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THE ARKANSAS APRIL

1985

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GUEST ARTICLES BY DR. ROBERT A. LEFLAR BILL W. BRISTOW VINCENT W. FOSTER, JR. ROBERT D. CABE G. ROSS SMITH PHILLIP CARROLL PROFESSOR ALBERT M. WITTE ROBERT M. CEARLEY, JR. J. W. DICKEY, JR. CELEBRATING LAW DAY - MAY 1ST

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April 1985 Vol. 19. No. 2

THE PUBLlCATtON OF THE ARKANSAS BAR ASSOCIATtON

SPECIAL FEATURES

OFFICERS

REGULAR FEATURES

William R. Wilson. Jr.. President Don M, Schnipper, President-Elect Annabelle D. Clinton. Sec-Treasurer David M. "Mac" Glover. Council Chair

55 57

The President's Report Law. Literature & Laughter

Coming of Age: Women

Wm. A. Martin. Executive Director Judith Gray, Assistant Executive Director

Lawyers in Arkansas

1960-1984, by Annabelle Davis Cli~ton

EXECUTIVE COUNCIL Jack A. McNulty W. Kelvin Wyrick Gary Nutter William Russ Meeks III Kaye S. Oberlag Tom Overbey Robert S. Hargraves Robert Hornberger Joe Reed David Solomon Stephen M. Reasoner James A. Mclarty

58 64 66

Historic Surroundings: An Infinite Variety 01 Law Ollices' Styles and Qualities by Jacalyn Carfagno Some Arkansas Cases. by Frances Mitchell Ross Toward the Bicentennial, Part I by Dr. Robert A. Leflar, Bill W. Bristow and Vincent W. Foster. Ir. The Tax Relorm Act of 1984: Real Estate Transactions. by Michael O. Parker

EX-OFFICIO William R. Wilson, Jr. Don M. Schnipper Dennis L. Shackleford Annabelle D. Clinton Martha M. Miller David M. "Mac" Glover EDITOR Ruth M. Williams

In Memoriam Generations in the Law: William Starr Mitchell and John Thorpe Williams, by Robert L. Brown

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78 89 96 98 99 100 101

Bulletin Executive Director's Report Young Lawyers' Update

Arkansas Bar Foundation

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The Arkansas Lawyerby (USPS is lI published quarterly the 546-040) Arkansas Bar Association, 400 West Markham, Little Rock, Arkansas 72201. Second class postage poid at Little Rock, Arkansas. Subscription price to nonmembers of the Arkansas Bar Association S15.00 per year and to members $10.00 per year included in annual

dues. Any opinion expressed herein is that of the author. and not necessarily that of the Arkansas Bar Association. or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent in two copies to the Arkansas Bar Center, 400 West Markham, Little Rock, Arkansas 72201.

La\iJYer ~ TOWARD THE

BICENTENNIAL

• CONSTITUTION GUEST ART1Cl..ES BY DR. ROBERT A. u:rt.AR ..

All inquiries regarding advertising should be sent to The Arkansas Lawyer at the above address.

BIll. W BRlSIOW .. VINCDIT W fOS'lm. JR. .. ROBER\' D. CAN: .. G ROSS SMITH .. PHlllJP

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In-House News

ON THE COVER:

The bicentennial observance in 1987 of the United Slates Constitution is being launched in The Arkansas Lawyer with "Toward the Bicentennial of the Constitution" - a series of articles on First Amend-

ment issues pertaining to newspapers, educational materials and cable television programming, Dr. Robert A. Leflar,

in an introduction to the series. reviews the 250th anniversary ofthe John Peter Zenger trial. called the "momingstar of the liberty which revolutionized America." The first articles in the four-part series, by Bill W. Bristow and Vincent W. Foster, Jr., will examine a newspaper's negilgence li-

ability in reporting inaccurate information. April 1985/Arkansas Lawyer/53

It's Open Season On La ers!

In fact, there's no telling when you'll be hit with a law uit by a dissatisfied client. Even the mo t competent attorney cannot always avoid a suit, and often the wealthiest attorney cannot afford one. Right or wrong. the number of claims is growing and the total dollar amount paid out in settlements is growing even faster. But we can help. CNA and the Arkansas Bar Association have worked together to come up with a comprehensive program of professional liability insurance for its members that can help protect both your financial and proessional future. First, it helps to minimize the causes of liability suits through loss prevention programs. Then, it provides financial protection to help guard you against professional and business liability with a maximum of $100,000 per claim ($300,000 annually) after a deductible. Think you need more? Higher Limits-Up to $5 million-are available for an extra measure of security against large liability lawsuits. Any case you handle could leave you wide open to a lawsuit. So, let your Arkansas Bar Association sponsored Comprehensive Lawyers Professional and Business Liability Plan help protect you from financial danger. To find out 54/Arkansas Lawye,/Ap,il 1985

all the important details, including the exclusions, any reductions or limitations and the terms under which the policy may be continued in force, send the coupon below to the administrator: Rather, Beyer & Harper. 362 Prospect Building, Little Rock, Arkansas 72207. Or call (50l) 664-8791.

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THE PRESIDENT'S REPORT

courts will correct fortunate situation.

this

un-

In fact, your President has just lost a case in the Eighth Circuit on this precise point. In the District Court I called a forensic psychologist and submitted the affidavits of several leading trial lawyers, to the effect that it is impossible to obtain a fair and impartial jury unless the lawyer for a party can participate. to a reason-

able extent in the voir dire process. A petition for a Rehearing En Blac is pending. Both Arkansas senators are cosponsors and vigorous supporters

'85 Congress of Interest By William R. Wilson, Jr.

of the lawyer voir dire legislation. By the time you read this, the federal product liability legislation will again be pending before Congress. While the Association has not taken a posi tion on this legislative proposal. I can assure you that its passage would be most

Undoubtedly the legal profession will be interested in many issues which will come before the Federal Congress in 1985. The FTC Reauthorization Legislation will undoubtedly be back again, and the organized bar will again attempt to insure that this agency is not given authority to make unwarranted intrusions into

the disci plining of lawyers - a subject that can be best handled by

unfortunate

for

in advance of the 1987 session of the General Assembly to remind all members of the Association that we have a legislative timetable which requires that proposals be submitted to the appropriate committee and House of Delegates several months in advance of a session. I do not know what the exact timetable will be in 1986, but there is no reason to believe that it will not be similar to the 1984 schedule. While it is true that we may miss some worth-

while legislation by requiring advance submissions. the House of Delegates is the policy making aIm of the Association, and it must have time to get recom-

mendations from the appropriate committee before taking a stand. f continue to be amazed that active.

knowledgeable members of the Association submit proposals in November' or December before the

future

General Assembly convenes in

victims of unsafe products. I am happy to report that both sen-

January. So, again, I urge you to file this information in the back of

ators, and most of our congressmen, are on record in opposition

your mind for future reference.

to this legislation. On the home front, Martha Miller, our lobbyist. is working at the Legislature and is doing a topflight job. As the session pro-

gram for our annual meeting in

gesses you will be receiving re-

ports from us. Let me take this opportunity far

Keep your eye open for the proJune - I promise you it will be a lalapalooza. The dates are June 58 - please mark your calendar now. And the members of the House of Delegates are reminded that it will meet Saturday morning, June 8th. 0

the various state supreme courts.

The Arkansas Bar Association is on record on this issue, and your officers will continue to maintain contact with our senators and congressmen.

An attempt will be made to enact legislation which would insure the right of a lawyer for a party to conduct reasonable voir dire examination in cases in Federal District Court. Unfortunately, too many Federal District judges categorically deny this basic due process right. And there is little possibility that the appellate

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Consider the evidence. You be the judge: What better location for an attorney in Little Rock is there? The Rogers Building stands within a block of the Pulaski County Courthouse, VALR lAw School â&#x20AC;˘ and Library, and the " Arkansas Bar Association. It offers a parking deck, private health club and skywalk access to the Excelsior Hotel and the Statehouse Convention Center Complex, And it features the office space consulting services of famed Andre Staffelbach -absolutely free. We rest our case.

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56/Arkansas Lawyer/April 1985

Law, Literature & Laughter A woman will lose her purse at

Stating rules that are helpful in dealing with life has always been popular. Addressing Old Testament legal concepts, scholars have identified two types of laws: apodictic and casuistic. The former is typified by unconditional

imperative

the most inconvenient time. and it

will always be located in a place where it had no business being in the first place.

statements

without any stipulation of consequences or sanctions. For ex-

ample, "Thou shalt not kill" (Ex. 20:13). The latter is characterized by a conditional statement and differentiation of various and subordinate circumstances and is usually based upon the decision of one in authority as to a specific factual experience. Example: "If you buy a Hebrew slave, he shall serve only six years and be freed in the seventh year, and need pay nothing to regain his freedom" (Ex. 21:2). These two categories remain with us. A quick example of a modem day apodictic law is, "The maximum lawful rate of interest on any contract ... shall not exceed five percent (5%) per annum above the Federal Reserve Discount Rate at the time of the contract" (Ark. Const. amend. 60(a)(O ). Casuistic laws are reminiscent of Socratic law school teaching in which one must ferrett out the rule of the case. Example: Certain good faith mistakes of fact resulting in minimal overcharges will exonerate a creditor in an otherwise usurious transaction. Davidson v. Commercial

Credit Corp.â&#x20AC;˘ 255 Ark. 127, 499 S. W.2d 68 (973). In the Murphy's Law genre, many have entertained others with principles of diffuse utilization. My favorite is one I heard Phil Carroll read at a Bar Iuncheon some years back: "The odds on the bread falling butterside down are directly proportionate to the cost of the carpet." Casuistic? Ask Phil. In 1978 Russell Baker listed in a column a number of apodictic "principles for the guidance of life." Among such admonitions as "Don't expect love from a cat" and "Never play poker with a man named 'Doc'," the injunction

"Avoid lawyers" appeared three times.

Inundated by letters from lawyers, who Baker said were "hurt rather than angry," he casuistically commented in a later column said he wouldn't mind his sister marrying a successful lawyer. But if she considered an unsuccessful

one, he would "urge her to consider a dentist before doing anything irreversible." The rules we learn to live by, like the laws of Moses, similarly fall into the same two groupings. Examples of modern apodictic laws of behavior: Never assume, especially when the contents of a suitcase are con-

cerned. Unplug the coffee maker if it is past 5:00 and the secretaries are gone. Think twice before saying what's on your mind to the senior partner.

If your wife wants to sleep late, let her. Corrolary: If your husband wants to sleep late, tell him to forget it. Modern day examples of casuistic behavioral precepts: As a deadline draws nigh, the odds that the one thing needed to meet the deadline will be missing incease

exponentially

toward

1.000 to I. To get a room at the Arlington in which the dumpster trucks cannot be heard collecting garbage at dawn, one must specifically request such and endure the chuckles of the desk clerk. Elevators work better and fewer people ride them when you leave early for an appointment. Corrollary: You are ten times more likely to receive simultaneous urgent calls when you're late for a meeting than at any other time.

No doubt the General Assembly had the spirit of the law of Moses in mind when it passed Act 34 of 1969, which was expressly aimed at glue-sniffing. Apparently our lawmakers deemed it wise. however, to list a number of compounds and forbid all methods of ingestion.

Read the statute and I think you will sleep better at night knowing it is unlawful to drink gasoline for the purpose of inducing intoxication without a doctor's prescription. Also, I would like to hear from anyone in a dry county who gets his prescriptions filled at a Fina station.

Legislatures tread on dangerously humorous ground when they set out to prohibit a number of things with one statute. With roots in Pope's Digest, Ark. Stat. Ann. §41-3261 prohibits the betting of money "or any valuable thing on any game of brag, bluff, poker, seven-up, three-up, twenty-one, vingtun, thirteen cards, the odd trick, forty-five, whist, or at any other game at cards, known by any name now known to the laws. or with any other or new name, or without any name ... ' While the statute is apodictic, it led to a casuistic construction.

In 1884 the conviction of a man who, with others, had "engaged in a game of freeze-out pocre," was upheld. Each player was given "a certain number of grains

of corn to be used in counting the game," and it was agreed that the first one "froze out" (losing all his corn) would treat the others to cigars worth a nickel apiece. Wade v. State. 43 Ark. 77. The court cited a Tennessee case in which, under a similar statute. a

man was convicted of playing ten pins with the understanding that if he lost he was "to treat to a bottle of champagne." Cheers! 0 April 1985/Arkansas Lawyer/57

..

Coming of Age: Women lawyers in Arkansas, 1960-1984 By Annabelle Davis Clinton ver 450 women became licensed to practice law in Arkansas between the years 1960 and 1984.' This figure demonstrates the coming of age for women lawyers in Arkansas.

O

Three times as many women en-

tered the legal profession in the last twenty-five years as compared with the preceding forty year period (1918-1959) when only ISO women were admitted to the practice.' The majority (264) have been admitted in the last five years (1980-1984).' Of the 380 women lawyers presently in the active practice of law in Arkansas. 227 are located in Pulaski County.'. The years 1960-1984 saw a continuation of firsts for Arkansas women in the legal profession: the Honorable Elsijane Trimble Roy was the first woman appointed to the circuit bench (1966); in 1974 the Honorable Bernice Lichty Kizer became Arkansas' first elected

woman judge; the Honorable Elsijane Trimble Roy also became the first woman appointed to serve on the Arkansas Supreme Court (1975) and the first woman appointed United States District Court judge in Arkansas (1977). Perhaps the best way to illustrate the coming of age for women lawyers in Arkansas is to present

the personal stories of a representative sample of women lawyers

whose range of professional experience extends from two to 24 years and from a small town family practice to a large law firm Little Rock practice.

Judith Rogers No women were admitted to the

bar during the years 1957-1961. In 1962. judith Rogers broke the drought and became licensed officially at the swearing-in ceremony for new admittees held at the Little Rock Club. an exclusively male club at the time. job offers

Judith Rogers were not the order of the day even

for a lawyer who graduated second in her class from Indiana University School of Law. Rogers entered into a space sharing agreement with attorney Byron Bogard - 50010 of her gross income each year in return for office space. In the beginning her practice was limited to a poor female clientele with mainly domestic relations problems. Rogers admits that she assumed a tough stance partially as a result of her own perception that the world out there was hostile territory for women lawyers. Her reputation

for being pro-female lingered for several years, even after her prac-

tice broadened into the areas of probate, bankruptcy, collection and

workers'

compensation.

Rogers recalls that the practice of law was "gentlemanly"; that is, that attorneys treated each other courteously in matters such as postponements. scheduling of depositions, and in the sharing of advice and counsel. Eventually Rogers' law practice supported the purchase of abuilding. three full-time secretaries and a Mag Card 11. grossing over $100.000 each year. [n [977. Rogers agreed to temporarily assume the position of juvenile judge for Pulaski County. After about three months of balancing a law practice and juvenile Court. Rogers decided to close down the law practice and devote her energies exclusively to

58/Arkansas Lawyer/April 1985 A

the juvenile system. Her tenure as juvenile judge brought Rogers in contact with more people, more pain and more unsolvable problems. In 1982, Rogers was elected to the Chancery bench in Pulaski County to serve out a remaining two-year term. In 1984 she was reelected without opposition. Judge Rogers finds the chancellorship to be another challenge for further professional growth.

Idalee R. Hawkins Idalee R. Hawkins, a native of Texarkana, went to law school for insurance in case she ever had to be sell-supporting, but not necessarily to pursue a legal career immediately. She was licensed to practice law in 1966 and in 1968 began practicing law part路time with her father and husband in their family-owned law firm of Raffaelli & Hawkins at Texarkana, Texas. Hawkins' law practice in her family's firm was adjusted to coordinate with the raising of three children. Both as a result of her own choice and the prevailing attitude that a woman did not litigate, Hawkins pursued a non-adversarial office practice examining abstracts,

preparing

wills and commercial contracts, probating estates, etc. In 1971. she was appointed United States magistrate for the Eastern District of Texas, which position she still holds. On January I. 1985, she was appointed U.S. magistrate for the Western District of Arkansas. Her real desire is to become a specialist in family law - seeking solutions to the myriad problems encountered by spouses, parents and children in divorce and custody matters.

Josephine Linker Hart

Idalee R. Hawkins Hart enrolled in law school at the University of Arkansas and graduated in 1971. Although she had intended to eventually return to the army as a JAG officer, Hart decided to delay pursuing her legal career in the military and take advantage of an opportunity to clerk for the Honorable Frank Holt, associate justice of the Arkansas Supreme Courl. In 1973, she again postponed returning to the army and accepted an offer of employment by the firm now known as Highsmith, Gregg, Harl. Ferris and Rutledge in Batesville, Arkansas. Hart wanted to be in the courtroom; she accepted appointments to represent indigents in criminal cases in order to get the courtroom experience. In fact. she accepted any type of case to get the trial experience. Alter one year with the law firm, she was made a junior partner

and alter three years, a full partner. Her practice now includes

criminal defense, domestic relation cases (including child custody), insurance defense, workers' compensation. and some

Josephine Linker Hart grew up on a farm outside of Russellville, Arkansas, graduated from Arkansas Tech in 1965, and joined the United States Army for service in the Adjutant General's Corps. After four years in the United States Army doing quasi-legal work. including court martial experience while serving in Japan,

plaintiff's personal injury work. Hart's experience with the bench and bar has been positive. She found the Batesville bar to be extremely supportive. In the final analysis, Hart concluded that her status as a woman lawyer was neither an advantage nor a disadvantage - she was just another new lawyer in town, the basic pre-

Josephine Linker Hart mise being that you can do whatever you want if you are willing to work.

Hillary Rodham Clinton Hillary Radham Clinton's experience may not be typical considering her status as the Governor's wife, but otherwise her professional career is fairly representative of women in the large Little Rock law firms. Before joining the Rose Law Firm in 1977, Clinton taught at the University of

Editor's Note: Annabelle Davis Clinton, of Little Rock, is a member of the Wright. Lindsey and Jennings law firm. She is a former circuit judge of the Fifth Division. Sixth Judicial District and is in her third term as secretary of the Arkansas Bar Association. Clinton attended Bates College of Law and the University of Arkansas. receiving a J.D. in 1977. She is a former member of the Houston Law Review, and served as comments editor for the Arkansas Law Review. "Coming of Age, Women Lawyers in Arkansas 1960-1984" is the final in a series of three articles celebrating the lOOth anniversary of women in the law in Arkansas. Our thanks to Clinton, Frances Ross and Jacqueline S. Wright for their research into the past of Arkansas' women lawyers. April 1985/Arkansas Lawyer/59

Georgia Elrod: No access to good 01' boy network I

Hillary Rodham Clinton Arkansas law school in Fayetteville. As an adjunct to her teaching duties she instituted a legal clinic for the representation of indigents in domestic relations, landlord-tenant and credit matters. One particularly noteworthy case involved criminal charges against members of a religious cult for the "unlawful burial" of a child. As an associate at the Rose Law Firm, she handled a variety of matters ranging from anti-trust. securities and product liability litigation to adoption and custody cases. She was actively involved in overturning the state's rule that barred foster parents from adopting their foster children. Because of the demands that domestic relations cases entail. Clinton has limited that aspect of her practice and concentrated on commercial litigation. According to Clinton, she joined the Rose Law Firm to develop trial practice skills and found among her fellow lawyers support. collegiality and high standards. The firm also placed a premium on independence, allowing its members to pursue their individual interests such as her service as a board member and chair of the National Legal Services Corporation. In 1979, Clinton became the firm's first woman portner and the first in a large Little Rock law firm. Since then her practice has focused on complex matters that demand concentrated periods of work such as takeover challenges and suits for immediate injunctive

60IArkansas Lawyer/April 1985

relief. This work also fits her schedule demands as First Lady. Both as a woman lawyer and as the Governor's wife, Clinton has been the object of curiosi ty by both bench and bar. She also has had to consider whether or not her political affiliation might present any conflicts of interest. As in the case of Josephine Linker Hart, being a woman has not been a

significant factor in Clinton's perception of her professional career.

