January - February 2008 - San Antonio Bar Association

Transcription

January - February 2008
In Memoriam
PRST STD
US POSTAGE
PAID
PERMIT 324
SAN ANTONIO
T E X A S
San Antonio Lawyer
2
January-February 2008
January - February 08
6
Features
Departments
8
6 John Compere: Lawyer, Partner,
Colleague and Friend
By Michael Black
8 In Memoriam
14 Book Review
The Daughters of Juárez: A True Story
of Serial Murder South of the Border
By Hon. Pat Priest
5 Chair’s Corner:
Building Your Foundation
By Renée McElhaney
15 The Perils of Gwendolyn,
Part XXVIII: Withdrawing from
a Wrangling Representation
By Hugh L. McWilliams
14
16
16 Kissing Professionalism Goodbye at
the Alamo: A Renewed Commitment to
the Duty to Confer in Discovery
By Marc Rietvelt
19 Fourth Court Update:
Procedural Blockades to Parental
Termination Appeals: Has the Texas
Legislature Gone Too Far?
By Justice Catherine Stone
20 Federal Court Update
By Hon. Nancy Stein Nowak
and Nissa M. Dunn
On the Cover:
Sketch of Ernest A. Raba, Sr.,
Dean of St. Mary’s School of Law
(1946-1978) is from the law school’s
archives. Cover design by Hugh
Leighton McWilliams Photography.
San Antonio Lawyer is an official publication of the San Antonio Bar Association. Send address changes to the Bar Association address above. Views expressed in San Antonio Lawyer
are those of the authors and do not necessarily reflect the views of the San Antonio Bar Association. Publication of an advertisement does not imply endorsement of any product or
service. Contributions to San Antonio Lawyer are welcome, but the right is reserved to select materials to be published. Please send all correspondence to [email protected]. Copyright
©2007 San Antonio Bar Association. All rights reserved
San Antonio Lawyer
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Lawyer
San Antonio
The San Antonio Bar Association
100 Dolorosa, San Antonio, Texas 78205
210.227.8822
Fax: 210.271.9614
Officers/Directors
President
Allan K. DuBois
President-Elect
Victor H. Negrón, Jr.
Vice President
James C. Woo
Secretary
Justice Phylis J. Speedlin
Treasurer
Gary W. Hutton
Immediate Past President
Lamont A. Jefferson
Directors
Malinda A. Gaul
Diana M. Geis
Jim Greenfield
Charles E. Hardy
Andrew L. Kerr
Thomas g. Keyser
Justice Rebecca Simmons
David B. West
Mexican American
Bar Association
Clarissa Benavides
San Antonio Bar
Foundation
Renée F. McElhaney
San Antonio Young
Lawyers Association
David M. Evans
State Bar
of Texas Directors
Van G. Hilley
Lamont A. Jefferson
Bexar County Women’s
Bar Association
Lisa S. Barkley
Executive Director
Jimmy Allison
San Antonio Black
Lawyers Association
Jaclyn Y. Roberson
Editors
Editor in Chief
Hon. Barbara Nellermoe
Managing Editor
Kim Palmer
Articles Editor
Sara Murray
Departments Editor
Leslie Sara Hyman
Board of Editors
Hon. Barbara Hanson Nellermoe, Chair
Patrick H. Autry
Donald S. Bayne
Bradford Bullock
Charlie Butts
Barry H. Beer
Priscilla Camacho
Paul T. Curl
Antoinette Delgado
Jason D. Goff
Stephen H. Gordon
Per Hardy
Sam Houston
Leslie Sara Hyman
Julie Koppenheffer
Rob Loree
Ed Marvin
Jamie McKey
Amy McLin
Hugh L. McWilliams
Joby J. Mills
Sara Murray
Curt Moy
Rob Ramsey
Marc E. Rietvelt
Art Rossi
Adrian Spears, II
Regina Stone-Harris
Brent T. Sykora
Johnny Thomas
Judith K. Wemmert
Nationwide Publishing SA
1922 Great Ridge, San Antonio, TX 78248
(210) 381-7664 • Fax: (210) 493-1884
Publisher - Ron L. Hogue
[email protected]
Layout by Kim Palmer
Managing Editor, San Antonio Bar Association
San Antonio Lawyer
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By Renée F. McElhaney
D
o you remember your first
Christmas after passing the
bar? At that point, a fresh
lawyer; maybe with your first
hearing under your belt. A
few pay checks, deposited and then spent.
Still in the grace period before starting to
pay back the law-school loans.
This time of year, I always remember back to that “first” Holiday Season.
I was an-older-than-average novice
lawyer, having spent a first career in
the classroom. Other than working the
morning shift at McDonald’s on Christmas Eve when I was 17, I hadn’t worked
on that day or Christmas. Ever.
So that first December 24th, I was in
uncharted territory. And I was feeling very
sorry for myself. I was sitting in the expansive law library of my downtown San Antonio firm, corned by stacks of Southwest
Seconds, Black Statutes, and Texas Digests.
I had one of those riddled-with-rabbit-trails
research projects that we give to first years.
And I was stumped. Frustrated, my mind
wandered. I started to remember that I had
never worked on the 24th; I was 33 years
old and I had never worked on the 24th.
So, at that moment, working on
Christmas Eve seemed like a poignant
sacrifice. Surely it showed how dedicated
I was to taking care of my partner. Surely I
was exhibiting a true dedication to my new
profession. Surely I was deserving of early
dismissal, especially since I’d never actually worked on that day—December 24th.
Wallowing in my self-pity, I hardly
noticed that one if the younger partners
(who was, in fact, my age) had strolled
into the monastic library. So I was taken
aback when he asked me how it was going. Trying to redirect my thoughts, I was
impolitic. I told him: it didn’t feel so great
working on the 24th; oh and by the way, I
hadn’t worked that day in my adult life.
The partner’s response was steel-quick and
dispassionate: Get over it. This is the real
world, baby. Not the reaction I expected.
So I swallowed hard; smiled politely; and
went back to reading a 1919 opinion.
But I stored up that discontent for the
next several hours. And around 3:00, when
I finally left the office, I was more than
ready to savor some self-pity for the ride
home. But I never got there. Instead, just
after turning onto St. Mary’s, I was mouthopened shocked by what I saw. Next to the
bench in front of the Greyhound Station
was a man stark naked, but for the biggest
diaper I’d ever seen. His face seeped with
frustration. His brows were furrowed
tight. His lips were drawn thin. And he
stomped back and forth on the pavement
in front of the bus station. He was in pain
and was suffering. On Christmas Eve.
Needless to say, my experience with the
Bus Station Man taught me two deep lessons.
First, I am blessed, not beleaguered. I am
blessed to have a job that allows me to use
my brain, instead of my back. I am blessed
to have work that helps people. I am blessed
to be able to take care of my family because
of my profession. So working on December
24th is not a burden; it is an opportunity.
The second lesson? Being a lawyer
is a calling, not just a job. And because
of that, being a lawyer means that you
champion for people and good causes.
You invest in where you live, and work,
and worship. You give of your time and
your resources to relieve pain and grow
peace. That is what makes a real lawyer.
That feeling—understanding our blessings and being a source of blessing for others—is why the San Antonio Bar Foundation
is an integral part of our legal community.
The Foundation is one avenue to enable
Bexar County lawyers to put the calling of
being a lawyer into action. Put simply, the
Foundation helps lawyers live and give.
Through the Foundation, lawyers
are teaching students how to mediate
their differences. The Amigos in Mediation project, which the Foundation helps
to fund, has placed peer mediation programs in almost 200 schools. Through
that project, lawyers are helping keep
our schools safe and we are growing a
culture of peaceful conflict resolution.
The Foundation provides crucial
legal information to the elderly and the
financially challenged through the People’s Law School. Since 1994, together
with St. Mary’s University School of
Law, the Foundation has presented a
free one-day seminar on legal topics of
general interest, including elder, family,
consumer and probate law. Over 2,500
people have utilized this opportunity to
be a “law student for a day” and learn
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about issues that affect them personally.
Early in the morning of November
17th, you could have joined your friends
for the Foundation’s annual four-mile
Courthouse Walk/Run. Hundreds
jogged (or walked) through the streets
of downtown San Antonio to support
the Police Athletic League (“PAL”) for
their at-risk youth sports program.
The Wills Clinic is another project of
the Foundation, serving about 20 clients
per month. Through this Foundation and
Bexar County Women’s Bar joint project,
lawyers have the opportunity to provide
crucial pro bono legal representation to
low-income residents of San Antonio and
Bexar County. At each clinic, grandmothers and grandfathers from all around our
city are provided legal advise to create a
will, powers of attorney, and directives
to physicians. The folks leave the Wills
Clinic so very appreciative of the service
volunteer lawyers have provided.
The Foundation also fosters philanthropy. Through our Tributes program,
you can make gifts in memoriam or in
honor of family, fellow lawyers, and
others in our community. By this special
program, the legal community can honor those who have made lifetime investments in serving clients, serving the less
fortunate, and serving fellow lawyers.
We also encourage the legal community
to share its blessings through Peacemakers,
where we raise money to fund the Foundation’s charitable projects, including Amigos
in Mediation and the Wills Clinic. Peacemakers is also a crucial vehicle for growing
the corpus of the Foundation’s Trust.
Eight years ago, the Foundation
charged itself with a strident goal: Build
the Trust to one million dollars in ten
years. By hitting that mark, the Foundation
will be able to broaden its impact in the
legal community and throughout Bexar
County. We will be able to fund long-term
projects, reaching out to lawyers and other
legal professionals when they are facing
the most difficult of circumstances; partnering with other groups to feed, clothe
and equip the homeless; and fostering in
our schools a culture of peaceful conflict
resolution. And we are coming very close
continued on page 18
Chair’s Corner
Building Your Foundation
John Compere:
Lawyer, Partner, Colleague and Friend
By Michael Black
I
n the old Willie Nelson and Waylon
Jennings song, “Mamas, Don’t Let
Your Babies Grow Up To Be Cowboys,” Waylon and Willie admonish
mothers to let their sons be “doctors
and lawyers and such”—anything but a
cowboy. But, for John Compere, abandoning a life of horses, cattle, and the open
range solely for a career of billable hours,
bar associations, and stuffy courtrooms
was never an option. Instead of sacrificing his art for his craft, John managed to
do both, and he has done very well.
