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Full-Text Articles in Legal Ethics and Professional Responsibility
Comparative Responsibility In Nonsubscriber Litigation Revisited After Kroger Co. V. Keng., Trek C. Doyle, Jarrett R. Andrews
Comparative Responsibility In Nonsubscriber Litigation Revisited After Kroger Co. V. Keng., Trek C. Doyle, Jarrett R. Andrews
St. Mary's Law Journal
The Texas Supreme Court’s decision in Kroger Co. v. Keng appears to resolve the question of whether an employer who does not subscribe to worker’s compensation can avail itself of the proportionate responsibility scheme in Chapter 33 of the Texas Civil Practice and Remedies Code. The question left unresolved is whether proportionate responsibility is available in nonsubscriber cases involving additional independently liable defendants. In Keng, the Court premised its holding on Texas Labor Code § 406.033, concluding nonsubscribing employers are prohibited from proving its employees were negligent. The Keng Court declined to decide whether proportionate responsibility was unavailable per se. …
Current Trends In Texas Charge Practice: Preservation Of Error And Broad-Form Use., William G. Arnot Iii, David Fowler Johnson
Current Trends In Texas Charge Practice: Preservation Of Error And Broad-Form Use., William G. Arnot Iii, David Fowler Johnson
St. Mary's Law Journal
Over the years Texas appellate courts have been wrestling with two overwhelming charge issues—charge preservation of error and broad-form use. Since the charge is the controlling document the jury uses to decide the factual issues of the case, it is of extreme importance. Before a party can complain on appeal about charge errors, the error must be preserved at trial. The Texas Rules of Civil Procedure (TRCP) have a certain set of procedures for preservation of charge error. The Texas Supreme Court amended charge preservation of error practice in State Department of Highways & Public Transportation v. Payne. In the …
Parties' Defenses To Binding Arbitration Agreements In The Health Care Field & The Operation Of The Mccarran-Ferguson Act Comment., Elizabeth K. Stanley
Parties' Defenses To Binding Arbitration Agreements In The Health Care Field & The Operation Of The Mccarran-Ferguson Act Comment., Elizabeth K. Stanley
St. Mary's Law Journal
Arbitration is a process which allows parties voluntarily to refer their disputes to an impartial third person, an arbiter, selected by them to determine the parties’ rights and liabilities. Initially, arbitration was encouraged between corporate entities with equal bargaining power. But, due to federal policy favoring arbitration, the use of predispute arbitration agreements have increased dramatically, and such clauses can now be found in many noncommercial consumer contracts, especially those in the health care industry. The strong federal policy favoring arbitration originated with Congress’ passing of the Federal Arbitration Act (FAA). Under the FAA, an arbitration agreement is enforceable if …
Refocusing Light: Alex Sheshunoff Management Services, L.P. V. Johnson Moves Back To The Basics Of Covenants Not To Compete., Michael D. Paul, Ian C. Crawford
Refocusing Light: Alex Sheshunoff Management Services, L.P. V. Johnson Moves Back To The Basics Of Covenants Not To Compete., Michael D. Paul, Ian C. Crawford
St. Mary's Law Journal
The law regarding covenants not to compete is a product of the tension between competing rights, including the right of companies to protect trade secrets, market share, and corporate goodwill. Companies use non-compete covenants to deter competition from former employees and discourage employees from job hopping. A covenant not to compete is generally defined as a contractual provision in which one party agrees to refrain from conducting business similar to that of the other party. Courts generally enforce covenants concerning activities after the termination of employment if such covenants are “reasonable in scope, time, and territory.” The promise cannot be …
Microsoft Windows Vista: The Beginning Or The End Of End-User License Agreements As We Know Them Recent Development., Rebecca K. Lively
Microsoft Windows Vista: The Beginning Or The End Of End-User License Agreements As We Know Them Recent Development., Rebecca K. Lively
St. Mary's Law Journal