Georgia Elrod

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Georgia Elrod not have access to the 'good 01' boy network, such as Rotary Club. The client's respect for her professional opinion is an individual matter, with little or no relation to her being a woman. However. on

For a number of years, Georgia Elrod was the only woman attorney in Benton County. Upon admission to the bar in 1974, Elrod went into practice with her husband and father-in-law in Siloam Springs. Over the years her practice has tended to concentrate in chancery court, in the areas of domestic relations, wills, trusts and real estate. Elrod has little interest in trying cases before a jury and in fact believes that her talents are better used in the per-

one occasion a new client ap路 peared for an appointment and was chagrined to learn that Georgia was not George! Elrod finds her practice fulfilling and feels well-accepted in the community.

son-ta-person communications generic to chancery court prac-

lawyers. After nearly 12 years as a research scientist, Roaf. who is female and black, decided to radically change her professional course. She enrolled at the University of Arkansas School of Law at Little Rock and began to Commute from Pine Bluff, where she resides with her husband and four children. Upon graduation from law school in 1978, Roaf's initial quest for employment focussed on Pine Bluff law firms engaged in commercial law practice - without success.' In 1979 Roaf joined the law firm of Woodson Walker & Associates in Little Rock, becoming the third member of that firm. The understanding was that her practice would be devoted to com-

tice. Elrod perceives the struggle to be one of youth and inexperience rather than gender. She readily admits that the establishment of a small town practice would have been significantly harder had she been without contacts and family in the local community. Elrod has felt no discrimination by either the bench or bar. Sometimes a fellow lawyer will comment that she is the best-looking lawyer in the county, which Elrod merely attributes to a particular style of communication that is not intended to

be demeaning. She does not get as many male clients with business problems because as a woman in a small town she does

Andree Roaf Andree Roof's experience in the legal profession brings into focus

factors which are not present in the experience of most women

mercial matters with some pro-

bate and domestic relations prac-

lice. Since the firm had little commercial practice, Roaf began the task of developing the expertise necessary to handle commercial matlers. Roaf has been impressed with the assistance offered by senior members of the Li ttle Rock bar in response to her requests for advice and counsel. Occasionally a client will express discomfort with the idea of being represented by a woman lawyer. Six years later the goal of establishing a full service law firm is closer to becoming a reality. Roaf devotes 50"10 of her lime to the commercial practice. The effort to attract more corporate clients, as

opposed to individual clients, is proving to be successful. Compared to her experience as a research biologist with limited human contact in the laboratory, Roaf finds the law practice to be more rewarding - offering a greater opportunity to help people solve their problems.

Jo Ann Compton Maxey

Andree Roaf

10 Ann Compton Maxey The most junior member of this representative sample has been

practicing law for less than three years. )0 Ann Compton Maxey directed the funding activities for the Arkansas Community Foundation and clerked for the Little Rock law firm of Kaplan. Brewer &

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April 1985/Arkansas Lawyer/6l

*1984-85 Arkansas Women Attorneys f~'OfO

5

1

5

1

3

6

2

Total:

380

""'" 3

--

'Statistics

based on 1984-85 Attorney Roster from Arkansas Legal Directory.

""

ARKANSAS

Miller, P.A.. while attending the night division of the University of Arkansas School of Law at Little Rock. The clerkship experience with the Kaplan firm eventually evolved into full-time employment as an attorney after Maxey graduated from law school in 1982. Federal court has been Maxey's turf in the context of civil rights litigation and the hotly contested Little Rock School District consolidation case. She is also beginning to develop a general practice

some

domestic

re-

lations. probate and commercial matters. As with most newlylicensed attorneys. Maxey has followed the maxim: prepare well to balance out lack of experience. 621Arkansas Lawyer/April 1985

She echos other women lawyers in observing that her experience with other members of the bar has been no different from that of any other new attorney. Male clients have been watchful in evaluating Maxey's professional competence. In contrast. Maxey senses

that she has to work harder to convince female clients that she is capable. which may be merely a reflection of the female client's

lack of confidence in herself. Maxey has also noticed that some women lawyers try to be too stalwart. possibly in an effort to present an impression of strength.

In the second year of her practice. Maxey joined the increasing number of women lawyers who are

Female Participation in ABA Sections Economics of Law Practice 10"10 (69m Family Law Section. . . . . . . . . .. 13% (234130) Labor Law Section. . . . . . . . . . . .. 13"10 (69/9) Probate Law Section. . . 6% (l68!IO) Real Estate Law Section. . 5% (153m Savings & Loan Section. . . . . . . . . . . . . . 0 (44/0) Section of Taxation ... 3% (148/4) Workers' Compensation Section. . . . .. 5% (207/10)

Arkansas Supreme Court Licensed Female Attorneys 1960-1984

1960 0

1961 0

1962 1

1963 1

1964 1

1965 4

1966 1

1967 3

1969 2

1970 2

1971 5+1?

1972 6

1973 10

1974 5+1?

1975 20+1?

1976 25+1?

1978 46+3?

1979 63+1?

1980 59+1?

1981 52

1982 29+2?

1983 65+2?

1984 59+2?

1968 1

1977 27+1?

*Totals: 487+ 16?

-

*The 16? total represents those attorneys whose gender cannot be determined. balancmg motherhood with the practice 01 law. Since late night and weekend work can no longer be the rule. Maxey strives lor greater elliciency and productivity during regular working hours. Professional organization work has been deferred for the foreseeable future. With the acceptance that she cannot be the best lawyer. wife and mother. Maxey endeavors to do a good job and is proud of her contribution to the legal system. What conclusions can be drawn about the luture for women lawyers in Arkansas? The groundwork laid by women licensed to practice law between 1918 and 1959 has made it poSSible for those entering the legal profession since 1960 to reap the rewards of unlimited opportunity. Unlimited opportunity brings hard decisions about career. marriage. children a balancing ellort that defies per-

feet answers and necessarily re-

sults in compromise.

There are still more firsts to be achieved in Arkansas: election of a woman to the (I) circuit court bench; (2) Arkansas Supreme Court; (3) Arkansas Court of Ap¡ peals; and (4) presidency of state and local bar associations. just to name a few. But the real task is not in the achievement of firsts but in what women have to oller to the legal prolession in its ellort to resolve disputes without resorting to violence. Women in this society have learned to be supportive. nurturing, and sensitive to the

feelings of other human beings. The challenge to women lawyers is to integrate those interpersonal communication skills into the practice of law. and thereby make the resolution of legal disputes a healing. rather than divisive. process.

o

FOOTNOTES 'Clerk of the Arkansas Supreme Court. Register of Attorneys licensed to practice law in Arkansas. , Clerk of the Arkansas Supreme Court. Register of Attorneys licensed to practice law in Arkansas. , Clerk of the Arkansas Supreme Court. Register of Attorneys licensed to practice law in Arkansas. â&#x20AC;˘ The Arkansas Legal Directory. 1984-1985. Women attorneys listed in the Arkansas Legal Directory were designated as being in the "active practice of law." By way of caveat. these statistics may include some errors in the

determination of gender. , According to the Arkansas Legal Directory. 1984-1985. seven women are presently in the active practice of law in Jellerson County. Arkansas. April 1985/Arkansas Lawyer/63

IN

MEMORIAM of Arkansas to study journalism. He later switched from journalism to language and volunteered for the Army in World War II. He was on the first convoy into Normandy after the D-Day invasion and served there as an inter-

Survivors are his wife, Esther

preter until he was wounded in 1944. He received the Purple Heart and three Battle Stars for his mili-

White Putman of Fayetteville; a son, William Putman IV of Champagne, Ill.; and, two hal/brothers. Dr. Robert Dickson of Pueblo, Colorado. and James F. Dickson of Fayetteville.

tary service. He also served as an

interpreter for the chief of the German Civilian Police until December 1945 and, in 1948, went to work for the Stanolind Oil and Gas Company in Columbia, South America. Between his military service and his position as an interpreter

William B. Putnam William B. Putman III, aged 61. of Fayetteville, died Thursday, December 13, 1984. A lecturer at the University of Arkansas at Fayetteville School of Law and a criminal defense lawyer. Putnam was a member of

the W. B. Putnam law firm. He was appointed a special justice to the Arkansas Supreme Court on different occasions in 1968, 1970 and 1971. and had served since 1962 on its Committee on Model Jury Instructions. In September, Putman was inducted as a Fellow in the American College of Trial Law-

for the oil firm, he completed his bachelor's degree in journalism and language at the University. The Arkansas Gazette reported that although he said in 1977 that he

"remained

a

journalist

at

heart," he entered the Fayetteville law school in 1951 and completed his degree in 27 months. Putman served as a United States commissioner from 1954-61. was a Washington County elec-

tion commissioner from 1957-61 and began lecturing at the Fayetteville law school in 1956. He was a member of the Arkansas Board of Law Examiners from 195964. He was considered an expert on

American Western art and had one of the largest collections in the state. A 31-year member of the Arkansas Bar Association, Put-

yers.

man

He graduated with honors in 1953 from the Fayetteville law

legal education, judiciary, unau thorized practice of faw, legal

school. where he served as editor

education and judicial nations committees.

in his senior year of the Arkansas Law Review. A native of Springdale, Putnam was the only child of the late William Benjamin Putman II and Maxine Corbin Putman. He was

graduated from Fayetteville High School and entered the University 64/Arkansas Lawyer/April 1985

He was a fellow of the International Society of Barristers, a member of the American Judicature Society, Phi Alpha Delta, Omicron Delta Kappa and Sigma Alpha Epsilon.

served

on

its

continuing

nomi-

He was a former member of the

Arkansas Bar Foundation Board of Directors and was a former pres-

ident of the University of Arkansas Law School Foundation and Washington County Bar Association.

Edgar A. Woolsey Edgar A. Woolsey Jr.. aged 48, of Clarksville. died Saturday. January 26. 1985. The senior partner in the Clarksville firm of Woolsey and Wilson, he had served as Johnson County deputy prosecuting attorney, as juvenile judge and as Clarksville city attorney. Born north of Ozark, Woolsey graduated from Ozark High School in 1954 and attended Arkansas Polytechnic College on a working scholarship operating an experimental farm. After studying agriculture he transferred to the University of Arkansas at Fayetteville where he received a bachelor of arts degree in 1958. In 1960 he received a bachelor of laws degree which was replaced with a juris doctor degree in 1969, While in law school. Woolsey was elected president of the Arkansas Law Students' Association, marshal of Phi Alpha Delta Legal Fraternity and assistant attorney general for the University. Woolsey was licensed in 1960 to

practice law in the state and federal courts. He practiced law three years in Harrisburg. A 24-year member of the Arkansas Bar Association, Woolsey was also a member of the Johnson County and American Bar Associations.

He was a member of the Board of Directors of the Christian Civic Foundation of Arkansas and the Arkansas Basin Foundation, director of the Ozarka three-state commission, member of the Johnson County Chamber of Commerce

and

a

member

of

Searcy; his parents, Mr. and Mrs. Edgar Woolsey Sr. of Ozark, and a sister, Mona Beth Brown of Ozark.

David Wilson Brandt

the

Mid-Arkansas River Valley Regional Planning Commission. He was president of the Johnson County Bridge Association and cochair of the Johnson County Peach Association. Woolsey was raised to the sublime degree of master mason in

1969 in Franklin Lodge No, 9 where he was master in 1976 and later secretary, He became a certified lecturer in 1973, certified instructor in 1974 and served as deputy district custodian of District 25 for four years, He raised more than 300 candidates to the degree of master mason. He was a dual member of

Ozark Lodge No. 79, a member of Clarksville Royal Arch Chapter No. 49, Orsiris Council No.5 Royal and Select Masters and Jacques Demolay Commandery No. 3 in Fort Smith. Woolsey was an officer of the Trinity Conclave, Red Cross of Constantine in Fort Smith, the Western Arkansas Consistery, a knight commander of the Court of Honor, orator of the Rose Croix Chapter, past-patron of Clarksville Chapter No. 172, Order of the Eastern Star, and served as the grand master of the M,W. Grand Lodge of Free and Accepted Masons of Arkansas. He was a member of the First United Methodist Church m Clarksville and served on its administrative board. He was associate director of Laity for the Fort Smith District of the North American Conference.

Woolsey was a member of the Board of Directors of the Western Arkansas Area Council, Boy Scouts of America, served on the Mt. Magazine District Sub-

David Wilson Brandt. aged 36, of Fayetteville, died Thursday, December 20, 1984. A member of the Bumpass and Brandt law firm in Fayetteville, Brandt was the Washington County coordinator for Governor

Bill Clinton's 1984 re-election campaign. Born in Cape Girardeau, Mo .. Brandt was the son of the late Richard and Edna Brandt. He earned a bachelor's degree in political science and a juris doctorate degree from the University of Arkansas. He received a master

of laws degree in taxation from Southern Methodist University. He was admitted to the bar in 1974. Brandt was formerly a trust officer for First State Bank of Springdale, He was president of C,A.R.E. Inc., a nursing home and health care company. Brandt was a member of the Washington County and American Bar Associations and St. Paul's Episcopal Church of Fayetteville. Survivors are his wife,

Joan

Greene Brandt; a son, Wilson David Brandt, both of Fayetteville; and, a brother, Joe Brandt of Edina, Mo.

ber of Franklin County Farmers Association. Survivors are his wife, Neva

Belcher King; two daughters, Hillary Marie and Haley Noel; his mother, Myrtis King, all of Ozark; and, two sisters, Lucille King Sowell and Reba King Irons, both of Fort Smith.

Wayne Jewell Wayne Jewell. aged 74, of El Dorado, died Wednesday, November 28, 1984. A native of Greene, Iowa, Jewell practiced law in El Dorado for more than 51 years. He was a member of the Arkansas and Union County Bar Associations. He was a life member of Kiwanis International, served as

president of the EI Dorado Kiwanis Club in 1938 and as secretary of the MO-KAN-ARK district of Kiwanis International in 1939. He held a perfect attendance record for a number of years at the local Kiwanis Club. King was one of EI Dorado's first Eagle Scouts. Survivors are his wife, Mrs. Nettie Hunt Jewell of EI Dorado; four daughters, Sylvia Jewell of Juneau, Alaska, Helen Decker of San Leandro, Calif.. Rebecca Hill of Napa, Calif., and Carla Jewell of New Jersey; a son, James Jewell of EI Dorado; and, two grandchildren. 0

A. Jack King A. Jack King, aged 55, of Ozark. died Thursday, November 29, 1984.

HEIRS lOCATED

King was a former Ozark muni-

cipal judge and Franklin County juvenile judge and an Ozark farmer.

Missing and unknown heirs idenlified and lo-

He was a retired lieutenant colonel in the United States Air Force, with 25 and one-half years

cated by licensed invesligator with 15 years of gcneOllogical and search experience. All fees contingent upon successful search.

committee and was a member of

of service.

the Order of the Arrow of the National Brotherhood of Scout Honor Campers. Survivors are his wife, Jacquelene Woolsey of Clarksville; a daughter, Victoria Jane Woolsey of Clarksville; two sons, David Allen Woolsey of North Little Rock and Paul Edward Woolsey of

The son of Andrew J. and Myrtis Yeartha King, he was member of the Arkansas Bar Association since 1976. King was a member and chairman of the board of First United Methodist Church, chairman of the board of trustees of Turner Memorial Hospital and board mem-

Carol Briggs RR#2, Eldridge, Iowa 52748 (319) 285-4509

April t985/Arkansas Lawyer/65

Standing in Iront 01 Chancellors Hall 01 Trinity Episcopal Cathedral in Little Rock are (from lell) Robert D. Ross. Marilyn Mitchell. Frances Mitchell Ross. Virginia Mitchell. John Thorpe Williams and Elizabeth Williams.

William Starr Mitchell John Thorpe Williams By Robert L. Brown 66/Arkansas Lawyer/April 1985

Generations in the Law: A Series William Starr Mitchell. deceased on November 25, 1981. and John Thorpe Williams practiced law in different Little Rock law firms during their heyday (Chowning, Mitchell. Hamilton & Burrow in the case of Mitchell; Smith, Williams, Friday & Bowen in the case of Williams) and were not related or close social friends. Yet the two men typify a generation of successful lawyers and, more importantly, a style of practicing law that has inspired numerous successors to the practice and even

some of their peers. In a profession often perceived as composed of overly zealous desk-pounders or clever finnaglers, the two men's careers are examples of integrity.

Photo by Willie Allen

Their lives intertwined like figure eights

competence, humility, dedication to community, and compassion. William H. Bowen, a former law partner of John Williams and now chairman of the Board of First Commercial Bank of Little Rock, makes the case succinctly: "If more lawyers like Will Mitchell and John Williams predominated, the profession would be viewed much more favorably." Born two years apart. their lives like figure eights intertwined repeatedly. For years their law firms occupied adjoining floors in the Boyle Building in downtown Little Rock. They were both presidents of the Arkansas Bar Foundation during the watershed period when the purchase of the land and construction of the Bar Center and Law School next to the Camelot Hotel were being structured. They served for years on major Little Rock bank boards. Most significantly, both men have given tirelessly of their time and efforts to the Bar, their community, and their church which they shared in common - Trinity Episcopal Cathedral in Little Rock. In recognition of their countless hours of devoted service as chancellors, or chief legal advisors, to the Episcopal Diocese of Arkansas, Trinity Episcopal Parish and the Diocese recently re-

named a building on the Cathedral grounds Chancellors Hall in memory of William Starr Mitchell and in honor of John T. Williams. There

are

other

connecting

points in their lives as well. Law partners and friends of the two men assign them the same work habits and personality traits: gentle, scholarly, meticulous. ethical. low key, slow to anger but quick to defend what's right. and an intense interest in and dedication to the betterment of their fellow man. When contemporaries of Will Mitchell are asked about the man and his legal career. he is often described as "too good to be true." "If the devil walked into this room today, Will Mitchell would have something nice to say about him," former law partner W. P. Hamilton was fond of saying. Others maintain that Will Mitchell missed his true calling - "he would have been a magnificient minister," they say. Born in Little Rock in 1907, Will Mitchell had his origins in both publishing and business. His grandfather, James Mitchell. had been editor of the Arkansas Gazette and an owner of the Arkansas Democrat. He attended Editor's Note: Robert L. Brown is a member of the Little Rock law firm of Harrison and Brown, P.A. He was formerly in general law practice with the Chowning, Mitchell. Hamilton and Burrow law firm, now defunct. Brown is a former administrative assistant to Congressman Jim Guy Tucker, former legislative assistant to Senator Dale Bumpers, and former legal aide to Governor Dale Bumpers. He is a former deputy prosecuting attorney in the 6th Judicial District. He received an LL.B. from the University of Virginia in 1968 and is the author of several previous articles in The Arkansas Lawyer on "Lawyers in the Governor's Office" and "Lawyers As Law-

makers." April 1985/Arkansas Lawyer/67

public schools in Little Rock, Carver Military Academy and graduated from Princeton University, where he was known as Bill, in 1929. His Grand Tour alter college was not limited to Europe but embraced the entire world. He traveled with a friend on a budget of $1,000 and when his money ran out he had to work his way home across the Pacific Ocean in the engine room of a steamer.

