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Ken McKay


Ken McKay concentrates his practice in commercial, energy, and real estate litigation, with a particular focus on eminent domain and land use matters throughout the U.S.

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In-House Counsel: Is It Privileged Communication? September 30, 2020

Professional Biography


Ken has experience in a wide range of litigation areas. He concentrates on commercial, energy and real estate litigation, with a particular focus on eminent domain, land use and construction matters throughout the United States. Ken has extensive trial experience having first-chaired numerous jury trial victories in addition to successful arbitration proceedings and class actions in multiple states and is considered a skilled, versatile trial lawyer.

His eminent domain practice encompasses all aspects of condemnation law and right-of-way matters, including regulatory takings and inverse condemnation claims. Ken regularly represents pipeline owners and operators, telecommunications providers, utilities and other common carriers, as well as select commercial and residential developers and landowners in condemnation cases, pre-condemnation counseling and infrastructure permitting.

His experience also includes defense of clients in high-profile lender liability and products liability trials, as well as in multi-district litigation, in addition to commercial and industrial disputes of all types.

Representative Matters
  • Secured a favorable opinion on behalf of an energy infrastructure company from the Fourteenth Circuit Court of Appeals validating the procedural maneuver in a condemnation case of preventing a landowner from presenting evidence unless he first established that he had a vested interest in the real property.
Professional Honors & Activities
  • Fellow – Texas Bar Foundation
  • Listed in The Best Lawyers in America® in Commercial Litigation (2021)
  • Named a Houston Top Lawyer by H Texas Magazine in Business Litigation, Civil Litigation, Commercial Litigation, Oil and Gas (2016, 2017)
  • Member – Rocky Mountain Mineral Law Institute
  • Approved Instructor – Texas Real Estate Commission MCE Courses
  • Member – International Right of Way Association
  • Member – Houston Bar Association
    • Speakers Bureau (HBA-CLE Distinguished Faculty)
    • Continuing Legal Education Committee
    • Litigation Section
  • Member – State Bar of Texas
  • Member – American Bar Association
    • Construction Litigation Committee
    • Section of Litigation  
  • Member – DRI
  • Member – Texas Association of Defense Counsel
  • "Sabine Ruling: What Pipeline Companies Can Do To Protect Their Contracts," Pipeline & Gas Journal, Vol. 243, No. 11 (November 2016)
  • "Recent Developments in Texas Eminent Domain Law Pertinent to Oil & Gas Entities," Oil, Gas & Energy Resources Law Section of the State Bar of Texas, Section Report (Winter 2015)
  • "Recent Developments and Common Applications," In-House Counsel and Attorney-Client Privilege, Strafford (December 2014)
  • "Eminent Domain Law Pertinent to Oil & Gas Entities," Advanced Oil, Gas & Energy Resources Law Course (October 2014)
  • "Recent Developments and Common Applications," In-House Counsel and Attorney-Client Privilege, Strafford (June 2013)
  • "Calculating Damages and Just Compensation," Eminent Domain From Start to Finish, National Business Institute (May 2013)
  • Co-author – "Meeting 2012 Year-End Deadline to Preserve Power of Eminent Domain in Texas," Lexology, Law360 (October 2012)
  • "The Denbury Decision: What it Says, What it Doesn't Say & What People Say it Says," University of Texas Gas and Power Institute , cited in LSU Journal of Energy Law and Resources, Vol. 2, Issue 2, p. 332 (Spring 2014) and in Texas Journal of Oil, Gas, and Energy Law, Vol. 8, No. 1, pp. 190-92 (September 2012) (August 2012)
  • "Recent Developments and Common Applications," In-House Counsel and Attorney-Client Privilege, Strafford (July 2012)
  • "Calculating Damages and Just Compensation: Legal Insights," Eminent Domain From Start to Finish, National Business Institute (May 2015)
  • "Recent Developments and Common Applications in the Business Advice vs. Legal Advice Dichotomy," In-House Counsel and Attorney-Client Privilege, Strafford (August 2011)
Speaking Engagements
  • "Privilege at Risk in Investigations and Audits," Strafford webinar (March 2020)
  • "Hospital Payments for Motor Vehicle Injury Cases," Health Law Section, Houston Bar Association (March 2020)
  • "Audit Response Letters and Disclosures: In-House Counsel's Role in Balancing Auditor Demands and Company Privileges," Strafford webinar (April 2019)
  • "In-House Counsel and Protecting Attorney-Client Privilege in Investigations and Litigation," Strafford webinar (January 2019)
  • "Baker Donelson Compliance Symposium" (November 2017)
  • "Roundtable: The Contract Conundrum," MIDSTREAM Texas conference (September 2016)


  • Vanderbilt University School of Law, J.D., 1988
    • Vanderbilt Law Review, Assistant Editor
  • University of Mississippi, B.Accy. in Accounting, 1985


  • Texas, 1988
  • U.S. District Courts for the Southern, Northern and Eastern Districts of Texas

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