Understanding the Te ...

Understanding the Texas Standards for Appellate Conduct | Kevin Dubose

August 11, 2020 | by D. Todd Smith

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Texas has adopted standards for appellate conduct that go beyond the disciplinary rules governing all licensed attorneys. Making his second appearance on the show is the resident expert on this topic, Kevin Dubose of Alexander Dubose & Jefferson LLP. With his insider knowledge and insights, Kevin explains the impetus behind the aptly-named Standards for Appellate Conduct, how they differ from the ordinary disciplinary rules, and how they reflect and reinforce the Texas appellate bar’s culture.

Our guest is Kevin Dubose. If you haven’t listened to the earlier episode with Kevin, go back and find that. It’s got a lot of great information about Kevin, his background and both trial and appellate practice. We brought Kevin back to talk about a little bit more specific topic and that is the Texas standards of appellate conduct. Texas is unique because we do have separate standards of appellate conduct that are different from the disciplinary rules that apply to all lawyers. Kevin is one of the people that was around and helped develop these. We wanted to bring him back as he’s the resident expert on these to give it a little bit more depth and talk about them. Welcome back to the show, Kevin.

Thanks. It’s great to be back. It’s been a long time.

I mentioned that Kevin is our second repeat guest. We’re glad to have you back, but we did feel like this topic warranted its own episode. We’re thrilled to have you here to talk about this important topic.

It’s one of my favorite subjects.

There was a time before the standards for appellate conduct. The document more or less in its form now was adopted in about the mid-‘90s sometime.

It was adopted in ‘99. We started working on it in the summer of ‘95. We call this the 25th anniversary of the beginnings of the standards.

Tell us about what drove the origination of this. I know you said it was adopted in ‘99. I was a young lawyer back then. I’ve never known a life without the standards for appellate conduct. It was early in my career. I do remember way back when this was being talked about a lot at the CLEs. Tell us about the origination, the impetus for it.

It started in the ‘80s with some problems in the Trial Courts in Texas. We began to see the proliferation of what people called at that time, Rambo Litigation Tactics. There’d always been a certain amount of this ever since there’ve been lawyers. There was one particular firm in Dallas that not only embraced a combative, abusive, intimidating style of trial litigation but used it as a marketing tool. Tell their clients, “If you want the meanest, baddest sons of bitches on the street to fight for you, hire our firm.” Some lawyers began to be concerned about that. They got together and started working on what became the Texas Lawyer’s Creed.

Justice Eugene Cook, on the Texas Supreme Court at the time, was the driving force behind it. He formed a bipartisan committee and wisely appointed co-chairs, one from the defense bar and one from the plaintiff’s bar. The defense lawyer was a guy named Blackie Holmes from Dallas and the plaintiff’s lawyer was Fred Hagans from Houston. They got together and created the Texas Lawyer’s Creed, which was adopted by the Supreme court in 1989. When that happened, I talked on my previous visit about ‘87 being a watershed year for the appellate bar.

It’s the first year that we had the certification exam, the advanced appellate practice course and the formation of the State Bar Appellate Section. We were new and trying to establish our identity. I think in ‘89 or ‘90, I was the chair of something called the Appellate Professionalism Committee. I remember on that committee somebody said, “This Texas Lawyer’s Creed has been adopted. It’s aimed at the trial lawyer’s practice. Maybe we should consider something like that for appellate lawyers.” My first reaction at the time was, “We don’t need a creed like that. We don’t behave like that. We don’t have Rambo tactics in the appellate court. We’re well behaved and govern ourselves and we don’t need a set of standards to prove otherwise.” Over the next several years, I started thinking about that more. In the early ‘90s, I started giving some CLE speeches, appellate ethics, professionalism and wrote some articles.

I began to realize that even though our culture was such that appellate lawyers were more civil and friendly, there was some disagreement about what exactly we agreed on. For example, one of the articles I wrote said, “You should never oppose somebody else’s request for extension of time.” I had a prominent lawyer call me to task saying, “Come on, Kevin. Surely you don’t think we should roll over and let the other side have an extension.” I said, “They kind of do.” I realized there was some difference of opinion. The two real driving forces behind it, the more I thought about it, was that was still back in the day when there weren’t a whole lot of appellate specialists, a lot of trial lawyers argued their own appeal.

