The Power of Perspective in Our Profession Conquering Stress During a Pandemic or Any Other Time Secondary Traumatic Stress Lawyers and ADHD—Stigma or Superpower? HBA Wellness Initiative Guides Members to Healthier Practice and Lifestyle Presenting the 2019-2020 HBA President’s Awards
Lawyer Well-Being
lawyer
THE HOUSTON
inside...
Volume 57 – Number 6
May/June 2020
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May/June 2020
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contents May/June 2020
Volume 57 Number 6
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FEATURES Power of Perspective in 10 The Our Profession By Kyrie Cameron
Stress During a 12 Conquering Pandemic or Any Other Time By Nick Bolhuis
Addicted or Mentally Ill 16 The Lawyer: Ethics Complaints and Legal Malpractice Claims By Don Karotkin
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Traumatic Stress 20 Secondary By Diane St. Yves and ADHD—Stigma 24 Lawyers or Superpower? By Rachel H. Stinson
in the Coal Mine: How 28 Canary Lawyer Distress Has Signaled
the Need for Wellness Reform in Our Profession By Anietie Akpan and Mahsa Tajipour
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Wellness Initiative Guides 32 HBA Members to Healthier Practice and Lifestyle
By Tara Shockley
Lawyers: How Do 33 Houston You Handle Stress? the 2019-2020 36 Presenting HBA President’s Awards
The Houston Lawyer
Cover: 2019-2020 HBA President Benny Agosto, Jr. focused on programs that contribute to the well-being of our members through community service, teaching others, excercise, stress reduction, and resources to help members live their best life, professionally and personally. Some of the programs featured on our cover include, clockwise from top left, a series of videos on lawyers working from home duing the COVID-19 pandemic; volunteering at the Houston Food Bank; yoga CLE classes; the John J. Eikenburg Law Week Fun Run benefiting The Center for Pursuit; Benny reading a book about Barbara Jordan for a virtual Law Day Reading Program in elementary schools; the Lawyers for Literacy Committee sorting books for donation to shelters; and doctor-lawyer presentations to 5th graders on the dangers of drugs and alcohol. At center is the HBA’s new Wellness Page on the website, hba.org/wellness, offering videos, articles, tips and other resources on getting well and staying well. The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/ SUR, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com. Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association/QuantumSUR, Inc., 2019. All rights reserved.
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contents May/June 2020
Volume 57 Number 6
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departments Message 6 President’s Houston Strong By Benny Agosto, Jr.
the Editor 8 From We are Co-signers on Each
Other’s Mental Health By Taunya Painter
THE RECORD 40 OFF From Houston to Hollywood:
How Attorney Derek Potts Uses His Storytelling Expertise to Create Thought-Provoking Movies
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By Koby Wilbanks
Profile in professionalism 41 ARoland Garcia
Shareholder, Greenberg Traurig, LLP committee Spotlight
Focuses on 42 Committee Bringing Together Houston’s LGBTQ+ Community By Heath DeJean
Spotlight 43 Section Law Practice Management
Section Addresses Issues Helpful to All Practice Areas
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By Benjamin K. Sanchez
trends 44 legal Amid the COVID-19 Pandemic, Texas
Transitions to the UBE Bar Examination By Leonard M. Baynes
reviews 46 Media The Commercial Property
Insurance Policy Deskbook
Reviewed by Farrah Martinez
Felton’s Texas Anti-SLAPP Law
Reviewed by Benjamin K. Sanchez
The Houston Lawyer
48 Litigation MarketPlace
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president’s message By Benny Agosto, Jr. Abraham, Watkins, Nichols, Sorrels, Agosto, Aziz & Stogner
E
Houston Strong
The Houston Lawyer
conomic ups and downs, hurricanes, pandemics… continue to recognize outstanding HBA leaders through the Houston may bend, but we will never break. DurPresident’s Awards for Committees and Sections, the Jusing my year as Houston Bar Association president, tice Eugene A. Cook Professionalism Award and the Justhe lawyers of Houston had to deal with a number tice Ruby Kless Sondock Award. This year, I established a of challenges. But we overcame. new award to recognize outstanding achievements by law To all the lawyers in the offices and individuals in the greater Houston area, and the areas of diversity and inclumembers of the HBA, it has sion. Our first recipients of given me great pleasure to the Diversity Awards will set serve as your president durthe standard for those who ing 2019-2020. Together, we excel in this crucial mission have accomplished much for going forward. our profession and our comI want to take a moment munity. I thank each and evto recognize and congratuery one of you for your serlate all of the award recipivice, your dedication to the ents. Even though we were law, and the privilege of leadnot able to have an in person ing this great organization at ceremony, this edition of The the beginning of our 150th Houston Lawyer highlights year. all of the award winners for I want to personally thank 2019-2020. You are the BEST! the 2019-2020 HBA Board of Congratulations. Directors, the Committees On May 12, our good and Sections, as well as the friend Bill Kroger of Baker HBA team for all the hard Botts took office as the 2020work and effort this past year. 2021 president of the HBA. I cannot believe an entire year Bill and the new board will has gone by. But it has been Benny Agosto with Terry O’Rourke of the Harris County Attorney’s Office – be excellent leaders as Housfun and a genuine pleasure. I Houston Strong at a Houston Rockets game after Hurricane Harvey. ton faces the challenges of the also want to thank God, my wife Nikki and my family, and coming year. We celebrate Bill and wish him all the best. my law firm, Abraham Watkins, for the never ending love Thank you again to all for being part of the Houston Bar Asand support. I humbly would like to suggest that you go to sociation, and I wish you good health and Godspeed. hba.org/2020accomplishments to see the list of accomplishAnd finally, on behalf of the entire HBA family, I am ments for the 2019-2020 bar year. We could not have done grateful for those who worked tirelessly during the tough all of it without you. Again, thank you. times of the COVID-19 pandemic. I look forward to the The COVID-19 pandemic has meant making many adnew normal, as we continue to improve in our practice of justments as the HBA and members work from home and law and serving our clients. I know that the best is yet to observe social distancing guidelines. Accordingly, it is come for the HBA. I am proud of Houston and the Houston doubtful that we will be able to hold our Annual Dinner Bar Association, but I am even more proud because we are and 150th anniversary celebration, as hoped. However, we Houston Strong!
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from the editor By Taunya Painter Painter Law Firm PLLC
Associate Editors
Anietie Akpan METRO
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Kimberly Chojnacki Baker Donelson
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May/June 2020
We are Co-signers on Each Other’s Mental Health
“Y
tential impact of mental illness or addiction on ethics ‘ou got a call from defense attorney Jim complaints and legal malpractice. Loss cannot be more Smith. He said he’s been trying to reach profoundly stated than in the article written by Kyrie your friend, Alexis Jones, for days, but Cameron: it is the author’s account of how these matters she’s not answering.” (I am using different touched her life personally, and it should be read and names to protect confidentiality). These shared broadly. were the urgent Authenticity is words from my assisone of the most used tant several months words in our culago. She didn’t know ture about how we that my friend, Alexexpress ourselves in is, had PTSD, finansocial media and in cial difficulties, and person. A first step was the sole income toward authenticity earner for her family. is honesty. Can we Immediately, I wonbe honest with ourdered about a loan selves and create a that Jim had given to Alexis, for which Most of The Houston Lawyer editorial board members were still working and culture of honesty at work? Author Rachel I was a reference. meeting from home as this issue went to press. H. Stinson challenges those with an ADHD diagnosis or Then guilt slapped me: Should money have even crossed tendency to turn their challenges to strengths. Further, my mind? I had to change: I needed to pursue her wellauthors Anietie Akpan and Mahsa Tajipour lay out an acbeing as if I was her mental health co-signer. tual blueprint of much needed reform in our profession The same month, The Houston Lawyer editorial board of mental health benefits. If you are an employer or if you was gearing up to work on this important issue devoted want to influence for change, it is a must-read. to mental health. I want to give a special thanks to ElizaMany of our authors further challenge us to seek the beth Furlow of Baker Botts L.L.P. and Judge Joe Villarreal, feedback to those closest to us. We are in this together. for their thoughtfulness and hard work as Guest Editors Ultimately, we can all use some guidance. Nick Bolhuis of this mental health issue. They put their heart into it. gives us an inventory of positive behaviors to implement Fortune magazine reported in June 2020 that, “A mento conquer stress. It is practical and an excellent read. tal health crisis is unfolding in the workplace. COVTara Shockley outlines tools for mental health that are ID-19 and racial injustice are to blame.” Who could have available through the Houston Bar Association. Finally, imagined the timeliness of this issue? Crisis magnifies this issue also compiles a cross-section of advice from mental health problems. nine different authors in one article on how they handle Themes that kept arising during the discussion of the stress. articles were the profound pain of loss, the need for auWhen a crisis arises, we cannot ignore the mental thenticity, and the power of perspective. health behind the mask. We should face our own chalLoss, of course, is guaranteed to touch our lives. Diane lenges and, more than ever, be co-signers for the mental St. Yves talks about the stress that we endure through health of our friends and family. the lives of our clients. Don Karotkin discusses the pothehoustonlawyer.com
BOARD OF DIRECTORS President
Secretary
President-Elect
Treasurer
First Vice President
Past President
Benny Agosto, Jr.
Diana Gomez
Bill Kroger
Jennifer A. Hasley
Chris Popov
Warren W. Harris
Second Vice President
David Harrell
DIRECTORS (2018-2020)
Greg Moore Mitch Reid
Collin Cox Hon. Erin Lunceford
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Travis Armstrong Brooksie Bonvillain Boutet James Clarke Elizabeth Furlow Al Harrison Preston Hutson Ryan Kinder Hon. Scott Link Kate McConnico Carly Milner Emily Mott Stephanie Ng Francesca Perkins Austin Benjamin Sanchez Paul Van Slyke
Anna Archer Trey Holm
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May/June 2020
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By Kyrie Cameron
The Power of Perspective in Our Profession
W
e have all seen a child or two running around in a firefighter suit or a princess costume. I promise, if you ask about their outfit choice, they will tell you they are dressed as what they want to be when they grow up. Why? Because firefighters get to save animals and people and drive cool, big red trucks with lots of lights and sounds, and princesses get to save the world while wearing sparkly dresses I know that with jeweled crowns, of the nature of our course! It might seem silly to us as grown-ups, but the profession makes reality is youthful perspecit hard to express tives are focused on picking a job that captures their vulnerabilities.” attention, invigorates their passions, and brings them joy. Youth are not usually concerned about accumulating wealth and power, or even the approval of others. Many law students and lawyers start out with an exuberant and optimistic perspective. Unfortunately, as a young lawyer myself, I have noticed
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that we quickly lose sight of that perspective. We so easily shift our perspective and define our success based on billable hours, hourly rates, efficiency, partner approval, client approval, and the power we exert over our adversaries. Make no mistake; I am by no means an authority on perspective. I am guilty of losing my perspective every day, too. So, you might be wondering why you are reading this article written by me. The reality is, I am sharing with you a couple of things I wish I had emphatically told my husband, Ryan, before he took his own life on the afternoon of December 5, 2018 — just two and a half months after beginning his dream big law career. We will never have all of the answers or fully understand why Ryan ended his life that day —at least not on this side of Heaven. I do not know every factor that contributed to Ryan’s discouraged mental state. I do, however, know that Ryan, like all of us, had days of overwhelming struggle, days during which he felt like he wasn’t going to be able to accomplish the tasks before him and certainly not to the high standards that he was so used to meeting. You see, Ryan was a rock star in all that he did. In addition to being an outstanding husband, son, brother, and friend, Ryan was a moot court champion, a valued team member in the Texas Senate, and an honors graduate. Nevertheless, there were times when Ryan felt like he did not have the time, the energy, or the legal understanding to get his projects done perfectly. I can imagine the prospect of not achieving perfection in every task and role might have felt like a failure to him. Although Ryan’s story may seem like an extreme example, I can relate. I think any honest lawyer or law student can relate, too. We all have days of overwhelming struggle and we all experience tension and exhaustion as we strive for constant perfection. Oftentimes, when we couple these self-imposed pressures with the pressures inherent in our profession, it can —and will— be overwhelming. And, it can so quickly feel hopeless. We often respond to those days negatively whether
it is by lashing out at others, abusing substances, or otherwise neglecting or hurting our mental and physical well-being. I am convinced, however, that together we can make tremendous strides in handling the pressures of our profession in a positive way by keeping them in perspective. To start, I hope we will all keep two important points in mind: (1) Bad days, days of overwhelming struggle, and mistakes are inevitable in our profession, but keep those fleeting times in perspective, because (2) being a lawyer does not define you. It is just your profession —and most days, it is a really great one. There can be no doubt that every job has challenges and a person’s mental health is based on numerous factors, not just their profession. Lawyers by nature are driven and eager to take on tough challenges, making us particularly susceptible to mental health issues. We voluntarily study for the LSAT, attend at least three years of law school, and sit for the bar exam. We have so much we want to achieve, and we set high standards of perfection for ourselves, both personally and professionally. So when the demands of our profession become all-consuming and you begin to struggle, please remember the power of perspective and reach out for help, whether that be to a family member, friend, colleague, or healthcare professional. I know that’s easier said than done. I know it takes enormous courage to express your pain. I know that the nature of our profession makes it hard to express vulnerabilities. But, I also know that help is available in a variety of forms, such as through our state bar associations, professional organizations, and even our employers. Getting help is worth it because this world needs YOU —and not just because you are a good lawyer. You are valued for so much more than the projects you have completed, the perfection you have achieved, the mistakes you have made, the hours you have billed, and the approval of others you have gained. You are valued for all that you bring to the table as a colleague, a friend, a family member, and a neighbor.
In addition to taking care of ourselves, I want to encourage our professional community to look out for each other. I am inspired by the discussion taking place in our profession, especially among young lawyers. We still have much work to do to open our minds and hearts to the mental health struggles that we as lawyers are so prone to face. However, we are the generation of lawyers to make that happen. So, pay attention to your colleagues, listen to their struggles, encourage them to seek help when the pressure is too much for them to bear, and remind them that they are not alone. Sometimes all it takes is an open ear from someone in a similar situation to reframe our perspective or otherwise overcome moments of overwhelming anxiety. Personally, I have benefited not only from speaking with a professional counselor, but also through the encouragement of my colleagues and friends. It is also important to remember that your law degree provides numerous op-
portunities in a variety of employment settings. Making a change is exceptionally brave, particularly when doing so will promote your mental health and overall well-being. I hope these words have not discouraged or disheartened you. In fact, I hope they have reminded you how tremendously fortunate we are to have the opportunity to practice law as members of a community that continues to make strides towards improving our well-being. Our profession is incredibly meaningful. We are privileged to advocate on behalf of our clients as we seek justice on their behalf. The next time you find yourself struggling, keep your legal career in perspective and reach out for support so that the stressors of our profession do not steal your joy or diminish your well-being. Remember, being a lawyer is just one small part of your amazing self. Kyrie Cameron is an associate attorney at Patterson + Sheridan LLP.
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By Nick Bolhuis
Conquering Stress During a Pandemic or Any Other Time
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Because stress and anxiety can have negative long- and short-term effects on our well-being, it is important to find ways to effectively manage such stress and anxiety.”
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ost of us have suddenly found ourselves spending much more time at home than we are used to these days. We’re working where we live, parenting where we live, and trying to unwind where we live —all the while, not knowing how long we’ll be doing so, or if this will become an intermittent practice. It’s a stressful time, to say the least. Stress is universal, certainly with my clients. The legal profession has the normal stresses of many other professional jobs: office politics, competition for promotions, heavy workloads, demanding bosses, and so on. Many lawyers, however, face a unique stress in that their day-to-day work can have a significant impact on another person’s life and well-being. Wins and losses in
civil and criminal cases change clients’ lives. Attorneys are also closely regulated by ethical rules in how they conduct their practice and interact with others. These stresses do not necessarily diminish with a quarantine, but rather are likely to increase. Because stress and anxiety can have negative long- and short-term effects on our well-being, it is important to find ways to effectively manage such stress and anxiety. Chronic vs. Acute Stress Two common types of stress are chronic and acute. A close call on the road or having to speak in front of a large crowd are the kinds of situations that might trigger acute stress. The effects of acute stress can be physical, emotional, and/or behavioral, but are typically short-lived. Chronic stress, on the other hand, occurs when someone feels trapped in a bad situation, such as an over-demanding job, an unhappy marriage, a desperate financial situation, or a global pandemic. Chronic stress starts to wear down a person’s physical and mental health over time. The Physical Effects of Stress First, it is helpful to understand what stress is. Stress is the body’s reaction to change. When we encounter a stressor, the hypothalamus in our brain signals to our body to pump out a surge of chemicals such as adrenaline and cortisol. These chemicals engage the sympathetic nervous system and trigger the fight-orflight response. In this state, our heart rate and blood pressure rise. Bodily functions (immune systems, digestion, etc.) become disrupted. While some stress is good for us and healthy, long-term activation of the stress response can have negative effects on our mental and physical health. Chronic stress especially has been linked to heart disease, sleep disturbances, weight gain, memory loss, and cognitive impairment, as well as mental health issues.
