Texas Lawyer Blog

Texas lawyer reportedly retained by suspected shooter in Fort Hood attacks

The Houston Chroniclereports that Major Nidal Malik Hasan's family has retained John P. Galligan as counsel. Hasan is widely reported as the only suspected individual in the deadly shootings at Fort Hood last week. Galligan is listed as a Belton solo on the State Bar of Texas Web site, which notes that he received his law degree in 1976 from the University of Puerto Rico and has been licensed in Texas since 1992. The site identifies military law as his specialty. Galligan told the Chronicle that he has asked miltary officials not to interview his client until he gets there and also that he doubts his client may get a fair trial. Galligan did not respond immediately to a message left on his answering machine. 
-- Miriam Rozen

Clerk with Harris County District Clerk’s Office rescues man, reunites family

Denise Jennings (pictured), a closed records clerk with Harris County District Clerk’s Office, had an uneasy feeling one Monday morning in October when she saw a young man asleep outside the former Harris County Jail Building where she works. Homeless people sometimes sleep outside the building, but the young man didn’t appear to be homeless. Jennings spotted him around the building on several occasions that week. “I said, something’s wrong somewhere,” Jennings recalls telling her co-workers. “I told everybody: If we see this young man, we’ve got to catch him.” On Oct. 15, three days after she first saw him, Jennings spotted the young man in the lobby of her building, and she finally got the chance to chat with the 23-year-old. He told her he was from Minneapolis, and he rode a bus to Houston because he had been sleeping under a bridge there, and he was fleeing the cold and snow. She offered him her cell phone to telephone his family, but after no one answered when he called, he went back outside. Jennings decided to call the telephone number, and she left a message. A half hour later, the man’s sister returned the call. “She said she had been praying to God. He had been gone over 30 days,” Jennings says, noting that the woman told her the young man had been diagnosed with schizophrenia a few months ago. Promising breakfast, Jennings asked the young man to come back to the building the next morning. He was outside the building that Friday morning, and Jennings says the man’s sister flew to Houston that day to take him home. Individuals in District Clerk Loren Jackson’s office contacted the Salvation Army and Continental Airlines, which arranged for the siblings to fly home together to Minneapolis on Oct. 16. The man’s sister did not immediately respond to an e-mail message, but Jennings says she has stayed in contact with her and the young man is doing well. “I just thank God,” Jennings says. “He wasn’t the type of guy that could have stayed on our streets and made it.”

-- Brenda Sapino Jeffreys

State Bar wraps up public hearings on possible insurance disclosure rule

Five of the seven speakers at today’s State Bar of Texas public hearing in Austin — which addressed whether lawyers should be required to disclose if they have professional liability insurance — gave a thumbs-down to the idea of such a rule. Jim Parker, a shareholder in Austin’s Johnson, Rial & Parker, told the Bar board members on hand for the hearing that such a rule would result in a new growth industry. Parker says in an interview that he has seen billboards near Waco on Interstate 35 and near Houston on Interstate 10 that read: “We sue lawyers.” Although he has carried professional liability insurance throughout his legal career, Parker says he opposes a disclosure rule because he believes it would only benefit the lawyers who sue other lawyers. Chuck Herring, a proponent of the disclosure rule, testified that it is very rare for lawyers who represent plaintiffs in legal malpractice cases to take a case against a lawyer who doesn’t have the insurance. Herring, a partner in Austin’s Herring & Irwin, told the Bar board members that Texas should follow the lead of the more than 25 others states that have such disclosure rules. Tom “Smitty” Smith, director of the Public Citizen Texas office, also testified in favor of a disclosure rule. “The assumption most of us make as consumers is, of course, that attorneys have insurance,” Smith testified. Lance Sharp, a partner in The Sharp Firm in Austin, testified against the rule. “This is a backdoor attempt to curb the rule of law,” Sharp said of the proposed disclosure rule. If such a rule is implemented, an insurance company could bump up his premium for professional liability coverage in the event he takes a case against the insurer or a company it insures, Sharp said. Today’s hearing was the final in a series of seven public hearings across the state as the State Bar considers whether to recommend that the Texas Supreme Court adopt a disclosure rule. Terry Tottenham, the State Bar’s president-elect and a partner-in-charge of Fulbright & Jaworski’s Austin office, says the Bar board of directors will consider the issue at its Jan. 29, 2010, meeting in San Antonio.
-- Mary Alice Robbins

