Allan K. DuBois
2007-2008 President
San Antonio Bar Association

 

August 2007

Many years ago, I received a gift from my parents; an “antique” library stand, with an ancient foot-thick Funk and Wagnall’s dictionary, which has served me well.  I returned to my trusty research tool to pen this inaugural column as SABA President, compelled to reflect upon this challenging and humbling office; a symbol of service to our profession.  My dictionary defines a “profession” as “an occupation that properly involves a liberal education or its equivalent, and mental rather than manual labor; especially, one of the so-called learned professions; law, medicine, and theology.”

Over three decades of “hitting the books,” including those found in the law library on the 5th floor of the old Courthouse adjacent to the SABA offices, I have frequently passed the wall containing the photographs honoring the prior service of more than a half century of past Bar Presidents.  Initially (like the reprint of the 1925 Bench and Bar photograph that hangs in my conference room), these depicted professional leaders were initially all “Anglo” males, unknown to me except by good reputation.  In the more “modern era” (since 1974), I have known all of the Bar Presidents personally.  It is evident from this pictorial wall of leaders that evolving during the time I have been a lawyer in our community we have elected Hispanics, women, and African-American attorneys to lead our organization.  I have been privileged to serve in some capacity in virtually all of those administrations; first as an officer in Young Lawyers, then committee work, and as a member of their Boards of Directors.  Without fail, my predecessors, all fine lawyers or jurists, have laid a solid foundation for the growth, influence, and capacity for good, inherent in this organization.  Now our Bar is at its highest point, thanks to Lamont Jefferson’s excellent leadership.

Despite the limited pedigree of this “current occupant,” the President’s office demands a deft hand to balance precedent with progressiveness to define and achieve evolving goals, inclusive of all members of our profession.  It is a formidable task to lead this group of highly intelligent, motivated, and potentially adversarial colleagues.  In electing our recent Boards, virtually all of the positive aspects of our rich multi-cultural legal heritage remain intact, with new faces rising through the ranks.

Clearly, most lawyers are dedicated people who entered the profession because they wanted to “make a difference” or “be of valuable service” by way of helping their clients.  I would like to insure a SABA that is even more inclusive; one that secures and provides the opportunity for leadership recruited from our broadest base of bright young professionals of like mind.  With your help and support this year, I will strive to publicly continue the fine work of these venerable mentors on our “wall of honor,” in harmony with our brother and sister organizations, and the specialty bar leadership.  It is important to earn respect and educate the public about the good works lawyers do, and support the integrity of the Judicial system.  We can demonstrate our entitlement to the dictionary’s historical listing of law as the most respected of the “learned professions.”  Please dedicate some of your precious time to furthering the goals of our profession by willingly serving on our many committees, and in other visible areas of your choice beneficial to our community.  Through our combined efforts and example, we can do much as a group to inform the public.  I will do my best to be the organizational spokesperson for your good ideas, and, if necessary, to “set the record straight.”

We can all begin by participating in the Community Justice Program as volunteers to help those who can least afford representation; to have rights protected by the “best of the best” in the highest pro bono tradition.  Additionally, we can provide the charitable support necessary to maintaining this crown jewel of our professional service commitment, by financially sponsoring its efforts, while having fun with our friends, at our annual Installation Dinner and Dance September 15, 2007, at the spectacularly restored Pearl Corral.  Let’s have a great year!

 

September 2007

A year ago, almost to the day, the venerable “lawyer down the hall” turned out the light in his office for the last time.  He had been struggling for many years with chronic obstructive pulmonary disease, and succumbed from emphysema.  For more than 30 years, I learned from Paul McDonald Green, as we worked hard and played hard, in the grand tradition of trial lawyers.  A true gentleman, mentor and colleague, his door was always open for professional and personal counseling of any lawyer.

In retrospect, I was given a priceless gift: the valuable time and immediate access to the wisdom of a principled man—the highest of human resources.  Before the advent of law school educations, lawyers were trained in an apprenticeship setting, where the practical and ethical principles of “lawyering” were instilled before beginning practice.  Most of us, although credentialed educationally and certified by examination, initially brought few practice skills to enable us to thrive in the highly competitive and stressful environment of our profession.  Paul’s job offer, following my Army JAG service, to join his firm (the only one I ever practiced with), granted me the privilege to “apprentice” with him and other fine lawyers.  Each colleague, in a unique way, filled my need for a wise “lawyer down the hall.”

In the last year of his life, I nominated Paul for the Joe Frazier Brown award, not as part of a grass roots draft, but rather to chronicle my own respectful thoughts, in a fond missive which he never knew existed.  I observed about this very private and humble man: “I have not enlisted the legions of lawyers, judges and court personnel who have respected and loved him over the years.  Undoubtedly they would join me, if afforded the opportunity to honor him … a true ‘lawyer’s lawyer’.” I then dutifully detailed his many lifelong accomplishments in the profession (bar leadership in local and state organizations; Fellow in the American College of Trial Lawyers; Colonel in the U. S. Army JAG (Reserve); recognized in “The Best Lawyers in America” since its inception).  I deliberately left out one accomplishment—but the most important one to me.

In 1991 this fine man played a pivotal role in saving my career, and probably my life.  Paul and his “band of brothers,” (my law partners, Beb Ladon, Tom Coughlan, Steve Lang, Neill Boldrick, Jr., Jack Fisher, and my closest friend in the firm, Mark Cannan) with the assistance of friends, undertook a necessary “Intervention.”  I was not willing to admit that the chronic, progressive, and often fatal disease of alcoholism was threatening my very existence.  Paul’s caveat was one I accepted on faith” “do as I say, not as I do”, regarding my drinking.  I barely admitted a “little problem,” but disingenuously stated it was nothing I couldn’t control.  Rightfully, this lame defense fell upon deaf ears.  Reluctantly, I benefited from a form of “tough love.”  Unlike many others who have no health insurance or law firm structure, or close professional friends to assist in their recovery, I was blessed with more than “moral support.”  Any concern that “my clients would suffer” if I was hospitalized was quickly dispelled.  These good people assumed my practice, and made sure that my family would not lose income.  My only “job” was to fully participate in medical rehabilitation and treatment, get well, then return and contribute, as the decent prospect they had hired years before.

My long and complex recovery story may merit telling, but in a different forum.  Suffice it to say that I would not have been in a position to want or accept treatment for a terribly destructive disease whose primary symptom is denial, without the forceful and special insistence of Paul and the other “lawyers down the hall” who I trusted and respected.  I will never forget my post-treatment office homecoming.  Anxious about my reception, the first thing I saw was a big yellow ribbon hanging on my door.  Then I was warmly greeted by all of the wonderful people in our firm’s “family,” like a prodigal son.  I was gratified and inspired to hold up my end of the bargain, and reward their investment in me.

In these intervening years, through a program of recovery, I have come to enjoy the gift of sobriety, both personally and professionally, all made possible by the compassionate efforts of my “lawyers down the hall.”  For the past 16  years, I have participated with those friends in the weddings of children and the joys of grandchildren. Also, ironically, I’ve had the opportunity to serve the profession in this new “area of expertise.”  I certainly didn’t set out in my career to be a “role model for recovering lawyers;” however; the redirection of my life’s path gave me a special opportunity for unplanned work.  I have been able to share my experience, strength and hope on the Professional Enhancement Panel of the Grievance Committee; Chairing the Texas Lawyer’s Assistance Committee, and working in its volunteer statewide organization, Lawyers Concerned for Lawyers.  Last year, I was privileged to serve on State Bar President Martha Dickie’s Task Force on Lawyer Mental Health, introducing the acclaimed CLE video on Depression in the Legal Profession, “Practicing in the Shadows.”

In recent years, Paul obliquely indicated that he was proud of me, and later, I was able to be there for him.  I would sometimes share a thought from my Daily Meditations for Men.  Paul’s favorites included:  “sit loosely in the saddle of life” (Robert Lewis Stevenson).  In all the years I knew him, including in the stress and chaos of trial, then terminal disease, he was always the picture of serenity.  This served him well to the end of his life, as he positively touched many other lives.  I still have phone access to most of the other “lawyers down the hall” from my past, to which I remain eternally grateful.  There are also some new ones, who I have come to know better through our local “Thursday Night Group” of legal professionals in recovery.  Incongruously, although I am a sole practitioner, I still consider myself to be “a lawyer down the hall;” a potential resource to any lawyer needing someone to talk to, in any areas affecting mind, body and spirit, including depression.  We proudly work in a wonderful profession which provides so much opportunity for service to our fellow man.  Most attorneys fortunately will not ever battle any similar diseases.  However, for all of us, life experiences, especially those gained in the ethical practice of law, make one well qualified to be “the lawyer down the hall”—a positive influence in the lives of those who like what they see, and who seek to follow a genuine leader.

 

October 2007

I have a freshly renewed “Attorney” photo identification badge, which enables me to by-pass security, and enter the Bexar County Courthouse and Justice Center with a smile and a wave.  These days, my visits are more likely attending a meeting, or performing some other Bar related task, than courtroom advocacy on behalf of a client.  (Edmund Burke once described it as facing “the cold neutrality of an impartial judge.”)  Over the years, I have spent my share of hours on a Friday afternoon pacing up and down the deserted hallways, counting the old decorative tiles on the floor, while sweating out a deliberating jury.  Monitoring court and docket call, awaiting the presiding judge’s assignment, was for me at least a matter of weekly routine, even after the ADR docket (and mandatory mediation).  My appearances at the Justice Center were occasional appeals, or lending moral support to one in the “criminal justice system.”  Trials are now less frequent, along with civil motion or summary judgment practice.

Routinely, at election time I write letters to my large family, non-lawyer friends, social acquaintances, and neighbors, which include recommendations for judges, based upon my conviction as to the best qualified.  My missives stress the fact that since Texas lacks a merit selection process for our state judiciary; my suggestions are not tied to one political party; cautioning about the importance of selecting the individual person, over partisanship.  We have been blessed in the past in this county, to have good judges, elected under either party banner.
In the near future all of the licensed attorneys in Bexar County, whether or not they are members of the San Antonio Bar Association, will be sent a “judicial poll” ballot, which we have agreed to co-sponsor this time with the San Antonio Criminal Defense Lawyers’ Association.  All lawyers are offered the opportunity to make an assessment of the performance of men and women who serve as judicial officers, invested with the authority to administer justice.  It is not a perfect undertaking, and as Lamont Jefferson recognized in his inaugural column last year; incumbents may be singled out in the polling process either by challengers, or disgruntled litigators.  He observed “even the most well-conceived and sophisticated poll is inherently subjective.”   His warning: “...let us make no mistake about it – the primary purpose for conducting a judicial poll is to provide the electorate with information on which to base a vote.  To the extent that a poll does not accurately reflect judicial performance (however defined) for any particular judge, the poll is counterproductive.”

Obviously, results can serve as the grist for the grinding mill of later contested elections. Presently, I am quite concerned about my own qualifications to “vote” on these sitting judicial officials.  I think it is important to stand up and be counted, and intend to do so as fairly and intelligently as possible, through personal knowledge or reputation “evidence.”

Clients (and lawyers) sometimes are unhappy, especially after being handed an unfavorable courthouse decision, regardless of merit.  My record of taking the high road after a “defeat,” is not spotless.  In a moment of anger or resentment, I may have shared rank speculations about what external biases “might” have influenced that judge to rule for the other side.  Examining my own motives for such comments, spoken in the heat of battle, but intimating that justice was not done; I now recognize that I did a distinct disservice by improperly undermining the integrity of our entire judicial system.

