Graf testifies on ‘Persuader rule’ case, which leads to temporary injunction against Labor Department
Graf testifies on ‘Persuader rule’ case, which leads to temporary injunction against Labor Department

don_graf.jpg (210×240)Attorney Don Graf of McCleskey, Harriger, Brazill & Graf offered expert testimony last week that helped lead to a temporary injunction keeping the Obama Administration’s Labor Department from implementing its “persuader rule.”

Federal Judge Samuel Cummings imposed the injunction in Lubbock on June 27, calling the rule “defective to its core.”

A Wall Street Journal editorial said the judge’s ruling “could have been describing the Obama Administration’s entire regulatory apparatus.”

Graf was asked to appear as an expert witness because “for 35 years I was the only certified labor law specialist in West Texas.”

The Journal editorial also said: “The rule putatively updates the Labor-Management Reporting and Disclosure Act of 1959, which requires ‘persuaders’ hired by employers to communicate directly with workers to disclose their clients, services and compensation. The real goal is to muzzle employers and help union organizers.”

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John Shanklin Presents West Texas Bankruptcy Bar Association Awards

McCleskey Law Firm Attorney John Shanklin, who also serves as president of the West Texas Bankruptcy Bar Association, recently awarded two of the Top Grade Awards at the Texas Tech University School of Law Honors and Awards Ceremony.

“The West Texas Bankruptcy Bar Association has been presenting these awards for a long time, and it was an honor to present those awards to such high achieving law students,” said Shanklin, who has been active with the bankruptcy bar for four years.

The awards are designed to encourage law students to take an interest in the nuts and bolts of bankruptcy law, the rights of both debtors and creditors, and the overall impact of bankruptcy policy on our society and the economy,” said Shanklin.

Bankruptcy Bar 2Carter Bowers won the Frank R. Murray Award, presented to the student with the highest grade in Creditors’ Rights and Bankruptcy.  The award is named in memory of Murray, a well-respected bankruptcy judge for the Northern District of Texas, Lubbock Division. Murray served as bankruptcy judge for the Lubbock Division for 30 years from 1949-1979 until he retired at age 88. In 1985, when he was 94, Murray was reappointed bankruptcy judge on an interim basis.

Aaron C. Powell won the John C. Akard Scholarship, which goes to a second-year student who demonstrates an interest in commercial law and bankruptcy.  Akard, a retired United States bankruptcy judge for the Northern District of Texas, Lubbock Division, was at the ceremony.

According to a Lubbock Avalanche-Journal article written in 1999 when Akard retired, the judge’s example in the court inspired the West Texas Bankruptcy Bar Association to establish the scholarship.  It went on to say:  “[Max] Tarbox, a Chapter 7 trustee and former chairman with the West Texas Bankruptcy Bar, said Akard is the Lubbock leader for bankruptcy attorneys. Akard created the Farm and Ranch Agribusiness Bankruptcy Institute, which has educated West Texas attorneys in agriculture bankruptcy case law.  ‘He treats people with dignity and respect,’ Tarbox said.  ‘You don’t find that everywhere. … He does respect the debtors as an individual and a person and he treats them that way in his courtroom.’”

Shanklin said the West Texas Bankruptcy Bar Association is “made up of some great people, very active members of our community who serve the Lubbock and West Texas legal profession well.”

McCleskey Attorney Joins Pro Bono College of the State Bar of Texas

M. Kathleen Davidson of the McCleskey Law Firm became a member of the Pro Bono College of the State Bar of Texas in March 2015.  This college is an honorary society recognizing attorneys who perform 75 or more hours of pro bono legal services to the poor in a calendar year, and Davidson provided more than 80 hours of pro bono work last year.

Davidson said that she enjoys helping people who cannot afford legal services, but takes “special gratification when helping families get through crises.”  Some of the pro bono cases came from work McCleskey does with Legal Aid of NorthWest Texas, and others came from referrals.

Davidson worked on family law cases – divorce, custody matters and Child Protective Services proceedings.

Davidson received her law degree at University of Oklahoma College of Law.

Legal Aid: Helping the Community
Abel Reyna - Legal Aid


When Abel Reyna grew up in the small Texas Panhandle town of Hart, if his family needed legal help they would not have been able to afford it.

“I keep that in mind while volunteering,” said Reyna, an attorney with the McCleskey Law Firm in Lubbock.

McCleskey attorneys offered pro bono legal advice through Legal Aid of NorthWest Texas for the month of January. McCleskey is one of four Lubbock law firms that “sponsor” a month, which means attorneys work two evening clinics where they counsel people who qualify for aid.

About 400 people are seen at the Lubbock clinics each year.

Besides the local law firms that volunteer, various other legal associations and the Texas Tech University School of Law sponsor other months to cover the year.

“We can’t say enough about our longstanding partners like McCleskey because when they help us they’re helping the poor,” said Tamara Duncan, managing attorney of Legal Aid’s Lubbock office.

