Secretary Cascos reminds voters of Feb. 1 Registration Deadline

Today, Texas Secretary of State Carlos Cascos reminded Texans that February 1 is the deadline to register in time for the March 1 Primary Election.
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Lawyer Death by Suicide

The Texas Lawyers’ Assistance Program receives calls almost weekly about a lawyer loss by suicide. In fact, 11 percent of lawyers have had suicidal thoughts at some point in their career. Will you make a commitment to help another lawyer and to help yourself? If you are experiencing substance abuse or depression and anxiety, call TLAP right now 24/7. All calls are confidential. You can help another lawyer who might otherwise be in such pain that suicide seems the only option. You can help yourself by fine-tuning your own lawyer wellness program. You can learn how to help a survivor from a loss by suicide, whether it is a colleague or a loved one. TLAP is available to all legal communities to make a one-hour ethics presentation that is designed for your group needs at no charge. Call TLAP at (800) 343-8527 (TLAP) or go to and click on Suicide Prevention under What We Help With for current research to help lawyers. Additional resources include the American Foundation for Suicide Prevention. If you or someone you know is contemplating suicide, call the National Suicide Prevention Hotline at (800) 273-TALK. .

Original author: Eric Quitugua
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ABA CoLAP to host live Twitter chat on problem gambling

The ABA Commission on Lawyer Assistance Programs is hosting “Problem Gambling in the Legal Profession,” a live Twitter chat that features special guests Christine Anderson, of the Illinois Attorney Registration and Disciplinary Commission, and Keith Whyte, of the National Council on Problem Gambling. They will discuss the consequences of gambling, the signs and symptoms of a person who may have a gambling problem, how to receive assistance or refer someone to help, and how law schools and law firms can address the issue.

The chat will take place from 1 p.m. to 2 p.m. EST on December 13. Follow along or join the discussion with #GamblingHelp4Lawyers.

Original author: Eric Quitugua
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Culhane Meadows earns Women’s Business Enterprise certification

Culhane Meadows was certified a Women’s Business Enterprise, or WBE, by the Women’s Business Enterprise National Council. Women make up a majority of the management team of this national firm, which has offices in Austin, Dallas, and Houston.

“WBE certification is a welcome acknowledgement of the commitment Culhane Meadows has made to create an environment where inclusion and diversity is at the forefront,” said Kelly Culhane, co-founder and a managing partner in the firm. “From our very beginning, we have sought to create an open and transparent platform where all lawyers can thrive regardless of gender, race, religion, age, or geography.”

Management of Culhane Meadows, with nearly 60 partners across seven major business markets, is up to a five-person team. Three of its leaders, as well as about 40 percent of the firm’s total roster of attorneys, are women.

“There are very few national law firms of any size with women in management positions much less a majority,” said Kim Verska, a managing partner. “Our clients already recognize the increasing importance diversity in their workplaces and encouraged us to pursue WBE certification to highlight Culhane Meadows’ fundamental commitment to creating a law firm partnership based on a true meritocracy where every member can flourish with real equal opportunity.”

Established in 1997, the WBENC has promoted diversity and made it a mission to encourage women’s business development. The nonprofit’s WBE certification is administered across the U.S., Puerto Rico, and the Virgin Islands and acknowledges businesses owned, controlled, and operated by women.

Culhane Meadows’ own mission statement says the law firm is committed to hiring and retaining the best no matter the gender, race, or creed. Of its managers, about 60 percent are women, according to the firm’s website.

“We were pleased to participate in the WBENC’s certification process,” said managing partner Jim Meadows. “Like the council and many of our Fortune-ranked clients, Culhane Meadows is committed to removing barriers and giving everyone a truly level playing field to achieve success regardless of background, gender, race, or family circumstances. We are proud to be a national leader in promoting women within the legal marketplace and creating a better way to practice law.”

Original author: Eric Quitugua
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Apffel: It’s Time to Get to Work

Editor’s note: The following column also appears in the December 2017 issue of the Texas Bar Journal.