El Paso county attorney running for Texas Senate seat

José Rodríguez (pictured), currently in his fifth term as El Paso county attorney, announced Nov. 8 that he will run as a Democrat for the District 29 seat in the Texas Senate. State Sen. Eliot Shapleigh, D-El Paso, announced last month that he will not seek re-election. Shapleigh, an El Paso solo, has represented District 29 in the Senate since 1997. Rodriguez did not immediately return a telephone call seeking comment.
-- Mary Alice Robbins

This Week in Texas Lawyer

Firestorm: The governor abruptly replaced two Texas Forensic Science Commission members two days before they were to review an arson expert’s report in a death-penalty case. Now, senior reporter Mary Alice Robbins gets a preview of the changes the commission's new chairman will seek.

Hands off a hard drive: Reporter Miriam Rozen looks into a dust-up between the Dallas County Commissioners' Court and a Dallas County judge over an order that followed the seizure of the hard drives in a constable's work computers.

Dumped from deliberations: Differing opinions or jury nullification? After a judge ejects a juror during deliberations in a death-penalty trial, senior reporter John Council explores the varying accounts of what happened in the jury room.

Final farewell: Speakers at John O'Quinn's funeral recall him as a giant, complicated and a force of nature. Senior reporter Brenda Sapino Jeffreys joins the crowd at the church.

Fee fight: Senior reporter John Council explores the decision that lets plaintiffs in legal-malpractice cases recover fees they paid to correct lawyers’ mistakes.

Conflicted, I presume?: Attorneys who want to change firms can breathe a sigh of relief after a court decision finds a presumption of conflict of interest rebuttable. Senior reporter John Council hears from ethics experts and managing partners.

Extraordinary Minorities in Texas Law: Get a seat at the table at the lunch honoring 25 Lone Star lawyers who have had an impact on firms, government, nonprofits, academia and the corporate world in Texas within the past five years.

Inadmissible. Discipline. Newsmakers. VerdictSearch.

Freedom fight: State representative and decorated war veteran Allen Vaught recalls how conversations half a world away bolstered his appreciation for parts of the legal system many Americans take for granted.

Fashion Fridays: simple guide to update shopping

Fall/winter update shopping used to feel like a chore. I would spend countless hours at the mall, bobbing in and out of stores as I came upon them, looking for those few necessities that would bring old favorites back to life. But, inevitably, I’d get home and realize that, in a sea of shopping bags and trendy items, I’d neglected to pick up a single one of those few necessities.  And so, back to the mall I went the following weekend, with the same result.  Rinse, repeat. Four wasted Saturdays, three impractical pairs of shoes and one empty wallet later, I’d be no better off than when I set out with good intentions all those weeks earlier -- until I came up with a plan. Though my no means foolproof (as I write, I’m wearing a terribly gaudy necklace purchased on impulse during this year’s fall/winter shopping excursion), the guidelines I devised for myself have made “update shopping” so much less stressful and much less expensive.  I share them below for you to use, adapt or reject altogether.