After recent elections in Dallas, virtually all judicial incumbents of one party were swept out.  Not long after came the annual judicial poll, which some believed to mirror the dissatisfaction with the election results, rather than the actual performance of the newly elected sitting judges.  Although I have not always prevailed in their court; I still know many of our judges well, including those who have served honorably for years; and whose integrity and dedication to impartiality cannot be credibly challenged.  They will continue to receive my highest marks.  Regarding newly elected judges, the ones I do not know very well; or those I do not normally appear before in my practice, how do I give them “the benefit of the doubt?”  First, they have earned their bench in a fair election, and deserve the respect of the office, until proven otherwise to my satisfaction, I will probably not vote in every evaluation; but at the very least will vote after receiving the specific input of other lawyers whose judgment I trust (i.e. those who appear before our judges virtually on a daily basis, on both sides of the docket).
I once had an out of town case in Judge Gus Strauss’ court.  It was a personal injury matter where I represented the plaintiff, and Mr. George Spencer Sr. represented the defendant, a long time client.  Being the civilized and courtly gentleman he is, Mr. Spencer invited me to join him for dinner the evening before trial.  When he inquired if I knew of  any good restaurants in that community, I responded by pulling out the phone book.  I was busily thumbing through the Yellow Pages under “Restaurants” when he stopped me abruptly with a comment to the effect that my “research” tool was about as useful as it would have been in selecting counsel.  He chose to be guided by the establishment’s local reputation, based upon informed customer experience.  Basically, he inquired about our limited culinary options from the (mature) front desk personnel, who made sure our meal money was well spent.

I may consider opinions of my trusted colleagues, then take them seasoned with a healthy grain of salt; before making any choice based upon less than personal knowledge.

Next year, at election time we will probably endorse a different type of judicial poll, with expressed preferences between known candidates as an integral segment.  Hopefully, in the regular election, no lesser qualified candidate will be able to wave this poll around the media and benefit from spiteful votes to unseat a good person.  I am not giving anyone “a pass,” but for this lawyer, my present rank of most of our judges is: “good, better and best” in the absence of serious contrary evidence.  Hopefully thoughtful votes will triumph over petty pique, and our lawyers’ poll results will not unfairly create a pall over the judiciary generally; or undermine well-earned respect for our judges in this community.

 

November 2007

Indian Summer is over and Fall is in the air.  My morning meditation reading contained this reflection by Paul Gruchaw: “It is football time, apple time, harvest time, hunting time, school time.  Footsteps quicken.  It is exciting to be in transition.  It seems more like the beginning of something than the end of it.”  This positively portrays Fall, in the ongoing cycle of seasons; the exciting energy of change, and the promise of hope in its ongoing progression.  I sometimes aspire to be remembered like Thomas More, a “man for all seasons.”

I recently witnessed reaffirmation of trial by jury, in the play “Twelve Angry Men,” a script solely devoted to a sequestered 1950s jury deliberating in a death penalty scenario.  The rapt audience experienced the synergy and evolution of the sometimes seemingly inexorable process of deliberation, following along as the jury learned about their own “biases, prejudices and sympathy.”  Nonstop exchanges, alternating between pathos and reasoned dialogue; glacially moved these jurors toward ultimate justice.  The strong performance served as a powerful reminder that the right to a jury trial is too precious to abandon.  In essence, our profession cannot default in the fight against those who wrongly distrust ordinary Americans to serve us in this extraordinary and sacred duty, preserved through centuries of our heritage.

My daily Bar responsibilities include responding to “official” inquiries, emails and correspondence; attending numerous committee, foundation and board meetings; and occasional appearances at ceremonial events.  Lately, some vociferous internet savvy citizens have found me through the Bar website, and call to discuss various “lawyer issues.”  I still find time to try cases, but  I had planned to manage my remaining discretionary time serving as a mediator; a better time-saving plan “on paper” than in practice.  I recently had a great time working with David Evans, Priscilla Camacho and the SAYLA Board on our Fall Fun Fest picnic at Poco Loco Ranch.  I hope it will become an annual tradition to bring families and friends together for fun, while getting to know new colleagues and their children.

The president’s duty that I have enjoyed most is writing columns with virtual carte blanche (and positive feedback).  Unfortunately, the mental process inherent in striving to make each message unique sometimes results in “writer’s block.”  One of my heroes is legendary Maury Maverick, Jr., a civil libertarian, lawyer and newspaper columnist.  In his writing, he would sometimes conjure up mixed servings of  “succotash” (a dish originating among North American Indians, consisting of green Indian corn and beans, variously compounded, and usually cooked as a stew).  Today, the “stew” I am dishing out more resembles “mush.”

Ernest Altgelt, Jr., a JAG lawyer (who I later worked with in private practice), introduced me to Maury in 1968.  I was an infantry officer “detailed” to JAG while in law school, assigned to the 4th Army Staff Judge Advocate as my “summer duty.”  Ernest invited me to  lunch at Hung Fong’s, to meet his good friend “Maury.”  It was the height of the Vietnam War.  At that time, Maury was representing a lot of conscientious objectors, dissenters, and/or others interested in free speech, free love, and myriad controversial “rights.”  The meal with this “known agitator,” had me glancing over my shoulder for “FBI agent types.”  Several times that summer, I listened to this rumpled, brilliant and passionate man, relishing the opportunity to learn the “inside scoop” on real time public trial experiences.  I came to appreciate the monumental challenges facing any courageous lawyer who takes on unpopular causes and “the establishment.”  It was truly an education.  My later active JAG service included being a branch chief in the “maverick” Defense Appellate Division, representing court-martialed soldiers.  I even worked on one case with Gerry Goldstein.  After joining a private civilian practice, I discovered that my mentor emeritus Beb Ladon and Maury were lifetime philosophical “cronies,” who teasingly communicated almost daily.

Recent headlines and talk show topics often center around current “anti-establishment” civil rights or criminal law colleagues.  This includes some whose public advocacy may employ controversial “gorilla theater” strategies, reminiscent of the “Chicago Seven” lawyers from the past.  Essentially, they utilized a confrontational approach with clients to complement their legal challenges to practices of those in power.  Radio program hosts frequently vilify “ACLU types,” caring to know little about the law; or Maury, or other prominent members of our Bar like Gerry Goldstein (principled men who may disagree with everything “shock jocks” say, but will nevertheless fight to defend those ignorant commentators’ free speech rights).  My approach to public controversy is often ambivalence.  I feel pride and gratitude that there are real life “Atticus Fitches,” people of conviction in the highest tradition of our profession who are willing to risk personal attack by standing up for what is right.  On the other hand, I remain silent, but with some sense of regret that I don’t have the courage to join them shoulder to shoulder in a righteous battle.

I also admire courageous lawyers who specialize in criminal defense.  Largely the efforts of dedicated lawyers in the San Antonio Criminal Defense Lawyers Association have received more respect and legitimacy at the courthouse with identity badges.  In the main, however, their pro bono and/or reduced fee representation of indigents, receives little  favorable publicity and no appreciation.  I lamented their low membership levels in our Bar Association in speaking with my friend and long-time San Antonio Bar officer, John Convery, seeking to explore perceived disenfranchisement of those “mavericks.”  Our past presidents have included Roy Barrera, “Bullet Bob” Price and Van Hilley.  Jim Greenfield and Tom Keyser are current Directors.  As a former “activist” for solders’ rights in the military justice system, I understand that part of a defense counsel’s “swagger” comes from pride in confronting authority, joined as compadres against “The Man.”  I also understand that many criminal law practitioners are solos, initially burdened with law school debt and other high dues and fees for their licensing, specialty status and CLE.  Payment of additional discretionary dues to join what they perceive as “big firm” or civil law practitioners, with little in common, is sometimes a low priority.  On the other hand, John Convery, through his leadership, which continues on our Criminal Law and Procedure Committee, has worked tirelessly and thanklessly to build a bridge of access, straddling a treacherous river of divided loyalty.  One of the best, and largest CLE assets to our Bar is the annual Aness Semaan criminal law seminar.


I would support a permanent Criminal Law Section for our Bar for these valuable lawyers, deserving of specialty recognition.  Years ago, “civil” lawyers contributed each year to the “San Antonio Plan” to help fund indigent defense, paying to avoid pro bono criminal appointments.  A goal in having only volunteer appointments handled by criminal law practitioners was enhanced quality.  However, this has resulted in a further separation from lawyers on the “civil side” and a decline in empathy for indigent defense work.  Traditionally, all lawyers considered pro bono criminal defense an integral part of their ethical obligation to the profession.  We do have some opportunity to represent the poor in the Community Justice Program, but frankly, this is a lesser substitute for indigent criminal defense; although it makes us “feel good” about helping out.  We need to do more to step up to the plate.  The point is that criminal defense lawyers do untold hours of “pro bono” or similar work at reduced or no fees whatsoever, representing the least popular persons in our society.  All they usually get is more criticism, instead of the recognition, support and thanks that they deserve for hefting this professional burden.

Now, a word about our Family Court lawyers and ad litems.  It was nice to see Carol Wier favorably recognized in the newspaper, symbolic of the numerous lawyers who devote their energy and time on the “CPS case docket,” advocating and accepting immense responsibility for little pay.  Their monetary compensation is next to nothing.  Yet daily they undertake important, but sometimes discouraging and overwhelming tasks of advocating for the very survival of children of broken families.  Often, like teachers, they contribute additionally by reaching into their own pockets to provide clients basic financial support.  They also deserve great respect and due recognition for their service to our profession.  I would also work for a separate liaison committee in the Bar for the Family Courts  and more “volunteers.”

Finally, I would also like to see additional tangible efforts to foster lawyer collegiality; maybe an attorneys’ lounge, where we could go for coffee and discuss issues.  In the old days, we would recess to the restaurant in the Travelodge, where zillions of matters were congenially settled in a civilized manner.  Our Bar space is limited on the 5th floor, and new renovations of Judge Berchelmann’s and Judge Peden’s courts will require them to move, using conference rooms and other discretionary space, and cramping all offices.  Maybe a nearby restaurant would grant us “lawyers only” refuge.  It is food for thought, discussion and maybe innovative action.

I probably lack the fortitude or dedication to embrace the personal and professional sacrifices necessary to become a champion for the downtrodden.  However, I can demonstrate my support for those who are courageous and unselfish enough to carry my burden.  There is always a way to serve, even if we are limited to being on the sidelines.  Just because I can’t do everything is not a good excuse to do nothing.  At the very least, action requires speaking out when unjustified attacks are made on our brothers and sisters who have accepted the responsibility which should be spread among all of us in the profession.  It is not acceptable to sit idly by while they are unjustifiably abused.  We are all sworn defenders of the Constitution and the Bill of Rights; including protecting against those who would seek to eliminate our jury system.  Attacks upon our principles cannot remain unchallenged.  We are in the best position to know the truth and to teach others about the importance of the precious liberties of a free society lest they be abandoned.  It is easy for me to “talk the talk,” let’s see if I can “walk the walk.”  (Hopefully with good company.)

 

December 2007

On Veterans Day, filled with gratitude and looking forward to Thanksgiving, I am writing this while looking out the window of my law office, with a bird’s eye view of Main Plaza, the heart of our city.  Visualize a different day, with dozens of Rolling Thunder veterans standing in the Plaza at attention, wearing vests containing their service decorations, next to a compact formation of parked “bikes,” backed by a perfect row of American flags.  These respectful sentinels silently protect and defend the privacy and dignity of the grieving family of each new hero, easily inspiring the rest of us to rise, hand over heart, eyes moist from pride and empathy.  No event could be more moving than a San Fernando Cathedral funeral honoring one who has made the ultimate sacrifice for his country.

