Attorneys sometimes struggle to set themselves apart from their peers. One way is to find a niche and develop expertise. This is true for appellate lawyers, who, though already focused on appellate law, can cultivate unique areas of knowledge within that specialty. In this episode, Todd Smith and Jody Sanders find out what it takes to carve out a niche with non-compete and trade-secret litigation lawyer Zach Wolfe. Zach shares his experience in litigation and transitioning from working at a law firm to starting his own practice. Zach also takes a look at how the Texas advertising rules have changed and how attorneys can use them to better market themselves.

Listen to the podcast here:

Developing a Niche Within Your Law Practice | Zach Wolfe

Our guest is Zach Wolfe from the Zach Wolfe Law Firm in Houston. Welcome to the show, Zach.

Thank you. It’s good to be here.

A lot of folks who follow our show, if they are on appellate Twitter with us, which a lot of our readers are, certainly know who you are and have some idea of what you are about but for those who do not, let’s talk a little about your background, where you come from and maybe your early career.

The first thing I have to address is the elephant in the room, which looks like a manel here. We do not have a lot of diversity, so I may get in a little trouble. Lady Lawyer Diaries may get on me but in my defense, it said Jody Sanders on the thing and I thought, “We’re good.” I have practiced business litigation in Texas for several years in several places. I first met Todd when I was practicing in Austin. I’m based in Houston but I practice all over the state.

I have had a solo law practice. I still do business litigation but my focus is on non-compete and trade secret litigation or sometimes I call it departing employee litigation. People do not always know what that means but cases involving employees usually leaving a company and going to work for a competitor. I represent all sides of that equation depending on who hires me. That is probably about 90% of my practice.

In addition to that, a lot of you know I have a blog called Five Minute Law. If you do not know, please go check it out, I also have a YouTube channel and it’s called That Non-compete Lawyer. It has lots of non-compete material. The YouTube channel is a little more geared towards non-lawyers but lawyers can find interesting stuff there too. I do not have a podcast. I have thought about it but not yet. I’m excited to be on this show.

You are very active on Twitter and in that form of social media specifically. I certainly admire what you have done with your blog and the YouTube channel linking all that together to be a great resource for folks who have the kinds of problems that you work on. You are doing a stupendous job putting yourself out there with that. You were doing it long before you went out on your own. You were doing it when you were part of your previous firm. I have to think that helped you with some name recognition as you started your own practice. Did you find that to be the case?

Yes. This is my second time practicing solo. The first time was not successful and this time appears to be successful so far. I can contrast the two to see what is making the second one successful, when I say unsuccessful, the first time, I brought in enough money to pay the bills. It was successful in that sense but I did not have enough client work to sustain a solo practice. I ended up going back to a firm I had worked for previously. One of the differences is that in the last few years, I made a concerted effort to put out a lot of content and get my name out there. The big difference for me has been the specialization.

The blog covers a lot of topics. It’s not just focused on one practice area, but there is a focus on what I do, which is the non-compete and trade secret stuff. That is what has made the difference in letting people know what I do and having a specialized practice area as opposed to litigation, which is what I was doing the first time I tried solo practice. I got some great advice from my dad, who was not a lawyer but had a successful small business that he started up. He said, “Keep your overhead low and do a lot of networking.” That was great advice. I did those things. I did a lot of networking but what was missing was that specialty so that people I networked with would not just think Zach’s a lawyer but they think Zach’s a specific type of lawyer.

Is non-compete trade secret an area that has grown or are you tapping into a market that was always there?

It’s always been there but I do get the sense anecdotally that it has grown. I wrote a blog post about non-compete cases starting in the 1920s. That case has been around for a long time but things have changed in the sense that almost every time some valuable employee leaves a company and goes to a competitor, there is the potential for a lawsuit even if they do not have a non-compete. Almost all the time, they do have a non-compete. It has become almost routine even for lower-level salespeople. Even if they do not have a non-compete, you can always make the trade secrets argument.

You can always say, “He has our customer list. He knows our prices, and those are trade secrets. This salesperson is going to a competitor and we have to stop that.” I do get the sense that there is more of that. It was funny because I was talking to another lawyer about what I do. He was surprised that there was enough of that, that I could do that. I was like, “If I got 1% of that, I would be set.” There are so many of those lawsuits.