I thought trial lawyers need to know when they come into the appellate courts, different cultures, different landscapes. If they come in the appellate courts and throw their weight around as they do in the trial courts, they’re not going to be well-received rather than them getting ambushed without a warning. This may have been a more important factor if clients who are used to litigating in the trial courts expect their appellate lawyer is going to have the same attitude and same conduct. We need something to be able to show our clients, “This is not what the courts want.” When I became chair of the Appellate Section in ’95, ‘96, I formed a committee to look into the creation of what I was then calling the Appellate Lawyer’s Creed.

The best thing I ever did was to appoint Skip Watson as chair of that committee. I don’t even think I knew Skip that well at the time. He was practicing in Amarillo and I met him in some appellate functions, but I didn’t know him well. I wanted an inspired choice and we’ve become close friends over the years since then. I’ve come to appreciate Skip. At the end, remember to ask me for an appellate story or anecdote, is the great one about Skip. We formed a committee. I’d set up four committees. I sent out an email to the Appellate Section saying, “If you want to be on one of those committees, let me know.” I had several people volunteer for this committee. I don’t remember if it was all made up of volunteers or if I handpicked anyone other than Skip, but it was a good cross-section. We had Justice Eugene Cook, who by then was a former Supreme Court justice. He was practicing at Bracewell. He had retired from the court and because of his experience with the Texas Lawyer’s Creed, he was invaluable to us.

Then we had a sitting Appellate Justice Ann McClure from El Paso. We had a staff attorney from the Austin Court of Appeals, Jessie Amos, who later moved to Houston in private practice and went back for Houston Courts of Appeals. He retired. We had David Gunn, an appellate practitioner in Houston, then a young appellate practitioner. We had Steve Tatum from Fort Worth, with Cantey Hanger. We had a guy named David Hricik, who was with Baker Botts, who now has been a professor for many years at Mercer University in Atlanta. Shane Sanders who was from Bryan College Station and he’s now in Waco. That was our committee and we got together and started talking about the drafting. Something which we skipped early and said, “I don’t think we need another creed. I’d like to call them standards for appellate conduct.”

We met several times over the next year in person. We met in Austin and we came from around the state. Skip started off by talking about what causes people to act unprofessionally. It was his thesis that the problem is that we have competing duties, that lawyers tend to get wrapped up in this duty to zealously represent clients. We do have a duty to our clients, but we also have a duty to the courts. We have a duty to the other lawyers. We felt like courts have a duty to the practitioners. We had a fascinating discussion about how these duties interact. Eugene Cook brought to the first meeting two Baker Botts’ of standards, creeds and rules from all over the country. There were 40 different jurisdictions that had rules that we studied. We looked at them and began to realize that none of them focused on appellate practice. They were all mainly about trial practice. That became all the more important to us to craft something that would work for appellate practice.

We read these standards and we thought about the different duties. Skip suggested that we structure the standards along the lines of those competing duties. We made initial drafting assignments. Skip drafted the preamble, which was important because it talked about this conflict of duties and how we need to balance the duties. It’s a well-written eloquent preamble. We had four sections, lawyer’s duties to the client, lawyer’s duties to other lawyers, lawyer’s duties to the courts, and the court’s duties to the lawyers. We drafted them. We circulated the drafts. We circulated edits. We got together and hashed them out in person. We went over them sentence by sentence. We talked about what sounded good, what needed to go, what was the preference, a fascinating group editing project.

Everybody pulled their weight. There wasn’t a leader or somebody who could distinguish themselves from the crowd. I set up four committees. It was the only one I insisted I worked on with everybody else. It took a year to finish the initial draft of the standards. We delivered close to being home. It took us another three years to get them adopted by the courts. I won’t go into all the difficulties that we had. Of interest, one of the things that happened is we wanted to go to the courts and propose this. We mentioned it to the state bar. We were functioning as the appellate section of the state bar and the state bar, the big bar, was upset that we had undertaken this effort without asking them for permission.

They said, “This is not something you have the power to do. You should have asked us. We’re not sure if we’re going to let you go forward.” We had several strong advocates. Richard Orsinger was the chair the year behind me. Richard was a long-time member of the State Bar Executive Board and knew a lot of people and knew who to talk to. The bar insisted on some changes. We circulated drafts to every judge in the state, both appellate and trial judges, 100 appellate judges and several hundred state court and district court judges. We got some feedback. Most of it favorable. We got some suggestions that we made to tweak things.

