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IN

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DEPARTMENTS 4

PRESIDENT'S MESSAGE

5

CIVIL PROCEDURE: The Adequare Remedy ar law Problem Under Rule 65

VOLUME 25, NUMBER 2 PUBLISHER

By Chari" B. Roscop! By jam" M. Luffman

8

IN MEMORIAM

EDITOR & ART DIRECTOR

9

EXECUTIVE DIRECTOR'S REPORT

By William A. Martin

Paite Beavers Director oJ Communications

11

YOUNG LAWYERS' REPORT

By Gregjon"

COpy EDITORS

12

LAW, LITERATURE & LAUGHTER

By Victor A. Fuming

13

THE DEVELOPING LAW:

Arkansas Bar Association

Sara Landis Rebecca Benton

Acring as Witness & Advocate in The Same Proceeding

ARKANSAS BAR ASSOCIAIION 400 W. ~larkhall1 I inle Rork. Arkansas -nol

21

DISCIPLINARY ACTIONS

OFFICERS

24

LAW OFFICE MANAGEMENT: WHAT'S NEW? Cost Containment Revisited

Charles B. Roscopf President James H. McKenzie President-Elect Rodney E. Slater Secretary -Tteasurer Richard Williams Executive Council Chair William A. Martin Executive Ditector Judith Gray Assistant Executive Directot

EXECUTIVE COUNCIL Sanford

Besh~r

Mark Cambiano

42

By Scott Stafford

By jerry Schwartz

THE GENERAL PRACTITIONERS PRIMER: The Soldiers & Sailors Civil Relief Act: Legal Help for [he Sudden Soldier

45

By Larry Carpenter

IN HOUSE NEWS

COVER FOCUS 26

HEALTH LAW: A NEW LEGAL BATTLEFIELD

By Harold H. Simpson

Daniel R. Caner

Camlyn J. Clegg Don Elliot John N. Fogleman Stephen A. Geigle David Guthrie

Ike Allen Laws. Jr. Paul D. McNeill Martha M. Miller E. Lamar Petrus

THE DEATH OF NANCY CRUZAN: NEW LIFE FOR THE LIVING WILL IN ARKANSAS

By jack McNulty AMERICANS WITH DISABILITIES ACT:

J. Thomas Ray

A NEW ERA IN EMPLOYMENT PRACTICES

Eddie H. Walker. Jr. Roben E. Young

PUBLIC LAW 101-33642 U.S.c. 12101 ET SEQ.

EX-OFFICIO Charles B. Roscopf James H. McKenzie David M. Glover Rodney E. Slater Richard A. Williams Gregory B. Jones

By john T Shannon The Arkansas Lawyer (USPS .546-<Âť0) is published quarterly by the Arkansas Bar Association. Second class postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkans.as lawyer, 400 West Markham. Little Rock, Arkansas 72201. Subscription price 10 non-members of the Arkansas Bar Association $15.00 per year and 10 members $10.00 per year induded in annual dues. Any opinion expressed herein is that of the author, and nol necessarily that of the Arkans.1S Bar Association or The Arkansas uwyer. Contributions to The Arkansas Lawyer are welcome and should be sent in two copies to EDITOR,. Ark~sas Lawyer, 400 West Markham, Little Rock, Arkansas 72201. All inquiries n..'garding advertising should be sent to The Ark.lnsas lAwyer at the above address.

Annual Meeting: The 93rd Edition It is hard to realize, but annual meeting time is rapidly approaching. This year's annual meeting will start on Wednesday, June 12th and end on Saturday, June 15th. The Arlington Hotel in Hot Springs, our traditional meeting place, will be the convention hotel. Annual Meeting Chairman John Lile and his team have put together a remarkable mix of business and pleasure. Realizing the variety of interest Arkansas lawyers have, the planners have gone to a three-track format. No matter what your interest may be you should be able to pick a track to sharpen your legal skills. Track One will feature The Artistry of Advocacy, courtroom techniques demonstrated during a day-and-a-half program andRegina Blakley will be the moderator of an outstanding panel designed to enlighten us on legislative developments in the 78th General Assembly. In addition to tracks on Bankruptcy, Environmental Law, Criminal Law and Family Law other tracks offered include: Wright Writes Right (back by popular demand) What Judges think About Lawyers Firm Relreat The social side has not been neglected. For starters we will have a hospitality area in the Exhibit Hall for those who don't need to sharpen their legal skills, but prefer to sit and exchange stories from the trenches. Free refreshments will be provided on Thursday and Friday courtesy of Legal Directories Publishing Company, Inc., of Dallas, Texas. Mary Anne and I, in our visits to other state bar conventions, observed that one of the most popular places was the hospitality area where

4

ARKANSAS

You will come away rested, relaxed, renewed and ready to return to the battlefield armed with the secrets of how to cope with battle fatigue. Mary Anne, Betty, Jim and I will be disappointed if we don't see you in Hot Springs for the Annual Meeting.

••••

I BY CHARLES B. ROSCOPF I friends and spouses could get together and renew friendships. Judith Gray took it from there and we are anxious to have your reaction. The President's Reception will be held in the conference center on Wednesday evening. Jim and Betty McKenzie will be honored Thursday evening with the President-Elect's Reception in the Ballroom. All registrants and guests are not only invited, but encouraged to attend these two socials. The traditional firm cocktail parties will precede two fantastic evenings of entertainment: Comedy Club and Sharon Douglas' Showtime. John Lile and his crew have thought of everything - even Dr. Taibi Kahler to ease the anxiety of returning to a crushing workload on the following Monday. You owe it to yourself, spouse and family to make the Arkansas Bar Association Annual Meeting an annual tradition. Blend business, friendship and pleasure into one four-day respite from the real world.

LAWYER

APRIL

I cannot resist giving a brief report on the status of the bar legislative package. As this article is being written it is the consensus of those in the know that the centerpiece of the bar package, the Judicial Article, has an excellent chance of surviving as one of the proposed Constitutional Amendments offered by the 78th General Assembly. If it does survive it will be the result of a massive effort contributed to by more Arkansas lawyers than any single project in the history of the Arkansas Bar Association. The combination of skills required to get us this far is awesome - skills of draftsmanship, compromise, organization, diplomacy, human relations, legislation, persuasion and not the least unswaggering perseverance. I have the urge to name names, but resist for fear of inadvertently omitting a vital player. Personal recognition will come later. At this state every other item of our bar package has been adopted by both houses of the General Assembly except the Limited Partnership Bill and the Workers' Compensation Amendments which will be considered in the waning days of the legislature. There is at least an outside chance that we will notch up a remarkable 100% success ratefingers crossed. See you in Hot Springs.

199

CIVIL PROCEDURE

The Adequate Remedy at Law Problem, Under Rule 65 Getting an injunction in Arkansas under Rule 65, A.R.Civ.P. is like skating on thin ice. There are no "thin ice" warning signs on Rule 65, but thin ice is there, waiting to crack under the practitioner and chill the litigious enthusiasm of the unsuspecting. One of the most frequently ignored danger areas is the inadequate remedy at law requirement prior to obtaining an injunction. The requirement is not in the rule, is not mentioned in the annotation headings, and did not appear in the Statutes.' But it is still there, waiting to ruin the well-tried injunction action. The origin of the "adequate remedy at law" doctrine is in the origin of equity itself: it is there as an attempt to place some limitation on what could otherwise be almost universal chancery jurisdiction. The underlying purpose of the equity court was after all only to provide remedies where the rigidity of the common law failed to provide for redress of serious wrongs. Early Arkansas cases make it clear that the rule has been present in Arkansas sinc~ the beginning of time as we reckon it.' Courts have generally been reluctant to diminish or "skirt" the requirement because the practical effect of equity taking jurisdiction is that in chancery the defendant generally will lose his right to a jury, a significant consideration. Most of the hornbooks and

BY JAMES M. LUFFMAN encyclopedae assert that where there is a rule or statute dealing with injunctions, that inadequate remedy at law requirement is dropped unless specifically retained in the rule or statute. That is clearly not the case in Arkansas. There is a long line of decisions ending with Tate v. Sharp, 300 Ark. 126 (1989) using the doctrine to justify the granting or refusal of injunctions. As recently as last year, the Supreme Court used the doctrine in its reasoning in striking down the Domestic Abuse Act. They noted that the traditional jurisdiction of chancery courts to issue injunctions could not be invoked as a sort of bootstrap argument to legitimize the act, because there was in those domestic cases, an "adequate remedy at law".3 Not much has been said in print about what a remedy at law is. Not much has been said about what "adequate" means. Not much has been said about what test the practitioner can apply to try to determine if his client has one of them. There are cases dealing with whether administrative remedies with regulatory agencies are adequate; whether planning commissions and city councils are adequate,S but it is difficult in all these cases to find any kind of test for

the practitioner in making the determination for his client in the absence of a grey horse case. Because we are a small state, and there just isn't a great volume of appellate litigation compared to the more populOUS states, there are many areas of law that do not get much appellate attention. It is interesting that one area of the law which has had much attention is mandamus, and many of the cases which deal with adequacy of remedy at law are mandamus cases. Mandamus is latin for "we command". It is in every sense of the word an injunction, but one which has historically come to apply to a command summarily issued to an officer or executive to perform some duty he is legally obligated to perform. Ironically, it is a law writ, not an equitable one." Nevertheless, the corollary of the "adequate remedy at law" doctrine (sometimes dressed up by the more astute writers as an "alternate remedy at law" doctrine to avoid the paradox) has been applied in a great number of cases. Overlooking that fine point, to find adequate case law in Arkansas dealing with the issue, one must look to the mandamus cases. As most Arkansas practitioners with any seniority know, when one looks for reasoning, one often finds himself looking at the opinions of Justice Fogleman.

Wright, Lindsey & Jennings is pleased to announce that

Walter McSpadden, Roger D. Rowe and Nancy Bellhouse May have become partners

WAlTER McSPADDE , a graduate of the University of Arkansas and The George Washington University, will continue to concentrate on public finance, commercial lending, real estate and improvement districts.

ROGER D. ROWE, a graduate of Arkansas State University and Southern Methodist University, will continue his practice in the area of commercial litigation, including corporate and productliabililY matters.

NANCY BELLHOUSE MAY, a graduate of Bowdoin College and Columbia University, will continue to focus on intellectual property, including copyrights, trademarks, trade secrets, unfair competition and related litigation.

and that

Tammera Rankin Harrelson, Kevin W. Kennedy and Karen

J.

Garnett

have become associated with the firm.

TAMMERA RA KI HARRELSO is a graduate of Hendrix College and the University of Arkansas at Little Rock. She is beginning her practice in general litigation.

KEVI W. KE NEDY is a graduate of Tulane University and Vanderbilt University. He is beginning his practice in the corporate and securities area.

KARE ]. GARNffi is a graduate of Dartmouth College and the University ofTexas. She is beginning her practice in the corporate and securities areas.

WRIGHT, LINDSEY & JENNINGS ATTORNEYS AT LAW 6

ARKANSAS

LAWYER

APR I L

991

EDWARD L. WRIGHT (1903-1977) RONALD A. MAY ISAAC A. SCOTT, JR. JAMES M. MOODY JOHN G. L1LE GORDON S. RATHER, JR. TERRY L. MATHEWS WILLIAM D. HAUGHT DAVID M. POWELL ROGER A. GLASGOW C. DOUGLAS BUFORD, JR. PATRICK J. GOSS ALSTO IE INGS, JR. JOHN R. TISDALE KATHLYN GRAVES M. SAMUEL JONES III JOHN WILLIAM SPIVEY III BRUCE R. LINDSEY LEE J. MULDROW WE DELL L. GRIFFEN N.M. NORTON, JR. EDGAR j. TYLER CHARLES C. PRICE CHARLES T. COLEMAN jiMMY W. MITCHELL JAMES j. GLOVER EDWIN L. LOWTHER, JR. CHARLES L. SCHLUMBERGER SAMMYE L. TAYLOR WALTER E. MAY ANNA HIRAI GIBSON GREGORY T. JONES H. KEITH MORRISON THOMAS C. COURTWAY BETTINA E. BROWNSTEIN WALTER McSPADDEN ROGER D. ROWE NANCY BELLHOUSE MAY NATE COULTER ROBERT M. HONEA JUDY SIMMONS HENRY KIMBERLY WOOD TUCKER MARK L. PRYOR RAY F. COX, JR. HARRY S. HURST, JR. CLino M. SMART, III TROY A. PRICE PATRICIA SIEVERS LEWALLE JAMES M. MOODY, JR. KATHRYN PRYOR GEARHART TAMMERA RANKI ' HARRELSO KEVIN W. KE NEDY KARE J. GARNETT OF COU SEL ROBERT S. LI DSEY ALSTON JENNI GS GEORGE E. LUSK, jR.