Types of Worry It is also helpful to recognize the difference between what psychologists call “real problem worries” and “hypothetical worries.” Real problem worries are actual issues that require solutions in the moment. This may be going to the store and then washing your hands when you get home. It could also be worries about how to arrange child care while you are working from home. Hypothetical worries arise from catastrophizing (a spiraling train of thought). These might include “what if” thoughts like “what if we have to isolate for a whole year?” It is inevitable that we will experience some degree of worry during this global pandemic, but it is excessive worry that can become a problem. If worrying leaves you feeling drained or upset and is getting in the way of living, then it is possible that you are experiencing harmful, excess worry.
our bodies can get thrown out of whack, which can put us at an increased risk for depression. How to Manage Stress and Anxiety During a Crisis and After Normalize Anxiety It is a common reaction to want to fight anxiety as soon as you start to feel symptoms., But it can be helpful for many people to pause before reacting. If you notice yourself feeling on edge, take a moment to notice what you are feeling. Some people find it helpful to simply tell another person that they are feeling anxious. Ultimately, being able to acknowledge an anxiety symptom is the first step in knowing how to respond to it. Combat Cognitive Distortions We easily jump to conclusions during stressful times. Part of being able to manage anxiety is acknowledging when you are having a distorted thought. If the news coverage has you thinking to yourself, “I’m going to get sick and die,”
stop and remember the facts. Reframe your thought to be, “I’m taking all the necessary steps to stay healthy according to the experts. I’m doing everything I should be doing right now.” Get Enough Sleep Adequate sleep is important for overall brain health and can help reduce anxiety symptoms. A common excuse for lack of sleep is the “need” to stay up late preparing for a trial or deposition the next morning. Most live events are flexible because of the pandemic, so that ”excuse” cannot be used for the time being, as long as you are not procrastinating. When we sleep, our glymphatic system works to clean our brains of neural waste. This system also provides a brain-wide distribution of compounds, including glucose, lipids, amino acids, growth factors, and neuromodulators. Inadequate sleep is believed to prevent this crucial process from taking place, thus possibly contributing to mental health decline.
The Effects of Stress on Mental Health Both chronic and acute stress can cause a dysregulation of brain chemicals such as serotonin and dopamine. While scientists are continuing to uncover the complex roles these chemicals play in mood regulation, both serotonin and dopamine have been shown to have an important impact on depression symptoms. Researchers once believed that low levels of serotonin were correlated with depression symptoms, but we now know this is not necessarily true. While dopamine dysregulation is tied to certain depression symptoms, serotonin is now thought to impact the way in which we process emotions, which can affect mood. When we are not under stress, our bodies regulate chemical production in a way that helps us get a good night’s sleep and feel energized, and the chemicals regulate our moods in a healthy way. But when we are under stress – especially long-term stress, like a global pandemic – the chemical production in thehoustonlawyer.com
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Try improving your sleep by reducing your blue light exposure before bed (turn off your laptop or tablet), keeping your room temperature between 60 to 67 degrees, and writing down any anxious thoughts or to-do lists before getting into bed. Eat Well More and more research supports the idea that our gut and brain are closely connected, both physically and chemically. In fact, our stomachs are referred to as our “second brain” by some scientists. Unsurprisingly, studies have also linked certain foods to contributing to feelings of anxiety and other foods to helping reduce those feelings. Some experts suggest that a plant-based diet, rich in omega-3s and seafood, could be the best diet for reducing anxiety. If you are looking for more specifics, try looking into the “Mediterranean Diet” and its heart- and brain-healthy elements. Exercise Exercising during a stressful time may seem overwhelming, especially if you have anxiety. But your body actually wants to get moving. Exercising releases endorphins and serotonin, which are natural, mood-boosting chemicals. Exercising also promotes deeper breathing, which causes more oxygen to get into your bloodstream and travel to your brain. Since our brains require so much oxygen to function, this boost of oxygen can help bring your brain back to a calmer state. Just be sure to listen to your body. Start off with something mild, like going for a 20-minute walk, and adjust accordingly. Conscious Breathing When we take a deep breath in, our heart rate quickens slightly. As we exhale, our heart rate slows. Repeated deep breaths naturally bring our heart rate more in sync with our natural breathing pattern, thus calming our sympathetic nervous system --the bodily system that causes us to feel a fight-or-flight reaction. This 14
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process can also cause our brains to release endorphins, which are chemicals that have a natural calming effect. It’s no coincidence that conscious breathing is the groundwork in so many types of meditation. The calming effect can be so significant that research links meditation to a reduction in stress, anxiety, and depression symptoms, as well as an improved sleep and focus. So, during times of heightened stress, it is not a bad idea to try meditation and conscious breathing. Counseling A great way to help navigate your own specific set of worries and anxieties and know if they are healthy or harmful is to talk to a therapist. Virtual counseling is a great way to stay safe while still giving your mental well-being the attention it may be needing right now. Limit Your News Intake While it is important to stay informed during this pandemic, too much news and information can crowd your headspace. This can leave little room for other, non-anxiety-inducing thoughts. Try limiting yourself to 15 minutes a day to get caught up on new developments from reputable sources. Then, switch to something else. Remember, social media sites can also be overwhelmed with negative news, so it is not just traditional news sites you may consider limiting. Follow Health Guidelines (and Then Stop) When exercising healthy habits, it is hard to know when it is enough and when it is too much. Trust the experts and follow their guidelines. No matter how helpful it may seem to do more of a good thing, resist the urge to go above and beyond. Fixating on germs and cleanliness could lead to paranoia and obsessive thoughts. Write Down Your Worries Some people find that listing their worries helps organize their thoughts into clearer categories. You may find that
some of your worries fall under the same, actionable group. Engage in Positive Social Interactions You will get back into work, restaurants, parties, and normal routines. As you re-emerge, beginning those conversations on a positive note will not only help your own outlook, but it will likely make those around you happier. Imagine being confronted with, “I’m so happy to see you again!” versus “It’s about time this lock down is over. I’m sick of staying indoors and wearing this mask!” Make Time for Hobbies Whatever it is that brings you joy, make time for it. Most attorneys are highly driven so it may be hard to do, but taking time away from the next task for a hobby can be extremely beneficial. Whether it’s drawing, reading, listening to music, or video-conferencing with friends, make your hobby a priority in your life. Concluding Thoughts: Managing Stress is Self-Care If you are practicing stress management exercises as discussed, and those you may choose to add, it is possible to actually use this extended time at home to change from one that has difficulties with stress to one that conquers it. If you already regularly engage in such self-care, it is important to keep doing so during times of uncertainty. Maintaining healthy habits can provide a sense of comfort in itself.1 Nick Bolhuis is the vice president of clinical services for Neuropeak Pro. He and his team work extensively with pro athletes and teams, corporations, professionals and their families, to optimize their brain health and performance. neuropeakpro.com. Endnotes
1. The author relied on the following sources when writing this article: Stress: Signs, Symptoms, Management & Prevention, CLEVELAND CLINIC, http://my.clevelandclinic.org/ health/articles/11874-stress (last visited May 14, 2020); 5 Things You Should Know About Stress, NAT’L INST. OF MENTAL HEALTH, www.nimh.nih.gov/health/publications/stress/index.shtml (last visited May 14, 2020).
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By Don Karotkin
The Addicted or Mentally Ill Lawyer:
Ethics Complaints and Legal Malpractice Claims L
et’s start close to home with the Texas Lawyers’ Assistance Program (hereinafter “TLAP”), which provides the following statistics on the homepage of its website: • Lawyers 30 years old or younger who have a DRINKING PROBLEM – 32% • Lawyers who struggle with some level of DEPRESSION – 28% • Lawyers who demonstrate symptoms of ANXIETY – 19% • Lawyers who have had SUICIDAL THOUGHTS at some point in their career – 11%1
TLAP Director Chris Ritter, J.D., says about 40% of the lawyers who call TLAP report problems with substance abuse. However, he believes that the percentage of callers who actually have a substance abuse problem is really about 60%. Moreover, 60% of lawyers who are addicted also have mental health issues, the most prominent of which is depression. Reports of complaints to the State Bar of Texas alleging ethics violations are very common. Making a correlation is more complex. Paradoxically, very few callers to TLAP connect the dots be-
tween substance abuse and mental health issues as a cause and State Bar grievances, legal malpractice claims, or even criminal charges as a result. For example, one caller told Ritter he had been arrested multiple times for driving under the influence of alcohol, but the caller seemed not to associate his arrests with a drinking problem. The caller said he was arrested “because I was unlucky.”2 Honesty is often one of the first casualties of addiction. Self-awareness is often another.3 THE ADDICTED LAWYER Author Bryan Cuban quotes substance abuse study author Patrick Krill as saying: The bottom line is that while alcohol is far and away the substance of choice for the majority of lawyers —and the one that does the most overall damage— the level of problematic drug use (prescription and illicit) within the profession is almost certainly higher than the data suggests. In the absence of hard data and empirical evidence, it is largely speculative and anecdotal to conclude that lawyers are using other substances at a problematic level. At the same time, expert opinions merit serious consideration when you don’t have data and evidence. In my expert opinion, as well as in the opinion of many lawyer assistance program staff people around the country, lawyers are likely using more drugs than our study reflects.4 In 2016, Krill, Johnson and Albert published an article in the Journal of Addiction Medicine reporting on a study they had conducted in conjunction with the Hazelden Betty Ford Foundation and the ABA Commission on Lawyers Assistance Program (the “Hazelden Study”). A sample of 12,825 licensed, employed attorneys completed surveys for the study, assessing alcohol use, drug use, and symptoms of depression, anxiety and stress. The results of the study were: Substantial rates of behavioral health problems were found, with 20.6% screening positive for hazardous, harmful, and potentially alcohol-dependent drinking. Men had a higher proportion of positive screens, and also younger participants and those working in the field for a shorter
duration (P < 0.001). Age group predicted Alcohol Use Disorders Identification Test scores: respondents 30 years of age or younger were more likely to have a higher score than their older peers (P < 0.001). Levels of depression, anxiety, and stress among attorneys were significant, with 28%, 19%, and 23% experiencing symptoms of depression, anxiety, and stress, respectively.5 THE IDAHO EXPERIENCE Though not as close to home, a study out of Idaho helps inform the discussion about the impact of addiction on ethics complaints. In 2016, Caralee Lambert of the Idaho Bar Counsel’s Office published an article with the intention of highlighting the interplay that the Bar Counsel’s Office was seeing between the personal struggles and professional lives of attorneys. Ms. Lambert wrote: “Houston, we have a problem.” After reviewing the then-new Hazelden Study discussed above, Ms. Lambert cites the following data collected from Idaho Formal Disciplinary Cases Ms. Lambert quotes author Leslie A. Gordon as saying, “Stressed-out lawyers make poor decisions, leaving them open to liability.” Ms. Lambert interprets the chart of Idaho Formal Disciplinary Cases as reflecting the prevalence of depression, anxiety, and substance abuse in Idaho’s formal disciplinary cases. She goes on to state, “Mental health issues and substance abuse do not cause professional misconduct, but they can affect an attorney’s ability to function under stress and may lead to disciplinary issues.”6 TEXAS CASE LAW Several Texas attorneys have faced severe professional consequences that can be directly linked to addictive behaviors. In 1994, a Texas attorney was convicted of misdemeanor theft upon his plea of guilty and fined $500 by the court. Consequently, the General Counsel of the State Bar of Texas petitioned the Board of Disciplinary Appeals (BODA) to disbar the attorney. BODA granted the petition, and the attorney appealed. The Supreme Court of Texas affirmed. The attorney argued that he had resorted to theft thehoustonlawyer.com
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because of alcoholism and drug addiction, and that he had, therefore, in effect been disbarred for a disability when the maximum sanction for such conduct was suspension. The court observed that the rules relied on by the attorney for this argument were not the exclusive basis for sanction of conduct involving a disability. When alcoholism and drug addiction lead to a conviction for a “Serious” or “Intentional” crime, Rules 8.05 and 8.06 [of the Texas Disciplinary Rules of Professional Conduct] provide the appropriate basis for discipline.7 In 2001, another Texas lawyer pleaded guilty to possession of a controlled substance, a third-degree felony. The trial court deferred further proceedings without an adjudication of guilt, ordered her to pay a $500 fine, and placed her on community supervision for six years. Through the Chief Disciplinary Counsel, the State Bar of Texas commenced compulsory discipline proceedings against this attorney. After a hearing, BODA held that the attorney, having been placed on probation for possession of a controlled substance without an adjudication of guilt, had been convicted of an intentional crime. BODA suspended the attorney for the term of her criminal probation and held that if her criminal probation were revoked, she should be disbarred. On appeal to the Supreme Court of Texas, the attorney argued that she was not subject to compulsory discipline because possession of a controlled substance is not a crime of moral turpitude and, therefore, on the facts of her case, she had not been convicted of an intentional crime. The court held that the attorney was not subject to compulsory discipline, but that her actions might be reviewed and sanctioned following the standard grievance procedures. Ultimately, the court held that an attorney convicted of or receiving deferred adjudication for possession of a controlled substance must be disciplined in the standard grievance process, where the underlying facts and any collateral circumstances can yield the appropriate sanction.8 In a dissenting opinion authored by Justice Owen and joined in by Justice Hecht, Justice Owen revealed that the attorney 18
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“was convicted under section 481.115(c) of the Health and Safety Code, which makes the knowing or intentional possession of one gram or more but less than four grams of cocaine a third-degree felony.” Justice Owen opined that “[t]he sole point in dispute is whether a felony conviction for the knowing and intentional possession of cocaine involves moral turpitude.” Justice Owen went on to conclude that a felony conviction for the knowing and intentional possession of cocaine involves moral turpitude. Part V of Justice Owen’s dissent is informative and instructive: This case is about the moral standards for fitness to practice law – what a cynical public regards as an oxymoron. It is very difficult to defend the integrity and stature of the legal profession to its many critics when the Supreme Court of a major state reverses its own agency for lawyer grievances and holds, without authority, that there may well be nothing inconsistent with being convicted of felony possession of a controlled substance and being fit to practice law. The fact that such a conviction automatically results in the loss of the right to vote but not suspension of a license to practice law implies that the Court thinks there is a higher moral standard for voting than for practicing law.9 A GAMBLING STORY Don Cooksey had experienced substance abuse issues early in his career, but he joined Alcoholics Anonymous, recovered from his addiction, and built a thriving law practice. The court stated in a footnote that a retired district judge had characterized Cooksey as “an excellent advocate.” While Cooksey may have won the battle over the bottle, he appears to have succumbed to a gambling addiction, resulting in devastating losses to both his clients and himself.10 Don Clayton Cooksey was a Texarkana lawyer at the center of [a] professional tragedy involving theft, misapplication of fiduciary property, and forgery. There were many losses along the way: untold gambling losses, the loss of an aggregated sum of over $200,000.00 to Cooksey’s former clients, the loss of Cooksey’s li-
censes to practice law in both Texas and Arkansas, and the loss of Cooksey’s personal freedom as a result of the criminal convictions involved in this case.11 A COCAINE STORY Pete practiced plaintiffs’ personal injury law in Houston. Mr. and Mrs. Jones, the parents of Billy Jones, a twelve-year-old minor, hired Pete to represent them in connection with injuries Billy had suffered in an automobile accident. Pete settled the case, and the judge of the district court approved the settlement agreement and signed a judgment awarding Billy $125,000. Pursuant to the Joneses’ request, Pete applied to a statutory probate court in Harris County to establish a guardianship for Billy. In the application, Pete asked the court to appoint him as the guardian of Billy’s estate. No one opposed the application and the probate judge granted it. As required by the probate code, Pete posted a surety bond guaranteeing the faithful performance of his duties as guardian and proceeded to deposit the $125,000 in settlement funds in his IOLTA account. Under the probate code, Pete was required to file annual accountings reflecting the status of the funds belonging to Billy. Pete failed to file an accounting, failed to obey subsequent court orders, and failed to appear at the show-cause hearing. The probate judge then substituted another lawyer, Dick, as the successor guardian of Billy’s estate, but Pete never seemed to be in his office and never retuned any of Dick’s calls or requests. When it became obvious to Dick that Pete would not voluntarily transfer Billy’s funds, he filed a lawsuit in the probate court against both Pete and the surety bond company. Not long after that, the State Bar of Texas investigated and determined that Pete had spent all of Billy’s $125,000 on cocaine. The bonding company paid the $125,000. In the meantime, unsurprisingly, Pete was disbarred. MALPRACTICE CLAIMS The evidence for an association between substance abuse, mental health issues and legal malpractice claims is mostly anecdotal. An active lawyer professional liability (LPL) insurance claims representative
whose experience goes back to 1999, provided some information about the claims he has handled over these years: 1. Rarely do insureds self-report the cause of their mistake when it involves substance abuse. Only four to six of the lawyers self-reported. The usual scenario is the lawyer’s firm discovers the mistake and then makes a causal connection with the substance abuse. 2. In close to 100% of cases in which there was a report of substance abuse from either the insured or his/her law firm, there was solid evidence of the abuse. 3. In only one or two cases, did the insured self-report depression as a contributing cause of the basis of the claim. 4. In one case, although the insured did not self-report it, investigation revealed solid evidence that the lawyer suffered from a mental illness. CONCLUSION Not only do attorneys have nearly triple the rate of self-reported problematic alcohol use as the general population, but they have double the rate of doctors, another high-stress profession.12 Problematic alcohol use among young attorneys is through the roof, with lawyers under 30 at 31.9% and junior associates at law firms at 31.1%.13 That’s almost one-third of all young attorneys admitting anonymously to problematic alcohol use. Astonishing. Perhaps there is something to attorney culture being a contributing factor to these numbers. In an interview with The Washington Post, Patrick Krill, the lead author of the Hazelden Study, speculated that this might be the case. According to Krill, attorneys might “prioritize success and accomplishment over things like balance, personal wellbeing, health, and so forth. You put them through a training (law school) where they are taught to work harder, play harder, and assume the role of a tough, capable and aggressive professional without personal weaknesses or deficiencies... Heavy drinking, lack of balance, and poor self-care are entirely normalized... That’s the behavior that young
lawyers see being modeled all around them, and throughout the profession.”14 The challenges of addiction, mental health, or depression do not likely come out of the blue. In Ms. Lambert’s study, she quotes author William Styron about a problem: “Depression, when it finally came to me, was in fact no stranger, not even a visitor totally unannounced; it had been tapping at my door for decades.”15 Intellectual honesty is a first step. You seek the answer, my friend? Look inside.16 Don Karotkin is a Houston sole practitioner who specializes in professional liability/professional ethics defense. He is board certified in Personal Injury Trial Law, a member of the American Board of Trial Advocates, a Life Fellow of the Texas Bar Foundation, a Sustaining Life Fellow of the Houston Bar Foundation and a member of Texas Association of Defense Counsel. The author is grateful to Chris Ritter, Director of TLAP, and Caralee Lambert, of the Idaho Bar Counsel’s Office, whose contributions made this article possible.
