State Bar board to consider updated president-elect recommendations at September 25 meeting

Originally published by Staff Report.

Editor’s Note: The State Bar of Texas sent to following message to members on September 1.

The State Bar of Texas Board of Directors’ Nominations and Elections Subcommittee voted to recommend the nomination of Sara E. Dysart of San Antonio as a candidate for 2021-2022 State Bar president-elect, after E. Leon Carter of Dallas withdrew his name from consideration.

Dysart joins Laura Gibson of Houston as the subcommittee’s recommended president-elect nominees. The State Bar board will consider the recommendations during its virtual meeting on September 25, which will be broadcast at youtube.com/statebaroftexas. If the board approves their nominations, Dysart and Gibson would appear on the ballot in April 2021 along with any certified petition candidates.

Potential petition candidates can begin collecting signatures on September 1, 2020, and have until March 1, 2021, to submit their nominating petitions to the State Bar for certification. For information on how to run for president-elect, go here.

This year, the subcommittee considered candidates from metropolitan counties, in compliance with State Bar rules. Click the names below to read the potential nominees’ interest letters to the Nominations and Elections Subcommittee.

Sara E. Dysart

Laura Gibson

Nominations Sought for At-Large Director

The State Bar of Texas is accepting nominations through December 1 for an at-large director position on the board of directors. Four at-large positions are appointed by the State Bar president subject to board confirmation. One position will become vacant in 2021. At-large directors serve three-year terms. The term begins June 17, 2021.

In making the appointments, the president is required to appoint directors who demonstrate knowledge gained from experience in the legal profession and community necessary to ensure the board represents the interests of attorneys from the varied backgrounds that compose the membership of the State Bar of Texas.

For information or to submit a nomination, go to texasbar.com/atlarge.

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The Blessing of Planning Ahead

Originally published by Rania Combs.

Many years ago, I wrote an article called: What What You Do If You Had 46 Days to Live?

It referenced an article about a man named Rob Jaffe, whose doctors diagnosed him with a rare blood disease that took his life in just 46 days.

Rob’s brother, Chuck, who wrote the article, to help others learn about the value of estate planning.

Two years before his diagnosis, Rob had visited a lawyer and finalized his estate planning documents. It allowed Rob to spend his final days focusing on the people and things that mattered most, rather than visiting with lawyers, making estate planning decisions, and worrying that he lived long enough to file legal documents.

I thought about that article this month because I worked with a client whose estate plan was not current when doctors told him he would die within a week.

Despite all the stress related to his diagnosis, he wanted to make sure that his legal affairs in order. His primary concern was not leaving a mess for his wife, whom he loved very much.

There were so many loose ends to tie. He needed to:

• Finalize and execute his estate planning documents (finding a notary who would be admitted to a hospital with Covid restrictions was challenging);
• Review his financial accounts to make sure he designated beneficiaries consistent with his wishes; and
• Mail documents to the court clerk because court closures prevented recording the document in person.

His wife helped. Everything got done before he died on Friday.

His death was heartbreaking. Not only because a life cut short is always heartbreaking, but also because he was forced to spend a significant amount of his last few days focused on legal and financial details instead of the things that mattered most.

Life is fleeting. Despite our plans and seemingly good health, really tragic and life-altering things can happen in an instant, especially with a deadly virus lurking.

Dust off your plans. Read them through to ensure they still accomplish your goals. If you would like to make changes, do it right away. Planning ahead is a blessing.

 

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Title VII, Section 1981, and the Limits of Protected Activity

Originally published by Seyfarth Shaw LLP.

By Honore N. Hishamunda and Brett C. Bartlett

Seyfarth Synopsis: Managing employees engaged in potentially protected activity can be tricky when disciplinary and other normal employment actions might be misconstrued as unlawful retaliation. A recent decision from the United States Court of Appeals for the Eleventh Circuit, however, makes clear that employers may manage employees engaged in protected activity, and that an employee can lose statutory protection when engaging in otherwise protected activity in an unreasonable manner.

Title VII and Section 1981 prohibit employers from retaliating against employees because they have engaged in statutorily protected activity, including – among other things – opposing unlawful practices or filing a charge of discrimination with the EEOC. Employers remain free to take adverse employment actions, including discipline up to and including termination, against employees who have engaged in protected activity but only when there is a legitimate, non-retaliatory reason for taking the adverse action.