Microsoft Windows Vista’s widespread use and influence on the market represents an ideal case study on the enforceability, pitfalls, and future of the End-User License Agreement (EULA). Since the release of the Windows Vista operating system in early 2007, Microsoft consumers often do not realize they are entering into a contract with Microsoft when they install Windows Vista onto their computer. Microsoft consumers probably do not realize that they may be clicking away valuable rights. In analyzing the enforceability of the specific terms of the Windows Vista EULA, Washington law will be the primary source because the Windows Vista EULA …
Ethical Considerations Concerning Contacts By Counsel Or Investigators With Present And Former Employees Of An Opposing Party The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., James L. Burt, Jeremy J. Cook
Ethical Considerations Concerning Contacts By Counsel Or Investigators With Present And Former Employees Of An Opposing Party The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., James L. Burt, Jeremy J. Cook
St. Mary's Law Journal
Present and former employees of an opposing party are often the best source of information concerning that party’s activities. Contact with these employees or their representatives may be considered ethical or unethical depending on the circumstances. Unfortunately, the rules governing such contacts are neither clear nor consistent. The first issue lawyers must resolve is whether the present and former employees are considered “represented” under Rule 4.2 of the Model Rules of Professional Conduct. If they are “unrepresented” for purposes of Rule 4.2, the issue then becomes whether Rule 4.3 applies. Of grave importance are the potential sanctions, which include the …
Sandbagging Closed Texas Courtrooms With Senate Bill 15: The Texas Legislature's Attempt To Control Frivolous Silicosis Claims Without Restricting The Constitutional Rights Of Silicosis Sufferers., John G. George
St. Mary's Law Journal
In the 1980s, Texas became a focal point for silicosis litigation. Statutes enacted to limit the liability of employers were not broad enough to limit the liability of silica sand suppliers. The increased number of claims are restricting the ability to receive compensation for those who truly deserve it. While the number of deaths has dropped dramatically, the number of claims has increased. Recently enacted Senate Bill 15 (S.B. 15) is the Texas Legislature’s answer to problems created by the large amount of frivolous silica-related claims. The goal of S.B. 15 is to protect the rights of those with silica …
Getting The Sand Out Of The Eyes Of The Law: The Need For A Clear Rule For Sand Suppliers In Texas After Humble Sand & (And) Gravel, Inc. V. Gomez., Victor E. Schwartz, Mark A. Behrens, Andrew W. Crouse
Getting The Sand Out Of The Eyes Of The Law: The Need For A Clear Rule For Sand Suppliers In Texas After Humble Sand & (And) Gravel, Inc. V. Gomez., Victor E. Schwartz, Mark A. Behrens, Andrew W. Crouse
St. Mary's Law Journal
Health risks associated with the inhalation of silica dust have been known for a very long time. In the United States, the American Foundrymen’s Society has distributed literature addressing silica exposure hazards to its members for over 100 years. For years, litigation against industrial sand manufacturers concerning silica exposure was stable, though recently there has been a marked increase in the number lawsuits. While the number of suits continues to climb, the government reports silica-related deaths have declined dramatically. It appears plaintiffs’ attorneys are manufacturing silica claims using the same lawsuit-generating devices developed during the asbestos context. Tort law recognizes …
Exploring Disqualification Of Counsel In Texas: A Balancing Of Competing Interests The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., Rebecca Simmons, Manuel C. Maltos
Exploring Disqualification Of Counsel In Texas: A Balancing Of Competing Interests The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., Rebecca Simmons, Manuel C. Maltos
St. Mary's Law Journal
Uncertainty over conduct which results in disqualification can be costly and the laws relating to disqualification may be widely known but their application is difficult. Rigid application of irrebuttable presumptions and imputation of knowledge may result in disqualification of a client’s chosen counsel. Even if an attorney succeeds in opposing a motion to disqualify, the resulting costs and delay may damage the attorney-client relationship more than if the attorney had simply declined the representation. Motions to disqualify usually arise from conflicts of interest involving former clients. The law of disqualification, in this instance, is well developed and largely based on …