The venerable San Fernando Cathedral has weathered many “rebirths” of Main Plaza, with doors always open to needy souls.  The Cathedral is especially striking at this time of year, its nighttime façade with outlined festive lights.  In 1891, the Old Red Courthouse gained its own rightful place in the heart of our city, dispensing justice alongside mercy.  In its latest iteration, Main Plaza will soon provide spectacular access to the “new” Justice Center, and the Council Chambers of our city government.  “Only in San Antonio” is so much powerful potential for positive action concentrated in one central location.  Penitents, litigants, and citizens will again gather, as the generations before us, embracing a serene urban refuge of beauty, steeped in history, before they seek assistance.

Recently in an interesting juxtaposition of institutions dedicated to instilling and implementing fair principles in the lives of our citizens, the Cathedral hosted the 55th annual Red Mass: “A Legacy of Faith and Law.”   The Program explained that the first recorded celebration was in Paris in 1245, then spreading in Europe, and coming to the United States in 1928.  It joins the celebration of the Mass and the traditions and processes of the courts and the law, with the robed bench and bar, and priests in their red vestments.  In San Antonio, St. Mary’s University School of Law and the Catholic Lawyers Guild revived the tradition, and provided an occasion filled with professional pride.  This Votive Mass of the Holy Spirit calls upon God to grant light and inspiration to the lawyer in pleading, to the judge in adjudicating; and guidance to all, with a blessing.  Individuals in the legal and judicial professions of all faiths are welcome, and were duly represented.  Symbolically, this is an extremely important experience for our local law students, an event of pride and hope.  As they stood en masse, and enthusiastically received their personal blessing, we were certain that the promises of this profession for the future will be fulfilled.

Traditionally, the cadre of judges and marchers moves from the Courthouse to the Cathedral, as it will again next year, through the magnificently reinvigorated Plaza.  It is a spectacular occasion, with St. Mary’s Law faculty, dressed in full academic robes and trappings, representatives of the paralegal and court reporting organizations; and all bar associations displaying carrying personalized and distinctive red banners.   Imagine this procession for a moment: the red clad clergy led by the Most Rev. Jose H. Gomez, Archbishop of San Antonio; Senior District Judge John J. Specia, Jr. as the Crossbearer; the Honorable Phil Hardberger, Mayor, as the bearer of the flag of the United States; Jenee Margo Gonzales Garza, Legislative Asst. to Senator Van de Putte, carrying the flag of the State of Texas, then identifying red banners borne by leaders of attorney organizations:  Victor Negron Jr., Catholic Lawyers Guild of San Antonio; Mike Simpson, Christian Legal Society; Carla Martinez Riedl, St. Mary’s Law Alumni Association; and Richard Loza, Hispanic Law Alumni Association.  Next came Lamont Jefferson, Member, Board of Directors, State Bar of Texas.

I was honored to proudly hoist the logo banner of the San Antonio Bar Association, joined by Renee F. McElhaney, Chair, San Antonio Bar Foundation; J. Todd Hedgepeth, President, San Antonio Chapter of the Federal Bar Association; Carol E. Jendrzey, President, Bexar County Women’s Bar Association; Dianne D. Garcia, President, Mexican American Bar Association of San Antonio; Rosa Maria Gonzalez, President, Mexican American Bar Association of Texas; Jaclyn Y. Roberson, San Antonio Black Lawyers Association; George Taylor, President, San Antonio Criminal Defense Lawyers Association; David M. Evans, President, San Antonio Young Lawyers Association; Karen L. Marvel, President, San Antonio Bar Association Family Law Section; Joanne Eakle, President, Children’s Court Attorneys Association; Angela J. Moore, President, The William S. Sessions American Inn of Court; and Ann Zaragoza, Managing Attorney, Texas Rio Grande Legal Aid/Community Justice Program.

We were “robed” in black academic gowns, in a room energized with the enthusiastic buzz of many diverse members of our profession.  Later, we would join our well-represented, distinguished group of state and federal trial and appellate judges; the Law School faculty of St. Mary’s, led by Dean Charles E. Cantu, J.D. L.L. M. and their diminutive “Mace Bearer,” Professor Victoria M. Mather J.D., L.L.M., Associate Dean.  Our decorative scarlet banners filled the sky as we wended our way across the courtyard, toward the front entrance to the Cathedral, and the assembled throng.

I was grateful that my friend, SABA President-Elect Victor Negron, was across the aisle, under the banner depicting St. Thomas More.  Suffice it to say, being able to get his early cue when to stand, sit, or kneel, prevented a few “protocol” stumbles.  I enjoyed sharing the “sign of peace” with pewmates George, Rosie, Carol and Renee.  After listening to the beautiful choir and inspirational messages of our speakers, I reflected upon my sporadic appearances at the Cathedral over the years:  Holy Days, Ash Wednesday, funerals of colleagues, a friend’s wedding, an occasional Fiesta Saturday evening Mass.  Sometimes, heading for early morning docket call, I was greeted by an exiting Pat Maloney, Sr. or Chief Justice Alfonso Chapa.  “Private” visits included lighting candles, praying for babies in NICU, or just “ducking in” for quiet meditation.  The Cathedral’s beautiful statues, seemingly irretrievably smashed years ago, are again awesome; complementing the superb interior restoration by artisans.  The Cathedral is a true place of serenity; where principles of faith, hope and charity also abide.

I have long ago progressed from reviewing depositions during Sunday sermons, preparing for Monday trial.  However, I am still not immune from reading, especially during times of singing, where my contribution is best made through silence.  The Red Mass Program contained some of Archbishop Gomez’s homily stressing service, contributions to society, and essentially “walking the walk” in an honest effort to make the world a better place.  It quoted the Gospel of Matthew 25:40 “whatever you do to the least of these, you do to me;” people who are the hungry, the immigrant, the homeless, the sick, the imprisoned, the marginalized, and the vulnerable.  Brought home was the message that among the three million homeless for whom we prayed, one third are families, and 1.3 million are children.

In reality, a missed paycheck, health emergency, unpaid bill, or substance abuse issue may create a crisis that can easily push people out of their homes.  Since 1991, the American Bar Association has had a Commission on Homelessness and Poverty, to educate members and the public about these problems, with publications and training sessions on advocating on their behalf.

The Program celebrated the St. Mary’s law students’ work with Habitat of Humanity, the Earned Income Tax Program, and Center for Legal and Social Justice.  Also, the efforts of Mayor Phil Hardberger in working to combine public and private funding for the “Haven for Hope” to open in 2008.  He has recognized “a city is judged by how it treats the less fortunate among us,” demonstrating leadership to positively address our chronic homelessness problem; an estimated 25,000 in San Antonio at any one time.  Together, we asked for a blessing upon his continuing leadership for our city. 
The Program properly acknowledged the work of the Catholic Lawyers Guild and the Christian Legal Society.  It was especially touching to see the Catholic Lawyer Guild Chancellor’s Award presented to Carol Weir; recognized as “the careful and compassionate voice for at least 1,000 local abused and neglected children, taking on precedent-setting and high-profile cases.”  Although slowed by infirmity, she was lovingly guided through the beaming crowd by her husband, Past SABA President Warren Weir, for us to willingly give way to this “super star of the Children’s Court.”  Later, when chatting with Ms. Weir, she graciously recalled my being a “gentleman” at a long ago deposition, when she was just a nervous “baby lawyer.”

The Program praised SABA’s pro bono Community Justice Program, under the title “Legal Organizations Serving the Community.”  Similarly, the Wills Clinic of Bexar County Women’s Bar Association, which has also worked to provide legal representation to the poor.  So too, Catholic Charities and St. Mary’s School of Law “Ask-a-Lawyer Clinic,” the scholarships of the Mexican American Bar Association, and its mentorship programs.  Additionally, the dedicated service of the Federal Bar Association; Texas Rio Grande Legal Aid, Inc.; San Antonio Bar Foundation; the People’s Law School at St. Mary’s; Children’s Court Attorney Association “Kids Exchange”; CASA-Court Appointed Special Advocates; and the International Justice Mission.

The Red Mass also provided solemn moments to reflect upon our colleagues who passed away during this year: Hal Walker, Luis Augusto Moreno, Steven William Arronge, Keith Edward Kaiser, Dick Ryman, Peter Torres, Jr., Les Mendelshohn, Pat Mansell, Edward Joseph Mihalko, Roger Wooldridge, Paul E. Casseb, and Carolyn Thurmond.  Personally, I knew and respected many of these people over the years, through representing our clients, or in professional bar work.  They earned and deserved their honored place in the program, and in our memories.  I especially enjoyed working together with Keith Kaiser and Paul Casseb, mutually representing clients; and challenging the legendary Pete Torres and Les Mendelsohn.  My friend, Dick Ryman, helped many other lawyers grow professionally, and later, through the Lawyers Assistance Program.  Finally, our beloved Bar Foundation’s Carolyn Thurmond, whose wonderful children and grandchildren continue to interact with ours.  She and Tom were well represented by family members Thomas Patrick Thurmond and Kristal Thurmond (a law student), who carried the roses in memory of those who passed away in 2007.

Obviously, the Red Mass was a moving, bittersweet occasion; but one which made us grateful for choosing the law.  Although the legal profession was widely praised publicly for contributing in many aspects of the community, we were also challenged to advance and do more in the future.   While we basked in the light of our various bar organizations’ professional accomplishments, the personal message endured: look into the eyes of someone, see the need for compassion, and act, to answer this clarion call for justice.   We have all the assets to succeed; right here in the heart, the center of our wonderful community.

 

January 2008

It is a New Year—a time of “resolution” and hope for the future, but also one of “auld lang syne” (remembrance of friends and past good times).  We have seen legends of the law, business, politics and the military, taking well deserved “retirement” (even Roddy Stinson).  Some of our newly “retired” leaders include Phil Pfeiffer (who now has even more time to devote to stellar non-profit community service); Hubert Green (a pillar of our Bar and politics); Sam and Charles Biery, and their law partner Bobby Myers (whose respected firm and friendship for the Bar endured longer than any other legal entity in this community).  Among my high school classmates from Central recently gathered at beloved English teacher and author “Brother Mac’s” funeral, several were already “retired” from successful careers of service.  My own glib response about “retiring” is  “no, I have too many grandchildren” (triggering some regret that I have apparently not planned my life successfully enough to opt for this new blissful status).

It is not that retirement is abhorrent, as many combine relaxation with additional areas of growth, and achievement of alternative goals. To us all, some retirement dreams of a well deserved rest are natural.  Mine sometimes include the peace and solitude of a wilderness cabin, leisure sports, or an “endless summer” at the beach.  It would be great to carefully script the “end game” to the practice of law.  Some of us may wish to make a difference - academic-oriented daydreams scenarios, maybe as a volunteer preschool teacher (i.e. Kindergarten Cop), or a mentoring professor (i.e. “Legally Blonde”).

Today, for many practicing lawyers “retirement” is logically distant.  It is rarely in my thoughts during this wonderful year of professional involvement in Bar activities.  A real benefit is the interaction; catching up with the lives of former colleagues, and learning about all of the wonderful things their families are experiencing; essentially renewing inadvertently dormant relationships.  Lest they be forgotten, we should also solicit our “retired” or “senior” lawyers to be active participants in the Bar.  They are priceless resources.  My mentor, Beb Ladon, rode to work with me each day after his eyesight no longer permitted him to drive, rewarding me with wonderful history lessons, and observations on how to practice the right way.  All of us, simply by exercising a little patience, can continue listening to the very end of an old “war story”, leaving enriched by retrieved recollections of our professional heritage. 

