NATHANIEL MACK III ATTORNEY OF THE MONTH YOUR CLIENT HAS BEEN SERVED WITH A SUBPOENA – WHAT DO YOU DO? HOW TO CHOOSE A FORENSIC ACCOUNTING EXPERTFROM THE Publisher Ken Minniti PRESIDENT & CEO Howard LaGraffe VICE PRESIDENT Caitlin Keniston EDITOR Dale Lane SAN ANTONIO PUBLISHER Jaqueline Dávila GRAPHIC DESIGN Susan Cushing Veronica Jauregui ASSISTANT EDITOR Cesar Mejia, CPA, CFE Santos Vargas CONTRIBUTING EDITORS Ellen Cohen Nancy Myrland Kim A. Perret Dr. Sunita Punjabi CONTRIBUTING WRITERS Sterling Creative Photography PHOTOGRAPHY Attorney at Law Magazine is published by: Target Market Media Publications Inc. Welcome! And thank you for reading. My work here involves a never-ending search for interesting people doing inspiring things in our legal community. My hope is this effort will provide my readers with insights and per- spective to their own lives. Recently, I had the opportunity to meet our cover feature at- torney, Nathaniel Mack III. As we shook hands, it was apparent he oper- ates in a constant state of awareness! His en- ergy and focus are on display at all times. It was an honor to help bring his story to San Antonio and I look forward to my friendship with Mack! As always, our contributing authors provide excellent content to help you serve your clients. In this issue, Santos Vargas, part- ner at Davis & Santos, P.C., offers important factors to consider when a client is served with a subpoena. Caesar Mejia, share- holder with Sol Schwartz & Associates, P.C., provides guidance in selecting the best forensic accounting expert for your team when a client has been defrauded. Also, in this issue, Deborah Williamson and Melanie Fry with Dykema share their perspective on how two generations can learn from one another. And in this month’s Paralegal Spotlight, we introduce Ronda Bowden. We want to tell the stories that are making a difference in our legal community. 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Perret and Nancy Myrland 9 The Flow Factor: An Issue of Quality of Life and Brain By Dr. Sunita Punjabi 11 How to Choose a Forensic Accounting Expert By Cesar Mejia, CPA, CFE 12 Nathaniel Mack III Attorney of the Month 16 Learning from Each Other: An Interview Between Two Generations of Dykema Women Attorneys 19 Ronda Bowden Paralegal Spotlight 20 5 Ways to Reconnect to Career Passion By Ellen Cohen SPECIAL SECTIONS 21 Talk of the Town 5Businesses and individuals are often served with subpoenas ordering a person to appear and give testimony and/or to pro- duce documents, even if they are not party to a lawsuit. Determining when and how to respond to a subpoena is important and can carry significant implications for the business or indi- vidual served. If your client is served with a subpoena, below are some things to consider: 1. WHAT TYPE OF SUBPOENA IS THIS? It is important to understand what types of subpoena your client was served with and whether it was issued in a civil case or a criminal case or in some other types of proceeding. For example, some of the considerations and rules that apply to a subpoena issued in a civil case will differ from those that apply to grand jury subpoe- nas issued in a criminal matter. Un- derstanding the type of subpoena and the context in which it was issued is an important first step. 2. IS IT A PROPER SUBPOENA? The next question practitioners should ask is whether the subpoena is in proper form. Texas Rule of Civil Procedure 176.1 mandates that sub- poenas in civil cases meet certain form requirements, including that the subpoena: • Be issued in the name of “The State of Texas”; • State the style of the suit and its cause number; • State the court in which the suit is pending; • State the date on which the sub- poena is issued; • Identify the person to whom the subpoena is directed; • State the time, place, and nature of the actions required by the person to whom the subpoena is directed; • Identify the party at whose in- stance the subpoena is issued, and the party’s attorney of re- cord, if any; • State the text provided for in Texas Rule of Civil Procedure 176.8(a); and • Be signed by the person issuing the subpoena. Tex. R. Civ. P. 176.1. Failure to comply with these form requirements may render a subpoena legally insufficient and subject to a challenge by the party receiving it. See, e.g., Grunauer v. Difilippo, No. 07-03- 0149-CV, 2004 WL 111462, at *1 (Tex. App.—Amarillo Jan. 22, 2004, no pet.) (holding that a subpoena was properly quashed for failing to meet the form requirements of Rule 176.1). 