A Simple Prescription For Texas's Ailing Court System: Stronger Stare Decisis., Andrew T. Solomon
A Simple Prescription For Texas's Ailing Court System: Stronger Stare Decisis., Andrew T. Solomon
St. Mary's Law Journal
Several Texas Supreme Court Justices have recently criticized Texas’s appellate justice system for its failure to provide consistency and the unfairness it produces, namely how litigants are treated differently despite the identical factual circumstances. Despite the warnings of various Texas Justices, neither the Texas Supreme Court nor the Texas Legislature have done much to rectify the lack of uniform justice received by Texas litigants. Most of the proposals to reform the Texas appellate justice systems’ unfairness have focused exclusively on structural changes. While structural changes could help reduce inconsistent “justice”, these reforms fail to address the main substantive problem—Texas’s weak …
Qui Tam: Survival Of The Action And Fate Of The Proceeds Following The Death Of The Relator For The King And For Himself ... And His Heirs., Joseph E. Hoffer
Qui Tam: Survival Of The Action And Fate Of The Proceeds Following The Death Of The Relator For The King And For Himself ... And His Heirs., Joseph E. Hoffer
St. Mary's Law Journal
In the market economy of the United States, a large segment of industry is focused on providing goods and services to the government or to the public on behalf of the government. Often, small businesses are preferred to multinational corporations. But, when the actions of a business toward the government involve the myriad methods of deceit and inflating costs and billing, the business’s legitimate actions have turned into fraud against the government. For those employees who witness this fraudulent behavior and wish to act, one option is to file a qui tam action. The action may be brought either by …
Reeves V. Sanderson Plumbing Products: The Emperor Has No Clothes - Pretext Plus Is Alive And Kicking., Matthew R. Scott, Russell D. Chapman
Reeves V. Sanderson Plumbing Products: The Emperor Has No Clothes - Pretext Plus Is Alive And Kicking., Matthew R. Scott, Russell D. Chapman
St. Mary's Law Journal
Before the Supreme Court’s decision in Reeves v. Sanderson Plumbing Products, Inc., the Fifth Circuit’s en banc decision in Rhodes v. Guiberson Oil Tools established the proper standard of causation in employment discrimination cases. The plaintiff must prove his or her protected trait was the “determinative reason” for the challenged employment action. Following Reeves, which appeared to overrule Rhodes and the doctrine of pretext plus, the Fifth Circuit struggled with the causation question. Despite the apparent confusion, the Fifth Circuit has largely reaffirmed not only its commitment to the Rhodes pretext-plus analysis, but also the determinative-reason standard for pretext cases. …
Superseding Attorney's Fees And Pre-Judgment Interest After House Bill 4., Jonathan Yedor, Regina M. Uhl
Superseding Attorney's Fees And Pre-Judgment Interest After House Bill 4., Jonathan Yedor, Regina M. Uhl
St. Mary's Law Journal
Supersedeas is a rule of procedure allowing a judgment debtor to suspend enforcement of a judgment “by posting security set by the trial court” during the pendency of an appeal. The purpose of it is to “protect[ ] the [prevailing] party [following trial and entry of judgment] from the risk of a later uncollectible judgment and [to] compensate[]’” the prevailing party “for delay in the entry of final judgment.” This means the changes are meant to ensure a judgment debtor does not lose the right to appeal simply because the bond on judgment is too expensive so as to be …
Backdoor Non-Competes In Texas: Trade Secrets., Ted Lee, Leila Ben Debba
Backdoor Non-Competes In Texas: Trade Secrets., Ted Lee, Leila Ben Debba
St. Mary's Law Journal
The unpredictability of court decisions on covenants not to compete is an attorney’s nightmare in Texas. The Texas Supreme Court's decision in Light v. Centel Cellular (Light II), holding that trade secrets may serve as independent consideration for a valid covenant not to compete, has only exacerbated the situation. Currently, attorneys and clients alike are at the mercy of judicial unpredictability. Texas courts have managed to muddle their own underlying public policy on covenants not to compete with trade secrets. During the years preceding Light II, Texas courts consistently struck a balance between the legitimate rights of employers to protect …
The First Marketable Product Doctrine: Just What Is The Product., Byron C. Keeling, Karolyn King Gillespie