In this “New Year,” my tenure on the Lawyers Assistance Program Committee of the State Bar formally ends.  I “will roll off” (visions of a burial at sea) due to term limits, in June of 2008.  However, we are forming an alumni “Advisory Group” with former members.  My friend Retired Chief Justice Bob Seerden of the 13th Court of Appeals, and legendary Houston trial lawyer, George Pletcher are already in place.  Together, they could be permanent “legal Folklife Festival” participants at the Institute of Texan Cultures.  Over the years, many lawyers have benefitted from their good advice about “health issues”.  George Pletcher is actually responsible for me and Pam having a “personal trainer” relationship with exercise guru Denise Austin (Lifetime cable channel 29 @ 6 a.m.)  A decade ago, George related that he and his wife faithfully exercised together, while watching Denise work out at beautiful resort locations.  Since that time, “from the privacy of our own home,” we have performed “light and fit” stretching, Yoga, weights, and low impact aerobics (seasoned with some serious “mind, body and spirit” talks, including healthy eating and maintaining a positive attitude).  Her themes include: fitness stewardship (“you only get one body, so you better take good care of it”); full participation in your life (“this is not a dress rehearsal”), and positive thinking (you have the right to choose any attitude, so why not pick a good one today”).  Cheery motivation at dawn, however, sometimes has little measurable effect on stiff joints.  There is a popular expression that “Old lawyers never die, they just lose their appeal.”  A more modern version is “old lawyers never die; they just loose their briefs.”  Three years ago, we incorporated the “South Beach” regimen into our lifestyle.  Although skeptical (Denise had already warned us against fad “low carb diets” and instructed us that there are “good carbs and bad carbs”), we ultimately found the two philosophies enjoyably compatible.  No doubt, many of us could appreciate the wistful observation: “if I knew I was going to live this long, I would have taken better care of my body”. 

On a more serious note, there are many devastating diseases; with unpredictable outcomes, and most are not routinely preventable, or within our control.  Regardless of your success or your wealth, the ability to enjoy your earned retirement is directly dependent upon the blessing of continuing good health.  It is a gift to be used to the fullest.  In some important aspects of life, as we age, a “one day at a time” philosophy is only part of the duty; accepting some responsibility for developing long term goal-oriented plans for the future is very prudent.  We all sometimes fear financial insecurity, but through honest hard work, positive change can also occur, which many lawyer “retirees” exemplify.  At the end of this year, I will truly again be a “free agent.”  It comes with a lot of uncertainty, but honestly trying to do the right thing daily has convinced me it will work out the way it is supposed to in the end.  Hopefully, my fledgling mediation practice will actually get “off the ground”, along with associating with other “experienced lawyers” on the innovative Conflict Solutions of Texas arbitration panels.  I also plan to make it fun.

Success is relative, and it is true that we are each not blessed in the same way or at the same time.  Joy, prosperity, or success may be  fleeting, but the strength and human resources available through our “senior” colleagues in this profession will help us endure.  We can only hope that they never fully “retire.”  I personally witnessed many practical pieces of wisdom shared by “50 year lawyer” members on the PEP (Professional Enhancement Panel) of the Grievance Committee for six years.  We served as a diversionary/rehabilitative group (kinder, gentler panel of the grievance committee).  It was a joy to see the combination of compassion and practical acumen that Ralph Langley and then Charlie Butts brought to the table, as volunteer mentors and role models for not only the lawyer struggling with personal and practice career issues, but also providing “food for thought” for the nourishment of the rest of us.  We were given great latitude by chief disciplinary counsel James Ehler to help prevent damaged careers.  Abolishment of the PEP panels for funding considerations in the “new grievance process” was a mistake.  I wish that the “powers that be” would resurrect this Professional Enhancement Program, started by Jim Branton when he was Bar President.  If not, SABA could create a “Senior Bar” section, or even a new “specialty bar”, dedicated to mature congeniality and mentorship.  Maybe I could even be of service (much) later as a “50 year lawyer,” just like my role models.

In any event, this is one positive way to view the New Year, as we all move closer to our reward: “Yesterday is history; tomorrow is a mystery; today is a gift; and that is why they call it the present.”

 

February 2008

In my parking garage elevator, two “grandmotherly ladies, bundled against the cold, were discussing their morning at the courthouse.  Our brief trip together enabled me to inadvertently eavesdrop.  My radar went on when the first lady said “I couldn’t believe how mean and nasty they all were in court today.”  Her companion added “even the lawyers;” eliciting this confirmation “Yes, I know.”  From  their tenor, it may have involved a family relationship matter.   As they departed, I was left speculating about whether they were witnesses, participants or even jurors.  I inferred that they were most surprised about their exposure to the unexpected bad demeanor of counsel.

This encounter was still fresh in my mind, as I went up to my office, which is being “reorganized” as a more user-friendly venue for mediations.  I also need to accommodate the practice of J. Carter Winters, a young lawyer now  completing his apprenticeship at the Dallas Public Defender’s Office, who will share our space.  It is a reclamation project involving desk drawers and cabinets, with many memories arising from old “artifacts.”  I still wondered about these unknown lawyers, in the midst of separating “trash and treasures.”   It occurred to me that on occasion, my conduct may have evoked similar comments, but I was distracted by a long-forgotten stack of personal “thank you” notes.  Sometimes poignant words from clients constitute a form of tangible “validation” that some good purpose did come from my labors.  One client note came with a beautiful obituary of a lady.  It followed a gentle reminder of an overdue bill, with my personal note “Please let me know if there is a problem, I hope that your family is doing well.”  My client was apologizing for being slow in periodically paying his remaining fee because he had been struggling with his wife’s loss (“the love of his life”).  I was able to call, share experiences, and reassure him that we would not further add to his incalculable burden.  My oldest memento is a Lucite clock with hour markers utilizing a 1964 set of the “last United States silver coinage.”  It was  presented to me by the parents of an 18 year old soldier, whose improvident guilty plea was reversed at an evidentiary hearing by a  military judge, resulting in his release from confinement, and dismissal of all charges.

In the far recesses of my credenza was an unread  copy of “The Terrible Truth About Lawyers”, subtitled “What I should Have Learned at Yale Law School” by Mark H. McCormack.  (Avon Books 1987).  It appeared with no note; stirring no recollection why “The Businessman’s Best Selling Guide to Outsmarting Lawyers” remained among my “keepsakes”.  Presumably, it was not a gift from any client (although my doctor ones would be suspect).  According to Wikipedia, after Yale law school, and practice as an attorney in the Cleveland firm of Arter and Hadden, Mr. McCormack formed International Management Group (IMG), handling the commercial affairs of sports celebrities (Arnold Palmer was his first client).  According to his 2003 obituary, with credits for many books on achieving business success, he was one of the most powerful men in sports, apparently leaving an estate of $750 million in IMG shares alone.  The jacket contained praise from various Fortune 500 CEOs.  Also, F. Lee Bailey said: “Everybody should read this book so they can know what’s wrong with my profession and what they, we, can do about it.”  Skeptical about its value, but ambivalent about continuing to actually throw things away, I began reading this hyped exposé, with the recent “badly-behaving lawyer scenario” still in my mind.

I just finished, after enduring some predictable gaffes, including George Bernard Shaw (“all professions are conspiracies against the laity”); and Shakespeare’s (out of context) line: “The first thing we do, let’s kill all the lawyers.”  Also, an old Gypsy curse: “May you be involved in a lawsuit in which you are in the right.”   Finally, the old joke about the lawyer who falls out of the overcrowded life boat into a roiling sea of sharks who swims to safety unscathed in a demonstration of “professional courtesy.”  McCormack’s “self help book” for clients is peppered with personal “axioms,” and contains a liberal sprinkling of actual anecdotal litigation tales (“good and bad”), and negotiation foibles about sports stars IMG has represented.

It is not all “lawyer bashing;” simply one man’s considerable experience, first as a provider, and then as a consumer of legal services.  Correctly, he observed that lawyers are the targets of an enormous amount of resentment, partly because they wield more power than most people, make more money than most people, and are called in after ordinary reason has failed (when people are already angry, disillusioned, and ready for a fight).  He recognizes that a “client’s sense of justice can all too easily become warped by a hunger for revenge”; and conversely, “an attorney’s professional judgment can all too often be crowed by an ego-driven obsession with winning.”  A valid theme is that a true attorney-client relationship between a lawyer who is serving his client faithfully and well, and a client who is using his lawyer effectively and appropriately, will allow the same “flexibility and ongoing good will as a handshake deal.”

Later, one client goal he addressed is “how to get the most bang for the legal buck.”  It reminded me of my former “bang for the buck” client; a national homebuilder, new to the area, developing a large golf course subdivision.  Although a relatively young associate, I was tasked by our partners to work on their business, including almost daily contact with various “superintendents” who were under deadlines to get homes built under strict policies, with incentive bonuses for beating timetables.  Most seemed to be decent (big) guys, who generally had some college experience in “winning football games.”  All were very aggressive.  Every Friday, each subcontractor working on a block of homes being built, was paid (or not), depending on the speedy progress of their work, judged by that superintendent.  If any lien was filed by a materialman or a member of the building trades, my clients demanded action “get it off the house NOW.”  One matter involved a father and son carpentry firm from nearby New Braunfels; craftsmen who did things right, but at their own pace.  All of their laborers had to be paid each Friday, and when their money was withheld, they filed suit.  My “hardball” clients planned to teach all their subs a lesson (as the build-out of many hundreds of homes in the subdivision remained), and counterclaimed for a breach of oral contract, where time was of the essence, and for having the property tied up at sale by a lien.  At trial, we made all of our “points,” seemingly well received by the mostly mature jury.  However, the German masters prevailed and were awarded all of their damages, to the penny, plus reasonable and necessary attorneys’ fees.  Afterward, two elderly ladies, who had often smiled at me, waited around.  These ladies inquired if they could ask about what  they had been debating throughout the trial.  It was whether my “beautiful hair” was “natural” blonde or gray.  (it was a mixture based on sun and genes.)  I wanted to know what I could have done to avoid a devastating loss (when they had seemed to be so engrossed in my argument).  One said, “Honey, you did great, but your client is a real stinker.”  (Sometimes lawyers “win” cases, but often the facts “win” cases.)

I soon got an angry call from the project manager about how this “disaster” could have happened with “competent representation,” and if this was any indication as to how things were going to be, they would be looking for “more bang for their buck.”   So far, this painful memory was evoked by McCormack’s theme of the client’s need to “maintain control over counsel.”   I recalled being pretty distressed when reporting about the dissatisfaction of his new, big client to my mentor.  Paul patiently let me spill out the whole story.  At the end, he told me that life is too short to allow any client to demand that we compromise our principles for their way of doing business.  He told me that we would just “fire that client” (the first time I had heard that term).  He called the project manager, and said that based upon our conversation, he would appreciate it if they would come and pick up all of their files.  In the ensuing years, through Soele’s Trial Reporter, I saw that the client generated a lot more litigation work, especially defending DTPA suits by new owners of the rapidly built homes, engendering mega “bang for their buck” work for multiple defense lawyers.

In a section devoted to “what simple common steps lawyers can take to make their clients loyal”, I did like one of McCormack’s “Arnold Palmer” stories from his earliest days of representing this revered athlete.  They were at a beach club in Santa Monica, at the service counter waiting for their towels.  The author was by admission “very aggressive, impatient and apt to be abrasive and sarcastic” in those days, and loudly and nastily let everyone know about the way a simple process was being handled in a slow, complicated and annoying manner.  Later, in private, Mr. Palmer gave him “more than a stern talking to”, and made it clear that he did not treat people that way and did not want anyone associated with him treating people that way.  Any  such conduct was a direct reflection on him personally. 