1. Wear comfortable, easily removable shoes:  Nothing -- I repeat, nothing -- kills an otherwise productive day on your feet faster than uncomfortable shoes. And nothing kills a day of shoe-shopping faster than having to struggle with a pair of pull-on high boots every time I want to try something on. Stick to a pair of ballet flats or cushioned, slip-on wedge heels.
2. Put together a simple shopping kit: Before heading out, I stick a pair of trouser socks, a favorite blouse, and the shoe or other items for which I am seeking coordinates in my handbag. The trouser socks help avoid having to use one of the shoe department's useless stockings. The favorite blouse, because I know and like how it fits, will help me better determine the fit of a new suit jacket. By packing a single shoe, I can assess the appropriate length for new trousers, match a belt or avoid purchasing a similar pair just because it’s on sale.
3. Make a little list: For me, this is never anything elaborate. For example, this year’s list reads “Belted trench, tweed pencil skirt, one pair black tights, one pair colored tights, brown boots, bright scarf, winter suit, gold gloss.” Even though it wasn’t very descriptive, the list kept me on task and focused on the things I really needed. Of course, as other items caught my eye, I considered them. But I wholly avoided dropping the extra cash on another pair of black boots or a spring-season suit from the sale rack. My list reminded me that other items were a priority.
4. Tear out those ads I saw in my September issues: A few years ago I drooled over a purple Kenneth Cole sheath dress I saw in one of his fall ads and was determined to find it. A month or so later when I finally made it to the store, I was perplexed and disappointed to find out that there were three purple dresses featured in Kenneth Cole’s fall ads, none of which were in stock at the time. “If you tell me which one you need, I’ll find it at another store and have it sent,” the polite sales associate offered. Slight problem: By that time I’d forgotten the details and remembered only that I loved it. Do yourself (and the sales associate) a favor, and pull ads that inspire you. Even if what you see is at a higher price point than you can afford, you’ll at least have the inspiration handy when you’re looking for a more reasonable version.
5.  Get online and scan a favorite store’s sale page: I’ve only started doing this for the past few seasons. What clued me in to it in the first place was when I went to my favorite store’s Web site to find trousers in an out of stock size and realized the same trousers were 30 percent off online. The kicker was that the blouse I’d just paid full price for in the store just hours earlier was also 30 percent off. It isn’t practical to check dozens of Web sites, but from then on, I make a point to check the ones from which I know I’m likely to purchase. Sometimes stores will honor the online sale price or order the item for you directly. If a store gives me trouble, I skip the awkward confrontation and order it for myself when I get home. Another tip is to check your e-mail spam box for deals and coupons that may not have made it through your filter. Particularly this year, I’ve saved quite a bit by simply checking my junk e-mails.
6. Go solo: I love shopping with my girlfriends and fashion-supportive male friends. But when I’m on an update mission, I’d rather fly alone. I can avoid waiting, long lines and finding myself in a less frugal friend’s favorite (and terribly tempting) designer boutique. These days I save group shopping for special occasions, vacations and when I really need a second opinion.

Shopping can be efficient and fun again. I encourage you to develop a simple plan of attack to getting your current wardrobe up to speed before heading to the mall this season. A little bit of forethought can add a lot of stretch to your time, budget and sanity.

Kasia Benson is corporate counsel at Essilor of America Inc. She is also the founder of Wardrobe Peace, which provides sensible, “use what you’ve got” wardrobe consulting services to lawyers and other busy professionals.

Students seeking to protest campus concealed-weapon ban challenge Tarrant County College's free-speech policy

Two students at the Tarrant County College District Northeast campus in Hurst want to wear empty gun holsters on campus on Nov. 9-13 to protest Texas law and college policy prohibiting the carrying of concealed weapons on campus. But they allege campus free-speech policy won’t allow them to wear the empty gun holsters and further restricts any protests to a “designated free speech zone,” so they filed a federal complaint on Nov. 3 against the college and its interim chancellor. The plaintiffs seek a declaratory judgment that the defendants’ policies violate the First Amendment. On Nov. 4, they filed a motion seeking a temporary restraining order to prevent the college district, interim chancellor Erma J. Hadley and others from the college from “preventing or disciplining” them or other students from “engaging in expressive activity including wearing empty holsters, T-shirts and distributing leaflets” on campus about gun control during the week of Nov. 9-13, which is 2009 Defense Education Week. “It’s a classic free speech issue,” says Lisa Graybill, litigation director for American Civil Liberties Union of Texas and one of the attorneys representing plaintiffs Clayton Smith and John Schwertz Jr. A lawyer for the college district, Angela Robinson, a shareholder in Law, Snakard & Gambill in Fort Worth, says her client will oppose the request for the TRO. She says the college’s free speech policies are designed to protect the constitutional rights and safety of students and faculty. “We believe those policies are practical, enforceable and aligned with the law,” Robinson says. Smith and Schwertz allege in Clayton Smith, et al. v. Tarrant County College District, et al. that the defendants are restricting their free expression rights by “prohibiting protected symbolic speech, quarantining free expression to a small area on each campus, maintaining overbroad prohibitions against expressive conduct, and granting administrators unfettered discretion to decide the time, manner and place for free speech activities.” The suit is pending before U.S. District Judge Terry Means of the Northern District of Texas.
-- Brenda Sapino Jeffreys

Friend says he and John O'Quinn were supposed to be on flight together to see client