TALP 25 | Standards for Appellate Conduct
Standards for Appellate Conduct: Lawyers tend to get wrapped up in their duty to zealously represent clients; they forget that they also have a duty to the courts and other lawyers.

The only thing we got much pushback was the section that we called the Court’s Duties to Lawyers and the courts were not comfortable with a group of lawyers getting together and telling them what their duties to lawyers are. We ended up changing the name of the last section to the Court’s Relationship with Counsel rather than the Court’s Duties to Lawyers. It went through the judges then we got to the Supreme court. Skip Watson had some meetings with people on the court. Deborah Hankinson was on the court and she turned out to be a huge advocate of this process. She went around.

She talked to the judges one by one, both on the Supreme Court and the Texas Court of Criminal Appeals, and would not stop until she got everyone’s agreement. February 1st, 1999, the standards were promulgated jointly by the Texas Supreme Court and the Court of Criminal Appeals, thereby making us the first jurisdiction in the country to have standards of conduct specifically designed for appellate courts and to this day the only jurisdiction. I’ve had several people from other states talk to me about this, ask for a copy and ask me how we did it and say, “I’m going to go do that in my state.” It’s never happened.

I was going to ask you that question. It’s been around for many years in its official form now. We all know that our state, our court system and our bar are an example to many other states the equivalent levels of institutions. We are used to taking a leadership role in this thing. I’m floored by the fact that no one else has adopted it. It includes other jurisdictions that have board certifications like Florida, California, Louisiana now. That blows me away.

That is amazing that nobody has done anything like this.

I’m a member of an organization called the American Academy of Appellate Lawyers. It’s surprising how many states now have a well-developed appellate bar. The ones that don’t are the exception, New York still doesn’t, Massachusetts still doesn’t, but a lot of states do. Skip and I did a presentation in 2016. We met in San Antonio and did a presentation on standards. A lot of people were interested, came up and talked to us afterward and asked for copies. No one’s gotten it done. Skip says that it’s because the stars aligned, over that several year periods, Deborah Hankinson pushing it, a few other people that got it done, but it may never get done again.

We’re going to do our part to promote the standards among other states as well. We’re going to send this out on social media. Maybe we’ll shame our brothers and sisters in other states into following that Texas lead on this.

I’ve always said that we didn’t undertake this project to change the appellate culture, but to reflect it and to communicate to clients and other volunteers who aren’t used to the appellate courts what it is. None of us had done anything like this before. We didn’t know what we were doing. We ended up doing something rather extraordinary and rather bold because it’s not the only one of its kind. It goes farther than any other ethical rules and pushing a hard line on unprofessional conduct. I’ve compared our standards to the Texas Disciplinary Rules of Professional Conduct, which are not that different from the uniform rules. This is what most states have.

For example, the whole concept of balancing competing duties or the whole basis for the standards and you don’t see anything about that in the Texas Disciplinary Rules. They say we’ve got a duty to zealously represent our clients, but it doesn’t talk about balancing duties at all. Our standards say that when you accept an engagement, you can’t accept something that you don’t have a good faith belief in. It’s either that you have a chance of winning under existing law or a good faith belief that the law can and will be changed. The rules merely say that you can’t accept a case if it’s frivolous. Frivolous is defined as meaning that it requires you to make false statements of fact. Under the disciplinary rule, you can take a case as long as it doesn’t require you to make known false statements of fact, you can take it.

Whereas the standards say that you have to have a good faith belief that you can prevail. I did an ethical appellate ethics presentation and national meeting. I had a hypothetical. One of the points we were making was there’s a lawyer who is approached about a case he looks at and says, “You don’t have a chance of winning. I don’t even think you’re right.” The client says, “Yes, but I need to file the appeal for settlement leverage with the other side and to buy some more time so I can decide whether I want to file bankruptcy.” The lawyer accepts the case and my point was that’s clearly unethical. A number of lawyers from other states said, “You can take the case. There’s nothing wrong with that.” Under our standards there is. Our standards are good about not saying here’s how you need to act, but here’s what you need to tell the client upfront when you take the engagement.