To McCormack, choosing a lawyer involves a delicate balance: “If you are hiring a lawyer to represent you in a hostile procedure, and you will never do business again, hire the toughest, gruffest bulldog.”  Conversely, if you are hiring a lawyer who will be representing you vis-a-vis people you will be dealing with in the future, don’t use one “if you are not comfortable with the idea that someone might think the lawyer is a friend of yours.”  The author’s overall approach lacks any substantive discussion about ethics as proper constraints on the conduct of lawyers.  At one point, he ineptly and demeaningly analogized us to “Doberman Pinschers” simply “put on the earth to act menacing and “bred to assume that’s what their masters want”.  I resented his position that it is incumbent upon the client “to let your lawyer know when you want him to snarl and when he should try purring,” as if professionals do not independently exercise good judgment.

One chapter addresses a paradox: although people gripe about lawyers and make snide jokes, they secretly wish they were more like lawyers: more effective in argument; more cool-headed and dispassionate in the midst of confrontations; suavely logical even when angry; and demonstrating the knack of using that logic like a sledgehammer, or a scalpel.  It reminded me about my own professional identity crisis in successfully handling a trial practice (despite being told repeatedly “just be yourself”).  I had great role models in two partners who were both tenacious and extremely successful, despite almost diametrically opposite demeanors.  Both were at their apex; achieving the effective representation of powerful, result-oriented, intelligent and successful clients, with thorough preparation.  Alternately emulating both diverse styles of advocacy, it seemed surreal; sometimes directly “going for the jugular;” and at others, trying patiently to build a theme.  At one point during the development of my own “style”, Judge Charlie Gonzales complimented me.  Then he told the other lawyer: “don’t be taken in by his nice guy demeanor, if you let your guard down, he will slit your throat.”  I was shocked and mortified that a favorite judge who had recently presided over a successful trial would virtually compare me to “Dr. Jekyll and Mr. Hyde.”  Thereafter, I strived for less form, and more substance.

Despite the “hype”, the author is not intent upon lawyer bashing; and recognizes effective lawyers - people who get things done right through skills that are not taught in law school: listening carefully; reading people accurately; thinking logically; writing clearly; and being open to creative and sometimes oblique solutions.  He observes that Hemingway “liked lawyers less than bullfighters, fishing boat captains or bartenders,” and might wince at his description that they have “guts”; but “there is no denying that grace under pressure is part of every successful lawyer’s makeup - the ability to strike a balance between commitment and detachment” (i.e. poise).  This book was written at the height of “Rambo-style” litigation, before the era of “tort reform” or the use of ADR.  The reader is invited to view “litigation” as distasteful to “successful businessmen.”  Although on numerous occasions, IMG, or its clients, are “forced” to be plaintiffs, McCormack decries the “unproductive stubbornness and obsessiveness that lawsuits tend to breed;” and that “attorneys don’t just feed a need, they breed a need”.  On the other hand, he is grateful for advice by his attorneys which avoids contentious entanglements (what he refers to as a “Wall of Molasses”).  He concedes that virtually all his CEO buddies moan about lawsuits that none of them want, but ultimately is usually their own fault, by inattention, poor judgment, or the inability to say no.  McCormack alludes to the desire for ADR by the general counsel of Fortune 500 companies because “they know that many an expensive and bitter lawsuit comes not because of substantive issues, but simply because two people with some power have gotten mad at each other!”   The author highlighted these words of Abraham Lincoln:  “Discourage litigation.  Persuade your neighbors to compromise whenever you can.  Point out to them how the nominal winner is often a real loser - in fees, expenses, and waste of time.  As a peacemaker, the lawyer has a superior opportunity of being a good man.  There will be business enough.”

At this point, I thought of our own Tommy Smith,  mediator extra-ordinaire, who is currently our ADR Section Chair, and was recently deservedly recognized for his success by the featured article in the Business Journal.  Tommy would be McCormack’s “perfect fit” as lawyer-mediator.  What great golf and sports stories they could swap, while resolving highly sensitive celebrity disputes quietly and “under the radar”! (like Cowboy fans v. Jessica Simpson).

In the end, The Terrible Truth About Lawyers provides food for thought, beyond simply damning our profession.   It is good to be reminded that we don’t “own our clients,” and that they can seek lawyers who are compatible with their personality and values.  On the other hand, I am grateful that we are free to “fire clients” when they don’t measure up to our standards.

 

March 2008

Few days pass without encountering another mischaracterization of lawyers.   Lack of balance in the media, with undue emphasis upon perceived negatives is especially bothersome.  Although constructive criticism has its place, no profession is more visible to the public or works harder to timely address legitimate grievances.  Sometimes colleagues call plaintively upon our leaders to rebut hurtful misinformation, naively believing that reasoning with people who have already evidenced closed minds could be effective.1  On the other hand, it is an appropriate public service to raise legitimate concerns through informed and thoroughly researched articles; and cast light upon ethical controversies existing within the profession.  However, basic decency and fairness should compel the perpetrator  to “set the record straight” after the true facts are known.  Often, the lack of timeliness alone renders ineffective any rebuttal of a vitriolic attack.  Few would quarrel with recent thoughtful local coverage of serious  issues affecting clients of lawyers who serve as bail bondsmen, in cases where they also represent the defendant.  It is an area where legal professionals who are informed about ethical implications may appropriately publically weigh in to educate laymen, tell “both sides of the story,” and thereby work toward improving the system.

Recently Judge Biery gave me his opinion in Dominguez et al vs. State of Texas et al, SA-07-CA-0549-FB.  This recent suit was brought by former U.S. servicemen, deprived of equal access to educational benefits, available from the State of Texas to veterans.  Previously eligibility had been thwarted because they were not Texas citizens at the time they entered the Armed Forces, but became naturalized during active duty service.  Reading this compelling, scholarly opinion, even a layperson would appreciate the iniquities, and merits of sound constitutional equal protection arguments leading to the inevitable conclusion of an unconstitutional violation of these veterans’ rights.  Ultimately, their request for a preliminary injunction was  “moot;” but the case remains pending until such time as the THECB, or the Texas Legislature implement appropriate permanent rules, regulations or statutes to provide equal protection.  The “mootness” occurred because the defendant  governmental entities listened to their lawyers and had already taken decisive and immediate steps to address this inequity through revised policies and procedures, once brought to their attention.  Texas Attorney General Greg Abbott had already withdrawn previous narrow interpretations, basically only addressing the existence of a statutory bar to such veterans’ rights.  The Higher Education Coordinating Board and State University defendants had already reopened and was processing applications for such benefits of all applicants who were legal residents at the time they entered military service,  agreeing to continue to do so in the future.  In conclusion, Judge Biery complimented counsel: “This case exemplifies the best of what federal lawyers do to present constitutional issues to the Courts of the United States and to preserve equal justice under law.  They have graciously and correctly done justice by plaintiffs when it could have prolonged this litigation through gamesmanship and sharp tactical maneuvers.”   This former San Antonio Bar President occasionally comments about matters of mutual interest in my column.  Accompanying the opinion, Judge Biery  penned this note to me: “Enclosed is an example of recent  vintage of how the legal profession should work.  Good news, of course doesn’t sell newspapers.”  So true.

Keith Kendall was troubled by events recounted in a letter to the editor in the February Texas Bar Journal.  It related a lawyer’s upsetting family experience at his son’s Texas A&M Engineering College graduation ceremony.  The speaker, Austin Mayor Will Wynn, reportedly  unleashed a diatribe against the legal profession in his commencement remarks; gratuitously labeling us as “blood-sucking lawyers,” evoking justifiable outrage and anger of a proud Aggie father, Don E. Martens of Plano.  According to Wikipedia, Mayor Wynn is an A&M graduate (Cum Laude in Environmental Design), who did well in developing commercial real estate, and founded an investment firm specializing in historic restoration properties.  A website bio touts him for demonstrating leadership when Hurricane Katrina evacuees temporarily came to town; and  he served as a director of the Children’s Museum.  Elected as Austin’s 50th mayor in 2003, he divorced in 2005, and  was re-elected in 2006 with 78 percent of the vote.  Research did not disclose if any legal vampire-type draining personally compelled him to engage in this inappropriate conduct.  Mr. Martens’ response counsels:

“All lawyers need to know the true feelings of their elected representatives toward the Bar and, given the opportunity, need to take  the time to educate those elected officials with misguided or misinformed opinions about the role that lawyers have played in the creation and preservation of the freedoms we enjoy under the U. S. and Texas Constitutions, and the role that lawyers continue to play in our world today in politics and government service, the judiciary, the practice of law, and in public service of many varieties.” 
Since no opportunity existed on graduation day for a rejoinder, he urges fellow attorneys  to “let  Mayor Wynn know what we think of his remarks,” and relate “the many ways your own lawyerhood makes a positive contribution to society.”

That is pretty heady stuff for a guy like me.  My initial “knee-jerk” inclination was to fire off an email to Mayor Will smugly expressing gratitude for living in a (non-weird) city that really works well; ably led by Phil Hardberger, an esteemed trial attorney and former Appellate Chief Justice, re-elected in 2007; who is celebrating his 40th wedding anniversary this year (“term limited” out of office all too soon).  However, taking a more mature approach, our response to “lawyer bashers” may be one of simple example; lawyers “walking the walk” ethically while making meaningful community contributions.

Like Mayor Wynn, I proudly work as a non-profit board member (the San Antonio Council on Alcohol and Drug Abuse, which enters its 50th year of service to our community).  It was originally organized by business leaders (including lawyers) who saw a need to fulfill a positive education and prevention mission, presently increasingly directed toward children.  All non-profits must compete for limited resources in the private sector, and expand their leadership base, at a time when money is tight.  In our prevention field the emphasis in federal and state funding is primarily for interdiction and punishment, with fewer assets allocated toward treatment and rehabilitation, and little remaining funds for developing positive education strategies.  Over 100 non-profit entities are identified by the United Way in our community, able to survive in a downward economic trend, only through generosity of private giving, including  a core philanthropy group, and others willing to fight for survival with sweat equity.  Many local charitable non-profit organizations, with the help of the United Way, and  institutional donors, are also blessed to receive the pro bono services of a legion of lawyers, willing to counsel about the law, and participate actively in varied board stewardship.  Lincoln said: “A lawyer’s time and advice is his stock in trade.”  It has been my personal observation and experience that “good lawyership” in this community, involves much “stock” through generous contributions of unselfish lawyers and law firms, combined with countless unpublicized good deeds.  Lawyer volunteers contribute in faith-based charity work, hunger and homeless projects, medical and mental health institutions, scouting, peer mediation, leadership and mentoring, and advancing the rights of veterans, minorities and the poor.  Most deeds are labors of love, performed willingly, and without expectation of personal aggrandizement.  Pro bono activity locally ongoing within the profession includes: Law Day activities;  the Community Justice Program; school peer mediation (AIM); the Wills Clinic; Peoples Law School; Criminal Law Institute; Credit counseling for High School Seniors; and Women in Law Related Fields Career Day.  Currently our charitable arm, the San Antonio Bar Foundation, is working hard on its successful annual Peacemakers Gala to honor worthy legal, non-profit and corporate leaders.  All have made a positive difference this year, in improving the lives of those in our community who are less fortunate.  This year, we will honor Carol Weir as “Community Service Lawyer” with the Carolyn Thurmond Award; Marta B. Pelaez  M.A. President/CEO of the Family Violence Prevention Services, Inc. with the Peacemaker award; and Valero Energy Corporation with the Corporate Community Service Award.   All donations, combined with proceeds of the event, will ultimately support the Foundation’s charitable work, and additional bar outreach projects in the future.