What happens when employee engages in misconduct and statutorily protected activity at the same time?  Does the employee’s activity lose the benefit of statutory protection because they engaged in misconduct?  To the extent the activity is still protected, can the employer discipline or fire the employee for the underlying misconduct?

These were the very questions presented to the United States Court of Appeals for the Eleventh Circuit in its recent decision – Gogel v. Kia Motors Manufacturing of Georgia, Inc.. The court’s answers provided clarity on (a) how employers may take legitimate, non-retaliatory employment actions against employees engaged in workplace misconduct even though such misconduct touches on protected activity; and (b) when otherwise protected activity may lose statutory protection.

Andrea Gogel previously worked in Kia’s human resources department as a Team Relations Department Manager. In her role, she was responsible for overseeing workplace investigations, notifying the HR department’s manager about the results of the investigations, and making recommendations about what to do next. While still employed with Kia, Ms. Gogel filed a charge of discrimination with the EEOC alleging that Kia discriminated against her because of her gender and national origin by not naming her as head of department. Straightforward so far, but the plot thickens.

After learning from the EEOC of her charge, Kia received reports from multiple employees that Ms. Gogel not only encouraged a co-worker to sue Kia for alleged workplace discrimination and harassment but also recommended that her co-worker use her lawyer to do so. Despite Ms. Gogel’s efforts to deny her co-workers’ reports, Kia was understandably distressed that an HR professional on its team might have been encouraging employees to make employment law claims against it. This was certainly not something appearing in her job description, and undoubtedly not only impacted her ability to perform her job but also denied anyone else in the organization – whether that be employees in the HR team or the legal team – to do their jobs in mitigating legal risk. Accordingly, having lost confidence in her ability to do her job and no doubt feeling betrayed, the company, unsurprisingly, bid her farewell, terminating her employment for her dereliction of critical job duties.

Ms. Gogel filed a lawsuit in the United States District Court for the Northern District of Georgia alleging, among other things, that Kia unlawfully retaliated against her because she had filed her charge of discrimination with the EEOC. The District Court granted Kia’s motion for summary judgment, finding that the company terminated the HR professional for a legitimate, non-retaliatory reason – soliciting a coworker to file a charge against Kia, an act that was in direct conflict with the responsibilities of her important role.

Ms. Gogel appealed to the Eleventh Circuit arguing that Kia’s stated reason for firing her was actually pre-text for retaliation, and that soliciting a coworker to sue the company was, in addition to filing a charge, in and of itself protected activity. The Eleventh Circuit rejected Ms. Gogel’s arguments and affirmed the District Court’s order granting summary judgment for her employer.

The Eleventh Circuit held that though Ms. Gogel engaged in protected activity by filing her charge, Kia had a legitimate, non-retaliatory reason for terminating her employment that she could not establish was pretext for unlawful retaliation. The Court found that:

• Despite Ms. Gogel denying that she recruited another employee to sue Kia, the company had a good-faith belief that she did so given the multiple reports from co-workers;
• Kia had a legitimate reason, non-retaliatory reason for firing Ms. Gogel – recruiting another employee to sue the company;
• Though Kia exited her within a few months of her charge, Ms. Gogel failed to show that the company’s reason for doing so was pretext for unlawful retaliation because Kia (i) had given her a discretionary bonus and commended her for her good work after she filed her charge but before learning about her workplace misconduct; and (ii) only fired her after learning about her possible workplace misconduct.

The appellate court also held that though Ms. Gogel’s decision to recruit another employee to sue Kia may be characterized as opposition to potentially unlawful conduct, it did not constitute protected activity. The court highlighted several key legal principles (noted below) that should help guide employers as they navigate the limits of protected activity:

• An employee’s statutory protections are not absolute;
• An employee must express protected activity in a reasonable manner, and reasonableness is determined by balancing the need to protect individuals asserting their statutory rights with “an employer’s legitimate demands for loyalty, cooperation, and a generally productive work environment”;
• An employee’s otherwise protected activity loses statutory protection when it so interferes with the performance of their job duties that it renders the employee ineffective in their job – something the EEOC’s own Enforcement Guidance on Retaliation and Related Issues recognizes in providing that:

1. “[T]he protection of the opposition clause only applies where the manner of opposition is reasonable”
2. “Opposition to perceived discrimination also does not serve as license for the employee to neglect job duties”
3. “If an employee’s protests render the employee ineffective in the job, the retaliation provisions do not immunize the employee from appropriate discipline or discharge”

• An employee’s otherwise protected activity also loses statutory protection even where it doesn’t interfere with an employee’s job duties if the activity “is expressed in a manner that unreasonably disrupts other employees or the workplace in generally”

The Eleventh Circuit then found that Ms. Gogel’s decision to recruit an employee to sue Kia was “in direct conflict with her [HR] job responsibilities.”  Further, the court noted that the company “could no longer trust” her to do her job given that she was “expected to interact with complaining employees in an effort to internalize the resolution of any complaint and thereby avoid, if possible, the external resolution of that [internal] complaint, such as the filing of an EEOC charge and a subsequent lawsuit.”