Let me go through a list of bullet points. You have to tell the clients that the standards exist and what they require. You have to tell the client about the fee agreement and the cost expectations. You have to tell them about the nature of the appellate process, the range of potential outcomes, the timetables, the effect of the appeal on the existing judgments, the availability of alternative dispute resolution. You have to talk to them about the expectation of proper behavior, civility and courtesy, the attorney’s right to agree to a reasonable request by opposing counsel. You have to tell them that upfront and not wait until it comes up. You have to tell them that an appeal should only be pursued with a good faith belief that error was committed, and that the attorney will not take frivolous positions in the appellate court.

I don’t know of any other standards or rules that require that. The disciplinary rules merely say that you need to keep clients informed during the representation of things as they come up. The appellate standard says that you have to tell them all this stuff upfront, which is a good policy. When it comes to behavior towards opposing counsel, the disciplinary say that you should avoid dishonesty, deceit, fraud, misrepresentation and the obstruction of justice. That’s a low bar. Whereas our standards say that you should practice civility, courtesy, decorum, integrity, respect and avoid personal attacks. That’s a much higher standard than saying don’t be a liar, deceitful and fraudulent. In terms of the client’s ability to dictate the behavior of the lawyers, the rules say that you have to abide by the client’s instructions.

The standards say that the client can’t dictate how the lawyer behaves and the lawyer reserves the right to grant reasonable requests about the lawyers. Finally, towards the courts, the rules say that you should refrain from conduct intended to disrupt the proceedings. That’s a low bar. Appellate standards say that your behavior towards the court should exemplify professionalism, respect, integrity, civility, those kinds of things. Those are six different things that are critical where our standards go way beyond what the rules of disciplinary conduct require. For that reason, it’s a bold, almost even revolutionary statement. The fact that our courts have embraced it and required it, it’s a wonderful statement about our appellate courts.

It is. To your point, it does inform the culture of appellate lawyers in Texas. We have what is a fantastically collegial appellate bar throughout the state. This has a lot to do with it because the people that go into this role and do this for most of their full time live by these standards. You can tell in the way that they interact with one another in the courts and all that. It does make a huge difference. When you have someone on the other side that is not an appellate lawyer is when you see these not being applied faithfully, at least that’s been my experience.

I was interested in what you said about the fact that these reflected the culture at the time, rather than being intended necessarily to change the culture. That goes back again to what Jody was saying and what you said earlier about this being the type of relationship that appellate lawyers tend to have with each other. The influences on the court as well. I was going to ask you before you said that about this being reflective. What impact you had seen in the last twenty years of having the standards out there on the culture and the appellate bar?

It has helped sustain the culture that we already had and made it even better. A lot higher percentage of lawyers practicing in the appellate courts now are appellate specialists rather than in 1987 when the tide first started to turn and having more appellate lawyers meaning you have more people that are familiar with these standards. On the other hand, I don’t know that I’ve seen the conduct change, but the awareness of the standards has changed some. When they first were promulgated, it was big news. People talked about it a lot.

The committee split up and went around and talked to every appellate court in the state with one or two members of the committee sitting down in person and talking to courts. I talked to one of the Houston courts. I talked to the Beaumont Court and had a nice visit. We talked to them about what we wanted, why we did the standards and what we hoped they would accomplish. The courts were receptive. That made them aware of them. It was before we had much of an electronic presence in our practice. We printed up a bunch of tri-fold pamphlets and passed them out. Every court we went to, we brought a box.

For a while, every time I went to an Appellate Court Clerk’s Office, when you walked into the clerk’s office, somewhere near the desk, there was a stack of pamphlets of the Standards of Appellate Conduct. They were a tripartite folded, they fit inside a letter-size envelope. Every time I mailed an engagement letter to a client back when we did mail engagement letters, I stuck that pamphlet in there. People looked at it and it did create a heightened awareness. Now most of our engagement letters are sent electronically. Todd, you were mentioning earlier that you always attach a copy. We should. We might try to change that. What we do know is in our engagement letter, there’s a link to the standards. In the letter, we say, “We are bound by the standards and you agree to allow us to be bound by the standards, and here’s a link to them.”