Houston lawyers James Wesley “Wes” Christian (pictured) and John M. O’Quinn were both at Houston’s William P. Hobby Airport in the early morning of Oct. 29 to catch a flight to San Antonio for a meeting with executives of client Overstock.com. But instead of boarding the flight, O’Quinn left the airport and drove back to his house to pick up some papers. On his way home, O'Quinn was killed when the car he was driving crashed into a tree along Allen Parkway. Christian, a partner in Christian, Smith & Jewell of Houston, says he learned of his close friend’s death a couple hours later after O’Quinn failed to arrive for the business meeting with Overstock.com executives. Christian says he had arrived at the airport for the 7:15 a.m. flight, when O’Quinn called him at around 7 a.m. to say he was on his way and to ask Christian to see if Southwest Airlines would hold the flight for him. “They wouldn’t do that,” Christian says about the airline. “That’s the last I talked to him. I went on to the strategy meeting with our client, Overstock.com,” Christian recalls. He says he figured that if O’Quinn missed the 7:15 a.m. flight, he would be on the next one. O’Quinn was at the airport that morning, because former state District Judge Levi Benton of Houston chatted with him in the security line. Christian says he called O’Quinn’s office in Houston to make sure the lawyer was booked on the flight that was supposed to leave Hobby after 9 a.m., but O’Quinn’s assistant, Pam Burns, wasn’t able to locate him. Christian says Burns soon called him to tell him about the accident. “I couldn’t believe it, but certainly, it was true,” says Christian, who along with O’Quinn and other lawyers, represents Salt Lake City-based Overstock.com in California litigation against alleged short-sellers. “John was one of the largest Sequoia trees in the forest, and it will be extremely hard to replace him in the legal community in regard to protecting and defending the common person, the common man,” says Christian, who developed a close working and personal relationship with O’Quinn about 15 years ago. O'Quinn's funeral is set for 11 a.m. on Wednesday, Nov. 4, at Second Baptist Church on Woodway in Houston. Calling hours are tonight until 8 p.m. at the George H. Lewis & Sons Funeral Directors on Bering, according to an announcement on the Web site of The O’Quinn Law Firm.
 
-- Brenda Sapino Jeffreys

O'Quinn's will, filed for probate, details disposition of assets

John M. O’Quinn left his personal property -- except for his vast car collection owned by Classy Classic Cars Ltd. -- to his charitable trust, the John M. O’Quinn Foundation. In a will O’Quinn signed in 2008 that has been filed for probate in Harris County, O’Quinn left his ownership of his firm and any client matters to the co-trustees of the O’Quinn Law Firm Trust and directed the co-trustees to “provide for the orderly winding up and dissolution” of the firm by taking steps such as transferring case files and/or engagement letters to other lawyers or firms, and to sell or dispose of assets of the firm. Once the winding up and dissolution of the firm is completed, O’Quinn writes in the will, any remaining assets shall go to his charitable trust. Christian Steed, managing attorney of the 17-lawyer O’Quinn Law Firm, says the firm’s lawyers continue to represent the firm’s clients. He refers questions about the firm’s windup to Gerald Treece (pictured), a professor at South Texas College of Law in Houston who is of counsel at O’Quinn’s firm, the executor of O’Quinn’s will and one of the co-trustees of the O’Quinn Law Firm Trust. Treece could not be reached for immediate comment.
-- Brenda Sapino Jeffreys 

Family of O'Quinn employee killed in crash lawyers up

The family of Johnny Cutliff, the longtime employee of the O’Quinn Law Firm who was killed in an automobile accident along with John M. O’Quinn on Oct. 29, has hired an attorney. Waverly R. Nolley, of Law Office of Waverly R. Nolley & Associates of Houston, says family members hired him to represent them for “any and all recoveries that are allowed by law.” Nolley says he’s not commenting on the family’s plans because, “I think the respectable thing to do is wait until the funeral services are over.” Nolley says Cutliff worked for O'Quinn for 26 years. Cutliff was a passenger in the SUV O’Quinn drove on Oct. 29; the vehicle crossed a median on Allen Parkway and struck a tree on the other side of the road. According to Houston police, witnesses say O’Quinn was driving 50-60 miles per hour on a wet roadway. O’Quinn’s funeral is Nov. 3, while Nolley says Cutliff’s funeral is scheduled for Nov. 7.