The First Marketable Product Doctrine: Just What Is The Product., Byron C. Keeling, Karolyn King Gillespie
St. Mary's Law Journal
Oil and gas leases normally do not set a fixed price for calculating royalty payments. Instead, oil and gas leases commonly tie royalty calculations to a more flexible yardstick, including “market value” or “net proceeds”. This flexibility allows the lease relationship to survive any dramatic volatility in oil and gas prices, while the same fixed price may be inadequate in shifting markets. Conversely, the flexibility may place lessors and lessees in a position of inherent conflict. In particular, parties vehemently disagree about the proper location for applying the yardstick. Historically, lessees have enjoyed the better side of the argument; though, …
Unlicensed To Drill: Proposed Renovations To The Texas Residential Construction Commission Act., Justin M. Jackson
Unlicensed To Drill: Proposed Renovations To The Texas Residential Construction Commission Act., Justin M. Jackson
St. Mary's Law Journal
Construction is the largest industry in the United States, and some regard the industry as the engine of the nation’s economy. Only the unavailability of unskilled labor can slow the growth of the construction industry in Texas. As such, Texas has welcomed the construction boom and has enacted statutes to accommodate further industry growth. Texas’ first legislative response came in the form of the Residential Construction Liability Act (RCLA). The RCLA alleviated liability for builders incurred under the Deceptive Trade Practices Act (DTPA). In 2003, the Texas Legislature continued to legislate in favor of builders by passing the Texas Residential …
Is Sue And Be Sued Language A Clear And Unambiguous Waiver Of Immunity., A. Craig Carter
Is Sue And Be Sued Language A Clear And Unambiguous Waiver Of Immunity., A. Craig Carter
St. Mary's Law Journal
Because “sue and be sued” language is ambiguous at best, courts should not find that this language is a waiver of immunity. Under Texas law, governmental entities—including the state, its agencies, and political subdivisions—are entitled to sovereign immunity from both suit and liability. For sovereign immunity to be applicable to governmental entities, sovereign immunity applies unless the legislature has clearly and unambiguously waived it. Although numerous Texas appellate courts have held that “sue and be sued” language is a waiver of sovereign immunity, the Texas Supreme Court has squarely addressed the issue only once, in Missouri Pacific Railroad Co. v. …
It Is Not So Simply Because An Expert Says It Is So: The Reliability Of Gang Expert Testimony Regarding Membership In Criminal Street Gangs: Pushing The Limits Of Texas Rule Of Evidence 702., Placido G. Gomez
St. Mary's Law Journal
The mechanisms developed by the criminal justice system addressing the criminal activities of street gangs, for the most part, have proved ineffective. The evolution of gangs, their complex structure, and multipurpose focus keep them one step ahead of law enforcement. The most recent weapon created to fight the war on gangs, the civil injunction, suffers from numerous inadequacies. One concern is that civil injunctions raise numerous constitutional concerns. Another is that these injunctions fall short of constitutional demands. Furthermore, the practical implementation of the injunction forces an analysis of the reliability of the gang expert’s testimony. This Article proposes courts …
Making Sense Of Pretext: An Analysis Of Evidentiary Requirements For Summary Judgment Litigants In The Fifth Circuit In Light Of Reeves V. Sanderson Plumbing Prodcuts, And A Proposal For Clarification., Eric S. Riester
St. Mary's Law Journal
Although the United States Supreme Court in Reeves v. Sanderson Plumbing Products, Inc. attempted to clarify the summary judgment landscape of Title VII employment discrimination cases, lower courts in the Fifth Circuit are still without guidance. Under Reeves, direct proof of discrimination is not required to defeat a motion for summary judgment as long as the circumstantial evidence allows a reasonable inference of discrimination. The required strength of the circumstantial evidence, however, remains a major issue in the Fifth Circuit. Since Reeves, the Fifth Circuit has not stated a uniform summary judgment standard, nor has it answered how much circumstantial …
Internet Property Rights: E-Trespass., John D. Saba Jr.
Internet Property Rights: E-Trespass., John D. Saba Jr.