How did you gravitate to that work? It is certainly an interesting area. We have some appellate overlay topics to talk about concerning that. You take the broader area, say commercial litigation, and you started winnowing down. How do you know what to specialize in? How did you pick trade secrets and non-competes specifically?

It reminds me of a guest blog post that a lawyer named Maria Granovsky did for me. She came up with this great phrase, “Are you tripping over gold bars while looking for copper deposits?” What she meant by that was, “Are you looking for specific legal work and ignoring the legal work that is right there at your feet that you already have?” That applied to what I did. The reason I chose to start writing about non-compete law was that it’s the work I was getting. My first big litigation matter when I first went solo was a non-compete and trade secret lawsuit. That is what I was working on, so I thought, “Why not write about that and try to get more of that work?”

It was not one day, I looked around at all the practice areas and said, “This one looks like the best.” It’s what I had. You can apply that to any practice area. For example, if you are an appellate lawyer, let’s say you are getting a bunch of appeals maybe regarding a statute called the TCPA. Maybe that becomes your specialty that you do TCPA appeals. It’s not as fun as it used to be but for a while, it was hot. That is one example. Think about what work are you likely to get in the situation you are in? I do not want to say it’s one size fits all, that it’s what everybody has to do.

If you have a certain practice area in mind and you do not have any of that work and you know that is what you want to do, that is okay. You can try that. For most people, the better approach is to think about, “What work am I already exposed to?” It’s a natural fit. You do not have to reinvent the wheel. People ask me, “How do you have the time to do all these blog posts?”

One, it does take time. I usually write them on the weekend but I’m getting my material out of my practice most of the time. I’m not finding some new topic from scratch. Occasionally, there might be something in the news and I think, “I’m going to go check that and find out about that.” Most of the time, it’s coming out of work I have already done for clients.

I would think of your practice, particularly the non-compete trade secret stuff, as one of the ones where you probably spend a lot more time in court than your average civil lawyer because there is so much TRO injunction practice, hot and heavy at the very beginning.

Yes. If you want to be in the courtroom, it’s good and bad news. My cases hardly ever go to trial. That is probably true of business litigation generally but especially for my practice area. I had a jury trial in a non-compete case a few years ago but they very rarely get to a jury trial. That is mainly because usually, the injunction hearing is the key event, in a sense, that becomes the trial.

The good news in my practice area is that you do get a lot of opportunities to be in the courtroom, whether it’s on a TRO, temporary or preliminary injunction hearing. The TROs are always fun because there are no rules. Injunction hearings are more like a trial. Although even there, the judge has a lot of discretion in terms of how to conduct that.

man adjusting his tie

Law Practice: Think about bringing in an appellate lawyer at the jury charge stage. That’s probably one stage where they can provide a lot of value, maybe even at summary judgment too.

I had one where I ended up going down there three times. We had one day where we ran out of time, so the judge reset it to continue a week later. You typically don’t have that most of the time in a jury trial. With the temporary injunctions, there is still a lot of variety. If you want to get in the courtroom, that is usually your chance to do it.

I’m a little surprised to hear you say you do not have a lot of appeal stuff going on because we, appellate lawyers, foam at the mouth because temporary injunctions are one of the better-known interlocutory appeals that are available by statute. As many TI hearings as you handle, given the outcome of that, one answer to that question though could be that the cases get resolved at the TI stage rather than appeal.

I do get some appeals. I have got two appeals on temporary injunctions. I’ve got one where I was on the defense side, we were successful and the injunction was denied. The plaintiff has appealed. I’ve got another one where I was defending and the injunction was granted. I’m appealing. Those are both interlocutory appeals. We do get those but you put your finger on it. Most of the cases get resolved even before that point.

The more experience I have gained in this practice area, in a sense, the more likely it is I’m going to resolve something by agreement. On a temporary injunction, a lot of times I can say, “My client will agree to return these documents, not use this information or not do business with this list of customers.” Even before the injunction hearing, a lot of times, these cases can get resolved.

You are working on both sides of it, which I find interesting, the employer and the employee side. I have seen some folks who focus on one or the other. Largely, on the employer side. You have cases from the employees though. As lawyers, we all like to get paid. I’m wondering, are you most often retained by the employee or does the employer sometimes come in and help foot the bill?

It’s both. The thing to keep in mind for this work is that usually there are two employers. You might get hired by the employer who is suing to stop the former employee or you might get hired by the second company that hired the employee. I do both of those things. In terms of how much of my practice, I do get contacted by a lot of individual employees and that can be anybody from a salesperson up to a high-level executive and everything in between. A lot of times, those people will find me directly whether they saw my YouTube video or blog post or were referred to me by a lawyer who knows that is what I do.