-- Brenda Sapino Jeffreys

Texas Appleseed readying to present awards

On the evening of Nov. 5, the late Fred Baron, the legendary plaintiffs lawyer who died a year ago, will receive a tribute for the help he provided the disenfranchised during his life. Baron, along with his wife and partner, Lisa Blue-Baron (pictured), are among the honorees at Texas Appleseed's 2009 Good Apple Dinner in Austin. “Texas Appleseed is recognizing Lisa Blue Baron and Fred Baron for their decades-long work for social justice and their advocacy for people in need, including their tremendous community service. . . . from establishing the Baron & Blue Foundation in Dallas, to being major supporters of the Dallas Volunteer Attorney Program’s Access to Justice campaign," writes Rebecca Lightsey, executive director of Texas Appleseed, in an e-mail to Texas Lawyer. On the same night, the organization also will honor Houston's Fulbright & Jaworski "with our pro bono leadership award for their hugely generous donation of time and top-notch legal talent to helping children in long-term foster care, by working with us on a major foster care study. This study, done at the request of the Texas Supreme Court’s Commission on Children, Youth and Families, will examine how the court and legal systems can be improved to help those children,” writes Lightsey.

-- Miriam Rozen

Firms' donations help nonprofit media outlet go live tonight

Sometime after midnight tonight, the Texas Tribune, a new nonprofit, nonpartisan public media organization headquartered in Austin, will launch its coverage of Texas politics and policymaking with stories, blogs, tweets and Facebook postings. Several firms rank among those that deserve credit for the startup. Vinson & Elkins and Fulbright & Jaworski, both based in Houston, and Austin's Graves Dougherty Hearon & Moody are among the firms listed on the site as founding corporate sponsors that have donated at least $2,500 to the nonprofit, says Evan Smith, CEO and editor in chief of the Tribune, who left his posts as president and editor in chief at Texas Monthly for the new venture. Smith says the firms, like other corporate sponsors, "are not getting anything more than our gratitude," and, of course, the same free access to the coverage as the rest of us. Anyone may become a founding member (distinct from a corporate founding sponsor) of the Tribune by donating a minimum of $50. Smith compares the firms' donations to those a corporate sponsor gives to a public television or radio station. Michael Whellan, president of Graves Dougherty, says, "Texas Tribune is going to continue a tradition of nonprofit, unbiased reporting." He adds, "We know the folks who are involved, and we believe they're going to bring more coverage that promotes stronger government." Like Smith, he equates the firm's sponsorship to a donation to public radio or TV. At the other firms, management officials did not immediately return calls seeking comment.

UPDATE: Vinson & Elkins spokesman Mark Curriden says seven V&E partners donated to the Texas Tribune, but the firm itself is not a corporate sponsor.
-- Miriam Rozen

O’Quinn killed while rushing home to get papers

As Texas Lawyer reported, famed plaintiffs attorney John O’Quinn was scheduled to fly out of Houston’s William P. Hobby Airport last Thursday morning when he abruptly changed his mind, drove away in an SUV and died after hitting a tree. Neil McCabe, an attorney with The O’Quinn Law Firm in Houston, says O’Quinn was on his way to San Antonio to have a meeting on an internal matter involving his client Overstock.com. “He was going home to get some papers that he didn’t have with him,” McCabe says today. “And he was going to catch a later flight.” McCabe says, “I prepped him for the meeting, but I was not asked to go.”

-- John Council

Related stories and blog postings:

Legal Community Stunned By Death Of John O'Quinn

Police say John O'Quinn was driving SUV, not wearing seat belt, in fatal crash

John O'Quinn had been going to San Antonio mediation but didn't get on the plane

Funeral set for John M. O’Quinn

Locke Lord wins high marketing and communications ranking

One year after revamping its communications and marketing department, Locke Lord Bissell & Liddell’s 2009 strategy earned it recognition as one of the nation’s leading firms for marketing and communications. The Dallas-based firm is ranked second on the Fifth-Anniversary MLF 50, a ranking of the 50 firms doing the best jobs at marketing and communication. The list comes from Marketing the Law Firm, a newsletter published by Law Journal Newsletters, which, like Texas Lawyer, is owned by ALM. Jerry Clements, Locke Lord’s Austin-based managing partner, says marketing and communications are more critical than ever at a time when the demand for legal services is dropping. “To be able to communicate in an articulate and complete way to clients and potential clients about our expertise is just an absolute necessity these days,” Clements says. She says the 623-lawyer firm is not spending more on marketing this year but is using money in ways that directly impact clients -- such as on client materials, client seminars and client entertainment -- and is measuring how those marketing programs help the firm’s relationship with clients. “We are tracking what works and what doesn’t,” she says. “In this day and age, clients are much more interested in learning about our expertise and being provided with things we can do for them that benefit their legal department and their companies, as opposed to going to baseball games and football games and being entertained some of the ways they have in the past.” Locke Lord has 18 people in its communications and marketing department. The firm has never been on the MLF 50, although Lord Bissell & Brook was ranked No. 49 in the 2006 MLF 50 listing. Locke Lord Bissell & Liddell was formed in 2007 in the merger of Texas firm Locke Liddell & Sapp and Chicago-based Lord Bissell. This year, only Proskauer Rose, headquartered in New York City, was ranked higher on the MLF 50 than Locke Lord.
-- Brenda Sapino Jeffreys  