As I write this column, I’m busy winding down my 35-year practice as a Galveston County trial lawyer. By the time you receive this issue of the Texas Bar Journal, I will have assumed the job as executive director of the State Bar of Texas. I am humbled and honored that the Board of Directors chose me for this position, and I look forward to working with the board, President Tom Vick, President-elect Joe K. Longley, Board Chair Rehan Alimohammad, our staff, and each of you to further the State Bar’s mission.

As I transition from volunteer leader to staff member, I think back on my first Texas Bar Journal column as president of the bar in 2014-2015. In it, I called for a “year of inclusion” to deepen engagement with our members and ensure our bar remained strong and prepared to meet tomorrow’s challenges. That was my commitment then, and that is my commitment today and going forward.

One way I’m demonstrating that commitment is by bringing back this Executive Director’s Page, which was a regular feature in the Bar Journal in the 1990s. I will use this space to update you on developments at the Texas Law Center and as a forum to answer your questions.

As president, one of my top priorities was improving and increasing our communications. The idea was not just to talk to you about what the State Bar does, although we accomplish many great things for many people. I also wanted to hear from you, our members, especially from segments of our profession who say the State Bar doesn’t understand your problems or represent your interests. Working together with our board and staff, we made progress toward this goal and took concrete steps to make your membership more valuable.

We redesigned to make it more user-friendly and adaptable to mobile devices. We continued the free CLE series for solo and small firm practitioners that started under 2013-2014 President Lisa M. Tatum and is still going strong today. We launched a significant new member benefit—free online legal research through Fastcase, making us the first and only state to provide lawyers with free access to both Casemaker and Fastcase (which have a combined value of about $2,000 per year). We also expanded the Texas Bar Private Insurance Exchange.

The State Bar has continued to advance under the leadership of Presidents Allan K. DuBois, Frank Stevenson, and Tom Vick—as I am confident it will under President-elect Longley next year and those who follow him as president. Today, the State Bar of Texas is a national leader in many areas, including lawyers’ assistance programs, young lawyer associations, and efforts to encourage pro bono services to military veterans and the general public. Our success comes on the shoulders of our volunteers, including the board, section and committee leaders, CLE speakers, and countless others who donate their time and work tirelessly for the bar. If you’re not currently volunteering for the State Bar, consider doing so. Give me a call and we’ll find an opportunity for you.

Still, with all our success, we can always do better. In my new role as manager of the State Bar’s day-to-day operations, I will work to make sure we are as efficient, transparent, and fiscally responsible as we can be.

If you have questions, I will answer them. If you bring criticism, I will meet it with a listening ear and an open mind. If you don’t like what we’re doing and there’s a better way to do it, I will consider the alternatives.

Simply put, I’m working for you. And it’s time to get to work.

Trey Apffel
Executive Director, State Bar of Texas
(512) 427-1500
This email address is being protected from spambots. You need JavaScript enabled to view it.
@ApffelT on Twitter

Original author: Trey Apffel
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State Bar accepting expressions of interest for 2018-2019 committees

The State Bar of Texas is accepting expressions of interest to serve on committees for the upcoming bar year.

Please fill out this form by December 8 to express interest in serving on a State Bar committee beginning in the 2018-2019 bar year, which starts June 1. Information provided in this form will be submitted to the president-elect for consideration when naming committee appointments.

State Bar committees are established by the Board of Directors and appointed by the president-elect to consider matters of interest to the bar membership, update professional materials, recommend changes to policies and procedures, and study legal issues affecting the legal profession and the public.

A list of committees and their roles is available at

Original author: Lowell Brown
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Free legal clinic for veterans in Katy

Veterans in Katy can receive free legal advice at a clinic hosted by the Katy Bar Association and Houston Bar Foundation’s Veterans Legal Initiative on Saturday, December 9.

The clinic will offer veterans, or spouses of deceased veterans, one-on-one advice and counsel from volunteer attorneys in areas of law including family law, wills and probate, consumer law, and real estate and tax law, as well as disability and veterans benefits.