St. Mary's Law Journal
Plaintiffs whose Internet property rights were violated have depended on the common law tort of trespass to chattels. Plaintiffs in Thrifty-Tel, Inc. v. Bezenek and CompuServe Inc. v. Cyber Promotions, Inc. successfully argued defendants trespassed their chattels. In Thrifty-Tel, defendants hacked into plaintiff’s system to obtain long-distance access codes. The court reasoned that electronic signals were tangible and indirect interference in the form of electronic trespass could support a claim for trespass to chattels. In CompuServe Inc., defendants used plaintiff's internet server to send out mass emails to plaintiff’s clients. The court upheld a permanent injunction holding that electronic signals …
Texas Groundwater: Reconciling The Rule Of Capture With Environmental And Community Demands Comment., Stephanie E. Hayes Lusk
Texas Groundwater: Reconciling The Rule Of Capture With Environmental And Community Demands Comment., Stephanie E. Hayes Lusk
St. Mary's Law Journal
In order to avert the depletion of water resources, many states have attempted to enact legislation aimed at promoting water conservation. Such legislation has been known to conflict with outdated principles of property ownership, namely the rule of capture. The rule of capture vests landowners with property rights in water located directly beneath their land. Texas categorizes water based on whether the water flows above or below the surface. Surface water is typically the property of the state, with property owners having no possessory interest in the surface water. Yet, the opposite is true for groundwater, where all rights to …
Juries Under Siege., Phil Hardberger
Juries Under Siege., Phil Hardberger
St. Mary's Law Journal
Beginning in the late 1980s, the Texas Supreme Court saw a slew of conservative judges elected to the bench. With this new Court, previous expansions of the law were stopped. Jury verdicts became highly suspect and were frequently overturned for a variety of reasons. Damages too did not go unnoticed. Juries’ assessments were wiped out by increasingly harsher standards. The ripple effect of the Court’s conservative philosophy on the judicial process was substantial. Jury verdicts, few as they may be, are not subject to harsh scrutiny by conscientious appellate judges sworn to follow the Texas Supreme Court’s precedent. And the …
Hiv And Aids Test Results And The Duty To Warn Third Parties: A Proposal For Uniform Guidelines For Texas Professionals Comment., Tammy R. Wavle
Hiv And Aids Test Results And The Duty To Warn Third Parties: A Proposal For Uniform Guidelines For Texas Professionals Comment., Tammy R. Wavle
St. Mary's Law Journal
Professionals in Texas are increasingly faced with the issues of if and when they must disclose infection of the Human Immunodeficiency Virus (HIV), and if they may be held liable for failing to disclose a known infection. These professionals must deal with conflicting guidance from the courts and legislature. The source of confusion is the conflict between the common-law duty to warn identifiable third parties of the dangers posed to them and the Texas statute governing confidentiality of test results for Acquired Immune Deficiency Syndrome (AIDS). The Communicable Disease Prevention and Control Act (CDPCA) mandates disclosure of positive test results …
The Food And Drug Administration's Final Rule On Tobacco Advertising Is All Butt Final: Commercial Speech Doctrine Will Be Tested Once More Under A Stricter Central Hudson Analysis In The Aftermath Of 44 Liquormart, Inc. V. Rhode Island Comment., Joe R. Hinojosa
St. Mary's Law Journal
In 1996 the Food and Drug Administration (FDA) promulgated regulations affecting the advertising, sale, and promotion of tobacco. President Clinton supported the FDA’s claim it has the power to regulate tobacco products not as drugs, but as medical delivery devices of nicotine. Meaning tobacco sellers, retailer, distributors, and manufacturers would be subject to strict rules concerning how and where tobacco products may be advertised, distributed, and promoted. Despite the FDA’s claims, these measures were oriented toward discouraging children from smoking. Opponents of the regulations claim the restrictions constitute blatant infringement of commercial speech. The FDA argues that while advertising is …
Of Ivory Columns And Glass Ceilings: The Impact Of The Supreme Court Of The United States On The Practice Of Women Attorneys In Law Firms Comment., Nancy L. Farrer
Of Ivory Columns And Glass Ceilings: The Impact Of The Supreme Court Of The United States On The Practice Of Women Attorneys In Law Firms Comment., Nancy L. Farrer
St. Mary's Law Journal