3. WHO OR WHAT IS BEING SUB- POENAED? Subpoenas may command the per- son to whom it is directed to take certain actions such as: (a) attend and give testimony at a deposition, hearing, or trial; or (b) produce and permit inspection and copying of des- ignated documents or tangible things in the person’s possession, custody, or control. See Tex. R. Civ. P. 176.2. It is important to understand whether your client is being sub- poenaed as a party to a lawsuit, as a nonparty witness, or as a custodian of records. For example, a party to a lawsuit may compel discovery from a nonparty—that is, a person who is not a party or subject to a party’s control—by serving a subpoena com- pelling: (a) an oral deposition; (b) a deposition on written questions; (c) a request for production of documents or tangible things, pursuant to Rule 199.2(b)(5) or Rule 200.1(b), served with a notice of deposition on oral examination or written questions; or (d) a request for production of docu- ments and tangible things under Rule 205.1. See Tex. R. Civ. P. 205.1. If a party seeks production of documents or tangible things from a nonparty, the party must serve a notice to pro- duce documents or tangible things on the nonparty and all parties at least 10 days before the subpoena compel- ling production is served. See Tex. R. Civ. P. 205.2. Understanding who is being subpoenaed, what is being sub- poenaed, and why it is being subpoe- naed is therefore important in helping evaluate how you need to respond on behalf of your client, or if you need to challenge the subpoena. 4.DOES MY CLIENT HAVE TO BEAR THE COSTS FOR RESPOND- ING TO A SUBPOENA? It depends. There are different rules that apply to parties versus nonparties Your Client has Been Served with a SUBPOENA – What Do You Do? SANTOS VARGAS | Litigation Santos Vargas is an equity partner at Davis & Santos P.C. and represents individuals, financial institutions, business entities, trusts, and estates in a variety of complex business litigation, financial institution litigation, fiduciary litiga- tion, trust litigation, and estate litigation matters. Santos is the immediate past-president of the San Antonio Bar Association and the current State Bar Director for District 10, Place 2. Santos has repeatedly been listed as a Texas Super Lawyers Rising Star. For more information, visit www.dslawpc.com or call Santos at (210) 853-5882. 6 ATTORNEY AT LAW MAGAZINE · SAN ANTONIO · VOL. 2 NO. 1and to different types of subpoenas. For example, if your client is a nonparty and the subpoena was issued in a civil law- suit requesting the production of docu- ments, then generally your client is not required to bear the costs for respond- ing to a subpoena. See Tex. R. Civ. P. 205.3(f). In this example, the party that served the subpoena requiring the pro- duction of documents must reimburse the nonparty for the reasonable costs of production. “Reasonable costs of pro- duction” under Rule 205.3(f), however, do not include a nonparty’s attorneys’ fees incurred when responding to doc- ument subpoenas. See BASF Fina Pet- rochem. Ltd. P’ship v. H.B. Zachry Co., 168 S.W.3d 867, 872-73 (Tex. App.— Houston [1st Dist.] 2004, pet. denied). Make sure you understand how costs for responding to a subpoena can be allocated so that you may assert your client’s rights to reimbursement where applicable. 5. CAN I OBJECT TO OR CHALLENGE THE SUBPOENA ON BEHALF OF MY CLIENT? Yes. A subpoena can be challenged, and not just by the person being sub- poenaed, but also by any party to the lawsuit or by any other person that is af- fected by the subpoena. See Tex. R. Civ. P. 176.6; 205.3(d). Challenges generally take on the form of a motion for pro- tective order or objections to the sub- poena. See Tex. R. Civ. P. 176.6(d)–(e). It is important to understand when and how to file a challenge to a subpoena to protect your client’s interests. Many times, subpoenas will be overbroad, harassing, or seek to invade a protected right. It is the burden of the party who has been subpoenaed, or any other per- son affected by the subpoena, to chal- lenge the subpoena in a timely manner. 6. CAN MY CLIENT JUST IGNORE THE SUBPOENA? No. The most important thing to keep in mind is that it is never a good idea for your client to simply store the subpoena away and forget about it. If your client fails to comply with a sub- poena, they could be subject to fines or held in contempt of court. See Tex. R. Civ. P. 176.8. Advise your client that it is always best to protect their rights and respond appropriately to subpoenas through counsel. searching for our next LAW FIRM of the monTH Submit nominations at www.AttorneyAtLawMagazine.com/Nominate/It’s no secret: for any organization, smart market- ing finds creative ways to deliver the right mes- sage to the right people in the right way. For law firms in particular, clear, cohesive marketing initiatives can significantly increase awareness and understanding of a firm’s practices