I also get hired by companies, typically the companies that hire me as a solo are companies where the owner is making the decision and the owner or owners of the company are contacting me. I do not do a lot where I’m representing a big company with an in-house legal department. Typically, those companies are not hiring a whole lot of solos. Usually, they are going to have relationships with bigger firms already. I do not get much of that but that is okay. There is plenty of work from small to midsize companies.

Do you do much in the way of the transactional side of things, consulting business owners or employees when they are negotiating how to draft their non-competes or trade secret policies, that type of stuff?

I do a lot of that. It could be drafting a non-compete agreement for an employer client or reviewing one for an employee client. I do it on the front end when employees are starting. I also do a lot with severance situations where somebody is leaving. The smart employees will call me up to consult with me before they make a decision and do anything to get some advice, “How enforceable is my agreement? What can I do? What should I not do?” That is always great when people do that. That is the smart thing. On the other hand, I come into situations where everything has gone wrong and I’m trying to clean up the mess.

That is how we talk on this show about appellate lawyers at trial. If you can bring us in before the trial starts, it’s always better than when we show up after the verdict and have to do what we can do.

Jody first introduced me to the colorful label of an appellate prevention practice. It seems like what you are talking about, Zach, can be largely that lawsuit prevention or litigation prevention by counseling people on the front end, which is a very wise use of money and resources for the people who have the foresight to utilize that.

If you have a small practice like mine with clients who have limited budgets, sometimes the idea of hiring an appellate lawyer seems daunting but I would recommend people to maybe at least think about bringing in an appellate lawyer at the jury charge stage. That is probably one stage where they can provide a lot of value. Maybe even at summary judgment too, that is probably a good place to have an appellate lawyer look at either your motion or response. You do not necessarily need the appellate lawyer looking at everything you do but those two stages are the places where appellate lawyers can add a lot of value.

This is a good segue. There are several issues where your practice and ours intersect. You mentioned jury charges specifically. We have a relatively new trade secret statute in our state that has gone through some development. The Pattern Jury charges themselves have gone through some development of proposed questions, definitions and instructions. That seems to be the natural intersection between your practice and ours.

In addition to the temporary injunction issue and final judgments, it’s super important to charge the jury correctly. You have got some opinions on the PJCs and I want to explore those. What was it like before you had the benefit of the PJCs to try to come up with a jury charge on a trade secrets case or a covenant not to compete case?

It was fun. We did have this issue. We had a charge conference. We had a trade secrets question. I was proposing a charge that was tailored to the facts of the case. The other lawyer was proposing one that was more generic. I was successful in getting mine submitted. Maybe the biggest overall lesson for appellate lawyers and trial lawyers when you are talking about the jury charge and trade secrets case is you can use the Pattern Jury charge and that is probably a good starting point but think about what is the plaintiff’s theory of the case in your case? If there are parts of that pattern charge that do not apply to that, you do not need all that in the charge.

In that case, I accomplished something rare. I got the plaintiff to identify what the trade secrets were. They pretty much identified a stack of paper that my clients had taken. They said, “Those are the trade secrets.” I had the jury charge say, “Did defendants use X to compete with the plaintiff?” That is what their theory was. That is not the only misappropriation of trade secrets. You could have other theories or ways that they violated the trade secrets statute. If that is their theory, that is what ought to go to the jury and it makes it a lot more understandable for the jury when you do it like that.

I’ll throw in one other tip that is especially hopefully helpful for appellate lawyers. You see appellate opinions that cite common law cases on trade secrets in Texas, even though we have the statute. That is a mistake. Maybe it’s not a huge mistake because it’s not like the common law standard is in opposition to the statute. They are pretty similar. You shouldn’t be citing to old cases saying this is what a trade secret is. The statute has a definition of what a trade secret is. I won’t name any names. I have seen the Fifth Circuit do this. It’s not that big a deal but for appellate lawyers who like to be very precise, that is an important issue to watch out for.

Is the trade secret statute a uniform statute or is it Texas-specific? I can’t remember.

It is a uniform statute. 47 or 48 states have it. The Texas version has some minor variations but for the most part, it’s uniform. It’s also, for the most part, the same as the Federal trade secret statute that is also fairly new. There are some differences in language but overall, very similar.