Duncan quoted statistics that there’s one attorney for every 400 Texans above the poverty line.

But there’s only one legal aid attorney available for every 11,000 Texans below the poverty line, she said, according to statistics from Texas Access to Justice. The group also said Texas ranks 50th in access to legal aid attorneys.

“The support of our volunteers is immeasurable,” said Duncan.

KolanderMcCleskey Partner Jerry Kolander has been the firm’s contact “as long as we have done it,” which began in 1992.

“It’s important to our community and people who live here and around Lubbock to provide them with access to the legal system,” said Kolander.

The Need

The majority of cases seen at a Legal Aid clinic are family law, divorce with child support, for example, but those are not the only types, said Duncan.

Reyna, who was given Legal Aid of NorthWest Texas’ Legal Clinic Volunteer Attorney award in 2013, says he mostly sees family law cases and some renter issues.

Duncan added Legal Aid also sees consumer issues, wills, probate, eviction … “some can be very dire.”

But beyond the much-needed legal help, winning a case can do so much more, she said.

“You help someone receive child support and you can lift someone out of poverty,” she said.

An attorney negotiated a third-party debt collection. Someone gets help getting public benefits. Another person gets to stay in their house, she gave as other examples.

“We want to address poverty at its roots,” Duncan said.

How it Works

A potential client checks in with the front desk to show if he or she qualifies economically.

If they do, the person fills out a form.

It’s reviewed by people from Legal Aid.

The form is then handed to a volunteering attorney, who takes the person to a private room to meet.

The attorney can give them legal advice and then gives a recommendation to Legal Aid.

At that point, the attorney can take it as a pro bono case, Legal Aid will take it or it is denied.

McCleskey Attorneys

Kathleen Davidson

Attorney Kathleen Davidson, who is of counsel and works with her father, McCleskey partner Ben Davidson, worked on two Legal Aid cases in the past two years.

She helped a woman with a restraining order and supervised visitation.

“It made me feel good because I protected my client and her family from an abusive situation,” said Kathleen.

She said some of the people they see are in difficult situations and would have nowhere to turn for help if the attorneys didn’t help.

“People seem desperate for help,” she said.

Davidson recently joined the Pro Bono College of the State Bar of Texas, for attorneys who have done more than 75 hours of pro bono work in a calendar year.


Attorney Will Griffis also volunteered in January.

It’s our chance to give back and recognize those who need assistance and doors to lawyers’ offices where doors are not open to them.

“We’re able to help people in the community be more at ease with their issues,” he said.


America: A Nation of Freedom

With Independence Day comes celebration with family, friends, and—depending on the year-to-date rainfall—fireworks. On the Fourth of July, we celebrate freedom, sacrifice, and the heritage of law and liberty that has shaped America into a nation of independent and resourceful citizens. On July 4, 1776, our founders adopted the Declaration of Independence, and eleven years later, they created our national constitution—a constitution intended to “form a more perfect Union, establish Justice, [and] insure domestic Tranquility. . . .” Independence Day calls us to consider our national documents, to ponder the meaning ensconced in the beloved rhetorical passages, and to remember that liberty is not self-sustaining. As the Constitution’s elegant, visionary preamble leads to its careful, clear articles, so liberty requires law. As the philosopher John Locke said, “ …the end of law is… to preserve and enlarge freedom.

For in all the states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others, which cannot be where there is no law. . . .”[1] To borrow John Adam’s phrase, American government began as a “government of laws, and not of men.”[2] Because America is a nation of laws—not a nation of arbitrary fiat but a nation of duly-debated legislation—America is a nation of freedom. The highway of freedom—of independence—stretches like the Golden Gate Bridge into the crimson horizon of a nation etched with sacrifice and glowing with promise. But American freedom remains only because the cables of sound law keep the bridge suspended in place, raising it to maturity, rescuing it from the degradation of chaos and anarchy. This Independence Day, we celebrate liberty, and in so doing, we celebrate law. As the flags wave and the fireworks spangle the sky, may we remember both our freedom and the law that upholds it—these fine, twin sisters of our national hope.

– Andrew McCartney

[1]. John Locke, Concerning Civil Government, Second Essay, Chapter VI, jmanis/locke/civilgo2.pdf (accessed July 1, 2014).

[2]. John Adams, Novanglus Essays, No. 7, (accessed July 1, 2014).

McCleskey Attorneys Win Ruling on Behalf of Homeowners

Attorneys at McCleskey Harriger Brazill & Graf, working on behalf of homeowners Cory and Tamie Coltharp, have won a key appellate court ruling in a contract case involving their clients and a homebuilder. In March 2012, the Coltharps signed a three-page agreement to build a home in Slaton, Texas. But when a dispute arose and the Coltharps sued in state court, the builder argued the missing first page of the contract required such a dispute be subject to arbitration. The trial court ruled in favor of our clients and now, the Court of Appeals for the Seventh District of Texas at Amarillo has done the same.

