asked in the past to be a candidate for president-elect but had been busy with firm or family matters. The Bar’s inquiry this year “hit me at the right time,” Tottenham says. “I enjoy being a lawyer. . . . I would like giving back in some small way in this capacity.” When asked why she wants to be the State Bar president, Hunter says she is the past president of three bar groups: the Dallas Bar Association, the J.L. Turner Legal Association and the Dallas Association of Black Women Attorneys. “For the last four years, I have been traveling around the country teaching bar presidents how to be good bar presidents,” she says. “Now I want to follow my own advice.” Election results will be announced May 1. The winning candidate will become the Bar’s president-elect in June of this year and will begin serving a one-year term as Bar president in June 2010.
-- Mary Alice Robbins

Austin bar fit challenge

The Austin Bar Association is challenging its members to get fit. Participants in the Fit Bar Challenge need to earn 100 points for various physical activities to win a Fit Bar certificate and T-shirt, says Brad Houston, an Austin solo practitioner and chairman of the Austin Bar’s Fit Bar Committee. “The way we designed this is for all fitness levels,” he says. For example, folks signing up for the challenge can earn two points for walking up one flight of stairs, 25 points for competing in a 10K race or 100 points for completing a marathon. Participants track and report their earned points -- on the honor system -- by June 30. So far, 50 people have joined the challenge, which has a free, kickoff event on Friday, Feb. 13 at Castle Hill Fitness, Houston says. But folks can sign up at any time between now and June 30 and participate. Houston promises that the Fit Bar T-shirt “will be an interesting color, with a nice design and will be a coveted T-shirt.”
-- Jeanne Graham

Triple threat lawyer is youngest in an elite club -- CORRECTED

David F. Johnson (pictured left), a shareholder in Winstead’s Fort Worth office, recently became a member of a small group of attorneys who are board certified in three areas of the law by the Texas Board of Legal Specialization.  Brenda Martinez, a TBLS certification analyst, says that as of Jan. 29, only 18 attorneys -- including Johnson -- hold triple certifications. Martinez also confirms that the 37-year-old Johnson is the youngest attorney who is certified in three specialty areas. According to the TBLS Web site, Johnson has been certified in civil appellate law since 2002, personal injury law since 2003 and civil trial law since 2008. Johnson received board certification in civil trial law in December 2008, Martinez says. As noted on the TBLS Web site, to become board certified in a specialty area, an attorney must have been licensed to practice law for at least five years, devoted a required percentage of practice to a specialty area for at least three years, handled a wide variety of matters in the specialty area to demonstrate experience and involvement, attended continuing education seminars regularly to keep legal training up to date and been evaluated by fellow lawyers and judges. Oh yeah, and the attorney has to pass a day-long written examination. Johnson says he decided early in 2008 to seek TBLS certification in civil trial law without knowing how difficult that would prove to be. On Sept. 5, 2008, Johnson’s wife gave birth to their first child. “I didn’t fully comprehend the vacuum of time I would have,” Johnson says, noting that he was “scrambling” to get ready for the certification test in October. “I was really relieved when I got the test results,” he says.

CORRECTION: Apparently I misunderstood Texas Board of Legal Specialization certification analyst Brenda Martinez. She says David F. Johnson is the youngest among the 18 attorneys board certified by the TBLS in civil appellate law, civil trial law and personal injury law. There is at least one attorney even younger than Johnson who also has three TBLS certifications, but is not certified in the same practice areas as Johnson. According to the TBLS Web site, Jason Davis (pictured, right), 36, an associate with Crain Caton & James in Houston, holds certifications in commercial real estate law, farm and ranch real estate law, and residential real estate law. As noted on the TBLS Web site, Davis obtained all three certifications in 2008. Davis says he took three separate tests for the certifications over a two-day period and the tests were difficult. “I studied very hard,” he says. “I told my friends, ‘Don’t take this lightly.’ ”   

 -- Mary Alice Robbins

One candidate, one chairman

The State Bar of Texas board chairman’s job drew little interest this year.  Kim Davey, a State Bar spokeswoman, says David J. Fisher (pictured), a partner in Orgain Bell & Tucker in Silsbee, is the only attorney who came forward to announce his candidacy during today’s State Bar board meeting in Waco.  Having only one candidate is unusual, Davey says. The Bar board will elect its chairman at its April 17 meeting in Fort Worth.
-- Mary Alice Robbins