WRIGHT, LINDSEY & JENNINGS 2200 WORTHEN BANK BUILDING UTILE ROCK, ARKANSAS 72201 -3699 (SO II 371 -0808 FAX: 15011376-9442

In Mears v. Hall, 263 Ark. 827 (1978) justice Fogleman offered the following prescription: "In order to be adequate as a bar to mandamus, the alternate remedy at law

must be one that is plain and complete and as practical and efficient to the ends of justice and its proper administration as the remedy by mandamus. Ghent v. State, 189 Ark. 747, 75 5. W.2d 67. It must be well

adapted to remedy the wrong complained of and if it is inconvenient or incomplete, the court exercises its sound discretion in granting or refusing the writ. HIl;e D.

Barkmal/, 179 Ark. 772, 18 S.W.2d 334." 263 Ark. at 837. After stating the rule, justice Fogleman proceeded to assess what would happen on a "what if' basis, (if the writ were not granted) and concluded in this case that the result would be impractical and simply unacceptable. It would seem that the process used by justice Fogleman for the "alternate remedy at law" test in this mandamus case is the one which must

be used by the practitioner working with Rule 65. He must first find what other remedies are available, sometimes a not inconsiderable task. As to each remedy he finds, he must ask: (1) Is the remedy plain and complete? (2) Is it as practical and efficient to the ends of justice as the injunction? (3) Is the remedy welladapted to remedy the wrong complained of? Being "plain" seems to mean that the remed y is reasona bly obvious or clear. Perhaps the negative is easier to identify; the remedy should not be an obscure one. "Complete" probably means that it will put an end to the dispute and not require the parties to relitigate some other aspect of the dispute. Whether a remedy is "practical and efficient to the ends of justice" probably means whether or not you can get where you are going from where you are and with economy of litigation. The question of whether it is "well adapted to remedy the wrong" probably translates into whether the remedy will get the job done without being too inventive. The Mears decision provides what must be a classic example of the appellate analysis of this multifaceted problem of adequacy. The alternate remedies were scrutinized as follows: "It can hardly be said that the remedy by appeal in this situation was adequate or

complete. It appears from tht:: bt.Jdg~t

which was part of the Pulaski

ClfCUlt

Court order affording the basis for 3 (b) of

Ordinance 63 that the salaries of eight people were involved. Apparently each of them would be required to file or present vouchers periodically, perhaps monthly, for salaries, and appeal each one until a

final decision was reached on appeal. The same would have to be done for office

supplies, postage, telephone service, etc., if such things were obtainable at all under such circumstances. Utilizing the remedy of appeal would probably result in the demise of the public defender system while that remedy was being pursued."

263 Ark. at 837. This analysis is solidly grounded on a decision from 100 years ago in FOiles Hardware Co. v. Erb, 54 Ark. 645 (1891), a suit to enjoin the Pulaski County judge from executing a contract for the construction of a bridge across the Arkansas River at Little Rock.? The Court listed the contingencies by following the remedy at law, and found that it would "necessarily occasion injurious embarrassment, confusion and contention to the county, the taxpayers and the contractor, which would have been avoided by suit before the complications arose." 54 Ark. at 659. Following the same kind of "what ifs" by the lawyer reasonably wellversed in remedies (with an eye to the key words of "injurious embarrassment," "confusion," and "contention") should result in a decent assessment of the thickness of the ice for the client on any particular Rule 65 pond. Then, whether an injunction lies or not will be a comparatively simple matter of proof of facts and follOWing the bouncing ballS of Rule 65. END OTES 1. Ark. Code Ann., Cestions 16-113-101 et seq., (1987)

2. B.uley V. Laster, 82 Ark. 236 (t907). 3. Bates v. Bates, 303 Ark. 89 (1990) 4. McGehee V. Mid South Gas Co., 235 Ark. 50 (1962). The case has a good review of what other administrative remedies are "adequate." 5. City of Little Rock v. Evans, 213 Ark. 522 (1948). 6. Nethercutt v. Pulaski Co. Special School Dist., 248 Ark. 143 (1970). 7. Dangerous business if you are going to keep the uncivilized hordes from the north ot, or keep the boys down on the farm after they have seen Fayetteville. 8. For those too young to remember, movie cartoon used to have "sing alongs" for the audience who were prompted syllably by syllable by a bouncing ball appearing on the screen over the printed lyrics. If you didn't know the tune, it didn't help.

FINFS

J. FRED JONES

F. BATCHELOR SR.

Fines F. Batchelor, Sr., of Van Buren, died in january 1991 at the age of 87. He was the former Prosecuting Attorney for Crawford, Logan and Franklin counties and the former City Attorney for Van Buren. He was a member of the First Baptist Church, Uniontown Masonic Lodge, Crawford County Bar Association and a former member of the Civil Service Appeals Board. Survivors are a son, Fines F. Batchelor, jr., a Van Buren attorney; a daughter, Geraldine Tudor of Little Rock, two brothers, four grandchildren and two grea t-grandchildren.

loNNIE PAUL GEHRING Lonnie Paul Gehring, 34, of Wheatley, died in March 1991. He was a member of the Arkansas Trial Lawyers Association, the American Bar Association and was President of the Monroe County Bar Association. He was a member of the Board of Directors for Marvell Academy. Survivors are his wife, Janet Gehring, two daughters, Laura and Sarah Gehring, his parents and a brother.

O. D. HADFIELD, JR. O. D. Hadfield, jr., 78, of Little Rock died in February 1991. He was the former Chief Executive of the Arkansas Real Estate Commission and the Arkansas Realtors Association. He was a member of the Pulaski County Bar Association and was granted a life membership in the Arkansas Alumni Association at the University of Arkansas in 1974. Mr. Hadfield was one of the attorneys who prepared an agreement between the Realtors Association and the Arkansas Bar Association to distinguish between the practice of law and real estate in contract preparation. He served seven years as a member of the Board of Directors for the National Association of Real Estate License Law Officials, and three years as its counsel. He was treasurer and member of the Board of Directors of Goodwill Industries in 1948-1949. Survivors are his wife, Louise Sanderlin Hadfield, a son, O. D. Hadfield Ill, a daughter, Donna Foss, and a sister.

John E. McAllister, P.E.

j. Fred jones, a former Arkansas Supreme Court Associate justice, died in March 1991 at the age of 84. jones was a former State Representative from Montgomery County. He served three terms in the House and served two years as a Deputy Prosecuting Attorney in Montgomery County. He was Little Rock's first traffic judge. He served on the Supreme Court from 1966 until his retirement in january 1977. He was a member of the Pulaski County and American Bar Associations, the First United Methodist Church, the judicial Council and the American judicature Society. In 1974, he served on the National Awards jury of the Freedoms Foundation at Valley Forge, Pennsylvania, a non-profit organization that recognizes citizens and organizations for support of the country. He is survived by his wife, Lorea Hoback jones; two sons, Capt. james Voland jones and Lyn Reuel jones, a daughter Vonda jenice Crocker, three sisters, five grandchildren and one great-grandchild.

EXPERT WITNESS

Arkansas Code Annotated $990.

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11 ~ experience in electric motor wmdnlg. IOdustnal contro~ panel

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1991

EXECUTIVE DIRECTOR'S REPORT

NEW-SPEAK IS HERE It's 1984 and new-speak is here. Have you noticed your mailing label on Association correspondence is different? Do you wonder why yOUT name is in upper- and lowercase letters and the address and city all in capitals? Does it seem strange the label calls the suite or floor where you have your office a "BLDG" or "A PT"? Where is the punctuation we learned about in grade school? You may recall the term "newspeak" from George Orwell's book, 1984. It referred to a sinister technique by a futuristic government to control its citizens by changing the language and the meaning of words. These changes in the labels are a result of your Association's trying to accommodate the Post Office's optical character readers and its ZIP plus four numbering system. It looks to me like we are dealing with newspeak. You may have seen the television commercials in which the Post Office offers to "clean up" address lists for business mailers. As a bulk mailer we also got "an offer we couldn't refuse." Eventually to get any bulk rate price break we are going to have to make the change. Until we read the fine print we even thought we were going to get a lower postage rate for using the additional four digits and having our computer sort our outgoing mail that way. At least the additional four digits added to the ZIP Code are supposed to speed mail delivery as will addresses in a standard Post Office format,

I

BY WILLIAM A. MARTIN

including all capital letters and no punctuation, that can be read by machines instead of people. Perhaps you remember some of the new-speak from the discussion of the recent postal rate increase. The Post Office was going to improve service by slOWing mail delivery. The theory was if it did not lead customers to expect next-day delivery, but slowed service to two day delivery, that was an improvement because customers were not disappointed when they did not expect quick service. Back to this matter of calling your office a "BLDG" or "APT"-we know there are no separate buildings within the Prospect Building and no apartments within the First Commercial Building, but apparently the Post Office computer does not know that. It made the changes. As we find these errors we

I

will change back, but some members do have mail go to their homes and we are not always sure that "APT" is an error. Please tell us if your address is messed up and we will fix it within the bounds of what the Post Office permits. Another problem the Post Office computer has is that it can use only street addresses and does not know where any courthouse or bank building is, even within Fayetteville, where the University of Arkansas School of Law is. That is why we are asking you to give us street addresses (or a post office box number) rather than building names for mailing purposes. Another example of new-speak is what are now "letters" and "nonletters" for bulk mail purposes. A letter is a piece of mail which can go through the Post Office's automated equipment, which means it cannot be more than 61/8 inches high and 11 inches wide and sealed on all sides. Anything else is a non-letter. You may find your NEWS BULLETIN or other things we send to you folded differently and sealed with tabs if we find it takes less of your dues money to pay for the extra labor than for additional postage for a "non-letter." Sure, we are going to have to live with the changes to get your mail through. Please don't shoot your Association because you don't like what Post Office automation is doing to the address you were comfortable with and your local mail carrier fully understood. A lot of the local postal folk don't like new-speak either.

漏1990 Law Office

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We put over 100,000 pages of Arkansas case opinions on this compact disc. lliu can search them all in seconds. Now you can compress hours of research into a few short This ingenious system was designed by a practicing trial lawyer to be easy for any attorney to use. It lets you minutes-and still walk into court with supreme confiresearch the case files 12 different ways and the court rules dence that you've covered all the bases. 15 different ways-the ways attorneys Over 16,000 opinions-those of the were taught to research. Arkansas Supreme Court and Court of Appeals from 1945 to the present-are Narrow your search and save even more time by applying several parameters at yours on this CD at a fraction of the cost of the library it replaces. Plus you get the once. Or simply ignore the fielded search program and search the full text. complete Arkansas Court Rules as an Once you've found what you need, extra bonus. The CaseBase~ system is updated and extracting it into your brief takes only expanded four times a year-more often seconds more. CaseBase~ will drastically shorten your than most law firms update their libraries. research time while reducing your library The CaseBase~ system makes you look and labor costs so much you'll wonder like a computer whiz, even if you know For additional information call next to nothing about computers. It operhow you got along without it. 1路800-364-2512 or write to: For information or a free, no-obligation ates on IBM-compatible equipment, and CaseBas", Dept. AL demonstration of the CaseBas~ system, you pay no long distance or on-line Law Office Information Systems, Inc. charges. call or write us today. P.O. Box 2329 Fort Smith, AR 72902

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199

The technology company with a law degree.