Following Princeton and his traveling adventures, he began his legal studies at the University of Arkansas School of Law and then entered Yale University where he received an LL.B. degree in 1933 and roomed with Henry W. Gregory, the prominent Pine Bluff attorney. He then came home and after being admitted to the Arkansas Bar, he practiced with the law firm of Rose, Hemmingway, Cantrell and Loughborough in Little Rock. In 1938, he married Virginia Grobmyer of Forrest City, became an associate in the firm of Moore, Burrow & Chowning which eventually became Chowning, Mitchell, Hamilton & Burrow. There was not much that Will Mitchell did not do for the Bar Association or for his community. Indeed, he was so dedicated and willing to help and so thorough in his work, he was often called on to give more than his fair share. It was commonly accepted that whenever Will Mitchell did something, he gave 1.000 percent whether it be founding the Arkansas Bar Foundation in 1959, president of the Arkansas Bar Association which he was in 196061. president of the Chamber of Commerce for Little Rock which he was in 1963, chancellor of the Diocese of Arkansas which he was from 1955 to 1964, director of Union National Bank, or leader of the former Community Chest. He also headed the Justice Building Commission and worked for an amended judicial article for the State Constitution and for an integrated Bar Association. During his tenure in leadership for the Bar Association and Chamber of Commerce, he was renowned for trying to attend every committee meeting. Unlike some who seek leadership positions to advance their careers. former law

partner Lawrence B. Burrow says Mitchell did just the opposite. "He 68/Arkansas Lawyer/April 1985

studiously avoided any appearance of a conflict of interest and would have been undone if a conflict had been suggested," says Burrow. Burrow adds, "Will Mitchell believed in the notion of avoiding the appearance of conflicts before that notion was popular." "Will Mitchell's priorities can be summed up easily," says W. P. Hamilton. "First, his family, then his church and the Bar in that order." There is no question that Will Mitchell's finest hour was during the volatile school desegregation crisis in 1959 when he was campaign chairman of the Committee to Stop this Outrageous Purge (STOP), a group designed to thwart the firing of Little Rock schoolteachers and principals because of their associations and to recall segregationist members of the Little Rock School Board responsible for those firings. At the time, the Little Rock Public Schools had been closed by legislative act and Little Rock was under the microscope of an international media. The STOP campaign under Mitchell's direction represented a turning point in the desegregation crisis and set the stage for the peaceful integration of the Little Rock Public Schools. There were other high points in Will Mitchell's legal career. One certainly had to be his introduction of Vice President Lyndon Johnson at the annual meeting of the Arkansas Bar Association in Hot Springs in June, 1962. He worked for days on the introduction and it was so detailed and full-blown in its wit and illustrations that Johnson subsequently referred to it in Washington repeatedly and offered Will Mitchell a position on the newly formed United States Civil Rights Commission - a position Mitchell refused to take. When the American Bar Association met in London during Ed Wright's tenure as president in July, 1971, Will Mitchell was chosen to read the Old Testament lesson from the lectern at a ser-

vice at St. Paul's Cathedral. He read from Leviticus. Appropriately enough, the lesson was on loving thy neighbor. And then for some eight years he joined a group of friends including Chancery Judge Bruce Bullion

in editing "Arkansas Bylines" which was a mimeographed bulletin to Arkansans in the armed service and particularly in Viet Nam and which contained a telescoped version of news stories about Arkansas. At the time Mitchell described it as a morale builder: "It was started when there was so much criticism of the war and when

relatives

of

servicemen

were being harassed. We wanted to do something to offset this." Former Bishop of the Episcopal Diocese of Arkansas, Robert R. Brown, worked closely with Mitchell during the school crisis and refers to him as a "perfectionist." Others type him as thorough to a fault and as a man who did tbings in excruciating detail. Often, there was no way he could bill a client for the time and effort he had put into a case. On one occasion his son, Jim. who is a lawyer

and probate judge in Augusta, Maine, recalls him attending a field survey in Scott, Arkansas over a few feet of land. Jim raised the question of how he could charge for the work involved. His father answered simply: "[ can't charge for it." His modesty and humility were perhaps best illustrated by the extremely difficult time he had in billing clients. There is also the story that when Will Mitchell's tum came to be president of the Arkansas Bar Association, he had not prepared someone to place his name in

nomination. Undoubtedly, he was embarrassed by the act, and friends had to scramble to do so at the last minute. He was a man of warm humorunder all circumstances - which made him much in demand as a master of ceremonies. When hos路

pitalized for his first heart attack, the doctor entered his room and advised him that he was going to check his pulse. Will Mitchell responded: "Doctor, I am sure glad you are not a lawyer. A lawyer would have said: 'I'm going to check your pulse, if any.' .. John Thorpe Williams was born on March 8, 1909 in Lonoke, Arkansas where his father was a grocery merchant. His father, Carroll A. Williams, had migrated from Shelbyville, Tennessee; his mother, Mary Thorpe, from Prairie Grove in Washington County,

"

Arkansas. Growing up, Williams had three brothers and four sisters and recalls times as being rough. Despite the economic straits, he attended Lonoke High School and graduated in 1927 as valedictorian of his class. He then came to Little Rock where he worked at the Rock Island Railroad in various capacities while attending Robinson Business College and subsequently the Arkansas Law School. He recalls that during these hard times there was a whole group of attorneys who still practice law who attended the Arkansas Law School. He earned his LL.B. in 1931 and was admitted to the Arkansas Bar in 1933. He didn't begin the practice of law right away because he had a job and they were hard to come by. During the early thirties he shuttled back and forth between work with the Rock Island (traffic manager) and with Standard Oil Company of Louisiana (sales), but in 1936 he broke away from business and joined then Prosecuting Attorney Fred A. Donham's staff where Pat Mehaffy, later chief judge of the Eighth Circuit U.S. Court of Appeals, worked as chief deputy. Williams worked as a deputy prosecuting attorney and as a grand jury reporter for three years and in 1939 joined the staff of United States District Judge Harry J. Lemley as secretary, law clerk and court reporter. At the time, Judge Lemley was a roving judge for the Eastern and Western Districts of Arkansas with his base in Texarkana, which is where Williams moved and lived for ten years. While there, he met Elizabeth Green of Hope and they were married in June of 1941. Following his work with Judge Lemley, John Williams served as chief assistant attorney general in Ike Murry's office in 1949 and in 19SO joined the respected law firm of Daggett & Daggett in Marianna where he practiced until 1952 when he joined Pat Mehaffy and William J. Smith in the formation of a new law firm - Mehaffy, Smith & Williams, the predecessor of what is now Friday, Eldredge & Clark in Little Rock. In that firm, Williams specailized as district attorney and then assistant general counsel for the Missouri Pacific Railroad Company and counsel

for the Little Rock Housing Authority and for the State Highway Department in which capacity he handled land condemnation litigation. Later, the State Highway Department was to develop its own in-house legal staff, a development which John Williams championed and helped to implement.

In addition to his service as president of the Arkansas Bar Foundation and as a member of

the Board of Directors of First National Bank of Little Rock from 1963 to 1982, John Williams headed the State Legislative Committee of the Chamber of Commerce for Little Rock in 1963 and 1964. Perhaps he is proudest of being a moving force behind the building of the Good Shepherd Ecumenical Retirement Center in

Little Rock which can house 280 residents and where he has served in numerous capacities since its inception. He currently serves as the Center's chairman of

the Board. "He is always there and always available with information,

It

says

lawyer

Diane

Mackey, who also serves on the Board. His former law partner, William J. Smith, describes Williams as "one of the finest gentlemen I ever knew." "We were partners for thirty years and never had a cross word," Smith adds. "He is a great Christian and I think he has demonstrated that. He has a high standard of ethics as a lawyer which through his own practice he passed on to younger lawyers who worked with him. Indeed, he was a mentor for a number of

lawyers in the firm." John Williams' religious convictions were "demonstrated in

his daily activities," according to Smith. "He is a man who has a fine command of the English language. He does not resort to profanity to stress a point as many people do." Since 1974 when John Williams became counsel to his law firm, he has kept office hours, but worked three to four hours a day on matters for the Episcopal Diocese of Arkansas. The Bishop of the Episcopal Diocese, Herbert A. Donovan, describes Williams as having

"0

clear cut sense of

what's right legally and morally. But there is something else that al-

ways comes through," Bishop Donovan goes on, "and that is his pastoral concern for people. He has a marvelous ability to care about people." There is not much that John Williams has not done for his church. He has served as president of the Trinity Parish laymen, been delegate to at least four national conventions. served as se-

nior warden for Trinity Cathedral on three occasions, headed fund raisers, and led search committees for the selection of a bishop and dean, just to name a few. Whether it be negotiating longterm financing or giving advice on a personal crisis. Bishop Donovan describes John Williams as an invaluable counselor and rock of support. He is a man who knows how to get things done, quietly and effectively. Dean Joel Pugh at Trinity Cathedral says Williams not only gives advice, "but helps you carry that advice through." And then there is his common sense. "A part of that is knowing the reali ties and not trying to get around them," says Pugh. "John and I were once at a meeting where a discussion was made and someone asked if the discussion was to be kept a se-

cret. John said, 'Don't two people know it? Of course it's not a secret.路 "

Other members of Williams family have had associations with a legal career. His sister, Beulah Williams, worked in Hot Springs as a legal secretary for the law firm of Morris & Barron. But she admits the highlight of her career was her work with then Senator Harry S. Truman in Washington on Truman's War Effort Investigation Committee during World War 11. His brother, Thomas D. Williams, was admitted to the Arkansas Bar in 1935, but subsequently joined the Army and made the Army his career. Another sister, Ethel Williams Carpenter, worked for United States District Judge Thomas C. Trimble when he was in private practice in

Lonoke. William J. Smith, in contemplating both men, sums it up nicely: "When you soya gentlemen has humility, compassion, and integrity, that's about it. and that's what I'd say about both of them."

o

April 1985/Arkansas

Lawyer/69

Leake路lngham Building in Camden. 70/Arkansas Lawyer/April 1985

Photo courtesy 01 Arkansas Historic Preservation Program

Historic Surroundings: An infinite variety of law offices' styles and qualities As long as there have been lawyers there have been law offices. Like lawyers themselves the offices' styles and qualities have had an almost infinite variety and have reflected their surroundings. From the mid-nineteenth century to the present law offices have played a prominent role in defining our downtowns, built as they frequently are near the center of a

Among the earliest buildings constructed for law offices that remain in Arkansas is the Leake-

Ingham building in Camden. Constructed about 1850 this building, which has been moved. stood for over a hundred years at the corner of Washington and Harrison streets in

city with quick access to courts,

the heart of Camden. Mr. William W. Leake, a prominent Camden attorney, built it. He had at least three different part-

libraries and other professional

ners in his practice there. The

concerns.

Classical style of this small building gave it a dignity appropriate to its use and others. By 1866 Leake had rented it to the Federal government as offices for the Freedmen's Bureau and later as a Government Land Office. The cost of construction is not known but records do show Mr. Leake paying a $16.00 premium on a $1.000 fire insurance policy. In 1906 the Camden Library Association purchased the building for $1.100 and it has served since as a library. In addition to carrying the name of Leake the building name recognizes Mr. and Mrs. H. M. Ingham who made substantial con-

In recent years many lawyers have looked to older structures surrounding and in their downtowns as possible office space. In addition to good location these historic structures frequently offered high quality and distinctive space at relatively low cost. The Arkansas Historic Preservation Program (AHPP) has had the pleasure of working with lawyers, architects and developers in planning and executing many of these projects while also working with other groups that have taken what used to be law offices and turned them to new uses.

tributions to the purchase and conversion of the building. A little farther south is the King-Whatley building in Lewisville constructed in 1902 as a bank. Lewisville was thriving as a county seat in cotton-growing

country with the railroad running through. By 1919 the bank had moved and David Latimore King acquired the building. It remained a law office accommodating the practice of King and his son-in-law. George Whatley until about 1960. King was prominent in legal and political affairs of southwest Editor's Note: Jacalyn Carfagno, of Little Rock, is a planning specialist with the Arkansas Historic Preservation Program, a division of the Department of Arkansas Natural and Cultural Heritage, and is responsible for public relations, gran ts and general

administrative concerns. She holds a B.A. from the University of Arkansas at Little Rock and received the Booker T. Worthen Award for Outstanding History

Graduate.

By Jacalyn Carfagno April 1985/Arkansas Lawyer/71

Arkansas serving as the first Democratic sheriff of Lafayette County since 1865 and later as a state representative and state senator. Although the KingWhatley building is no longer used as law offices it remains in the hands 01 King heirs and has recently been the subject of extensive restoration efforts. taking advantage of Federal tax incentives for preservation projects. Another historic law office now serves as the Arkansas City museum in Desha county. It was built in the final decade of the nineteenth century as a law office. One of its occupants was Xenophon Overton Pindall (more commonly referred to, not surprisingly, as ''X. 0.") who served as acting governor of Arkansas lor almost two years from May 1907 to January, 1909. The museum is close to the heart of this once thriVing river town. Only a short distance from the county courthouse it sits with its back to the levy. The building's use apparently strayed from the law when, according to local reports, a shallow cellar underneath was used as a still during prohibition. The changing uses of buildings have brought many early structures that were houses, offices of another type. government buildings and even, in one case, a jail into play today as law offices. Some of the finest restoration and rehabilitation projects carried out in Arkansas have involved law uses from the Old Post Office and Customs House in Little Rock that now serves as the University of Arkansas at Little Rock School of Law to another Old Post Office, this one in Camden, that houses the county law library. The Camden Post Office combines several uses. In addition to the law library it houses the offices of attorneys Hamilton H. Singleton and James D. Foyil as well as other office space and two retail outlets. Here again the location is critical. the Post Office sits only a block from the county courthouse and in the middle of the downtown business district. The building, 721Arkansas Lawyer/April 1985

The Guisinger building on Fayetteville's square is another adaptive use to law offices that has taken advantage of the federal tax incentives. Built in 1886 to house a hardware business the building was bought in 1925 and somewhat altered by Ivan Winford Guisinger for his music business. Guisinger had enormous success and the business

Arkansas City museum in Desha County, Photo Courtesy of Arkansas Historic Preservating Program

which had been sold as surplus by the General Services Administration (GSA) to the Berg family of Camden was the subject of grant funds administered by the AHPP and was also a project that took advantage of the tax incentives.

continued in this location, run by his sons, until 1981. It was purchased in 1982 to house the law firm of Odom, Elliott, Lee and Martin. The ground lIoor used largely as reception and clerical space gets abundant natural light through the large display windows that Guisinger installed to show his pianos and other wares. The upper story was originally one large storage space and has been adapted to private offices. Both lIoors have pressed tin ceilings which re-

main in excellent condition. The most common adaptive uses for office space are of older homes. With their formal entryways, excellent natural light and generous proportions they have lent themselves easily to

LICON SERVICES, INC. 10825 Financial Centre Parkway - Suite 400 Little Rock, Arkansas 72211 Telephone No. 224-6361 (501) Specializing in background, location of witnesses, interviews, and other general investigative work for attorneys. All are former F.B.I. agents, with extensive investigative experience. John (Jack) Kenney, President. (Former Assistant Agent in Charge for Arkansas)

office uses. The most recent such project is the PrigmoreMartin House, occupied by the firm of Eilbott Smith Eilbott Humphries & Taylor in 1984. Built in 1874 by George W. Prigmore who had come to Arkansas from Illinois the two story house occupies a prominent comer lot on Fifth Avenue, one of the main arteries in Pine Bluff. The primary rooms in the two stories are used now as private offices.

The reception area, clerical and service spaces are contained in

two additions to the rear of the house. The transformation into offices required few significant changes in the layout of the house and ample parking has been provided at the rear and sides. This project has gained considerable local support and has served as an impetus for further rehabilitation work in this older Pine Bluff neighborhood. The Walker-Stone house on Center street in Fayetteville now houses the law firm of Kincaid, Horne & Trumbo. Rehabbed in 1979 and '80 with the assistance of a historic preservation grant the house was built in 1845 by Judge David Walker. Judge Walker owned it only briefly selling it in 1850 to Stephen K. Stone, grandfather of the noted architect Edward Durrell Stone. Its present use recalls the build-

Prigmore-Martin House in Pine Bluff,

Photo courtesy of Arkansas Historic Preservation Program

, L

ing's early connection with an

attorney and is part of the exciting redevelopment that has taken place on and around the Fayetteville square. The Gann House in Benton has been one of the proudest projects accomplished in that community, restoring this 1895 Queen Anne home to a place of

Gann House in Benton.

prominence and giving it a new

use as the offices of attorneys Sam Gibson and George Ellis. Although many interior features had been lost the original stained glass remained as did some of the interior woodwork including all the mantels. Offices in the parlors make good use of those interior details as well as of the abundant light provided by the large windows. The owners of the Gann House have taken advantage of the preservation easement program

which allows owners to take a

charitable contribution deduction for granting an easement to retain the historic features of the property. The offices described here are only a sampling of the historic buildings in Arknsas that have been put to new uses. The charms of historic buildings are only a part of the reason for the surge in such projects in the last decade. They also have, as has been discussed, good location

--<>--

Photo courtesy of Arkansas Historic Preservation Program

which is critical to any successful use. Additionally rehabilitation projects are cost effective, with lower costs per square foot than construction. Those facts along with the substantial tax incentives available to preservation projects have made good investments for their owners.

Another plus, as the buildings discussed here show, is that they are good investments for their communities as well. 0 April 19851Arkansas Lawyern3

ow it costs less • to e• assoCIate WI ertz. ADAY ACROSS THE USA'

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741Arkansas Lawyer/April 1985

19601

"The

Ten Greatest Trials of Pulaski County," the title and subject originally assigned to this talk, emerge today alter much modification as "Some Arkansas Cases, A Few of Them Great and a Few of Them Not." The cases which I hcrve selected fall into three broad categories which for convenience I call the Little Rock cases, the cases for reform and the mystery case.