Veterans who qualify for legal aid and are in need of legal representation may be assigned a pro bono attorney from the Houston Volunteer Lawyers.

The event will take place at the Katy VA Outpatient Clinic, 750 Westgreen Blvd., Katy 77450. No appointment is necessary.

Additional Houston Bar Foundation legal clinics take place Fridays from 1 p.m. to 5 p.m. at the Michael E. DeBakey VA Medical Center. For more information, go to

To view a list of other free veteran legal clinics around the state, please visit the State Bar’s Texas Lawyers for Texas Veterans website at

Original author: Eric Quitugua
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Texas Bar Journal Must-Reads for December

Can’t wait for the December issue of the Texas Bar Journal to arrive? Check out our editorial staff’s must-reads for a look at agricultural law and a holiday tradition at the Capitol. And don’t forget Movers and Shakers, Memorials, and Disciplinary Actions.

A River Runs Through It
Resolving the Rio Grande water dispute between the United States and Mexico.
By Ruben R. Barrera and Dan A. Naranjo

A Century-Old Tradition
The 2017 ornament celebrates 100 years of trees at the Texas Capitol.
By Adam Faderewski

Cybersecurity Compliance
Why the new rules in New York are important to businesses everywhere.
By Shawn E. Tuma

A Return to Form
A Houston criminal defense attorney is running again after surviving a heart attack.
Interview by Eric Quitugua

Original author: Eric Quitugua
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Texas prosecutors and county attorneys help Harvey-ravaged colleagues

Harris County Administrative Assistant Ruth Cortez, left, speaks to TDCAA Executive Director Robert Kepple and Harris County DA Kim Ogg after receiving a $1,000 check to assist her with her Harvey-damaged home. (Photo credit: Harris County DA’s Office)

In the wake of Hurricane Harvey, the Texas District & County Attorneys Foundation created a relief fund and asked people to donate to help their struggling peers. As a result, this week the foundation gifted $1,000 per person to 40 prosecutors, investigators, and administrative staff in eight South Texas counties.

“We know this is not a king’s ransom to anyone, but it is love from prosecutors around the country,” Robert Kepple, executive director of the TDCAA, said in a news release.

The foundation is the Texas District & County Attorneys Association’s fundraising 501(c)(3). The individuals who received the funds had to apply and meet certain requirements, including having an uninsured or unreimbursed loss of $5,000 or more as a direct result of Harvey. The recipients are from Harris, Aransas, Victoria, Orange, Jefferson, Montgomery, Refugio, and Fort Bend counties.

Recipients from the Harris County District Attorney’s Office were given their checks during a Tuesday luncheon, according to an office news release.

Ruth Cortez, an administrative assistant, who saw her roof cave in during Harvey, was among those to receive a check.

“This is a blessing,” Cortez recalled saying when she was first told she would receive the assistance. “You have me in tears right now.”

Original author: Amy Starnes
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Col. Robert Preston offers insights into the Air Force Judge Advocate General’s Corps

The U.S. Army Judge Advocate General’s Corps—one of the largest law firms in the world and the oldest firm in the United States—was founded by George Washington on July 29, 1775, with the appointment of William Tudor as the first judge advocate general. Five years later, Congress authorized the Navy JAG, and thereafter JAGs were established in the Air Force, Coast Guard, and Marines. The Air Force JAG comprises about 1,300 uniformed lawyers, 800 uniformed paralegals, and 900 civilians who are attorneys or legal support.

Col. Robert Preston, the Air Force JAG director of professional development and functional manager and career field manager, manages JAG standards and processes, officer assignments, and more. The Texas Tech University School of Law graduate has been a JAG since 1994 and has worked assignments stateside, as well as in Southeast Asia and Italy. From the Pentagon, Preston spoke to the Texas Bar Journal about his experiences and what future JAGs can expect as they begin their law careers with the Air Force.

What do you look for in prospects? What qualifications should they have?
The neat part about being a judge advocate is that, of necessity, you have to be a military officer, and so we look for a lot of the same kind of attributes of people who serve the military in other capacities, which is a real focus on service—some interest perhaps in travel and adventure. And people who value mobility and change.