It’s much more powerful to have a physical hard copy rather than hope that somebody will follow the link. Instead of being in pamphlets in the clerk’s office, they’re on the court’s website, along with many other things. Some of the websites, it’s hard to find. I’ve looked for them before and been frustrated. People don’t talk about them as much. They’ve come to either take them for granted or it may be that some of the younger appellate lawyers that have started practice in the last 5 or 10 years may not even be aware of. Skip and I did a presentation at the UT Law Appellate Courts. I hope that people will start talking about them again and maybe revisit them. See if there are new things we should add and amend them. I would like to see more of an awareness of the standards. The urgency of awareness has decreased over time, which is understandable. I’d love to see it pumped up again.

TALP 25 | Standards for Appellate Conduct
Standards for Appellate Conduct: The disciplinary says that you should avoid dishonesty, deceit, fraud, misrepresentation, and the obstruction of justice. Whereas the Standards of Appellate Conduct say that you should practice stability, courtesy, decorum, integrity, respect, and avoid personal attacks.

Reading many of them are still good. One place where we might want to revisit is you can’t manipulate margins or type size to avoid page limits. That’s the one that could be tweaked for now. These are great and they’re evergreen standards because they’re things that, even as the practice of law has changed over the last many years, the duties haven’t changed. It fits perfectly well with the weird remote practice that we’ve all had for the last few months.

We could probably do a whole show on each of these four pillars within the standards themselves and expand upon each one of those a lot. I do attach a copy of these to my engagement agreements with clients because I want them to know they exist. I want them to know that this is the culture of my practice, and this is how I’m going to conduct myself. If I ever do get pushback on acting in accordance with the standards, it’s easy for me. I can go back and refer back to the standards and say, “Remember when we talked about this? Remember when I said this is how my practice has operated?”

It helps to cut off a lot of that debate about someone wanting me to be more aggressive and opposing a motion for extension of time or something like that because that’s expressly dealt with here in the standards. You’re not to oppose good faith requests for extensions. We all know that and we’ve talked about it a fair amount on this show over several episodes. Extensions are necessary and balancing your workload as an appellate lawyer. You have to get out of that trial lawyer mentality if someone is not in this practice area regularly when it comes to giving any ground at all on any issue. This is something that we all get along.

I know the courts appreciate that about our bar. That is one of the challenges when a client is coming out of a trial where their trial lawyer has been beaten on the other side, to turn around and having this passionate view of things. A lot of clients don’t know how to deal with that. It’s nice to have this document to be able to point them to and say, “Not only do we act in accordance with the rules of disciplinary conduct. Our practice, our bar, this is also what we expect of each other. It’s what the courts expect of us.” It’s one of the things to me that makes our practice great.

I’m proud to be a part of that culture. I’m especially proud to have a written confirmation. It’s one thing to have a warm, fuzzy feeling towards each other. When we can look at this on paper or on a screen and we agree on these things and the courts have endorsed it. We couldn’t have this come from appellate lawyers and not have the backing of the courts because that’s what counts with the clients where you can say that it’s done. It’s not that I’m a nice guy and I don’t want to do this. The courts don’t want to hear it and that is important.

I learned the hard way that I still talk to my clients before I agree to an extension. I once agreed without telling the client and the trial lawyer didn’t fire me but talked about it and said, “Don’t ever agree to anything like this without asking me again.” The hard part comes when you ask them and they say, no, then you lean on them hard. I’ve always been able to convince my clients. I might even threaten to withdraw representation if they insisted on doing things like that. I find that most people would agree that this ought to be the rules.

The opportunity for growth in the practice is interpreting them. I find that some people, myself included on first drafts, can be a little bit snarky and you think I’m being an advocate. My firm is good about every brief we file, we circulate to at least 2 or 3 other lawyers. One lawyer who hasn’t done any work on the case, who’s coming to it fresh. One of the things we do for each other is to dial back the snarkiness. A lot of times when you’re saying it, you’re not even aware that it’s disrespectful and snarky. It’s easy to slide into that, but whenever I’m called on it, I dial it back and say, “No, I don’t want to do this.”

We do it exactly the same way. We always have 2 or 3 people read through it for that exact reason. Sometimes your tone does not sound that way in your head, but to somebody who’s neutral on it looks at it. You can always tell which briefs have not had that done. It’s like that email that you write when you’re angry and then delete it. They’d never deleted it. They went ahead and hit send on it.