Good advice generally when approaching a charge is if you have got a statute on point, start with that. We have talked about the PJCs on the show and they can be a very useful tool as a starting point for your research and outlining of the case. The nice thing about it is as long as you are referring to the most recent version of them, if there is a statute out there on point, it’s going to incorporate this statute and the statutory elements but that does seem like a pretty big oversight for a court or a practitioner to rely on the common law or at least cases predating the statute. Common law definition does not seem to be all that relevant if there is a statutory definition out there that you’ve got to be working from.

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Law Practice: The issue where trial lawyers often go wrong and set themselves up for an appeal is irreparable injury.

The new Texas PJC trade secrets questions do track the statute very closely, which is good, they should. They may not always be appropriate for your situation. I’ll give you another example for appellate lawyers that applies to my case and that is a breach of fiduciary duty. Watch out for that because the Pattern Jury charge question and instruction on breach of fiduciary duty is one of the most plaintiff-friendly definitions you are ever going to find. Once you establish somebody was a fiduciary, then they must put the other person’s interests first, full disclosure. It’s a great instruction for the plaintiff. In an employer-employee dispute, it does not apply.

It’s a different fiduciary duty that an employee has. Nobody thinks that an employee has the fiduciary duty that a lawyer has to a client or that a trustee has. It’s narrower. That is maybe a poor choice of words, but they call it that. That is not what it is. The plaintiff is going to say, “Here are the instructions straight out of the PJC.” It’s a fiduciary duty, they are going to want that instruction. If you are on the defense side, watch out and say, “We have to make this narrower because this is an employee, not a traditional fiduciary.”

The same is true in partnership cases. Those duties are not fully parallel to the ones that are charged in the PJC. That is a great tip across the board. In fiduciary duty cases, check the duties and make sure they line up because they may not be appropriate.

I have not thought about that but you are right. In a partnership case, it may be a more limited scope of duty and by the partnership agreement. That is something to watch out for in the charge. I’ll mention one other big charge issue and that is the reasonableness of a non-compete. This is the advanced portion of the talk. This is something that a lot of lawyers do not think about.

A little background, you can find dozens of Texas cases that say the enforceability of a non-compete is a question of law but you have to take that with a big grain of salt because if there is a dispute over the reasonableness of the scope of the non-compete, which there usually is, usually there are going to be fact issues on that.

Let’s say there is a dispute about what a salesperson’s territory is. That would go to the reasonableness of the scope of the geographic restriction. You cannot answer that without resolving that fact issue. That is an issue that, in my view, needs to go to the jury but you very rarely see the enforceability of a non-compete being submitted to the jury. Part of that is probably judges are like, “That is for me to decide. That does not go to the jury.” In many situations, if there is a factual dispute that goes to the reasonableness, that does need to go to the jury.

There is no PJC question for that. You are going to have to come up with your own but there are tons of Texas case laws on that. You should be able to find some language from the case law to instruct the jury. For example, what is a reasonable geographic area? Take some language straight out of case law, put it in instruction and that would work.

All this discussion of jury charge issues brings me back to your point about specialization and why sometimes that is so important because your average lawyer off the street who maybe has never done a non-compete or trade secret case may go back to the common law in some of this stuff. That is how it ends up in the appellate opinions. When you have someone more of a subject matter expert, number one, you are saving a lot of efficiency and time on some of this stuff. Number two, you may end up with a better-presented case to make your record on if you have to go up on appeal.

My practice area is not that hard. Any good business litigator can figure out my practice area. It’s not that difficult but to your point, there are some nuances and knowing those nuances, having gone through it a dozen times before, there is some value in that. One other place where maybe appellate lawyers can be helpful in the type of lawsuit I typically handle and you have already touched on it, is the temporary injunction stage. The issue there where trial lawyers often go wrong and maybe set themselves up for an appeal is irreparable injury. It’s easy to either forget or not put enough emphasis on the irreparable injury element for getting an injunction.

If you do not have some evidence to establish irreparable injury and you are the plaintiff, you may get that injunction, but you may be setting yourself up for an appeal where the court of appeals is like, “Where is the evidence of irreparable injury?” Not only the evidence but it also needs to be stated in the injunction specifically. Under the Texas rule, it needs to ask why there would be irreparable injury and not just in a conclusory way. I saw a case where an injunction got reversed because it had a recital that there was a reparable injury but it did not say why or it said that is not going to cut it.