Literacy & Lawyers Just before he turned two years old, my son shocked me by pointing to a supermarket advertisement in the newspaper and announcing, "Kroger." Although he had learned his lellers earlier, this was the first time he read aloud an entire word. Yet despite my pride in his accomplishment at such a tender age, I was struck by the sad irony that so many adult Arkansans lack even the basic reading skills that my son is now acquiring. We have a problem in Arkansas. By various estimates, roughly a quarter of a million adult Arkansans are functionally illiterate. Two years ago the Governor's Commission on Adult Literacy reported that direct costs related to illiteracy in Arkansas amount to $23 million per year. The less tangible costs stemming from chronic social ills such as increased recidivism rates and protracted welfare dependency are even more profound. Many of us who handle criminal or habeas cases know too well the troubles experienced in communicating with a client who cannot be telephoned and who cannot respond to written communications either. Obviously, these problems are not relegated solely to the criminal law context. Fortunately, there are answers to the problem of illiteracy and those of us in the legal profession can be a part of the solution. Indeed, some segments of our profession already are. For several years, Lawyers for Literacy has been quietly working to determine how best to enlist lawyers in the fight against illiteracy. Municipal Judge Bill Watt of Little Rock has experienced some success in using his court to serve as an effective screening source for identifying logical candidates for literacy training. Other municipal

BY GREG JONES judges have been encouraged to explore the possibility of implementing alternative sentencing programs that stress literacy training for illiterate misdemeanants. Similarly, Judges Newell and Mazzanti of the Arkansas Workers' Compensation Commission are heading up an effort to identify illiterates who pass through the Commission's adjudication process. In the near future, the same sort of screening processes will probably be instituted in connection with disability determinations. While the foregoing steps will help us cure part of the problem - ascertaining just who might benefit from literacy training - the other side of the quotient supplying the needed training - also needs to be addressed. Fortunately, Arkansas is blessed with scores of local literacy councils. Many of these need volunteers who can serve as tutors and I invite each of you to consider this as a way that you can become involved.

While the literacy councils need tutors, they also need something that only our profession can offer: legal help. At least 30 literacy councils in Arkansas are not incorporated. Still more have not yet secured tax-exempt status. The process of incorporation is neither difficult nor time-consurning and we will soon be mak.ing that process even easier with a step-by-step guide for attorney volunteers to follow. Lawyers for Literacy and the Young Lawyers Section will make these guides available to any attorney who can spare the few hours it would take to set up the not-forprofit corporation. Securing tax-exempt status is another form of assistance, albeit a more time-consuming endeavor, that lawyers can offer and our guides will address that process as well. But we need volunteers. As it stands, literacy councils in at least 30 counties - Arkansas, Ashley, Benton, Calhoun, Carroll, Cleveland, Conway, Craighead, Crawford, Cross, Drew, Greene, Hot Spring, Jackson, Lee, Miller, Mississippi, Montgomery, Ouachita, Perry, Phillips, Poinsette, Pope, Randolph, Saline, Searcy, Sharp, 51. Francis, Stone and Van Buren counties have not yet been incorporated, much less obtained tax-exempt status. Municipally-based councils in Dumas and Fort Smith also need help in obtaining tax-exempt status. Considering the fact that our profession relies so heavily upon the written word, it would be a shame for us not to join in the effort to combat illiteracy. If you would be willing to assist a literacy council in your area, please contact me at 371-0808 or Millie Hansen at 376-7788.

LAW, LITERATURE & LAUGHTER

U. S. District Judge Jerry Buchmeyer, from the Northern District of Texas, was in town in January. He was the featured speaker at the Arkansas Bar Foundation MidYear Dinner. He was a stitch. Judge Buchmeyer writes "et cetera," a column of legal humor for the Texas Bar Jourl/al. He claims to have begun his efforts in this respect before the birth of LLL. Old issues of the Texas legal periodical bear out his story. As a result of our common

et cetera Author Does Little Rock by Victor Fleming

denominator and communications

over the years, Judge Buchmeyer wound up with a free copy of REAL LAWYERS DO CHANGE THEIR BRIEFS (Little Rock: Rose Publishing Co., 1989) and I wound up with a free copy of ET CETERA (Dallas: Texas Bar Foundation, 1981), a hardbound colJection of the first three years of the Texas jurist's columns. Through et cetera I was led to look up Canadian v. Gllthrie, 87 S.W.2d 316 (Tex. Civ. App. 1935), wherein Chief Justice Hall described the humane destruction of the plaintiff's one-eyed mare thusly:

[Sjhe had been placed ill the city pOlilld [alld} plaintiff was dilly notified and failed to pay her board, whereupon the city marshal employed one jess, whose Slirname was Lemley, more familiarly known as "Panhandle Pete," who, at the

directioll of the mayor, ruthlessly took said mare's life by shootillg her betweell the bad eye and the aile Ilot so bad. III other words, ill the verllaclilar of ganglalld, when Pallhalldle Pete's pistol popped, she petered, for which the pOlmdkeeper paid Pete a pair of pesos. 1 2

ARKANSAS

In et cetera I learned of Mackenworth v. Americall Trading Transportation Co., 367 F. Supp. 374 (E.D. Pa. 1973), in which Judge Edward Becker wrote,

A seamall, with the help of legal sages, sued a shipowller for his wages . .. The shipowner, ill New York City, sllbjected to long arm service withollt pity, thollght the sllit sholiid fade away sillce it was started ill PA ... III order for extraterritorial jurisdictioll to obtaill, 11 is ellough that defelldallt do a sillgle act ill Pellllsylvallia for pec/miary gaill. Alld we hold that the recent visit of defendant's ship to Philadelphia's port is doillg bllsilless ellollgh to brillg it before this cOllrt. Even the footnotes are in rhymed verse: e.g., "Long-arm service is a procedural tool/ founded upon a 'doing business' rule. 42 Pa. S. sec. 8309."

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In et cetera, as well as in person, Judge Buchmeyer shares "the secret" of being a judge: "Act as if you have known all your life what you just learned ten minutes ago." I was fortunate enough to be asked by Arkansas Bar Foundation Pre.ident David Solomon to introduce Judge Buchmeyer at the dinner. I studied the learned judge's resume, which contains, inter alia, the following: BECAME a federal district judge on December 14, 1979. HELD first trial on February 25, 1980 at 9:30. SUSTAINED first Hearsay-of-theRankest-Sort objection at 9:37 a.m., Februa ry 25, 1980 ... NEVER learned to refer to typing pools as Word Processing Units ... UNSUCCESSFUL in attempt to resolve the legal profession's Paperclip Schism (should the big loop go in front or back?) .... STILL can't overcome feeling that the real judge is going to walk into the courtroom and take over. I gave the glowingest introduction imaginable to the fellows of the bar foundation, and the speaker's first remarks were these: "Vic, of all the introductions that I have ever received, yours was certainly the most recent."

For a good read, contact the Texas Bar Foundation to get a copy of Jerry's book.

Š 1991 by Victor A. Fleming

199 1

ACTING AS WITNESS & ADVOCATE IN THE SAME PROCEEDING By Scott StajJord The Supreme Court gets the opportunity to interpret Supreme Court the power to regulate attorneys. In the most rules governing the conduct of attorneys when an following year the court adopted the Canons of Ethics of attorney appeals a disciplinary action taken by the the American Bar Association as the standard of Committee on Professional Conduct. See Rule 5H of the professional conduct of attorneys at law. Per curiam order Procedures of the Arkansas Supreme Court Regulating dated April 24, 1939, set out at 237 Ark. 980 (1963). Canon Professional Conduct of Attorneys at Law. Because such 19 of the Canons of Ethics discouraged appearing in behalf appeals are relatively rare, there are few reported cases of a client as both witness and advocate: interpreting most ethical rules. Certain ethical rules, When a lawyer is a witness for his client, except as to though, are by their very nature more likely to arise as one merely formal matters, such as the attestation or custody of several issues in a contested case before the Supreme of an instrument or the like, he should leave the trial of the Court or the Court of Appeals. One such rule is the case to other counsel. Except when essential to the ends of prohibition on acting as witness and advocate in the same justice, a lawyer should avoid testifying in court in behalf proceeding. This prohibition has been addressed in of a client. 237 Ark. at 980. numerous reported cases of the Arkansas _ During most of the thirty years it Supreme Court and the Arkansas Court ~ ....... governed the conduct of Arkansas of Appeals, but it has seldom been ., ....... attorneys, Canon 19 probably had the subject of disciplinary ~ ~N little effect on trial practice. The proceedings before the , ~ /" ,first mention of Canon 19 in Committee on Professional I ~ an Arkansas case is found in Conduct. This article ~ Toliver v. Riley, 242 Ark. examines the Arkansas ~, \461,414 SW.2d 91 (1967), experience with the/ 1:).. where the court noted attorney-witness ~~ \ ~ that four of the live prohibition, its history, .~ ~>-.. \ attorneys in the case its scope, its exceptions, , ~. ( ~ had testified and called and sanctions for its their attention to violation. • Canon 19. The folEarly History \. lowing year, in RlIslzton Prior to 1939 no ~ v. First National Bank of statute or rule of court ~ \ ~ / Magnolia, 244 Ark. 503, expressly prohibited a \ ~ 426 S.W.2d 378 (1968), lawyer from testifying in ~ the court held it an abuse a case he was trying, but ~ y of discretion for the trial opposing counsel sometimes , ~r ~ court to permit an attorney attempted to bar attorney "\~ ~ i to testily when it was clear testimony on the grounds that ' ~ from the beginning of litigation the attorney had not been excluded " ' , \.. ~ that the attorney was a key from the courtroom with other ....... . , witness. The court based its decision witnesses. See, e.g., American Motor __ _ . . , on Ark. Stat. Ann. 5 28-702 (Rep!. 1962), Coaches, Ltd. v. Willimns, 196 Ark. 48, 116 S.W2d which required the exclusion of witnesses from 585 (1938); Oakes v. State, 135 Ark. 221, 205 S.W 305 (1918). the courtroom, but it also cited Canon 19 and set out in an In most of these early cases, trial court decisions allowing addendum an American Bar Association opinion an attorney to testify notwithstanding his presence in the interpreting Canon 19. Two cases decided during the next courtroom were affirmed as within the trial court's broad year confirmed the court's willingness to apply Canon 19 discretion to determine what witnesses may be put under rather than the witness-exclusion statute to the attorney the exclusion rule. who testified in a case he was trying. Old American Life Canons of Ethics Insllmnce Co. v. Taylor, 244 Ark. 709, 427 S.W2d 23 (1968); In 1938 the voters approved Amendment 28 to the Montgomery v. First National Bank of Newport, 246 Ark. 502, Arkansas Constitution which vested in the Arkansas 439 S.W.2d 299 (1969).

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Code of Professional Responsibility Shortly after its decision in MOlltgo",ery, the Supreme Court replaced the Canons of Ethics with the Code of Professional Responsibility. Robinson, The ArkallSfls Code of Professiollal Respollsibi/i/y, 33 Ark L. Rev. 605, 606 n. 12. The Code, which like the Canons of Ethics was a product of the American Bar Association, included a detailed prohibition against acting as both lawyer and witness: DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment. (B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify: (I) If the testimony will relate solely to an uncontested matter. (2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony. (3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client. (4) As to any matter, if refusal would work a substantial hardship on the client because of the clistinctive value of the lawyer or his firm as counsel in the particular case. DR 5-102 Withdrawal as Counsel When the Lawyer Becomes a Witness (A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is

obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation

and he or a lawyer in his firm may testify in the circumstances enum-

erated in DR 5-101(B)(I) through (4). (B) If, after undertaking employment in contemplated or pending 1 4

ARKANSAS

litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue representation until it is apparent that his testimony is or may be prejudicial to hi. client. The complete Code of Professional Responsibility, including the ethical considerations, or EC's, which supplement the Code's disciplinary rules, or DR's, is set out at 33 Ark. L. Rev. 611 (980). The history of the Code is described in Wright, The Code of Professiollal Respollsibility: Its History 011I1 Objectives, 24 Ark. L. Rev. 1 (970). Rules of Professional Conduct In 1983 the American Bar Association proposed the Model Rules of Professional Conduct as an alternative to the Code of Professional Responsibility, following approval of the Model Rules by the Arkansas Bar Association House of Delegates, the ethical rule. Robinson, sllpra, at 607

1

I I

n.13. This reliance on case authority,

often with no mention of the applicable rule and very little discussion of the facts, makes it difficult to determine the exact scope of the ban. The lack of judicial guidance is aggravated by the tendency of appellate courts to raise the attorney-witness rule SlIa spollte,

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which means that the attorney involved never had the opportunity to argue that one of several exceptions to the rule may apply. Justifications for the Attorney-Witness Rule An additional problem in determining the scope of the rule is that the Arkansas Supreme Court has never undertaken

a systematic

explanation of why it is inappropriate for an attorney to appear as both witness and advocate in the same proceed i ng. Severa I overla ppi ng justifications for the ban have been advanced by commentators and courts in other jurisdictions:

1. Effectiveness as a witness. The lawyer who testifies on behalf of his client clearly has an interest in the outcome of the litigation. This interest undercuts his credibility as a witness and renders him subject to