Growing up the son of west-Texas
ranchers, being a lawyer was not something young John likely envisioned for
himself. John considers himself to have
been a cowboy all his life, and he lists 1941,
the year of his birth, as the start date of his
“cowboy credentials.” Now married to a
west-Texas rancher’s daughter, Dee, John
began competing in rodeos during junior
high school. The first in his family to attend college, John began as an agriculture
major, but changed to government and
speech. “I decided I had to be well-educated, independent, [because] life is cyclical,” he explains. Although his maturity
and wisdom told him he needed to choose
a “profession,” John continued to rodeo,
even through his first year of law school.
Whether it was the adrenaline-fueled
daredevil spirit or simply the drive to compete and to challenge himself, John entered
the Army Judge Advocate General’s Corps
in the late 1960s where he rose through the
ranks, earning many prestigious medals
and accolades along the way, to eventually become the first Texas-born Brigadier
General in the Army Reserve JAG Corps.
Friends and colleagues recall how impressive it was to see Corporal and then
General Compere in his dress uniform
trying cases. Being a well-decorated and
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highly respected officer of both the military and the court did not shield him from
the occasional teasing, however, as United
States District Judge Fred Biery reminisces, “Judge Lucius Bunton and I took great
delight in reminding General Compere
that federal judges outrank lawyers who
happen to be general officers.” Nor did the
neatly pressed dress greens, the gleaming
medals, and the polished shoes cause him
to act any differently than he would have
if he were riding around the ranch wearing
faded blue jeans, a prize belt buckle, and a
pair of dusty old cowboy boots. As Judge
Biery continues, “For 34 years, it has been
a pleasure to call John my friend . . . and to
see him maintain his humble nature. He
has a lot to be humble about.”
A lot, indeed. John’s contributions to
the legal profession, and particularly to
the Texas and local legal communities, are
immeasurable. In San Antonio, John began
private practice at Groce, Locke & Hebdon:
Charlie Smith interviewed me and
liked my military background very
much, and he hired me. On my very
first day, I tried a jury trial in JP court
in front of Mike Hernandez; it was a
case involving a parking lot accident,
and I tried it against Dick Tinsman. It
was a property damage lawsuit. The
insurance company wouldn’t pay, but
they obviously hadn’t met our client
either. The defendant client backed
into Dick’s client in a parking lot. My
client was 95, had a patch over an eye
and could hardly see. In my first day
on the job, Dick just kicked my butt!
Justice prevailed, and Dick and I were
good friends after that.
Yet John’s interests did not lie in insurance defense work, but in practicing
family law. As John explains:
I did legal and medical malpractice defense, but I wanted to practice
family law full-time. So I got referrals,
started doing it, and then left to form
our own firm: Shaddox, Compere,
Walraven & Good. Charlie Shaddox
was an Arkansas farm boy, and I was a
West Texas ranch boy. We got along just
great. Skip Good and Steve Walraven
came with us and still did insurance
coverage work and insurance defense
cases. I have been so blessed by all the
great lawyers I have had the privilege
to practice with and against. I have the
greatest feelings of respect, friendship,
and gratitude for all of my partners. I
wouldn’t change a thing. I had a great
experience with both firms.
As a family law specialist, John Compere founded and chartered numerous
bar associations and sections, including the Family Law Section of the Texas
Board of Legal Specialization, the Texas
Academy of Family Law Specialists, and
the Family Law Council of Community
Property States. John has also served as
President of the Texas Young Lawyers
Association, as a Director of the State
Bar of Texas, Chair of the State Bar of
Texas Family Law Section, and he is a
Fellow of the International Academy
of Matrimonial Lawyers, among many
other memberships and achievements.
After being elected the first president
from San Antonio to what was then called
the “State Junior Bar of Texas,” John helped
change the name to the “Texas Young Lawyers Association.” John recalls, “I was an
airborne paratrooper and a felony prosecu-
tor during the Vietnam War. I jumped out of
planes and got shot at and came back when
I was 30 and we were in a junior bar? . . .
The public looked at us like we were interns
or trainees. . . . It was a silly nomenclature
to the public, incomprehensible to the public. Could you ever imagine junior doctors,
vets, CPAs, and others? We were young
lawyers. We weren’t junior lawyers.”
In addition to giving the state’s new
lawyers’ organization a more respectable name, John hopes to inspire younger
members of the bar that “today, there [are]
opportunities to do all kinds of wonderful
things to serve [that make] the ones that
do it better people and better lawyers.”
John advises that to make a great lawyer,
you must have integrity, work hard, and
really care about and try to serve your client. He specifically encourages those interested in practicing family law to get civil
trial experience (which John did at his two
great firms), and he is a major proponent
for family law alternative dispute resolution. John estimates that about half of his
family law practice was as a mediator or
arbitrator. He believes, “A family law case
is the best case in the world for resolution,
[and it is] better on the clients and families.
We have a very modern progressive family code. Most family law cases should be
settled and can, through ADR, collaborative law, and collaboration. Sit down with
a good mediator and competent opposing
counsel, and help the people . . . . You can
do much more for the clients in settling.”
Although John advocates for mediated settlement in family law cases, he surely
does not believe one should ever “settle”
in life: “Life is what you make it. Always
has been and will be. I’ve loved everything
I’ve done, and will for the rest of my life.”
After four decades of legal practice
and thirty-five years of honorable service to our country in the US military,
in many ways, it seems that John is just
getting started. Since his retirement
from law practice, John and Dee can be
found doing what they love best now –
ranching and grandparenting—on their
fifth-generation, 400-acre ranch near
Baird in West Texas, which John admits, “is certainly not our beloved San
Antonio, but it ain’t bad!” Things do
not sound bad at all when you consider
that John is now teaching his grandchildren to ride horses and take care of the
cattle during the day, and then he practices “rodeoing every night!”
For younger lawyers, and indeed for
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all of us continuing our calling in the practice of law, John shares his sage advice:
In dealing with judges, always
respect the court, and always be professional with very good courtroom
manners; remember it’s not the Jerry
Springer and the Judge Judy show.
Always work hard. Get to know our
judges, and try to make their jobs easier. They’ve got to hear an awful lot of
cases and do their job the very best.
Prepare: always have everything well-prepared and ready.
Take good care of your clients.
And always be honest.
Enjoy and respect those with
whom you practice law. Be with lawyers whom you respect and who can be
not only friends but mentors. Lawyers
who were my own mentors and inspiration included Jack Hebdon, Charlie
Smith, Burley Smith, Roy Barrera, Sr.,
Ralph Langley, Hattie Briscoe, and Harry Burns: a whole group of bar leaders
who were just great with young lawyers, and just great people themselves.
In the military, in active duty and
the reserves, my boss was Bill Suter,
who retired as a two-star Army major general and for more than sixteen
years has been the Clerk of the United
States Supreme Court. He, too, was
one of my mentors and great friends.
John’s law partner for over ten years,
Jo Chris Lopez, feels fortunate to have had
John as a mentor and friend. “I would consider John the ultimate ‘Renaissance cowboy’—rugged on the outside, yet thoughtful and sensitive to the smallest details
of human interaction. John remembers
birthdays, he remembers anniversaries
and, as his friends and family know, he
has a drawer full of greeting cards which
he sends to commemorate special occasions. He is an accomplished self-taught
photographer who rarely goes anywhere
without his camera. Often, the cards he
sends contain fetching photographs that
wonderfully capture a moment or event
John thought to preserve. My life is richer
for the good times I have spent with John,
and my practice is better for the guidance
and example he has provided.”
Through his practice and friendships
with us, and his example to us, for more
than forty years John Compere has taught
us so much: about Life’s Greatest Treasures
(“faith, family, friends, and fauna”), his
In
Memoriam
L
ongtime San Antonio attorney Sylvan R. Alter died in
September
at the age
of 83. A native of the
city,
Alter
attended San Antonio
College and Texas A &
M. He obtained his law degree from
the University of Texas. Following four
years with the District Attorney’s Office,
Alter joined his father’s firm. Alter was
very active in various service and religious organizations, and served as vice
president of the San Antonio Heart Association and director on the state board
of the American Heart Association.
Judge Joe E. Briscoe of
Devine died in April
at the age of 93. A veteran of World War II,
Judge Briscoe served in
the Pacific Theatre and
left the service with the
rank of Lieutenant Colonel. He graduated from San Antonio Public School
of Law in 1936 and practiced law
in Devine from 1938 until 1979. He
served as Medina County Judge from
1979 to 1991, and continued as a visiting judge thereafter until 2001.
Steven William Arronge died in January at the age of 59. A native of San Antonio, Arronge was an attorney with
the city for 30 years, and was named
acting city attorney in 2002 by then
City Manager Terry Brechtel. He was
an avid reader, an ardent Longhorn
fan, and an accomplished gardener.
Michael F. Beck, a 1982 graduate of
St. Mary’s School of Law and a solo
practioner in San Antonio, died on
March 23, 2007.
Charter members of the Barrister’s Club 1939. Back row, left to right: E. Gonzales, E. Zucht, J. Schelcher,
R. Sawtelle, M. McNeill, J. Staffford, J. Mondin, E.J. Spielhagen. Front row, left to right: A. Carrico, J. Kennedy, R. Lorenzo, M.L. Villaret, P. Casseb, B. Bernardo, C. Jage, L. Brown, Jr.
San Antonio Lawyer
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John Baker Britt died in August at
the age of 61. He was a graduate of St.
Mary’s University Law School. Britt
was in private practice in San Antonio
from 1973 until his death.
Paul Ernest Casseb died in August at
the age of 88. Casseb was
a native of San Antonio.
He attended St. Mary’s
Parochial School and
Thomas Jefferson High
School, and he received
both his undergraduate
and law degrees from St. Mary’s University. Casseb served with the 36th Infantry Division in World War II and saw
action in Africa, Italy, France, and Germany. He practiced law in San Antonio
for 60 years and was an adjunct professor of law at St. Mary’s for 14 years.
Lawrence Bruce Fryburger died in December at the age of 74. A
native of Cincinnati, Fryburger received his undergraduate degree from
the University of Cincinnati. He graduated from
the University of Texas
Law School in 1958 and practiced law
in San Antonio for more than 30 years.
Fryburger was a past president of the
Texas Young Lawyers Association, and
a member of Friends of the McNay Art
Museum and the German Club.
Walter P. Gray, a 1954 graduate of
St. Mary’s School of Law and a solo
practioner in San Antonio, died on
January 1, 2007.