If you are an appellate lawyer involved at the injunction stage, that is the issue where you could maybe be helpful. Trial lawyers are usually all focused on, “Let’s show this scheme, how sneaky these guys were and all these terrible things they did. Let’s get the judge mad.” That is how trial lawyers think, not always thinking about what is the evidence you got to have to support the elements of this injunction? Appellate lawyers can point that out. The big value in that is then that tells a trial lawyer what evidence they need to make sure they get to cover that.

The conversation goes like this, “I got the TI. Mr. appellate lawyer, it’s your job to hold onto it.” That is completely tongue-in-cheek. If I remember right too, there were some specific rules about irreparable injury concerning things like real estate that are even a little different. Some of it’s statutory. There are a few landmines there to watch out for if you are not familiar with trying to go and get that relief.

It reminds me of that phrase I heard somebody say, “Trial lawyers drive for show, appellate lawyers putt for dough.” It’s holding on. It’s one thing to make a big show and get a big verdict but holding onto it is sometimes the hard part. I’m curious. Let me ask you. We have been talking injunctions. From your perspective, what do you see, either maybe people not doing right or not paying enough attention to anything that trial lawyers need to be thinking about?

To me, one of the things that I have seen the most over the years is the wording of the actual injunction order. It’s easy to gloss over and say, “There is an irreparable injury. There is harm.” Get the rule out, read the rule when you are drafting it, and follow every step because it is easy for someone to get an injunction voided simply because you missed a step there. Something as simple as truly forgetting to set it for trial. That is an easy thing to overlook because it’s not in the back of your mind. You are thinking, “What have I proven?” You forget to set it for trial.

It’s too bad. That means the appellate court is going to kick it out. It’s a little thing that can be done. The big one that I have seen is to make sure that you follow the rules to a T because, in an appellate court, all you need is for a staff attorney to go through their checklist and go, “They did not do that. This is an easy case.” You have spent all that time and effort only to have it go away for that reason.

If you are appealing an injunction, you are more likely to win on that issue than some issue about, “The evidence was not strong enough with the abuse of discretion standard.” Usually, you are not going to win on those factual arguments but if you’ve got something technical like that, where they messed up, you are going to have something there.

Once you are into competing proof in that situation, it’s so much harder to get past it because the trial judge does have a tremendous amount of discretion to figure out the credibility of the witnesses and look at the proof. They do not want to wade into that unless it’s something that is glaringly obvious or some omission of proof. You did not prove irreparable injury or that they took anything.

Speaking of glaringly obvious, I’m getting some free advice here. Let’s say, hypothetically, I got an executive from the plaintiff company to admit there was no imminent threat of any of the customers leaving, yet my client was enjoined from contacting those customers. I would think, I’m an unsophisticated trial lawyer, but that would be pretty good ground for appeal.

two people shaking hands

Law Practice: Be nice to the clerks. This is good advice all the time, and it’s advice you’d think wouldn’t be necessary, but it is.

It would depend on how the evidence came in. I take your point. If you have one side conceding that this does not exist and it does not harm, that seems like a pretty powerful weapon to take up on appeal.

It does seem like an omission, something lacking in the need for the injunction.

In my hypothetical, let’s assume that was not the only evidence.

Coming back to your question about what do we see? I agree with Jody. Get out Rule 683 and make sure that you follow it to a T. Some things that people do not necessarily think about is what happens after the TI. You got to have usually a bond and an arrangement set to get your bond in place. I have litigated cases where the amount of the bond was significant. People need to keep in mind what happens to that bond if the TI is overturned. If you’ve got a case like I had one where the bond was $1 million, you are talking about a significant amount of money depending on the outcome of the injunction. It could wind up being lost.

Getting the bond in place is one thing. The other is the service of the injunction. People tend to overlook. This is not like serving a Notice of Deposition. It’s got to be served a different way. There are due process issues that underlie TIs. That is another big concern that folks do not always think about. They are more concerned with, “We got the injunction. What is next?” You got to think about these other things too.

Bond and service are big things to make sure you think about. On the bond, I have learned to warn the client about that ahead of time. It’s one of those things we assume there is going to be a bond but a client does not necessarily know that is coming. You might get the injunction granted and then you are like, “You got to write a check.” The clients are like, “What?” I have started trying to let people know ahead of time what is going to happen.