From a standpoint of lawyers, we really don’t have a typecast to say that people should study only military law or something like that when they go to law school. We have a pretty wide-ranging practice, and so what we’re looking for from candidates, whether they be law students from whom we get about half of our accessions every year, are people who have what we call the basic blocking and tackling skills of being good writers, good advocates, and people who can stand on their feet and argue a case on behalf of the government in a federal court or in a military courts-martial. We’re looking for people who are adaptable, who might be interested in tackling more than one area of practice. We feel like we offer—especially to young people—some good opportunities to build skills and tackle several areas of practice.

What can entry-level advocates expect when they begin their careers in the Air Force?
For one thing, you are a commissioned officer in the United States Air Force; we put you through training that any officer would have to learn to be part of the military and effectively serve as an officer. From that you go on to training to be a judge advocate. We have what’s called the judge advocate’s staff officer course, where you learn all the basics of practice as a judge advocate. I think something that’s desirable about being a judge advocate is that we don’t put anybody in a position we haven’t trained them for. As people move along in their career, they’re given more training to accomplish the missions that are more complex as they move up the ladder.

Our basic areas of practice, what we call the base level when people come in as junior judge advocates, are really three things: (1) Legal assistance—young judge advocates help Air Force and other service members and their families with our version of legal aid; (2) Military justice—we train all judge advocates to be advocates in the military courts-martial and either be prosecutors or defense counsel in the future and in the distant future as they become more senior military judges; and (3) Wing commander—they work more or less as the adviser to an installation commander in environmental law, labor law, and government contract law, kind of the transactional and regulatory law that occurs at the base level.

Then quickly, because they’re military officers, they will deploy, supporting U.S. forces in overseas operations. So they may also do what we call international and operations law, what you might be familiar with as international law but focused on the law of armed conflict and the Geneva Conventions, as well as what we call operations law, which is the U.S. legal authority by which we conduct military operations in overseas environments.

When did you become a judge’s advocate and what motivated you to become one?
I am a Texas lawyer. I was admitted to the State Bar of Texas in 1994 after graduating from Texas Tech University School of Law. I originally enlisted in the military as a United States Marine and went to school on the Hazlewood Act. As I was finishing law school, some of the avenues that I had been interested in seemed to be closing because the market was bad. I took this opportunity and was selected in the JAG Corps as a law student. When I was admitted to the bar, I came on active duty in the Air Force. I’m an example of one of those folks who started off in those general areas of practice that we do—I did courts-martial when I was young, both prosecuting and defending them, and went on from that to do some work in government contracts, which is a big deal for the Air Force. I was later selected to receive an LL.M. in international and comparative law, which became my specialty for the Air Force for almost 10 years and took me to Italy several times and to the Middle East. I’ve been able to do pretty interesting things with that degree. And then for a variety of reasons, after doing a number of jobs in leadership and management, I was brought to the job I’m talking to you from right now, which is our office of professional development, where we do the cradle-to-grave human resource management for the JAG Corps.

Going in, did you have any expectations?
My expectation was to serve my country, certainly, but also to get some good experience. I never expected to stay for 20 years or more—in my case, 24 years. It turned out to be a rewarding career choice. I liked the variation in practice. I liked being able to explore areas that I never would have been able to get into had I gone into private practice or stayed in one geographic region. For example, being able to do international law for a decade was something I probably would not have been able to do coming out of law school and staying in Texas. Some of the experiences of deploying to the Middle East for Operation Iraqi Freedom and Operation Enduring Freedom and things like that have been rewarding.

Looking back, what would you say is a case you handled that you’re the most proud of?
It’s hard to say. There are many efforts that I’ve been part of that I’m pretty proud of. The most recent one I’m both proud of for the efforts that the team put together and also because I think it illustrates some of the opportunities you get as a JAG is a case in which I was the co-lead for the team that defended a highly classified bid protest for a plane called a long-range strike bomber. It was about a $20 billion contract, and we successfully defended that bid protest against a couple of major government contractors. It was rewarding to bring together a large team of government attorneys and contracting specialists to carry that thing across the finish line for a very important plane—what we call a capability for the Air Force.