This decision confirms the fundamental axiom that employers may take appropriate disciplinary action against employees engaged in protected activity so long as they have a legitimate, non-retaliatory reason for doing so. It also highlights a more nuanced, but no less important, principle: an employee’s right to engage in protected activity is not absolute and, instead, an employee can lose statutory protection when engaging in otherwise protected activity in an unreasonable manner.

If you have any questions regarding this area of law, need assistance in evaluating whether an employee has engaged in protected activity or in assessing the legal risks associated with disciplining or terminating an employee who has engaged in possible protected activity, or require representation in defending a charge of discrimination or lawsuit, do not hesitate to contact either of the authors, your Seyfarth attorney, or a member of the Firm’s Workplace Policies and Handbooks or the Labor & Employment Teams.

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Why Do Clients Hire You?

Originally published by Cordell Parvin.

Have you ever asked yourself or your clients why they hired you rather than the many other good lawyers they could have chosen?

I had not given it too much thought until a lawyer I coached asked me.

What are the top 2 reasons you think that clients sought you out and retained you . . . . :

        a)  During the first 1-10 years you began practicing law? 

        b)  During the years following year 10?

        c)  And during the final years you were actively practicing law?

In the beginning I got hired because I started specializing and took the time to learn things that less specialized lawyers did not know.

For example, each State Department of Transportation has what is called The Standard Specifications for construction. They are contained in a book (you can get them on line now). I remember one of my very first clients said:

Cordell you are the first lawyer who we do not have to explain the Standard Specifications to. We resent being charged by others for something they should already know.

So, having done my homework was at least one reason. I also got hired because I wrote a law review article and made sure all my potential clients received a copy.

After 10 years I got hired because I was writing and speaking all over the country. I wrote a monthly column for Roads and Bridges magazine.

I also created content in booklets, Guides and Workshops. I even created a video.  So, I had became more visible and more credible to a greater number of “weak ties” who recommended me.

I believe clients also hired me during that time period because I had built relationships. My friends were my clients and my clients were my friends. Finally, clients hired because I got results and got them quickly.

Even though you only asked for two reasons, there was an important third reason. After 10 years I knew a great deal about the the transportation construction business. I gained this knowledge by reading books, engineering journals and magazines.

In the last few years of my practice, I worked for fewer clients who sent more work. Over years I had gotten favorable results for those clients and became friends with the client representatives.

I also spent a great deal of non-billable time with my best clients teaching and acting as a trusted advisor. I was hired by a few new clients in a specialized area because I was perceived to be the number one lawyer in that niche by the contractors. They typically recommended me to their local law firms. So, I acted as the subject matter expert.

Are you in your first 10 years, second, or near the end of your career. Have you thought about why clients are hiring you? What can you learn and apply from my experience?

 

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The Collective Knowledge Doctrine Generally

Originally published by Jason B. Freeman.

In white-collar criminal cases, the government often uses the collective knowledge doctrine to impose criminal liability against a corporation based upon the so-called collective knowledge of its agents.  The collective knowledge doctrine provides that the individual knowledge of a corporation’s agents can be aggregated—to provide the “collective” knowledge of those agents—for purposes of criminal liability.  The doctrine’s origins stem from an attempt to prevent a corporation from avoiding criminal liability by merely compartmentalizing the duties of its agents.

A corporation, of course, is incapable of actually forming the mens rea necessary to commit a criminal act.  Its knowledge and intent—in other words, its mens rea—must be imputed from that of its agents.  But as noted below, the law has drawn a distinction between utilizing the collective knowledge doctrine as a foundation for inferring “knowledge” and “intent,” respectively.

Because corporations are “legal persons” under the law, they are capable of suing, being sued and—most importantly, for purposes of this post at least—committing crimes.  As the Supreme Court has held, “[t]he acts of a corporation are . . . the acts of all of its employees operating within the scope of their employment.”  As a result, the law governing corporate criminal liability reflects this.