Claiborne Barksdale Gregory died in
May at the age of 93. A
native of North Carolina, Gregory received
his undergraduate degree from Duke University. He began law
school there as well, but
concluded his legal education at Yale
University. Gregory moved to San
Antonio at the suggestion of friends
in 1949, joining the firm that later became Gresham, Davis, Gregory, Worthy and Moore. Gregory specialized in
tax law. Gregory served in the Army
during World War II in the European
Theatre including service in the OSS,
the precursor to the CIA.
Richard D. Harrell died in October at the
age of 81. Harrell had a
distinguished career with
the Air Force, retiring
with the rank of Lieutenant Colonel. Harrell was a
1977 graduate of St. Mary’s
Law School. His practice
concentrated on wills and estates.
Keith Edward Kaiser
died in April at the age of
63. Kaiser was a native of
Oklahoma. He received
his undergraduate degree
from Texas Tech Univer-
Paul E. Casseb
Paul Casseb’s interest
in the law kindled at the age
of sixteen when he began a
clerkship with the Hicks,
Dixon, Bobbitt and Lang
Law firm and continued
until the day of his death.
His deep feelings of service for his country resulted in
his 1940 enlistment in the 36th
Infantry Division, Texas National Guard. He volunteered
and served on active duty
with the 36th Infantry Division
from 1943 through 1946. His
military service in World War
II included overseas service in
Africa, Italy, France and Germany. After the surrender of
Germany, he remained in Europe as a Staff Officer serving
with the Allied Occupation
Military Government in various judicial and legal capacities. He supervised the role of
the Government in numerous
military court marshals and
civil litigation matters that affected the U.S. occupation of
post-war Germany. Upon his return to San Antonio, Paul continued to serve in the Texas
National Guard until his retirement in 1960 with the rank of Lieutenant Colonel.
In 1947 Paul returned to San Antonio to practiced law as a partner in the firm
of Spears, Conger & Baskin; then Conger, Baskin & Casseb; and Baskin, Casseb &
Casseb, followed by a solo practice. From 1960 to 2007 he maintained a practice in
the Frost Bank Building. R. Michael Casseb followed in the footsteps of his father and
graduated from St. Mary’s University School of Law in 1976 and thereafter father and
son practiced law together under the firm name of Casseb and Casseb.
From 1946 to 1960 he served as a professor at the law school and taught many of the future lawyers and judges of this community and this state. In this period of time some of the finest attorneys in San Antonio had the privilege of studying under the tutelage of Professor Paul
Casseb. These students included Pat Legan ‘46, Frank Baker ‘49, H.F. “Hippo” Garcia ‘51, Roy
Barrera, Sr. ‘51, William Bryan ‘49, Pat Kennedy ‘52, James Castleberry ‘52, and many others.
Paul maintained that his high personal standards of religion, morality, justice and
charity were the result of strong family values and the influence of his teachers, professors, and the Society of Mary at St. Mary’s University. As a direct consequence, he served
the University as a member of the Board of Trustees, founding member and chairman
emeritus of the St. Mary’s University School of Law Foundation, Officer and Director of
the Law Alumni Association, and the University Alumni Association. Presidents of St.
Mary’s University frequently called on him for special tasks. Paul always answered the
call. The University recognized him as her Distinguished Alumnus in 2006.
—Jack Paul Leon
San Antonio Lawyer
9
sity. Following two years of military service, he attended law school at St. Mary’s
University. His first job out of law school
was with Cox & Smith, and there he remained, most recently acting as the firm’s
general counsel. Kaiser was elected to
the American College of Trial Lawyers in
1992 and his practice concentrated on antitrust and other business litigation.
Jackson Benjamin Love died in September at the age of 95. Love
was born near Bronco, in
the Territory of New Mexico, where his parents were
homesteading. He was
reared in Anson, Texas.
Following college at the
University of Texas, Love worked with
the Department of Justice in several investigatory capacities. While working for the
department he attended George Washington University School of Law and received
his law degree ultimately from St. Mary’s
University. Following service in the military, Love became a rancher, having operations both in Texas and South Dakota.
He was a director of the San Antonio Livestock Show from its inception and held
Director’s Emeritus Badge Number 5.
Pat Mansell, a lifelong resident of San
Antonio, died in August at the age of 58. She
was a graduate of Alamo
Heights High School, the
University of Texas, and
St. Mary’s University Law
School. She was an assistant city attorney and was in private practice with several San Antonio firms during
her career. Mansell was active in a number
of local organizations, including the McNay Art Institute and the Witte Museum.
Political activist and respected trial attorney Les Mendelsohn died
in May, one day shy of his
69th birthday. Born in New
York, Mendelsohn was
reared in Dallas. He received both his undergraduate and law degrees from
the University of Texas. Early in his career,
Mendelsohn worked in the Anti-Trust Division of the Justice Department. In recent
years, he counted Representative Ciro Rodriguez, the San Antonio Police Officers
Association, and civil rights lawyer Judith
Sanders-Castro among his clients.
Edward Joseph Mihalko died in August at the age of 78. Following a notable career
with the United States
Air Force, from which
he retired as a Major,
Mihalko entered his second career as an attorney. Mihalko worked in the ministry
of St. Vincent de Paul and as a CCD instructor with his church, coached little
league, and was active in the PTA.
Edward Minarich, Jr. died in September at the age of 57. Minarich received his undergraduate degree from
Loyola University in
Chicago and his law degree from John Marshall
Law School. Following
military service, he practiced law in San
Antonio for over 30 years and served as
a magistrate judge with the city. At the
time of his death, he was a prosecutor
for the City of Kirby and a municipal
judge for Converse. In prior years, Minarich was a commissioner with the
San Antonio Housing Authority and a
director of the Bexar Appraisal District.
Luis Augusto Moreno,
an Austin native, died
in January at the age
of 57. Moreno received
his law degree from the
University of Texas in
1975. He held positions
with the accounting firm of Price Waterhouse and with the Office of the
Texas Attorney General before entering practice with Oscar Villarreal. He
practiced law with the Villarreal and
Moreno Law Firm for 17 years.
Manuel M. Peña, Jr., born in Mission
in 1918, died on Easter
Sunday in April at the
age of 88. Following
military service abroad
in World War II, he returned to Texas and attended St. Mary’s University School of Law. Peña practiced
law in San Antonio for over 50 years.
Colonel Arthur David Porcella (U. S.
Army, retired) died in
February at the age of
88. Colonel Porcella was
a native of Brooklyn,
where he attended local
parochial schools and
received his undergraduate degree from Brooklyn College in
1941. He joined the Army following
Pearl Harbor and retired after 28 years
of service in 1971. He received his law
degree from Case Western Reserve
University and served in various capacities with the Judge Advocate General Corps including Chief, Personal
Law Branch, Military Affairs Division,
and Senior Judge of the United States
Army Court of Military Review (now
known as the Army Court of Criminal
Keith Edward Kaiser
Because the practice of law was so central to Keith’s life, I’d like to reminisce
about Keith, the consummate lawyer. I’ve personally been blessed to have known him
for over 36 years and for his entire legal career.
While he was in law school, he served as our firm’s very first law clerk – and for
some of us, and probably for some of our younger lawyers, it’s pretty difficult to visualize Keith ever having been any kind of clerk. But that was short lived, and he joined our
firm upon graduation from law school. And from there, it has been quite a journey.
Keith was a very competitive guy. That was demonstrated in lots of ways, and certainly in
his representation of clients. But early on there was also an internal demonstration of that competitiveness. It seems that as a young lawyer he, and another young lawyer who is one of our
former partners, became interested in outdoing each other in the amount of time they spent at
work. I was never clear on whether this competition was ever formally acknowledged between
them, or if it simply was the result of their competitive juices. But essentially, it had to do with
who could get to work first each day and then stay the latest that night. It was a race and it went
on and on, and it had to be exhausting for both of them. And I never knew who won.
Keith was a brilliant, energetic, and thoughtful lawyer and a leader within our
firm. He was always committed to excellence and set the highest standards for all of
the rest of us to attain. He expected nothing less from us.
—Dan G. Webster III
San Antonio Lawyer
10
Appeals). Following his retirement
from the military, Porcella served
as a trial attorney with the Criminal
Division of the Justice Department.
He later entered private practice and
served as arbitrator with the American Arbitration Association.
John L. Quinlan, III died
on December 24, 2007 at
the age of 69. He was a
graduate of Central Catholic High School, class of
1956; St. Mary’s University, distinguished ROTC
Ernest A. Raba, Sr.
Ernest A. Raba, Sr., longtime professor and dean emeritus of St. Mary’s University School of Law, died Dec. 3 at the age of 95.
Raba, the third dean of St. Mary’s School of Law, served from 1946 to1978, making
him one of the longest-serving deans in American legal education. As dean, he ushered
in the modern era of legal education at St. Mary’s, overseeing the law school’s initial
accreditation by both the American Bar Association and the Association of American
Law Schools, the building of the law library’s holdings and the school’s move from St.
Mary’s original downtown campus to its current location in 1967. In addition, he was
responsible for securing funding for many of the law school’s current facilities.
“St. Mary’s School of Law exists today because of the groundwork laid by Ernest A. Raba,” said St. Mary’s Interim Dean, Charles Cantú. “He devoted his life to
fulfilling this physical plan. There are many successful lawyers practicing today only
because Dean Raba saw their potential and gave them a chance by admitting them to
law school. His death creates a big gap in the fabric of legal education.”
Raba was born Dec. 1, 1912, the youngest of seven children born to German immigrants
Ernest Wilhelm Raba and Maria Margaret Fuhrwerk. He graduated from St. Mary’s Academy High School, the forerunner of San Antonio’s Central Catholic High School, before attending St. Mary’s University, where he earned three degrees: a bachelor’s degree in 1934; a
juris doctorate in 1937; and a doctor of laws in1977. Raba joined the law school’s part-time
faculty in 1938. He then served in the Army during World War II, eventually becoming a
Judge Advocate General Corps officer. He married the late Betty Vivian Myers on March 10,
1945. The couple had four children: Ernest Jr., Cindy Raba Malone, Paul and John.
He returned to St. Mary’s in 1946 as dean and remained in that post for 32 years. Raba
continued to teach constitutional and civil rights law for 10 years after his retirement.
Raba was a member of the San Antonio Bar Association, State Bar of Texas, Texas Bar
Foundation, American Bar Association and was a former president of the St. Mary’s Alumni
Association. He was named University Professor in 1988 and Dean Emeritus in 1990. Raba
also served for a time as St. Mary’s Vice President for Development, securing critical private
and federal funding during the major building program of the 1960s. He played a key role in
securing the federal loan and grant needed to build the law center at its present location and
used his personal connections to lobby for a change in the Higher Education Facilities Act.