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impeachment by opposing counsel. The conflict is especially serious if, as is often the case, the lawyer's fee depends on the outcome of the litigation. The lawyer best serves his client, according to this argument, by foregoinl\ his role as an advocate and testifying as a disinterested witness on behalf of his former client. 2. Effectiveness as an advocate. Appearing in dual roles can also reduce an attorney's effectiveness as an advocate. "An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility." EC 5-9 of Code of Professional Responsibility. The lawyer's effectiveness as an advocate is particularly undermined when the testimony he offers is unfavorable to his client. The trier of fact may find the lawyer's statements in his advocate role less credible when the lawyer himself has testified against the client. 3. Confusion of the trier of fact. A third justification for the attorneywitness rule is that the trier of fact may be confused when the roles of advocate and witness are blended. A witness' testimony is supposed to be an objective recitation of the facts. An advocate's function is to make an impassioned argument for one side. EC 5-9 of the Code of Professional Responsibility. A trier of fact, particularly a lay juror, may have difficulty distinguishing the testimony from argument when the same person presents both. "It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proaf." Comment 2 to Rule 3.7. 4. Confusion of the testifying attorney. Some commentators have even argued that the testifying lawyer himself may have difficulty separating the fact he knows from the facts placed in evidence by others. Lewis, The Ethical Di/emma of the Testifyillg Aduucate: Fact or Fallcy? 19 Houston L. Rev. 75, 87 (981); Sutton, The Testifyillg Advocate, 41 Texas L. Rev. 477, 480-81 (963). The incentive to win may "cause a lawyer to slant testimony on the witness stand or to recite facts while commenting on the

199 I

evidence." C. Wolfram, Modem Legal Ethics 378 (1986). 5. Unfairness to other party. Permitting an advocate to testify has also been criticized as unfair to

opposing counsel. Advocates cannot "assert personal knowledge of facts in issue . .. or state a personal opinion as

to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused." Rule of Professional Conduct 3.4(e). The lawyer who testifies is freed from the constraints of this rule, at least while he testifies, while his opponent continues to be bound by the rule. The testifying lawyer may also be advantaged by his ability to adapt his testimony to the demands of his case, and "opposing counsel may be handicapped in challenging the credibility of the lawyer." EC 5-9 of the Code of Professional Responsibility. A variant of the unfairness argument is the fear

(probably unrealistic) that opposing counsel may feel constrained by professional courtesy in his cross-

examination of the testifying attorney. Wolfram, Sllpra, at 378. 6. Damage to public image of lawyers. A final objection to allowing an attorney to appear in a dual role is that the practice damages the public image of attorneys. Wigmore argued that: "(The prohibition) does not fear that lawyers may as witnesses distort the truth in favor of the client, but it fears that the public may think that they may, and that the public's respect for the profession and confidence in it will be effectively diminished." 6 Wigmore, EVIDE CE 775 (Chadbourn rev. 1976). Absent from most Arkansas decisions involving the attorney-witness rule is any discussion of purposes underlying the rule. The notion that a lawyer should not testify seems to have become an

article of faith with the courts to be invoked without any serious consideration whether the ban supports any of the several justifications for the rule. The few decisions that do discuss the rationale for the rule focus on the credibility issue. See, Bolillg v. Gibsoll, 266 Ark.

310,584 SW.2d 14 (1979) appeal after remand, 274 Ark. 53, 622 SW.2d 180 (1981); Dillgledille v. Dillgledille, 258 Ark. 204, 523 SW.2d 189 (1975). Fairly typical is the following statement from Bolillg v. Gibsoll: (A)n advocate who becomes a witness is put in the position of arguing his own credibility and . . . there is inconsistency in the function of an

advocate to advance or argue the cau e of another and that of a witness to state facts objectively. Credibility was the issue here. 266 Ark. at 322, 584 SW.2d at 21. The primary exception to this general failure to consider the justifications for the attorney-witness rule is the Court of Appeals decision in Ford v. State, 4 Ark. App. 135, 628 S.W.2d 340 (1982). There the court set forth various reasons for the rule and then examined whether the reasons warrallted application of the rule to the case before the court. Exception for Uncontested Issues DR 5-101(B)(I) and (2) allowed, and Rule 3.7(1) allows an attorney to testify regarding an uncontested

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I

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DAVI D R. MATTH EWS GEORG E R. RHOADS DEBORAH K. SEXTON

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matter. Canon 19 allowed testimony as to "merely formal matters." The attorney whose testimony is not contested will not have to argue his own credibility, and there is little danger that the trier of fact or the attorney will be confused by the attorney's dual role. "(I)f the testimony will be uncontested, the ambiguities in the dual role are purely theoretical." Comment 3 to Rule 3.7. The exception applies regardless of the importance of the attorney's testimony so long as the testimony relates to an issue that is not contested by an opposing party. Testimony is not uncontested merely because the attorney gives the testimony in affidavit form and is not crossexamined by the opposing party. Mcllltosh v. Southwesterll Truck Sales, 304 Ark. 224,800 S.W.2d 431 (990); Caltoll Properties, 111c. v. Ken's DiscOllllt Blli/dillg Materials, IIlC., 282 Ark. 521, 669 S.W.2d 469 (1984); Bishop u. Lillkway Stores IIlC., 280 Ark. 106, 655 S.W.2d 426 (1983). But testimony is uncontested if it-does not relate to an issue in controversy and does not conflict with the testimony of other witnesses. For example, in Arkallsas BIlle Cross & BIlle Shield, Illc. v. Doe, 22 Ark. App. 89, 733 S.w.2d 429 (987), an attorney testified regarding the behavioral patterns of his daughter

ultimate recipient of the fee, the exception is analogous to that discussed below for the attorney who appears pro se. The exception is not, however, limited by the language of Rule 3.7 to the attorney whose legal services are in issue. The attorney

who opposes a fee request can testify regarding the nature and value of services performed by his opponent. Wolfram, sllpra, at 386. The legal fee exception only applies to testimony regarding legal services rendered in the same action in which the testimony is offered. Comment 3 to Rule 3.7. It does not apply in an action to collect legal fees from a client because the testimony in the collection action does not relate to legal services rendered in the collection action. However, if the attorney is a named party in the collection action, he may testify under the pro se exception discussed below. Exception Where Disqualification Will Work Hardship Canon 19 allowed an attorney to testify "when essential to the ends of justice." DR 5-101(8)(4) permitted and

Rule 3.7(3) permits an attorney to testify when disqualification "would work a substantial hardship on the client." The hardship exception seems to focus on the prejudice to the client that may result from disqualification. It may be difficult, for example, for the client to replace a lawyer who has special expertise in an area of law or detailed knowledge of the client's affairs. Even if a replacement can be found, the cost to the client of bringing a new attorney up to speed in a complicated case may be substantial. See ABA Committee on Professional Ethics and Grievances, Formal Opinion 339 (974). This interpretation of the hardship exception was explicit in DR 5-101(B)(4), which spoke of a substantial hardship "because of the distinctive value of the lawyer or his firm as counsel in the particular case." By contrast, the explanation of the hardship exception in Comment (4) to Rule 3.7 places as much emphasis on the prejudice to the opposing party as on the prejudice to the client:

T. J. RANEY & SONS

priur to her Jnedical treatment.

Because both sides agreed that the child did exhibit the symptoms described by the attorney, the uncontested issue exception applied. Exception for alure and Value of Legal Services An exception for testimony relating to the nature and value of legal services rendered in the case is found in both DR 5101(B)(3) and Rule 3.7(2). There is no Arkansas case law interpreting the exception, but the Comment to Rule 3.7 explains that the exception avoids the need for a

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when the value of legal services is a contested issue. Typical of the actions to which the exception applies are those where attorney fees are an element of recovery. See, e.g., Farm Bureau Mutual Insurance Co. v. Kizzinr, 1 Ark. App. 84, 613 S.W.2d 401 (1981). Because the testifying attorney is the 1 6

ARKANSAS

LAWYER

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(P)aragraph (3) recognizes that a balancing is required between the interests of the client and those of the opposing

party. Whether the opposing party is likely to suffer prejudice depends on the nature of the case, the importance and probably tenor of the lawyer's testimony, and the p~obabili~y th~t the lawyer's testimony will confhct wIth that of other witnesses. Even if there is a risk of prejudice, in determining whether the lawyer should be disqualified due regard must be given to the effect of the disqualification on the lawyer's client. It is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness.

Although the Arkansas Supreme Court considers the prejudicial effect of the attorney's testimony in deciding whether reversal and remand is an appropriate sanction, it has never conducted the balancing test described in the comment in deciding whether to apply the hardship exception. The court is influenced by whether the attorney could have anticipated that his testimony would be required. Although not specifically mentioned, the hardship exception undoubtedly explains the court's willingness to allow an attorney to testify if the necessity for his testimony becomes apparent at such a late stage of the trial as to make it difficult for the client to replace him. Boling v. Gibson, supra; Montgomery v. First National Bank of Newport, sLipra. The hardship exception may also underlie the court's sensitivity to the possibility that a party may call opposing counsel in an effort to disqualify the attorney. Gardner v. State, 263 Ark. 739, 569 S.W2d 74 (978), cert. denied 440 U.s. 911,99 S.O. 1224,59 L.Ed.2d 460 (1979); McCoy Farms, Inc. v. J and M McKee, 263 Ark. 20, 563 S.W2d 409 (978). Exceptioll for Pro Se Appearance by Attorney. Until recently it was unclear whether an attorney appearing pro se could testify in his own behalf. In Arkansas Bille Cross & Bille Shield, Inc. v. Doe, supra, an attorney who was a named party to the suit argued that his right to appear pro se carried with it the right to participate as both advocate and witness. Although the Court of Appeals seemed receptive to this argument, it decided the case on other

grounds. In its 1990 revision to the Rules of Professional Conduct the Supreme Court added a pro se exception to Rule 3.7. 302 Ark. Appendix, 788 S.W2d 462 (]990). It placed the exception in the comment, not in the rule itself: This Rule is not intended to ordinarily prohibit a lawyer from being a witness when the lawyer is also the party of record. A lawyer may represent himself pro se, or be represented by other lawyers in his firm, and in either event he should be permitted in that instance to appear as a witness. 302 Ark. Appendix, 788 S.W2d at 467. The pro se exception is presumably limited to the situation in which the la wyer is a na med pa rty and represents only himself. The lawyer who appears on behalf of a corporation in which he is a shareholder is appearing in a representative capacity and should not be permitted to testify under the pro se exception. Likewise, the attorney who is one of several named parties in the action qualifies for the pro se exception if he represents only hImself but not if he also represents one or more of the other parties. The pro se exception does not jeopardize the effective witness or effective lawyer justifications for the Rule 3.7. The lawyer who appears pro se can hardly complain if his lawyer is less effective as a witness or a lawyer because he testifies. But the other concerns underlying the ban-the confusion of the trier of fact, the unfairness to the other party, and the. damage to the public image of lawyers-are raised when a lawyer appearing pro se is allowed to act as both advocate and witness. The contrary argument is that a layperson who represents himself may appear in both roles, and, as asserted by the attorney in Arkansas Blue Cross & Bille Shield, Inc. v. Doe, a person's right to appear pro se "should not be curtailed because he happens to be a licensed attorney." 22 Ark. App. at 95, 733 S.W2d at 433. Testifying While Another Member of Firm Acts as Advocate Canon 19 was silent on whether the "other counsel" to whom the

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testifying lawyer could leave the case included the testifying lawyer's partner, but cases decided under Canon 19 indicated that it did not. See Old American Insurance Co. v. Taylor, supra; Mont!t0mery v. First National Bank of Newport, supra. Under DR 5101 and DR 5-102 when a lawyer testified, disqualification clearly applied not only to the lawyer who testified but also to all members of the lawyer's firm. The imputed disqualification rule of the DR's was applied by the Arkansas Supreme Court in Boling v. Gibson, supra, where an attorney withdrew from participation in a case in mid-trial, but his firm continued to represent the attorney's client. The American Bar Association's version of ModeJ Rule 3.7 abandoned imputed disqualification in the attorney-witness context. Proposed Model Rule 3.7(b) stated: A lawyer may act as advocate in a trial in wpich another lawyer in the lawyer's rm is likely to be called as a witness unless precluded from doing so by rule 1.7 or rule 1.9. When it adopted the Model Rules, the Arkansas Supreme Court struck subsection (b) of Rule.3.7. 287 Ark. at 497, 702 S.W.2d at 327. The omission

of Rule 3.7(b) suggested that in Arkansas the imputed disqualification rule continued to apply to the attorney-witness situation. The Court confused matters, however, by including in Comment 4 to Rule 3.7 the puzzling statement that: "The principle of imputed disqualification stated in Rule 1.10 has no application to this aspect of the problem." 287 Ark. at 567,702 S.W2d at 374. ot until 1990 did the court clarify the status of imputed disqualification. The court's 1990 amendments to the Rules deleted the quoted sentence from Comment 4 to Rule 3.7, and amended Rule 1.10(a) to state that "while lawyers are associated in a firm, none of them shall knowingly represent a client

when

anyone of them

practicing alone would be prohibited from doing so by Rule ... 3.7." 302 Ark. Appendix, 788 S.W.2d at 464. Imputed disqualification rule now clearly applies to the Arkansas attorney-witness rule.