It’s super useful for the folks that practice in our area of law and the trial lawyers to hear this perspective. It’s impressive that many years after the approval, you can still give a CLE talk on this and do it. It’s great that you can do it from the personal experience of having been involved in the creation, the drafting and seeing this all the way through that four-year process, that one wouldn’t have imagined would have been necessary. I’ve got this vision in my head of Justice Hankinson taking the document and walking it around the court. We’re at the end of our time. I don’t want to interrupt you. Is there anything else about the standards that you wanted to cover?

No, I’ve covered them. I encourage everybody to read them again. It’s always good to go back and touch base on them. It’s one of the things in my career that I’m most proud of.

You should be. I’m not going to let you get out of here though without telling your Skip Watson war story. We need to hear that.

It’s not a war story. It’s the opposite of war. Skip and I worked on this together and we’ve become good friends. I was asked to interview him for the Appellate Section’s Oral History Project, where we interviewed all of the former chairs of the section. I interviewed him for about an hour and we got near the end of the hour. I don’t think this was even a response to a question, but Skip turned to me and said, “Kevin, the opposing counsel is not your enemy. It’s another professional trying to do their job to represent their client the best they can. Just because we have an adversarial system, we don’t need to be adversarial towards each other.”

The adversary system means people on both sides get to present their positions as best they can for someone else to decide. It doesn’t mean we need to be an adversary. I don’t know that I’d never heard anyone say that before. The first sentence that you said was opposing counsel is not your enemy. My first thought was, “What do you mean?” I’ve tried to live by those words ever since and I repeat that story whenever I can because that to me is the fundamental part of the problem. We do tend to regard, while you’re not necessarily appellate lawyers, tend to regard the other side as the enemy and they’re not. As long as we can hold onto that, it helps us with almost every decision. It’s not a war story. It’s a non-war.

It’s a peace story. Where I tend to see that exemplified is when I’ve got a good appellate lawyer on the other side of a case, and we’ve gone and we’ve argued the case to the court. Being able to come away from the argument, reach across and shake hands with opposing counsel and have that feeling of there being no animosity at all. Everyone’s arguing their positions and representing their clients like the stories you hear about the old days, being able to then go out and have a beer after an argument. It’s one of the things that makes our bar special. Thank you for all your work on helping to capture that as it existed back in the ‘90s. Make sure that we have the benefit of this document to help guide us in our decisions and, importantly, in our relationships not only with each other but with our clients and with the court.

It’s a great opportunity to have. I’m glad I found myself in that position.

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TALP 25 | Standards for Appellate Conduct
Standards for Appellate Conduct: The opposing counsel is not your enemy. It’s another professional trying to do their job to represent their client the best they can.

Disclaimer: This transcript has not been proofread or edited to written-article standards. If you have any questions or see any discrepancies, please let us know by sending an email to hosts@texapplawpod.com.

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About Kevin Dubose

While an undergraduate at Rice University, Kevin Dubose took a creative writing course from a professor who was a published short story author. Inspired to emulate his mentor, Kevin told his professor about visions of his own future writing career: English grad school, university professorship, writing fiction on the side. His professor’s response was, “Go to law school.”

That turned out to be good advice. Kevin began his career as a trial lawyer, but after 25 jury trials, he transitioned to appellate law in 1985.  He was attracted the more academic and intellectual and less directly adversarial style of appellate law. He was part of the first class of Texas lawyers to become Board Certified in Appellate Law by the Texas Board of Legal Specialization when that certification was offered in 1987. When the Houston Bar Association started an appellate section in the early 90s, Kevin was the second person elected to serve as its chair. Four years later, he was elected chair of the State Bar of Texas Appellate Section.

His analytic mind and ability to communicate clearly and simply about complex subjects serve him well as an appellate practitioner. But what makes it rewarding to Kevin is that he can use his skills to help people resolve their conflicts and improve their lives.

Kevin has also taken a particularly active role in the advancement of legal ethics, professionalism, and civility. He has been a frequent author and speaker in this area and serves on the board (currently as chair-elect) of the Texas Center for Legal Ethics. In 2012, he was awarded the Chief Justice Jack Pope Professionalism Award — the third attorney in the state to receive that award.

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