What do you take away the most from your career?
We had a controversial case that was frustrating and we were having a tough time persuading our client to do something we felt was appropriate. It was going to take, frankly, going over that person’s head. As I was wringing my hands about that, my boss said to me, “You know, the best part about being a judge advocate is we have the luxury of doing the right thing.” That’s not only a desirable thing to have, it’s your honor-bound duty. You’re a military officer and you represent not only your agency, that is the Air Force, but your country. You really have a sense of purpose and integration with a higher calling, if you will, at least for me, than if you were doing something that was commercial.

What’s the best piece of advice you’ve ever received in your career?
That’s a tough one. I would say the best piece of advice I have received would be to keep a focus on the client and the client’s mission, never forgetting that the law is not an end unto itself, that you’re doing this for people. When I’ve been successful, it’s because I remembered that we’re not an end unto ourselves but we serve others, in this case the Air Force client.

What advice would you give to someone who is considering becoming a judge advocate?
It’s a great opportunity for the right person, but it’s very much about whether you’re the right fit for the organization rather than the organization being the right fit for you. I would urge people to talk to as many others as they can, research as much as possible, and figure out if it’s something that you would like to do. The other piece I would say is that people should not rule themselves out because they don’t come from military families or don’t come from a military background. We want the Air Force and the services to be open to everyone who feels a calling to serve. We find that there are people who have no affiliation with the military whatsoever who become outstanding military officers whether that’s as lawyers or other things. It’s a great calling for the right person.

Original author: Eric Quitugua
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Holiday shopping discounts

Your Beneplace Savings Program is your one-stop holiday shopping solution—find something for everyone on your list! Check out the Electronics, Flowers & Gifts and Entertainment categories to find great gift ideas.

HP – Save up to 40% on HP’s holiday favorites! Shop laptops, desktops, tablets and more, and enjoy exclusive pricing and seasonal savings. Samsung – In a holiday shopping slump? Check out Samsung! Enjoy exclusive, members-only pricing on their hottest products—including TVs, tablets and PCs. Blue Nile – Looking for a special present for that special someone? Save 10% on diamonds and fine jewelry with Blue Nile. Edible Arrangements – Edible Arrangements has freshly crafted bouquets and chocolate-dipped fruit boxes for any occasion! Save 10% on your next order. Discount Movie Tickets – From blockbusters to indie films, you can see them all with TicketsatWork! Save at a theater near you, including AMC Theaters, Regal, Cinemark and National Amusements. Premium Seats VIP Tickets – Premium Seats is your ultimate source for sports, concert and theater tickets nationwide! Find the best seats at the best prices—and check out VIP packages for travel packages, hotel accommodations, and much more!

Current offers provided by Beneplace.

For more information on other discounts you’re eligible for as a member of the State Bar of Texas, visit

Texas Bar Private Insurance Exchange
The Texas Bar Private Insurance Exchange is a multi-carrier private exchange designed for State Bar of Texas members and their staff and dependents. Available to both individuals and employer groups, the exchange offers a wide range of health insurance choices and more.

State Bar of Texas – Benefits & Services

Spend time on you—life doesn’t have to be all work and no play. Browse offers Office
Make your practice more efficient with new tools and programs. Browse offers Travel
Make your plans for anything and anywhere, from a much-needed vacation to a quick business trip. Browse offers Insurance and Finance
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Look through hundreds of offerings to find just what you need—and things you didn’t even know about. Browse offers
Original author: Staff Report
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Secretary Pablos Praises Texas Superintendents for Their Immediate Commitment to Participating in the 2017 High School Voter Registration Initiative

Texas Secretary of State Rolando Pablos today commended the many Texas superintendents who have pledged full participation in the 2017 High School Voter Registration Initiative.
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Secretary Pablos Convenes Second Border Trade Advisory Committee Meeting, Renews Focus On Cross-Border Energy Integration