The Little Rock cases are first. and first among them is a case which involved a title controversy over the site of Little Rock itself. No sooner had the territory of Arkansas been created, than the Superior Court was enlisted to resolve a land claim dispute over ownership to the Little Rock area. Two major conflicting claims existed. One was a pre-emption claim purchased around 1819 by St. Louis land speculator, William Russell. The claim dated back to 1812 when a wandering trapper who had spent a few months here filed claim for the land based on that period of residence. Second was a claim which stemmed from the New Madrid earthquake of 1811-1812. The earthquake had dislocated many settlers around New Madrid, Missouri, and Congress in 1815 voted relief to the settlers by offering them New Madrid certificates which allowed them to resettle on land that included this area. Several men bought up the Little Rock area certificates. They included Amos Wheeler. who became Little Rock's first postmaster; Stephen F. Austin, who went on to seek his fortune in Texas; Chester Ashley, recently arrived from New England and an ambitious young lawyer, and others. Both Russell with his preemption claim and the New Madridites, with their certificates, wanted legal ownership to the land at the "point of rocks. ", The dispute grew heated. The New Madridites, in January 1820, decided Russell's claim was worthless and threw him out. Russell. not easily defeated, enlisted the press in his cause. In May of 1820 he published notice in the Arkansas Gazette of his rightful claims and his intent to press the issue vigorously. Even before this, he had taken his case to the

Some Ar kansas Ca seS By

Frances Mitchell Ross courts where he sued the New Madridites for forcible entry and detainer. Russell won the first round, lost on appeal and took the case to the Superior Court.' In June of 1821. in the first function of the territorial government at the new capitol of Little Rock,' the Superior Court ruled in the case of Russell v. Wheeler et al. that the lands were in the lawful and rightful possession of Russell and that Wheeler and the others had unlawfully driven Russell out in January of 1820.' So much for the Court's opinion. It prompted repercussions which few could have anticipated, since most of the improvements on the land had been made by the New Madridites who refused to give up.' A visitor to the city on the day after the Superior Court's decision later recounted his version of what transpired that day. "First we saw a large wood and stone building in flames and then about 100 men, painted, masked and disguised in almost every conceivable manner,

en-

gaging in removing the town. These men, with ropes and chains, would march off a frame house on wheels and logs, place it about 300-400 yards from its former site and then return and move off another ... They all seemed tolerably drunk They were a jolly set indeed and by nightfall they had completely changed the site of the town. In one day and night. Mr. Russell's land was disencumbered of the town of Little Rock. The free and enlightened citizens of Little Rock made a change of landlords more

rapidly than Bonaporte took Moscow.'"

The court had ruled, but who had won? No court in the land could prevent the town from running away. Thus Russell negotiated with Ashley, who represented the New Madridites, and in November of 1821. they divided the area in dispute. This gcrve Ashley his start in real estate' and at least for the time being, the land dispute was resolved.' This indeed, was a famous case. It was Little Rock's first case as territorial capitol, it dealt with complicated land title issues and it produced some absolutely astounding results. Some years later, Little Rock, still in place and growing, was struck by scandal. It involved the recent failure of the Real Estate Bank of Arkansas which had gone into receivership April I, 1842. Approximately $14,000 of Real Estate Bank money had been deposited with Justice of the Peace J. D. Fitzgerald by holders of the notes. the money was stolen in a robbery of Fitzgerald's office in August 1842. Several persons were arrested in connection with the case, among them Samuel Trowbridge, recently of Maine and Illinois, William Caldwell, Mrs. Caldwell, and others. Caldwell temporarily escaped but was later found in his house, sitting by the stove in which fresh ashes of paper were found. Could it be ashes of the money? Mrs. Caldwell, also at home, was found "with a vial in her bosom containing $1.400" believed also to be the money.' Officials began to connect this robbery with a rash of recent counEditor's Note: This article by frances Mitchell Ross is the text of a speech she presented March 9, 1984, before the Pulaski County Bar Association. Ross is the coordinator of the Women's Studies Program and the Oral History Program at the University of Arkansas at Little Rock

where she is an assistan t professor in ;he Department of History. Our thanks to Dr. Robert A. Leflar for his assistance, and for help received from the staff at the

Arkansas Territorial Restoration, Bill Worthen and Louise Terzia.

April 1985/Arkansas LawyernS

terfeiting which included U.S. gold and silver coins, bank notes of other states. and corporation notes of the town of Little Rock." The same gang of thieves was later connected to a jewelry store robbery a year earlier" as well as to most of the crimes committed in

Little Rock during the past four or five years. 11 The arrests and subsequent trials of the gang were the talk of Little Rock in 1842 and 1843. People discussed almost nothing else for months and for many years it was Little Rock's most sensational criminal case. 13 It was enough that the gang of thieves and counterfeiters had been caught and were being tried. but imagine how you would have felt to learn that the chief crook. the lead thief, the man who kept the counterfeiting press and fake money in his own home. was none other than Samuel Trowbridge. the mayor of Little Rock! On the one hand he printed counterfeit money and then gave his official opinion as mayor that the very notes he knew to be counterfeit were genuine and would be redeemed. l â&#x20AC;˘

In their 1843 trials. Trowbridge's being first. several members of the gang were found guilty and sentenced to the penitentiary. Trowbridge went for 21 years. You can imagine the public's outrage when about a year and a haJilater Governor Yell sliced 16 years off

terms of general in'terest aroused. it came closer than any other to being the "Creation Science trial" of the 1840¡s. I include this limited collection of Little Rock cases because they may be of interest to Pulaski County lawyers. because they were important to early Little Rock. and as a reminder that Little Rock was largely born and reared in the courts. Contemporary litigation falls into the long. costly. but olten colorful heritage of Little Rock judicial controversy. Next are the cases for reform. The first few cases for reform are fairly easily discussed together for they all point to a common legal and historical problem: the rights of married women under common law. The last case shall be saved for separate consideration.

In 1828 Benjamin Moores and his wife. Ann, appealed to the Superior Court in a case of trespass with arms against Lawrence F. Carter and others." While Mr. Moores was stationed with the army at Ft. Gibson, Mrs. Moores "lived by her own industry and had a small house furnished at her own expense in Crawford County." The Moores alleged that the defendants "with force and arms. entered the dwelling house. and threw Ann into great fear by their menacing manner. by breaking open her chests.

searching all the private apartments. greatly disturbing her and injuring the property." some of which they took away. The court decided against the Moores. first because as a married woman Mrs. Moores was improperly joined with her husband in bringing action. and second because all property purchased or owned by the wile belonged to the husband ... and he alone must sue, The court said that "every species of personal property which the wile may acquire by purchase. by her own labor. or by gilt. during the coverture belongs to the husband." and only he can bring action. The opinion furthermore said that "this doctrine is too well settled to be controverted; and it is not necessary to support it by reference to authority." In 1845. the Court ruled on a case which originated in Pulaski County and involved a woman. Harriet Kelly." who before marriage was given a slave. She later married Mr. Jeffries. Soon the slave was seized under order against her husband. The slave was sold and purchased by Mr. Lindsay. Harriet Kelly Jeffries attempted to reclaim the slave and the court had to determine if the husband through marriage acquired title to the slave so that it could be seized in action against him. Not surprisingly the court said that through "the marriage

Trowbridge's sentence. l~

In commenting on the whole sordid affair. and probably as a rebuttal to unfavorable publicity which the case had aroused elsewhere, the Arkansas Gazette wrote that "we beg leave to inform edHors at a distance that if they have any propensity to write moral lectures ... for the benefit of Arkansas. the very ringleaders of the arrested gang. and almost everyone of their subordinates. are from the lands of steady habits. to wit: Ohio, Pennsylvania. New York and Maine, ... most of them have been but a few years in this state. II we are overrun with desperadoes. it is because they have come down upon us, like Goths and Vandals. from the North. "Ifi If sensationalism makes for greatness. then the Trowbridge case should qualify. In 761Arkonsos Lawyer/April 1985

TOM M. FERSTL, MAl, SREA

Suite 400, Continental Building 100 Main St., Little Rock, Ark. 1-501-375-1439 Court Testimony ... Real Estate Counseling ... Feasibility Studies Commercial and Residential Real Estate Appraisals Member:

Arkansas Bar Association Arkansas Realtors Assn. Society of Real Estate Appraisers Amer. Institute of Real Estate Appraisers

all personal chattles of the wife (are) vested in the husband ... during the coverture. While single. she could have sold and conveyed the slave to any other person. and by the marriage she conveyed to her husband." Both the sale and Lindsay's title were valid. In 1884. in Walker v. lessup" the court determined that Mrs. Walker. who had purchased land on credit for $1.280 and was later sued because the term of the credit had expired and nothing had been paid. was not in the first place able as a married woman to buy real estate on credit and bind herself personally for its payment. None of the laws passed recently had enlarged the wife's ability to contract generally. the court said. None of these cases is outstanding in itself. but together they all do relate to the common law as the common law applied to married women in the 19th Century. The common law simply relieved married

women

of

significant

rights. In a case similar to those described above. it is clear that even the justice involved questioned the justice of the law." but it is also clear that Arkansas courts in the 19th century acted to uphold tradition and to protect the established body of common law. Inequality before the law rested largely undisturbed. Indeed as late as 1912. married women were for some purposes still legally classified with children and incompetents. 2 •

The problems which these cases illustrate are no longer with us. They have been remedied by statute and constitution over a long period of years. But I do think it's worth remembering that these problems were felt by a large group of people and that reform of the law was a painfully slow process. The last case for reform concerns an issue which was never heard in any Arkansas court. but which affected countless lawyers from Arkansas and other Southern states after the Civil War. Arkansas attorney. Augustus Garland. found himself disqualified from appearing before any Federal Court because he had served in the Confederate Congress. The

U.S. Congress had passed laws requiring all government officers as well as attorneys to swear that they had never supported a government hostile to the U.S. This oath was required of attorneys in

order for them to practice in any U.S. Court and to falsely take the oath would be to perjure themselves. D Garland prepared an argument to present to the U.S. Supreme Court challenging the constitutionality of the Acts and making other points." Garland won his case24 by one vote. ~ It was a landmark case because it was seen to vindicate the rights of lawyers against legislative encroachments. it re-instated Garland. countless other southern lawyers. and brought about instant reform in the process.

Finally. the mystery case; the only case of the late 20th Century we have to consider . .. and it,

not a real case at all. Yet it has been much cited unofficially and has been used in Appellate ludges Seminars at New York University." This is. of course. the noted 1968. April I. opinion of lustice George Rose Smith in the suit of I. R. Poisson against Etienne d·Avril.~ You will recall that Poisson sued d'Avriito enforce an oral agreement by which d'Avrii sold Poisson 40 acres of bottom land in the Hot Springs Mountains. O'Avrii maintained that under the 1838 Statute of Frauds an oral contract for sale of land cannot be enforced. Poisson countered that the Omnibus Repealer of 1945. which repealed "all laws and parts of laws." had nullified the Statue of Frauds. The question then became what is the Law? Is it statute only or common law plus the digest of statues. annotated? The author of the opinion determined that it was beyond belief that the General Assembly would do away with Judge-made law saying "it is essential that the common law be preserved if we are to avoid anarchy. The statutory law is not equally essential." Thus the repealer was seen to apply only to statues. "leaving all judge-made law unmonkeyed with." The case itself called into question the nature of law and legislation generally. If we have reached the point of questioning the nature of law and

legislation. then that might call into question all that has been said thus far today. If we should throw out statutory law would we resurrect

married

women's

"rights" under common law? Can we imagine that such a situation

could arise at the Federal level? If so. what about the Little Rock land claims? Would any be legitimate? How could the court decide? Indeed. we might all be consumed wi th the burning question of who really does own Little Rock! The implications of all of this are staggering and frightening to contemplate. Having raised this weighty issue and having considered some Arkansas cases of note

and near note. I shall on that note conclude. leaving both judgemade and statutory laws unmonkeyed with. FOOTNOTES

Ira Don Richards. Story of a Rivertown. Little Rock in the Nineteenth Century ("·n.p.... 1969). pp. 6-7. 2 Margaret Ross. Arkansas Gazette. The I

Early Years 1819-1866 (Lillie Rock: Arkansas Gazette Foundation. 1969). p.

36. Ross, Arkansas Gazette. p. 37. 4 Russell v. Wheeler, Hemp. 3 (Super. Ct. of Ark. Terr. 1821). ~ Dallas T. Herndon. Why Little Rock Was Born (Little Rock. 1933). p. 141. & Herndon. Why Little Rock Was Born. p. 139-140. Herndon, for one, questions the accuracy of this colorful description. 7 Herndon. Why Little Rock Was Born. p. 3

152. Richards. Story of a River Town. p. 10. , Little Rock, Arkansas Gazette. Oct. 5. 8

t842. 10 II

Ross, Arkansas Gazette. p. 186. Little Rock. Arkansas Gazette Oct. 12.

t842. 14

Ross. Arkansas Gazette p. 186. Ross. Arkansas Gazette p. 186. Little Rock, Arkansas Gazette Aug. 21.

I~

Little Rock, Arkansas Gazette. Aug. 21,

16

Little Rock. Arkansas Gazette. Oct. 12.

17

Benjamin Moores and Ann Moores, his wife v. Lawrence F. Carter. Frederick Thomas, and William Clark, Hemp. (Super. Cl. of Ark. Terr. 1828). Lindsay v. Harrison. 8 Ark. 302. Walker v. Jessup, 43 Ark. 163. Harrison v. Trader and Wife. 27 Ark. 288. Deane v. Moore, 105 Ark. 309: lSI SW

12 13

t844. 1844. 1842.

18 I' :III 21

286. 22

Augustus Garland, "Argument in the United States Supreme Court, on His Application to be Permitted to Practice in Such Court Without Taking the Oath, As Prescribed by Act 01 Congress of July 2.

:l3

Garland, "Argument," p. 5. Garland, "Argument," p. 3-23. Augustus H. Garland. Experience in the Supreme Court of the United Stales, With Some Reflections and Suggestions as to that Tribunal (Wash .. D.C. 1898), p.

1862. and January 24. 1865." 08651. 24

25

p.

4.

20. 26

27

Robert A. Leflar, "Letter," Jan. 10, 1984. J. R. Poisson v. Etienne d'Avril. 244 Ark.

478·A.

Aprit 1985/Arkansas Lawyer/77

Toward the Bicentennial of the U.S. Constitution Introduction by Dr. Robert A. Leflar Bill W. Bristow Vincent W. Foster.

Phillip Carroll Albert M. Witte

Jr. Should negligence liability attach to the reporting by a newspaper of inaccurate information if it fails to publish a retraction within 30 days of the error?

Should prior restraints be used on newspapers where the information published interfers with a person's right to privacy?

Robert P. Cabe G. Ross Smith

Robert M. Cearley.

School board review of educational materials and school course content should it be required to remove indecent, obscene or inappropriate materials?

78/Arkansas Lawyer/April 1985

Jr. J. W. Dickey. Jr. Should there be specific controls on cable television programming that contains sexual or violent content?

u Toward the Bicentennial u I

In the United States, development of the legal concept of freedom of speech and of the press as a basic civil right dates from John Peter Zenger's New York trial for the crime of libel. and his acquittal. in 1735. That was 250 years ago. It is difficult for an informed citizen in 1985, especially if he be a lawyer, to appreciate the tremendous change that has taken place in our law of defamation since that time. Zenger was a political opponent of William Cosby, the governor of New York. Zenger's newspaper, a weekly journal. published articles written by James Alexander, a lawyer, highly critical of Cosby and his administration. Because of this, Zenger was prosecuted for libel. Cosby's new appointee as chief justice, James DeLancey, was the trial judge. Alexander planned the defense, but he apparently was a better writer than speaker, and knew it. His defense plan was primarily jury persuasion, and for this he needed appropriate eloquence. Accordingly, he asked his friend Andrew Hamilton of Philadelphia, reputedly the best trial lawyer in the Colonies, to try the case. Hamilton accepted, and the transcript of his argument constitutes the principal matter that is remembered as representing the beginning of what we now know as First Amendment rights in America. Hamilton began his part in the trial by stating that he did not deny the publication, but that what was published was true, which was his sole defense. The chief justice's response was: "You cannot be admitted, Mr. Hamilton, to give the truth of a Libel in Evidence. A Libel is not to be justified; for it is nevertheless a Libel that it is true." This was in keeping with the old Star Chamber maxim, "The greater the truth the greater the libel." Unpleasant reports were most harmful if they could not be dis-

Free Press and Free Speech: A Developing Concept By Dr. Robert A. Leflar proved. That was still the law in England, and in old New York. No evidence of the truth of Zenger's publications was admitted. The Chief Justice was specific in his instruction to the jury that truth was no defense, and he admonished Hamilton to make no argument concerning "truth" as a defense. The clever advocate thanked the judge politely, yet managed to build his entire jury argument on the importance of free public access to facts (the truth?) in matters affecting government. The jury's verdict. rendered promptly, was "Not Guilty." What happened was that the jury decided for itself. regardless of the judge's instructions, that truth should be a good defense, and that the defense existed in this case despite the lack of admitted evidence. A jury can do that. Critically analyzed, this was but a small beginning for freedom of the press. "Truth," ascertained through jurors' beliefs and prejudices, is an illusory thing. No one can know with certainty what jurors will think is "true." Yet it was a beginning. Hamilton's argument. carefully reported, was copied and reprinted throughout the Colonies. Because it had been successful. it was quoted as though it were the law.

Gradually it became the law, though it was not until the decision in Garrison v, Louisiana. 379 U.S. 64 (1964) that the United States Supreme Court so held explicitly. Blackstone stayed with the Star Chamber view, but St. George Tucker's 1803 American edition of Blackstone's Commentaries essentially agreed with Hamilton. The First Amendment to the new Constitution of the United States was in the meantime adopted. The part of it dealing with free speech and press provides only that "Congress shall make no law ... abridging the freedom of speech, or of the press ... "Obviously. that was a limitation upon federal enactments only; it was commonly said at the time that the states remained free to control speech, and .especially the press, as tbey pleased. The prohibition eventually became applicable to state law also when in the middle 1900s the Supreme Court made it clear that the Fourteenth Amendment, adopted in 1868, made the Editor's Note: Dr. Robert A. Leflar is a distinguished professor and dean emeritus

of

the

University

of

Arkansas School of Law at Fayetteville. He received an LL.B. degree, cum laude, from the University of Arkansas in 1922 and an S.].D. from Harvard Law School in 1932. Dr. Leflar was president of the Arkansas State Constitutional Convention in 1969-70 and 1978-80 and was chairman of the Arkansas Constitutional Revision Study Commission in 1967-68. He is the recipient of the Doctor of Letters (honorary degree) from Joh_, Brown University, the Justice Award of the American Judicature Society and Scribes "Most Meritorious Book" Award for Appel-

late

Judical

Opinions,

among

other awards.