Constitutional design at UT Law

A symposium on constitutional design begins today at the University of Texas School of Law in Austin. Constitutional scholars from around the world are participating in the event, which continues Friday and Saturday, says Emily Falconer, editor-in-chief of the Texas Law Review.  “The symposium is open to the public, and we invite anyone who is interested to come down,” Falconer says. The sessions are in the Eidman Courtroom of the law school’s Connally Center for Justice. Participants include one of the drafters of the Iraqi Constitution, Feisal Amin Rasoul al-Istrabadi, formerly an Iraq ambassador and deputy permanent representative to the United Nations, Judge Dennis M. Davis of the High Court of South Africa-Cape Town and Judge Antonio Benjamin of the Supreme Court of Brazil, according to information released by the law school. The event is sponsored by the law school, the Lyndon Baines Johnson Library and Museum and the Texas Law Review.
-- Jeanne Graham

Harris County DA's Office boosts services for crime victims

The new Harris County District Attorney Pat Lykos announced today she’s expanding her office division that assists people victimized by crime. The Victim Witness Division will be renamed the Victims’ Rights Division and will include four additional victim assistance coordinators, two support personnel, and an investigator to improve services and response to victim needs, according to a press release. Upgraded databases in the division will also help coordinate assistance with other agencies and will improve the process of obtaining restitution from convicted criminals and compensation from the state in applicable cases. “We will work directly to address victims’ concerns, keep them better informed and provide them with better assistance and support,” Lykos writes in the release. Michelle Permenter, who has more than 11 years service as a victim assistance coordinator with the DA’s office, will head the division. The Harris County DA’s Office began offering victim services in 1977. Last year, the office offered services for about 26,500 crime victims and handled $430,000 in restitution payments. That work included more than 24,000 letters and 14,000 phone calls, the release notes.
--- John Council

Hecht appeals TEC decision

Texas Supreme Court Justice Nathan Hecht is challenging the decision of another state commission. On Jan. 27, Hecht filed an appeal of the Texas Ethics Commission’s December 2008 decision that Hecht violated state election laws by accepting and not reporting more than $100,000 in free legal services provided by Jackson Walker. TEC fined Hecht $29,000 for the violations. But Hecht alleges in his petition in Hecht v. Texas Ethics Commission, filed in Austin’s 250th District Court, that TEC’s decision creates a legal fee structure only for judges. Hecht further alleges, “Under this new structure, adjustments to legal bills to establish a reasonable fee turn into improper campaign contributions. At the same time, representation of a Texas judge for free does not violate the Election Code. This distinction makes no sense.” Charles “Chip” Babcock, a partner in Jackson Walker in Houston and Dallas, had represented Hecht in 2006 when the justice successfully challenged the State Commission on Judicial Conduct’s public admonition of him for his public support of Harriet Miers’ nomination to the U.S. Supreme Court in 2005. Miers, now a partner in Locke Lord Bissell & Liddell, eventually withdraw her name from consideration for the Supreme Court seat. Neither Hecht nor his attorney, Steve McConnico, a partner in Austin’s Scott Douglass & McConnico, returned a telephone call seeking comment. Tim Sorrells, the TEC’s deputy general counsel, declines comment. Alex Winslow, executive director of government watchdog group Texas Watch, who filed the complaint against Hecht with the TEC in 2007, says he respects Hecht’s right to appeal the decision. “I believe ultimately our complaint will be upheld and Justice Hecht will be held accountable for his actions,” Winslow says.

-- Mary Alice Robbins

Growing number of Republicans eye AG race in 2010

Voters will not cast ballots to elect the state’s attorney general for another two years, but at least three potential candidates, all Republicans, have emerged. Ted Cruz, the state’s former solicitor general, released a statement Jan. 27 announcing his campaign for the post. Cruz, now a partner in Morgan, Lewis & Bockius in Houston and Washington, D.C., e-mailed the statement after I reported that he had filed a campaign-treasurer designation with the Texas Ethics Commission -- the first step toward launching a campaign. But Cruz’s candidacy depends on what Greg Abbott, the current AG, plans to do. “Should Attorney General Abbott not seek re-election, I am committed to continuing his stalwart leadership as the next attorney general of Texas,” Cruz writes in the statement. Another potential AG candidate is U.S. Rep. Michael McCaul, R-Austin (pictured, left), who just began his third term in Congress. Mike Rosen, McCaul’s spokesman, says McCaul “is considering a run for attorney general if, in fact, the seat opens up.” McCaul has experience at the Texas Office of the Attorney General. He served as the state’s deputy attorney general from 1998-2002 under then-Attorney General John Cornyn, now a U.S. senator. State Rep. Dan Branch, R-Dallas (pictured, right), also says he is taking “a very serious look” at the 2010 AG’s race.  Branch, a shareholder in Winstead, says people around the state have encouraged him to run, but he won’t mount a campaign if Abbott decides to seek re-election. So what is Abbott going to do? The press spokesman for Abbott’s campaign has not returned two telephone calls seeking comment.
-- Mary Alice Robbins

Update: After we posted this blog, Abbott spokesman Daniel Hodge called. He says Abbott is busy working with state legislators. "He'll focus on the election when the time comes," Hodge says.