The Supreme Court has never explained why it rejected Rule 3.7(b) and retained imputed disqualification in the attorney-witness context. It may have been concerned that the

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ARKANSAS

testifying lawyer whose firm is handling the case still has a financial interest in the outcome which renders him subject to impeachment. Because one lawyer is testifying and another lawyer is trying the case, there seems little danger that the practice will confuse the trier of fact or put opposing counsel at a disadvantage. If the effect on the lawyer's credibility is the sole justification for imputed disqualification, the client who is willing to accept this risk should be able to waive application of imputed disqualification and consent to replacement of his attorney by another member of the attorney's firm.

The court has yet to determine whether a lawyer is disqualified from trying a case in which his secretary testifies. In an analogous situation involving disqualification under Canon 9 of the Code of Professional Responsibility, the court refused to extend imputed disqualification to a law firm secretary and would presumably reach the same result under Rule 3.7. Herroll v. fanes. 276 Ark. 493, 637 S.W2d 569 (] 982). Assisting the CI ient in Other Capacities Following Withdrawal The attorney who is forced to withdraw as advocate in order to testify for hi client may wish to assist his

client's

new

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in

lower court's decision. This practice

has been condemned by the Supreme Court, probably on the theory that the lawyer who continues to represent the client in any capacity retains a financial interest in the outcome of the litigation. In Bishop v. Lillkway Stores, Inc., supra, the court disapproved the conduct of an attorney who withdrew and allowed his client to proceed pro se, prepared a trial brief signed by his client, and then later prepared and argued the appellate brief before the court. In a number of

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ilttorney

conducting the trial or appealing the

caSItS th~

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has made it clear that merely serving as appellate counsel after testifying is not permissible. Mctlltosh v. Southwestem Truck Sales, supra; Vaccaro v. Smith, 29 Ark. App. 175, 779 S.W2d 193 (J989); Milburn v. State, 262 Ark. 267,555 S.W.2d 946 (J977); Bolillg v.

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Cibson, supra. At least one concurring opinion goes so far as to deem it improper for a testifying lawyer even to sit at the counsel table during trial because it may appear to the jury that he is an attorney in the case, Aetna Casualty & Surely Compally v. Broadway Arms Corporalion, 281 Ark. 128, 140, 664 S. W.2d 463, 469 (1983)(concurring opinion of Justice Hickman). Effect of Disqualification on Fee The attorney who is forced to withdraw from a case because he plans to testify can be paid for his services prior to withdrawaJ. But if the attorney's fee is contingent on the amount recovered for the client, the attorney continues to have an interest in the outcome, which may undermine his credibility as a witness. This conflict concerned the court in Aelna Casualty & Surety Company u. Broadway Arms Corporation, supra, but not enough to bar the withdrawing attorney from dividing a contingent fee with the lawyer who replaced him. The decision is troubling, particularly in light of the separate prohibition against compensating a witness based on the outcome of the case. DR 7109(c); Comment 3 to Rule 3.4(b). The potential conflict for the testifying attorney can be reduced, though not necessarily eliminated, if the withdrawing attorney is compensated on a quantum meruit rather than a contingent fee basis. This is the rule normally applied when the client discharges an attorney after agreeing to pay the attorney a fee contingent on the amount recovered. Henry, Walden, and

Davis u. Goodman, 294 Ark. 25, 741 S. W.2d 233 (1987). Whether the attorney will be paid may still depend on the outcome of the trial, but not the amount the attorney will be paid. Sanctions for Violation of the Attorney-Witness Rule An appellate court which determines that an attorney has improperly acted as both witness and advocate in a proceeding must resolve two questions. First, because the attorney has violated a rule governing professional conduct, the court must decide what disciplinary action, if any, is appropriate. A second, distinct issue is the evidentiary problem of how to treat the attorney's testimony. When confronted by a violation of the attorney-witness rule, Arkansas appellate courts have not always considered and distinguished ethical and evidentiary questions. Ethical concerns dominate numerous decisions which admonish attorneys not to testify without addressing the admissibility of attorney testimony in the particular case. Walson v. Alford, 255 Ark. 911, 503 S.W.2d 897 (1974); Dingledine v. Dingledine, supra; Canal Insurance Company u. Hall, 259 Ark. 797, 536 SW.2d 702 (1976); lones v. Hardesly, 261 Ark. 716,551 S.W.2d 543 (1977); Enzor u. Siale, 262 Ark. 545,559 S.W.2d 148 (1977); Milburll v. State, supra; Bishop u. Lillkway Siores, Inc., supra. Several decisions go further, holding that while a violation of the attorneywitness rule may warrant disciplinary action against the lawyer, it does not, standing alone, render the lawyer's testimony inadmissible. Weathersbee u. Wallace, 14 Ark. App. 174, 686 SW.2d

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447 (1985); Montgomery v. Firsl National Bank of Newport, sllpra. What is curious about these decisions focusing on the ethical dimensions of the attorney-witness rule is that none of the opinions indicates that the violation of the rule was referred to the Supreme Court Committee on Professional Conduct. This can be contrasted with cases involving attorneys who file belated appeals, arguably a less serious ethical breach, in which violations are routinely referred to the Committee fot its information in the event of future complaints against the attorney. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979). In a few cases the Supreme Court has considered the evidentiary problems posed by violation of the attorney-witness rule as an evjdentiary problem and excluded attorney testimony that affected the outcome in the lower court. This has sometimes meant simply ignoring the attorney's testimony when reviewing the record. McIntosh v. SOlllilwestern Truck Sales, sllpra; Calton Properlies. Inc. u. Ken's Diseollnt BlIilding Malerials, Inc., supra; McWilliams & Kimes u. Tiller, 256 Ark. 994, 511 S. W.2d 480 (1974). But the court has been willing to reverse and remand for a new trial when the attorney's testimony was critical to the outcome in the trial court. Boling v. Gibsoll, sllpra. Tne ethics sanction and the evidentiary sanction are not mutually exclusive. The purposes for the rule should guide its application to a particular case. If the lawyer's testimony confused the trier of fact or

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unfairly prejudiced the opposing party, then exclusion of the testimony should be coupled with disciplinary 8425 So. 73rd East Ave. EXPERT WITNESS action against the attorney. If the Tulsa, OK 74133 GRADUATE MECHANICAl ENGINEER 32 years expenence 10 design. \eStIng. rnanutaetlJl'lng. supet'(918) 252-1905 effect on the lawyer's credibility or on VISO'l and opet'abon of equtpmenC. Also extensMl Ikwn 2-12-24. Amanno. Ttus. executIYe 81lPf!OE1l"Ce. QualIffied as an eapef1lfl many the public image of lawyers are the US NilIVY. 1943-1946; Oklahoma fields. ncludIng" only concerns raised by the testimony, Slalt Umvtrslty. 1946-1949. 8 S • FOltJitl & IbsIs • Malenal Handling Eqpl Mcch. Engll'lccnng; Unit Rig &: the court should admit the testimony • ~ructlOfl Equ.pment equipment Co . Tub.a. 1949-1982: • Trucks of aI IypeS but initiate a disciplinary action ResPOf'5lbk for all cngll'lttnng • Heavy Vehdes fUlK1lO1'ls 19S7-1975: Formed Comagainst the attorney for injury to his • Anne GfOund HandIng Eqpt. pany for Unit Rig In Br:ull 1976: • EIecInc Vehdes client or to the profession, or at the Gencnl Manager. Canal,han OperallOnS. 1917. In charge of Un.. Rig · • Manufaetumg Maetwlefy very least, refer the violation to the 9 YEARS COURTAC)()M EXPERIENCE Product UlI,PIKIfl 1977-1982 Committee on Professional Conduct for its information in the event of future ethical violations by the 1 . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , lawyer.

G.A. Tomlinson P.E.

""""'" """"'"'

Suggestions for Future Application of the Attorney-Witness Rule In the 23 years since it was first applied in a reported case, the attorney-witness rule has become firmly entrenched in Arkansas. This evolution has occurred without any systematic recognition of the justifications for the rule. To the extent they even discuss justifications for the rule, the courts have focused on the credibility justification to the exclusion of other rationales. This emphasis on credibility probably explains the Supreme Court's retention of imputed disqualification in the attorney-witness context and its adoption of a pro se exception to the rule. The rule has other justifications, which should be articulated by the courts and then used to guide application of the rule to the facts of a particular case. The Court of Appeals decision in Ford v. Stale, sllpra, illustrates a justification-based approach that should be followed in future cases. The courts also need to address both the ethical and the eVidentiary questions raised by violations of the rule. Here again, the justifications for the rule should determine whether ethical sanctions, evidentiary sanctions, or both should be applied in the case.

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University of Arkansas at Little Rock School of Law. This article was funded with a research grallt fr01ll the Arkansas Bar

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LAWYER

APR I L

1 9 9 1

CHARLES E. DAVIS harles E. Davis of Fayetteville, received a reprimand for violation of Model Rule 8.4(d) as a result of a complaint filed on behalf of the Social Security Administration (SSA). The record reflected that Mr. Davis represented a claimant for Social Security benefits. Although the claimant initially received favorable results, that decision was later reversed. A request to review the denial of benefits was denied by the Social Security Administration Appeals Council in September 1983. Thereafter, the claimant retained other counsel and instituted a successful action in the U. S. District Court to restore her Social Security benefits. By an Order dated May 3, 1985, the Court awarded fees of 51,312.50 to the attorney of record. On or about June 14, 1985, SSA mistakenly issued a check in that amount to Mr. Davis instead of the claimant's attorney of record. After discovery of the erroneous payment, SSA notified Mr. Davis of that circumstance and made demand for a refund. By a letter dated June 13, 1986, Mr. Davis acknowledged receipt of the monies and informed the agency that a refund would not be made. Subsequent refund demands were ignored by the attorney. The Deputy Commissioner of Operations, SSA, filed a complaint seeking Mr. Davis' disqualification from representing clients before the agency. Mr. Davis failed to respond to the complaint and, on February 20,1990, Administrative Law Judge James Ciaravino entered an order suspending Mr. Davis from practicing before the agency for a period of five years. Mr. Davis' response admits former representation of the claimant regarding SSA benefits and unrelated legal matters. Mr. Davis stated that, following initial award of claimant's benefits, he submitted a petition in January 1983 for the award of attorney fees in the amount of $2,525.00. After reversal of the award of benefits and a denial of the review request, Mr. Davis advised the claimant that an action in the U. S. District Court would probably be successful. According to the attorney, the claimant declined authorization to proceed in that manner and, unbeknownst to him, retained other counsel and successfully pursued her claim. Mr. Davis averred that the SSA check was deposited into his account in the regular course of business, without his personal knowledge, but that it was assumed to be in payment of the attorney fees he had requested in January 1983. Mr. Davis acknowledged writing a letter to the Social Security Administration inviting it to take whatever actions it deemed appropriate. Mr. Davis felt that the claimant had taken a deliberate course of action to deprive him of earned fees and that the situation was a result of the agency's ineptitude.

RALPH E. FAULKNER Ralph E. Faulkner of Camden was suspended from the practice of law for a

DISCIPLINARY ACTIONS period of one year for violation of Rules 1.3, 1.4, 8.4(c) and 8.4(d) as a result of a complaint filed by Michael A. Hale. Mr. Hale stated that he retained Mr. Faulkner in May 1988 to represent him in the filing of a bankruptcy action. Mr. Faulkner agreed to a fee of $600.00 to be paid in installments which Mr. Hale completed in May 1989. Mr. Hale said he experienced considerable difficulty in maintaining contact with his attorney. According to the complainant, Mr. Faulkner seldom returned phone calls and it seemed the only times he was able to talk with his lawyer were on those occasions when Mr. Faulkner would demand payment on the fee installments. When asked about the status of the case, Mr. Faulkner would tell his client that everything was being handled. After approximately one year without any communication from Mr. Faulkner, Mr. Hale made inquiry to the clerk of the bankruptcy court and was informed that there was no record of a petition having been filed on his behalf. Pursuant to the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, the complainant's affidavit was sent by certified mail to Mr. Faulkner's address appearing on the Supreme Court Clerk's registry of attorneys. The mailing was returned by the postal authorities with the notation, "Box Closed-No Order". 0 response was submitted by Mr. Faulkner.

