2021 Essentials of Business Law

The elements of the attorney-client privilege in Texas are (1) a confidential communication; (2) made for the purpose of facilitating the rendition of professional legal services; (3) between or amongst the client, lawyer and their representatives; and (4) the privilege has not been waived. Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996); Tex. R. Evid. 503(b). While these elements are generally well known and easily recited, the components of each element have nuances that are vital to understanding in the practice of business law. This article will discuss practical issues that arise in drawing the line between what is a communication “made for the purpose of facilitating the rendition of professional legal services,” as opposed to myriad other purposes. While the answer may seem simple with respect to outside counsel, it is not uncommon for a company’s in-house counsel to wear multiple hats. For example, what happens when the in-house counsel is also the head of human resources? What happens when a whistleblower reaches out to a company hotline monitored by the legal department, or when two nonlawyer employees discuss the need for legal advice? What happens when a company’s auditor, to certify the company’s financial statements, asks for information that wades into the pools of attorney-client privilege and attorney work product, and what waiver issues must the company consider? This article will provide a review of some of the salient case law and practical considerations involved in each of these questions. Lastly, this article will provide an overview of some differences in how courts approach privilege issues when the asserted privilege concerns a communication with in-house counsel, compared to outside counsel. Ultimately, the privileged nature of a communication is not something to be taken for granted. While courts in Texas have declined to apply a presumption regarding in-house counsel, in practice the evidentiary questions that a privilege challenge can bring underscore the importance of clearly documenting the purpose of any in-house led inquiry, investigation or project.

A private placement is a type of unregistered securities offering, typically to a relatively small number of investors. Private placements are the offer and sale of securities by an issuer, rather than a broker-dealer or other intermediary, and they are generally exempt from registration under both state and federal law. Because private placements are transactional exemptions only the issuer’s initial offer and sale of the securities are exempt from registration. Investors wishing to resell unregistered securities must find an exemption of their own. This article focuses on the issuance of securities by private companies, including private investment funds. It is important for attorneys representing clients in connection with the issuance of both equity and debt to be able to identify when a security is involved, and what exemptions are available. This is particularly true when dealing with oil and gas and real estate transactions that may not be thought of as securities transactions. Finally this article will cover the securities laws applicable to private investment funds and their sponsors.

Black’s Law Dictionary defines “Boilerplate” as: “Language which is used commonly in documents having the same meaning; used to describe standard language in a legal document that is identical in instruments of a like nature.” Boilerplate language certainly serves a purpose to reduce transaction costs and avoid protracted negotiation over what, in many instances, are standard terms. But, too often, lawyers rely on this common usage of the term “boilerplate” when examining, or rather glossing over, relatively customary contractual provisions such as recitals, statements of consideration, and the ever-dangerous miscellaneous section. Like other contractual provisions, mere reliance on form boilerplate provisions can yield unintended and often unfavorable results. Therefore, attorneys are cautioned to review these provisions with the same care as they would review the remaining terms of a given contract.

Our increasingly digital work landscape has, in recent years, created a need for the average attorney to educate his or herself on internet, and information technology security. As digital communication gets easier, so do the risks of data loss, breach of confidentiality, and waiver of attorney-client privilege. Compounding this problem, for attorneys, is the idea that one must take “reasonable steps” to combat these issues (See. Model Rules of Professional Conduct 1.6(c)). And so, according to Comment 18 of Rule 1.6, as security actions become more easily accessible, the definition of what is reasonable broadens. Model Rules of Professional Conduct 1.6, comment [18].

Many attorneys explain their primary value through their wielding of the attorney-client privilege, by helping to cloak the cyber risk management process with the attorney-client privilege. While that can be helpful when done correctly, it is greatly underselling the real value that experienced legal counsel can add. When it comes to managing cyber risk, there is no substitute for experienced legal counsel.

These are the PowerPoint slides for the presentation.

These are the PowerPoint slides for the presentation.

As the laws governing claims under state law in the Texas Commission on Human Rights Act (“TCHRA”) and related federal statutes under Title VII, ADA, and ADEA are similar, this paper will also be a helpful source for determining employment damages under state law. It will also address some important differences between federal and state law. This paper will discuss the different categories of damages including: (1) economic relief; (2) compensatory and punitive damages; (3) equitable relief; and (4) attorney’s fees. This paper will also identify defenses available to employers for damages.

Twenty two nuggets of wisdom from an experienced attorney.

This paper describes what attorneys need to know about incorporating companies that rely heavily – if not exclusively – on blockchains. Because technology is central to this topic, references will be provided for a brief introduction to: cryptocurrencies, blockchains (which is the underlying technology to cryptocurrencies), smart contracts, and distributed autonomous organizations. Finally, this paper will discuss the peculiar requirements for incorporating a blockchain-based company.