April 1985/Arkansas Lawyern9

Constitution's Bill of Rights basic law for the entire nation. That left it for the Court itself to determine, hy constitutional interpretation in the cases it accepts for review, the real scope of the freedoms. At one stage it seemed that "prior restraint" on protected publications might be all that was prohibited. Near v. Minnesota 283 U.S. 697 (1931). Sanctions after publication might not be precluded. That did not make much sense. Freedom to publish, then to be punished for having published, was not much of a freedom. Ultimately the Supreme Court achieved less obscure, though still not comprehensive, interpretations. In New York Times Co. v. Sullivan. 376 U.S. 254 (1964), it limited the right of a "public figure" (municipal official) to recover for nonmalicious criticism of his conduct. and in Gertz v. Robert Welch, Inc.. 418 U.S. 323 (1974), after redefining the term "public figure," it confined somewhat the scope of libel recovery by plaintiffs who are not public figures. A dozen other cases have described, or at least hinted at. constitutional boundaries on a variety of aspects of libel law . Olhers remain for future analysis. One far-out analysis may now be deemed to have fallen by the wayside. This was the view asserted by Justice Hugo Black, that the Constitution forbids any and all legal interferences with or burdens upon completely free speech and press. "The Constitution means what it says, with no ifs, ands, or buts," he argued. He seemed to believe that the whole law of libel and slander was proscribed. One answer to that argu-

Amendment was adopted. If the word "abridging" were to be given its standard meaning, the Amendment "says" no more than that the existent relevant law should not be diminished or lessened, presumably in the meager protections it then afforded to speakers and publishers. Mr. Justice Black ignored that easy interpretation of the Amendment's words, and the Supreme Court without discussion has rejected it. The limitations established in New York Times and Gertz. for example, go far beyond a mere abridgement of protections afforded by 1791 laws. Those early laws are for all practical purposes deemed irrelevant. The Supreme Court's current approach is to give to the guaranty a meaning that will fit the needs and societal standards of the time - late twentieth century - for which the rules are laid down. It seems farfetched to call this an interpretation of the specific words employed in 1791. and it is. Still, that is the accepted approach to American constitutional interpretation, for clauses which state broad principles inexactly. Were it nol for that approach the 1789 Constitution could not have lasted for nearly two centuries already, plus a future time as yet unknowable. By that same token, the future of First Amendment rights cannot be intelligently predicted, particularly as they relate to the press. The uncertainties inherent in libel suits, especially as huge verdicts are rendered in them, can both discourage publication in advance and, later, terminate publication altogether. The modem

ment comes from a more exact

emergence of newspaper owner-

reading of the First Amendment. as to just "what it says." The wording is that there shall be "no law ... abridging" the named freedoms. To "abridge" is to diminish or lessen an existing status. There was a small body of libel and slander law in existence in America in 1791, when the First

ship chains with their monopolistic tendencies may mix anti-trust law concerns into the free press picture. Jurors may be readier to render big verdicts against big corporate publishers, and such corporations may be primarily concerned with protecting profits. Their interest in free-

SO/Arkansas Lawyer/April 1985

dom of the press may be based more upon its effect on profits than upon concern for the traditional values that the Bill of Rights was designed to protect. Big damage awards may be the only sanction that can influence them. For ordinary parties to defamation claims, however. awards

of money damages will often be less than the ideal legal remedy. Perhaps, at least for some types of cases, either the courts or the legislatures should revive the old Arkansas device of the Lie Bill. (See 6 Ark. Law Review 423). That was a realistic and effective remedy. 0

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* Toward the Bicentennial * On January II, 1985, Frank Simps' was astonished to read the following article in his morning newspaper:

Frank Simps, 38, of 146 Piker Street was arrested Friday and charged with first-degree battery and aggravated robbery in connection with the shooting of a mailman in the 300 block of Piker Thursday afternoon. Simps is the man who approached the mail carrier. Winston Em, 52, about 2 p.m. Thursday and complained about receiving too much junk mail and about receiving a Christmas card in mid-January, about a month after the card had been mailed to him by a neighbor. When Em refused to stop and discuss the complaints, Simps pulled a pearl-handled .22caliber revolver from his waistband and shot Em in the right thigh. Simps then took several Publishers Clearinghouse sweepstakes entry packets from Em's mailbag and lied the scene. Em was taken to Jeckyll Memorial Hospital where he was reported in satisfactory condition Friday. Simps was being held under $50.000 bond Friday night in the city jail. The sweepstakes entry packets have not been recovered.

After his wife had received several phone calls from neighbors and friends indicating worry that Frank was still in jail without bond, an irate Frank Simps called the City Desk to say his only connection with the incident was as a witness. The newspaper editor later called Frank and apologized profusely and the next day the newspaper ran the following article on the same page and in the same print size as the original

story: Correction: In a news article Saturday. the Herald-Cryler incorrectly identified Frank Simps. 38, of 146 Piker Street. as the man who was arrested and charged with

Retraction and Tort Liability In Media Defamation Cases By Bill W. Bristow first-degree battery and aggravated robbery in connection with Thursday's shooting of mailman Winston Em. Actually, the man arrested for the shooting and robbery was Fred Limple, 44, of 138 Piker. a neighbor of Simps. Simps' only connection with the shooting incident was a witness. The Herald-Cryer regrets the error. This article will address itself to two issues. First. what is the effect on an action for defamation if a timely retraction is made? Secondly, if the newspaper had refused to print a retraction. would this refusal constitute an additional tortious action for which a damage remedy will lie? Under present Arkansas law, there appears to be a ready answer as to the effect of a timely retraction on an action for defamation. The Arkansas Supreme Court in a non-media defamation case, Dun & Bradstreet. Inc. v. Robinson' ruled in 1961 as follows: At any rate, of course, even though the second Dun & Bradstreet notice could possibly be considered as a full and fair correction

or

retraction,

same

could only be considered in mitigation of damages. 345 S. W. 2d at 38. It is submitted that the aforesaid rule is a sound one. As discussed in that decision, a person who is charged with a crime will generally deny that he has com-

mitted the crime, but this denial does not vindicate him in the eyes of tbe public. The Arkansas Supreme Court pointed out that if a notice were published to the effect that "it is currently reported John Smith has stolen money from his employer" and a subsequent notice is published that "John Smith denies that he stole money from his employer" that tbere would still be a question of damages. It is thus submitted that the effect of retraction itself should not be a complete and total defense to a defamation action, but the defendant charged with libel may properly defend by showing that a timely and immediate retraction eradicated or seriously reduced any damages. The issue of retraction, however, may bear markedly on the issue of punitive damages. The Eighth Circuit Court of Appeals applying Arkansas law in a diversity action in Luster v. Retail Credit Company' found the defendant's immediate correction of the offending article to mitigate against an award of punitive damages. The Court of Appeals gave the plaintiff a choice between accepting a remittitur of the punitive damages and receiving the compensatory award or alternatively having a new trial on both issues of compensatory damages and punitive damages. The case readily illustrates the effect that an immediate and complete retraction of an error can have on the question of the defendant's good faith and issues of malice, particularly as viewed by an appellate court. Editor's Note:

Bill W. Bristow, of Jonesboro. is a plaintiff's attorney who has represented several clients in defamation cases. Bristow graduated in 1975 cum laude from Harvard University. His senior thesis was designated an honor's paper and placed in the Harvard Law Library. He is a 1972 graduate of Arkansas College. suma cum laude. April 1985/Arkansos Lawyer/S1

Similar considerations as regards

Printing Company'. There, the

can in fact get the issue of the

the effect of a retraction on the issue of a plaintiff's entitlement to

newspaper printed an original ar-

failure to make a retraction before

ticle and the Plaintiff brought suit for libel. The newspaper then reported on the libel suit and commented in the article that the newspaper's answer to the suit had stated that the articles were true and accurate accounts of the proceedings. The lower court held that this second article was not admissible as a republication of the asserted libel on a theory of aggravation of damages. The Supreme Court reversed. stating as follows. viz: If the jury finds that Appellee's initial publications were libelous and not privileged, it might well also find that the subsequent report of the pleadings had another purpose which was to further

the jury, but in one species of cases it would appear to have real

punitive damages are noted in statutes in other states. 4

Thus, in Arkansas the making of a retraction is not a complete

defense but it certainly bears on the issue of damages and retraction may in fact in certain circum-

stances preclude the award of punitive damages, It is submitted that this is in fact a proper rule and is grounded in sound policy notions because to do otherwise would basically be to allow the sloppiest form of initial reporting to be insulated from liability by the simple process of making a retraction when demanded, As noted in Dun & Bradstreet v. Robinson. supra. damage may already have occurred, and the extent of this damage in the face of a retraction should be a question of fact for the jury, It is submitted that this rule in Arkansas is sound and proper and is in accordance

with the general law in other states. The more perplexing question is the effect of the failure to make a retraction when demanded. To use the factual situation set forth abave, what would Frank Simps' remedy have been if the retraction in the example given abave had been arrogantly refused? Stated in different terms, can the refusal to print a retraction be a separate basis of tort liability? It should of course be admissible as to the general pattern of events relative to the publishing defendant's state of mind to show that demand for retraction had been made and that no retraction had been published. Likewise. if there is a demand for a retraction and the newspaper were to print the demand for retraction but then state words to the effect that it stood by its story, this may arguably be a reaffirmation of the libel which would further be relevant to the defendant's good faith. The above inferences can be gleaned from the Arkansas Supreme Court decision in Jones v. Commercial

821Arkansos Lawyer/April 1985

impress its defamations upon

the since

public actual

mind.

However,

malice -

Le.,

knowledge of the falsehood or reckless disregard for the truth - is not required, the jury, even if it finds that the initial publications were unprivileged, could nevertheless find that the subsequent report was published in good fai th as a fair account of the pleadings. of course. the jury might also find that the initial publications were privileged, in which case the subsequent report has no significance. In any event, we

think the Appellee's subsequent report of a pleading should be made available for the jury's consideration. 463 S. W. 2d at 96. Therefore, it can be argued under Arkansas law that actions subsequent to the publication such as a failure to retract or a partial reaffirmation and response to a demand for retraction can be admissible as aggravating circumstances and on the question of the defendant's good faith. However. this is a different proposition from the contention that the failure to do a retraction is a separate tortious event. This may appear at first blush to be an immaterial legal distinction if one

significance.

In a case where an admittedly false article has been written but the media defendant is protected from initial liability by the New York Times v. Sullivan rule that false material must have been published with knowledge that it was false or with reckless disregard as to its falsity. a suit for tortious failure to retract might be the libeled plaintiff's only remedy. Certainly, it would appear that it would be substantially easier to prove a simple failure to

retract after demand was made than that the publication was made with knowledge that it was false or with reckless disregard of its falsity. On the other hand, the creation of this separate tort would be a substantial expansion of liability for the media compared with the present state of defamation law.

It is submitted that this aforesaid expansion of liability is justified by the same policy decisions that led to New York Times and its progeny. Maintaining a balance between the righls of the media and the rights of an individual is an extremely delicate task for courts to wrestle with and has been a source of bafflement to the general public. The reasoning of the New York Times rule was succinctly stated by the Arkansas Supreme Court in Jones v. Commercial Printing Company. supra. as follows: The fear of a costly lawsuit for inaccurately. though honestly reporting

matters

concerning

public officials would certainly discourage the exercise of that degree of freedom which the Constitution guarantees to the press. especially in matters where even good faith investigative

efforts

cannot

assure

absolute accuracy. An added incentive behind this rationale is that public figures normally have access to the various mass

media and can thereby readily correct or refute any defamatory misstatement made about them. Therefore. it is reasoned that a showing of actual malice as a prerequisite to recovery is.

in such instances. a realistic and fair requirement. 463 S. W. 2d at 95. What then about the situation where there has been an inaccurate report about a public official and the publishing defendant refuses a request for retraction? If the rationale of the protective New York Times rule is the fact that a public figure has access to the media so as to correct or refute the defamatory statement. it would appear that the refusal of the media defendant to publish or disseminate the retraction strikes at

the heart of the rationale for the protective rule. The justification for the restrictions on suits by public figures is invalidated by a media defendant's failure to allow that public figure equal access to explain the charges against that person. If the charge is true. truth is now recognized as a complete defense to libel and the media defendant may properly refuse to retract. But if the initial charge is erroneous. although reported honestly and in good faith. does not the publishing defendant have an obligation to give the claimant an opportunity to clear the record with the public? If there is no such duty. the media defendant could brazenly refuse to correct such error all the while insulated from liability by the New York Times protection. It is thus submitted that in balancing the rights of the media and individuals that the creation of tort liability for failure to retract should be a corollary of the New York Times rule. There is another legal rationale for the development of a theory of tort liability for the failure to make a retraction. It seems fair that every party should have a duty to correct hazards created by that party's actions. If a media defendant by its erroneous newspaper

article has created damage to a party's reputation. should that publisher not have the duty to at least attempt to correct the hazard created by that publisher's actions? The aforesaid argument is indeed on the fringe of the law. It perhaps can be called a separate tort of outrageous conduct or intentional infliction of emotional distress based on a theory of creating a duty to retract. An old axiom is to the effect that where there is a wrong. the law should create a remedy. Indeed, there is much to be said that the New York Times rule has given the media wide protection. The threat of costly lawsuits and extensive litigation has been found to justify this protection that allows many such claims to be handled on summary judgment. Yet, in the narrow instance

in which a media defendant would arrogantly refuse to make a retraction of an erroneous report.

should that plaintiff not have the

opportunity to have a remedy for that defendant's failure to allow the plaintiff's version of the event to be placed before the public? In summary, it is argued that the creation of a "duty to retract." with concomitant tort liability is within the spirit of the rationale of the New York Times rule and is justified by sound policy considerations. There is no Arkansas case supporting such a tort remedy. but it is argued that policy considerations would support such a holding in a proper fact situation. 0 FOOTNOTES I

This entire incident is fictional

but has been used to frame the legal discussion against a realistic fact situation.

'233 Ark. 168.345 S.W. 2d 34 (1960. , 575 F. 2d 609 (8th Cir. 1978). â&#x20AC;˘ 50 Am Jur 2d. Libel & Slander, at P.689-690. , 249 Ark. 952, 463 S. W. 2d 92 (1971). â&#x20AC;˘ 376 U.S. 254. 84 S.Ct. 710. 11 L. Ed. 2d 686 (1964).

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* Toward the Bicentennial * "Judge in Libel Suit, Acting on Lack of Published Retraction. Says 'Other' Steps May Follow." Thus read the headline in a story in the August 4, 1978 edition of The New York Times concerning fines assessed against two reporters for

failing to retract previous articles. The earlier articles had reported assertions by friends and relatives of a convicted Georgian that police authorities had fabricated a videotape showing the accused confessing. At a hearing subsequent to the publication of the articles, the convicted person confirmed the veracity of the confession. After the reporters failed to retract the articles in response to an order by the judge in a libel action, the Court fined them, set a new deadline for the retractions, and indicated "other measures" besides fines might be used if no retraction appeared.

Who was this judge? Soviet Court Chairman Lev Y. Almazov of the Moscow City Court. Should American jurisprudence adopt the Soviet system of assessing fines and "other measures" for

a refusal to retract? What about the proposition that an independent tort liability should attach to the refusal to publish a retraction of inaccurate defamation?

The practical difficulties presented by this proposition, together with serious First Amendment questions concerning its constitutionality, weigh against the adoption of such a new cause of action. Every responsible news-

paper

publisher

will

print

a

retraction to correct an uninten-

No Independent Liability For refusal To retract By Vincent W. Foster, jr. upon discovery. The difficulty with the proposal arises in the harder cases where the truth is not clear-cut or easily verified. Take, for example, the publication of defamatory quotes from a technical analysis which a newspaper printed in reliance upon the reputation of the author. Assume that the newspaper cannot be held liable for the original publication either because of a qualified privilege of neutral reporting' or because reliance upon the re-

port will not be found to have been negligent. Should the newspaper nevertheless be held independently liable for failing to print a retraction of the error if the newspaper is not qualified or has insufficient information to resolve

the facts in dispute?

wire services. Few newspapers

have the staff or financial ability to verify independently the truth of a wire article about a distant

occurrence, and would be unable to determine whether a demand for retraction was meritorious or not.

tional defamation learned to be in-

Another example: Alter an in vestigation. a government agency

ics to correct significant errors

84/Arkansas Lawyer/April t985

a prompt retraction. The publisher is now upon the horns of a dilemma. The conclusion is clearly defamatory, but its truth is at present uncertain. The printing of retraction would be an admission of error which the publisher has not yet concluded was made, but if he fails to print a retraction, under the proposed new cause of action he would be exposed to liability for refusal to retract even though the original publication is not actionable. The publisher is also in a quandary where the original publication does not clearly identify the subject of a defamatory statement. A few years ago, a statewide newspaper in Arkansas published an article about a pending federal investigation of "blockbusting:' the attempt, for profit. to induce a person to sell a dwelling by representations regarding the e'ntry into the neighborhood of persons of a different race or religion. The article did not accuse any particular indi-

viduals. The story was accompanied by a photograph showing "For Sale" signs from various

Most newspapers. particularly

small local publishers, rely heavilyon articles originated by the

accurate. I Faced with the situation described as an example in

the accompanying article by the proponent of this new liability, the publisher would readily print the retraction once he learned of the misidentification of the person arrested. The publication of a retraction not only may limit the liability or reduce the damages for the original publication, it is also a matter of basic journalistic eth-

ment report.' The contractor denies the accusation and demands

issues a finding that a private contractor has engaged in bid rigging. Your local newspaper publishes excerpts from the report. including the conclusion. Although one who republishes a libel is independently liable as if he had originally published it.' here the newspaper is immune

from liability because of the qualified privilege to accurately and fairly publish or abridge a govern-

Editor's Note: Vincent W. Foster, Ir" a member of the Rose Law Firm in Little Rock, regularly represents several newspapers in the WEHCO Media, Inc., chain, including the

Texarkana Gazette, EI Dorado News-Times, Camden News and Magnolia Banner News. He attended Vanderbilt University and the University of Arkansas, where he received a I.D. degree in 1971 with high honors. He was managing editor of the Arkansas Law Review in 1970 and a member of Omicron Delta Kappa honorary leadership fraternity. Foster is a former president of the Pulaski County Bar Association and a former delegate in the Arkansas Bar Association's House of Delegates.