Endnotes
1. TEXAS LAWYERS’ ASSISTANCE PROGRAM, https:// www.tlaphelps.org/ (last visited May 12, 2020). 2. Id. 3. BRYAN CUBAN, THE ADDICTED LAWYER: TALES OF THE BAR, BOOZE, BLOW AND REDEMPTION 85 (2017). 4. Id. at location 228 (Amazon Kindle edition). 5. Patrick R. Krill et al., The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 J. OF ADDICTION MED. 46 (2016). 6. Caralee Lambert, A Perspective from Bar Counsel’s Office: Addressing Substance Abuse and Mental Health Issues, 59 ADVOC. 31, 35 (2016). 7. Sanchez v. Bd. of Disciplinary Appeals, 877 S.W.2d 751-52 (Tex. 1994). 8. In re Lock, 54 S.W.3d 305, 306 (Tex. 2001). 9. Id. at 317-23 (Owen, J., dissenting). 10. Cooksey v. State, NO. 06-13-00096-CR, 2014 WL 3359278, at *1, *18 (Tex. App.—Texarkana 2014, no pet.). 11. Id. at *1. 12. CUBAN, supra note 4 at 126. 13. Id. 14. Christopher Ingraham, One-Fifth of This Occupation Has a Serious Drinking Problem, WASH. POST, Feb. 5, 2016, www.washingtonpost.com/news/wonk/wp/2016/02/05/ americas-lawyers-have-a-serious-drinking-problem/; see also CUBAN, supra note 4 (quoting this article). 15. Lambert, supra note 13 (quoting WILLIAM STYRON, DARKNESS VISIBLE: A MEMOIR OF MADNESS 40 (1992)). 16. Keir McLaren, Look Inside Yourself for the Answers You Need, YOUTUBE (May 9, 2018), https://www.youtube. com/watch?v=ktGYhw7gmMY.
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By Diane St. Yves
Secondary Traumatic Stress
S
ylvia K.1 was a tall, beautiful, impeccably dressed 72-year-old going through an unwanted divorce. In marriage, she had always taken a support role while her spouse provided the income. After her first divorce, she walked into this marriage to Troy. Troy earned a good living and provided well. Sylvia followed him as he was transferred by his employer from one location to another, feeling the effects of being uprooted repeatedly. Despite Troy’s income, the parties did not have a large estate, so their divorce was set for mediation. From the very beginning, the mediator showed no compassion for Sylvia’s situation. His singular goal was to “settle the case.” Sylvia asked that the mediator request an additional $15,000 in cash, and the mediator responded with, “you are going to blow this whole thing up,” as he walked out of the room. He came right back about 15 seconds later telling Sylvia “they said no.” After receiving assurance that she would have sufficient financial resources for a comfortable life, Sylvia signed the mediated settlement agreement. Before we could finalize the divorce, Sylvia violently took her own life. It has been over two and a half years, and her death haunts me still. Every day at work, an attorney hears real-life stories of death, tragedy, destruction of rela-
tionships, hatred, conflict, and turmoil. Trying to determine if post-traumatic stress disorder (PTSD) with respect to attorneys and their staff was a concern, my questions and inquiries were met with skepticism. As I thought of Sylvia and two other female clients who took their own lives in the ensuing year after Sylvia’s death and its impact on me and my staff, it became a stark reality that some sort of stress disorder is a real issue. It was apparent that attorneys and their staff need to be prepared to recognize, treat, and develop a prevention plan for “Secondary Traumatic Stress” disorder. Ignoring the direct emotional effects that the trauma of our clients’ stories and distress can have on us and our staff can certainly result in an increased risk of mental illness, substance abuse, and possibly suicide. What is Secondary Traumatic Stress? Secondary Traumatic Stress (“STS”), also known as vicarious trauma, secondary stress disorder, or insidious trauma, “occurs when an individual who was not an immediate witness to the trauma absorbs and integrates disturbing aspects of the traumatic experience into his or her own functioning.”2 In the available research on STS, there is no mention of attorneys on the list of individuals vulnerable to STS. This is not reality, however, as many types of attorneys can be vulnerable. Not to discount other attorneys that may feel the effects of STS, it seems those legal offices most susceptible to STS would include: a family lawyer who fights for a client and children who have suffered physical, sexual, and mental abuse, bullying, gaslighting, and other forms of abuse; a personal injury lawyer who reconstructs a tragedy such as an explosion, wrongful death, or traumatic injury; a probate attorney who works with a grieving family after the unexpected death of a loved one; or a criminal defense attorney who investigates and defends an accused in a tragic crime. Attorneys and their staff experience the tragedies vicariously. Out of
necessity, they become engrossed in the facts, the stories, the circumstances, and each step that led up to the tragic incident giving rise to litigation. To increase the awareness within our own profession, the following information will help identify, prevent, and treat STS. Identification of STS Dr. Ellen Teng, Assistant Professor, PostTraumatic Stress Disorder Clinic at the Michael DeBakey Veterans Affairs Medical Center in Houston,3 provides the following non-inclusive list of indicators that one may be suffering from STS: • Change in personality • Feeling helpless and powerless • Sleeplessness • Fear, anxiety, and emotional unpredictability • Less communicative, irritable, and intolerant • Appears cynical in all aspects of his/her life • Indifferent to events, people, and things that previously brought joy or happiness • Marked increase in sarcastic mood • Interference with interactions with family, ability to work effectively, and loss of enjoyment of life events. According to Dr. Teng, this process will present itself gradually, so STS may not be identifiable in its initial stages. If an individual is continuously exposed to traumatic events, situations, and circumstances, the changes will become more apparent. A person affected by STS may suffer intrusions into their day-to-day routine including flashbacks, avoidance of situations that bring on the intrusions, and hyperarousal such as hypervigilance, sleeplessness, and increased startle response.4 Left untreated, additional symptoms may appear including negative coping such as abuse of drugs and alcohol, self-harm behaviors, panic symptoms (sweating, rapid heartbeat, difficulty breathing, dizziness), and weakened im-
colleagues healthy, both physically and mune system. This goes beyond “burn5 mentally. Noticing a change in behavior out.” STS is preventable and treatable; such as isolation of an however, if not addressed, otherwise congenial and the symptoms can result in personable individual problems with mental and should give rise to conphysical health, strained Whatever your cern. An increase or depersonal relationships, and poor work performance.6 status is within the crease in an individual’s weight, general affect, While some individuals are firm, it is imperative and ability to converse adaptive, others are not. Abuse of alcohol or other to seek outside with others as the indisubstances may also be an help through vidual may have previously done should be adindicator of STS. A 2016 psychotherapy, peer dressed. As a profession, study conducted by the American Bar Association mentoring groups, or we should continue to be aware of the issues that concluded that attorneys friends or colleagues we each deal with and “experience problematic you trust.” reach out if there is any drinking that is hazardcause for concern as to a ous, harmful, or otherwise colleague’s physical or mental health. consistent with alcohol use disorders at a higher rate than other professional Treatment of STS populations.”7 Once STS is identified, it is imperative From an employer’s vantage point, that treatment be undertaken as quickly key indicators of STS include increased as possible. Treatment methods for STS absenteeism, impaired judgment, low can vary from a change in routine to inproductivity, poorer quality of work, increased staff turnover, and increased staff friction.8 Identifying STS in ourselves, while important, is only in addition to identifying it in our staff, friends, and colleagues. Continually reaching out to our colleagues will make it more likely that our colleagues will feel safe to share their struggles, the trauma, and how the trauma has changed their lives. Legal professionals have a vested interest in keeping their
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clude self-care such as a healthy diet, exfirm, it is imperative to seek outside ercise, and regular sleep priorities. Yoga, help through psychotherapy, peer menmeditation, and journaling of feelings toring groups, or friends or colleagues 9 are also helpful. you trust. Advanced cases of STS require more intense and focused treatment including Prevention of STS trauma therapy, trauma support groups, Recognizing that the legal profession is and developing stronger connections already fraught with challenges is imwithin the workplace to share the load of perative to prevention of STS. In fact, the more traumatic and tragic portions research has shown that lawyers are among the staff. three to six times more likely to suffer Restructuring the workplace to create from depression.11 The research points to an environment for those who may be afthree main reasons why attorneys have a fected by STS to feel comfortable to share difficult time finding happiness: their concerns, anxiety, and 1. Prudence is one of the emotions will help each permain qualifications son understand they are not for lawyers, which can alone in their angst and conoften translate to skepIgnoring the direct fusion, and their emotions ticism or pessimism. emotional effects 2. The high pressure put are validated. Once this atmosphere is encouraged and on and low influence that the trauma of supported, the stigma is regiven to young asour clients’ stories moved, and it is more likely sociates creates work that someone will seek proconditions that result and distress can fessional help. in low morale in workhave on us and our Additional recommendaplaces. staff can certainly 3. The work—at least tions for treatment of STS include recognizing success, in the US—is often a result in an creating meaning by idenzero-sum game where increased risk of tifying aspects of the indiyour win is someone mental illness, subvidual work product in the else’s loss, creating a office environment that have hyper-competitiveness stance abuse, and been positive and important that also drains one’s possibly suicide.” to others, and making time sense of workplace to undertake “feel-good” acsatisfaction.12 tivities.10 Most likely, once identified, immeOnce the legal profession is aware and diate treatment for STS should include accepting that individuals within the therapy, whether individual or group, profession can be easily depressed and reorganization of the office environment are susceptible to suffer from STS, it is to share the load of the incidents giving important to address ways to prevent rise to STS and its symptoms, allowSTS. Creating a work environment more ing mental health time to individuals, conducive to sharing emotions and reand providing a positive work environceiving respect for doing so will help the ment where each individual can “vent” attorneys and support staff who are also or share their experiences. If alcohol exposed. This type of environment will and drug abuse is prevalent, appropristretch beyond the trauma to which an ate treatment should be sought whether individual is exposed in the workplace through inpatient rehabilitation, intenand also allow the individual to maneusive outpatient treatment, or Alcoholics ver through other issues in their life to Anonymous meetings. which we may not be privy. This will Whatever your status is within the help increase job satisfaction, improve
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the workplace environment, and create better relationships among staff and clients. Having only one person available to listen and provide feedback defeats the purpose of the safe working environment. One person cannot absorb all of the individual’s issues and address them adequately without falling prey to STS themselves. Providing mental health time, paid time off for counseling, adequate health insurance, or a health savings account will support the workplace by allowing others to seek outside treatment. Additionally, opportunities for each member of the office to learn about each other through in-office lunches, occasional breaks from the day-to-day activities—such as taking in an afternoon baseball game—and rotating time off for the employees and the attorneys is helpful. Dr. Teng suggests that, when the firm is handling a case that involves traumatic facts and issues, holding periodic staff meetings to discuss the feelings surrounding the case and being aware of how it is affecting everyone is essential. Some events may impact an attorney or staff member, while the person officing next door is unaffected. During the meetings, allow venting and processing by validating feelings and not discounting an individual’s reaction to a situation simply because it does not mirror yours. Ongoing monitoring of everyone’s reaction to certain facts and situations is helpful to identify early signs of STS and undertake action to prevent the acceleration of STS, including assigning the case to another individual in the firm or limiting the individual’s exposure to the information.13 Separation, limiting exposure, being honest with oneself, empowering oneself, helping oneself, and seeking opportunities for renewal should be given high priority within the workplace. Final Considerations For most attorneys, choosing our cases
is near impossible. Attorneys are assigned cases from managing attorneys, partners, or office administrators. Solo practitioners are loathed to turn down a case because of the potential loss of income to the firm and the need to “keep the lights on.” As such, attorneys and their staff are frequently and unwillingly exposed to trauma at the many levels set forth in this article. Being aware that STS exists is the first step in prevention and treatment. Recognizing it in our colleagues and staff will help address issues early to avoid acceleration and potentially irreversible damage. Obtaining treatment in the early stages is critical. Creating a caring and positive work environment will allow individuals to be open about how they are feeling and coping with the work and its effect. As professionals, we have a responsibility to watch for signs of STS, burnout, or drug or alcohol abuse associated with STS, and take action. Diane St. Yves is a board-certified family lawyer. She is a State Bar Director for District 4 and works closely with the Texas Lawyers Assistance Program in providing information to attorneys who are in need of treatment for addiction and/or mental health issues. Diane has been in recovery from alcohol dependence for over 23 years.
Prevalence_of_Substance_Use_and_Other_Mental.8.aspx. 8. Id. 9. What Is Secondary Traumatic Stress?, U.S. DEP’T OF HEALTH & HUMAN SERVS. ADMIN. FOR CHILDREN & FAMILIES, https://www.acf.hhs.gov/trauma-toolkit/secondarytraumatic-stress (last visited May 6, 2020). 10. Id. 11. Alex Palmer, Don’t retire early, buy a home, or be a lawyer if you want to be happy, researchers say – here’s why, CNBC, Aug. 16, 2019, https://www.cnbc.com/2019/08/16/ dont-retire-early-buy-a-home-or-be-a-lawyer-if-you-want-to-be-happy-says-happinessexpert.html. 12. Id. 13. What Is Secondary Traumatic Stress?, supra note 9.
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Endnotes
1. The names of the parties are changed to protect the family; however, the story itself is real. 2. Resources for Professionals, WENDT CENTER FOR LOSS AND HEALING, https:// www.wendtcenter.org/resources/for-professionals/ (last visited May 6, 2020). 3. Ellen Teng, Ph.D., BAYLOR COLLEGE OF MEDICINE, https://www.bcm.edu/people/ view/ellen-teng-ph-d/b1793d1a-ffed-11e2-be68-080027880ca6 (last visited May 6, 2020). 4. Resources for Professionals, supra note 2. 5. Charles R. Figley, Compassion fatigue: Coping with secondary traumatic stress disorder in those who treat the traumatic, 23 BRUNNER/MAZEL PSYCHOLOGICAL STRESS SERIES (1995); Charles R. Figley, Compassion fatigue: psychotherapists’ chronic lack of sell-care, 58 J. CLIN. PSYCHOL. 1433-41 (2002). 6. JOSEPHINE PRYCE, KIMBERLY SHACKLEFORD, & DAVID PRYCE, SECONDARY TRAUMATIC STRESS AND THE CHILD WELFARE PROFESSIONAL (2007). 7. Patrick R. Krill, Ryan Johnson, & Linda Albert, The Prevalence of Substance Use and Other MentalHealthConcernsAmongAmericanAttorneys,10J.OFADDICTIONMED.46(2016), https://journals.lww.com/journaladdictionmedicine/Fulltext/2016/02000/The_
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By Rachel H. Stinson
Lawyers and ADHD— Stigma or Superpower?