Raba was one of a handful of St. Mary’s law alumni named among the 102 most influential Texas Lawyers of the 20th Century by Texas Lawyer magazine. He was named Distinguished Law Graduate in1982 and honored with the St. Mary’s University Distinguished
Alumnus Award twice (1962, 1977). He was also given the St. Thomas More Award in 1988.
The family has requested that tributes made in his honor should be designated
for the Ernest A. Raba Scholarship Fund at St. Mary’s law school.
—Beth Barbee
San Antonio Lawyer
11
graduate; St. Mary’s University School of
Law, class of 1962. He was admitted to the
practice of law by the State Bar of Texas in
1965. He retired from the U. S. Army Reserves with the rank of Lt. Col. He was a
well-known practicing attorney and teacher of law in San Antonio and, for a number
of years, served as an assistant district attorney for Bexar County. He held the position of Chief Post of the felony section and
head of special crimes. In 1971, he was one
of 14 Texas prosecutors appointed to the
Texas State Bar Committee to rewrite and
revise the 116 year-old Penal Code.
Ernest A. Raba, Sr. died in December
at the age of 95. He was
the youngest of seven
children born to German
immigrant parents. Raba
graduated from St. Mary’s
Academy High School,
the forerunner of San Antonio’s Central Catholic High School. He
attended St. Mary’s University where he
earned both his undergraduate and law
degrees. In 1977 the University honored
Raba with a doctor of laws degree. Raba
served as dean of St. Mary’s School of
Law from 1946 to 1978
Robert Beverly Rust, a native of Del
Rio, died in September
at the age of 91. Following graduation from the
University of Texas Law
School, Rust practiced
law in Del Rio. In 1942,
he accepted a position as
Trust Officer at Frost Bank in San Antonio and remained with the bank for 35
years until his retirement.
Eldridge Dickinson “Dick” Ryman
died in April at the age of 63. Ryman was
a native of Lufkin. He graduated from
Southern Methodist University in 1966
and moved to San Antonio to attend St.
Mary’s University School of Law, from
which he graduated in 1970. He entered
practice with the Bexar County District
Attorney’s office and rose to the level
of lead criminal prosecutor. Following
retirement from the DA’s office after 21
years of service, Ryman became a criminal defense attorney. An Eagle Scout himself, Ryman continued to participate in
scouting endeavors as an adult, focusing
on the Wood Badge program, the highest
level of adult training in scouting.
Richard F. Sciaraffa, a 1996 graduate of St. Mary’s School of Law and a
solo practioner in San Antonio, died
on May 10, 2007.
Richard V. Secord, Jr. died in March at
the age of 48. Secord was
a native of San Antonio.
He received his law degree from St. Mary’s
University in 1983. According to Virgil Yanta,
his colleague of 16 years,
Secord was truly a “man of letters” and
well-schooled in the Classics.
Perry Rowan Smith, Sr. died in March
at the age of 81. Smith, a native of Louisiana, attended Rice University, from
which he graduated in 1948, and the University of Texas Law School, from which
he graduated in 1950. Early in his career,
Smith was an Assistant District Attorney
in Bexar County and an Assistant City
Attorney for San Antonio. In 1975 Smith
became a real estate developer, specializing in low-income housing.
Peter Torres, Jr. died in April at the age
of 73. Following service
with the Marines in the
Korean War, Torres attended both undergraduate and law school at St.
Mary’s University. His
legal career spanned 44
years. His interests were varied. He was
one of the first attorneys in the state to
be certified in criminal law. In later years,
he concentrated on commercial and consumer matters. He was a founding member of the Mexican American Bar Association in San Antonio, the first chairman
of the Hispanic Issues section of the State
Bar, and a two-term city councilman.
Judge Homer B. Walls died in April
at the age of 69. Walls
was a Houston native and received both
his undergraduate and
law degrees from Texas
Southern University. He
spent 8 years with the
Civil Service Commission, signing up
Mexican American and African American voters throughout the South. He
moved to San Antonio in 1967 and is
thought to have been the first African American to serve as a magistrate
Homer B. Walls
We all would like to leave this world a little better than we found it, to leave
our mark or impression. Homer B. Walls certainly left us better with his service and
friendship to many in the bar, and especially me.
I had the privilege of meeting Homer in 1981. We became friends and decided to open a
private law practice. After months of planning and saving, we moved into our new location in
January 1985. While we were moving into the new offices, it began to snow. This was such an
infrequent occurrence in San Antonio that we decided this was a good sign of things to come.
After our first month of hiring staff and paying bills, we ended with a small profit
and proudly awarded ourselves seventy-five dollars apiece, more or less. This was good
news since we had thought the first several months would be in the red. I was proud,
but in a moment of weakness I needed to be told things would get better. “You honestly
don’t know where the next client will come from month to month, or day to day,” Homer
observed. He added, “If you treat people fairly, for a fair price, they will come.”
He had many stories to tell. Homer was a former employee of the Civil Service
Commission in Washington, after graduating from Texas Southern University law
school at age twenty-two. Homer’s work as a civil servant required that he travel
throughout the segregated South to register African American and Hispanic voters.
As the only African American member of the team, he led seven other team members
to various cities and towns. His team could register in hotels where often he could not.
These team members and colleagues made sure Homer always received meals from
the best restaurants in town or wherever he wanted.
Homer made a lot of friends and acquaintances because he was very active
in the San Antonio community. He routinely reminded me that lawyers have a
duty to serve and that our expertise is sorely needed in the worlds of religious,
non-profit, and service organizations. When we began our practice together,
Homer was serving as President of Project FREE, which operated one of the
first Meals on Wheels programs in the country. Project FREE operated out of Mt.
Zion Baptist Church on the Eastside of San Antonio with Rev. Claude Black, another friend. Homer remained very active throughout private practice and after
being appointed to the bench.
A couple of months after Homer passed away, I attended an event sponsored
by a local non-profit in support of their educational fund. A friend introduced me to
a family member who had a serious legal problem. I gave them my card and asked
them to call for an appointment the following week. As they continued to talk, I realized they may have an emergency situation needing to be dealt with before 10 a.m.
Monday morning. In order to be sure, we met after Church on Sunday evening. As
suspected, there was a 10 a.m. deadline the next morning, so I typed the appropriate
legal response for signature and filing first thing the following morning.
After these papers were filed, an office staff member asked why I came into the office
on a Sunday evening, away from my family, rest, etc. I told them because a friend asked
me to. I then thought to myself “what goes around does come around” and “if you treat
people fairly, for a fair price, they will come.” This obviously profound and useful observation came from a dear friend and has remained an important part of my persona.
Thanks, Homer.
—Johnny Thomas
judge in the Municipal Court system.
He retired from that position in 2003.
Richard Neal Weinstein died in February at the age of 58.
Weinstein was a native
of Buffalo, graduated
from the University of
Buffalo Law School, and
earned his LLM degree
from New York University. He was a well-respected tax
lawyer and a shareholder with Oppenheimer, Blend, Harrison and Tate.
San Antonio Lawyer
12
Nolan Welmaker, age 82, died in November. Welmaker was
born in McKinney, Texas,
in 1925. Following high
school, he entered Texas
Christian University but
left college to join the
Navy. He enjoyed a military career of over 20 years of active
and reserve duty. Following military
service in the Korean War, Welmaker
completed his undergraduate studies
and obtained his law degree from the
University of Texas. He practiced law
for more than 50 years and was a
past President of the San Antonio
Bar Association as well as a Director of the State Bar. In his later
years, Welmaker practiced law with
his son, Forrest, Jr., with whom he
opened the Welmaker Law Firm.
Norris William Yates, Jr., retired
Air Force Lieutenant
Colonel and former
Assistant District Attorney, died in September at the age of
81. Yates was a graduate of Alamo Heights
High School and completed one year
of studies at Texas A&M University
before enlisting in the Army during
World War II. He served in the European Theatre with the 82nd Airborne
Infantry Division. He returned to
A&M following the war and graduated in 1950. He left active duty with
the Army in 1955 and graduated
from the University of Texas Law
School in 1957. He entered private
practice in San Antonio. He served
as Assistant District Attorney for
Bexar County from 1967 to 1982.
Where
Peter Torres, Jr.
I returned from Viet Nam to San Antonio in
late January 1972. My father, being a former World
War II infantryman, wanted to parade me among
his friends at the courthouse—a male bonding
thing among the old geezers who patrolled the
Halls of Justice. On the chosen date, I dressed up
in my medal-bedecked uniform and entered the
courthouse from the north entrance. As we went up
the stairs and entered the bowels of the building,
I heard a few choice words exchanged back and
forth between two individuals. Sudden0ly, these
two gentlemen, who were verbally attacking each
other, somehow defied gravity and launched themselves through a plate glass door that served as the
entrance to the 144th Criminal District Court, Judge
John Benavides presiding. Glass splattered everywhere as the two men struggled to get in a superior
position on the tile floor. I asked my dad what was
going on and he said, “That’s Pete Torres and Charlie Conaway—they’re having a little disagreement
about a plea bargain.” To say the least, Judge Benavides was pretty ticked off. Nevertheless, in the finest tradition of the Bexar County Courthouse, he
ordered both of them to the Esquire Bar to work
out their differences. I have never forgotten the incident. Pete Torres never quit on a client and would
defend to the end. He was a lawyer’s lawyer.
—Charlie Urbina Jones
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San Antonio Lawyer
13
EQUAL
EQUAL HOUSING
HOUSING
LENDER
Book Review
The Daughters of Juárez: A True Story
of Serial Murder South of the Border
By Teresa Rodriguez, with Diana Montané and Lisa Pulitzer
Reviewed by the Hon. Pat Priest
S
ince 1993, young girls and
women have been disappearing from the streets of Juárez,
Mexico and have later been
found dead (and usually brutalized) at an astounding rate. As of
summer, 2007, the number of such murders is rapidly approaching 450.
Many of the young women were
employed at maquiladoras in Juarez,
but lived in the countryside and had
to take long bus rides to work, at all
hours of the day and night. Most
were from poor families, and none
was a child of the upper classes.
It seems almost impossible that
this is the work of a single mass
murderer, and indeed there have
been some convictions in a small
number of the cases. However, one
of those convicted was an Egyptian ex-patriot, and several were
local bus drivers, all of whom were
beaten and otherwise tortured and
almost surely were framed by authorities. As this book graphically
illustrates, the true identity of the
killer(s) remains unknown.