This Commentary examines the effect United States Supreme Court decisions on sex discrimination in the legal profession. Discrimination against women currently appears to be alive and well in the legal field. Decisions like Bradwell v. Illinois and In re Lockwood frustrated women attorneys for over a century, allowing states to determine women were unfit for occupations in areas like law. Hishon v. King & Spalding, and later, Price Waterhouse v. Hopkins, applied Title VII protections to evaluations of potential law firm partners—a process previously closed and unassailable for most of the history of the legal profession. More recently, Harris v. …
So Long Sweetheart - State Farm Fire & (And) Casualty Co. V. Gandy Swings The Pendulum Further To The Right As The Latest In A Line Of Setbacks For Texas Plaintiffs., Timothy D. Howell
So Long Sweetheart - State Farm Fire & (And) Casualty Co. V. Gandy Swings The Pendulum Further To The Right As The Latest In A Line Of Setbacks For Texas Plaintiffs., Timothy D. Howell
St. Mary's Law Journal
Some legal commentators would analogize the description of the prisoner of The Pit and the Pendulum to modern tort law and policy. Like a pendulum, tort law is always in motion, swinging between two ideologies: those being the plaintiff-oriented rights of the 1970s-80s, and the tort-reforms which began in the mid-80s. This trend continued until the 1990s and the decision of State Farm Fire & Casualty Co. v. Gandy where Texas plaintiffs began experiencing setbacks. The Gandy decision likely curtails the use of the “sweetheart deal” a practice, in which an insured defendant first settles with the plaintiff, then assigns …
Abandoned Frozen Embryos And Texas Law Of Abandoned Personal Property: Should There Be A Connection Comment., Lynne M. Thomas
Abandoned Frozen Embryos And Texas Law Of Abandoned Personal Property: Should There Be A Connection Comment., Lynne M. Thomas
St. Mary's Law Journal
In vitro fertilization (“IVF”) has become almost commonplace in society. The widespread utilization of IVF and cryopreservation raises new questions with respect to ownership and disposition of embryos. This legal confusion may be addressed by either crafting specific regulations for that particular technology as its implications become apparent, or by applying current law. IVF first began in Great Britain, and the British Parliament passed a law mandating destruction of abandoned frozen embryos five years after cryopreservation. Destruction of the embryos potentially caused the loss of reproduction capability for those persons whose embryos were destroyed. While the number of abandoned frozen …
Scientific Evidence Under Daubert., John H. Mansfield
Scientific Evidence Under Daubert., John H. Mansfield
St. Mary's Law Journal
The controversy over the proper standard for the admissibility of scientific evidence is an argument over the value of a jury trial compared with a bench trial or decisions by scientists. The argument has both a constitutional dimension in the provisions relating to a jury trial, compulsory process and due process, and a nonconstitutional dimension in the ordinary law of evidence. In the recent case of Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court took a different approach, basing its decision almost entirely on an interpretation of the particular words used in Rule 702 of the Federal …
Changing The Nature Of Corporate Representation: Attorney Liability For Aiding And Abetting The Breach Of Fiduciary Duty Comment., Stanley Pietrusiak Jr.
Changing The Nature Of Corporate Representation: Attorney Liability For Aiding And Abetting The Breach Of Fiduciary Duty Comment., Stanley Pietrusiak Jr.
St. Mary's Law Journal
In 1983, the American Bar Association (ABA) comprehensively defined corporate counsel’s ethical duties in situations where a corporate officer engages in conduct which could substantially harm the organization. In such cases, the nature of the corporate attorney’s duties depends on whether the officer’s conduct is illegal or whether the officer made a policy decision which falls short of illegality. Rule 1.13 of the Model Rules of Professional Conduct imposes the duty on corporate counsel to take steps to stop corporate officers from engaging in illegal conduct which is likely to result in substantial injury to the organization. Conversely, counsel is …
Third World Texas: Nafta, State Law, And Environmental Problems Facing Texas Colonias Symposium - The Environment And The United States-Mexico Border - Comment., David L. Hanna
St. Mary's Law Journal
The horrendous conditions along the Texas-Mexico border stem from factors on both sides of the Rio Grande River, including maquiladoras, migrant farms, poverty, poor land development, and bureaucracy. The adverse living conditions in Texas’s third world border region have resulted in immense health and safety problems. The United States government promised the North American Free Trade Agreement (NAFTA) would bring new environmental prosperity to the border region. Yet, aside from one sentence in the preamble, NAFTA does not directly address environmental protection. The United States and Mexico, as part of a series of environmental side agreements, created the Border Environmental …