A
DHD is the common acronym for “Attention-Deficit/ Hyperactivity Disorder,” although some professionals still call it ADD because not everyone with ADHD displays hyperactivity. In laymen’s terms, an ADHD brain has serious trouble managing and directing itself.1 It is not a question of IQ, nor a conscious choice. ADHD means that certain (usually routine) tasks require herculean effort, while other tasks can be accomplished effortlessly, almost at light speed. Although it has been studied since at least the 1930s,2 much about ADHD is still a mystery. ADHD has a behavioral component and a physical component. As to the behavioral part, the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (the “DSM-5”) describes the lived experience of ADHD pretty well. Generally, it is, “a persistent pattern of inattention and/or hyperactivity-impulsivity that interferes with functioning or de-
velopment...”3 While almost any adult would admit to spells of inattention or impulsivity, one hallmark of ADHD is that the inattention or impulsivity is not due to defiance, a lack of understanding, or a lack of desire to perform differently.4,5 Another aspect is that the inattention or impulsivity is severe and persistent enough to have a clear and direct negative impact on one’s social or professional life—in other words, just “spacing out doesn’t cut it.” One person with ADHD described it like this: I’m an adrenaline junky, which is common for people with ADHD. I struggle with over-commitment, and I tend to create almost my own nightmare with too many deadlines. I also wait until the last minute to get something done, because the fear that I won’t finish creates adrenaline and that allows me to focus.6 Others describe it as “having the Library of Congress in my head with no card catalogue,” or “having a race car brain with bicycle brakes.”7 Author Melissa Orlov describes it as entering a room full of strangers—each of whom has some critical information that you must obtain—and trying to retain that information while remembering each stranger’s name and exact movements as they come and go from the room, without end:8 Still trying to focus on the first people, the new information coming in begins to cause a low hum in your head. The hum gets progressively louder to the point where you cannot distinguish what people are saying. Suddenly you realize that you are probably missing some important information and you try to break through the hum to collect it. Now you’ve lost track of the first person and begin to panic. You start looking for the first people in order to recollect their information, but you can’t because you’re still collecting from the others. Now every bit of information that breaks through the hum carries the same weight. There
is no way to distinguish what is most important. You try to start over, but you’ve already forgotten much of the first bits you’ve collected. It’s a losing battle and eventually, you give up on that task and berate yourself for failing. Reports like these are common, even though symptoms vary from person to person and fall along a spectrum of severity. ADHD can be broken down into three types: inattentive, hyperactive/impulsive, or combined.9 The symptoms are generally rated as mild, moderate, or severe.10 But, even the mildest of symptoms persist over long periods of time and result in at least some functional impairment. Although ADHD can have an upside, the truth is that an ADHD diagnosis usually only comes after the negative side of ADHD has finally broken the proverbial camel’s back. As to the physical part, ADHD brain structures appear to differ from non-ADHD brains. Some of these differences can be chalked up to ADHD’s “maturational lag,” where differences from similarly-aged peers fade as ADHD brains “catch up” over time. Other differences, however, persist across age groups and result in what one researcher called the “unique architecture” of the ADHD brain.11 Who has ADHD? Currently, more children than adults are diagnosed with ADHD. This makes sense because ADHD has traditionally been viewed as a childhood condition. Between 3% and 7% of school-age children are estimated to have ADHD.12 Many children outgrow their most serious ADHD symptoms, but others experience ADHD into adulthood. For adults, the most commonly recited estimate is that 2.5% of adults have a current ADHD diagnosis, but likely many more unknowingly meet the diagnostic criteria of attention dysfunction.13 In recent years, a growing number of adults who were not diagnosed during childhood are seeking help with issues they had not previously understood to be ADHD. Between 2003 and 2015, the percentage of privately-insured U.S. women ages 15 to 44 who filled a prescription for an ADHD medication increased nearly 350%.14 One common ADHD experience is for a parent who is seeking help for a child to eventually realize that they themselves have had ADHD symptoms for years.15 Still, despite these rising numbers, ADHD may be “under diagnosed” among adults and particularly among adults who were able to mask their childhood symptoms or avoid a substantial disruption in their education and early professional years.16 Thus, it is entirely possible that only one out of every three adults who has ADHD is diagnosed.17 That means countless adults, including our fellow attorneys, clients, witnesses, jurors, and judges, may have ADHD symptoms serious enough to significantly interfere with their professional and social lives— but they aren’t seeking treatment or learning how to manage the symptoms because they have never been given a name for
their experience.18 The numbers are even more striking for lawyers. According to a study commissioned by the Hazelton Betty Ford Foundation and the American Bar Association’s Commission on Lawyer Assistance Programs, 12.5% of U.S. attorneys self-reported ADHD symptoms during their legal career.19 This number may be subject to challenge (self-reporting symptoms is particularly problematic for ADHD brains20) but, at the very least, it indicates that a large part of the bar struggles with meeting the expectations of the legal profession. It is possible that people with ADHD are drawn to the legal profession because they excel at certain parts of the job—creative problem-solving, a love of logical connections, and an ability to thrive in a “highstimulation environment.”21 The Stigma of ADHD ADHD still suffers from stigma and misunderstandings. Even the partners or family members of people with ADHD underestimate the toll that ADHD takes on their loved ones.22 In 2002, an international group of researchers and medical professionals addressed the pervasive myth that ADHD did not exist, or it merely existed in children, “a conflict between today’s Huckleberry Finns and their caregivers.”23 They put it pretty starkly—”ADHD is not a benign disorder. For those it afflicts, ADHD can cause devastating problems.”24 People with ADHD are far more likely to drop out of school (32–40%), to have dif-
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ficulty making and maintaining friendships (50–70%), and to “underperform” professionally (70–80%).25 ADHD is also considered a significant risk factor for alcohol and drug abuse.26 For adults with ADHD, there is a real concern that ADHD behaviors may be perceived as “childish,” “socially inappropriate,” or the result of a conscious choice or lack of concern, not a brain difference.27 As lawyers, there is an added concern about public perception and professionalism. When judges dismiss clients’ struggles with ADHD as a “handy excuse,” attorneys are understandably reluctant to share their own ADHD symptoms.28 Happily, though, there is evidence that the growing public understanding of ADHD is reducing the social stigma over time.29 The Superpower of ADHD Although there are many studies and reports dedicated to the downside of ADHD, there can be a substantial upside as well. More attention is being paid to the benefits of ADHD and the skills that ADHD brains bring to the table. One ADHD scholar put it perfectly—”Crime is often impulse that went wrong. Creativity is often impulse that went right.”30 And people with ADHD are “exceptionally good” at the various types of creative thinking, including finding new solutions to everyday problems and brainstorming.31 ADHD brains also have a marked ability to hyper-focus. Although this may seem at odds with a diagnosis whose first two words are “attention deficit,” ADHD is not a complete inability to focus. Instead, it is an inability to focus “appropriately” and to conform with societal norms and expectations; it is a “maldistribution” of attention.32 This “maldistribution” can just as easily result in hours of work deep “in the zone” in an “immersive state” of creativity and production.33 ADHD can, thus, actually be a “leg up” for projects that require sustained focus and energy34 —the result is that “ADHD brains tend to shine in 26
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times of emergency.”35 And then there are the coping mechanisms. Many people with ADHD develop coping mechanisms that allow them to avoid detection as being outside the normal levels of distraction or behavior. One such coping mechanism is the ability to understand difficult concepts on the fly—ADHD students with high IQs often blend in with their peers by developing an “uncanny ability to figure things out on their own such that no one notices they weren’t paying attention.”36 Similarly, they report being able to grasp the key aspects and meaning of a text with only a cursory or partial reading.37 Practicing Law with ADHD Just because you did well in law school doesn’t mean that you are immune from ADHD.38 According to the 2016 ABA report on mental health, 12.5% of the U.S. attorneys surveyed listed ADHD as a “concern.”39 There is good reason for such “concern”—the downside of practicing law with ADHD is serious. As one writer put it, for lawyers, “ADHD seldom travels alone. It typically co-occurs with other mental health issues, like problematic drinking, depression, and anxiety, and certainly is related to high stress and burnout.”40 One particularly difficult symptom of ADHD for attorneys is “time blindness.” Both adults and children with ADHD have marked difficulty in estimating the passage of time.41 Many law partners of attorneys with ADHD can confirm that, while none of us likes keeping time, attorneys with ADHD struggle more than most with the mechanics of estimating what five minutes versus fifty minutes actually feels like. On the other hand, the courtroom is one place where the strengths of an ADHD brain can come in handy.42 Lawyers with ADHD report that they easily engage in creative “outside the box” thinking. Trial lawyers with ADHD have an advantage in their ability to simultaneously perceive multiple people in the courtroom while also remaining on
their feet, talking with a jury or witness, and brainstorming how to solve the next problem around the bend: Trial work is a performing art. It has probably happened many times in courtrooms that a criminal defendant whose ADD got him into trouble has sat next to a defense lawyer whose ADD-enhanced trial skills might help get the client acquitted.43 With the increasing understanding of adult ADHD and knowledge that even high-performing professionals struggle with organization, time management, and task direction, bar associations and lawyers have begun paying more attention to lawyers impacted by ADHD. A growing community of attorneys are speaking and writing about their experience with ADHD—there is even a podcast by Ohio attorney Michael Liner, cleverly titled JDHD, that is devoted to the practice of law and ADHD.44 Several blogs and articles list tips and tricks for ADHD attorneys to better manage their overwhelming lists of tasks and improve time tracking (the bane of many ADHD lawyers). Although it is not aimed solely at attorneys, the magazine ADDitude regularly features articles specifically aimed at attorneys with ADHD. Another recent example closer to home was a March 2018 article in Texas Lawyer listing several project management pointers for ADHD attorneys.45 These resources are often helpful but, as one writer acknowledged, “no organizational tool will be worthwhile if the person can’t remember to use it and use it regularly.”46 Perhaps even more significant are efforts by various state bar associations to acknowledge ADHD attorneys and the challenges they face. Several state bar associations and Lawyer Assistance Programs have created groups for ADHD lawyers to mentor each other and, in one group’s words, become aware of the “gift” of ADHD.47 The development of similar programs across Texas in the coming years would be a welcome addi-
tion to the current initiatives for mental health and professionalism. While ADHD attorneys could no doubt benefit from resources sharing new tips or organizational hacks, the most important things we can do to improve the practice of law by and for attorneys with ADHD is to reduce the stigma surrounding brain differences and to develop a more robust understanding of how neurodivergent attorneys contribute to the legal community as a whole. Rachel H. Stinson practices civil appellate law at Wright Close & Barger, LLP in Houston, Texas. You can usually find her on Twitter (@PlainError) or at a local community garden. Endnotes
1. Casey Dixon, Improving the Well-Being of Lawyers with ADHD, 40 PA. LAW. 48 (Nov/ Dec 2018). 2. Klaus W. Lange et al., The History of Attention Deficit Hyperactivity Disorder, ATTENTION DEFICIT & HYPERACTIVITY DISORDERS Dec. 2010, at 241-55. 3. AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (5th ed. 2013) (“DSM-5”). 4. Id. 5. Id.; Rafi Letzter, What It’s Like to Live with ADHD So Severe It Feels Like ‘Brain Fog’, BUSINESS INSIDER MAGAZINE, May 29, 2017, available at https://www.businessinsider. com/what-it-is-like-to-live-with-severe-adhd-2017-3. 6. Markham Heid, I Have ADHD. Here’s What a Week in My Life Is Like, PREVENTION MAGAZINE, May 18, 2017, available at https://www.prevention.com/health/a20458710/ what-adhd-feels-like/. 7. Melissa Orlov, ADHD Adults: “What It Feels Like to Have ADHD,” PSYCHOLOGY TODAY, Nov. 21, 2013, available at https://www.psychologytoday.com/us/blog/may-i-have-yourattention/201311/adhd-adults-what-it-feels-have-adhd. 8. Id. 9. See DSM-5, supra note 3. 10. Id. 11. P. Shaw et al., Attention-Deficit/Hyperactivity Disorder Is Characterized by a Delay in Cortical Maturation, PROCEEDINGS NAT’L ACAD. SCI. USA, Nov. 16, 2007. 12. NAT’L INST. OF MENTAL HEALTH, ATTENTION-DEFICIT/HYPERACTIVITY DISORDER, https://www.nimh.nih.gov/health/topics/attention-deficit-hyperactivity-disorderadhd/index.shtml; see also Martin A. Katzman et al., Adult ADHD and Comorbid Disorders: Clinical Implications of a Dimensional Approach, BMC PSYCHIATRY, Aug. 22, 2017. 13. NAT’L INST. OF MENTAL HEALTH, supra note 15. 14. KN Anderson et al., Attention-Deficit/Hyperactivity Disorder Medication Prescription Claims Among Privately Insured Women Aged 15–44 Years —United States, 2003–2015, MORBIDITY AND MORTALITY WEEKLY REPORT, Jan, 19, 2018. 15. Lynn Phillips & Sandy Maynard, How an ADHD Diagnosis Changed My Life: A Lawyer’s Story, ADDITUDE MAG., Jan. 5, 2018, available at https://www.additudemag.com/lawyerswith-adhd/. 16. TM Chaim et al., Multimodal Magnetic Resonance Imaging Study of Treatment-Naive Adults with Attention-Deficit/Hyperactivity Disorder, PLOS ONE, Oct. 13, 2014. 17. NAT’L INST. OF MENTAL HEALTH, supra note 15. 18. Chaim, supra note 20. 19. Patrick R. Krill et al., The Prevalence of Substance Use and other Mental Health Concerns Among American Attorneys, 10 J. ADDICTION MED. 46 (Jan./Feb. 2016); Linda Albert & Patrick R. Krill, Wellness and the Legal Profession: Implications of the 2016 Landmark Study on the Prevalence of Substance Abuse and Mental Health Concerns among U.S. Attorneys, THE BAR EXAMINER (March 2016). 20. Barbara Franke et al., Live Fast, Die Young? A Review on the Developmental Trajectories of ADHD Across the Lifespan, EUROPEAN NEUROPSYCHOPHARMACOLOGY, Oct.2018 (particularly notable is that “current symptoms of ADHD were under-reported by adults who had ADHD in childhood and over-reported by adults who did not have ADHD in childhood.”). 21. Dixon, supra note 1. 22. Orlov, supra note 9. 23. R. A. Barkley, International Consensus Statement on ADHD, CLINICAL CHILD & FAM. PSYCHOL. REV., June 2002. 24. Id. 25. Id. 26. Franke, supra note 24 (studies showing between 9 and 40% increase in risk). 27. Anna K. Mueller et al., Stigma in Attention Deficit Hyperactivity Disorder, ATTENTION DEFICIT & HYPERACTIVITY DISORDERS, July 8, 2012, at 101-14. 28. Kristen L. Aggeler, Is ADHD a “Handy Excuse”? Remedying Judicial Bias Against ADHD, 68 UMKC L. Rev. 459 (Spring 2000). 29. Muller, supra note 31.
30. Richard K. Newman, Jr., Attention Deficit Disorder –ADD aka ADHD, LSAC Learning Disabilities Workshop, Oct. 21, 2011. 31. Holly White, The Creativity of ADHD, SCI. AM., Mar. 5, 2019, available at https://www. scientificamerican.com/article/the-creativity-of-adhd/. 32. Jenara Nerenberg, Hyperfocus: The Other Side of Adult ADHD, CNN HEALTH, July 15, 2016, https://www.cnn.com/2016/07/15/health/adult-adhd-hyperfocus/index.html. 33. Id. 34. Id. 35. The Benefits of ADHD in a Crisis: Hyperfocus, Creativity, Resilience & More, ADDITUDE MAG., April 17, 2020, avaiable at https://www.additudemag.com/benefits-of-adhd-crisis/. 36. Amy Noe Dudas, ADD Diagnosis for a High-Functioning Lawyer Adds Up,IND. LAW., Oct. 2019, available at https://www.theindianalawyer.com/articles/noe-dudas-add-diagnosisfor-a-high-functioning-lawyer-adds-up. 37. Andre Palmini, Professionally Successful Adults with Attention-Deficit/Hyperactivity Disorder (ADHD): Compensation Strategies and Subjective Effects of Pharmacological Treatment, DEMENT NEUROPSYCHOL.,Jan-Mar 2008. 38. Jennifer Alvey, Suspect ADD? A Few Insights for Attorneys, Leaving the Law (Sept. 28, 2009), https://leavinglaw.wordpress.com/2009/09/28/suspect-add-a-few-insights-for-attorneys/ 39. Krill et al, supra note 23. 40. Casey Dixon, Lawyers with ADHD: The Astonishing Number We Are Ignoring from the Landmark ABA Study (June 11, 2018), https://www.dixonlifecoaching.com/post/2018/06/11/ lawyers-with-adhd-the-astonishing-number-we-are-ignoring-from-the-landmarkaba-study-and 41. Radek Ptacek et al., Clinical Implications of the Perception of Time in Attention Deficit Hyperactivity Disorder (ADHD): A Review, 25 MED. SCI. MONITOR 3918 (May, 26 2019). 42. Newman, supra note 34. 43. Id. 44. See JDHD for Lawyers with ADHD, https://thejdhd.com/ (last visited May 20, 2020). 45. Stefanie Klein, Project Management: Understanding Attention Deficit Hyperactivity Disorder and Tools to Stay on Track, 81 TEX. B. J. 158 (2018). 46. Lisa Mazzie, ADHD and Keeping Time in Practice, Marquette University Law School Faculty Blog, April 29, 2013, https://law.marquette.edu/facultyblog/2013/04/adhd-and-keepin-timein-practice/. 47. Minnesota’s Lawyers Concerned for Lawyers “provides free, confidential peer and professional assistance to Minnesota lawyers, judges, law students, and their immediate family members on any issue that causes stress or distress,” and boasts the first ADD/ADHD support group in the country specifically for lawyers, judges and law students. See LCL Groups, http://www.mnlcl.org/services/groups/adhd/ (last visited May 20, 2020).