real estate firms in several front lawns in a row. The name of an individual real estate agent could be read on the sign in the foreground. The agent contended that this amounted to an accusation that she was engaged in blockbusting. The author of the article did not intend to refer to this agent. but the legal test for liability is whether the article could be reasonably understood to refer to the agent.' How should the newspaper respond to a demand for a retraction? If the publisher prints a retraction stating that it was not intending to accuse the agent, then the publisher has as much as admitted that the article reasonably could be read to refer to the agent, thus increasing the risk of liability for the original publication. If the newspaper does not publish a retraction, however, and a jury later finds that the article did defame the agent, under the proposed new cause of action the publisher would be independently liable for the failure to retract. even though he may have other defenses against a libel claim for the original publication. The same dilemma arises when the article is not clearly defamatory. The subject of an article may read into it a defamatory meaning which was not intended. Under the law the meaning of the statement is that which the reader correctly, or mistakenly but reasonably, understands that it was intended to express, taking into account the entire article.' If the newspaper prints a retraction disclaiming the meaning ascribed to the article by the subject. a strong argument can be made that the publisher has admitted that the article reasonably may be read to express that meaning. This proposed independent liability for refusal to retract was argued last summer in Kaplan v, Newsweek Magazine Inc.. 10 Media L. Rptr. 2142 (U.S.D.C., N.D. Cal. July 31, 1984). An article in Newsweek on Campus characterized Professor John Kaplan's

criminal law courses as "the easiest five credits a Stanford student can earn. Attendance: unnecessary." Professor Kaplan sued for one count of libel and for a second count of intentional infliction of emotional distress for the magazine's failure to discharge its "duty to retract." The Court found that the article was not reasonably susceptible of a defamatory interpretation and dismissed the first cause of action. In also dismissing the second cause of action, the Court held that Professor Kaplan could not bootstrap another theory of liability onto his libel claim to tum one action for damages into two separate causes of action, citing the Uniform Single Publications Act.' The Single Publications Rule, which is considered the common law of many states, provides that anyone edition is considered a single publication, and a person shall not have more than one cause of action for damages for libel or any other tort founded upon any single publication, regardless of the number of times it is exposed to different people.' The proposed cause of action also raises serious constitutional questions. It presents the other side of the chilling effect of a prior restraint upon publication. Rather than restraining publication, the proposed cause of action may tend to intimidate a publisher into making a publication he would not otherwise have made. By the threat of independent liability for refusal to retract. the publisher may be compelled to publish a retraction whether or not be believes the original article is accurate or not, especially where the article would require expensive investigation to substantiate or would be troublesome to prove at trial. Thus, a primary objection to compulsory retraction is that "such a heavy burden of investigation is placed on the publisher, if he is to dispute his obligation to retract without risking liability, he will be deterred from making the original publication or co-

erced into making undeserved retractions. ", Does the First Amendment guarantee the freedom not to publish? In Miami Herald Publishing Co. v. Tornillo." the U.S. Supreme Court unanimously struck down as unconstitutional a Florida statute granting a political candidate a right to equal space to reply to criticism by a newspaper. The Court ruled that a requirement constituting a compulsion upon a newspaper to print that which it would not otherwise print is an unconstitutional infringement upon the First Amendment guarantee of a free press. The Supreme Court reviewed earlier cases from which it recognized that a compulsion to publish is as serious an infringement as a restraint from publishing. The Court also expressed grave concern that the threat of compulsory publication may result in self-censorship to avoid controversy.ll just as it had feared in New York Times v. Sullivan" that the risk of large damages in a libel suit could result in reluctance to publish articles on important issues involving public officials. Justice Brennan, in a concurring opinion joined by Justice Rehnquist. reserved consideration of the constitutionality of "retraction statutes" which would provide plaintiffs an action to require publication of retraction upon proof of a defamatory falsehood." a cousin of the legendary "lie bill" of North Arkansas Dr. Lenar has described." But the broad language of the Tornillo decision appears to be a condemnation against compulsory publication generally, which casts considerable doubt on whether the proposed independent liability for failure to retract could pass constitutional muster. The proposed liability is particularly offensive when applied to publications concerning public officials and public figures protected by New York Times vs. Sullivan and its progeny. This line of authority prohibits a public official or a public figure from reApril 1985/Arkansas Lawyer/8S

covering damages for a defamatory falsehood unless published with "aclual malice" -

knowl-

edge of falsity or in reckless disregard of whether it is true or false. A finding of recklessness requires "sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. "l~ These constitutional restrictions upon libel actions would seem also to prohibit secondary liability for

edies. Aside from retraction. there generally exists the opportunity for reply. While the first Amendment would likely not permit a governmentally enforced guarantee of access to the media, as a practical matter most newspapers

of independent liability, to publish a retraction upon demand. Rather than propose a second wave of liability for a single publication, the legislature should instead consider the adoption of a statute that requires as a prerequisite for a libel action a timely demand for retraction and failure to retract. Twenty-three states have enacted similar or related

immune publication unless the plaintiff can prove by clear and convincing evidence, that based

stand ready to publish the reply of a defamed subject either in a follow up article or by a letter to the editor from the subject or his supporter. In fact. Professor Kaplan availed himself of this opportunity in a later edition of Newsweek, It is. in part. the recognition of this ability of public individuals to obtain access to the media that influenced the Su-

upon new information, the pub-

preme Court to set them apart

tion of a retraction. These statutes

lisher now knows the original article was false or now entertains serious doubts as to its truth." It should not be assumed. however, that the subject of an article who unsuccessfully demands a retraction has exhausted all rem-

from private individuals in establishing standards for libel actions." This ability of public individuals to gain access to the media for a reply need not be extended to establish a right to require a publisher, under penalty

are based. in part. upon the belief that a voluntary retraction will compensate the defamation victim far better than an award of money damages." The proponents of these statutes have no sympathy with gold brickers who

failure to print a retraction of an

statutes. 17 Some make a retrac-

tion demand a condition precedent to the filing of a defamation action, while others restrict recovery to special damages or at least disallow punative damages, where there has been the publica-

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seize upon a good laith publishing error as an opportunity to seek a jury award 01 general and punative damages. As the Supreme Court has stated: "The first remedy 01 any victim 01 delamation is sell-help - using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation. "19

Requiring a porty to attempt to mitigate his damages by promptly calling an error to the attention 01 the newspaper and giving it an opportunity to correct the error voluntarily. is more consistent with American jurisprudence than is imposing fines. independent liability or "other measures" on a publisher lor lailing to publish a retraction upon demand.

see Lellar. "The Single Publication Rule." 25 Rocky Mt. L. Rev.. 263 (1953); see also Restatement (Second) of Torts §577A, • "Vindication 01 the Reputation 01 a Public Official." 80 Harv. L. Rev. 1730. 1742-3 (1967). " 418 U.S. 241 (1974) " 418 U.S. at 257. " 376 U.S. 254 (1964). " Justice Brennan first suggested the consideration of right to reply statutes or retraction statutes as alternatives lor damages for all delamed persons. public and private alike. in Rosenbloom v. Metromedia. Inc.. 403 U.S. 29. 47 (1971). " Lellar. "Legal Remedies for Defamation," 6 Ark. L. Rev. 423 (1952). See a discussion 01 Tornillo on the concept 01 mandatory retraction in "Reply and Retraction in Actions Against the Press lor Delamation: The Effect 01 Tornillo and Gertz." 43

Fordham L. Rev. 223 (1974). "St. Amant v. Thompson. 390 U.S. 727. 731 (1968);. see also. Gallman v. Carnes. 254 Ark. 987, 497 S.W.2d 47 (1973). .. Gertz v. Robert Welch. Inc.. 418 U.S, 323. 344 (1974). "Steigleman. The Newspaperman and the Law. 319 (1971), See also Annot.. "Validity. Construction and Application 01 Statute Limiting Damages Recoverable lor Defamation." 13 A.L.R. 2d 277. 289. §6 (1950). and Annot.. "Libel and Slander: Who is Protected by Statute Restricting Recovery Unless Retraction is Demanded." 84 A.L.R. 3d 1249 (1978). .. See. e.g.. Warner v. Southern California Associated Newspapers. 35 Cal. 2d.. 121. 216 P.2d 825 (1950). app. dism·d. 340 U.S. 910. 71 S. Ct. 290 (l95!). .. Gertz v. Robert Welch. Inc.. supra.. 418 U.S. at 344.

FOOTNOTES 'Steigleman. The Newspaperman and the Law. 322, 330 (1971); Morris. "Inadvertent Newspaper Libel and Retraction." 32 Ill. L. Rev. 36 (1937). 'This new principle provides a privilege lor the accurate and disinterested reporting 01 charges against a public figure by a responsible and prominent organization. whether or not the publisher has serious doubts 01 the truth 01 the charges. See. e.q.. Edwards v. National Audubon Society. Inc.. 556 F. 2d 113 (2d Cir. 1977). cert. den.. 434 U.S. 1002 (1977). 'Restatement (Second) of Torts §578. • See e.q.. Brandon v. Gazette Publishing Co.. 234 Ark. 332. 352 S. W.2d (1961); see Restatement (Second) of Torts §611. • Thiel v. Dove. 229 Ark. 601. 317 S.W.2d 121 (1958); Restatement (Second) of Torts §564 (1977). • Restatement (Second) of Torts §S63 (1977); see. e.g.. Pigg v. Ashley County Newspaper. Inc.. 253 Ark. 756. 489 S. W.2d 17 (1973), 'Calilornia Civil Code §§3425.13425.5. The Uniform Single Publication Act has been adopted by six other states. o For an excellent discussion 01 the rule and the Uniform Act.

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The Tax Reform Act of 1984 Effects on Real Estate Transactions

By Michael O. Parker On June 27. 1984, Congress passed the Tax Reform Act of 1984 (the "Act") as part of a larger body of legislation designated the Deficit Reduction Act of 1984. It is clear that a primary theme of the Act is to narrow the beneficial tax

rules previously contained in Internal Revenue Code ยง483 and applicable regulations. Under these rules, most real estate purchased on an installment basis over a period in excess of six months needed to carry a mini-

treatment given many real estate

mum "safe harhor" interest rate

transactions, and reduce the attractiveness of real estate as a tax advantaged investment. However. not all of the changes affecting real estate transactions are unfavorable. The reduction in the capital gains holding period from a year to six months and the changes in the tax treatment of property divisions on divorce are two examples of helpful revisions. However. these provisions do not relate primarily to real estate as an investment. The change in the capital gains holding period is more beneficial to securities transactions than real estate, while the tax treatment of property divisions on divorce (which will be discussed in an upcoming issue of The Arkansas Lawyer) does not directly involve investment decisions. This article will address the provisions of the Act which come into play at the various stages of com-

(usually nine percent') in order to avoid having interest imputed. or assumed by the Internal Revenue

mon real estate transactions: pro-

visions affecting acquisition and

holding; construction and rehabilitation; rental and leasing; and disposition of realty.' Provisions Affecting Acquisition and Holding of Real Estate Deferred Payment Transactions. Most business clients are familiar with the imputed interest

Service to be present. at a one per-

cent higher rate. Congress was concerned that this minimum interest rate was too low and did not react to market changes and that the timing of interest deductions taken by purchasers did not correspond to interest income recognized by sellers, due to differences in the taxpayers' accounting methods. Therefore. Congress developed new sets of rules which will relate the safe harbor and imputation rates to an "Applicable Federal Rate'" and will require matching of expense and income treatment between taxpayers in many instances. The Applicable Federal Rate will be determined by the Treasury at six month intervals for short term, mid-term and long term obligations.' A recent article in The Arkansas Lawyer discussed how the Applicable Federal Rate applies to loans between related taxpayers.~ Certain loans must carry interest at 100"10 of the Applicable Federal Rate in order to avoid gift or compensation treatment. The rule is somewhat different with respect to sales trans-

change for property, the installment obligation must bear interest at 110"10 of the Applicable Federal Rate to avoid unstated interest treatment.' If the interest being charged is less than 110"10 of the Applicable Rate. unstated interest will be present and interest will be imputed at 120"10 of the Applicable Federal Rate.' Congress carved out a few exceptions to the new rule when the Act was passed, and then passed additional legislation which tinkered with the concept further. First. the Act continues the 7% maximum imputed interest rate for land transactions between related individuals involving $500,000 or less.' Second. in the case of sale of a farm for less than $1.000.000. the safe harbor and imputed interest rates under prior law continue to apply.' Third, in the case of a sale of a principle residence. the rates under prior law continue to apply to the extent the purchase price does not exceed $250,000." Where the purchase price exceeds $250,000, a combination of old and new rates applies. After the Act was passed. the new deferred payment rules received a tremendous amount of criticism. and their future is now subject to some doubt. Late in the Congressional session an interim Editor's Note: Michaela. Parker is a partner in the Davidson. Horne. Hollingsworth Law Firm in Little Rock. He is a graduate of Vanderbilt University in Nashville. Tennessee IBA-Economics. 197J) and a 1973 honors graduate of the University of Arkansas School of Law in Fayetteville. where he served on the Board of Editors of the Arkansas Law Review. He presently serves as vice-chair of the Section of Taxation of the Arkansas Bar Association and on the Southeast Regional Internal Revenue Service-Bar Association Liaison Committee. This artlcJe is one of a continuing series by members of the Section of Taxation in its effort to keep the membership informed and up to date on important developments in tax law.

April 19a5/Arkansas Lawyer/a9

"transitional rule" was passed (P.L. 98-612)" which altered and partially suspended the use of the Applicable Federal Rate to determine if unstated interest is present on a temporary basis. Until July I. 1985. the 9"10 safe harbar. and 10% imputation rates will still apply for transactions where the borrowed amount is $2.000,000 or less. Where more than $2.000,000 is involved. a combination of the two concepts is used. 12 Assumptions of Debt. It is important to keep in mind that the new deferred payment rules apply to assumptions of existing debt as well as new borrowings. The actual mechanics ot application will be clarified by regulation. However, P.L. 98-612 contained another change which made this provision inapplicable to debt obligations issued before October 15, 1984. on a permanent rather than interim basis. I:! ACRS Recovery Period. The accelerated cost recovery system ("ACRS") was added in 1981 as an important part of Economic Recovery Tax Acl. Under ACRS, most real property placed in service after 1980 could be depreciated over a period as short as fifteen years. The Act increases the recovery period for commercial and residential real property. with the exception of low income housing. to eighteen years." The longer recovery period is also applicable to additions to an existing structure. even if the existing structure qualified for fifteen year ACRS depreciation. Other minor changes in calculating the amount of the annual deduction under ACRS were also made. to be implemented by Treasury regulation.

was allowed with respect to any costs or losses associated with the demolition of a certified historic structure. All such costs and losses had to be added to the taxpayer's basis in the underlying land and could not be expensed, depreciated or amortized. The Act eliminates any deduction for costs or losses associated. with demolition of any structure and applies the old rule for certified historic structures to the demolition of any structure, whether certified historic or nol." Therefore. in the future. taxpayers will not be able to allocate a portion of their purchase price of property to a building and later deduct their basis in the building when it is demolished. Removal of Architectural Barriers. For a period of time prior to

1983. a special deduction of up to $25,000 was allowed for expenses incurred during a taxable year in removing architectural barriers to the handicapped or elderly. This provision was rather narrow in

scope because it could not be claimed in connection with a general renovation of abuilding.

Further. it only applied to removal of certain specific types of barriers set out in the regulations. The Act reenacted this provision and increased the deduction to $35.000 per year for expenses incurred during 1984 and 1985." However. the previous limitations on the scope of the provision will continue to apply. Construction Interest and Taxes. There has been a general rule that interest and taxes incurred while a project is under construction cannot be deducted as expenses. Instead. these expenses must be capitalized and amortized over a ten year period. 17 However. this rule does not apply to construction of low income housing. and other projects which the Congress classified as not suited for profit making activity. In the past, another exception has allowed interest and

taxes incurred by corporations (but not individuals or partnerships) in connection with the construction of residential property to be deducted. These rules appear to have come /rom an attempt by the Congress to bal-

Provisions Affecting Construction

and Rehabilita1ion Demolition Deductions Disallowed. Under prior law. there was a general rule that costs and other losses incurred in connection with the demolition of a building qualified as losses and could be deducted when incurred. However, there was a general excep-

tion to the rule that such costs and losses could not be deducted and must be added to the basis in the land, if the land and building were purchased with the intent to demolish the building. fn addition. pior to 1984, no deduction SO/Arkansas Lawyer/April 1985

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ance a concern for construction of adequate housing during the 1970's, with a concern that large construction period deductions not be available to tax shelter partnerships or individuals under most circumstances. In any event. the Act eliminates the exception which allowed deduction of interest and taxes incurred by corporations during the construction period of residential real estate. 18 However, the exception for low income housing and other "not for profit" activities continues to be available for all taxpayers. Rehabilitation Expenditures for Low Income Housing. Prior to January 1, 1984, a taxpayer could elect to amortize up to $20,000 of rehabilitation expenditures per unit of low income housing over a sixty month period. Individual apartments qualified as units under this rule. Congress extended this rule for three years through December 31. 1986." This reflects the continued concern by Congress for the rehabilitation of low income housing and use of the tax laws to divert private sector monies to projects of this type. The amount which may be amortized is also increased to $40.000 per dwelling unit if the project is certified by HUD or some other government subdivision and certain other criteria are met. New Rule For Rehabilitation Tax Credit. Under current law. the government will pay 15% to 25% of the costs of rehabilitating buildings for business or other nonresidential purposes. through tax credits. This is a valuable tax benefit which has been used in the rehabilitation of downtown business districts and other properties in Arkansas. One of the criteria for claiming the credit has been that 75% or more of the existing external walls of the building must be retained.'" This apparently created problems for some projects where the external walls were not load bearing walls and were irregularly shaped. The Act provides an alternate test which will allow other factors to be considered under certain circumstances. Under the new text. the credit will be available if: 50% of the existing external walls are retained as external walls; 75% of the existing external walls are re-

tained as either external walls or internal walls; and at least 75% of the internal structural framework is retained. 21 Provisions Effecting Rental and Leasing Accounting For Variable Payment Leases. The differences in tax treatment between accrual and cash basis taxpayers have provided a number of tax planning opportunities over the years. One of these has been in the leasing arena. A cash basis lessor is only required to recognize lease payments as income when the payment is actually received. even if the lease provides for unreasonably low payments in the early periods and unreasonably high payments in the later periods of the lease. On the other hand, an accrual basis lessee deducts rent when the obligation becomes fixed. even though the actual cash payment is deferred under the lease. Further. if a cash basis lessor sold property on which a large amount of rent had accrued was not yet due. this could make the property more valuable to the buyer and allow the seller to convert ordinary income into capital gain. The Congress used the "complexification" approach to address this problem in instances where the total aggregate consideration under a lease exceeds $250.000 and any of the payments either vary in amount or are deferred more than one calendar year. n The new rules will not apply where rent variations are due to common commercial reasons. Examples are variations determined with reference to price indices; rents based on a percentage of lessee receipts; reasonable rent holidays; and changes in amounts paid to unrelated third parties for such things as utilities and maintenance. However, where variations exist for other reasons, the actual payment and receipt of rent and the accounting method used by the taxpayer will be largely irrelevant. Under the Act. the lessor must include two items in income each year regardless of actual receipt: accrued rent and interest on rent previously accrued which remains unpaid. The amount of accrued rent each year will be the amount allocated to the taxable

year under the agreement between the lessor and lessee, plus the present value of a portion of certain types of consideration to be paid later. Where the agreement is silent on the allocation of payments. rents will be spread equally over the term of the lease. Rents will also be spread equally over the term of the lease where the agreement is part of a sale and lease back transaction. or is a long term lease which has tax avoidance as a principal purpose. The criteria for determining when a transaction has tax avoidance as a principal purpose is largely left to the Internal Revenue Service and will, no doubt. provide fertile ground for controversy. Interest on rent which has previously accrued but which remains unpaid will also be required to be taken into income by the lessor annually. Interest is at 110"10 of the Applicable Federal Rate compounded semi-annually. This does not mean that additional amounts not provided for in the lease must actually be paid as interest. However. it is presently unclear whether this provision will merely affect the timing for tax purposes of payments actually made. or will instead result in a total income to the lessor and total deductions to the lessee in excess of the total rental amounts provided. It is hoped this concern will be clarified and eliminated by regulation. Further, the effect of this new provision on leasepurchase arrangements needs to be clarified. Exempt Entity Leasing. Another innovative tax planning opportunity has been the purchase. renovation and lease back of public property by private investors. A recent attempt to use this technique which received wide attention in Arkansas was the proposed plan to renovate the Old Main Building at the University of Arkansas at Fayetteville. Under prior law, a private investor could purchase a public building and write off the purchase price over fifteen years under ACRS; renovate the building with the government paying 15%, 20% or 25% of the renovation costs pursuant to tax credits; and take advantage of other planning opportunities which were available to reduce the economic cost of the project. April 1985/Arkansas Lawyer/9l