Texas Secretary of State Rolando Pablos today convened the second Border Trade Advisory Committee (BTAC) meeting of 2017, which focused on opportunities for cross-border energy integration between Texas and Mexico.
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Secretary Pablos Marks National Voter Registration Day, Commends Texas Educators On Empowering Students Through Voter Registration

Texas Secretary of State Rolando Pablos invited all Texans to celebrate and participate in National Voter Registration Day on Tuesday, September 26th and praised Texas superintendents and principals for participating in his High School Voter Registration Initiative.
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Secretary Pablos Reminds Texans Early Voting Begins Monday, October 23rd

Texas Secretary of State Rolando Pablos today reminded registered Texas voters that early voting in person begins on Monday, Oct. 23rd, and runs through Friday, Nov. 3rd.
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Secretary Pablos Proclaims The First Friday Of Early Voting Period 'Student Voting Day' In Texas

Texas Secretary of State Rolando Pablos today issued a proclamation designating the first Friday of the early voting period to be Student Voting Day in the State of Texas.
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Top 10 from Texas Bar Today: Juries, Witnesses, and the Eiffel Tower

Originally published by Teri Rodriguez.

Top Ten LogoTo highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.

10. High-Tech Car Recalls: An Emerging Trend – Terry Bryant of the Terry Bryant @terrybryantlaw law firm in Houston

9. Be a Risk-taker for Your Legal Education – Professor Amy Jarmon, Assistant Dean for Academic Success Programs at Texas Tech University School of Law @TTU_Law in Lubbock

8. Preparing Difficult Witnesses for Trial — Part 1 – Barry Barnett of Susman Godfrey L.L.P. @contingencyblog in Houston

7. Supreme Court Accepts Cert in Microsoft Involving Search Warrants for Emails on Foreign Servers – Jack Townsend of Townsend & Jones LLP in Houston

6. Lawyer Reviews: Have they become meaningless? – Cordell Parvin @cordellparvin of Cordell Parvin LLC in Dallas

5. Is it Legal to Photograph the Eiffel Tower at Night? – Peggy Keene of Klemchuk LLP @K_LLP in Dallas

4. Affirming Jury’s Verdict After a Modification Trial – Matthew A. Knox of Laura Dale & Associates, P.C. @DaleFamilyLaw in Houston

3. 4 More Myths About Juries – Kacy Miller of CourtroomLogic Consulting, LLC @CourtroomLogic in Dallas and Fort Worth

2. Seventh Circuit Rejects Extended Leave – Thomas J. Crane @tomjcrane of Law Office of Thomas J. Crane  in San Antonio

1. Court rejects effort to avoid settlement agreement –  J. Michael Young of Sanders, O’Hanlon, Motley & Young in Sherman

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Teri Rodriguez
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TOJI’s second cohort up and running

Originally published by Eric Quitugua.

From left to right: Chase Gall, Nathan Ossowski, Philip Glasser, Russell Sloan, Kay Covarrubia, Kristina Chung, Jennifer MacGeorge, Tony Sun, Marshall Sales, and Eugene Haller.

The second cohort of the Texas Opportunity & Justice Incubator, or TOJI, kicked off October 2, 2017, in Austin with a group of 10 new attorneys ready to learn the ins and outs of running a successful law practice.

The 18-month program is a State Bar initiative to close the access to justice gap and is the first statewide legal incubator in Texas. The TOJI participants are provided hands-on skills and knowledge they’ll need to establish their own law practices serving low- and modest-income Texans. The cohort follows the inaugural group of attorneys who began with TOJI’s launch in April.

“Solo practice lawyering—especially when you are just getting started—can be a very lonely, insulated experience,” said Austin-based family law and criminal law attorney Eugene Haller. “I wanted to be in a group where we bounced ideas off one another, worked together, and referred each other clients.”

Haller has already begun collaborating with TOJI cohorts, with plans in place to second chair trials with three participants, develop video marketing with one, and co-write an article for a local publication with another.