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By Anietie Akpan and Mahsa Tajipour
Canary in the Coal Mine:
How Lawyer Distress Has Signaled the Need for Wellness Reform in Our Profession
A
ccounts of lawyers’ struggles with substance and alcohol abuse, depression, self-harm, and even suicide have sadly become inextricably intertwined with how our profession is practiced and, even more sadly, has grown
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more common with the rising of new generations of practicing attorneys. These indicators of psychological distress have saturated our profession for years; as the rates of these indicators have remained sustained (indicators that have also seeped into law schools at an escalating level1), it is evident that our profession does not have a mental health problem. Our profession is in a mental health crisis. In order to mitigate this crisis, we must first acknowledge that the nature of our profession often dehumanizes its workforce: lawyers are perceived as a form of human capital whose primary function is to be a critical ingredient in the competitive success of their respective law firms and companies. There is also a unique duality to our profession that makes the grim data of the mental well-being of lawyers especially concerning: not only are lawyers entrusted to protect their clients’ interests, but also to serve as bastions in protecting the rule of law itself. Lawyers’ diminished mental health significantly undermines our ability to fulfill these commitments. To be candid, lawyer wellness has been reduced to an economic commodity used to propel the success of law firms forward (as unhappy and unhealthy lawyers lead to diminished production and performance2). But it is the humanitarian interest in lawyer wellness that this article seeks to emphasize. Although it is universally understood that to be a good lawyer, one has to be a healthy lawyer3, the dialogue as to what “healthy” looks like is incredibly nuanced. This discussion must include an honest analysis of the conditions that contribute to mental health attrition in our profession, as well as examining past efforts to address this delicate and difficult matter. Early Responses to Lawyer Distress Much of the commentary and research on lawyer well-being dates back to the 1980s and 1990s. In 1985, the American Bar Association (“ABA”) first called at-
tions (i.e., whether an individual needed tention to chemical dependency within a drink in the morning “to function”) the profession by adopting a series of regarding alcohol and drug abuse, deresolutions urging local bar groups to pression, anxiety, and stress and their create alcohol recovery peer support prorelation to age and experience level (i.e., grams.4 In 1988, the ABA’s Commission junior associate v. partner).8 on Impaired Attorneys laid out a fivepronged plan to further address alcohol Published in the Journal of Addiction and substance abuse within the profesMedicine, the Hazelden study researchers sion focused on mental health educareported that 21% of licensed employed tion, developing lawyer assistance proattorneys struggle with alcoholism, 28% grams nationwide, and collecting state with depression, and 19% with anxi5 rules and opinions on confidentiality. ety.9 The study also found that younger lawyers in their first ten years of pracOn the heels of a 1990s study conducted tice exhibited the highest by Johns Hopkins Medical rates of these problems.10 School (which found that lawyers had the highest rate This introduced a new of clinical depression of all layer to the lawyer wellThe younger being conversation as it professions surveyed6), the ABA changed the name of generation introduced data on newly licensed attorneys for the the Commission on Imunderstands that first time; this finding paired Attorneys to the maintaining their also reversed previous Commission on Lawyer Assistance Programs and exoverall well-being research that suggested rates of substance depenpanded its mandate of ser7 leads to career dency increased as indivices. As a result of these championing efforts to adlongevity, which has viduals spent more time in the legal profession.11 dress the lawyer well-being led to an increase in crisis over the years, lawyer The consequences of assistance programs went attorney impairment – the demand for wellfrom existing in only four as extensively analyzed ness benefits in law in the Hazelden Study– state bar associations in the 1980s to all 50 states today, firms and other demonstrated the need including programs, comfor supplementary asorganizations.” mittees, and resources comsistance by legal profesmitted to wellness and qualsional groups. Although ity of life issues offered by our very own bar associations have provided a wide Houston Bar Association. These efforts breadth of lawyer wellness reform literahave been highly-lauded, but the psyture –by way of educational programs, chotherapist community and ABA have health initiatives, and so forth– we concontinued to call for additional research tend that structural changes to the legal about the extent of mental well-being in profession will make the most tangible the legal profession. and paramount impact. Studies have As a result, in 2016 the Hazelden shown that attorneys routinely conceal Betty Ford Foundation, in conjunction their mental health struggles12 and are with the ABA’s Commission on Lawyer therefore less likely to voluntarily take Assistance Programs, conducted the advantage of the wellness resources ofmost comprehensive study to date on fered by their respective bar groups. It the expansive health concerns in the leis for this reason that changes must be gal profession. Almost 13,000 attorneys made at the institutional level –reformfrom 19 states were polled on a series of ing practice management and operations objective questions (i.e., how often an of law firms– to address the institutional individual drinks) and subjective quesproblem of mental health attrition in our
‘‘
profession. The most efficient and viable way to achieve this goal is for law offices to create and tailor mental health and wellness packages as part of their employee benefits. Anatomy of a Wellness Package Many newer licensed attorneys have witnessed firsthand the negative effects of the profession in more seasoned attorneys and do not wish to follow in the same footsteps. The younger generation understands that maintaining their overall well-being leads to career longevity, which has led to an increase in the demand for wellness benefits in law firms and other organizations. According to the Society for Human Resource Management, 2017 Trends and Forecasting of Employee Benefits, companies are responding to this mindset, and nearly one-quarter of organizations have recently increased their wellness benefit offerings.13 These types of packages will become essential for law firm recruitment and retention purposes as this trend continues. With any budget, large or small, there are many perks, or soft benefits, an employer can offer its employees to help promote overall wellness. Creativity is key here. It is important to remember that while an employer can offer different benefits packages to different employees, you cannot do so in a way that discriminates by gender, race, age or other considerations. You can, however, provide personalized packages, as employees become more resistant to the one hat fits all approach. One of the more emergent factors an employer must consider when crafting these packages is the inter-generational aspect of the legal workspace. The type of wellness benefits offered will vary to reflect the different needs of different generational groups. Generational differences in how wellness is viewed is also paramount to creating these packages: while younger attorneys may be more receptive to resources affiliated with “mental wellness,” an employer thehoustonlawyer.com
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will need to create benefits that are presented in a way to neutralize the stigmatization of mental health that might be perceived by some in older generations. For example, onsite complimentary health assessments and vaccinations is a type of benefit that might be attractive to Baby Boomers (born between 1946-1964) entering a period where physical health concerns are arising. Online platforms that provide affordable counseling and healthcare visits through telecommunication might be attractive to the more tech savvy Millennials (born between 1981-1996). Onsite wellness spaces are an emerging trend, which allow an employee personal time to decompress or meditate. This trend has already appeared in law schools and likely would be most popular with Generation Z (born between 1997-present), who are starting to enter the workforce. Providing personal or life coaching resources might be attractive to Generation X (born between 1965-1980), who might need additional assistance navigating family responsibilities as many are taking care of both children and aging parents.14 Other soft benefits an employer can offer include mindfulness and stress management workshops, discounted gym memberships, healthy catered lunches or snacks, and ergonomic furniture such as standing work desks. Lifestyle spending accounts are another emerging trend that allows employers to make taxable contributions to a special account that its employees may use on specific types of products and services. This is something very affordable that would appeal to all generations. For example, an allowance of $1,500 would be made per year per employee, and the employee could use this amount for hiring a life coach, fitness classes, or sports equipment. This way the employee can use it on the specific benefits that employee needs or desires.15 Shellie Henderson, a human resources manager for an AmLaw 100 law firm, provided insight into the wellness benefits provided at her firm. Her firm offers 30
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certified mental health experts on site in addition to traditional outside resources through their employee assistance program. The firm also has a premium subscription to the Calm App and through it holds daily meditation meetings. These daily meditation meetings are quite popular with the partners and associates and provide a reset during the day. The firm also has a landing page where resources and information are stored on general health and wellness, ergonomics and exercise, and stress management. It is paramount that attorneys at midand small-size firms (as well as solo practitioners) are also included in the discourse of wellness benefits. Although these workplace models may not necessarily have the funds to provide extensive resources, “BigLaw” wellness benefits can easily be scaled down to meet employee needs, by, for example, investing in an employee assistance program or creating a landing page of resources as above-described. Smaller offices also have the unique opportunity to promote wellness by way of cultivating social outings that are more community- and interrelationship-based (i.e., volunteering with Urban Harvest, hosting a “family fun day”). These types of benefits require minimal funding up front; furthermore, the financial gain of having healthy employees who feel that their employer is willing to invest in their wellbeing will certainly make up for upfront costs. Offering attractive wellness packages not only yields high employee retention, but, as mentioned earlier in this article, a generous benefits package can also be a powerful tool for employee recruitment. With a myriad of benefits lagging in the legal profession (work-life, paid leave, and retirement savings benefits, just to name a few), prospective employees during the interview and recruitment process seek out companies or firms which offer the most comprehensive employee packages. Studies have shown that these packages should include wellness advantages; work-from-home options, fit-
ness classes, and team bonding opportunities are regarded as the most desirable types of employee benefits.16 Equally important to prospective employees is a company’s work-culture. A poor work-culture can guarantee difficulty in recruitment and retention for the organization, as nobody wants to be perceived as only a workhorse or billing machine.17 Conversely, companies that utilize work-culture as means to cultivate a corporate ecosystem of wellness and support –even by way of simply promoting congeniality among co-workers or establishing a mentoring initiative between senior and junior attorneys– are more likely to attract top talent who know that they will be supported at both an infrastructural and individual level. Workplace wellness has also been substantially impacted by the COVID-19 pandemic, which has changed everything about how we work, especially the kind of support employees need. As law offices and companies begin re-opening, it is critical for employers to consider how COVID-19 will impact corporate wellness strategy to meet both present and future needs. Remote resources and virtual programs for example, such as Zoom and Skype Business, may not be seen as obvious examples of self-care on their face. These platforms, however, provide attorneys with the flexibility to telework, a working practice with a strong pathology of wellness effects such as improvement in employee productivity, creativity, and morale.18 And for the attorney with compromised health issues or who may be advanced in age, the flexibility to work from home will be essential if there is a future outbreak. Conclusion The relationship between lawyer wellbeing and legal practice is undoubtedly symbiotic: the health of lawyers reflects the health of the profession, and vice versa. The purpose of this article is not to villainize the legal profession, but rather to propose a re-envisioned approach to examining the values of the legal profes-
sion. The nature of our work requires us to invest in the needs of others –our employers, our clients, the court. In order to not only meet our obligations to these individuals, but to also find joy in doing the same, the ideals of our profession must be undergirded with self-care. We do not purport to have identified all triggers of emotional and mental distress in law practice. But we do contend that constructing and enforcing new wellness strategies could certainly yield a seismic cultural change. Implementing these structural strategies, coupled with a bit of hope, could perhaps bring the mental health crisis in our profession to an end once and for all. Mahsa Tajipour is a partner at Daw & Ray, LLP and an advocate for change within the profession. Anietie Akpan is in-house counsel for the Metropolitan Transit Authority of Harris County (METRO) and an associate editor for The Houston Lawyer. The authors would like to thank Justine Fanarof (Partner at Fanarof Law) and Shellie Henderson for their pivotal guidance regarding the subject matter discussed in this article. Endnotes
1. In 2016, the American Bar Associated sponsored a second study – the Survey of Law Student Well-Being – to collect data on alcohol, drug, and mental health issues exhibited among law students. Of the 3,300 students who participated in the study, “17%... screened positive for depression, 37% screened positive for anxiety, 27% screened positive for an eating disorder, 9% indicated that they had been engaging in selfharm... and 6% reported seriously thinking about committing suicide[.]” Jerome M. Organ et al., Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns, 66 J. LEGAL EDUC. 116, 136–39 (2016). Other studies have demonstrated narrower focuses specifically on the experiences of both law students of color and lowincome law students who were more likely to experience mental health challenges, but less likely to seek treatment than their white or higher-income counterparts. JESSIE AGATSTEIN ET AL., YALE LAW SCH. MENTAL HEALTH ALL., FALLING THROUGH THE CRACKS: A REPORT ON MENTAL HEALTH AT YALE LAW SCHOOL 4, 17–18 (2014), https:// law.yale.edu/sites/default/files/area/department/studentaffairs/document/falling_through_the_cracks. pdf. See generally, Kennon M. Sheldon & Lawrence S. Krieger, Does Legal Education Have Undermining Effects on Law Students? Evaluating Changes in Motivation, Values, and Well-Being, 22 BEHAV. SCI. & L.
261 (2004) (examining how legal education produces psychological distress among law students). 2. Peter H. Huang & Rick Swedloff, Authentic Happiness & Meaning at Law Firms, 58 SYRACUSE L. REV. 335, 336 (2008). 3. Bree Buchanan & James C. Coyle, Report from the National Task Force on Lawyer Well-Being, AM. BAR ASS’N, (Nov. 9, 2018), https://www.americanbar.org/groups/lawyer_assistance/task_force_ report/. 4. Nancy Blodgett, Substance Abuse: New Commission Will Aid Impaired Lawyers, AM. BAR ASS’N J., Oct. 1, 1988 at 144. 5. Myer J. Cohen, The Impaired Lawyer, N.C. LAW. ASSISTANCE PROGRAM (July 7, 2014), https://www. nclap.org/the-impaired-lawyer/. 6. William W. Eaton et al., Occupations and the Prevalence of Major Depressive Disorder, 32 J. OCCUPATIONAL MED. 1079 (1990). 7. Cohen, supra note 5. The name was also changed due to stigmatization the former name may have implied. 8. Link Christian, Confronting Addiction in the Law Firm: A Recent Study Reveals the Extent of Substance Abuse and Mental Health Concerns Within the Legal Profession. Here’s What You Can Do About It, 36 No. 3 LEGAL MGMT. 23, 24–25 (2017). 9. Patrick R. Krill et al., The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 J. OF ADDICTION MED. 46 (2016); see Press Release, ABA, Hazelden Betty Ford Foundation Releases First National Study on Attorney Substance Abuse, Mental Health Concerns (Feb. 3, 2016) (on file with authors). 10. Id.; Christian, supra note 8. 11. Krill, supra note 9, at 47–49. 12. Christian, supra note 8. 13. 2017 EMPLOYEE BENEFITS: REMAINING COMPETITIVE IN A CHALLENGING TALENT MARKETPLACE, SOC’Y FOR HUMAN RES. MGMT., 12, 25 (2017), available at www.shrm.org/hr-today/ trends-and-forecasting /research-and-surveys/ Documents/2017%20Employee%20Benefits%20 Report.pdf. 14. See Michael Dimock, Defining Generations: Where Millennials End and Generation Z Begins, PEW RES. CTR. (Jan. 17, 2019), https://www.pewresearch.org/ fact-tank/2019/01/17/where-millennials-end-andgeneration-z-begins/ (outlining birth years of generational groups). 15. E.g., Lifestyle Spending Account, ADI BENEFITS, http://www.adibenefits.ca/group-benefits-employersolutions/lifestyle-spending-accounts-from-adi-benefits/ (last visited May 4, 2020). 16. Kerry Jones, The Most Desirable Employee Benefits, HARV. BUS. REV. (Feb. 15, 2017), https://hbr. org/2017/02/the-most-desirable-employee-benefits. 17. A company’s work culture, it should be noted, cannot be defined by a webpage or recruitment brochure. Prospective employees, especially those recently entering the workforce, seek out authenticity. A recruit will not accept a job without checking reviews, no more than they would buy a product without checking them. This means, they will get feedback directly from current and former employees, whether that’s through word of mouth, online reviews, message boards, or some other means that the employer does not control. 18. Several studies have found that there is empirical evidence favoring a positive association between telework and worker health. See Zara Greenbaum, The Future of Remote Work, AM. PSYCHOL. ASS’N, Oct. 1, 2019, https://www.apa.org/monitor/2019/10/ cover-remote-work, for a non-exhaustive list of scientific journals discussing the health advantages of teleworking.
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By Tara Shockley
HBA Wellness Initiative Guides Members to Healthier Practice and Lifestyle
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Screen shot of top of HBA Wellness Page.
t is hard to miss the articles and books pointing out the toll that stress and anxiety can take on members of the legal profession, but it can be easy to think they only apply to others. The COVID-19 pandemic has added new challenges to staying well while practicing law, whether adjusting to working remotely, worrying about staff or compensation cuts, or empathizing with the experiences of clients in dire straits. Maintaining personal health and well-being is more important than ever. At the beginning of the 2019-2020 bar year, Houston Bar Association (“HBA”) President Benny Agosto, Jr. made the wellness and well-being of lawyers a major focus. “A crucial mission of the HBA is supporting the members of our profession so they can continue to be effective leaders and advocates for their clients,” Agosto said. 32
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“We are committed to helping members stay healthy in mind, body and spirit.” Recognizing that wellness should be a regular part of lawyers’ continuing education, Agosto tapped the HBA’s Continuing Legal Education (“CLE”) Committee to develop programming. CLE Committee CoChair Stacey E. Burke said: “I have personally struggled with the stress of working in the legal field and have also sadly watched incredible colleagues take their own lives as a result of that stress. As CLE Co-Chairs this year, Rick Anderson and I fully supported President Agosto’s important pillars for our work, one of which was a more hands-on approach to understanding and improving the full picture of health for everyone in our profession.” The HBA Wellness Initiative kicked off with a series of four videos guiding members through stretching and relaxation ex-
ercises that can be done in the office (virtual offices too). The CLE e-Bulletin included a link to a new video each week, and all of the videos are now posted on the HBA website. The CLE e-Bulletin continues to include a health and wellness highlight each week. In the fall, the HBA offered an innovative four-part Yoga+CLE series, “The Mindful Law Firm,” conducted by licensed attorney and yoga instructor, Justine Fanarof. The first two sessions were held in the conference center at Heritage Plaza, while the last two were held at the Hines Center for Spirituality and Prayer. In February, the HBA website launched its Wellness webpage at hba.org/wellness, which provides members with carefullycrated videos, articles, apps, discounts on services, weekly tips, and links to important resources like the Texas Lawyers Assistance Program and Lawyers Concerned for Lawyers. The site will highlight the successful efforts of Houston law offices inspiring wellness as a part of their office culture. HBA’s Wellness programming will continue to evolve, providing information and resources to not only help members get healthy, but to help them maintain healthy lifestyles and workplaces. In celebration of National Lawyer Wellbeing Week, May 4-8, the HBA offered “Introduction to Meditation,” a three-part webinar series conducted by attorney and mediator Dulcie Wink. The webinars were free to HBA members and will be posted on the HBA’s Wellness webpage. As a reminder, learning about the latest legal updates should also include maintaining a healthier, more mindful practice; therefore, every live CLE seminar in 20192020 offered attendees a stress ball with the HBA logo, courtesy of Benny Agosto. “We want to help you be the healthiest you can be, in and out of the office,” he said. “The HBA is here for you.” Tara Shockley is associate executive director of the Houston Bar Association and serves as managing editor of The Houston Lawyer. Visit the HBA’s wellness page at hba.org/wellness.
Houston Lawyers: How Do You Handle Stress?
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he Houston Lawyer asked attorneys in different practice areas at different levels of experience how they handle the stressors that come along with a legal practice. Our goal was to give readers a cross-section of thoughts and experiences in the hopes that each reader will find something that resonates.
Andrew Dao
Kane Russell Coleman Logan PC Licensed 2012 have been a civil litigator for eight years, and while firms expect hard work and long hours, I always tried to remember litigation was my choice. When there is an opportunity, I prove my value, embrace responsibilities, and ask for more. I’ve also learned to work smart and efficiently. You can be in the office until 11p.m. at night, but if you are not working efficiently, then you are not benefiting yourself or your clients. To work efficiently, I’ve also learned I must practice mental wellness. Outside of work, I make time for my mental health. It may be spending time with my family, going to a performing arts show, reading, or just relaxing. Whatever gives peace, that is a priority.
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Juan Garcia
Johnson Garcia LLP Licensed 2005 ork-life balance? I don’t really think of it that way. I focus on what needs to get done and just make it happen. I have a commitment to my health, so I exercise just about every day. I have a commitment to my community, so I volunteer a lot of my time to the Houston Livestock Show and Rodeo as the Chairman of the Go Tejano Committee and to the Hispanic Bar Association of Houston as a past president and current board member. I have a commitment to my clients who have hired me after they have been injured, so I work hard to make sure I have the best staff at my law firm and that we are all striving to get every dollar our clients deserve. And most importantly, I have a commitment to my family, so I spend as much time with them as possible. So, I don’t really look at it as a balance—I just find the time to do what needs to be done.
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Laura Gleen
Elizabeth Furlow
Baker Botts L.L.P. Licensed 2018 his year I discovered bullet journaling—a method of rapid-logging tasks, dates, habits, and ideas in a single paper notebook—as a system to keep track of and prioritize work assignments and personal tasks and activities. I find that using a bullet journal helps me more easily visualize my days, weeks, and months, and allows me to view my work life and my personal life as a cohesive, rather than disjointed, whole.