 This headline in the Express News Business Section hooked me: “How much will your tax rebate check be?”  According to the article, my household may benefit from a “couple’s” rebate check, gratuitously bestowed by an election year Congress.  It is still unclear whether any rebate largess will extend  to a single mother hourly wage earner, (who may also lose the child credit).  Although it was intended as a return of “paid taxes,” in practicality it now constitutes for some, an unplanned financial windfall.  According to an Associated Press-IPSOS poll, “just 19% of the people plan to go out and spend the money; 45% will use it to pay bills; 32% said they would invest the rebate; and 4% may donate it to charity.”  I do not advocate inundating Mayor Wynn with “cheap shots,” (even smug, humorous ones) to provide momentary gratification.  However, it would be a great positive statement as a profession, combined with the myriad (“non-blood sucking”) public service obligations we routinely shoulder, to use at least part of our rebate for a charity of choice.  In every Subpoena, space is available to make Bar Foundation contributions of whatever amount, “in memoriam” or “honoring” other unsung “heroes.”  Let’s just challenge Mayor Wynn to match some individual “rebate” contributions.  Conceivably, by “paying it forward,” or even creating a positive ground swell, we could boost the predicted 4 percent of charitable rebate contributions.  I would bet that Mr. Martens wouldn’t mind if we countered the Mayor’s myopic views by giving quality donations.  Mine is in the mail.

 

April 2008

After any colleagues’ kind words about a past President’s Message, a heightened sense of responsibility and trepidation descends.  My wife, Pam, never sees any column until after its printing, and only does so at my urging.  Her “constructive criticism” invariably echoes humorist Will Rogers: “the minute you read something you can’t understand, you can always be sure it was drawn up by a lawyer.”  Mindful of his admonition, but not deterred, when original thought fails, plenty of inspiration can be derived from documented wisdom of the past.  “Adam was the only man who, when he said a good thing, knew that nobody had said it before him,” according to Mark Twain.  However, thanks to a Half Price Books “clearance” find, my latest source of enlightenment, insight, and entertainment is The Forbes Book of Quotations – Thoughts on the Business of Life.  Today, it would be more merciful to simply let “Forbes” take this space, but my ego does not permit me to completely default.

Over half of our working lives will be dedicated to our duty of plowing through highly stylized often boring prose, of briefs, court decisions, and myriad legal publications.  Although still an avid daily newspaper reader, and TV and Internet news “junkie,” most of my leisure reading has been escape-mode fiction.   Normally, books read “on my own time” are likely to be “legal thrillers” or adventure/mystery/historical novels.  All of the great novels were crammed into four years as a college English major.  The only standout re-read in the past decade was To Kill a Mockingbird, a recommended ethical source for every lawyer beginning practice.

I was reluctant to open Grisham’s An Innocent Man, a Christmas present, which was gathering dust on my shelf.  Having enjoyed all of his varied offerings, and privileged to hear him speak at the Bar Convention, there was still reluctance about learning the true story of a man wrongfully convicted, who the judicial system had failed, as he deteriorated on Death Row for a decade.  In my limited “discretionary” time over almost a month, this man’s tragic life inexorably unfolded before me each night before bringing troubled sleep.  Evidently, being overwhelmed by the negativity and depressive nature of his journey made me unable to absorb its reality in large doses.  We have all been inculcated since law school with the theory of justice, that “It is better to risk saving a guilty man than to condemn an innocent man.”—Voltaire.  In practicality, if this concept ever prevailed, it seems to carry less weight, considering the exigencies of the present.

In bringing alive the life of Ron Williamson, from high school baseball hero and minor league player, through failed marriages, alcoholism, and descent into mental illness and crime, Grisham accuracy portrayed a person who was pathetic, but not admirable.  Life may imitate fiction, but the constraints of truth required bringing to life a broken man, seen as he actually existed, not the tale of one who could evoke much empathy.  It was difficult for me to identify with this actual “innocent victim,” although in the past, I have enjoyed cleverly twisted foibles of lawyers and judges in Grisham’s novels.  Barry Scheck and “the warriors at The Innocence Project” were cited for their work.  Other truly admirable lawyers were inspired to establish that Mr. Williamson did not receive anything remotely resembling a fair prosecution or trial, before paying for a young woman’s brutal murder.  Actual heroes who emerged were dedicated, hard-fighting federal law clerks who prompted a pretty strict constructionist judge, Frank Seay, to set aside the conviction on numerous substantial grounds.  Also, state court Judge Tom Landrith, presiding over the subsequent exoneration hearing, in his hostile local community, who threw out the charges.  It is impossible not to be appalled by the utter hopelessness, sense of abandonment, and callousness and hellish conditions (truly “cruel and unusual punishment”) of Ron’s Death Row experience.  Ironically, the easier path would seem to have been early acceptance of a euthanized termination of his life, simply quietly “put down” like a beloved, aging family Lab.  Grisham graphically “tells it like it is,” and even his inviting prose is unable to create a truly sympathetic character from this seriously flawed man, one who was never engaging or lovable, unlike someone created “out of the whole cloth.”  Undoubtedly, this work deserves its place on our shelves as a haunting piece of legal non-fiction.  It may evoke sadness and guilty feelings, as we cannot dismiss this cruel aberration as “just fiction”.  Although it is unlikely to inspire many to carry a candle outside the walls of Huntsville, it stands as a reminder that although unlikely, this failure of our system of justice could occur in Texas, absent continuous moral vigilance by this profession.  Ultimately, the “rule of law” prevailed, but if, as Cicero maintained, “The aim of justice is to give everyone his due” was this a “just” result?

Paradoxically, I just finished Lone Survivor (borrowed from son-in-law Jeff Fralix).  Fellow Texan Marcus Luttrell autobiographically narrates his gripping “life and death” story of one Navy SEAL warrior; the only individual from his team to live through an Afghanistan Taliban ambush during a clandestine mission.  The prologue reveals that he is writing for us to understand “the indomitable courage under fire” of those fine SEALS who died.  He explains that their lives “stand as a testimony” to one of the central themes of the “Philosophy of the U.S. Navy SEALS”:

I will never quit.  I persevere and thrive on adversity.  My nation expects me to be physically harder and mentally stronger than my enemies.  If knocked down, I will get back up, every time.  I will draw on every remaining ounce of strength to protect my teammates and to accomplish our mission.  I am never out the fight.
I read voraciously.  Putting his powerful tribute down for sleep late each night always evoked mixed emotions.  Often, I was left contemplating, with sheer admiration, the ultimate sacrifices these fine young men were willing to endure for us, at a time when the burden of securing our freedom is being borne on the backs of too few valiant patriots.  Initially, Marcus struggles through the incredibly difficult SEAL training, preparing for the greatest physical and mental challenges imaginable; providing an insight into those who proudly earn the Gold Trident Badge of a Navy SEAL.  He described the unconditional commitment of these men, who are totally dedicated in their service to our country:

…above all, we’re Patriots.  We will willingly carry the fight to whoever may be enemies of the United States of America.  We’re your front line, unafraid and ready to go in against al Qaida, jihadists, terrorists, or whoever the hell else threatens this nation.

In a fate-altering manner, a “rule of law” was imposed upon their odds for survival and success via the “ROE” (rules of engagement) in Afghanistan.  Americans are prohibited to open fire until fired upon or have positively identified our enemy and have proof of his intentions.  It is strictly forbidden to ever shoot, kill, or injure unarmed “civilians.”  In the course of this mission, while surreptitiously proceeding in rough mountain terrain, SEAL team members Lt. Mike Murphy, Marcus, Matt, and Danny unexpectedly encountered, then detained three goat-herders.  Since the SEALS all believed them to be enemy Taliban; the “strictly military decision” would be to kill them because of their intentions; suspicious, rough-looking potential terrorists. The SEALS already knew that Sharmak, the Taliban war lord, had between 80 and 200 armed men, and the certainty was that these operatives, if not killed, would soon reveal the existence and location of the concealed team.  Marcus shares part of the ensuing debate:

(Murphy): When they find the bodies, the Taliban leaders will sing to the Afghan media.  The media in the U.S.A. will latch onto it and write stuff about the brutish U.S. Armed Forces.  Very shortly after that, we will be charged with “the murder of innocent unarmed Afghan farmers”.

(Axe): We are not murderers.  No matter what we do.  We are on active duty behind enemy lines, sent here by our senior commanders.  We have a right to do everything we can do save our own lives.  The military decision is obvious.  To turn them loose would be wrong.

During their dilemma, “four Christians” were holding weapons on the three goat herders, and “thinking like ordinary law-abiding U.S. citizens,” they did find it very hard to carry out “the imperative military decision, the over-riding one, the decision any great commander would have made: these guys can never leave this place alive.”  In a less than unanimous vote, a “moral decision” was reached, despite the uniform belief that the men “posed a clear and present danger.” Released, the three suspects quickly ran off.  Not very long after, lined up atop the mountain were between 80 and 100 heavily armed Taliban warriors, each with an AK-47; and a horrific firefight ensued.  It confirmed that they had probably traded their own survivability for adherence to an impractical, but higher “rule of law.”  In graphic detail, we follow each SEAL’s desperate, valorous fight against all odds, with the “ultimate sacrifice” made one after the other.  Days pass, and Marcus is finally captured, wounded and injured; and unable to resist further against overwhelming firepower.  Interspersed are contemporaneous accounts of what is going on back home with his Mom and Dad, and twin brother Morgan, a fellow SEAL.  We experience their family’s fierce determination, and the spontaneous outpouring of encouragement by hundreds, who “camped” at their ranch, while he was missing in action.  He recounts their great hope, bolstered by the arrival of SEAL comrades coming from all over the globe, friends and neighbors.  They refused to believe CNN reports that he was dead; reassuring his parents “we just want to be with you.”  Attending the daily prayers were local firemen, construction workers, bookstore owners, engineers, mechanics, teachers and two charter boat captains.  There were salesmen, mortgage brokers, lawyers from Houston, and local attorneys.  “All of them fighting off my demise the best way they knew how.”

After Marcus endures Taliban abuse (versus surprising Pushtan tribal assistance), he escapes into improbable rescue by Army Rangers.  Later, Marcus was awarded his branch’s highest award for combat heroism, the fabled Navy Cross (a dark blue ribbon, slashed down the center by a white stripe “signifying selflessness”).  After a private visit with the Commander-in-Chief, and a family reunion, both Luttrell brothers voluntarily redeployed back into combat duty.   “In the beginning of a change, the patriot is a scarce man, and brave, and hated and scorned.  When his cause succeeds, the timid join him, for then it costs nothing to be a patriot.”—Mark Twain
Soon, we will gather as a profession for our 50th “Law Day” celebration.  This year, it is themed: “The Rule of Law: Foundation for Communities of Opportunity and Equity.”  Lawyers may well debate, in spirited but civil discourse, and good will, whether Grisham’s or Luttrell’s “rule of law” story is more inspiring.  In the meantime, consider this food for thought, courtesy of “Forbes”:

“The violation of some laws is a normal part of the behavior of every citizen.”—Stuart Chase

“If you have ten thousand regulations you destroy all respect for the law.”—Winston Churchill

“The victim of too severe a law is considered a martyr, rather than a criminal.”—Charles Caleb Coulton

“Laws should be like clothes.  They should be made to fit the people they are meant to serve.”—Clarence Darrow

“The execution of the laws is more important than the making of them.”—Thomas Jefferson
“Bad laws are the worst sort of tyranny.”—Edmund Burke

“No man is above the law, and no man is below it; nor do we ask any man’s permission when we require him to obey it.”—Theodore Roosevelt

“An unjust law is itself a species of violence. Arrest for its breach is more so.”—Mahatma Gandhi

“There are not enough jails, not enough policemen, not enough law courts, to enforce a law not supported by the people.”—Hubert H. Humphrey

“The law, in its majestic equality, forbids all men to sleep under bridges, to beg in the streets and to steal bread-the rich as well as the poor.”—Amatole France

“Morality cannot be legislated, but behavior can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless.”—Martin Luther King, Jr.