C. RICHARD LIPPARD C. Richard Lippard of Booneville was issued a letter of reprimand for violation of Rules 1.4, 3.2 and 8.4(c) as a result of a complaint filed on behalf of Continental Federal Savings and Loan Association. The complainant, an Oklahoma institution, retained Mr. Lippard in June 1988 to perfect a security interest in a mobile home which had been removed to Arkansas. A retainer fee and advance costs were remitted by the complainant. In the course of the succeeding twenty-one (21) months, the complainanYs agents and employees contacted Mr. Lippard by letter and telephone on numerous occasions to ascerlain the status of the proceedings. Some of the inquiries went unanswered. Mr. Lippard responded to other inquiries from complainant's general counsel by telling him that a hearing had been scheduled on a petition for injunctive relief. When dates for the scheduled hearings had passed without communication from Mr. Lippard, the client would make inquiry and be

informed that the court dates had been postponed. In January 1990, the client's general counsel called Mr. Lippard to complain about the lack of progress and to request file marked copies of the pleadings. Mr. Lippard assured him that copies would be sent promptly and that the whole matter should be successfully concluded within seven to ten days. After some three weeks without receiving the requested documents, the client contacted Mr. Lippard and stated that his services would be terminated if the requested material was not received by the close of business on February 7, 1990. The afternoon of February 7, the client received facsimile copies of a purported file marked copy of the pleadings and a draft of an order which Mr. Lippard indicated would be signed by the judge that day. On April 20, 1990, complainanYs counsel called to check on the status of the case but was unable to reach Mr. Lippard. When his call was not returned, complainant's counsel contacted the court clerk and was informed that the clerk could not find a record of any pleadings filed in the subject legal matter. The client telephoned Mr. Lippard on April 25 to inform him of the clerk's comments. According to the complainant, Mr. Lippard stated that a lawsuit had been filed and he did not know why a docket entry could not be found but that the situation would be corrected. The following morning, Mr. Lippard told the client that an associate had been responsible for handling the case, that the lawsuit actually had not been filed and the file mark on the copy of the furnished pleading had been in error. The complainant terminated Mr. Lippard's representation and requested return of its monies expended. The advanced fees and costs were returned. In his response, Mr. Lippard admitted representing the complainant and that he had failed to handle the matter properly and had made misrepresentations to the client. He stated that the death of a family member, business and personal responsibilities and difficulties had caused him to experience severe depression and emotional problems which led to his inattention and handling of this case. Mr. Lippard said he sought professional help and had made substantial progress in dealing with his situation.

DO ALD EDWARD HAMILTON Donald E. Hamilton of Forrest City was suspended from the practice of law for a period of one year for violation of Rules 1.3, 1.4, 8.4(c) and 8.4(d) as a result of a complaint filed by Darlene Goins. Ms. Goins hired Mr. Hamilton on October 18, 1989, to handle a real estate transaction and to wind up a pending probate of an estate. Ms. Goins was a tenant in common in certain real property with her former spouse who was deceased. Two surviving children of that marriage had not reached majority. Mr. com;"u~d

on page 22

Hamilton told Ms. Goins it would only take a few weeks to obtain court approval for the sale of the real property, close the estate, establish guardianships for the minor children and disburse the sale proceeds. The property was sold on October 26,1989, and the proceeds placed in Mr. Hamilton's trust account. The client was able to obtain sufficient funds from the trust account to satisfy the existing mortgage indebtedness. Mr. Hamilton informed Ms. Goins that all the legal matters would be finalized at a court hearing on November 9,1989. On that date, she appeared at her lawyer's office and was informed that Mr. Hamilton would be unable to attend the hearing. Ms. Goins was told that the attorney would take care of the matters the following week and her attendance would not be required. To Ms. Goins' knowledge no hearing was held nor were any papers filed with the court at the time promised by her attorney. Ms. Goins did obtain her share of the sale proceeds on December 5, 1989. Since that date, she has been unable to contact or to communicate with Mr. Hamilton. As of September 20, 1990, the funds belonging to the children had not been disbursed. Pursuant to the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, the complainant's affidavit was sent by certified mail to Mr. Hamilton's address appearing on the Supreme Court Clerk's registry of attorneys. The mailing was returned "Undelivered" and no response was submitted by Mr. Hamilton.

GARNER L. TAYLOR, JR. Gamer L. Taylor, Jr. of Little Rock was suspended from the practice of law for a period of one year for violation of Rules 1.3, 1.4, 8.4{c) and 8.4{d) as a result of a complaint filed by John Kiefer. Mr. Taylor was retained to represent Mr. Kiefer in his effort to obtain post-conviction relief. Mr. Taylor was paid a retainer of $750.00 on March 7, 1989, and received an additional fee of $4,250.00 on March 18, 1989. Between March 10 and May 19, 1989, Mr. Taylor visited Mr. Kiefer four times at the Department of Correction. Since the date of the last visit, Mr. Kiefer and other persons on his behalf have been unable to contact Mr. Taylor by letter or telephone. Mr. Kiefer was able to determine that no application for relief was ever filed on his behalf by Mr. Taylor. Mr. Taylor was served with the complaint but failed to file a response. Mr. Taylor was issued a letter of reprimand for violation of Rules 1.3, 1.4 and 8.4(d} as a result of a Per Curiam. The appellants, Gary and Dixie Cranford, retained Mr. Taylor to appeal the denial of their petition for post-conviction relief. He filed notice of appeal and timely lodged the record but failed to file the appellants' brief. The Cranfords, unable to establish contact with Mr. Taylor, successfully petitioned the Arkansas Supreme Court for permission to file a belated brief. Mr. Taylor received the Committee's complaint but failed to respond.

2 2

ARKANSAS

LANNY K. SOLLOWAY Lanny K. Solloway of Fayetteville was issued a letter of reprimand for violation of Rules 1.3, 1.4 and 8.4{d) as a result of a complaint filed by Darlene Proctor. Ms. Proctor stated that Mr. Solloway was retained to pursue a civil rights action against the Veterans Administration. Over the next two years Ms. Proctor reported extreme difficulty in contacting Mr. Solloway or receiving satisfactory responses to inquiries regarding the case status. Several administrative reviews and appeals of Ms.. Proctor's claim were conducted within the governmental agency. Following initial denials for relief, the Equal Employment Opportunity Commission's Office of Review and Appeals granted the relief sought. Ms. Proctor was advised by the agency to submit certain information regarding employment and income data to be used in the determination of the award settlement. She immediately informed Mr. Solloway of this information and provided him with necessary documentation to comply with the agency's request. Mr. Solloway assured her the matter would be handled promptly. The VA sent Ms. Proctor two subsequent requests for the information. The last request imposed a deadline for receipt of the information for consideration. Mr. Solloway assured his client that the information would be timely submitted even if he had to "hand deliver" the material. At noon on the final day for submission of the information, Ms. Proctor contacted Mr. Solloway and discovered that Mr. Solloway had not completed preparation of the material. In an attempt to comply with the VA request, she prepared a letter and personally delivered it to the agency's offices. Mr. Solloway did not respond to the complaint. Mr. Solloway was reprimanded for violation of Rules 1.3 and 8.4{d) as a result of a Per Curiam. The Arkansas Court of Appeals granted a Motion for Rule on the Clerk after Mr. Solloway admitted that the appeal brief was not filed on time due to his negligence. Mr. Solloway was served with the complaint from the Committee but failed to file a response.

LARRY W. HORTON Larry W. Horton of Malvern was reprimanded for violation of Model Rules 1.3,3.2 and 8.4(d) as a result of a Per Curiam. The Arkansas Court of Appeals denied the State's motion to dismiss the appeal in a criminal case for appellant's failure to timely file a brief. The Court found that Mr. Horton had previously received an extension of time in which to file appellant's brief. After that extension expired without filing of the appellant's brief, the Clerk of the Court twice wrote Mr. Horton to inquire of the status of the appeal and requesting a response. No response was received by the Clerk. In his response to the Committee, Mr. Horton stated that, after filing notice of appeal, he was contacted by the client and advised that other counsel was being employed to pursue the appeal. He

LAWYER

APRIL

admitted receiving the Clerk's first inquiry but did not respond because he was told by the client "not to worry about it". Mr. Horton said that, due to difficulty in maintaining contact with his client, prolonged hospitalization and relocation of his office, he did not receive the Clerk's second letter until after the issuance of the Per Curiam.

HARRELL A. SIMPSON, JR. Harrell A. Simpson, Jr. of Pocahontas was issued a letter of reprimand for violation of Rules 1.3, 1.4, 1.16 and 8.4{d) as a result of a complaint filed by Trina Hackworth. Ms. Hackworth said she retained Mr. Simpson in April 1990, to file a petition for increased child support from her former husband. Ther:eafter, Ms. Hackworth was served with a petition seeking visitation rights on behalf of the paternal grandparents. She telephoned Mr. Simpson to inform him of the petition. He said he would take care of it and for her to send him the papers, which she did on May 3. On Friday afternoon, July 20, 1990, the paternal grandparents appeared at the Hackworth's home to pick up their grandchild for visitation. Ms. Hackworth refused to permit her daughter to leave with the grand parents. The grandfather attempted to present a copy of a court order to Ms. Hackworth, but she told the parties to come back later when her husband returned from work. The grandfather told Ms. Hackworth that she and her husband would be in contempt of court if they refused visitation. The grandparents subsequently returned and further discussion ensued concerning the visitation rights. The Hackworths refused to allow the child to depart. Mr. Hackworth became involved in a heated exchange and confrontation with the grandfather. Ms. Hackworth was unable to contact her attorney that evening, but talked with him the following morning and related the events. Ms. Hackworth said Mr. Simpson told her that she and her husband might be in a little trouble and that she should call the grandparents to make arrange-ments for visitation. She requested that Mr. Simpson contact the grandparents' attorney. Ms. Hackworth checked with the chancery clerk on Monday, July 23, 1990, and discovered that a hearing had been held July 12 at which the paternal grand-parents were granted visitation to have commenced the preceding weekend. She stated she had not received notice of a hearing. Although the records of the court reflected Mr. Simpson had received notice, he failed to appear at the hearing. Later that Monday, Ms. Hal:kworth was served with a show cause order for contempt and her hu band was served an arrest warrant for assault. Ms. Hackworth terminated Mr. Simpson's representation and requested return of her files. As of the date of Ms. Hackworth's affidavit of complaint, Mr. Simpson had not complied with her request. Mr. Simpson was served with the Committee's complaint but failed to submit a response.

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DR TAIBI KAHLER'S PROCESS COMMUNICATION... The Power ofSuccessful Communication in Both Professional and Personal Relationships

Dr. Knhlrr .arned bis doctorau in child d~v~lopm~nt and family lif~ from Purdu~ Ulliv~rsity. H~ is tb~ CEO of

Kahler Communications Inc., and

Pruident of Taibi Knblu Associates, botb ofLittk Rock. He is alro a kctl/rnand author, having had some 30 articles

published in clinical and mOllogeme1lt professional journals nationally Ilnd intenlotionally.

o

ne might say that Dr. Taibi Kahler plays a big pan in assuring the success of ASA's space missions. He is responsible for making sure that astronauts closeted together in a spaceship can handle the stress of the situation and get along with one another. He does so through his own Process Communication Model. No mattet how complicated and dry ,ha' may sound, it is in acrualiry a very speedy (Kahler can diagnose someone virtually within minutes and accurately predict their pattern of negative behavior under stress) and fascinating process. It all started in 1971, when Dr. Kahler

developed a PROCESS...a scquence by which people interacted with one another both in positive and negative ways. The uniqueness of that discovery was that human behavior could be identified objec'ively li'crally second by second as being either productive (communication) or non-productive (miscommunication). For that unique discovery. Dr. Kahler was awarded the 1977 Eric Berne Memorial SciclHific Award and was honored by more rhan 20,000 of his clinical pecrs from 52 countries as having provided the most scientific discovery in his field of psychology. The Process Communication Model basically divides people into certain personality types: ReactOrs, Workaholics. Per iSters. Dreamers, Rebels and PromOters. The model also predicts how the various types will respond to certain conditions in their lives, how they will grow and whether they are compatible with various types of people. Thc following arc brief, simplified descriptions of each personality type Dr. Kahler's method will identify: • ReactOrs - They arc compassionate, sensitive, and warm. In distress they make misrakes and invite criticism. • ''''orkaholies - They are responsible, logical, and organized and think first. In diStress they over-comrol and are critical of others "who can't think." • Persisters - They are dedicated, observant, and conscientious, and have strong values and opinions. In distress they push beliefs and are critical of others who don't believe as they do. • Dreamers - They are imaginative. calm, and introspective, and prefer external motivation. In distress they passively wait and withdraw. • Rebels· They are spontaneous, playful, and creative. In distress they blame and are blameless.