Historical Treatment

Traditionally, the doctrine of respondeat superior held corporations liable for the illegal actions of employees acting within the scope of their employment for the benefit of the company.

In 1987, the Supreme Court, in United States v. Bank of New England, sanctioned the use of another mechanism to hold companies criminally liable – the collective knowledge doctrine. Under this doctrine, a company is charged with having the sum of the knowledge of its employees, allowing prosecutors to combine pieces of knowledge held by individual employees and to attribute the totality of that knowledge to the corporation as a basis for criminal liability for the company.

The court in Bank of New England justified the collective knowledge doctrine because a corporation subdivides duties and operations, and therefore—under the doctrine—is responsible for the sum of the knowledge of all its employees.

How Does the Collective Knowledge Doctrine Compare to the Doctrine of Respondeat Superior?

The collective knowledge doctrine differs from the doctrine of respondeat superior in that it allows the knowledge from multiple individuals to be combined to form the basis for criminal liability even though individual employees may not, themselves, actually possess the requisite information to establish criminal liability.  Respondeat superior, on the other hand, requires that a single individual maintain all the knowledge necessary to hold the company liable.

The doctrine is also distinct from the willful blindness doctrine, a separate doctrine impacting corporate liability.

Limits of the Doctrine

The collective knowledge doctrine does not extend to intent, and therefore may not be used to establish a corporation’s intent.  If no single employee possesses the requisite culpable state of mind required for the crime, intent may not be combined from that of multiple employees to establish the requisite intent to hold the corporation criminally liable.

Some Courts Remain Reluctant

Although the collective knowledge doctrine has existed for decades, many courts remain reluctant to apply it because it allows a corporation to be punished for knowledge-based crimes when they actually only possess only negligence—the knowledge is, in effect, constructive. Courts have dealt with the scienter issue differently, some requiring that there be a single officer of the corporation engaging in the prohibited act with the requisite mental state, while others allow for the knowledge of any employee to be considered collectively.

One circuit court recently attempted to carve out a middle ground, specifying certain types of individuals that can be used to determine whether the corporation had the requisite scienter. Such inconsistencies allow the collective knowledge doctrine to be applied in different ways, leading to  the possibility of different outcomes for corporate defendants depending on the prosecuting jurisdiction. The doctrine, by its very nature, allows for a level of judicial discretion with respect to the pattern of inferences and aggregations that will sufficiently establish knowledge.

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Nesting: Is it Right for You?

Originally published by Chris Kirker.

For many splitting spouses, the top priority during a divorce is the well being of their children. Courts, too, must make decisions in accordance with the children’s best interests. In terms of child custody, one common choice for courts and families in recent decades has been split custody between joint managing conservators. In such custody arrangements, both parents exercise some rights to decision-making about the children’s upbringing and the children split their time between parents according to a predetermined custody schedule, such as a 50/50 split.

Despite the benefits of this approach (consistency and predictability), some families feel that traditional split custody plans can nonetheless be a jarring experience for their children. This is understandable. The divorce process can create many questions for children. Add in the difficulties of switching between parents every few days and the desire for an alternative emerges.

As a result, some families have turned to alternatives to the traditional approach to custody; alternatives that avoid or reduce some of the drawbacks of traditional custody plans. One such alternative is “nesting.” Unlike a traditional custody plan, in which children are transferred between the parents, nesting co-parenting plans entail the children continually residing in a single dwelling (usually the marital residence), while the parents rotate in and out according to a predetermined schedule. Please continue reading below for a quick rundown of a few of the pros and cons of nesting.

 

What Are the Benefits of Nesting?

The overriding benefit of nesting is the significantly increased level of stability for the children. The difficulties that divorces pose for spouses are often compounded for children. And while many parents are able to view divorce as an “adjustment” or a “new path forward,” many children have difficulty understanding the realities and consequences of divorce. Nesting provides an avenue for parents who wish to soften the blow of a divorce on their children’s family life. Children who live in a nesting environment may be better able to maintain their social lives (including existing friendships, school attendance, and extracurricular activities) without interruption. This provides kids with an opportunity to adjust to their new family life with fewer distractions.

Nesting can also reduce many of the other stressors that accompany the divorce process. Many parents relay that when their children’s needs are addressed, the other aspects of divorce are significantly less taxing. In this way, nesting can help those parents who seek the least stressful divorce process possible.