Click here to read the court’s opinion in the case.

McCleskey Featured in Lubbock Avalanche-Journal

The McCleskey Law Firm was recently featured in the Lubbock Avalanche-Journal article “Guar hearing resumes Monday; unpaid farmers remain frustrated.”

Click here to read the full story.

Ever Changing Workplace Compliance

Right or wrong, our government continues to push for new workplace rules and regulations, or seeks to further enforce rules and regulations currently in place.  The government’s focus continues to be on employees, which means added burdens to employers.  Just recently, orders increasing minimum wage have been signed, there is increased focus on equal pay protections, and current overtime laws are in the process of being revamped so that more employees would be eligible for overtime pay.

Recently, President Obama signed an executive order increasing the minimum wage for federal contractors.  While this order does not affect most employers, employers need to be aware of the change and the possibility of future minimum wage increases.  Further, the government has indicated that it will change the current overtime laws thereby entitling more employees to overtime pay.  These changes likely will be announced within the coming year and certainly will affect more employers than the executive order signed regarding an increase in minimum wage.  Also, while equal pay protections already exist in the workplace, the government has determined that disparity still exists in pay.  Therefore, it is likely that such disparities will be the focus of government investigations in the near future.

With the government’s renewed focus on employees, it is important that employers keep up to date on the current regulations and the focus of the government.  Policies should be reviewed and updated if necessary.  A proactive approach by employers should limit any adverse findings or liability if ever confronted with an investigation.  The attorneys at McCleskey, Harriger, Brazill & Graf, L.L.P. can assist you in making sure that your workplace is in compliance in the ever-changing field of labor and employment law.

McCleskey Attorneys Win on Behalf of Dan Wilson Homes

Attorneys from Lubbock’s McCleskey, Harriger, Brazill & Graf LLP recently won a major victory on behalf of local custom home builder Dan Wilson and Dan Wilson Homes Inc. in a case involving copyrighted custom home designs.

Dan Wilson Homes had hired Marshall Hunn and Hunn Designs to draft plans for several custom homes. Before the plans were finished, however, the draftsman who was working on those plans left Hunn Designs and opened his own drafting firm.

Mr. Wilson attempted on several occasions to complete the plans with Hunn Designs, but the company was non-responsive. Ultimately, Dan Wilson Homes hired Ben Lack – the former Hunn Designs draftsman who had worked on the plans when he was at Hunn – to finish the designs. That prompted Hunn to sue Mr. Lack and Dan Wilson Homes on claims of copyright infringement.

Dan Wilson Homes hired McCleskey partners Dustin R. Burrows and Marion (Rion) Sanford. The McCleskey legal team not only convinced Judge Sam R. Cummings of the U.S. District Court for the Northern District of Texas in Lubbock that Mr. Wilson, Dan Wilson Homes and Mr. Lack did not infringe the copyrighted house plans; they also successfully argued that Dan Wilson Homes and Mr. Lack are entitled to attorneys’ fees.

“Mr. Hunn claimed he owned the copyright to the plans even though the homeowners themselves had essentially designed their dream homes and hired Mr. Wilson to turn their visions into reality,” says Mr. Sanford. “Mr. Hunn’s job was simply to translate the homeowners’ layman drawings into architectural plans. The plans never belonged to Mr. Hunn, nor were they his creation.”

The ruling could provide some clarity to the architecture community. During the drafting process, Dan Wilson Homes and Hunn Designs worked closely with Hunn delivering multiple sets of preliminary plans, with no restrictions on use. Both parties intended for the plans to be used to further the construction process, Mr. Burrows says.

“The judge’s finding that Dan Wilson Homes had an implied license to finish the plans is noteworthy,” he says. “That’s been danced around before in the architectural world but I’ve never seen it decided so clearly.”

The case is Marshall Hunn v. Dan Wilson Homes Inc., et al., No. 5:12-CV-081-C.

McCleskey Attorneys Talk Creditor Issues with West Texas Bankruptcy Bar Association

A trio of McCleskey attorneys were honored to speak to the West Texas Bankruptcy Bar Association on January 31 about creditor issues in bankruptcy. The team of Tommy Swann, John Shanklin, and Jennifer Workman discussed the challenges creditors face in bankruptcy proceedings, specifically with regard to preferential and fraudulent transfers.

Mr. Swann, a lawyer with more than 30 years’ experience in creditor rights and bankruptcy, explained what the bankruptcy process looks like from a creditor’s point-of-view. He also explained the difficulty creditors have in protecting themselves from fraudulent transfers.

Mr. Shanklin provided a synopsis of “new value” in the context of preferences, and also who may be liable for a preferential or fraudulent transfer according to the courts’ interpretation of the Bankruptcy Code.

Ms. Workman rounded out the discussion with an overview of the ordinary course of business exception to an otherwise preferential transfer.

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