• Promoters - They are adaptable. persuasive. and charming. In distress they manipulate and are vindictive. People will be a combination of all six with one being dominant in distress. Dr. Kahler prepares Personal Stress Profiles or Executive Stress Profiles. A Personal Suess Profile will help you learn to identify your personal strengths and teach you how to avoid or manage negative stress while increasing and utilizing positive stress. An Executive Stress Profile is very dose to the Personal Stress Profile, but provides more information into your management styles, channels of communication. environmental preferences, management perceptions and supervisory span. Dr. Kahler's 'heory has withsrood professional scrutiny and the test of time since 1971. at only can it be utilized in your professional life. bur in your personal life as well. In one word. it's invaluable.

Annual Meeting Reminder June 12 - 15, 1991 Thou attending this Jear's Annual Muting at the Arlington Horel in Hot Springs will b, abl, to !;<nr Dr. Kabler, preuntation at a General Session on FridaJ morning.

As a special offering, muting participants can have slress profiles prepared for a nominal charge (be sure 10 look for the Annual Muting Packet 10 find information on how to sign up).

Dr. KaMer will also address an event for lawyers and spouses on Stress as Enemy or Stress as Ally!

LAW OFFICE J\\ANAG fA lENT: WHAT'S NEW?

Cost Containment Revisited For the past few years we have heard and read that the road to higher net income is through an increase in productivity. The focus of attention has been on two areas: (l) increasing hours worked, billed and collected; and (2) increasing expenditures for office technology to enable timekeepers to utilize time more effectively in providing services to clients. An increase in productivity affects the bottom line more than any other means.

However, prior to our recognition of the need to improve productivity, almost all attempts at increasing the net income of the law office were in the cost containment area. Those law offices that have enhanced productivity and are not yet satisfied with the bottom line should perhaps revisit those procedures and practices in the cost containment area to help them achieve their net income goals. The law office of the nineties must be highly productive with reasonable per lawyer expenses. One method of obtaining and maintaining a lean law office requires periodic review of expenses. Each expense should be looked at to determine if it is needed to support the delivery of services to clients. The question should not be; "What is the projected expense for the year?"; but it should be; "Should we incur the expense?". Employees Costs Are our salaries competitive with

the market? Would more effective

management allow us to reduce the number of employees? Do we have adequate policies dealing with sickness, disability, personal and vacation leave? ot having clear policies can be very costly. Have group medical, disability and life policies been reviewed 2 4

ARKANSAS

IBYJERRYSC~ARTZI recently? Increases in deductibles, some self-insurance, use of Health Maintenance Organization and Preferred Provider Organization contracts can produce drastic savings in premiums. New disability contracts offer many more benefits at less cost than older contracts. Should more contract labor be used in peak times? Contract labor does not increase pension, FICA, Federal and State Unemployment taxes and Worker's Compensation premiums and can prOVide discounted employment fees in some cases if the temporary is hired. Occupancy and Equipment Costs Do we review nearby building square footage rates to see if our arrangements are satisfactory? Can storage space be obtained off-site for reduced rates? Are nearby buildings offering incentives which might reduce overall occupancy costs? A constant review of rates helps not only in our decision to relocate, but also in our negotiation if we decide to

LAWYER

A I' R I L

remain in our present office. Have we reviewed our equipment arrangements with our vendors for both lease and maintenance costs? Monthly rentals of equipment are normally higher than owning or leasing. Maintenance costs have skyrocketed. Moybc 0 request for a 10% or 20% discount is in order because of our volume or good maintenance record. Do we have procedures to track maintenance costs charged to us on a contract basis versus time and materials? Are all cost control measures in place so clients are accurately charged for items expended on their behalf? Operations, Professional Expense and Insurance Have we standardized the types of supplies the firm will purchase? Do we buy special items? All office supply items should be standardized so items can be purchased in quantity and in some instances directly from the manufacturer or wholesale house. Items of a special nature should be purchased by individuals at their own expense. Have comparative bids been taken on law office printing? Many national printing houses can provide printed and engraved material for half the cost of local vendors.

Do we monitor the number and involvement in the various associations and clubs that lawyers join and whose dues are paid by the office? Membership fees have risen in the last few years and participation is down. Do we have strict guidelines on Ollr entertainment and business development expenses? Are we taking advantage of local continuing legal education programs to eliminate travel costs? In the area of insurance are we

199 1

developing programs to maximize credits on professional liability insurance premiums. Docket and date control, conflict of interest and attendance hours at CLE programs are a few of the areas where premium credit can be obtained. All Other Costs Have long distance services been reviewed since the breakup of AT&T? Are adequate safeguards employed

ARKANSAS BAR FOUNDATION SCHOlARSHIPS & AWARDS

on the postage and facsimile machine to eliminate unauthorized use? Are there any duplications in the library? Have lawyer lists been reviewed to detennine if the various lists increase business referral? Is lawyer time being wasted because the office does not use consultants? Are contributions planned to not only benefit the organization, but also the image of the law office?

John H. Lawrence, Jr. P.E. BS.C.E., M.B.A. Member - Panel of Arbitrators

Expert Witness· Graduate Civil Engineer 20 Years experience heavy construction in design, supervision & operations. Former owner-Lawrence Brothers Construction Co. Particular areas of expertise include:Highway Construction Steel Erection Concrete Placement Heavy Equipment (Cranes, Bulldozers, Etc.) Railroad Construction Soil Engineering Federal & State Damage Claims Marine Construction

M. JEFF STARLING, JR. LABOR LAw AWARD A scholarship in memory of [he lare M. Jeff Srarling, Jr., a parrner in the Ramsay, Bridgforth, Harrelson and

Starling law firm of Pine Bluff, esrablished by his family and friends. The scholarship goes to the most outstanding labor law student at the University of Arkansas at Fayetteville Law School. JOHN

H.

3600 North Hills Blvd.• North Little Rock, AR 72116 • (Sal) 771-1386

BRUNSON

MEMORIAL SCHOLARSHIPS A scholarship in memory of John H. Brunson established years ago as a separate trust and transferred to the Arkansas Bar Foundation for investment and administration. The scholarship goes to one or more outstanding student members of the UALR Law Journal selected by a committee drawn from faculty and trust creators.

W A. ELDREDGE, JR. AWARD An award to an outstanding young trial lawyer to be used for continuing legal education. Established by friends of Bill Eldredge, a partner in the Friday,

Eldredge and Clark iaw firm in Little Rock to show appreciation for his contribution to trial practice. The winner is selected by a comminee of five active trial lawyers. Contributions to any of thru rndowrd scholarships and awards may b~ um to tlu Arkansas Bar Foundn.tion, 400 \\'i'm Markham, Lit& Rock, Arkansas 72201. The Foundn.tjon is tl!l IRS Code 501 (c) (3) organization and dOllatio1lJ may b~ c01lJidtr~d charitable

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issue involves exactly how the "right to die" that is clearly

highly politicized battlefield of personal versus societal

exercisable by a competent patient can and should be

rights is the abortion area. While not overturning Roe v.

exercised when that same patient is no longer competent

Wade, Webster, sllpra, has certainly opened the door to

to personally and directly exercise such right. While the

increased state regulation of abortion - and of legal

issue is generally settled in cases of adult patients'

challenges to these regulations.

removal from life support where the patient condition is

Even the sterilization area, which had remained

"terminal" and where death is "immjnent," the issue is

relatively quiet for a few years saw action recently when

much more controversial and unsettled where the patient

the Arkansas Supreme Court in McKilllley v. McKilllley

is not terminal, not on artificial life support - and

struck the sterilization procedures for incompetents in

particularly where the treatment being refused on the

Ark. Code Ann. §§20-49-301 to 20-49-304 as failing to meet

patient's behalf is nutrition and hydration. 5 Whether such

minimum requirements of procedural due process such as

surrogate decisions should be made by families,

notice to the incompetent, representation by counsel,

physicians, courts, or some combination of the foregoing -

opportunity to be heard, or to cross-examine those

and exactly what process and what medical and legal

seeking the sterilization.

standards should be used - is the issue. The

AIDS

CTlIWIl

case

10

(as with the Supreme Court's abortion decision in Webster

AIDS, like the death and dying and abortion and

v. Reprodllctive Health Services 6) clearly throws the issue of

sterilization areas, is a crucible where other, generally

defining the process back to the states. As might be

accepted legal principles are tested under fire - and the

expected different states are reacting differently. Missouri,

rights of the individual must be weighed against the

as Cmzall approved, requires proof that is "clear and

rights of society. One of the current issues involves the

convincing" as to what the patient's wishes would have

patient's right to consent or refuse to consent to medical

been. Other states, such as Florida, have established

treatment. The generally accepted legal principle was set

judicial guidelines for such decisions to be made without

forth by Justice Cardozo in Scllloelldorf[ v. Society of New

the necessity of court approval.

York Hospitals, II when he said:

7

Arkansas' amended

version of the Uniform Rights of the Termjnally III Act 8

Every human being of adult years and sound mind has a right to

has added a category of patient called "permanently

determine what shall be done with his own body; and a surgeon

unconscious" for which an advance directive or proxy

commits an assault, for which he is liable in damages... This is

determination may be effective. There are two clear messages in the

who performs an operation without his patient's consent true, except in cases of emergency where the patient is

CrliZlHl

decision,

one for the present and one for the future. The message

unconscious, and where it is necessary to operate before consent can be obtained.

for the present is that it is risky to rely on any method of

However, what happens when thjs "right" comes into

substituted consent other than one which has the express

direct conHict with the "rights" of others? Tills situation

approval of a state's courts or legislature. In Arkansas,

occurs when a health care worker is exposed to the blood

thjs will translate into a substantially increased usage of

of a patient through such common occurrences as a

declarations executed under the Arkansas statute.' The

needle stick where the patient refuses to allow his blood

message for the future is that there is more change, more

to be tested for the presence of AIDS antibodies. Should

controversy to come, and more law to be developed.

the patient be allowed to refuse? If not, will he be

Justice Scalia's comments in Crllzall on the lack of

physically restrained while his blood is drawn? If the

ree;tsonable distinction between active and passive

blood has previously been drawn for other purposes, may

euthanasia may be the opening shot in yet another battle.

it be tested over the patient's refusal? Do the usual

ABORTION AND STERILIZATION

requirements for an informed consent apply? These and

Another health law area which continues to be a

many other questions remain. In Act 289 of 1991, the

Arkansas legislature this year attempted to resolve this

payable to the insured. One of the fundamental issues

issue in favor of health care workers.

here was the public's interest in health care cost

Access to and confidentiality of AIDS-identifying information is another area of legal conflict. Some states,

containment versus the patient's freedom to contract as he

wishes.

such as California, have made such information super-

Blue Cross ran into similar contractual difficulties

confidential. Others, such as Texas, permit disclosure to

when the Arkansas Court of Appeals, in Arkansas Bille

health care workers and sexual partners. Arkansas has

Cross and Bille Shield v. Brown l5 struck as against public

taken a more middle-of-the-road approach in requiring

policy a policy exclusion that denied coverage for

reporting to the State Health Department, but otherwise

inpatient services rendered prior to the time that an

requiring confidentiality.

insured terminated such care against medical advice.