 

Are There Any Drawbacks to Nesting?

Of course, the benefits of nesting do not come without their own costs, financial and otherwise. Before opting for a nesting plan, it is important to consider a few important factors.

First: costs. In addition to maintaining the current marital residence, nesting requires parents to acquire additional housing. It is easy to see that if both parents obtain modest apartments, the overall costs of three separate residences can quickly reach cost-prohibitive levels. Even wealthy families have found nesting to be a difficult choice if both spouses wish to maintain their current standard of living.

Second: high level of cooperation between spouses. Like any co-parenting plan, both parents must be on the same page for the plan to work. But unlike traditional co-parenting schemes, nesting requires an especially high degree of coordination. While separating spouses generally share an objective in their divorce (such as the best outcome for their children), they may have different opinions on how to achieve that goal. Indeed, even couples who begin on the same page may quickly find their paths diverging when confronted with the multitude of issues that inevitably arise during the divorce process. The level of cooperation necessary for successful nesting plans requires a degree of selflessness that many spouses have difficulty maintaining for the duration of the divorce.

Finally: timespan. The previous two concerns, and other practical considerations, generally mean that nesting is only a temporary solution. Children need stability, but so do parents—and long-term parental stability can be difficult to achieve when both parents maintain multiple residences. For this reason, most couples who execute successful nesting plans do so with an agreed-upon expiration date (generally, the finalization of the divorce). This temporary duration provides two key benefits. First, it gives children time to adjust to their parents’ new (separate) roles. Second, it gives parents a breathing room to resolve important issues, such as their permanent >post-marital residences and new financial considerations for their separate lives.

Whether your children would be best served by a traditional custody plan or a nesting co-parenting plan, the lawyers at Kirker│Davis LLP are ready to help. If you have questions about the best path forward for your children, please contact Kirker│Davis LLP to discuss your custody options with an attorney today.

 

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Report details Texas jury trials during COVID-19 pandemic

Originally published by Staff Report.

Editor’s Note: The Office of Court Administration issued the following news release on August 31.

The Office of Court Administration (OCA) released its report on Jury Trials During the COVID-19 Pandemic today as required by the Supreme Court of Texas’ Twenty-Second Emergency Order Regarding the COVID-19 State of Disaster. The report contains observations from the 20 jury trials held in the state since March 2020, including details from the nation’s first virtual criminal jury trial.

“A hallmark of our justice system is the right to a jury trial,” said Nathan L. Hecht, Chief Justice of the Supreme Court of Texas. “The pandemic has challenged our ability to safely deliver on that promise, but through the efforts of many Texas judges, clerks, court staff, and attorneys over the past few months, today we have a roadmap to resuming those jury trials, even if that roadmap will be restricted to ensure the health and safety of the public. My colleagues and I look forward to reviewing the recommendations made by OCA today.”

Prior to the pandemic, Texas courts averaged 186 jury trials per week. However, jury trials have been suspended through October 1 by the Supreme Court of Texas except for in limited cases assisted by OCA and the Regional Presiding Judges.

“Conducting jury trials during the pandemic requires a tremendous amount of planning from all participants including judges, clerks, attorneys, and court staff,” said David Slayton, Administrative Director of the Texas Office of Court Administration. “Going to court often isn’t a choice; it’s a requirement. I am so proud of the professionalism and attention to detail that the judiciary has taken to keep all Texans safe as they engage with our courts throughout the state.”

The report outlines 11 recommendations for continuing to safely conduct jury proceedings moving forward. Recommendations include:

• Limiting jury proceedings to district and county courts only through December 31.
• Allowing all courts to conduct virtual jury proceedings except that in jailable criminal jury trials, virtual jury proceedings should only occur with appropriate waivers and consent of the defendant and prosecutor made on the record.
• Requiring the local administrative district judge and presiding judge of a municipal court to submit jury plans for counties and cities consistent with guidelines for conducting jury trial proceedings issued by OCA.
• Requiring consultation with a local health authority not more than five days prior to the jury proceeding to verify local health conditions and plan precautions are appropriate for the trial to proceed.

Despite the limited jury trials occurring throughout the state, Texas judges’ have been busy keeping justice moving forward through online hearings via Zoom. Since March 2020, judges have held an estimated 440,000 remote hearings, with more than 1.3 million participants, lasting almost 1 million hours during the 6-month period.

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