Kay Bailey Hutchison plays tort-reform card in health-care debate

As a casual observer of the heath-care reform debate, I haven’t heard much worth noting from my home state U.S. senators. But when the specter of “tort reform” is raised, that’s when I get interested -- because that’s what Texas Lawyer’s readers are interested in, and, as we all know, Texas’ drastic H.B. 4 tort reform measures have provided so much better access to medical care here. It’s made evident by the recurring stories I hear from trial lawyers about people who’ve been paralyzed by a doctor’s mistake but can only recover $250,000 in noneconomic damages because they’re either too young or too old to work. Against that backdrop comes Sen. Kay Bailey Hutchison’s press release today blasting Democrats and House Speaker Nancy Pelosi for “punishing states that enact tort reform.” “The Democrats’ reform proposal establishes an incentive program for states to adopt and implement alternatives to medical liability litigation. But states like Texas that enact laws that limit attorneys’ fees or impose caps on damages are not eligible for the incentive payments,” Hutchison’s press release states.  “Medical liability has excessively burdened the health delivery system, and steps can be taken to protect doctors and patients alike. Reasonable caps on non-economic damages make sure patients are compensated when errors are made, but will help curb the litigious abuse that has impaired health care across the U.S,” it continues.
-- John Council

This Week in Texas Lawyer

Court of discord: Complaints filed over Judge Carlos Cortez's (pictured) alleged behavior toward other jurists.

Fee fight: Texas Supreme Court finds fees awarded by appellate court as a matter of law to be unreasonable.

End of an era: Remembering John O'Quinn (pictured).

DQ: Judge bounces Strasburger & Price after opponent alleges Strasburger legal assistant had a conflict of interest.

Project Runway: It's a hit show and soon to be a video game, thanks in part to a Thompson & Knight lawyer.

What to say?: Judge recuses himself citing another jurist's "unsolicited conversations."

Not so bulletproof: Adam "Bulletproof" Reposa (pictured), who made a gesture simulating masturbation toward a prosecutor while standing before a judge, has his habeas application denied by the CCA.

Speak up: Bruce Campbell examines the pros and cons of requiring attorneys to carry malpractice insurance or disclose that they don't.

Inadmissible. Discipline. Newsmakers. Verdicts. Correction. I Like Being a Lawyer.

This Week in In-House Texas

Hearts and minds: Lowell A. Keig (pictured), the general counsel of a behavioral health  company that serves children and adolescents, says conversations with kids who have completed their programs are the best part of his job.

Hot seat: Lawyers being called as witnesses? A big client adding a flextime-policy  component to firm evaluations? In-house counsel have much to ponder.

New deals: From funeral homes to pipeline infrastructure, meet the lawyers working on deals worth several hundred million dollars.

Reasonable accommodation: Michael P. Maslanka explores three key take-away points lawyers need to drive home to employers about the ADA Amendments Act.

Check yourself: In-house lawyers have no one to blame but themselves when hourly fees balloon out of control.

Special Report: Labor & Employment

Nov. 23: That's the deadline to comment on the EEOC's proposed regs for the ADA amendments, notes Karen Fitzgerald. Think they won't impact your company? They won't, as long as your employees don't breathe, eat, concentrate, communicate or work -- all of which are now clearly spelled out as "major life activities."

RU kddg me? Text messaging isn't just for tweens. Charles H. Wilson thumbs out how investigating texts can land employers in hot water.

Flu fever: Can employers require workers to get the swine flu shot? 