The authors discuss a small
number of illustrative cases in
detail, and have found and interviewed all the major players within
and without the Mexican criminal
justice system. Teresa Rodriguez, a
journalist with Univision, has conducted independent investigation
of her own. What the authors have
uncovered is an appalling indictment of
the justice system in our neighbor republic,
revealing not only corruption and incompetence but indifference and insensitivity
by those charged with the duty of solving
these crimes. The authorities have often
(and unjustifiably) attempted to blame the
victims for what has occurred (by claiming, for example, that they had gone to
bars where they were “picked up,” when
most were abducted from public places in
Juárez, many from the same plaza, where a
statue of Benito Juarez may be found). The
poor quality of the investigations of their
murders has left their families devastated
not only by the horror of the crimes but by
official mismanagement.
It appears that the persons charged
were charged on a political basis, and not
upon an objective evaluation of the evidence. Elections have occurred in the 14
year interregnum since the killings began,
and power has shifted from party to party.
PRI and PAN have been equally ineffectual, each choosing to blame the other for the
sorry state of affairs. Functionaries
who have bobbled the investigation
have been promoted to higher positions within the government, rather
than being called to task.
Crime scenes have not been
protected—police and prosecutors
walking about indiscriminately and
destroying evidence. Forensic experts have been thwarted in their
investigations, and have come to believe that the prosecutors are foiling
them in an attempt to cover up their
own mistakes and inadequacies.
Ms. Rodriguez apparently initially wrote the book, at the encouragement of and with the assistance
of Ms. Montané, as a first-person
narrative of her investigation of the
matter. Lisa Pulitzer converted the
work into a true crime story. Each
has made a contribution, and the
book is well worth the reading.
In fairness, several Mexican investigators are praised for their high level
of competence and high degree of incorruptibility, but none of those persons
has been given ultimate authority in the
investigation. Instead, those in charge
have been an assortment of political appointees with little experience in criminal investigation or prosecution.
San Antonio Lawyer
14
The Daughters of Juárez: A True
Story of Serial Murder South of the
Border, By Teresa Rodriguez, with
Diana Montané and Lisa Pulitzer,
336 pp., Atria, 2007, $23.95
Pat Priest
is a Senior
District Judge.
A Continuing Saga Involving Ethical Considerations and Attorney Conflicts Issues
By Hugh L. McWilliams
T
he flight from Alicante
Airport was smooth and
uneventful. Gwen, Tidy
and Mazda had plenty of
time catnapping and arrived stateside with little or no jet
lag. Tidy’s house in Costa Blanca
was everything she said it was and
more. They spent three wonderful
weeks doing nothing at all except
recharging their collective batteries.
Tidy bought the beach house on the
Mediterranean from Jeff, and it was
quickly becoming the trio’s retreat.
Gwen spent Sunday getting organized. Monday morning, bright and
early, they were all back aboard the Blue
Norther happy to be back at work.
First thing on the calendar was a
meeting with Betty Ergo-Mondian.
Gwen did not know her, nor did she
recognize the name. Betty stepped into
the Blue Norther at the appointed time,
and the lack of any reaction to Gwen’s
office aboard a trawler told Gwen that
Betty had obviously researched her
and was prepared. Betty was a beautiful woman, thirty-five years old, with
flaming red hair, dressed professionally
and carrying an over-stuffed briefcase.
She arrived in a taxi, and Gwen soon
learned she was from out of town.
Betty was gracious and enthuMoore 1\8 Page Ad 11/22/07 4:37 PM
siastic
as they all greeted each other
and poured espresso from the Bialetti. One thing they all had in common was that they had recently been
in the air. Betty had flown in the night
before from Ontario and stopped to
see Gwen before going to her home
in Nebraska. Betty explained that she
has law offices in Omaha and also
Manhattan. She had been in Canada
taking depositions in a divorce case.
“I have heard a great deal about
you, Gwen,” said Betty.
“That’s a scary thing to hear!”
Gwen couldn’t imagine what people
in Omaha had to say about her.
Betty laughed and, after taking
a sip of the Jamaican Blue Mountain
espresso, said, “People are singing
your praises, Gwen. And not just because you are a fine lawyer! Some of
the things you have been involved with
are nearly legends in the profession.”
Tidy piped in, “Never a dull moment with Gwen around!”
“So what can our little team do for
you, Betty?”
“Gwen, I have a couple of things I
need to discuss with you. First and foremost is a client that I am representing in
a divorce and child custody case.”
“That’s not exactly my specialty, Betty.”
“Well perhaps not, but ethics is something you seem to have a grip on, and the
Page 1
issue
I want to discuss is an ethical one.”
W. DAVID MOORE
ATTORNEY AT LAW
• 19 YEARS OF COMMERCIAL LITIGATION EXPERIENCE
• STATEWIDE PRACTICE
• TORT DEFENSE
• CONTRACT LITIGATION
.• INJUNCTIONS
• STAFF LEASING
• COMPLEX LITIGATION IN STATE AND FEDERAL COURT
Telephone (830) 981-5232
Facsimile ( 830 ) 981-5235
E-mail: [email protected]
The Law Office W. David Moore
115 Canyon Circle
Boerne, TX 78015
San Antonio Lawyer
15
Betty explained to Gwen that she
had been hired as one of three lawyers
representing a party in a hotly litigated
divorce. The client had not paid her as
agreed in the attorney-client contract.
She had told the client in writing and in
person that she would withdraw if the
fees were not paid. Betty also talked to
the lead attorney who assured her that
she would be paid. A further complication was the client’s “significant other,”
who had attended one year of law
school before dropping out and was advising Betty’s client contrary to Betty’s
instructions on how they should proceed. On top of that, she got phone calls
every day from the client’s “significant
other” and her client’s other two lawyers. Sometimes the client would call
and scream at her and berate her. The
lawyers and the client‘s “significant
other” would tell her what to do, when
to do it, and how to do it, even though it
was against her better judgment. However, when she needed to meet with the
client, the client would not work with
her, would not return her phone calls
or respond to correspondence.
“I really cannot tolerate this anymore,” said Betty. “It is ruining my
practice because of the time demands
placed upon me without compensation. It’s also ruining my reputation
and credibility with the courts because
my client refuses to abide by the court’s
orders and has been held in contempt
more than anyone I know. I advised the
lead attorney that, when I returned to
the office, I was going to file a motion to
withdraw, and I got a letter from him,
the client, and the ”significant other”
stating that if I moved to withdraw,
they would file an ethical complaint
and sue me for malpractice.”
Betty sighed as she leaned back in
her chair and said, “I didn’t know it at
the time that I agreed to represent the
The Perils of Gwendolyn
The Perils of Gwendolyn, Part XXVIII:
Withdrawing from a Wrangling Representation
Kissing Professionalism Goodbye at the Alamo:
A Renewed Commitment to the Duty to Confer in Discovery
By Marc Rietvelt
P
erhaps the greatest challenge confronting attorneys is the preservation of professionalism in the bar.
Today, more than ever before, law
firms function like businesses. The
results have been predictable—less fraternity and collegiality among lawyers, sometimes even within the same firms. Gradually,
the unwritten code of professional conduct,
which encouraged lawyers to devote themselves to the profession, has given way to
a view that encourages lawyers to devote
themselves to their own interests and those
of their clients. No longer sharing similar
interests in the goals of the profession, opposing lawyers have found fewer incentives
to cooperate with each other in order to
streamline pretrial proceedings.
In an effort to address the issue of
professionalism in discovery disputes,
both the Texas and Federal Rules of Civil
Procedure require that the party filing a
discovery motion include a certificate of
conference, stating that a reasonable or
good faith effort has been made to resolve
the dispute without the necessity of court
intervention. See Fed. R. Civ. P. 26(c); Tex.
R. Civ. P. 191.2; accord W.d. Tex. Loc. R. AT4(e); Bexar County Loc. R. 3.C. While these
requirements at least superficially promote
cooperation in discovery by discouraging
the volume of unnecessary motions and
paperwork filed in court, the results have
been far less predictable in practice.
Duty to Confer: A Cautionary Tale
In one recent case in the Western District of Texas, the Court responded to a
series of cross-motions for discovery sanctions by rescinding the pro hac vice application of both sets of first-chair counsel in
the litigation. In that case, the parties had
experienced a particularly contentious discovery period, which included the filing of
numerous motions to compel, to exclude,
and for sanctions. Perceiving a lack of professionalism in the discovery process, the
Court finally decided that the counsels’
conduct had reached critical mass, explaining with some degree of color:
[T]he Court senses a toxic atmosphere
of acerbic shrillness among counsel, some
of whom asked for and received an act of
Grace from this Court to appear pro hac vice.
. . . On the rare occasions when counsel
licensed to appear before this Court have
engaged in elementary school behavior, the
Court on one occasion during the middle of
trial placed the lawyers in “time-out” . . . .
On two other occasions, childish behavior
lead to a threat that both lawyers would
be taken by a United States Marshal to the
front steps of the Alamo where they would
be required to kiss each other on the lips
and refrain from further churlish actions. .
. . Because, however, lead counsel for plaintiff and defendants are [out-of-state], and
the recipients of the Court’s Grace, and because this case is not yet in trial, time-out
San Antonio Lawyer
16
and the Alamo are not practical alternatives.
While the parties clearly find this dispute
to be of importance, over the long span of
eternity and compared to what is presently
going on in other parts of the world, this
is just one more group of wealthy Americans fighting over money and transferring
wealth to their lawyers. While the Court is
here to preside, if necessary, over a trial of
the parties’ dispute, it will be done in the
professional manner which this Court expects. . . . Accordingly, it is hereby ordered
that this Court’s pro hac vice orders . . . are
RESCINDED. Ultimately, the out-of-state
lawyers filed an appropriate mea culpa
with the Court, and the foregoing language
was stricken from the official court record.
As this order serves to remind us,
courts can, and will, take counsel’s responsibility to cooperate in the discovery process seriously. Increasingly, as the
volume of litigation further strains court
resources, despite the fact that fewer than
ten percent of civil cases proceed to trial,
necessity and reality dictate that the overwhelming percentage of all civil discovery
must be conducted away from the courthouse and without judicial intervention.
Therefore, in the interest of the profession,
counsel must diligently seek resolution
through cooperation in each and every
discovery dispute. The following provides
a brief primer for a renewed commitment
to the duty to confer in discovery.
Pick up the Telephone
Probably the best way to ensure cooperation in discovery disputes is to ensure
good communication. In that regard, the
telephone is an underutilized tool in discovery disputes. Lawyers frequently put
their communications in writing through
emails and letters to show the court that
they attempted to resolve the dispute first
without court intervention. Ironically, this practice often produces
the opposite result.