This is the slide deck of the presentation.

The legal practice, like many industries, is awash with new technologies that promise efficiencies and improve the way we practice law. Are these promises true? How much pressure do you feel to keep up with your competitors and the new technology trends? The pressure to keep up is understandable and real. There are technology solutions that will provide efficiencies and improve the way you work. In fact, the global legal technology market was a $437 billion market in 2019 and is growing at nearly 28% a year. If you fail to take advantage or ignore these solutions, you may lose ground to those that do. Of course, the degree of benefit depends on the way a solution is used. This article is intended to discuss current technology trends in the legal industry. It will also identify issues involved in the selection, implementation, and utilization of any technology solution. Lastly, we will address how the legal function can help inform other aspects of your business.

How do you successfully diversify your firm before it begins to lose valued clients, opportunities, and talent? By now it should be clear that the demand for diversity isn’t going away, and firms that fail to make lasting changes that yield actual results will struggle to remain competitive. This spotlight on diversity transcends the law space and is a major focus of professional services firms nationwide. Since the percentage of female, millennial, and ethnically diverse GCs, managers, and influencers continues to rise, the need to create a more inclusive culture is critical to firm success. Moreover, clients and internal personnel are looking for firms to do more than just “check the box” with a diversity committee, more affinity groups, or additional diversity recruiting. They want to see real change. While clients want to see lasting improvement for the diverse at every level within the firms they hire and retain, those very lawyers are equally interested in the sort of genuinely inclusive organizations that foster long term career success. This paper explores how to build the inclusive relationships needed to attract, retain, and support diverse professionals.

Intellectual property (“IP”) arises in numerous forms and can be among the most valuable assets of a business. It is intangible property and includes patents, inventions, copyrights, trademarks, trade secrets, and mask works. Copyright includes a broad range of works of authorship, such as software, software manuals, movies, books, paintings, or practical items such as a company website or operating manual. Because of the intangible nature of intellectual property, it must usually be protected or it can be lost. Federal and state statutes and the common law provide for the protection of intellectual property. They create legal rights for owners to use intellectual property and to pursue legal remedies for violation of such rights.

Principles Common to All Bankruptcy Cases, Regardless of Chapter

A confidentiality agreement (“Confidentiality Agreement”), also sometimes called a nondisclosure agreement (“NDA”), is typically the first stage for the due diligence process as parties generally are reluctant to provide confidential information to the other side without having the protection of a confidentiality agreement. The target typically proposes its form of confidentiality agreement, and a negotiation of the confidentiality agreement ensues. A seller’s form of confidentiality agreement is attached as Appendix A.

The Paycheck Protection Program (“PPP”) was created under sections 1102 and 1106 of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) which was signed into law on March 27, 2020. On April 2, 2020, the U.S. Small Business Administration (SBA) published the initial interim final rule (“First IFR”) implementing the PPP. Section 1102 of the CARES Act temporarily adds the PPP to the SBA’s general 7(a) Loan Program. Section 1106 of the CARES Act outlines certain forgiveness provisions that provide for forgiveness up to the full principal amount of qualifying loans guaranteed under the PPP.

In conclusion, the central takeaway from Texas Supreme Court’s decision in Rohrmoos Venture is that your Daddy’s attorney’s fee application simply won’t do. With this case, the Texas Supreme Court left little doubt that it meant what it said in prior cases like El Apple. Rohrmoos Venture is nothing short of a roadmap for recovering attorney’s fees pursuant to a statutory fee-shifting provision in Texas. Now, we practitioners need only follow it.

Fundamentally, to “discriminate” means to treat people, things, or ideas differently, or less favorably, for some reason. Society “discriminates” in that basic sense all the time, and this includes businesses when it comes to employees. Qualification, educational, and experience-based requirements differentiate desirable candidates eligible for a position from those disqualified. But the type of “discrimination” that the laws are concerned with is the unfair and unjustified differential treatment of people on the basis of actual or perceived characteristics. Workplace discrimination statutes define those protected classes.

This paper is meant to be more of a reference tool than a story to read from beginning to end. Each article of the Texas Rules of Evidence is examined with citations to current case law and other rules and statutes as applicable. This paper will also review other subjects related to evidence, such as preservation of error and ethical concerns. The scope of the paper is on family law and evidence that can arise in family law cases. Family law has been referred to as the cross-roads of all other litigation, and as such, many of the cases cited herein are from other fields, including criminal, business, personal injury, government, military, and several federal cases as well. The authors chose to emphasize published cases in the substantive sections and cite to the most recent cases, whether published or not, in the case law update section at the end of the article.