Texas Supreme Court: Legal malpractice client can recover fees it paid

The Texas Supreme Court has ruled that a legal malpractice plaintiff can recover fees it paid to its allegedly negligent law firm in the underlying litigation. Whether that kind of recovery was possible was the big issue in Akin Gump Strauss Hauer & Feld v. National Development and Research Corp. and Robert E. Tang --- a case in which Akin Gump was sued by its former client over how the firm handled a contract-dispute case. The most important issue before the Supreme Court in the case was whether under Texas law a plaintiff can recover attorneys' fees incurred in prior litigation with a third party as an element of economic damages when the fees are the natural and proximate result of the legal malpractice defendant's alleged negligence. And here’s what the high court said: “We see little difference between damages measured by the amount the malpractice plaintiff would have, but did not, recover and collect in an underlying suit and damages measured by attorney’s fees it paid for representation in the underlying suit, if it was the defendant attorney’s negligence that proximately caused the fees,” Justice Phil Johnston wrote for the court. Justice Eva Guzman did not participate in the decision. “In both instances, the attorney’s negligence caused identifiable economic harm to the malpractice plaintiff. The better rule, and the rule we adopt, is that a malpractice plaintiff may recover damages for attorney’s fees paid in the underlying case to the extent the fees were proximately caused by the defendant attorney’s negligence.”

-- John Council

5th Circuit decides disqualification case involving departing-lawyer rule

Is there a rebuttable or irrebuttable presumption that an attorney had the confidences of all of a firm's clients when he left that firm? According to the 5th U.S. Circuit Court of Appeals, it's  rebuttable. Several legal ethics experts have said that a ruling to the contrary would have been a disaster for the legal profession in Texas and for any lawyer who has left one firm to go to work for another. Kirk A. Kennedy and Mark A. D'Andrea v. Mindprint Inc. involved a case in which former Jackson Walker senior counsel Kirk Kennedy was disqualified by a U.S. Bankruptcy Court judge from representing a client in a case in which Jackson Walker represented an adverse party. A U.S. District Court affirmed the bankruptcy judge. Kennedy, now general counsel for Gulf Coast Cancer Center, appealed the decision and argued before the 5th Circuit this month that he did no work on behalf of Jackson Walker’s client Mindprint while at the firm. In fact, he didn’t even know that Mindprint was Jackson Walker’s client while he worked at the firm. But Jackson Walker argued there was an irrebuttable presumption that Kennedy had client confidences. In its decision, the 5th Circuit agreed with Kennedy that there is a rebuttable presumption for lawyers in his position and reversed the U.S. District Court's ruling disqualifying Kennedy. “Under both the Texas Rules and the ABA Model Rules, Kennedy should have had the opportunity to demonstrate that he did not obtain confidential information regarding Mindprint during his time at Jackson Walker. Kennedy presented uncontradicted evidence that he was unaware of Mindprint’s existence . . . during his affiliation with Jackson Walker. In light of this evidence, Kennedy successfully showed that his imputed disqualification ended when he left Jackson Walker; therefore, his representation of [Kennedy's client] D’Andrea did not present a conflict of interest requiring his disqualification,” wrote 5th Circuit Judge Carolyn Dineen King who was joined by Judges Eugene Davis and Fortunato “Pete” Benavides.

-- John Council

Lasers, lights and lawyers at Roland Garcia's Halloween bash

Roland Garcia says almost all of the lawyers, judges and legal staffers who come to his annual Halloween party on Oct. 31 will be wearing costumes. (He's pictured at left at his 2007 party with his daughter Kristin, center, and wife Karen, right.) “When else can you act so silly and get away with it – grown adults acting like fools in front of each other,” says Garcia, a shareholder in Greenberg Traurig in Houston who says Halloween is his favorite holiday. Garcia says he expects as many as 300 members of the legal community, politicians, neighbors and family to attend the party at his Memorial-area house. “We’ve hired a professional lighting and sound crew. We’ve got a laser light show. We’ve got several mist and fog machines. We will have dead bodies and skeletons through the house. . . . We added a huge Grim Reaper hanging by the front door, which will scare the hell out of you,” says Garcia. “It’s a blast.” Partygoers who want to chat with Garcia this year should look for a Dracula. His wife, Karen, will be dressed as a “vamp vampire,” Garcia says. He warns attendees to be careful what they say, “because everybody’s dressed up and you don’t always know who you are speaking with.” Garcia says he didn’t hold the party last year, because his house was damaged by Hurricane Ike.

-- Brenda Sapino Jeffreys