An email or letter, by its nature, is a unilateral communication
that involves only one of the parties necessary to reach an agreement to the dispute. Worse still, an
email or letter is often less cooperative in tone than the writer intends,
and a bad one can poison the well
for future bilateral discussions.
One particularly damaging practice is the email or letter enclosing
the pre-drafted motion to compel
that will be filed if counsel refuses
to withdraw his objections.
By comparison, a timely
telephone call to an objecting attorney often can bring both sides
within reasonable proximity of
their goals, saving both time and
money in reaching an agreement
contemporaneously with the timing of the dispute. By implementing a cooperative rather than adversarial approach to discovery,
the counsel can expect to address
reasonable objections to discovery in a conciliatory fashion, determining any reasonable limitations or revisions in the scope of
the discovery requested.
Moreover, should court intervention ultimately become necessary, counsel will still be able to
file their discovery motion without
requiring additional time through
hastily composed letters, emails, and/or artificial deadlines. Neither the Texas nor Federal Rules of Civil Procedure identify any
specific requirements for the “conference”
between counsel. Thus, the required conference may be held by telephone or in person,
and if the person seeking the discovery order is unable to convince the opposing party
to discuss the matter, the efforts made to
confer may be documented and described
for the court in the certificate itself. See Fed.
R. Civ. P. 26(c), advisory committee’s note
(1993); cf. Tex. R. Civ. P. 191.2. Further, given
the strong preference for informal resolution of discovery disputes by counsel, the
court likely will find it refreshing to review
the substance of phone calls and conversations in which opposing counsel conversed,
conferred, compared views, consulted, and
deliberated on the discovery in dispute, as
recounted in the certificate rather than in a
letter exhibit to the motion.
Written Agreements to
Resolve Discovery Disputes
Another effective tool at the discovering attorney’s disposal is the written agreement to modify or revise the scope of the
discovery. Counsel can employ the use of
written agreements as to each discovery
request that draws an objection. In doing
so, counsel should bilaterally discuss what
kinds of documents are sought and can be
reasonably excepted from the discovery request so that, having addressed both coun-
San Antonio Lawyer
17
sels’ reasonable concerns, relevant documents may be produced and the producing
side’s objections may be withdrawn.
Disagreements as to the time or scope
of discovery—as well as those instances
when the burden and expense of production
outweigh its likely benefit—may often be
worked out by agreement of counsel instead
of taking court time. For example, if the objection is that the discovery request is
so broad that it asks for documents
or records that are voluminous, unrelated to the issues in dispute, or
subject to privacy concerns, counsel
can enter into a written agreement
related to that discovery request
that specifically excepts this kind of
information. Moreover, under Texas
law, such agreements are enforceable if filed with the court. See Tex.
R. Civ. P. 11; cf. Fed. R. Civ. P. 29.
Agreeing to reasonable and judicious changes in the scope of discovery can prevent the imposition
of unnecessary burdens or expense
on both sides. Having expended
time and resources in crafting written requests, however, lawyers can
be stubbornly resistant to modifying their requests for discovery.
Counsel generally infer that objections are made in order to conceal
potentially damaging information
from production. While this occasionally may be the case, in reality,
objections are part of any standard
response to requests that may be
time-consuming, and thus are made
to lessen the burden on themselves
and their clients. Therefore, counsel
should seek to resolve these discovery-related issues by agreement,
or to at least narrow and focus the
matters at issue concerning discovery, in an effort to facilitate moving
a case to trial without compromising their clients’ substantive rights.
Agreed Protective Orders
In addition, agreed protective orders
provide another extremely effective measure
in resolving discovery disputes without court
intervention. The protective order, with its
ability to limit the use of material produced
in discovery, also allows discovery to continue with little or no judicial involvement.
Protective orders can address counsel’s concern over the scope of discovery,
especially when the broad definition of
relevance under the discovery rules steps
hard on privacy rights. For example, a
business may be reluctant to produce records disclosing its profit margins on products, understandably concerned about the
loss of competitive advantage. Production
under an agreed order limiting use of the
data can easily resolve such a problem.
A common tool used in both state and
federal cases, the website for the Western
District of Texas provides a form protective order that can quickly and effectively
alleviate any concerns and expense due to
the discovery dispute. See Western District
of Texas Protective Order, available at http://
www.txwd.uscourts.gov/forms/files/protective_order.pdf. Further, because the time
and expense spent filling in the blanks on
such an agreed order is minimal, it is quickly apparent that protective orders agreed to
by counsel are of great utility in achieving a
cooperative and efficient discovery process.
A Proposed Rule of Thumb
Each of the preceding tools is at the disposal of counsel seeking to cooperate in discovery and conserve time and costs for all
sides, including the court. While the rules
do not specifically define Small,
what constitutes
Jeff Ad a
reasonable or good faith effort to confer, a
good rule of thumb is that the effort expended in resolving a discovery dispute through
court intervention should rarely exceed the
effort expended prior to court intervention.
In this regard, “confer” means to make
a genuine effort to resolve the dispute by
determining: (1) what the requesting party
is actually seeking; (2) what the responding party is reasonably capable of producing that is responsive to the request; and (3)
what specific genuine issues cannot be resolved without judicial intervention. Cotracom Commodity Trading Co. v. Seaboard Corp.,
189 F.R.D. 456, 459 (D. Kan. 1999) (holding
that this requirement generally compels
counsel to “converse, confer, compare views,
consult and deliberate”). This is not merely
a requirement of form, but of substance.
Therefore, considering the time and expense
required to resolve a discovery dispute by
motion and hearing, if the party seeking or
resisting the discovery has not negotiated,
or even proposed an agreed protective order
or written agreement prior to court intervention, has that counsel really conferred, compared views, or deliberated with opposing
counsel, as is contemplated under the rules?
Conclusion
The letter and spirit of the discovery
rules require counsel to work together on
discovery matters. See Fed. R. Civ. P. 26(c),
33(d), 34(b); Tex. R. Civ. P. 192.4, 192.6(B);
cf. Fed. R. Civ. P. 1 (“[These rules] shall be
construed and administered to secure the
just, speedy, and inexpensive determination of every action.”) (emphasis added).
Counsel should recognize that courts are
spending more and more of their already
precious time hearing discovery motions
that should have been resolved between
the parties. As a result, trial judges are
justified in narrowing their lenience with
litigants and their counsel. This seems to
be evident from the Court’s order rescinding the applications to appear pro hac vice
of both counsel in the case above.
This is not to say that no legitimate discovery disputes exist. There are instances
where such discovery disputes arise and
can only be resolved by motion and hearing. However, counsel should strive to
make a good faith effort to resolve their
discovery disputes, and it should be a rare
occasion when the court is called upon to
intervene. Toward that goal, counsel should
be resourceful and creative in attempting to
resolve discovery disputes in a reasonable
manner by7:00
engaging
in
bilateral
discussions
11/26/07
PM
Page
1
by telephone and by using written agreements and agreed protective orders. Because
the effort expended in resolving a discovery
dispute through court intervention should
rarely exceed the effort expended prior to
court intervention, counsel must renew
their commitment to the profession through
cooperation and conference in discovery.
Chair’s Corner (cont.)
continued from page 5
to our goal. The Trust now sits at just over
$700,000. We are almost there, my friends.
And now is the time for all of us to join the
effort and commitment to reach that goal.
So I conclude with a heartfelt request:
As you begin 2008, as you enjoy the rewards of your calling for another year,
please consider joining the Foundation if
you haven’t already. You can do that by
contacting Elena Hutchins, the Executive
Director of the Foundation, at 227-8822
x 25. Consider establishing a Tribute for
someone special during this Holiday Season. Mary Doggett can provide more information at 444-1900. Decide to volunteer
for the Wills Clinic, Amigos in Mediation,
or the People’s Law School in 2008. Elena
can connect you with Foundation Committee Chairs for each of these projects.
And join us in completing the Trust by
donating to Peacemakers. Sponsor a table,
donate a raffle prize, purchase raffle tickets.
Be part of the 2008 Peacemakers to grow
our ability as a legal community to do good.
For more information on how you can join
the Peacemakers effort and completing the
Trust, give Elizabeth Martin (830-816-8686)
or Lee Cusenbary (696-8400) a call.
Finally, we at the Foundation, wish
you and your firm, friends, and family,
a remarkably joyous 2008.
Marc Rietvelt is an associate
with Jackson Walker, LLP.
His main areas of practice
are litigation and appellate
law. Prior to joining Jackson
Walker, Mr. Rietvelt served as
briefing attorney to the Honorable Karen Angelini for the
Fourth Court of Appeals.
Law Office of
Appeals Briefed/Argued
Error Preservation
Dispositive Motions
Original Proceedings
Jury Charges
Research
Not certified by the Texas Board of Legal Specialization
18
Jeff Small
Civil Appeals
Litigation Support
Appellate Mediation
Flexible Arrangements
(Hourly, Contingency, Flat Fee)
San Antonio Lawyer
Renée McElhaney is Chair
of the San Antonio Bar
Foundation and chairs the
Appellate Practice Group
of Cox Smith Matthews
Incorporated.
210.496.0611
[email protected]
f: 210.579.1399
By Justice Catherine Stone
Every time you turn on the news or pick
up a newspaper these days, you seem to hear
or read a story about an innocent child suffering some unimaginable abuse. The stories are
heart-wrenching, and the statistics regarding
child abuse are chilling. In the search for more
effective means to protect these innocent children, however, recent case law suggests that
the Texas Legislature may have gone too far in
establishing procedural blockades to certain
appeals of orders terminating parental rights.
Section 263.405 of the Texas Family
Code governs appeals of orders terminating
parental rights when the underlying proceeding involves the Department of Family
and Protective Services. See Tex. Fam. Code
Ann. § 263.405 (Vernon Supp. 2007). Section
263.405(b) provides that a party intending to
appeal a termination order must file a statement of appellate points within fifteen days
of the date of the final order, listing the issues
the party intends to appeal. See Tex. Fam.
Code Ann. § 263.405(b) (Vernon Supp. 2007).
In response to case law refusing to find noncompliance with section 263.405(b) fatal to
an appeal, the Texas Legislature added subsection (i) to section 263.405. In re R.J.S., 219
S.W.3d 623, 626 (Tex. App.—Dallas 2007, pet.
denied). Section 263.405(i) provides that an
appellate court may not consider any issue
on appeal that was not specifically presented
to the trial court in a timely filed statement
of appellate points. See Tex. Fam. Code Ann.