Make friends with the clerks because, depending on what county you are in, sometimes maybe they have not done a $1 million TI bond, and you have to help them through the process as much as they help you. Make friends with them, discuss how it needs to be done, and check all those boxes because that can expedite all that stuff so much. That is not necessarily unique to non-competes but in general, that stuff does make a difference. The little nuts and bolts are things that you forget about.

Being nice to the clerks is good advice all the time. It’s advice you would think maybe would not be necessary.

We have covered a lot of ground in your practice area. There is another area of interest to you that I’m interested in too, which is the Texas Disciplinary Rules. We had Seana Willing on to talk about disciplinary assistance. This segues into that. We have had some key changes that you have written some blog posts, maybe even spoken about a little, and some of these are relevant to you specifically because having left your former firm and gone into solo practice, you are thinking about things like, “What am I going to name my law firm? How am I going to advertise?” Tell us about how you developed an interest in that particular subject matter.

It started under the previous version of the Texas Advertising Rules. I have always been interested in doing CLE speaking and I started doing a lot of that. People are always looking for ethics credit, so I thought it would be good to have something in the ethics arena where I could develop some expertise. I did that with the advertising rules. I have spoken and written about them.

In the course of that, the rules got updated, which was a good thing because part of what I used to speak about was how the old rules were poorly written and hard to apply. The committee that rewrote the advertising rules did a good job. They are much improved. They are less burdensome and also clearer. The committee was very gracious.

I submitted a memo as part of the public comment process. They took my memo into account and made some further changes. The overall news is good. These new advertising rules are an improvement. If you are into this topic and you are an ethics nerd, I have got a blog post called the Top 15 Changes to Advertising Rules. You can go check that out.

I have a handful that I thought I would hit that are probably of interest to appellate lawyers. Todd mentioned the name of your firm and that gets to the change that has probably got the most attention, at least in the press and that is allowing trade names. If you want to call your firm Austin Appellate Lawyers, in theory, you could do that as a trade name. Austin Appellate Lawyers, PLLC or whatever it is. Previously, you could not do that.

I do not think it’s that big of a change because you could always use some name like that as a trademark. You could not have your firm be called that. That is the main difference. I do not know if the trade name thing is that big of a deal for appellate lawyers because it’s not the practice area where you are going to see Texas Sledgehammer Appellate Lawyers on the billboard. I expect appellate lawyers are probably going to continue with the more traditional names of the partners. In theory, if you wanted to have an appellate boutique and have something about appeals in the actual name of your firm, you could do that. That was a big change.

Another change that is important for all Texas lawyers, including appellate lawyers, to know about is there is a specific definition of advertising in the rules. Why does that matter? The main reason it matters is that the rules have a filing requirement for advertising. When you put out advertising in the public media, you are supposed to file that with the State Bar Advertising Review Committee. That can be an onerous requirement. That becomes especially relevant when we talk about social media because you do not want to have to file something every time you post on LinkedIn, Facebook, Twitter or Instagram.

Here is what you need to keep in mind. The key part of the definition of advertising is that it’s an advertisement if it offers or promotes legal services. That is the key. You need to think about, “Am I explicitly offering or promoting legal services?” In marketing circles, they usually call this the call to action. If at the end of the show, the two of you say, “If you have an appeal and you need help with it, call Todd Smith or Jody Sanders,” that would be the call to action and advertising.

To be clear, we are not doing that, state bar.

That would be advertising and then you would have to file that. That is the main point to keep in mind, especially when you are putting stuff on social media. Do not say, “Call me if you need help with a similar case.” Let’s say you are posting something about a court decision. Just put the information about the court decision. People will know that they can contact you about that case. That is implied, so you do not need to say that. The other thing that changed in the advertising rules is an exemption for information that is primarily educational or informational. I’m not going to say that I was responsible for getting this exemption in the rules but I’m not not saying that either.

This one is near and dear to my heart. Previously, there was an informal interpretive comment from the state bar that essentially said the same thing but the exemption is right there in the rules. That is helpful because that is what covers most of the stuff that we do. That is what this show is. This show is primarily educational or informational. That is why this show is not advertising because we are here sharing information and educating people who are reading. That is the key exemption.

When you are on social media, whether an appellate lawyer or another lawyer, that is the key thing to keep in mind, the full definition here is it says, “Primarily informational, educational, political or artistic or made for entertainment purposes.” If you fall into one of those things and you are not explicitly offering or promoting legal services, then you are probably not advertising and you are okay.