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Buck Keenan LLP Licensed 2013 ake friends at work. Not just people with whom you’re polite, but real ride-or-die friends. It makes the long hours more tolerable, but it also helps to know someone has your back when children/parents/pets must come first. Have a friend who will stay late to file something so you can get to a recital. Be the friend who picks up a weekend research project because a colleague’s college roommate is in town. Be kind to opposing counsel and co-counsel. Always agree to nonabusive requests for extensions and forgive missed deadlines and minor mistakes when doing so won’t harm your client. Be gracious and show gratitude to staff. Don’t keep track of favors
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you do, always keep track of favors you owe. While some of this sounds like lot of effort, and extra hours when you feel you have none to spare, I assure you that the more work friends you have, and the more compassionate you are in your practice, the more able you will be to make time for family and friends when it really matters.
I can. I diffuse a lot of stress by starting the day with physical activity: cardio, weights, and yoga. I am missing the most lifeaffirming part of my fitness routine during these quarantined days: spin class with my friends, great friends who keep me grounded. Ultimately, the best thing for my wellness is to cook a healthy dinner and have a quiet night at home with my husband and our two spaniels, Henry and Arthur.
Cleve D. Glenn
Frost Brown Todd Licensed 2007 aw is my second career. When things get tough, I remind myself that the challenges of practicing law pale in comparison to the satisfaction that comes with having chosen a career I am passionate about. There are a few key practices I use to manage stress. First, each day begins and ends with quiet time, which involves prayer and Bible reading. In my personal development plan, I refer to this practice as book ending the day. I also exercise 4-5 days a week and maintain a balanced diet. Finally, spending time with my wife and kids, especially my six-year-old son, is very fulfilling and reenergizes me. I only have a finite amount of time with my family so when I am in their presence, I am intent on being there both physically and mentally.
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The Honorable Beau Miller
190th Civil District Court Licensed 2001 racticing law, and most especially now that I am a sitting judge, I regularly meet fascinating people from every walk of life, but whether we meet in the courthouse or the virtual courtroom, they are likely to be in the middle of a stressful situation. For me, wellness starts with a great team. We have an extraordinary staff at the 190th who are motivated and focused on our common goal, and working with them and getting to know them is inspiring. I also find wellness in relationships with my fellow judges, and seeking their experienced advice and their camaraderie goes a long way to creating a balanced workplace. To do my best for all litigants, lawyers, and for the law, I feel it is my duty to keep the court and its processes as efficient, effective, and stress-free as possible and to do that, I start with living a healthy lifestyle myself. Finally, wellness extends outside of the courthouse. I try to stay as fit as
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The Honorable Lauren Reeder
234th Civil District Court Licensed 2009 oundaries are important. In order to thrive in a stressful environment, insist on boundaries without compromising work ethic. That will look different for everyone. It could mean turning your phone off for dinnertime, or overnight. It may mean insisting on leaving the office to make an exercise class. It could be committing to talk about something other than work with your friends or significant other at happy hour. The work will always be there when you return; and, if youâ&#x20AC;&#x2122;re good at what you do, you will still be needed to do it. In the meantime, respect yourself and protect yourself by being intentional in your limits.
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Diane St. Yves
Law Office of Diane St. Yves Licensed 2007 or many years, I was a single mother who went to school and worked full time. I always had that feeling that somewhere down the road, I would have more time. But still today, it seems there is little time. I have come to realize that no matter what our current normal in life, the idea of â&#x20AC;&#x153;free timeâ&#x20AC;? is elusive for most attorneys. Balancing work/life is a challenge. As a single, family lawyer, now accountable only to my animals, I set boundaries with clients and opposing counsel. I do not work on the weekends unless necessary. I have never worked all weekend and then found Monday was easier. In my office, we rarely work past 5 p.m., and while we are generally available in the evenings, it is not required. Staying active with my family, children and grandchildren, taking care of my physical and emotional health and being around good friends gives me peace and serenity. Staying grateful for who I am and what I have makes it easier to enjoy my profession and enjoy time away.
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Melissa Vest
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Baker Donelson, Licensed 2018 he year I started law school, my children ranged in age from 7 to 20. To help give me more time with family and for work, I decided to allow others to perform household tasks. Iâ&#x20AC;&#x2122;ll spend more for housekeepers who will also do laundry, use pick-up and delivery of dry cleaning, and use grocery delivery so that I have more time to divide among my family and work. Also, when important family or personal events are coming up, I make sure the attorneys for which I work know well in advance I am going to be out, and I plan accordingly. Sometimes this requires me to start projects earlier and to work harder.
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Presenting the 2019-2020 HBA President’s Awards
2019-2020 HBA President Benny Agosto, Jr. recognized outstanding leadership in the HBA, the legal profession and the community with President’s Awards. Here are this year’s recipients. Justice Ruby Kless Sondock Award Established by HBA President Benny Agosto, Jr. in 2019, the Justice Ruby Kless Sondock Award is presented by the HBA to a woman lawyer or judge for a record of exceptional achievement and leadership in the law. Justice Sondock, its namesake, was the first woman to serve as a district court judge in Harris County and the first woman to serve on the Texas Supreme Court, among many other honors during her long, and continuing, career. This year, the HBA is proud to recognize two outstanding women. Lynne Liberato Lynne Liberato, a partner in the appellate practice section at Haynes and Boone LLP, was the first woman to serve as president of the Houston Bar Association in 1993-94 and the third of six female presidents of the State Bar of Texas. She is the recipient of the Houston Bar Association Auxiliary’s Leon Jaworski Award for public service; the Karen H. Susman Award for Exceptional Commitment to Equality, Justice, Fairness and Community Service; and the Texas Bar Foundation’s Gregory S. Coleman Outstanding Texas Appellate Lawyer Award. Ms. Liberato has been the only practicing lawyer to chair the United Way’s Community Campaign and has also served as chair of its board of trustees. She also chaired the United Way Hurricane Harvey Recovery Task Force and was named United Way’s Volunteer of the Year. She has served as president of the Texas Supreme Court Historical Society and as longtime editor of its journal, a publication she started. She also served as editor in chief of The Houston Lawyer and is well-known as the co-author, with Judge David Hittner, of “Summary Judgments in Texas: State and Federal,” which is published every four years, most recently by South Texas College of Law Houston. Recently, Ms. Liberato was appointed by the State Bar of Texas to serve on the newly established Texas Commission on Judicial Selection, a 15-person commission established by the Texas legislature to study the state’s system of selecting judges and make recommendations to the legislature. Hon. Alice Oliver Parrott Judge Alice Oliver-Parrott has had a long and distinguished career as a trial lawyer, trial judge, Chief Justice of the First Court of Appeals, and now, mediator and arbitrator. Consistently, listed in Best Lawyers in America and as a Texas Monthly “Super Lawyer,” Judge Oliver-Parrott has received numerous awards including the 2019 Lifetime of Excellence in Advocacy Award from the Texas Association of Civil Trial and Appellate Specialists, Outstanding Civil Trial Judge (TACTAS), the Texas Trial Lawyer of the Year by the Texas Chapters 36
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of the American Board of Trial Advocates, MVP of the Houston Chapter of the American Board of Trial Advocates and the Outstanding Young Lawyer of Texas by the State Bar of Texas. As president of the Houston Chapter, and then as president of the Texas Chapter of the American Board of Trial Advocates, she has continuously championed the 7th Amendment and civility among lawyers. Dedicated to trial and appellate advocacy for 45 years, Judge Oliver-Parrott has presented in continuing legal education programs for over 20 law schools, the State Bar of Texas, and numerous professional associations. In 1976, on behalf of the Houston Young Lawyers Association, she co-chaired the first national mock trial competition ever held for law students. She is a contributing author to the book, Texas Business Litigation, published by American Lawyer Media, and is a Life Fellow in the Texas Bar Foundation, the Houston Bar Foundation and in the American Board of Trial Advocates Foundation. Justice Eugene A. Cook Professionalism Award The Justice Eugene A. Cook Professionalism Award is presented by the Houston Bar Association to a lawyer or judge who exemplifies the highest level of professionalism and legal ethics. Justice Cook, the award’s namesake, is a former Justice of the Texas Supreme Court and former HBA President who helped write the Texas Lawyers Creed and is known for his lifetime of exemplary service in the areas of professionalism, legal ethics and legal excellence. This year, the HBA is proud to honor a former president of the HBA and the State Bar of Texas. Kelly Frels Kelly Frels now serves of counsel at Bracewell LLP, a firm where he has practiced since 1970 and where he served in leadership roles that included managing partner. He served as president of the HBA in 1994-95 and as president of the State Bar of Texas in 2004-05. Mr. Frels also served on the State Bar Board of Directors and in leadership roles on numerous State Bar and HBA committees. In 2009-10, he chaired the Texas Center for Legal Ethics. Recognized as one of the premier school law attorneys in the nation, Mr. Frels was president of the National Organization on Legal Problems of Education; and chair of the National and Texas School Board Associations, Councils of School Attorneys. He is the recipient of the Texas Bar Foundation’s Dan Rugeley Price Memorial Award for legal writing and volunteerism; the Houston Bar Association Auxiliary’s Leon Jaworski Award for community service; and the Chairman’s Inaugural
Award for Lifetime Achievement from the National School Boards Association, Council of School Attorneys. He is the namesake for the State Bar of Texas Kelly Frels Lifetime Achievement Award from the School Law Section. Diversity Awards The Diversity Awards were created by 2019-2020 HBA President Benny Agosto, Jr. to recognize outstanding achievements by law offices and individuals in the areas of diversity, inclusion and equality in the legal profession. “Our first recipients of the Diversity Awards set the standard for those who excel in this crucial mission going forward,” Agosto said. Each recipient is honored not only for recent accomplishments in promoting diversity, but for longtime dedication to the principles of equality. Inaugural Recipients of the HBA Diversity Awards
Vinson & Elkins LLP
Travis Torrence Harris County District Attorney’s Office
Benny Agosto with Hon. Kim Ogg, Harris County District Attorney
President’s Awards for Commitees and Sections Continuing Legal Education Stacey Burke of Stacey E. Burke P.C. and Rick Anderson of Roberts Markel Weinberg Butler Hailey, P.C. lead a committee that planned 182.75 hours of MCLE programming this year, including 57 hours of ethics credit, including seminars, lunch and learn programs, and institutes. The committee also worked with other HBA Stacey E. Burke committees, sections, and outside organizations on CLE programs, resulting in the HBA providing 431.5 hours of MCLE credit this year, including 111.5 hours of ethics credit, continuing the history of CLE as the HBA’s top member benefit. When Stay Home orders were issued, the committee quickly pivoted to webinars, to continue to provide innovative programming available Rick Anderson to members 24/7. • The CLE Committee planned and executed the HBA’s first Diversity Summit, held July 11 at South Texas College of Law Houston. The Summit brought together attorneys, judges, and corporate counsel to discuss topics including implicit bias, understanding the gender spectrum, the business side of diversity & inclusion, the importance of allyship, and hiring and retaining a diverse workforce. The CLE committee also created and co-sponsored the first LGBTQ+ Symposium on legal issues for organizations that provide services to the LGBTQ community.
• The CLE Committee also developed and implemented the HBA Wellness Initiative, including live classes and webinars on yoga and meditation, a celebration of National Lawyer Wellness Week, and a Wellness page on the HBA website with videos, articles and other resources. Gender Fairness Committee
Emery Gullickson Richards, Kristin Kruse Lotz and Marissa Marquez Emery Gullickson Richards of Blank Rome LLP, Kristin Kruse Lotz of Daniels & Tredennick, and Marissa Marquez of Legacy Community Health, along with their dedicated committee, planned and executed a year of outstanding programs focusing on women and equality in the legal profession, before the COVID-19 pandemic forced the postponement of two highly anticipated spring programs. In addition, they led a successful campaign that resulted in more than 90 law firms and corporations signing set for to the HBA’s Commitment Statement promoting equity for women in law practices. • In the fall the committee, in partnership with the Houston Chapter of the Federal Bar Association, presented a panel on “The Disappearing Female Lawyer and the Case for Change” on Sept. 17, and on November 7, “Bold and Accomplished–Effective Self-Promotion Tactics.” In February, the committee organized a successful Speed Mentoring Program, where women attorneys in practice less than five years had the opportunity to network with experienced attorneys and judges. • The committee pivoted to virtual programming for the upcoming management briefing on “Practical Tools and Information for Gender Equality in the Legal Profession,” on June 30 and “Business Development for Women: How to Overcome Obstacles and Thrive” on September 29. John J. Eikenburg Law Week Fun Run
Steven Howard, Brooksie Bonvillain Boutet and Alex Kamel Planning for the annual Fun Run is a year-round project, and cochairs Steven Howard of Steven Howard PC, Brooksie Bonvillain Boutet of Shipley Snell Montgomery LLP, and Alex Kamel of Vinson & Elkins LLP led a committee that worked tirelessly to organize and execute a successful event in February. • The committee raised the second highest amount in sponsorships in the 35 years of the Fun Run, bringing in over $77,000. Despite unavoidable increases in expenses, the event resulted in a donation of more than $65,000 to The Center for Pursuit, which promotes the pursuit of choice, growth, and personal independence for adults with thehoustonlawyer.com
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intellectual and developmental disabilities. • The committee increased participation by runners and walkers, restructured the post-race party, added a registration challenge and finisher medals, and utilized a new volunteer portal to increase participation for the event. Lawyers for Literacy
Alvin Adjei Karan Ciotti Chanler Langham Co-chaired by Alvin Adjei of Burritt Adjei PLLC, Karan Ciotti of Ciotti Law, and Chanler Langham of Susman Godfrey LLP, the committee organized a successful book drive and recruited 81 donors to contribute 10,339 books that were distributed to 44 community organizations. • The committee worked with 2019-2020 HBA President Benny Agosto to raise $30,000 to fund a new library for Shearn Elementary School, providing students with books, shelving and furnishings in a welcoming atmosphere that promotes reading and learning. The committee also developed a plan to build four Little Free Libraries in underserved communities. Both of these were new projects that the committee took on in addition to regular programming. • The Committee recruited attorneys to read the book, What Do You Do with a Voice Like That? to over 8,600 young students in 101 schools in eight districts for Constitution Day, teaching them about the contributions of Congresswoman Barbara Jordan. LGBTQ+ Committee
Hon. Kim Ogg, Hon. Daryl Moore and Hon. Steven Kirkland Harris County District Attorney Kim Ogg, Judge Daryl Moore of the 334th District Court and Judge Steven Kirkland of the 333rd District Court were the inaugural co-chairs of the HBA’s first LGBTQ+ Committee. • One of the first tasks of the new committee was to develop a mission statement to guide its purpose and programming: Established in 2019, the mission of the HBA LGBTQ+ Committee is to exemplify professionalism and to improve the practice of law through inclusion of different perspectives and the participation of LGBTQ+ attorneys and allies. • The committee held a successful law student mixer, organized a well-attended networking event for LGBTQ lawyers and allies, sponsored a speed mentoring event, created a Coaching Circles mentorship program, and produced newsletters. The committee also was instrumental in developing, with the HBA CLE Commit38
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tee, the HBA’s first LGBTQ Community Legal Symposium, held at The Montrose Center and attended by representatives of dozens of service organizations. Taunya Painter, The Houston Lawyer Taunya Painter, a principal attorney in Painter Law Firm, served as editor in chief of The Houston Lawyer, guiding a 30-member editorial board in producing six outstanding issues. • The September-October issue focused on employment law, while the NovemberDecember issue examined for the first time Houston’s practice in innovation and technology law. • The January-February issue had an emphasis on personal injury law, while March-April featured developments in law practice management. • This May-June issue is the first to focus on lawyers’ well-being, including articles on dealing with stress in a pandemic, addiction and grievances, secondary traumatic stress, suicide, law firm wellness programs and other topics. Ed Burdzinski, Corporate Counsel Section Chaired by Ed Burdzinski of Clark Hill Strasburger, the HBA Corporate Counsel Section led the way in helping its members through working remotely during the COVID-19 pandemic. It was the first HBA section to hold its meetings via webinar. • The section is always willing to share its expertise with members of other HBA sections, inviting them to attend the Corporate Counsel Section programs and network with attorneys from all practices. • The section also was the first to hold its council election electronically, and the section contributes to the community through an annual donation to the Harvest Celebration, benefiting pro bono legal services for low-income people in Harris County. Kelly Fritsch, Family Law Section Chaired by Kelly Fritsch, attorney at law, the HBA Family Law Section provides much-needed assistance for programs throughout the year, including providing a family law specialist for every HBA LegalLine program. Section members also volunteer for Houston Volunteer Lawyers legal clinics and serve as mentors to other attorneys so they can handle family law cases pro bono. • The section updated the HBA’s Family Law Handbook and created a number of free Zoom CLE programs for the family law bar, to assist with remote law practice. The section also contributed family law resources for the HBA’s COVID Updates web page and maintains contact with its members to update them on the status of the courts. • The section champions a number of community programs, including an annual Teddy Bear drive for CPS, adopting the Domestic Relations Visitor Center, and contributing donations to the Harvest Celebration, Habitat, Do the Write Thing, and the Eikenburg Law Week Fun Run.