§ 263.405(i) (Vernon Supp. 2007). The Fourth
Court of Appeals recently joined the fray in
grappling with the potential unfairness of
this provision. In re R.M., No. 04-07-00048CV, 2007 WL 1988149, at *1 (Tex. App.—San
Antonio July 11, 2007, pet. denied).
The Texas Legislature has provided that
an indigent parent has a statutory right to
counsel at a parental termination proceeding. Tex. Fam. Code Ann. § 107.013(a)(1)
(Vernon Supp. 2007). The statutory right to
counsel in parental-rights termination cases
embodies the right to effective counsel. In re
M.S., 115 S.W.3d 534, 544 (Tex. 2003). With
the enactment of section 263.405(i), however,
the issue becomes whether a parent whose
rights were terminated as a result of ineffective assistance of counsel has any recourse.
When counsel is ineffective in a criminal
case, an ineffective assistance complaint can
be raised for the first time on appeal without
being preserved in the trial court. In re J.M.S.,
43 S.W.3d 60, 64 (Tex. App.—Houston [1st
Dist.] 2001, no pet.). Unlike criminal defendants, parents, whose relationship to their
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children has been held to be of constitutional magnitude, are prohibited by section 263.405(i) from raising an ineffective
assistance of counsel complaint on appeal
if that issue was not raised in a timely filed
statement of appellate points. As one justice has noted, in the fairly typical situation
where new appellate counsel is appointed
after trial, timely filing a statement of appellate points is a practical impossibility
given the short deadline. In re E.A.R., 201
S.W.3d 813, 817 (Tex. App.—Waco 2006, no
pet.) (Vance, J., concurring). Additionally,
where trial counsel fails to file a statement
of appellate points and appellate counsel is
not appointed until after the deadline has
passed, raising an ineffective assistance of
counsel complaint on appeal is factually
impossible. Id. In spite of the harsh results,
the Fourth Court was constrained to followed its sister courts in concluding that
the statute precluded it from addressing
an ineffective assistance of counsel claim
on direct appeal that was not raised in a
timely filed statement of appellate points.
In re R.M., 2007 WL 1988149, at *1. The
Fourth Court did, however, join its sister
courts in asking the Legislature to revisit
the scope of section 263.405(i). Id.
Whether the Texas Legislature will
heed the call of the intermediate appellate courts and revisit the scope of section
263.405(i) remains to be seen. In the final
analysis, the question is whether the rights
of indigent parents should be terminated
due to the mistakes of ineffective attorneys.
If the right to effective assistance of counsel
is to have any real meaning, indigent parents should have the same ability to present
the issue of ineffective assistance of counsel
in the judicial system as criminal defendants who not only can raise the issue on
direct appeal, but who also have the statutory alternative of habeas relief.
please call for more information:
[email protected]
410-0125
(210)
San Antonio Lawyer
19
Justice Catherine Stone
has served on the Fourth
Court of Appeals since
March of 1994 and is
board certified in civil
appellate law.
Fourth Court Update
Procedural Blockades to Parental Termination
Appeals: Has the Texas Legislature Gone Too Far?
Federal Court Update
By Hon. Nancy Stein Nowak
and Nissa M. Dunn
Judge Nowak’s summaries of significant
decisions rendered by San Antonio federal
judges from 1998 to the present are available for keyword searching at Court Web
found at nysd.uscourts.gov/courtweb/.
Full text images of most of these orders
can also be accessed through Court Web.
If you are aware of a Western District of
Texas order that you believe would be of interest to the local bar and should be summarized in this column, please contact Nissa
Dunn by phone at 210.581.2073 or by email
at [email protected] with the
style and cause number of the case, and the
entry date and docket number of the order.
Pension Benefits/Document Discovery
Galvan v. SBC Pension Benefit Plan,
SA-04-CA-0333 XR (Rodriguez, October 1 and 19, 2007)
Multi-count suit against SBC Pension Benefit Plan for failure to
properly calculate and distribute
payment of retirement benefits to
former spouse as alternate payee
under ex-husband’s pension benefit plan pursuant to 1995 Missouri
divorce decree. In separate orders,
court held that: (1) SBC’s motion
for summary judgment should be
granted in part and denied in part,
finding that under governing Missouri law, genuine issues of material fact exist as to the proper valuation of former spouse’s benefits
under the Missouri decree (Order of
October 1st); and (2) ERISA’s disclosure and penalty provisions do not
apply in the context of a document
discovery request propounded in
accordance with FRCP 34 during
litigation. (Order of October 19th).
Diversity Jurisdiction/Amount in
Controversy/Removal
Polinard v. Homecomings Financial,
SA-06-CA-1130 FB (Biery, September
5, 2007, adopting recommendation of
Nowak, June 14, 2007)
Plaintiff-homeowner’s motion to
remand state court lawsuit for
wrongful foreclosure on grounds
that removal petition did not establish that minimum jurisdic-
an agent or servant of defendant, or
that the statements concerned a matter within the scope of the agency or
employment during the existence of
such relationship, as required under
Fed. R. Evid. 801(d)(2). Statements
of counsel, standing alone, are not
sufficient to lay the necessary foundation for the admission of such
statements. Further, plaintiff did not
show that “a substantial right had
been prejudiced” by the exclusion
of the evidence in question.
tional requirements for diversity
denied. Adopting the recommendation of the magistrate judge,
court held that plaintiff could not
submit new evidence or arguments in making his objections
to the magistrate judge’s recommendation and that the evidence
presented by the removing defendant was sufficient to show the
requisite jurisdictional amount.
Diversity Jurisdiction/Complete
Diversity/Removal/Remand
Nanez v. Sanchez, SA-07-CA-0614 FB
(Biery, October 30, 2007)
Motion to remand state court lawsuit
filed by plaintiff in tort negligence
and strict products liability action
granted. Contrary to the contentions
of the removing corporate defendant, the in-state defendant dependent administrator was not added as
a party defendant solely to defeat diversity jurisdiction and did not consent to the removal to federal court.
Accordingly, complete diversity for
removal purposes was lacking.
Bankruptcy/Bifurcation and Cram
Down
In re Sanders, Bankr. 07-50783-C
(Clark, October 18, 2007)
Chapter 13 bankruptcy wherein motor vehicle lender claimed protection from bifurcation and resulting
cram down under Chapter 13 plan.
In a 42-page opinion, court held
that creditor’s entire claim must be
secured by a purchase money security interest in the motor vehicle or
else the claim in its entirety fails to
qualify for protection from bifurcation and resulting cram down.
New Trial/Evidence
Sowders v. TIC United Corp., SA-05CA-309-OG (Garcia, August 15, 2007)
Court denied plaintiff’s motion for
new trial because plaintiff did not
show that certain statements contained in the records of a third-party
adjuster should have been admitted
as admissions by a party opponent.
Plaintiff did not provide any evidence or lay a proper foundation for
showing that the person making the
statements was authorized by defendant to make such statements, or
that he was making the statements as
San Antonio Lawyer
20
Removal/Timeliness
Cerda v. 2004-EQRI, L.L.C., SA-07-CA0632 XR (Rodriguez, October 1, 2007)
Motion to remand state court lawsuit filed by plaintiffs-homeowners
arising out of foreclosure action denied. Defendant’s removal held by
court to be timely under 28 U.S.C.
1446(b) because there was neither
valid, formal service made upon
defendant under Texas law, nor a
demonstrated waiver of service
until such time as defendant voluntarily answered plaintiffs’ petition
in state court, which was within 30
days prior to the date of removal.
Administrative Law
City of Fair Oaks Ranch v. FEMA, SA-06CA-1012 FB (Biery, November 1, 2007)
Upon agreement of the parties in
this case involving issues of notice
in a flood evaluation mapping matter, the case was dismissed without prejudice to plaintiffs’ right to
seek further judicial review of the
ultimate decision of FEMA, as allowed by 42 U.S.C. 4104(g).
Miller Act/Venue/Forum Selection Clause
Concrete Formwork v. Ross Group Constr., SA-07-CA-0341 XR (Rodriguez,
October 23, 2007)
Defendant’s motion to transfer
venue based upon forum selection clause contained in contract
between prime and subcontractor
in Miller Act dispute arising out of
Lackland AFB construction project
granted. Court found that parties
may contract around the Miller Act’s
venue provision; that provisions of
the Texas Business and Commerce
Code do not defeat the contractual
forum selection clause; and that an
application of the venue transfer
convenience factors of 28 U.S.C. §
1404(a) mitigated in favor of transfer of the case to the USDC for the
Northern District of Oklahoma.
Title VII
McKinnies v. Bexar County, SA-05-CA1217 PM (Mathy, September 20, 2007)
Judgment following bench trial in
favor of Bexar County on plaintiff-former employee’s claims of
wrongful termination based on
race discrimination, retaliation,
and hostile work environment.
Experts
B.J. Tidwell Indus. v. Diversified Home
Prods., SA-06-CA-0264 FB (Nowak,
October 19, 2007)
In dispute between cabinet manufacturer and customer/distributor, both
sides moved to exclude each other’s
experts hired to provide certain valuation testimony. Court denied both
parties’ motions to exclude, finding
that both parties’ experts were qualified, their testimony was reliable,
and their methodology adequate.
Bankruptcy/Liens
Lowe, Trustee v. Texas Comptroller, SA-06CA-657-OG (Garcia, September 15, 2007)
During prior bankruptcy proceedings, a creditor obtained a judgment
and recorded abstract of judgment
in violation of the stay. A notice of
state tax lien was recorded after the
stay had been lifted. The stay violation resulted in an invalid judgment
lien, which was clearly inferior to the
properly perfected state tax lien even
though the state tax lien was recorded
later in time. In subsequent bankruptcy proceedings, the trustee sought to
preserve and foreclose the judgment
lien under section 551 of the bankruptcy code. However, the trustee, as
subrogee, steps into the shoes of the
creditor, and he stands in the same
position of priority held by the creditor. When under state law the invalid
lien that the trustee is seeking to preserve is inferior to subsequent valid
lien(s), the inferior lien cannot be enhanced by its preservation. Decision
of bankruptcy judge affirmed.
Experts
McClure v. Biesenbach, SA-04-CA-797
RF (Furgeson, September 27, 2007)
Order denying defendants’ motions to exclude expert testimony,
finding there was no evidence to
suggest the expert’s testimony was
generated solely for this litigation.
ciently allege a policy or custom of the
County. Court denied motion to dismiss, finding that plaintiffs satisfied
the generic notice pleading requirements of Rule 8, which is applicable in
suits against municipalities.