The Act reduces or eliminates these benefits under most circum-

stances. 23 The

new limitations will apply under several circumstances. including where a purchase and lease back are involved; the tax exempt entity uses the property under a lease with a term in excess twenty years; or the tax exempt entity uses the property under a lease that contains a fixed or determinable price purchase option. If any of these circumstances are pres-

ent, the tax benefits previously available will be removed, no rehabilitation credit will be allowed and the property must be depreciated over the greater of forty years or 125% of the lease term. Some planning opportunities will still be present where a governmental entity is interested in leasing or acquiring facilities it has not used previously and where the versatile nature of the building will allow the owner to be reasonably protected even if the building is leased for a period of less than twenty years without a purchase option. However, such

restrictions will substantially limit the rehabilitation of existing government buildings by private investors. Provisions Affecting Disposition

of Realty The changes in the law with respect to the disposition of realty appear to have importance to many more taxpayers than the construction and rehabili lotion or leasing provisions. The two changes associated with business transactions

are

very

onerous,

and a change associated with gifts or bargain sales to charities will cause additional expense and compliance headaches. The one beneficial change is with respect to property settlements on divorce, which will be discussed in an upcoming issue of The Arkansas Lawyer. Depreciation Recapture on In-

stallment Sales. One of the more costly provisions of the Act deals with a new rule on the recapture of depreciation. When a taxpayer sells property which has been depreciated at a gain, some of this

gain may be treated as ordinary income under rules governing the recapture of depreciation. With respect to real property, several rules apply which will classify 92/Arkansas Lawyer/April 1985

from none to all of the depreciation taken as subject to recapture at ordinary income rates, depending on the type of real estate involved and the type of depreciation method which has been used. Under prior law. when property was sold on an installment basis, recapture was recognized as payments were made over the years of the installment sale. Under this approach, cash was generally available to pay any taxes resulting from the transaction, over time. Under the Act. all taxes resulting from the recapture of depreciation at ordinary income rates will be due in the year the transaction occurs, even if the transaction qualifies as an installment sale. 24 Any gain in excess of the recapture income will continue to be recognized under the installment method. This change will have a substantial impact on the structure of installment sales. It will be very important to obtain a cash down

payment sufficient to cover the taxes which will be due in the first year of the transaction unless the taxpayer is willing to be out of pocket for taxes. Like Kind Exchanges. It is generally recognized that a taxpayer can avoid tax on the disposition of property if he receives like kind property in exchange in the transaction. Under prior law, there was no specific requirement that any exchange be completed when a subject property was transferred or within any set period thereafter. As a result, various types of escrow arrangements and trusts were used to allow the taxpayer to direct the reinvestment of sale proceeds and then receive the newly acquired property as part of the exchange transaction. Congress classified this as "too good to be true." The Act provides that any property received by the taxpayer more than 180 days after the date on which the taxpayer transfers property. or the due date of the transferor's tax return (whichever

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occurs earlier) will not qualify as like kind of property.~ In addition, the property to be received must be designated by the taxpayer within 45 days of the date the transferred property is relinquished. This designation requirement may be satisfied if the contract between the parties specifies a limited number of properties which may be transferred. with the particular property to be determined by contingencies beyond the control of both parties. Regulations will be important to develop the Treasury position on contingencies which qualify for this purpose. Appraisals For Gifts of Property. During 1983, a group of museum curators. art dealers and other experts who make up the special IRS Arts Advisory Panel examined taxpayers' evaluations of 223 donated works of art and found that more than half required adjustment. These works were over valued by an average of 671%.s Studies such as this provided the impetus for a new provision in the Act which will require written appraisals of charitable contributions of property in many

instances. The Act requires that the Treasury issue regulations which will require any individuaL closely held corporation, or personal service corporation claiming a charitable deduction for property to obtain a qualified appraisal of the property contributed, attach a summary of the appraisal to the return on which a deduction is first claimed for such contribution, and include certain other information prescribed by regulation.'" This rule will apply if the charitable gift or gifts exceeds $5000 in the aggregate. Regulations will also require that the appraiser be independent of both the donor and donee and that the appraiser's fee not be based on a percentage of the appraised value of the property. The appraiser can be assessed a penalty of up to $1000 for aiding or assisting in the preparation or presentation of an appraisal resulting in an understatement of tax liability and can also be barred from offering evidence before the Internal Revenue Service. Further, if the value of the gift claimed on the return is 50"10 or more greater than the actual

value as determined by a court or settlement agreement. the taxpayer is required to pay a penalty equal to 30"10 of the understatement of tax. There is very limited authority to the Treasury to waive this penalty. This article provides an overview of the impact of the Act on many types of common real estate transactions and also illustrates the present Congressional focus on the tax treatment and planning opportunities afforded real estate transactions. Congress will continue to address the issue of broadening the tax base and true tax reform in 1985 with a seriousness not seen in recent memory. Proposals which are presently being considered range from the elimination of interest deductions and beneficial capital gains tax rates to a modified flat tax and other more innovative proposals. Both the discussion and adoption of such changes can be expected to have substantial impact on the real estate market and will effect both property values and the structure of transactions in the future. A review of the Tax Reform Act of 1984 illustrates how the com-

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plexity of our present tax structure contributes to this mood for re0 form. FOOTNOTES

There are other provisions in the Act which affect real estate transactions. but where the focus is on the nature of the parties to the transaction rather than on whether realty is involved. Examples are transactions involving foreign persons. the dissolution and liquidation and swapping of interests in partnerships and similar types of transactions. , Reg. §1.483-1 (d) (I) (ii) (C). , Act §4I(a); Code §1274. • Id. , Westbrook. "Congress Changes The Rules For LowMarket Loans." 19 Arkansas Lawyer Vol. I, p. 41 (1985). • Act §41 (a); Code §1274 (c) (3). , Act §41 (a); Code §1274 (b) (2). • Act §41 (b); Code §483 (I). , Act §41 (a); Code §1274 (c) (4) (A). " Act §41 (a); Code §1274 (c) (4) (C). " CCH. Standard Federal Tax Reporter. '16722 (1984). " PI.. 98-612. §2. " Id. " Act §1lI; Code §168. " Act §1063; Code §280B. " Act §1062; Code §190(d). " Code 189. " Act §93; Code §189(d). " Act §1064; Code §167 (K). .. Code §48 (g) (I) (A) (iii). " Act §1043; Code §48 (g). " Act §92; Code §467. " Act §31; Code §§48.168. " Act §112; Code §453(il. ~ Act §77; Code §1031. '" Matthew Bender. Analysis of the Tax Reform Act of 1984 ~124 (1984). " Act §155 (a); Code §§605OL. 6659. 6660.

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BULLETIN IOLTA UPDATE By Norwood Phillips In the past several years, a number of states have considered and adopted an 10LTA (Interest on Lawyers' Trust Accounts) program, at the urging of state and local bar groups and bar-related organizations. On September 17, 1984, the Arkansas Supreme Court unanimously approved the repetition of the Arkansas Bar Association to establish a voluntary 10LTA program. In approving the concept of 10LTA, the Court reversed its prior decision by holding that client consent is not an element of the 10LTA program. However, the client must be informed of the program. At the present time, there are 10LTA programs in 29 states. The interest income received. has ranged froni a low of $1,500 in Idaho (implementation date of January L 1984) to a high of $4,900,000 in California (implementation date of March L 1983). It is readily apparent that even though the results have been uneven due to such factors as population and implementation dates, the potential for generating funds for public needs and projects is present. The Internal Revenue Service, in Revenue Ruling No. 81-209, has determined that interest income earned路 on lawyers' trust accounts under the Florida 10LTA program will not be taxable income to the clients. The key to the determination by the Internal Revenue Service is that the client cannot control by consent or veto whether his or her nominal or short-term funds may be placed by the

Editor's Note: Norwood Phillips, of El Dorado, is a member of the Shackleford, Shackleford & Phillips, P.A. law firm. He is chair of the Interest on Lawyers' Trust Account ([aLTA) Education and Recruitment Subcommittee. 96/Arkansas Lawyer/April 1985

attorney in an 10LTA account. If client consent were required, then under the long standing doctrine of "assignment of income," the client would be taxed on the income. Further requirements are that the organizations receiving the 10LTA income must be tax exempt under Section 501(c) (3) of the Internal Revenue Code, and such must be used for approved, charitable and public service purposes which must comport with the applicable trade deregulations and revenue rulings.

The Supreme Court, in its decision approving 10LTA, established ten guidelines as follows: I. Interest be made available under the program only on a voluntary basis. 2. No earnings from the funds may be made available to the attorneys or firms.

3. Clients may specify that their

funds are to be deposited in interest-bearing accounts for their benefit as long as these funds are neither nominal in amount nor to be held for a short period of time. 4. Although client consent is not an element. attorneys and law firms participating in the program must inform their clients of their participation by sending to each client a notice in the form prescribed by the Supreme Court. 5. Clients' funds which are nominal in amount or to be held for a short period of time by attorneys and law firms not participating in the 10LTA program must be retained in noninterest-bearing, demand accounts. 6. An Arkansas nonprofit corpo-

ration must be founded to receive the interest earnings.

The Board of Directors shall be comprised of the chief justice and two associate justices,

five members of the lay public appointed by the governor (of whom three shall be repre-

sentatives of low income persons), three lawyers appointed by the president of the Arkansas Bar Association, and the president of the Arkansas Bar Association. With the exception of the members of the Supreme Court and the president of the Association, terms of the directors are to be on a staggered basis. 7. The nonprofit corporation is required to obtain IRS certificates of exemption from income taxes as necessary to

insure that no participating lawyer or any affected client would be charged with or taxed upon any interest paid on funds in a trust account used in participation with the program. The corporation is charged with the duty of allocating net income as follows: 8. The individual lawyer should notify his bank of intention to participate in the program in writing. Tbe bank then should transmit interest earnings directly to the corporation, making period reports of earnings and disbursements to the lawyer. The bank is permitted to make reasonable charges for such services against the interest earnings of the respective accounts.

9. The determination of whether

a client's funds are nominal in amount or to be held for a short period of time rests in the sound judgment of each lawyer or law firm. 10. The Court reserved the prerogative of imposing additional guidelines as to what constitutes funds "held for a short period. of time" or "nominal in amount."

funds

Herman L. Hamilton, Jr., of Hamburg, has chaired the Committee since its inception. Following approval of the concept. President Wilson appointed Larry Yancey of Little Rock to chair the Technical Implementation Subcommittee

and Norwood Phillips of El Dorado to chair the Education and Recruitment Subcommittee. Joe Irwin and Ron Clark of Little Rock are members of the Subcommittee chaired by Larry Yancey. William D. Haught of Little Rock and Richard L. Ramsay of Pine Bluff are members of the Subcommittee chaired by Norwood Phillips. A corporation named Arkansas IOLTA Foundation, Inc. has been formed, and it has applied for appropriate IRS certificates of exemption. By the time this article is published, it is anticipated that the IRS approval will have been obtained and the funding commenced. After the IRS approves the plan, it is contemplated that participation in the program can be obtained by the stroke of a pen. The participating lawyer (or law firm) will simply notify, on a form furnished by Arkansas IOLTA, Inc., his depository bank of his intention to be a part of the IOLTA program. This singular act will permit the depository bank to make periodic distributions of interest income to IOLTA for so long as the trust account is maintained. A nominal fee may be charged by the bank, but this fee will come from interest income. The participant is required to make neither IRS filings nor reports. He simply must notify his clients who have funds on deposit in his trust account of his participation. A joint committee of the Arkansas Bankers' Association and IOLTA will finalize the anticipated procedure.

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While Arkansas is a relatively poor state economically, it is rich in legal heritage and tradition. There has heretofore been an urgent need for additional funds to provide legal services for the poor and other law-related public purposes. Our IOLTA program, as evidenced by the experience of other states, will become a significant source for such funding. It is submitted that the IOLTA program in Arkansas will be another factor in helping Arkansas retain its position as a leader within the legal profession. 0

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EXECUTIVE DIRECTOR'S REPORT And the Snows Came . . .

By William A. Martin FIRST WEATHER CANCELLATION IN 15 YEARS - That is what happened to our Family Law Section program on "The Growing Federalization of Divorce and Family Law," planned for February 1-2. It has been rescheduled for Friday, June 7, during the annual meeting. Calling off a program that has had so much effort put into it is never easy. With speakers coming from New Jersey and Wisconsin, our decision early Thursday morning was made while only a

very fine snow was falling. We thought, "What if the weather forecasters aTe wrong and we doo't have snow?". When Friday dawned with 7 inches of snow in Little Rock we knew we made the right choice. Ben Rowland, who had knocked himself out preparing an outstanding program, had to have been terribly disappointed. He got on the phone and caught one speaker, William M. Troyan, before he left Red Bank, New Jersey. He caught the other, Allan R. Koritzinsky, at O'Hare Airport in Chicago. Members of our stafl. Virginia Hardgrave and Barbara Tarkington, spent most of the day calling those who registered in advance to tell of the postponement. This experience points up a

couple of advantages of preregistration. We were able to con-

tact pre-registrants about the post-

family law, plus an update to the original volume for $75, plus $3 for packing and mailing costs. Your Association is embarking

on a most exciting and important youth education effort. With funding from the Arkansas Bar Foundation, the Association will lease the "Ways of the Law" instructional television program on

our system of justice. "Ways of the Law," and a lesson guide to be compiled by the Young Lawyers' Section, will reach the state's schools beginning with the Fall 1985 semester. These IS, 20-minute programs will be broadcast over the Arkansas Educational Television Network to high schools for videotaping. They can be used in civics. government, history. fami-

ly living, economics or other appropriate classes. The 15 programs are about the right number to use each week for a semester.

Developed in South Carolina, "Ways of the Law" has been enthusiastically received both there and in Louisiana, where the state bar associations co-sponsored the programs. A survey in Louisiana

showed it the most widely used video program in their secondary schools in the fall of 1982. When these programs get started in Arkansas, you may be approached by teachers or principals with an invitation to speak to and lead one or more of their classes centered around the series. We hope you will say "yes" to

busy pushing the Association's legislative package and the Association's position on other bills. She also has a big job going through all the bills filed to decide which ones are of general interest to the membership and then boiling down their descriptions to a reasonable length. The Legislative Newsletter will be useful in letting you know what is being considered by the Legislature. We welcome your suggestions on how we can serve you better.

You may have read the article by UALR Law School Professor Richard K. Burke in Volume 38, Number 1 of the Arkansas Law Review entitled "Truth in Lawyering'; An Essay on Lying and Deceit in the Practice of Law." The Law Review is one of the publications which you get with your membership in the Arkansas Bar Association.

Dr. Burke and the article were the subject of a feature article in the Arkansas Gazette and of a talk show on radio station KAHN. He raised some troubling questions about the ethics of our profession that we should give our thoughtful consideration. He points out most lawyers are honest. fair and bargain in good faith and asks why we should protect those who are not. He gives numerous examples

of the harm those who lie, deceive or countenance clients doing so do to society, to the legal profession and to themselves. Throughout the article he makes a persua-

ponement and. those who had

t~eir

request. The students will

sive plea that rigorous pursuit of

ordered the new Volume II to the Domestic Relations System will get it at the seminar price and get their registration fee refunded, to boot. Other members can buy this

greatly benefit from having contact with a lawyer and you will be

honest, good faith, and fairness is a duty owed to the profession and society that is prior to any duty owed an individual client and our codes of ethics should unequivocally say so. If you have not read the article, I commend it to your attention. 0

wealth of information on how re-

cent federal legislation impacts 98/Arkonsas Lawyer/April 1985

making a

contribution

to our

youth having a better appreciation of the need to respect and obey our laws. Martha M. Miller, our new lobbyist for the Association, is

YOUNG LAWYERS' UPDATE 'Ways of the Law' on AETN

Martha M. Miller, Chair This year's Trial Practice Seminar ought to be of the best yet. The fourth annual event, scheduled for April 4-6, 1985, at the Arlington Hotel, will feature Judge William R. Overton, U.S. District judge for the Eastern District of Arkansas, Nicholas H. Patton, a trial attorney from Texarkana, and Mary Wolff, a trial attorney from Memphis. Jim Simpson, Little Rock, and Bob Ridgeway, Hot Springs, have done an excellent job of organizing this event. The program will begin with an informal reception for those arriving early on Thursday evening. Our speakers' presentations are scheduled for Friday and Saturday mornings and will conclude in plenty of time for registrants to get to Oaklawn Park before the daily double window closes.

If you haven't already preregistered, you may register at the door. For more information, call Sandy Casteel at the AICLE office. Her number is 371-2024. Other YLS seminars were held February 16 in Little Rock and March 2 in Fayetteville to assist local bar associations with National Law Week activities. Since most Law Week activities are presented at the local level, the Young Lawyers' Section Law Week Committee began last year to focus their efforts on providing technical assistance to local bar associations so that Law Week activities could be tailored to the needs of individual communities. Tom Ray, Little Rock, and John Moore, Little Rock (formerly of Mountain Home), have done an outstanding job coordinating these efforts. The Arkansas Bar Foundation also deserves credit for this program. Without their generous financial support this program would not be possible.