Equal Access Champions The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers. Large Firm Champions Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Kirkland & Ellis LLP Locke Lord LLP Norton Rose Fulbright US LLP Vinson & Elkins LLP
Corporate Champions CenterPoint Energy, Inc. Exxon Mobil Corporation Halliburton Energy LyondellBasell Industries Marathon Oil Company Shell Oil Company
Mid-Size Firm Champions Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Beck Redden LLP Chamberlain Hrdlicka Clark Hill Strasburger Foley Gardere Gibbs & Bruns LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Haynes and Boone, L.L.P. Jackson Walker L.L.P. Jones Day King & Spalding LLP Morgan, Lewis & Bockius LLP
Porter Hedges LLP ReedSmith LLP Winstead PC Winston & Strawn LLP
Shortt & Nguyen, P.C. Squire Patton Boggs (US) LLP Trahan Kornegay Payne, LLP
Individual Champions Boutique Firm Champions Abraham, Watkins, Nichols, Sorrels, Agosto, Aziz & Stogner Blank Rome LLP Dentons US LLP Fullenweider Wilhite PC Hogan Lovells US LLP Jenkins & Kamin, L.L.P. McDowell & Hetherington LLP Ogden, Broocks & Hall, L.L.P. Ogletree, Deakins, Nash, Smoak & Stewart P.C. Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs & Goren, P.C. Yetter Coleman LLP
Small Firm Champions Coane & Associates Frye, Benavidez and Oâ&#x20AC;&#x2122;Neil, PLLC Fuqua & Associates, P.C. Gibson, Dunn & Crutcher LLP Givens & Johnston Katine & Nechman L.L.P. Katten Muchin Rosenman LLP KoonsFuller, P.C. MehaffyWeber, P.C. Quinn Emanuel Urquhart & Sullivan, LLP
Law Office of Peter J. Bennett Law Office of J. Thomas Black, P.C. Law Office of Travis A. Bryan I, PLLC Burford Perry, LLP The Dieye Firm The Ericksen Law Firm Law Office of Todd M. Frankfort Hasley Scarano L.L.P. David Hsu and Associates The Jurek Law Group, PLLC Law Firm of Min Gyu Kim PLLC The LaFitte Law Group, PLLC Law Firm of Catherine Le PLLC C. Y. Lee Legal Group, PLLC Law Office of Gregory S. Lindley Martin R. G. Marasigan Law Offices Law Office of Evangeline Mitchell, PLLC Rita Pattni, Attorney at Law Pilgrim Law Office Law Office of Robert E. Price The Reece Law Firm, PLLC Sanchez Law Firm Law Office of Jeff Skarda Angela Solice, Attorney at Law Diane C. Treich, Attorney at Law Law Office of Norma Levine Trusch Law Office of Cindi L. Wiggins, J.D. Trey Yates Law
OFF THE RECORD
From Houston to Hollywood:
How Attorney Derek Potts Uses His Storytelling Expertise to Create Thought-Provoking Movies
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The Houston Lawyer
By Koby Wilbanks
CIA. His “bucket list” experience was so enjoyable that Potts ttorney Derek Potts has finally realized his lifelong decided he wanted to create his own movie and participate in dream of becoming a movie producer by leveraging the entire process from start to finish. Potts is in the process of experience gained during his career as a national litirealizing that goal by writing and producing his independent gator to succeed in the movie business. Many may not film, Narco Sub, which pulls inspiration from the real story of initially see a connection between law and movies, cartels using self-made submarines to smuggle drugs into the but Potts strongly believes that his experience with storytelling United States. gained in the courtroom has supPotts has enjoyed using his ported him in his work producnew career as a producer to bring ing and acting in movies. This more attention to Houston as a vilifelong focus on presenting a able option for movie production story in a way that resonates with by intentionally sourcing filmthe audience has created a skilling locations and actors from the set that sets Potts up for success Houston Area. Potts intentionally in both the courtroom and the chose Lee Majors, a current Housbox office. ton resident, to star in Narco Sub As both a viewer, producer, and and features local talent throughactor, Potts has found himself out the film. In addition, Potts drawn to movies that have strong themes and a well-developed sto- Derek Potts, right, uses his experience as a litigator in his role as a movie uses his role to showcase the loryline, characteristics that are re- producer, presenting stories that resonate with an audience. Photo by Ray Kutlar cations and talent that Houston has to offer the film industry. Viewers of The Last Astronaut may quired for success in the courtroom as well as the box office. recognize The Potts Law Firm conference room in the film and, Many attorneys equate good trial attorneys with actors, who imif shooting hasn’t wrapped on Narco Sub, Houston readers can merse themselves in the “scene” and act whatever part that most stop by Brenner’s on the Bayou to view the model submarine benefits the client. Potts agrees and believes that the rigor of actsoon to be featured in the film. ing (making sure your words, tone, facial expression, and body For readers that are interested in breaking into the field, Potts language always convey exactly what you want them to convey) highly recommends visiting film festivals and using the ophas helped improve his performance in the courtroom. portunity to meet and interact with the actors, producers, and Although Potts initially chose to pursue a career in law instead directors that attend. There are opportunities for all potential of entertainment, Potts’ passion for movies began when he was movie-makers, no matter what size and scope they are consida young boy, fascinated by the visuals and drama of the original ering. Potts looks forward to continuing his work as both a litiStar Wars. Potts’ interest persisted throughout his legal career gator and producer, including the release of Narco Sub in 2020 and entering the world of acting and producing movies was a and his new bucket-list item to film a scene on the legendary “must-do” item on his bucket list. steps of the Federal Southern District of New York Courthouse About ten years ago, Potts began investing as a silent partner in Manhattan. in various movie and television productions. Potts’ first foray into a more active movie role came in 2019 when one of his legal clients, embroiled in post-Harvey litigation, mentioned that he Koby Wilbanks is a member of The Houston Lawyer Editorial was sourcing funding for his movie, The Last Astronaut. Potts Board and is a senior associate at Murrah & Killough, PLLC, which jumped at the opportunity and signed on as an executive proprovides privately owned businesses with the legal advice and busiducer, as well as landing an acting role as the Director of the ness support they need to grow and succeed.
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A Profile
in pro f e s s i o n a l i s m
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Roland Garcia Shareholder, Greenberg Traurig, LLP
rofessionalism is required in all aspects of the practice of law. We think of integrity, civility, ethics, excellence, and mutual respect. Considering the practice of law is a privilege and not a right, as lawyers we also have duties to ensure equal access to justice under the law and the fair administration of justice. The public must have confidence and trust in our profession and the rule of law, and believe that the profession understands their needs. The legal profession is the link between the rule of law and society. Diversity in our profession brings perspectives that reflect the myriad of backgrounds and experiences. The business community has long recognized the value of diversity in management and marketing to a diverse consumer base. A diverse legal profession reflective of a diverse society benefits all and draws on the strengths and experiences of all. Reaching the goal of justice and the publicâ&#x20AC;&#x2122;s perception of fairness requires many efforts. With a diverse community and many unmet legal needs in these challenging times, the recent efforts of the HBA to increase inclusion and diversity in bar committees, leadership, training, mentorship, and programs have been important. By all accounts, this past bar year of HBA President Benny Agosto has been a resounding success on his emphasis on diversity and inclusion and other areas. Bennyâ&#x20AC;&#x2122;s professionalism profiles of Hon. Josefina Rendon, Mo Aziz, Kim Ogg, Travis Torrence, and Hon. Alice Oliver-Parrott are shining examples of diversity in action. I was proud to have been the first Hispanic president of the HBA in 2001 during the HBAâ&#x20AC;&#x2122;s 130th anniversary, and now am even more proud I am not the last on this 150th anniversary of the HBA. Congrats to Benny Agosto and the entire HBA board and staff on another great year for the bar!
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committee spotlight
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Committee Focuses on Bringing Together Houston’s LGBTQ+ Community
The Houston Lawyer
By Heath DeJean
n the summer of 2019, the Houston Bar Association anMountaintop Consulting, who gave a presentation on personal nounced the creation of the LGBTQ+ Committee, the first branding and building an elevator speech. The next step of the of its kind in Houston, as part of HBA president Benny Coaching Circles program will be a match event in which parAgosto’s promotion of diversity and inclusion as cornerticipants will have an opportunity to meet their fellow smallstones of the 2019–2020 group members. bar year. Working in coopBeyond programming caeration with the Stonewall tered to the legal communiLaw Association of Greater ty, the LGBTQ+ Committee Houston, the LGBTQ+ Comalso provides opportunities mittee seeks to improve and to connect through colenrich the practice of law in laboration with other area Houston and surrounding LGBTQ+ organizations. An areas by providing resourcidea three years in the makes and support to LGBTQ+ ing, on March 11, the Comattorneys, law students, and mittee, in partnership with allies. the HBA CLE CommitThe Committee kicked off tee, HBA Gender Fairness the bar year with an inaugu- The HBA’s LGBTQ+ Committee hosted a number of well-attended events in its Committee, and the Monral happy hour in October first year. trose Center, organized a to formally introduce the Committee, provide networking opfree legal symposium for staff of local LGBTQ+ organizations. portunities, and discuss the Committee’s plans for the year. During the day-long symposium, top legal minds and activists More than 100 guests including judges and elected officials presented to over 120 attendees in the areas of renter’s rights, were in attendance. Building on its successful happy hour, the employment, hate crimes, and immigration law, as well as Committee hosted an event with students at Thurgood Marother topics of particular importance to the LGBTQ+ commushall School of Law, and received significant support from its nity. The symposium also included a presentation from former students to revive the school’s OUTlaw organization that had Houston Mayor and President & CEO of the LGBTQ Victory gone inactive in recent years. Fund, Annise Parker. While the initial networking events and happy hours were a At less than a year old, the HBA LGBTQ+ Committee has alsuccess and helped to get the word out, the LGBTQ+ Commitready found success in leading positive change in the commutee’s goals lie well beyond social events. In the beginning of nity. However, this is only the beginning, and the Committee 2020, the Committee kicked off its Coaching Circles program has plans for even more in the future. For more information, designed to foster community among LGBTQ+ attorneys and or to stay informed on the Committee’s upcoming events and their allies. By forming small groups composed of practitioprogramming, visit hba.org/lgbtq. ners with different levels of experience, the program creates a safe space to discuss LGBTQ+-specific issues in a small-group Heath DeJean is a founding member of the HBA LGBTQ+ setting. The initial launch was a speed networking event that Committee and serves as a member of the editorial board of provided an opportunity for those interested in participating to The Houston Lawyer. He is a corporate associate at Thompson meet. The attendees also heard from Rosa Maria Villagomez of & Knight LLP. 42
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SECTION spotlight
Law Practice Management Section Addresses Issues Helpful to All Practice Areas
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By Benjamin K. Sanchez
n law school, we are primarily taught how to think like a lawyer, being groomed for specific legal tasks rather than managing a business or running a law practice. Although that void in legal education is starting to be addressed by law schools with a class here or there, the real education of lawyers happens after we have become licensed. Bar associations throughout the country have created sections and divisions to deal with this topic, generally known as law practice management. The American Bar Association has the Law Practice Division, and the State Bar of Texas offers the Law Practice Management Program (there is no particular Texas Bar section dedicated to law practice management, although the General Practice, Solo, and Small Firm Section and Computer & Technology Section most closely address law practice management issues as part of their missions). Thankfully, the Houston Bar Association has the Law Practice Management Section (“LPM Section”), currently chaired by Kevin A. Keeling of the Law Offices of Kevin A. Keeling, LLC in Clear Lake. The LPM Section operates like most HBA sections, but on a smaller scale. It is led by a four-officer team (Chair, Vice Chair, Treasurer, and Secretary) and holds monthly CLE luncheons. Its 2019-2020 membership count is 85, and annual section dues are $20. What makes the LPM Section different is its focus. Rather than honing in on a particular substantive area of the law or demographic in our profession, the LPM Section is geared towards bringing fresh, new ideas to local attorneys on how to run or manage your practice, use technology in your practice, market your practice, use proper billing and accounting procedures in your practice, and more. As you can see, the focus is on effective legal business management rather than legal specialties. The
LPM Section’s focus as set forth on the HBA website is to provide “information and resources to HBA members about building and managing law practices more effectively and successfully while maintaining the highest standards of the legal profession.” The LPM Section’s CLEs are a refreshing change from the substantive topics covered by most HBA sections. Every attorney should be a member of their respective substantive sections as well as the LPM Section, which is meant for not only solo and small firm attorneys but also those at medium and big law firms, nonprofits, and corporate law departments. The monthly CLE luncheon is normally held at noon on the second Tuesday of each month. In May and June of this year, the CLEs are virtual. Mr. Keeling stated the LPM Section will be focusing on more online content in the next bar year (the LPM Section has a Facebook page along with the standard HBA section page). As with all HBA sections, the hope is that live CLEs will begin again in the fall. Attorneys are encouraged to join and become active members of the LPM Section, with an opportunity to help lead the Section in the future. In addition to working on membership and CLE topics and speakers, members can get involved in hands-on marketing for the Section through regular updates to the Facebook page and other efforts. In this new day and age, law practice management skills are essential regardless of your practice area or type. The LPM Section is a great place to start learning! Benjamin K. Sanchez is a 22-year attorney practicing consumer law and family law. He is a bar leader and national columnist. Additionally, he is certified by John Maxwell and Les Brown as a speaker, trainer, and coach. thehoustonlawyer.com
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LEGAL TRENDS
Amid the COVID-19 Pandemic, Texas Transitions to the UBE Bar Examination
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By Leonard M. Baynes
The Houston Lawyer
n October 8, 2018, the Texas Supreme Court adopted the Uniform Bar Examination (UBE). With Texas’ new adoption, 36 jurisdictions (including the District of Columbia and the U.S. Virgin Islands) will use the UBE in determining admission to the bar. Texas is the second largest U.S. state in terms of actual population and has the third largest number of annual bar examination test takers, after New York and California respectively. With Texas’ adoption, two of these three largest states—New York and Texas—would have adopted the UBE. This is a very significant development. The Texas Supreme Court was persuaded by the recommendation and report of the Task Force on the Texas Bar Examination that “the efficiencies created by the UBE, in the aggregate, are compelling.”1 The American Bar Association (ABA) has also endorsed the adoption of the UBE. This column highlights the changes in the last administrations of the current Texas bar exam as a result of COVID-19, examines the Texas UBE and how it stacks up to the current Texas bar examination, and explores the likely outcomes as a result of this change. What does Texas plan to do to ensure safety during the last administration of the current Texas Bar exam? The current form of the Texas bar examination was administered in February 44
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2020. It was expected to be administered one last time in late July 2020. Given the safety concerns surrounding COVID-19, the current Texas bar exam will be administered twice: once in late July (as originally planned), and a second time in early September. There are likely to be additional exam sites which will allow for appropriate social distancing of test takers, temperature checks, and an expectation for test takers to wear face coverings. Lastly, these last two administrations will take place over just two days, not the usual three.2 The hope is that the decrease in testing days will diminish test takers’ exposure to the virus. Shortening the amount of testing days is only possible however, by a reduction in the number of state law questions from 12 to six, with a reduced weight to 30% from the usual 40%. In contrast, the multiple state portion percentage of the exam will increase from 40% to 50%. This change in scoring was done in accordance to recommendations of psychometricians who believed it would make this administration more reliable. When the Texas Supreme Court mandated that 2020 would be the last administration of the current Texas bar exam, they could never have imagined that it would make such a memorable departure. What is the UBE and how does it compare to the current Texas Bar Examination? February 2021 is expected to be Texas’ first administration of the UBE. The UBE allows for the results to be portable and transferrable to the 36 UBE jurisdictions, for a limited time, provided the test taker scores high enough to satisfy that state’s minimum passing score requirement. Scores are valid between two and five years, depending on the jurisdiction. If a student who wants to practice in Texas takes New Mexico’s UBE, the student needs to consider that New Mexico’s passing score is 260 while the score in Texas is 270. Should the student take and pass the
New Mexico bar examination by minimally satisfying New Mexico’s lower passing score, the student would be ineligible for admission to the Texas bar since the passing score doesn’t meet Texas’ higher passing score requirement. The UBE consists of three components: Multistate Bar Examination (MBE), Multistate Essay Examination (MEE), and the Multistate Performance Test (MPT). Developed by the National Conference of Bar Examiners (NCBE), the MBE is a six-hour, 200-question multiple-choice examination (175 of the questions are scored, 25 are experimental test questions). The questions are evenly split among seven subject areas: Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts. The NCBE also developed the MEE, and it consists of six 30-minute essay questions. The MEE covers the following subject areas: Business Organizations, Civil Procedure, Conflict of Laws, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Family Law, Real Property, Torts, Trusts and Estates, and Uniform Commercial Code. The MPT was also developed by the NCBE; it consists of two 90-minute tests. The NCBE describes the MPT as follows: “The MPT is designed to test an examinee’s ability to use fundamental lawyering skills in a realistic situation and complete a task that a beginning lawyer should be able to accomplish. The MPT is not a test of substantive knowledge. Rather, it is designed to evaluate certain fundamental skills lawyers are expected to demonstrate regardless of the area of law in which the skills are applied.”3 The current Texas bar examination already uses the MBE and the MPT. The major difference between the UBE and the current Texas bar examination is eliminating the testing of Texas-specific legal content such as Texas procedure and evidence, as well as oil and gas, bankruptcy,
LEGAL TRENDS
and consumer law. Overall, the UBE score will emphasize multiple-choice questions and the performance test more than the prior Texas bar examination did. There will be six MEE essays as opposed to the current 12 Texas state essay questions. The MEE would constitute only 30% of the examinee’s score while current Texas essay examinations constitute 40%. The MBE currently constitutes 40% of the examinee’s score whereas with the change the MBE will constitute 50% of the examinee’s score. Texas currently uses one 90-minute MPT constituting 10% of the examinee’s score whereas the UBE has two MPT questions constituting 20% of the examinee’s score. Perhaps of greatest significance, the UBE will be a two-day examination, whereas the prior Texas bar examination is three days. After reading this column, you may conclude that the UBE sounds very similar to how the BLE is modifying the current Texas bar exam in light of COVID-19. Yes, the changes make the last administrations of the Texas bar exam very much like the UBE, except for the percentage of the MPT and its number of questions. Moreover, another difference with the last administration of the Texas bar exam is that the Texas essays are still based on Texas law rather than multistate law. The Texas Supreme Court accepted the recommendation and report of the Task Force on the Texas Bar Examination, that Texas adopt a Texas Law Course and Examination to ensure that Texas bar applicants have basic knowledge of Texas law, ethics, and procedure. The Texas Supreme Court ordered that this Texas Law component be available for administration no later than June 1, 2020. The Texas component will consist of a series of video presentations on Texas law, which will require applicants, after each segment, to correctly answer questions before proceeding to the next segment. There is no score. The total length of the presentations will be 10 to 12 hours. Once
available 4, the Texas Law component will be free, online and on-demand. The Texas Law component may be completed up to one year before taking a bar exam and up to two years after passing the UBE. What is likely to happen during Texas’ transition to the UBE? First, a number of states have found an initial drop in overall test scores. This might happen in Texas as law schools and students change course offerings and modify student assessments for superior performance on the UBE. As outlined above, for example, the UBE has more of an emphasis on multiple choice questions; this will be an adjustment for law students whose professors primarily utilize essay exams to assess their performances. Second, the overall performance on the upcoming February and July Texas bar exams may be erratic under the current Texas bar exam. Why? In December 2019, Texas started accepting the UBE score from other states but won’t begin administering the UBE until February 2021. Thus, some law school students in Texas are considering taking the UBE in another state during this transition. They believe that taking the UBE before it is formally administered by Texas gives them more opportunities to practice outside of Texas early in their legal career. The New Mexico Board of Bar Examiners for example, contacted several deans of Texas law schools because they expect an increase in students taking the upcoming New Mexico bar exam. They posit that applicants would be able to transfer their New Mexico score back to Texas if the score is high enough for the Texas cutoff. This may be a one-year transition problem. If students go down this route, they need to keep in mind that Texas pass rate is 270 and New Mexico is only 260. In addition, there is a decline in the number of out-of-state students who are taking the Texas bar examination. These students are also more likely to take the
UBE in the state where they attended law school, and seek to waive in if their score is high enough. These two considerations will significantly shrink the number of Texas bar exam test takers shaping a pool of uncertain size and credentials creating a strong likelihood that the pass rate on the upcoming 2020 Texas bar exam may be skewed. Third, it will be interesting to see how the new Texas law component evolves. Like Texas, New York adopted an online New York law component. There have been concerns raised by New York attorneys that recent New York state graduates were less informed about New York law because, like Texas, the state law portion of the New York bar exam was deemphasized. As the online test for the state law component of the bar exam is ungraded, it is likely to result in students not taking law school courses focused on Texas subjects and being less knowledgeable about Texas law when they initially practice. In conclusion, despite substantial changes to the bar exam, including the manner in which it will be administered due to the pandemic, current Texas law school graduates will rise to the occasion. Moreover, once implemented, incoming and current Texas law students will also successfully adjust to the new Texas bar exam. Leonard M. Baynes is Dean of the University of Houston Law Center. Endnotes
1. TASK FORCE ON THE TEX. BAR EXAMINATION, FINAL REPORT TO THE TEX. SUP. CT., 3 (2018), available at https://www.txcourts.gov/media/ 1441612/final-task-force-report_051518.pdf 2. As of June 2, 2020, the Texas Board of Law Examiners has recommended to the Texas Supreme Court that the Texas Bar be reduced from three (3) days to two (2). Please refer to the Texas Supreme Court’s website to obtain a copy of the Court’s order approving the BLE’s recommendation: https://www. txcourts.gov/supreme. 3. Multistate Performance Test, NAT’L CONFERENCE OF BAR EXAM’RS, http://www.ncbex.org/exams/ mpt/. 4. This was made available to bar applicants in April 2020.