“The purpose of law is to prevent the strong always having their way.”—Ovid

“Revolt and terror pay a price. Order and law have a cost.”—Carl Sandburg

I look forward to our Law Day Commemoration on Friday May 9, 2008, when we rededicate ourselves to the American principle of government under law, in a society free to do so because of continuing sacrifice by modern day patriots.

 

May 2008

It was my privilege recently to witness courtroom drama unfold in a high stakes commercial tort/corporate acquisition lawsuit; widely followed in the media and financial markets.  Judge Joe Brown, Jr. had been assigned to hear potentially dispositive and injunctive relief motions in the case.  By 7:45 a.m., as he strode, robe in hand, down the second floor hallway towards Judge Janet Littlejohn’s high-tech, but historically restored courtroom (graciously “loaned out” while she was in Presiding Court), close to a hundred people had already gathered outside the locked doors.  First, only the actual trial attorneys involved in representing parties in the case were escorted in by the bailiff.  Technicians were in place for the audio visual internet stream available on “Courtline.”  Several of us “interested” members of the bar were invited in to view the proceedings from the jury box, or first rows outside the rail, as trial counsel were busy setting up laptop presentation and visual aids.  On the Plaintiffs’ pleadings as attorneys of record were Joe D. Jamail, Jr., David J. Beck, Robin C. Gibbs (from Houston), and our own Ricardo Cedillo and Larry Macon; with Lamont A. Jefferson, S. Mark Murray, and Michael P. Carroll (from New York), for the Defendants.  The first order of business was to ascertain who actually would assume the “speaking roles,” and Ricardo and Kathy D. Patrick volunteered for the Plaintiffs.  Lamont, Mark and Michael were granted leave to address the Court on behalf of their opposing clients.  In attendance personally were our efficient District Clerk Margaret Montemayor, and our Executive Director Jimmy Allison, to make sure that logistically, everything in  this large production went smoothly.

From our “peanut gallery,” those lawyers who did not have a named party in the case also enjoyed a “ringside seat.”   Access to either personal or large video screens allowed us to easily follow the sophisticated power-point presentations to accompany the legal arguments.  In the time before the court was gaveled to order, and at breaks, it was nice to be able to greet or exchange comments and visit with long-time colleagues, such as David Pritchard, Marvin Pipkin, Reese Harrison, Wade Caldwell, Dan Sciano and Richard Tinsman, Buddy Banack, and Seagal Wheatley.  While we were waiting for the proceedings to begin, Reese pointed out that first on the wall among the portraits of the former judges of the 150th District Court was that of Judge Joe Frazier Brown, Sr.  Reese  then briefly shared some of his remembrances of the “original” Judge Brown with us “younger lawyers”.

It is a case of such economic magnitude that regardless of which party prevailed in these important, but initial skirmishes, the prospect of immediate appeal by the other side was inevitable.  No doubt, many of my distinguished “observer” colleagues would have relished the opportunity to perform again here professionally, at such a high level of responsibility.  If they were like me, however, they would also have wondered how they would perform under such extreme pressure.

In this hearing, with no live testimony, the intellectual exchange was more akin to that which occurs in our highest appellate courts.   Over the next few hours, I was very proud to be a member of the legal profession, a Texas lawyer, and in particular, a fellow member of the San Antonio Bar Association.  It was “show time,” in front of all of the media and cameras; under penetrating questioning by Judge Brown (who was obviously well prepared after reading extensive briefing and evidentiary documents).  As Ricardo Cedillo said in his opening remarks, referring to himself, Judge Brown and Lamont Jefferson, “we all kind of grew up together long ago, first cutting our teeth trying personal injury cases.”
It was quickly apparent that these intelligent and resourceful counsel, familiar with case law and supporting evidence were going to be challenged by a knowledgeable and experienced former trial lawyer who had “boned up” on their cases.  It did not take him very long to “get to the meat of the coconut.”  It was a real treat to watch them work, with me totally unburdened with any substantive task beyond jotting down pertinent developments or interesting quotes.  Although the top drawer advocacy was zealous, and sometimes unyielding, it was always respectful and civil.  When an attorney characterized an opponent as “my esteemed colleague,” it carried the inflection and compelled the inference that it was genuine.  No experienced observer felt compelled to share how they would have handled the issues differently.  From this lawyer’s perspective, all the litigating parties got a full return on their investment, and their well placed trust in respective counsel.

The quality reputation of all these trial lawyers was pretty well known in the legal establishment.  Afterward, it should have been evident to everyone else.  Lay persons and members of the media, unfamiliar with the Code of Judicial Conduct, or the Canons, or the Texas Lawyer’s Creed, learned that these fine representatives of our profession must also have been “cutting their teeth” under the tutelage of some exceptional ethical mentors.  Also, in their own right, each had worked hard over the years to build a good reputation the old fashioned way, one case at a time.

In a few days, at our Law Day celebration, we will again present the Joe Frazier Brown Sr. Award of Excellence which was established as a lifetime tribute to Judge Brown’s dad, another fine man who had a distinguished career, and also taught and influenced many attorneys throughout the years.  The award recognizes an attorney who demonstrates “service to others, idealism, intelligence, and a high degree of integrity.”  This year, our Board was blessed with another well supported fine group of candidates, including (but not limited to) Charlie and Shirley Butts, Ben Chappell, Jr., Anthony Nicholas, Lewin Plunkett, Tommy Smith, and Nolan Welmaker.  These respected lawyers’ professional careers and lives merited serious consideration for the award.

In the end, it was decided that another worthy nominee, James L. Branton, deserved to be this year’s recipient.  After military service, Jim began an extensive commitment to this profession, which included Presidency of the State Bar of Texas, the San Antonio Bar Association, and the Texas Trial Lawyers Association.  He was selected as a member of the American College of Trial Lawyers, and President of the San Antonio Chapter of the American Board of Trial Advocates, and is a Fellow of the International Academy of Trial Lawyers.  He was a founding member of the National Board of Trial Advocacy.

In my personal experience, he is best remembered for his leadership in establishing the State Bar’s Professional Enhancement Program (PEP) which served as an adjunct to the grievance committee for more than a decade to help struggling lawyers “get it right.”  In some of the nominating letters, Sonia Rodriguez and Jim Hall, his partners, reminded us of his hard earned reputation as an intelligent and ethical lawyer.  He also “cut his teeth” in the personal injury trial field (like his respected colleagues Phil Hardberger, Frank Herrera, Pat Maloney, Andy Mireles, Fidel Rodriguez, Jr., and  previous award winner Jack Pasqual).  Often on the other side of the table from the lawyers I recently observed, he always fought hard but fairly for his clients, earning his enviable reputation.

In all of the 45 years during which these fine lawyers have been establishing their stellar reputations, Mr. Jimmy Allison has been the  Executive Director of the San Antonio Bar Association.  At the Law Day luncheon that will honor Jim Branton, the San Antonio Young Lawyers will present Jimmy with the Liberty Bell Award.  It is an honor reserved for those who have promoted a better understanding of the rule of law; encouragement of a greater respect for law in the court; stimulating a sense of civic responsibility; and contributing to good government in the community in general.  In each of these categories, for more than four decades, Mr. Allison remains unequaled as the quiet, efficient “behind the scenes” moving force in San Antonio to encourage, promote, facilitate and implement the efforts of the Bar for public education, pro bono service, and charitable contributions to our community.  Jimmy was recently instrumental in the success of our Support the Troops project, and the work of the young lawyers in many outreach programs.  He has effectively incorporated the leadership interests and projects of minority and specialty bars into our fabric; and was our driving force in identifying the need, planning the creation, and achieving a way to obtain the funding for the existing Community Justice Program of pro bono service extension into pro se litigation.  To many in our community, Mr. Allison has become the respected “public face” of the San Antonio Bar Association through media relations, and by directing community leaders and members of the press to qualified lawyers and speakers in the profession, to timely comment or act upon pressing issues of the day.  Jimmy’s courthouse office door is always open to any person with a problem, who is hurting, down on his luck, or in need of legal or personal “counseling” help.  He is the head of our “extended family” at the courthouse.  In times of need, Mr. Allison always pulls out his wallet first; then makes sure that “his lawyers” are also given the opportunity to help someone less fortunate.  In all respects, Jimmy Allison has personally enhanced the image of the profession through his tireless efforts by enabling us to accomplish the work that we do beyond our daily practice of law.  In our community, each and every day, through his efforts, credibility, and influence with the political, business, and civic leaders, he will “make things happen” for the good of our citizens.

We all know him to be a truly remarkable man, whose work has made our legal community a viable, unique resource.  Jimmy inspires us all, as a “role model” of what true dedication and unselfish service to the profession can achieve.  Given his many years of service, his Liberty Bell Award is an honor which is long overdue; finally recognizing this very modest person who exemplifies its ideals.  No doubt you will want to join me in honoring these fine gentlemen on Law Day, where our Chair extraordinare, Judge Ed Prado, will enhance the enjoyment in his special style.  I look forward to seeing each and every one of you who have earned a seat by your own respected reputation; present to shake their hands for a well earned tribute.

 

June 2008

Last month passed as a kaleidoscopic montage of planned and unexpected events.  Our legal profession celebrated the 50th anniversary of Law Day; enjoying local success thanks to the Herculean efforts of Judge Ed Prado, and his dedicated committee.  Speaker Barry Scheck shared his thoughts on the progress of the Texas “Innocence Project”.  Embracing candor, intelligence, and good will, he also urged us to increase the effectiveness of criminal defense representation, and join the increasing number of Texas’ jurisdictions providing more access to prosecution files (even on-line).  Also, he advocated for the institution of more state trial level Public Defender Offices, and exploration of establishing public integrity units within District Attorney offices, for monitoring conduct and providing ethics guidance.  Joe Frazier Brown, Sr. awardee, Jim Branton, spoke thoughtfully and eloquently; deftly deflecting most of the praise for his strong leadership and great success onto those who had supported him over many years.  Beloved Bar Executive Director Jimmy Allison graciously accepted the SAYLA Liberty Bell Award with customary humility, refusing to permit us to add any personal praise.

Traditionally, Law Day celebrants march forward under a different marquee “Rule of Law” banner each year.  The 50th anniversary theme proclaimed it to be a “Foundation for Communities of Opportunity and Equity”.  A pithy pundit may challenge this lofty principle: What “communities” are included?  “Equity” in what regard?  “Opportunity” toward what end?  Concededly, it was a very broad theme, much like the need for “change;” a swell concept, but in and of itself requiring more substance.

Positively, the Rule of Law as a foundation for “opportunity” in America may easily resonate more deeply.  To many, it is well documented, and easily observed through the changed faces of our profession, evolving judiciary, and political leadership; now much “changed” since Law Day’s inception.  However, in a world that demands solutions “now,” where complex ideas are conveyed by sound bytes; and gaffes transmitted instantly  around the globe; what constant and enduring values still make a sense of “community” relevant?

My large, very old dictionary defines “community” as people who are subject to the same laws, or have the same interests; or other group sharing common characteristics or perceived as distinct in some respect.  I have utilized the term “legal community” as  if we were a single, elevated homogeneous enclave.  Recently, there has been strident public criticism of our expansion of  the scope of the Community Justice Program, to help disadvantaged “pro se” citizens at the Courthouse. I was stung personally by an unwarranted attack upon a good altruistic program; conceived with the best interests of the community in mind, and consistent with the highest traditions of our profession.  Not eager to knowingly expose myself to “political controversy”, this negatism personally “blindsided” me.  Hopefully, detractors who were not “ won over” by proffered information and explanation may ultimately reconsider and agree that basic fairness first dictates giving it a chance to work.  In the end, critics’ views may “change,” as they follow the progress, and see the vast “opportunity” it provides for all, and come to appreciate its “equity.”