The cohort started their 18-month journey with a three-week boot camp focused on establishing a business and getting and retaining clients. The lessons included discussions on setting retirements goals and considering expenses that may get in their way.

Russell Sloan, a Florida State University graduate, moved to Austin in early October to work in business and employment law. Sloan pointed to first-day discussions such as alternative billing methods versus flat fees for clients, as an example of how TOJI can guide him as he opens his own firm in the upcoming weeks.

“I want to help someone out who says he or she wants to open a food truck but doesn’t know where to start,” he said, adding that he wants to assist his clients with tax information and defense work.

Participants sent applications online to TOJI Director Anne-Marie Rábago and her staff, who select a new group of attorneys every six months. Each cohort has a maximum of 10 attorneys—at one time, including all cohorts, there is a maximum of 30.

Family law attorney Kristina Chung, who applied to TOJI after receiving an email from Rábago, said the program can steer lawyers away from pitfalls like wasting money and will point them to new resources and services, such as Fastcase and Casemaker, and different CLEs. Even more important, she said, TOJI allows her to see similarities in how other attorneys run their firms, offering them a safety net to make mistakes.

“I think it’s a very diverse group of people,” Chung said. “It allows you to fail without thinking, I’m the only one.”

TOJI will begin accepting applications in November for the third cohort, which will begin in April 2018. For more information about the program and how to apply, go to

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Eric Quitugua
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Seventh Circuit Rejects Extended Leave

Originally published by Thomas J. Crane.

If a person needs an extended leave for treatment for a bad back, would the ADA require an employer to allow him an extra few months? The Seventh Circuit in Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. 9/20/2017), said no. Ray Severson, left work for his full 12 weeks of unpaid leave under the FMLA. He then told his employer he would have to undergo surgery on his back. He needed disc decompression surgery. He would need at least two months off from work for recovery. HR told him his last day would be the last day of FMLA. HR added that he could reapply for his position when his treatment ended. In effect, he was fired. Later, when Mr. Severson recovered and was cleared to return to work, he sued is employer, saying the employer had failed to accommodate him.

The plaintiff argued on appeal that the company could have offered him long-term leave, a light duty job, or reassignment to a vacant job. The Seventh Circuit, however, simply ruled that a long-term leave is not viable/ Not working, said the court, is not a means to fulfill the essential functions of the job. If the employee cannot perform the essential functions of the job, then he is not qualified for the job. The court noted that EEOC guidance expressly states long-term leave is a possible alternative under the ADA, if the leave is of definite duration, is requested in advance, and is likely to enable the worker to return to work. But, the court insists if the EEOC’s position as correct, then the ADA would become a medical leave act. It would supplant the FMLA.

The decision contravenes caselaw in other circuits which have found long-term leave to be a viable option. See, e.g., Walsh v. United Parcel Serv., 201 F.3d 718, 727 (6th Cir. 2000) (reasserting requirement for individualized analysis but not requiring accommodation because even after one year’s paid leave, followed by five months unpaid leave, plaintiff’s homeopathic physician only offered the vague possibility of returning in one to three more years, and suggested no other work he could do); Cleveland v Fed. Express Corp, No 02-3172, 2003 US App LEXIS 24786, at *13 (6th Cir Nov 28, 2003) (unpublished) (finding leave from August 20, 1997 to February 1998, extended to March of 1998 (6 months total) not unreasonable).

The court did not ask whether long-term leave would have presented an undue hardship for the employer. It found, instead, as a blanket rule, that leave longer than the FMLA leave of three months is per se too long. A blanket rule does not satisfy the individual assessment requirement of the ADA.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Thomas J. Crane
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Save with member discounts

Originally published by Staff Report.

Treat yourself to great savings with your Beneplace Savings Program! As a State Bar of Texas member, you have access to exclusive deals on thousands of products and services. Your Beneplace Savings Program has discounts on apparel, shoes, wholesale club memberships, and much more.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

Original author: Staff Report
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