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Law Practice: When people in your network think appellate lawyer, you want to be number one or number two of the people who pop into their head.

There is a lot of buildup in history to this change. The one thing that people need to keep in mind is that these rules are difficult to change. There is a big process and we have had rules initiatives in the past that have not gone through. The committee that put together these changes was a very long process. It required a lot of public comment.

Zach, you were a part of that. Think about how much our communications have evolved over the last few years. Nobody knew what Twitter was a few years ago. Lawyers started using it with no guidelines other than the rules that were written that did not even capture email communications until 2005 or 2006, which is nutty if you think about it.

This was a welcome change because lawyers can look at these rules and have specific guidance on what to do and what not to do. The Advertising Review Committee was good about working with lawyers about specific communications. Gene Major, who heads up that part of the state bar agency, was great about going out and giving CLE talks about what was okay and what was not. We have a lot of clarity and certainty in what we can and cannot do. That is certainly a big benefit.

I’ll mention one more change that is a positive one and probably impacts a lot of appellate lawyers and that is the change about calling yourself a specialist or saying that you specialize. Under the previous rules, if you were not board certified, you could not say that you specialize or call yourself a specialist, in general. You could get around that by using a different word like, “I focus my practice on appeals.” That was okay.

That has been changed and you can say you specialize. You do not necessarily have to be board certified in appellate law to do that. It cannot be false or misleading. You cannot say you specialize in a practice area and it turns out, you do not have much experience at all, so don’t say that. For most lawyers who practice in the appellate arena, if you are experienced with appeals, it’s fair game to say that you specialize.

We would refer lawyers to the rules themselves to make their interpretations about what they can and cannot say.

Even on the one I mentioned, it’s not quite as explicit as what I said, so there is still room for interpretation. Overall, you are going to be okay as long as the key is you do not be false or misleading. I thought of one more change that I have to mention because it’s such a fun one. You cannot tell clients that you can use threats of violence to accomplish their objectives. I do not know where that came from or what case prompted that but it seemed that was such a Texas thing to have in the rules.

If anyone is reading and knows the story, send it to us privately because I’m curious too.

There was one other thing that I noticed in the rules, Zach, that I thought was a significant change. It had more to do with solicitation than advertising. We can solicit someone with a specific legal problem. If the person is someone who is known by the lawyer to be an experienced user of the type of legal services involved for business matters, which segues into your practice area too, that is quite a change. We, as lawyers, if we know that there is a specific legal issue that a company is facing, it’s fair game to send them solicitation notices without necessarily getting pre-approval from the state bar.

There is a whole list of exemptions from the restriction on person-to-person solicitation. Those are worth looking at. In the past, you could do written solicitations but you had to jump through a lot of hoops to do that. It may be simpler and easier to do that. That could certainly be relevant in appellate practice where you see a big verdict against a big company. You might want to call them up and say, “I’m curious about this. I do appeals of this case all the time.” Something like that might be fair game. Take a closer look at the rule to make sure that you fall under whatever exemption you are going to rely on.

That is very informational and informative because we all need to be concerned about these kinds of issues. What I’m curious about, and maybe you have already explained, is you started your firm after these changes were made. Why not the Trade Secret Law Firm or the Covenant Not to Compete Law Firm? You went with the classic Zach Wolfe Law Firm.

I encountered this issue, so I’m working on a new logo for the firm. One of my lawyer friends did not like my perspective logos because they did not indicate anything about my practice area. I see the point and I can see how for some firms, you might want your firm name, trademark or logo to communicate to your practice area. I do not feel like that.

Number one, my practice area could change. I want to develop recognition and goodwill for my name apart from any particular practice area. I’ll use other means to let people know what my practice area is. My thinking is that I want the name to be the thing that gets the attention. I have a lot of other ways like the blog, YouTube channel and Twitter to let people know about what work I do.

To be clear for people reading, Zach does not do the Law of Wolves. It’s just Zach Wolfe Law. It’s not a trade name.

It’s not an area of law confined to Zach Wolfe. That would be interesting but no.

This is all great information. Thank you for taking the time. As we reach the end of our time, we always like to ask our guests for a tip or war story. You have given plenty of tips but if you have another one or a war story you would like to tell, we would love to hear it.