Immigration
Dumpeh v. Moore, SA-07-CA-294 OG
(Garcia, October 26, 2007)
Court granted Government’s motion to dismiss in section 2241 case
in which petitioner claimed his continued detention by immigration
authorities after he was ordered removed was “unreasonable.” Court
held that petitioner had failed to
cooperate with government officials
by providing verification of his identity and citizenship so as to assist officials in effecting his removal.
Tort/Municipalities
Hale v. Bexar County, SA-06-CA-62 RF
(Furgeson, October 11, 2007)
After train derailment that resulted in
the death and injury of residents nearby, plaintiffs sued Bexar County alleging defendant prevented purported
rescue efforts, which could have limited their injury and prevented death.
Bexar County moved to dismiss, asserting governmental immunity and,
specifically, plaintiffs’ failure to suffi-
San Antonio Lawyer
21
Nancy Stein Nowak is a
United States Magistrate
Judge for the Western District of Texas. Since 1986,
Judge Nowak has summarized significant decisions
of the local judiciary for
the Subpoena and the San
Antonio Lawyer.
Nissa Dunn, of the Law
Offices of Nissa M. Dunn,
P.C., specializes and is
board certified in the area
of civil appellate law.
Greatest Personal Achievement (“being
happily married with four adult children,
two grandchildren, a dog and a cat, horses,
cattle, pigs, chickens, and our ranch”), and
his Greatest Professional Satisfaction (“the
privilege of practicing law in a legal community with quality men and women who
have integrity and goodwill”). Indeed, for
John Compere, and for each one of us, the
most important things in life are not things,
but personal and professional relationships
with God, our families, and others.
But, in fact, for all his humility and
reserve, the one time during my lengthy
interview with John (which he gave
from horseback on the top of a mountain!) when John Compere bragged about
himself (and deservedly so) was when
he talked about his most recent rodeo
achievements: John won the 2006 Tejas
Vaqueros Team Penning Championship
and the 2007 Tejas Vaqueros Team Sorting
Championship. “I was very proud to win
a rodeo buckle at 65. [I felt] very lucky,
very happy. . . . I’ve been doing this for 16
years, and it’s my first championship.”
Perhaps it is the way in which John
wholeheartedly embraces life, seizes every
opportunity, and rides it as though trying
to tame a wild pony or catch an elusive
steer that makes us admire him so much.
Or maybe it is because in today’s legal profession—where one can so easily become
consumed with money, power and ego—it
is both refreshing and inspiring to know
that you really can have it all—and still
be a good guy to boot. If being a cowboy
means being like John Compere, then our
“Mamas” have nothing to worry about.
Abrazos, John! You’ve served us
all well as friend and colleague, and for
that we are all so much the better.
Michael J. Black is managing
member of Burns & Black,
PLLC, whose practice includes
major business, construction,
labor and employment, and
insurance litigation. Michael
served as a Director of the
State Bar of Texas, President
of the San Antonio Bar Association and Chair of the San Antonio Bar Foundation.
Michael’s family owns several horses, too, and one day
his wife Kerri and John Compere both promise to let
him ride, sort of. Special thanks to Danielle M. Copes,
an associate at BB, for her assistance with this article.
San Antonio Lawyer
22
client, but they have sued just about
every lawyer, expert, therapist, doctor,
investigator, and witness that has in
any way been involved in this case.”
Betty handed the motion to her.
Gwen quickly scanned the standard motion to withdraw from representation of
a client in a lawsuit. The motion stated
there was good cause for withdrawal
because the client refused to communicate with Betty, and refused to pay her.
Gwen asked Betty, “Is another lawyer substituting in for you?”
“No, three lawyers, and there will
still be two after I step out. The lead
attorney will actually be trying the
case. At least that is the plan as it was
presented to me.”
“Okay,” said Gwen. “As I understand it, you want us to advise you on
whether your motion will create an actionable complaint under the Disciplinary Rules of Professional Conduct.”
“You got it,” said Betty.
Gwen told Betty that, as a first step, a
motion to withdraw must be in writing,
demonstrate good cause, and provide
notice to the party. The withdrawing attorney must also notify the client in writing of any impending deadlines.
“All right, let’s talk about good
cause,” said Betty, as she did a quick
turn around the cabin, touching the
wood panels and looking at the twinmonitor computer system installed by
Tidy. “What exactly does that mean?”
Gwen pulled a binder from the shelf
above her desk and said, “The guideline, if any, that is used by the courts is
in Rule 1.15 of the Disciplinary Rules of
Professional Conduct. It lists circumstances that require a lawyer to withdraw and circumstances under which a
lawyer may withdraw without being in
violation of the disciplinary rules.”
Betty responded to Gwen’s questions as they went through each section
of Rule 1.15(b). “Can withdrawal can be
accomplished without a material adverse
effect on the interests of the client?”
“Gwen, I don’t think my role is
significant enough to interfere with the
case, so the answer is ‘Yes.’”
Betty, has the client been involved
in a course of action involving your
services that you reasonably believe
may be criminal or fraudulent?”
“I don’t think we can use that one,
although my client has disregarded
most of the court’s orders and has been
held in contempt.”
“Is your client insisting upon pursuing an objective that you consider repugnant or imprudent, or with which
you have fundamental disagreement?”
“Nope, can’t use that one either.”
“Has your client failed substantially to fulfill an obligation to you regarding your services, including an obligation to pay your fee as agreed, and
have you given the client a reasonable
warning that you will withdraw unless
the obligation is fulfilled?”
Betty smiled, “That’s the one,
Gwen. Other than for a retainer that
was exhausted months ago, I have not
been paid. As it stands, my client owes
me about $65,000.”
“That’s really all you need to be
within the Disciplinary Rules of Professional Conduct, but let’s look at the rest
of them. Will the representation result in
an unreasonable financial burden on you,
or has the representation been rendered
unreasonably difficult by the client?”
“Unquestionably, Gwen.”
“Well, I don’t think you have an
ethical problem, but that doesn’t mean
they won’t file a complaint with the
State Bar—or worse, file a lawsuit
against you. I think you have grounds
for withdrawing, at least under the disciplinary rules. Let us see what the court
rules when you have the hearing.”
“I have another issue I need to discuss with you.” Betty seemed more relaxed as she moved to the next order of
business. “I am considering expanding
my operations into your state and want
to retain you to help with the process.
Are you interested?”
Gwen, Tidy, and Mazda looked at
each other as Gwen said, “Let’s talk!”
Missed a chapter?
Read all installments of The Perils
of Gwendolyn at www.sabar.org.
San Antonio Lawyer
Hugh L. McWilliams’
San Antonio practice
focuses on insurance
litigation. He has served
the State Bar of Texas in
the grievance process for
more than twelve years.
23
Published by
NationWide Publishing SA
1922 Great Ridge • San Antonio, TX 78248
Publisher - Ron L. Hogue
[email protected]
Fax: 210.493.1884
For information on advertising in
the San Antonio Lawyer magazine
Call 210.381.7664
The San Antonio Lawyer is
published bimonthly by Nationwide Publishing SA, on
behalf of the San Antonio Bar
Association. Reproduction in
any manner of any material, in
whole or in part, is prohibited
without the express written
consent of the Editor in Chief.
Material contained herein does
not necessarily reflect the opinion of the Publisher or its staff.
San Antonio Lawyer, the San
Antonio Bar Assocation and
the Publisher reserve the right
to edit all materials and assume
no responsibility for accuracy,
errors or omissions. San Antonio Lawyer and the Publisher
do not knowingly accept false
or misleading advertisements,
false or misleading editorials
and do not assume any responsibility should such editorials
or advertising appear.
Advertisers’ Index
Asset Preservation, Inc.
Assn. of Atty. Mediators
Diaz Mediation
Family Matters
Hugh McWilliams
W. David Moore
La Scala Restaurant
Law Office of Jeff Small
San Antonio Credit Union
Terry Lindemann Productions
Tower Life Building
Watts Law Firm
4
24
21
22
4
15
4
18
13
19
2
22
The Association of Attorney–Mediators
San Antonio Chapter
Our attorney-mediator members are committed to the mediation
process, with careers devoted to the ethical practice of law.
Professionally, each member has been in practice for eight or more
years and each has been highly recommended by judges and their fellow attorneys. As a group, they have practiced law over 850 years. AAM
mediators have conducted over 25,000 mediations since 1989. With this
much talent and experience, why consider any other mediation service?
Members
Emerson Banack, Jr.
Bryon E. Barnett
Judith Reed Blakeway
Roger G. Bresnahan
Leslie Selig Byrd
Hope H. Camp, Jr.
Maricela Cavazos
Ben R. Chappell
Robert C. Cowan, Jr.
Michael Curry, Jr.
John H. Davis
Mary Belan Doggett
Gerald T. Drought
Stephen R. Fogle
John J. Franco, Jr.
Sue M. Hall
Reese L. Harrison, Jr.
A. Chris Heinrichs
Alan Dale Hicks
James N. Higdon
Ronald Hornberger
Jimmy D. Hulett
Richard Ihfe
Gary W. Javore
Tom Joseph
Robert L. Kelly
Douglas D. Ketterman
Jerry D. King
Joel H. Klein
Daniel Y. Kruger
Daniel O. Kustoff
William H. Lemons
Donnie J. McManus
Dan A. Naranjo
Norm Nevins
Margaret Sullivan-Pace
B.F. “Biff” Pennypacker, III
Gale R. Peterson
Kim M. Pettit
Hon. Robert T. Pfeuffer
Vick Putman
Charles R. Roberts
Mark A. Sanchez
Prof. Wayne Scott
Wade B. Shelton
Charles L. Smith
Thomas J. Smith
Frank R. Southers
Richard A. Sparr, Jr.
David Stephenson
Randolph P. Tower
William R. Towns
N. Keith Williams
Securities
Entertainment
Condemnation
Oil & Gas
Bankruptcy
Civil Rights
International
Tax
Wills, Trusts & Estates
Family Law
Consumer Law
Medical
Areas of Legal Practice
Personal Injury
Employment & Labor Law
Appellate Law
Real Estate
Title Insurance
Business / Commercial
Construction
Insurance
Intellectual Property
Professional Liability
Taxation
Health Care
For More Information
contact the San Antonio Local Chapter:
William H. Lemons • 4040 Broadway, Suite 616 •
San Antonio, TX 78209
(210) 224-5079 • Fax: (210) 930-5082
email: [email protected]

January - February 2008 - San Antonio Bar Association

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