Hidden Forest has been my home “community” for thirty-two years.  Initially a “rural” housing development off of (two lane) Bitters Road, our open” (ungated) neighborhood evolved through the efforts of multiple quality builders.  All seemed dedicated to preserving trees and complimenting them with varieties of new ones.  We have an elementary school in the middle, a vibrant homeowners association, and community center (with pool, picnic area, and tennis facilities).  Over the years, many “legal community” families have resided in the neighborhood (including the Adams, Bensons, Bierys, Cliffes, Eichelbergers, Goldmans, Gonzales’, Goodes, Hajeks, Harles, Kelleys,  McClellans, McLeods, Mainzes, Mungers, Putnams, Regans, Schmidts, and Walravens).  Few “pioneers” still remain, but younger neighbors have “repopulated”, as fortunes change, and families would come and go during several iterations.  We remaining homesteaders often still refer to the homes by their original owners.   On Weeping Willow (our little “loop” street), we enjoyed the initial  “bonding” of the first families, all beginning our various careers, proud owners of these brand new homes.  Initially, more homes were under construction than occupied; and we celebrated every occasion or holiday together, as a small, mostly young and close knit neighborhood  “community.”  Over the years, our neighborhood has matured, and afforded more diversification of interests and ages among the homeowners, but the same strong community spirit remains.   “Neighbors Night Out” is still well attended.  Service on the many committees and organizations within the Hidden Forest structure  thrives.  Our neighborhood community however, is not immune from suffering tragedies.  Travis Avey (federal probation officer) lived two doors down with his lovely  wife, Michelle (a teacher), and their three great children.  Recently, he passed away unexpectedly from heart failure.  Travis was well known to us for his own playing, coaching/mentorship, and love of “hoops.”  Daily, Dad and kids spent countless hours together, out in the driveway, playing “horse” or going “one-on-one.”  At his memorial service, colleague Don Hanson spoke eloquently and movingly from a close friend’s perspective.  The pastor of St. Andrews Lutheran Church exclaimed “Wow!  We never had so many people in this building! “ Friends and family provided humorous, touching and wonderful details of Travis’ exemplary, loving life (as “real neighbors”).   Listening carefully, I wished that I had taken  better advantage of chances to know this fine neighbor better, and develop a closer friendship.   Hopefully, the opportunity still exists with the wonderful family he has left with us as his legacy.

Fran and Larry Garrett, one of our few remaining Hidden Forest “pioneer” families, just had their home accidentally burn to the ground.  Along with their daughter and grandchildren, they barely escaped, preserving little beyond their very lives.  Lost in a few hours was a lifetime of personal treasures.  All their worldly possessions had succumbed to the blaze.  In pajamas, many neighbors gathered outside that night.  By the next day, a neighborhood “essentials” drive was underway, and Hidden Forrest Elementary School was planning to host a fundraiser and drop off.  In the TV news report that evening, I concurred with the characterization that we had “always been a close-knit neighborhood,”  as in all real “communities.”  Much more work needs to be done by their truly good neighbors; but something “positive” will be done by every one of us.  Again, thoughts turned to missed opportunities over the years to remain close to the fine family of these original neighbors.

Although Robert Frost remarked once that “good fences make good neighbors”, they should never become barriers to outreach. The Chinese say “a good neighbor - a found treasure.”  According to the Dutch “no one is rich enough to do without a neighbor.”  “Neighborly” traits must not be foreign to the culture of lawyers.  In a testimonial to Carol Weir’s life, Judge Prado remarked at Law Day that we had all lost a good friend, best remembered for her tenacious advocacy of the best interests of disadvantaged little children.

We all need to “stay in touch.”  The Bar Foundation monthly “Tributes” in the Subpoena serve to convey remembrances, congratulations or condolences for a modest donation.  Recently, we shared the word within our legal community of Board Member Jim Greenfield, and bar leader Ileta Summer’s needs, due to personal health challenges.  As we had for Lloyd Bingham, a call went out to the legal community, providing us with the opportunity to act like good neighbors.  The SABA Board recognizes the value of our mass communication capabilities, to share the news of a professional colleague who may need our help while enduring a devastatingly difficult time.  Presently, there is no general dedicated financial corpus available for families’  “lawyers assistance”.  Neither the State Bar, nor San Antonio Bar or Foundation has an enduring trust specifically set aside to assist truly needy members.  In such times, institutionally, it would be remarkably decent to be able to provide funds for  a loan, grant or gift.  In the meantime, we are all free to act upon our own good intentions.   “All social life, stability, progress depend upon each man’s confidence in his neighbor, a reliance upon him to do his duty.”  A. Lawrence Lowell.  In so acting, we may follow St. Augustine: “the love of our neighbor hath its bounds in each man’s love of himself.”  Thanks for your time, good neighbor.

 

July 2008

“You can deceive all of the people part of the time, and part of the people all the time, but not all the people all the time.”
-Abraham Lincoln

Warning! This column contains the concluding musings of a term limited “SHORT TIMER.”   John F. Kennedy counseled: “as we express our gratitude, we must never forget that the highest appreciation is not to utter words, but to live by them.”    Retrospective analysis of the past year rightfully evokes grateful sentiments.  In my inaugural column, it was important to me to share part of my “story.”  It began with recognizing the compassion of close friends and colleagues who strongly supported me to reach a path of lifelong recovery from alcohol dependency.    Presently, each “today” provides a new opportunity for “living life on life’s terms,” enjoying a restored career.
 
The office of the San Antonio Bar Association President   provides exposure, and enhanced power to effectively interact with others in our profession.  It carries the corresponding potential to accomplish more good than otherwise ordinarily achievable.  Eventually, the force inherent in this office may also have provided me a sense of “entitlement;” the role as ultimate arbiter of what constitutes the best interests of the legal community.

It is true that simply by virtue of being “Mr. President,” I was given unimagined opportunities to learn more about many organizations working productively within the profession (even ones usually “under the radar”).  My “duties” included introductory welcomes at CLE programs, committee meeting interaction and special guest invitations to attend lovely dinners, pachangas and other legal group celebrations.  I thoroughly enjoyed the Texas Bar Leaders Conference, the Installation Dinner, Young Lawyers Picnic, Federal Judges’ dinners, International United States-Mexico Bar Association Meeting, the Fun Run, Criminal Law Institute, Anatomy of a Civil Trial, Peace Makers Gala, the ACC Ethics Follies, the Mexican American Bar Association Awards Banquet, Law Day, and finally, the State Bar Convention.  In Bar undertakings, success was achieved through the hard work of many people; often former acquaintances who became very special friends.  Always, I received most of their credit.  It was especially exhilarating when, almost daily, colleagues provided a kind word about the message in a recent column.  It would be disingenuous to discount the inflationary impact this all had on the size of my ego.

I once alluded in this column to the challenge of organizing and leading attorneys as “herding cats.”  It was a misconception and bad analogy.  Lawyers need no “herding;” and implying that it was my duty to drive them as a singular unit, all in one direction, was specious self-indulgence.  One early goal was to forge better fellowship among the many diverse and talented “specialty interest” Bars.  It was apparent that we had many worthwhile interests in common.  The plan was to stress our similarities, rather than differences and work together “just doing the right thing.”  My political naivete about complex leadership relationships existing in our local legal community proved to be a hindrance.  I was uninformed about others’ inclinations for implementing positive change, and largely ignorant of diverse community service elsewhere, among sister organizations.

 The San Antonio Bar Association remains a strong, widely diverse organization of nearly 3500 members.  We have numerous active committees and sections; ably chaired this past year by dedicated leaders.  Through tireless efforts, much work was quietly done to enhance local continuing legal education, and other projects of the bar in its liaison with the Courts, the San Antonio Bar Foundation, and the Bexar County Commissioners.

In succeeding legendary Lamont Jefferson, during my brief stewardship, we built upon his impetus.   Blessed with a multi-talented, insightful Board of Officers and Directors, who not only volunteered for varied projects, but saw them to successful completion, we made positive progress.    Beginning with President-Elect Victor Négron, and including officers Jim Woo, Hon. Phylis Speedlin and Gary Hutton; and directors Malinda Gaul, Diana Geis, Jim Greenfield, Charles Hardy, Andy Kerr, Tom Keyser, Hon. Rebecca Simmons and David West, all deserve my heartfelt thanks and personal accolades.  In the coming years, their strong leadership, along with those newcomers stepping up to the plate, will carry those endeavors forward.  It is my hope that they will implement new strategies, and better bridge liaison with our sister organizations, and expand community outreach projects.

You may be able to infer by now, that “letting go of the reins” may not always be gracious.  This event, however, is eased by confidence that we will continue to flourish under the fresh leadership of  very thoughtful and highly qualified Victor Négron.  Also, coming from a small firm, but also combining a specialty practice in family law and mediation with prior service as a district judge, his spirituality, and quietly persuasive leadership traits will insure a successful future.

I regret that passing the baton may occur before observing “opening day” for our Community Justice Program’s equal access to justice endeavor.  Initially, we were off to a flying start, and the innovative Pro Se/Self Help Center, patterned upon other successful efforts nationwide, seemed destined to quickly and productively fill an increasingly distressing legal services void.  Bexar County’s pro se litigation will exceed 3,000 cases this year; primarily poor citizens’ uncontested divorces.  Previously, our puny Law Library resources were of little value to people who could not afford even basic necessities, much less the counsel of good lawyers.  We have long been under-resourced and under-qualified, according to the 2002 American Association of Law Librarians model county law library standards.  In the near future, we could be open; situated adjacent to our Bar offices, with a trained intake administrator and two highly qualified resource attorneys, Priscilla Camacho and Carol Walker.  These fine people are fully armed with the ability to “triage” and assist those who in the past were hopelessly under water.  The “patrons” will ultimately successfully navigate effectively within the system; thereby promoting the fair administration of justice, with a minimum of wasted court time, resulting legally enforceable and appropriate final orders.  This will create a beneficial impact upon their lives, and enhance the effective operation of Courts.

I must also acknowledge that my early, insistent and unwavering advocacy of the Center resulted in overlooking the potential input of other concerned lawyers.  It later evolved into their belief that they were unwelcome, or deemed selfish in their concerns.  By way of public amends, I truly regret and apologize for any hurt that was inadvertently caused by me; in my zeal to defend the Center.  On the bright side, a joint leadership team of State Bar Director Lamont Jefferson, and President-Elect Victor Négron are actively working on a committee devised by Commissioner Adkisson to accommodate various concerns and differences, in conjunction with other respected members of SABA, and several leaders from interested specialty bars and organizations.  Hopefully, with united support, putting every perspective into play, and employing collective wisdom, they will create positive dialogue, and a “win-win” resolution.  It is my dream that through everyone’s good faith efforts, people who were initially philosophically and practically opposed to each other, will mutually develop sound ideas, and enhance this Center into one which all lawyers will be proud to embrace.

My Presidency could never have survived without the total loyalty, dedication and absolute commitment to serving this profession displayed by our staff: Jimmy Allison, Liz Castillo, Gabe Gonzalez, (editor) Kim Palmer, Betty Newman, Amanda Buckert, Amanda Albiar, Cyndi Perez, Pete Chavez and the “liaison crew” of Suzanne DeWalt, Linda Martinez and Sylvia Hernandez.  Daily, they do all the “heavy lifting” necessary to create a successful administration.  They rarely receive the recognition and praise they deserve.  I wish to express my deepest gratitude.

Gratefully, this year’s lessons, challenges and experiences should make me a better person; one reacquainted with the virtue of humility, as I return to normal law practice.

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