We have appellate law readers, so I would go back to what I said about having a successful solo practice and specialization. The specialization is the thing that has made my solo practice more successful the second time. If you are an appellate lawyer trying to build your book of business, think about whether there are some specialties within appellate that could work for you. Appellate is a lot narrower than litigation but still, there are a lot of appellate lawyers. What your goal ought to be is you want people in your network. When they think appellate lawyer, you want to be number 1 or 2 of the people who pop into their head.

If you are just appellate, your chances of being 1 or 2 are lower than mandamus appeals of discovery rulings. That might be a niche that you could establish when somebody thinks about, “Appeals on discovery rulings, I know who does that.” That is one example. There are a lot of things like that. That is what I would urge people to do. If you are like Todd Smith or Jody Sanders and you are already at the top of the profession, maybe you do not need that but if you are starting out and building your name for yourself, think about how you can specialize and that will help you do that.

Zach, thanks. This has been great. We have enjoyed hearing from you and we look forward to staying in touch.

Thank you. I enjoyed it.

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About Zach Wolfe

Zach Wolfe has over 24 years of experience as a Texas trial lawyer. He has handled dozens of departing employee lawsuits in the past seven years alone. He has tried non-compete and trade secret cases to juries. In one case the jury went his way on every issue and awarded his client more attorney’s fees than he asked for. But that probably won’t happen again.

Zach has handled numerous hearings on temporary restraining orders (TROs) and temporary injunctions in departing employee cases. He has also advised clients in dozens of “pre-litigation” matters involving non-compete and trade secret issues.

Thomson Reuters named Zach a Texas Super Lawyer for Business Litigation in 2020 and 2021, an honor reserved for fewer than 5% of Texas lawyers. He is rated AV (Preeminent) by Martindale-Hubbell. Zach has experience representing all three sides in departing employee disputes: the first employer, the employee, and the second employer. He has handled departing employee lawsuits in both state and federal courts, in Houston, Dallas, Fort Worth, Austin, and other venues throughout the great State of Texas.

Zach has published dozens of articles on departing employee litigation at his award-winning blog, Five Minute Law. He has taught numerous continuing legal education courses to other Texas lawyers on non-compete and trade secret issues. In 2020 the State Bar of Texas gave him a “Standing Ovation” award for this. He has the most popular YouTube channel on non-compete law, That Non-Compete Lawyer, which includes a 30-minute course on the basics of Texas non-compete litigation.

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Photo of D. Todd Smith D. Todd Smith

D. Todd Smith practices in the Appellate and Written Advocacy Group at Butler Snow LLP, where he represents clients in all phases of civil appeals and original proceedings and works with trial teams from the earliest stages of litigation. In trial courts, Todd…

D. Todd Smith practices in the Appellate and Written Advocacy Group at Butler Snow LLP, where he represents clients in all phases of civil appeals and original proceedings and works with trial teams from the earliest stages of litigation. In trial courts, Todd takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

Todd earned degrees from Texas Christian University (B.S. 1989), Texas Tech University (M.P.A. 1992), and St. Mary’s University School of Law (J.D. 1995). While in law school, he was editor in chief of the St. Mary’s Law Journal and interned with Fifth Circuit Judge Emilio M. Garza (ret.).

Before joining Butler Snow, Todd served as a briefing attorney to Texas Supreme Court Justice Raul A. Gonzalez (ret.) (1995-1997), practiced with Fulbright & Jaworski L.L.P. (now Norton Rose Fulbright US LLP) (1997-2006), and ran his own civil appellate boutique (2006-2021). He is certified as a specialist in Civil Appellate Law by the Texas Board of Legal Specialization and regularly appears on Thomson Reuters’ Texas Super Lawyers list.

Todd frequently writes and speaks on appellate-related topics. In addition to publishing Texas Appellate Strategy, he is the creator, producer, and co-host of the Texas Appellate Law Podcast, a weekly show that demystifies appellate law and pulls back the curtain on the appellate system through conversations with judges, court staff, and practitioners.

Todd sits on the State Bar Board of Directors, is immediate past chair of the Austin Bar Foundation, and is a past-president of the Austin Bar Association. As Austin Bar president (2019-2020), Todd spearheaded creation of the Lawyer Well-Being Committee, which aims to educate, support and connect the Austin legal community to achieve more balanced, mindful, and joyful lives and practices. He also serves on the Judicial Committee on Information Technology, is a trustee of the Texas Supreme Court Historical Society, and is a member of the Robert W. Calvert American Inn of Court.