Another seminar which the YLS will be working on is the annual Fall Legal Institute presented by AlCLE. This seminar, scheduled for September in Fayetteville, will feature the Criminal Law Handbook which should be hot off the press in June. Sam Perroni. YLS Committee chair, has put together an impressive publication. Sam will also serve as program coordinator of Fall Legal. In addition to these continuing projects, YLS has recently initiated two new projects of major importance. The first is the Statewide Mock Trial Competition which will be held April 27. Teams of high school students will be competing at both regional and state-wide levels. This project is chaired by Terry Derden of Little Rock. The second new project is a youth education project called "Ways of the Law." A series of IS, twenty-minute videotaped programs will be aired on AETN during the 1985-86, 1986-87, and 198788 school years and accompaning teachers guides and student handbooks will be distributed by AETN in cooperation with the Arkansas Department of Education. The programs trace the roots of law, looks at why we need law, examines the criminal process and law enforcement, and discusses family law, wills and estates, contract! consumer law, civil law, environmental law, and due process. The program was developed by the South Carolina Education Department and has been aired in almost 30 states with great success. Martha Jean McHaney, Little Rock. will chair this effort. Again, a special thanks goes to the Arkansas Bar Foundation for funding this project. Two recent YLS appointments to American Bar Association positions deserve mention. Frank C. Elean, II of Harrison, has been

appointed as the ABA Young Lawyers' Division liaison to Judicial Administration Division Lawyers' Conference, and Carl A. Crow, Jr. of Hot Springs, has been appointed as the ABA Young Lawyers' Division liaison to the Forum Committee on Franchising. Both Frank and Carl are past chairs of the Arkansas YLS. This is the last YLS Update you will receive before the Annual Meeting in Hot Springs on June 58, 1985. The Young Lawyers' business is scheduled during the afternoon of Thursday, June 6. At that time, we will be electing officers for the '85-86 Bar year. I urge each of you to attend and participate in this process. D

Liberty & Justice Liberty & Justice Liberty & Justice Liberty & Justice Liberty & Justice Liberty & Justice Liberty & Justice Liberty & Justice Liberty & Justice Liberty & Justice Liberty & Justice Liberty & Justice Liberty & Justice Liberty & Justice Liberty &Justice

ForAll

Law DayllBAIMay1 April t985/Arkansas Lawyer/99

ARKANSAS BAR FOUNDATION Foundation Funds Educational Programs

By Robert L. Jones, III In 1984 the Arkansas Bar Foundation began the annual award of a research fellowship for a professor at both the University of Arkansas School of Law at Fayetteville and the University of Arkansas School of Law at Little Rock. The grant enables the professor to undertake research and study during the summer months. The Foundation is pleased to report on these two research fellows. The 1985 research fellow for the U of A School of Law at Fayetteville is Robert B. Lellar. The fellowship will enable Professor Lellar to write a law review article on the discovery and use of federal regulatory evidence in private litigation. The 1985 Foundation research fellow at the UALR School of Law is Glen Pasvogel. Professor Pasvogel plans to research mortgage law in Arkansas and draft a set of forms for use in mortgage law practice. The Foundation is proud of the service to the legal profession exhibited by these two research fellowships. The Foundation is continuing to fund other educational causes. At the meeting on January 17, 1985, its Trust Committee approved a grant of $2,275.00 to the Young Lawyers' Section of the Arkansas Bar Association for the purpose of funding a statewide law week project. The Foundation is pleased to report that it has awarded $1.000.00 to the Young Lawyers' Section to assist in the distribution of the Senior Citizens' Handbook, During the past, the Foundation has made possible the printing of 65,000 copies of this handbook. This has been one of the most successful projects of the Foundation in the last few years. IOO/Arkansas Lawyer/April 1985

The Foundation has allocated $5,665.51 to the Arkansas Bar Association for such matters as: a. The distribution of a special brochure familiarizing Arkansas lawyers with interest on lawyers' trust accounts; b. A reprinting of the booklet entitled, How Do Lawyers Set Their Fees: c. A reprinting of the booklet entitled, Marriage and the Law: d. A reprinting of the booklet entitled, Small Claims Court in Arkansas: and e. A reprinting of the booklet entitled, The Reporter's Guide to Legalese, The Foundation is most pleased to report that it has granted $4,610.00 to the Young Lawyers' Section for a youth education project entitled "Ways of the Law." This project is to fund the "Ways of the Law" video program which is an instructional guide for teachers. It is designed to acquaint high school students with areas of the law they are likely to come into contact with as adults. The

program traces the roots of the law, looks at why we need law, examines the criminal process and law enforcement and discusses family law, wills and estates, contracts/consumer law, civil law, environmentallaw and due process. The Foundation manages and provides income from funds which have been contributed for scholarships to students at both the Fayetteville law school and the UALR School of Law. The following is a list of current scholarship recipients at the University of Arkansas School of Law at Fayetteville. Friday, Eldredge & Clark Gary Fogleman; Harry P. Warner - Dave Jacobson;

C. R. Warner-Garland Yarber; Rather, Beyer & Harper Cynthia Rodgers;

Edward Lester - Mark Long; Henry Woods - Steve Gilbert; R. A. Eilbott. JI. - Michael Lee Murphy; Arkansas Bar Foundation Cindy Ann Falls; Arkansas Bar Foundation Robert Montgomery; Judge John Miller - Dana Dean; Bud & Bernard Whetstone Thomas Kase; Judge John Fogleman Patricia Jackson; Col. C. E. Ransick Addie Burks; Fellowship Recipient - Lonnie R. Beard The following is a list of current scholarship recipients at the University of Arkansas School of Law at Little Rock. Friday. Eldredge & Clark (Jerry T. Light) - Kenny W. Henderson; Friday, Eldredge & Clark (Boyce R. Lovel - Larry K. Cook; Harry P. Warner James Pender; Cecil R. Warner James Pender; Rather, Beyer & Harper Ronnie F. Craig; Edward Lester- Vicki Sandage; Judge Henry Woods - Oscar Jerome Green;

R. A. Eilbott, JI. - Paul Dickerson;

E. Charles Eichenbaum Robert Ivan Bland, Mary M. Bell and Debra L. Cagle; Arkansas Bar Foundation Lynn F. Plemmons; Rose Law Firm - Scott Lancaster;

U. M. Rose - David Schoen; Judge John A. Fogleman David O. Bowden; Judge 1. Smith Henley - Rita S. Looney; Bud & Bernard Whetstone Wanda C. Wyeth; Colonel C. E. Ransick S. Randolph Looney; Fellowship Recipient - Arthur Murphey 0

IN-HOUSE NEWS Law Schools, AIeLE and House of Delegates

UNNERSITY

addition,

OF

area for the legal clinic will be provided. Rear-

ARKANSAS SCHOOL OF

LAW AT FAYETTEVILLE By J. W. Looney Expansion Of Waterman

Hall Construction is under-

way for a major expansion of Waterman Hall. The expansion is designed to provide crucially needed library space, and, in the process. some renovation of

the original portion of Waterman Hall. The library addition to Waterman Hall. completed in 1974, was designed for library holdings slightly in excess of 100,000 volumes. The current holdings have expanded to approximately 185,000 volumes and, thus, the space is no longer adequate to accommodate both the library holdings and the need for study space for students. In addition to the additional space for the Robert A. and Vivian Young Law Library, a new faculty research library will also be included along with additional classroom space for computer training. In

two

small

courtrooms and a new

rangement

of

secre-

tarial staff work area and administrative offices will also be included as a part of the project. Construction is expected to be completed by the 1986 Spring Semester. Faculty Activities And Publications Lonnie R. Beard (who teaches courses in federal

taxation,

taxation'

of estates, gifts, and trusts, agricultural taxation, and farm estate and business planning) along with 1983 graduate Pati L. Hoffman have an article in the Arkansas

Law

Review:

"Selected Tax Issues Arising During the Development Stage of Orchards, Groves and Vineyards." A chapter entitled "No Task for the ShortWinded" written by Dr. Robert A. Leflar is included in a recent book Handbook for Judges, published by the American Judicature Society. A new textbook coauthored by Donald B. Pedersen, director of the Agricultural Law Program, was recently released by West Publishing Company. The text, Agricultural Law: Cases and Materials, is accompanied by a teacher's manual. This textbook will be used in Agrieul tural

Law courses

in a number of law schools. Rodney Smolla was a speaker at the University of Toronto Law School on "Media and the Law." Dean's Activities

Jake Looney was a speaker at a meeting of the Great Plains Resource Economics Council, Denver, on "Water Conflicts, How They Are Addressed by Courts and Legislatures;" at the Arkansas Seed Growers Association meeting on

"Water Legislation in Arkansas;" at the National Association of Animal Breeders meeting in Denver on "Tax Im-

plications of Embryo Transfers;" at an Agricultural Policy Forum in Gainesville, Florida on "Government Regulation and Property Rights;" and at a meeting of the American Embryo Transfer Association on "Legal Considerations in Embryo Transfers."

UNIVERSITY OF

ARKANSAS AT LITTLE ROCK SCHOOL OF LAW By John M. Sheffey Alumni News Sheffield Nelson,

a

1968 graduate of the law school, joined the Little Rock firm of House, Wallace, Nelson and Jewell on January I. 1985. Nelson had served as chairman and president of Arkansas Louisiana Gas Company for 12 years. He is now a senior partner of the law firm and serves as the firm's chairman of the Board. Frank B, Whitbeck, a member of the 1975 graduating class. was recently featured in Arkansas Business, The profile of Whitbeck traced his career as president of American Foundation Life Insurance Company, as a lawyer in private practice, and as founder and chief executive officer of Signature Life Insurance Company of America. Numerous graduates of tbe School of Law and its predecessors are cur-

rently serving in elective pasitions. Notable among those are Senator Max Howell (who has served in the Arkansas Legislature since 1947), Art Givens, Cliff Hoofman and Doug Wood, all of whom hold seats in the Legislature. Judicial posts are held by Robert Garrett (Saline County chancellor) and Floyd Lofton and Thomas Digby (Pulaski County Circuit Court), Dan Stephens (Chancery judge in Clinton) and J. Hugh Lookadoo (judge in Arkadelphia). Floyd "Buddy" Villines April 1985/Arkansas Lawyer/WI

and Tom Prince were recently elected to the Little Rock City Board of Directors. Prince has also been elected to serve a two-year term as

mayor of the city of Little Rock. The monthly luncheon gatherings of our Alumni Association continue to draw interest from our graduates who practice in central Arkansas. Recent speakers have included Judge Thomas Glaze of the Arkansas Court of Appeals, who spoke on evaluation of judges; Jody Mahony, a member of the Arkansas Legislature from El Dorado, who discussed what he considered the

culminated with the position of general counsel, Office of the United States Trade Representative, Executive Office of the President. In that capacity he was the senior executive branch legal officer responsible for international trade matters. His address was entitled, "Resolving International Conflicts Over Economic Regulation: A Modest Proposal." It was particularly timely for Arkansas, because of the state's increasing participation in international trade. Faculty News

significant issues facing

the current session of the Legislature, and Phillip Carroll, a Little Rock attorney with the Rose Law Firm, who gave a very entertaining

slide presentation on the trial of Lizzie Borden. Terry Derden and Sherry Bartley, co-program chairmen. have promised further interesting programs for the upcoming luncheon meetings. Altheimer Lecture

The eleventh Ben J. Altheimer Lecture featured Robert Charles Cassidy, Jr., a partner in the prestigious Washington, D.C. law firm of Wilmer, Cutler and Pickering, and an expert in international trade matters. Before going into private practice, he had a distinguished career in government where he

served in the Office of Legislative Counsel of the United States Senate and the staff of the U.S. Senate Finance Committee. In both he specialized in international trade and tax matters. His government career

lO2IArkansas Lawyer/April 1985

Donaghey Distinguished Professor Robert R. Wright has been elected a fellow of the American Law Institute. This is a prestigious position to which only a very few legal scholars and practitioners are elected. The only other Arkansas members are Phillip Anderson (a member of the Council of the American Law Institute), and the two Arkansas law school deans.

Professor Wright is not teaching during the spring semester but has been granted an offcampus duty assignment. He is engaged in writing a treatise on the Arkansas law of property. Professor Wright also addressed the Arkansas Municipal League and city attorneys on December 15 in Hot Springs on planning and zoning law. Professor Richard K. Burke delivered the Seventh Annual Clark Y. Gunderson Lecture at the University of South Dakota School of Law. Professor Burke's topic was, "More Judges or

Less Litigation - A Federal Question?". His address will be published by the University of South Dakota. Professor Burke is a former professor of law and dean of the School of Law of the University of South Dakota. Professor Burke's article, "'Truth in Lawyering': An Essay on Lying and Deceit in the Practice of Law," appeared in Vol. 38 of the Arkansas Law Review. Professor Judy Lansky, a supervisor in the Law School's Legal Clinic, was elected secretary of the Board of Advocates for Battered Women. Professor Susan W. Wright addressed the Eighth Circuit Court of Appeals as a representative of Judge Henley's former law clerks. The occasion for the en banc court session was the unveiling of Judge Henley's portraii. to be hung in the Eighth Circuit Courtroom in St. Louis. Judge Henley has now been elevated to senior status. Professor Wright has also been appointed to the local arrangements committee of the Eighth Circuit ludicial Conference, to be held in Little Rock next summer.

The American Association of Law Schools met in Washington, D.C. on January 3-6. The law school was well represented by Dean Averill

and

Professors

Adams, Gitchel. Gould, Spears, Robert Wright and Susan Wright. Professor Adams also attended the meeting of the Law School Admission Council while he was in Washington.

A.I.e.L.E. NEWS By Claibourne W. Patty, Jr. The Mid-Year Meeting of the Arkansas Bar Association, held at the Camelot Hotel in Little Rock on January 18-19, devoted one day of its CLE portion to an intensive review of recent developments in six areas

of the law. Under the leadership of Robert L. Jones, m, program chairman, and Professors L. Scott Stafford and Rodney Smolla, program co-chairs, the following topics were developed: Arkansas Federal Court Rules and Civil Procedure, by Chief U.S. District Judge H. Franklin Waters; Legal Advertising by Jerry Cavaneau; Specialization by Richard Hatfield; Pitfalls in the Trail of Lawsuits by Annabelle Clinton, former Pulaski County Circuit judge, John Patterson, Circuit judge, Fifth ludicial Circuii. and Han. Howard Templeton, Chancery and Probate judge, Second Chancery Circuit; Bad Faith Claims by William H. Sutton and William R. Wilson, Jr.; and Significate Arkansas Appellate Decisions by David Newbern, Arkansas Supreme Court justice. A total number of 160 persons attended. 23rd Arkansas Federal Tax Institute The 23rd annual Arkansas Federal Tax Institute, co-sponsored with the Arkansas Society of Certified Public Accountants, was held December 6-7, 1984 at the Excelsior Hotel. Little Rock.

The faculty, consisting of lawyers and CPAs of national and statewide

Bar Association NewsBulletin and The Arkansas Lawyer,

prominence.

1985 Banking AICLE Joins Private Satellite Network On October 23, 1984, the TV Satellite Program on "Banks and Their Borrowers"; produced by Practising Law Institute, was shown at the UALR Conference Center in Little Rock. On March 20th, a TV satellite program produced by the Section of Urban, State and Local Government of the American Bar Association will be shown by AICLE concerning the topic of Governmental Liability Under Anti路Trust Laws. Programs concerning the Durable Power of Attorney will be shown April 24, 1985; on May 8th The Lawyer Buying a Computer; on March 26th, Estate Planning for the Aged, Incapacitated Client; on May 14th, Evaluating a Personal Injury Case - The Brain Damaged Child; on May 15th, UCC Strategies under articles 2-9; and finally scheduled is Blue Sky Laws produced by PLI to be shown June II. 1985. Until the Bar membership is notified otherwise all TV satellite programs will be shown at the two locations UALR Conference Center in Little Rock and the University of Arkansas Conference Center, Fayetteville. Brochures produced by the cosponsors will be mailed to the Bar membership sufficiently in advance of the program so that they may mark their calenders and attend. You will be notified of future programmings in AICLE Brochures, the Arkansas

Law Seminar

The 1985 Banking Law Seminar, sponsored with the Banking Law Committee of the Arkansas Bar Association, was held March 2223, 1985 at the Sheraton Hotel in Hot Springs. This program was chaired by V. Markham Lester, and dealt with usury problems on Friday morning. The Saturday morning sessions dealt with recent developments in bankrupcty laws and the RICO statute as applied to banks. Labor Law Institute The 8th annual Labor Law Institute, jointly sponsored with the Labor Law Section of the Arkansas Bar Association, the National Labor Relations Board, and the Industrial Research and Extension Center of UALR, will be presented at DeGray Lodge, Arkadelphia, on April 19-20, 1985. Please mark your calendars lor these upcoming annual

programs: YLS Trial Practice Program, April 5-6, Arlington Hotel. Hot Springs Tax Awareness Institute. April 26. UALR Conference Center. Little Rock Federal Court Orientation Program.

May 6. 1985, United States Post Office. Courthouse. Little Rock

ARKANSAS BAR ASSOCIATION HOUSE OF DELEGATES MEETING JANUARY 19, 1985 The House 01 Delegates 01 the Arkansas Bar Association held its Semi-Annual meeting at the Camelot Inn in Little Rock. Arkansas, on January 19, 1985. President William R. Wilson, Jr., presided. The House approved the minutes 01 the last Executive Council meeting, the financial statement as 01 December 31, 1984, association membership statistics, the annual report of the secretary-treasurer lor the fiscal year 1983-84, and the report 01 the auditing committee.

The House adopted Resolution No. 85-1 endorsing Philip S. Anderson lor chairman of the American Bar Association House 01 Delegates and Resolution No. 85-2 endorsing an amendment to the state's Constitution which enables the General Assembly to confer jurisdiction 01 juvenile or bastardy matters upon chancery. cir-

cuit or probate courts. or to establish separate juvenile courts. Annabelle Davis Clinton, chair of the Committee to Consider Guidelines lor Selection 01 Federal Judges and Election of State Judges, reported that the Committee recommended consideration of the merit system for the selection 01 state judges and that this matter be

relerred to the recently appointed Merit Selection Committee. With respect to the selection of federal judges, the Committee concluded that a proposal 01 guidelines for selection of federal judges would be advisory and, therelore, 01 minimum value, in view

of the power reposed in the President 01 the United States to appoint federal judges with the advice and consent 01 the United States Senate. Jane Knight, co-chair 01 the Committee to Study Resolutions and "Special" Meetings of the House 01 Delegates, reported that the Committee recommended the following amendments to Article XII of the Association's Constitution: (I) the House 01 Delegates, by a twothirds vote of those present and voting, may waive

the

notice

re-

quirements 01 the article; (2) the House 01 Delegates, by a twothirds vote of those present and voting, may consider resolutions at a special meeting 01 the House 01 Delegates. The Committee also recommended that the fall House 01 Delegates meeting become a re-

gular meeting under Article XIV of the Constitution. The proposed amendments will be submitted to the House 01 Delegates at its June meeting. Martha M. Miller, association lobbyist. reported that 01 the nine bills in the Association's legislative package, the Guardianship bill and the Judicial Compensation Commission bill were the subject of the most attention. The House 01 Delegates voted to remove the Judicial Compensation ComApril 1985/Arkansas Lawyer/103

mission bill from the Association's legislative package. Miller further reported that the Arkansas Medical Society is not opposing the Uniform Determination of Death Act and that the additional staffing requirements of both the Arkansas Supreme Court and the Arkansas Court of Appeals will be incorporated in their re-

spective budgets. The House of Delegates endorsed the work of the Statute Revision Commission including the Commission's budget request. Miller concluded by requesting that members of the House of Delegates pledge contributions to LAWPAC. Justice John Fogleman noted that a bill may be introduced in support of consolidating the Judicial Retirement System and the State Employees Retirement System. Justice Fogleman observed that the enactment of such a bill would be devastating to judicial retirement. John Forster proposed a bill allowing judges to set punishment in all cases other than murder Class A and Class Y felonies. A motion to endorse the proposed amendment was tabled. The House adopted an amendment to Article II of the Association's Bylaws, so as to exempt

new admittees from the payment of dues for the balance of the bar year in which they are admitted to the bar, without application. The House authorized the Group Insurance Committee to hire an independent consultant for the purpose of evaluating the group insurance needs of the Association. This consultant would not be permitted to bid or write the 104/Arkansas Lawyer/April 1985

Association's group insurance

package.

Further, the House appropriated $2,500.00 for expenses incurred in connection with reten-

tion of an independent consultant.

Herman Hamilton, chair of the Interest on Lawyers' Trust Accounts (I0LTA) Committee, reported that the nonprofit corporation to administer IOLTA is expected to be operational

soon. The House approved a motion to apply to Legal Services Corporation for an implementation grant. The House approved a slightly modified version of the American Bar Association's Model Rules on Professional Conduct and directed the special Association Committee on the Model Rules to petition the Arkansas Supreme Court to adopt the Model

Rules of Professional Conduct as the rules governing the professional conduct of lawyers in Arkansas. President Wilson announced that the Association's 1985 annual meeting will be June 5-8, 1985, and that the first regional state trial practice seminar will be held in Camden. The meeting was then adjourned. Annabelle Clinton

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- legislative proposals and judicial decisions, and - liability of physicians and health care institutions. For more information and registration materials please contact: Division of Medical Humanities

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APRIL 1985