and profession- als and expand their book of business. For current and potential clients, accurate, truthful, and trans- parent advertising communications can help them make more informed choices regarding their legal services providers. So why doesn’t this happen more often? In many states, the arcane state bar rules that continue to govern law firm communications act as barriers to all of these outcomes. Fear of noncompliance need- lessly restricts opportunities for law firms and — perhaps most egregiously — prevents vulnerable and underserved individuals and groups from gain- ing access to much-needed legal services. The solution lies in state-by-state adoption of the most up-to-date ABA Model Rules that govern how attorneys and their firms market and advertise their services. For several years, the Legal Marketing As- sociation (LMA) has supported the Association of Professional Responsibility Lawyers (APRL), which worked alongside the ABA’s Standing Committee on Ethics and Professional Responsibility to shape and bring these updated rules to fruition. We are now encouraging you to contact your state bar delegate and express your opinion on adoption of these new guidelines. NEW RULES ACKNOWLEDGE NEW REALITIES New technologies, expanding social media, and targeted advertising have permanently changed modern communications. Advertisements that may once have had limited geographical reach can today be seen by almost anyone, anywhere in the world. Now more than ever, even the most sophisticated and savvy consumers depend on law firms to deliver outreach that is truthful, transparent and — most of all — informative. The new ABA Model Rules do just that. Nearly two years ago, the ABA passed new rules (7.1-7.3, formerly 7.1-7.5) that address marketing and advertising issues in today’s business climate. These updates include guidance for communicat- ing with clients or prospects across state lines, use of social media for marketing purposes, and how client results are publicized. Without question, the new rules ensure attorneys do not mislead or over- promise results to their clients. They also set param- eters around truthfulness in client communications and advertising. Most important, they recognize the new realities of today’s messaging platforms. CLEAR BENEFITS TO FIRMS, LAWYERS AND CLIENTS The new ABA rules give every law firm and lawyer an opportunity to showcase their offerings particu- larly in the face of increasing (in variety and com- plexity) communications channels. They promote consistency, reliability, and clarity from jurisdiction to jurisdiction and minimize confusion regarding the types of services they provide, how they provide them, and who can benefit. Today, for example, more firms and lawyers rely on social media and streaming video to share news and information about their cultures, practice offer- ings, and community-service activities. For poten- tial clients, social media is easy to access and moni- tor. However, the old rules simply cannot accom- modate the intricacies and nuances of this format, and self- or firm-created “standards” can lead to inconsistency, inaccuracy, or a lack of clarity across the legal industry. Whether a firm is exploring or actively using web- sites, blogs, professional directories, client alerts, ar- ticles written for news outlets and industry organiza- tions, and other platforms to reach potential clients, the new rules provide clear guidance and standards. And with the elimination of the once-requisite “At- torney Advertising” label — which can prevent or stifle communications that might otherwise provide greater access to legal services — firms can make connections with and better inform individuals and groups who in the past may have had limited aware- ness of the resources available to them. For the legal marketers in your firm, adoption of the new rules means communications can be more direct, consistent and cost-effective. Every firm will know – without question – what is permissible, what is not allowed, and what is standard operating procedure. Finally, the new rules recognize that the legal marketing landscape will continue to evolve along with ongoing technological, business, and econom- ic developments. Clarity and consistency do not equal calcification; instead, as new platforms are developed, law firms will have the necessary guid- ance to make effective decisions about tomorrow’s advertising practices. PLEASE ACT NOW Your help is needed to make needed change in your state. While legal advocacy groups such as APRL and the LMA can help explain and promote the benefits of adopting the new ABA Model Rules, individual lawyers and firm leaders can help to ad- vance the adoption of the rules by contacting their state