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Media Reviews
The Commercial Property Insurance Policy Deskbook By Barry Zalma ABA Book Publishing, 2018 Reviewed by Farrah Martinez
The Houston Lawyer
T
his book, as indicated by its subtitle, details “how to acquire a commercial property policy and present and collect a first-party property insurance claim.” The four essential topics covered over 14 chapters include (1) construction of the insurance policy, (2) interpretation of the policy, (3) claims, and (4) common law bad faith with a greater emphasis on the first three topics. Starting with the basics, Zalma provides readers with extensive insurance industry terminology and definitions by explaining the most basic concept, from what insurance is to more complicated terms that deal with the rules of construction of a commercial insurance policy. Zalma also addresses the different types of property losses, the causes of those losses, and how insurance carriers examine losses to determine the scope of coverage versus how a court typically interprets coverage under a policy. There is also a discussion of coinsurance to which the author opines as an essential provision of the building and personal property coverage form. Zalma dispels the misconception that if an 80 percent coinsurance clause appears in a policy, 46
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that the insured is entitled to collect only 80 percent of a loss. He then walks the reader through the proper formula to calIn looking at culate coinsurance and the claims process, i l lu st r at e s Zalma starts with with a few the notice of loss examples. In lookprovision, which ing at the requires an insured claims process, Zalma to report losses starts with ‘promptly.’” the notice of loss provision, which requires an insured to report losses “promptly.” Then the book discusses the various court rulings across U.S. jurisdictions, many of which favor insureds and typically do not strictly enforce the prompt reporting if there is no prejudice to the insurer. Next, he looks to the adjuster’s duties and responsibilities (or lack thereof to the insured), investigating the claim and the examination under oath, sworn statements in a proof of loss, establishing the value of an insured’s loss, and the process of negotiating a settlement. Lastly, a chapter is dedicated to common law bad faith and how the tort derived, the punitive damages test, and an overview of the reasonableness of insurer’s conduct. Every book is full of golden nuggets. One that stands out here is the idea that a “business person who is able to interpret a commercial property insurance policy will obtain the best possible coverage available at the most reasonable price and will have an advantage over a business person who does not.”
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The Commercial Property Insurance Policy Deskbook is a worthwhile read for lawyers new to the commercial insurance practice or any lawyer looking for insight from someone who has worked extensively within the commercial insurance industry. Farrah Martinez is the owner of Farrah Martinez, PLLC, where she focuses her practice on personal injury and insurance law. She is a former member of The Houston Lawyer and past Editor-in-Chief.
Felton’s Texas Anti-SLAPP Law By Dale Felton Spirit Hill Publishing, 2019 Reviewed by Benjamin K. Sanchez
D
ale Felton, a long-time attorney and a mentor in the various Texas lawyer Facebook groups, fulfilled a goal of his last year by publishing a book on the Texas Citizens Participation Act (TCPA), the state’s anti-SLAPP (strategic lawsuits against public participation) law. Felton is a graduate of the University of Houston Law Center and will be celebrating the 50th anniversary of becoming a licensed Texas attorney in September 2020. He is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. Felton’s accolades are well known and suffice it to say, he has the credentials and experience to write an authoritative book such as this.
Media Reviews
Rather than creating a 400-page treatise, Felton prepared a direct and succinct book that is less than 100 pages in substantive material. The book is meant not as a theoretical examination of the law, but rather as the practical guide for the attorney in the trenches. The Texas Anti-SLAPP law has invaded just about every other area of law in Texas. A practical guide for attorneys thus became necessary. Many states have their own version of an anti-SLAPP law. The purpose of such law is to encourage public discourse and debate on matters of public interest, while preventing litigation aimed at stifling such discourse and debate. The anti-SLAPP law is meant to prevent the chilling effect of legal action intended to clamp down on matters of public concern. In Texas, the law was designed to promote and protect the constitutional rights of citizens to freely petiRather than tion, speak, creating a 400-page and associate without treatise, Felton fear of reprepared a direct taliation by and succinct book being sued for exercisthat is less than 100 ing such first pages in substantive amendment material.” rights. Felton’s book is quite comprehensive in scope, covering topics such as communications subject to Anti-SLAPP, defamation, discovery, evidence, exemptions, deadlines, and more. Each section starts with the appropriate statutory cite and is followed by extensive case cites. Thus, rather than
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being a personalized exposition by the author, the reader can simply flip to the appropriate section and find the law and case cites for inclusion in pleadings, briefs, and oral arguments. Due to the extensive case cites, the reader can refer to the case opinions for further reading on any particular topic. This allows the attorneys to get a quick review of the current state of the law. Given how the material is organized in the book, Felton is not relied upon to interpret the law but is more an editor and compiler of the law. He has read and studied every appellate decision in Texas on this law, and all such cases are cited in the book in one section or another. Felton’s experience gives him the wisdom to discern the material and relevant points in each opinion. The reader can trust that the case citations are not just compiled and thrown in, but rather have been personally studied before inclusion in the book. It is important to note that the book was first published in March of 2019. Governor Greg Abbott signed a bill into law that amended and narrowed the scope of the law. In response, Felton has been hard at work in studying the new law and new appellate decisions. It is anticipated that the 2020 edition will be out by the time you are reading this review. Felton will include both the old statute along with the changes made by the new amendments, as some cases will be controlled by one or the other. Benjamin K. Sanchez is is a 22-year attorney practicing consumer law and family law. He is a bar leader and national columnist. Additionally, he is certified by John Maxwell and Les Brown as a speaker, trainer, and coach. thehoustonlawyer.com
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LITIGATION MARKETPLACE
Office Space HOUSTON/GREENWAY PLAZA AREA – 3555 Timmons Three Solo Estate Planning attorneys seeking a transactional attorney for suite mate. Beautiful, quiet, elegant, unobstructed views from a triple window office plus staff office available. Amenities include conference rooms, reception area, copier/scanner/printer, kitchenette, high-speed internet, free parking for clients. Elevator lobby exposure. Immediate occupancy. Easy commute to West U, Bellaire and River Oaks @ $2600/month. Please call Michael Ramirez at 713-621-7057 or email tfrierson@friersonlaw.com Connecting Lawyers with Offices and Offices with Lawyers List and rent your empty office space at www.LawSpaceMatch.com. Exclusively for lawyers nationwide. Created by lawyers sharing office space. Upload up to 6 photos and describe practice areas and amenities for a minimum monthly fee.Turn your empty LawSpace into cash.
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Houston Heights Office Space Available. Individual, multiple, executive suite, or an entire building with one to six offices plus support staff areas available in historic Houston Heights Buildings! Historic charm with modern amenities. One property on Yale and one on Heights Blvd, both easily accessible and with ample visibility. Available space includes a conference room wired for flat screen and data ports in each office, full kitchen, ample parking. Price flexible on needs. Call: 504-237-6535 for more information. HEIGHTS AREA I-10 at Shepherd LAW OFFICE SHARING One office space (9’ x 14’) and two cubicle spaces available to sublet. Month to Month term. Great location. Beautiful first floor space. 5151 Katy Freeway, Houston, TX 77007. Free parking, free valet visitor parking, One large and two small conference rooms, file cabinets, reception area, receptionist, kitchen, phones, internet, Wi-Fi. Space includes two experienced family law attorneys (referrals and contract work possible) and one plaintiff’s personal injury attorney. Contact Frank at 713-443-5752. 48
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HOUSTON – ONE GREENWAY PLAZA, SUITE 100 Class A space available for sublease. Great Multi-Lawyer/Corporate/Professional Suite–1st floor, 15 ft+ ceilings, garage/covered parking, digital phone/fax/internet/ cable system, 2 conference rooms, front full-time receptionist, kitchen area, walk to restaurants/gym. Available now: 1 large window office; Also Available: virtual office option; Coming in FALL 2020: 2 window offices; 2 furnished secretarial spaces. Call Lawrence at 713-650-1222 or email: legal@texas.net HOUSTON/ENERGY CORRIDOR I-10 & 1155 Dairy Ashford. Established law firm with estate/ trust planning, probate/trust administration, elder law and business practice seeks to lease large 12x15 window office in friendly, beautiful office suite, with reception area. Office easily accommodates credenza, full size desk, two client chairs, two 5-drawer lateral files. Telephone, WiFi, high speed Internet, copiers/ scanners, fax. Kitchen with microwave and coffee. Notary available. Access to conference rooms on scheduled basis. Free covered parking for attorney and clients. Possible overflow work subject to attorney availability, skill and experience. $895/month, quarterly term. Steve 713-553-0732 (cell) steve@mendellawfirm.com. Partner Sized Office with Private Bath Large partner-sized office with private bathroom available immediately. Conveniently located in the Heights just 5 minutes from downtown. Free parking, broadband internet, and use of shared conference room included. Building also provides free biweekly cleaning service and coffee, tea, soda, candy, and snacks. for more information contact Jim Pianelli at 713-864-3333, jvp1000@aolcom, or Tim Riley at 713-646-1000, tdr@txtrial.com.
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HOUSTON GALLERIA NEW NORMAL OFFICE SPACE One or two approx. 14’ x 15’ offices and one or two cubicles with high partitions. 5,000 sq ft suite for easy social distancing. File space; two conference rooms; kitchen; telephone system; fiber Internet; copier; ground floor (no elevator rides). Not an executive suite. Contact kurt@kurtarbuckle.com. Heights area law office sharing. 1 large office (approx 15x15) available August 1. Modern building with 24 hour security on North Loop near Shepherd with downtown views. Beautiful conference room with 60” TV/Whiteboard, color copier/fax/scanner available on network, internet, full featured VOIP phone system, Wi-Fi and wired internet, attached covered parking, room for your files. Kitchen in suite with microwave/ pizza oven, coffee, soft drinks, water and snacks available. Contact Mike or Teri at 713-529-2020 for more information.
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Join the HBA 100 Club! The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, government agencies, law schools and corporate legal departments with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Sorrels, Agosto, Aziz & Stogner Adair Myers Graves Stevenson PLLC Ajamie LLP Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Baker Williams Matthiesen LLP The Bale Law Firm, PLLC Berg & Androphy Bradley Arant Boult Cummings LLP Buck Keenan LLP Bush & Ramirez, PLLC Campbell & Riggs, PC Carter Morris, LLP Christian Smith & Jewell LLP Cozen O’Connor Crady, Jewett, McCulley & Houren, LLP Crinion Davis Richardson & Langley LLP De Lange Hudspeth McConnell & Tibbets LLP Dentons US LLP Devlin Naylor & Turbyfill PLLC Dobrowski, Larkin & Stafford, L.L.P. Doyle Restrepo Harvin & Robbins LLP Ewing & Jones, PLLC Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins Fogler, Brar, O’Neil & Gray LLP Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Funderburk Funderburk Courtois, LLP Galligan & Manning Germer PLLC Gibson, Dunn & Crutcher LLP Givens & Johnston PLLC Gordon Rees Scully & Mansukhani Hall Maines Lugrin, P.C. Henke, Williams & Boll, LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Horne Rota Moos LLP
Husch Blackwell LLP Irelan McDaniel, PLLC Jackson Lewis P.C. Jenkins & Kamin PC Johnson DeLuca Kurisky & Gould, P.C. Jordan, Lynch & Cancienne PLLC Kean | Miller LLP Kelly, Sutter & Kendrick, P.C. Kilpatrick Townsend & Stockton LLP KoonsFuller, PC Kroger Burrus Nelson Law Feehan Adams LLP Linebarger Goggan Blair & Sampson, LLP Lorance Thompson, P.C. MacIntyre McCulloch & Stanfield, L.L.P. McGinnis Lochridge McGuireWoods LLP McKool Smith MehaffyWeber PC Morris Lendais Hollrah & Snowden Nathan Sommers Jacobs PC Pagel Davis & Hill PC Peckar & Abramson, P.C. Phelps Dunbar LLP Pillsbury Winthrop Shaw Pittman LLP Pipkin Ferguson PLLC Ramey, Chandler, Quinn & Zito, P.C. Rapp & Krock, PC Reynolds Frizzell LLP Roach & Newton, L.L.P. Ross Banks May Cron & Cavin PC Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Rymer, Echols, Slay & Nelson-Archer, P.C. Schiffer Hicks Johnson PLLC Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Page & Harding, L.L.P. Scott, Clawater & Houston, L.L.P. Shannon Martin Finkelstein Alvarado & Dunne, P.C. Shearman & Sterling LLP Shellist | Lazarz | Slobin LLP
Shipley Snell Montgomery LLP Smith Murdaugh Little & Bonham LLP Spencer Fane LLP Sponsel Miller Greenberg PLLC Sprott Newsom Quattlebaum & Messenger Strong Pipkin Bissell & Ledyard LLP Stuart PC Taunton Snyder & Parish Taylor Book Allen & Morris Law Firm Thompson & Horton LLP Tindall England PC Tracey & Fox Law Firm Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP West Mermis, PLLC Weycer, Kaplan, Pulaski & Zuber, PC Williams Hart Boundas Easterby LLP Wilson Cribbs & Goren PC Wright Abshire, Attorneys, PC Wright Close & Barger, LLP Ytterberg Deery Knull LLP Zukowski, Bresenhan & Piazza L.L.P. Firms of 25-49 Attorneys Adams and Reese LLP Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Andrews Myers, P.C. Beck Redden LLP Blank Rome LLP BoyarMiller Coats | Rose Cokinos | Young Gibbs & Bruns LLP Hogan Lovells US LLP Kane Russell Coleman & Logan PC Liskow & Lewis Littler Mendelson P.C. Martin, Disiere, Jefferson & Wisdom McDowell & Hetherington LLP Ogletree Deakins Nash Smoak & Stewart, P.C. Yetter Coleman LLP
Firms of 50-99 Attorneys Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Greenberg Traurig, LLP Haynes and Boone, LLP Jackson Walker L.L.P. Morgan, Lewis & Bockius LLP Susman Godfrey LLP Winstead PC Firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Porter Hedges LLP Vinson & Elkins LLP Corporate Legal Departments CenterPoint Energy EOG Resources, Inc. MAXXAM, Inc. Occidental Petroleum Corporation Plains All American Pipeline, L.P. Quantlab Financial, LLC Rice University S & B Engineers and Constructors, Ltd. Law School Faculty South Texas College of Law Houston Thurgood Marshall School of Law University of Houston Law Center Government Agencies Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County, Texas 1st Court of Appeals 14th Court of Appeals
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