bar delegates to voice their support. A simple phone call can go a long way. Once state adoption is complete, the rules will assist and protect everyone, including clients and lawyers alike. We urge you to contact your state bar delegate and express your opinion on adoption of Rules 7.1 – 7.3. KIM A. PERRET IS CMO OF JONES WALKER LLP AND THE CO-CHAIR OF THE LMA ETHICS & ADVERTISING WORKING GROUP. NANCY MYRLAND IS PRESIDENT OF MYRLAND MARKETING & SOCIAL MEDIA AND THE CO-CHAIR OF THE LEGAL MARKETING ASSOCIATION’S ETHICS & ADVERTIS- ING WORKING GROUP. SHE IS ALSO THE FORMER CO- CHAIR OF THE LMA’S SOCIAL & DIGITAL MEDIA SIG. Su pp or t fo r N ew A BA M od el R ul es 7.1-7.3 C an S pu r Su cc es s B Y KIM A. PERRET AND NANC Y MYRLAND 8 ATTORNEY AT LAW MAGAZINE · SAN ANTONIO · VOL. 2 NO. 1Imagine that you’re running a race and your attention is focused on the rhythm of your breath as it fuels the movement of your body. You can feel the power of your muscles. You can feel the force of the air in your lungs. You can feel the pavement but there seems to be no impact beneath your feet. You’re completely absorbed in the task and you are completely present in the moment. Time seems to standstill and even though you are tired you barely notice. If you’ve ever been completely im- mersed in an activity, positive psy- chologists call this a state of flow. Psychologist to have first publish his findings, Mihaly Cskszentmihalyi, “compares it to what sports psycholo- gists call reaching the ‘zone’, a state of transcendent absorption that seems to push champion athletes beyond for- mer limits. The primary difference between flow and the zone is motiva- tion. The point of reaching the zone is to win. Achieving flow is usually an end in itself”. Flow occurs at different times for different people. Flow is not associ- ated with only sports. It is possible to reach a state of flow in your daily ac- tivities for work. The great news is that there actu- ally is a science to achieving flow. Most people think that flow occurs at a beta brain frequency but actually it starts at an alpha frequency where we know individual have a heightened power of concentration and is con- sidered a more creative or meditative frequency. The brain functions with four main frequencies. Beta brain waves move at 13-25 htz. Or cycles per second (CPS), alpha (8-12 CPS) Theta (4-7 CPS) and delta (.5 to 3 CPS)., which is considered a medita- tive state. Have you ever argued an appeal, noticing that you were completely fo- cused on the questions as they came to you almost seamlessly? Have you ever made an argument and you looked at your watch wondering where had time gone? All you are aware of is the congratulations you are receiving for your winning argument. This is flow. In preparing for a jury trial, panic is often the norm. But for a lucky few, flow allows for a performance that is effortless. “You might find flow in ar- guing tough motions…deposing ad- verse experts…sitting at a desk, pen in hand, marking an extremely tricky brief”, in editing briefs, or giving a presentation to a board. Flow is still needed when you go in- house. “It is part of what makes your work satisfying”. Attorney Israel Garcia believes he reaches a state of flow when he is “able to reverse roles with his client, feeling the emotions, feelings and struggles of what the client lived through since the life changing event”. With the advances in neuroscience, scientists are able to train the brain to achieve the state of flow through simple practices in neurofeedback, biofeedback, meditation and breath strategies that allow the brain to reach the magical state when desired. The methods use the brain’s natural processes to lock in flow and other optimizing brain patterns allowing for superior brain performance. The technologies allow you to take your brain to the gym. Just like we take our bodies to the gym, we can actually train the brain. The brain has muscle memory superior to the muscle mem- ory of our bodies. British learning innovator Colin Rose says, flow is “the brain wave that characterizes relaxation and medita- tion, the state of mind during which you daydream, let your imagination run. It is a state of relaxed alertness that facilitates inspiration, fast as- similation of facts and heightened memory.” DR. SUNITA PUNJABI ABD HAS A MAS- TER’S IN PSYCHOLOGY AND IS DOING DOCTORAL WORK THROUGH THE CHI- CAGO SCHOOL OF PSYCHOLOGY. SHE IS CURRENTLY PRACTICING AS A NEURO- THERAPIST DOING NEUROFEEDBACK TO OPTIMIZE BRAIN PERFORMANCE. SHE IS THE FOUNDER AND CEO OF BRAIN COACH LLC. IN SAN ANTONIO, TEXAS. SHE CAN BE REACHED AT 210-884-1200 OR SUNITA@ BRAINCOACHLLC.COM. The Flow Factor: An Issue of Quality of Life and Brain BY DR. SUNITA PUNJABI 9Next >