CHARITY CARE

CONCLUSION

While we have not quite reached the stage of universal

This article has done little more than skim the surface

health care advocated by Senator Kennedy and others,

of a few of the battles which are currently being waged in

we are seeing gradual steps in this direction. The most

an effort to define the limits of all our freedoms. Someone

significant of these is the federal COBRA Anti-Dumping

far wiser than I once said that even if you are not in a

Law 12 which requires emergency examination and

position to affect the outcome of the battle, if you are

treatment without regard of a patient's ability to pay, and

going to be there anyway, at least it is more interesting

limits transfers of unstabilized patients. Among the

when you know who is fighting for what.

various remedies Congress has enacted is a right of the

patient to bring a civil action seeking redress for any statutory violation. Federal and state courts are just now beginning to flesh out the requirements and limitations of such actions. 13

TORT REFORM Another area where the battle between individual rights and societal rights is being fought is that of tort reform. Here, societal interest in lower malpractice costs

is being weighed against the patient's right to recover damages for his injury. Typically, these efforts involve such things as requiring prior review of a claim by a review panel, decreasing statutes of limitation, limitations

on recovery of non-economic loss such as pain and

suffering, abolishment of the collateral source rule, requirements of periodic payments of awards, limitations on contingency fees and elimination of joint and several

Even fundamental contractual issues are in play. A good example of this is the recent Pope County Chancery decision in AMI v. Arkansas Bille Cross/Bille Shield" in which the Chancellor rejected Blue Cross' refusal of its insured's assignment to the hospital of moneys otherwise

ENDNOTES 1. As the old Arabian proverb goes: "He who has health has hope; and he who has hope has everything." 2. Cruzan V. MOlllon, 1105.0.2841 (1990). 3. The four traditional State interests are: (1) preservation of life; (2) prevention of suicide; (3) protection of the rights of innocent third parties; and (4) preservation of the integrity of the medical profession. 4. See Ark. Code Ann. §§20-17-201 to 20-17-208. 5. The nature of the growing political controversy involved in such decisions was illustrated by the twelve days of intense protests between the Missouri Probate Court's ultimate authorization of the removal of a feeding tube which had kept Nancy Cruzan alive for nearly eight years after her death on December 26,1990. 6. 1095.0.3040 (1989). 7. See /n re GlIardianship of Browning, 568 So.2d 4 (Fla. 1990) 8. Ark. Code Ann. §20-17-201 (11). 9. This process will also be accelerated by notification and education requirements which hospitals, nursing homes, and others will have beginning December 1, 1991 under provisions of the Omnibus Budget Reconciliation Act of 1990. 10. Supreme Court of Arkansas, 0.90-199, March 11, 1991. 11. 105 N.E.2d 92 ( .Y.1914) 12. 42 USc. §1395dd. 13. See Bryanl v. Riddle, 689 F.5upp. 490 (E.D. Pa. 1988); Cleland v. Bronson Health Care Grollp, 917 F2d 266 (6th Cir. 1990); and Sorrells v. Babcock, 733 F.5upp. 1189 (N.D. Ill. 1990). 14. Pope County Chancery Court, No. E-87-414, March 15,1991. 15. 33 Ark. App. 44 (December 19,1990).

THE DEATH OF

NANCYCRU

• •

FOR THE

As a result of the convergence of three forces, the concept of and requirements for a valid "living will" have become matters about which every Arkansas practitioner must become familiar in order to fully advise individual clients about the health care options open to them. The three forces are the Arkansas Rights of the Terminally III or Permanently Unconscious Act, the United States Supreme Court decision of Crt/zan v. Director, Missouri Dept. of Health, (110 5.0. 2841, 111 L.Ed. 2d 244 (1990)) and the Patient Self-Determination Act. The purpose of this article is to explore these three forces and their relationship to each other.

LIVING WILL IN SAS A

THE DEATH WITH DIGNITY ACT. The precursor of the Arkansas Rights of the Terminally 1Il or Permanently Unconscious Act was the Death with Dignity Act. In 1977, the Arkansas General Assembly attempted to address the rights of patients who require the application of extraordinary medical means in order for their lives to be prolonged. Its solution was to pass what is commonly known as the Death with Dignity Act, (Act 879 of 1977) making Arkansas only the second state in the union to deal with the very difficult issues involved. This Act permitted a person to refuse the application of extraordinary medical means to prolong his or her life by executing a document meeting the same requirements as a Will - thus the term "living wilL" The statement of two (2) physicians that extraordinary means would have been used was also required. The right to request that all means, including extraordinary ones, be used to prolong one's life was also recognized. One of the primary problems with applying the Death with Dignity Act proved to be the lack of definitions.

NEW LIFE

BY

JACK MCNULTY

The Arkansas Rights of the Terminally III or Permanently Unconscious Act. In the ensuing years, it became obvious that the relatively simple statutory framework of the Death with Dignity Act was inadequate to answer many of the complex questions involved. As a result, in 1987, the General Assembly passed the Arkansas Rights of the Terminally III or Permanently Unconscious Act. (Act 713 of 1987; Ark. Code Ann. §§20-17-201 through 20-17-218) This Act begins with a series of definitions the understanding of which is essential to understanding the Act. "Terminal condition" is defined as an incurable and irrevocable condition that will result in death within a relatively short time without the administration of life-sustaining treatment. "Permanently unconscious" means a lasting cundition, indefinitely without

change in which thought, feeling, sensations, and awareness of self and environment are absent. "Life-sustaining treatment" is defined as any medical procedure or intervention that, when administered to a qualified patient, will serve only to prolong the process of dying or to maintain the patient in a condition of permanent unconsciousness. A "Qualified patient" is a patient eighteen (18) or older who has executed a declaration or appointed a health care proxy and who has been determined to be

in a terminal condition or in a permanently unconscious state by the attending physician and another qualified physician who has examined the patient. A "Health care proxy" is a person who is eighteen (18) or older appointed by the patient as attorney-in-fact to make health care decisions including the withholding or withdrawal of life-sustaining treatment, if a qualified patient, in the opinion of the attending physician, is permanently unconscious, incompetent, or otherwise mentally or physically incapable of communication. After defining the critical terms, the Arkansas Rights of the Terminally III or Permanently Unconscious Act sets forth the requirements for a valid declaration governing the withholding or withdrawal of life-sustaining treatment. In addition to the declaration being signed by the declarant, or another at the declarant's direction, it must be witnessed by two (2) individuals. If the patient is a "qualified patient" - that is, one who is eighteen (18) or older who has executed a declaration or appointed a health care proxy and who has been determined by the proper physicians to be in a terminal condition or in a permanently unconscious state - the health care proxy has authority to make the treatment decisions in consultation with the attending physician. A declaration may be executed on behalf of a minor or on behalf of an adult who has not prepared a valid declaration or designated a health care proxy and is no longer able to make health care decisions. A hierarchy of individuals or category of individuals who may execute a declaration under those circumstances is set forth. The Act sets forth a form for use in the case where the patient has a terminal condition (Appendix A), although the form of a valid declaration is permitted to vary. Another form is set forth for use in the case of a permanently unconscious patient (Appendix B). The Health Law Committee of the Arkansas Bar Association has suggested a form which combines the two forms set out in the Act (Appendix C). A health care provider who is furnished a copy of the declaration is to make it part of the declarant's medical file. If the attending physician is unwilling to comply with the declaration, he or she must promptly so advise the declarant and promptly take reasonable steps to transfer care of the declarant to another physician or health care provider. . The declaration becomes operative when it is communicated to the attending physician and the declarant is found to be in a terminal condition and no longer able to make decisions regarding administration of life-sustaining treatment. It may be revoked at any time in any manner by the declarant and the revocation is effective upon communication to the attending physician or other health care provider by the declarant or a witness to the revocation. The revocation is to be made a part of the declarant's medical record. Immunity from civil or criminal liability or discipline for unprofessional conduct for carrying out a valid declaration is granted. On the other hand, criminal penalties for committing various acts in connection with

declarations are prescribed. The Cruzatr Case. In Cruzan v. Director, Missouri Dept. of Health, supra the United States Supreme Court for the first time addressed the issues involved in applying state legislation on the rights of the terminally ill or permanently unconscious. Nancy Cruzan suffered serious injuries as a result of an automobile accident in 1983. For several years, she had been in a "vegetative state" - that is, a state where her body functioned entirely in terms of its internal controls, but there was no behavioral evidence of either selfawareness or awareness of the surroundings in a learned manner. She was not "terminally ill," as medical experts had testified she could live another thirty (30) years. Thus, she was "permanently unconscious" as defined in the Arkansas Rights of the Terminally III or Permanently Unconscious Act. She had never executed any written declaration giving instructions as to what should be done in such a situation. Although all of Nancy's medical expenses were paid by the State of Missouri, after it became apparent that she had virtually no chance of recovering any awareness although she might "live" a prolonged period of time, ancy's parents and co-guardians requested termination of her artificial nutrition and hydration. The hospital employees refused to do so without court approval. The only evidence of Nancy's "intent" was testimony that she had once told a roommate that if sick or injured she would not wish to continue her life unless she could live at least halfway normally. A Missouri trial court authorized the termination. The Supreme Court of Missouri reversed. It found that the Missouri Living Will Statute embodied a State policy strongly favoring the preservation of life; that such a public policy required clear and convincing evidence of a patient's desire for withdrawal of life-sustaining treatment; and that Cruzan's statements to her roommate regarding her desire to live or die under certain conditions were unreliable for the purpose of determining her intent. The United States Supreme Court granted certiorari to consider the question of whether Cruzan had a right under the United States Constitution which would require the hospital to withdraw life-sustaining treatment from her under the circumstances presented. It affirmed the decision of the Supreme Court of Missouri in a 5-4 decision, with two (2) concurring opinions and two (2) dissenting opinions being filed. The fundamental decision was that a state may constitutionally apply a clear and convincing standard of proof in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state. In reaching that conclusion the Court recognized other principles such as a state's right, but not constitutional requirement, to recognize the "substituted judgment" of family members even in the absence of substantial proof that their views reflect the views of the patient. In essence, the decision seems to say that each state may establish such standards as it deems appropriate regarding the

manner in which the decision is made as to whether Iifesustaining treatment is to be withheld or withdrawn from a terminally ill or permanently unconscious patient. With the Cruzall case, basically giving the right to the states to regulate this area, and the existence of the Arkansas Rights of the Terminally III or Permanently Unconscious Act, there remains one more piece of the present puzzle regarding this area to be fitted in place. The Patient Self-Determination Act. In 1990, after the Crllzan case had been decided, the United States Congress passed amendments to the scheme of federal laws relating to hospitals, skilled nursing facilities, home health agencies and hospice programs which participate in Medicaid or Medicare ("providers"). These amendments are known as the Patient Self-Determination Act (PSDA). PSDA requires that, starting December 1,1991, providers must advise all patients in writing, basically at the time they are being admitted, of their rights under State law to make decisions concerning their medical care, including accepting ur refusing medical or surgical

treatment and of their right to formulate "advance directives". "Advance directives" is defined as written instructions, such as a living will or durable power of attorney for health care, recognized under State law and relating to the provision of such care when the individual is incapacitated. The patient must also be advised of the provider's written policies respecting implementation of the rights. The provider must also document in the individual's medical record whether or not the individual has executed an advance directive and must provide education for staff and the community on issues concerning advance directives.

Conclusion. The Crl/zan decision and the passage of PSDA strongly support the policy underlying the Arkansas Rights of the Terminally III or Permanently Unconscious Act, and go a long way to assure its efficacy. Although legislation embodying the policy has been in place for many years, the procedure was seldom used because of the lack of awareness of patients of their rights. Now those rights will become commonly known through community education or, at the latest, upon entry into a

health care situation where they could be of utmost importance. Therefore, it behooves all practitioners to become familiar with the statutory scheme and practical workings of the Arkansas Rights of the Terminally III or Permanently Unconscious Act.

Jack A. McNI/ity is a partner in the Pine BII/ff law firm of Bridges, YOI/llg, Matthews, Holmes & Drake. He practices primarily in the areas of health care law and employmellt law, thol/gh his practice inell/des advice nlld litigation illvolvillg a wide variety of other matters. Mr. McNl/lty is a member of the Health Low Committee of th Arkallsas Bar Associatioll, the AmericOlI Academy of Hospital Attorueys and the American Society of Low & Medicine. He received his J. D. from the U of A at Fayetteville and a Masters of Low degree in Taxatioll from Georgetown University in 1974.

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because of the disability. ADA ยง 102, 42 U.s.c. ยง 12112. This basic law is deSigned to bring the disabled into

INTRODUCTIO July 25, 1992, will likely provide a typical summer evening for Arkansas' employers, employees, and their lawyers. But when they awaken the following morning, the world will be a different place. While they slept, key provisions of the Americans with Disabilities Act ("ADA") will have become fully effective. ADA provides a clear and

the

comprehensive national mandate to

eliminate discrimination against

individuals with disabilities. Do not underestimate ADA's reach. It applies to matters of private employment, public services, privately owned public accommodations, and telecommunications. President Bush signed ADA into law on july 26, 1990. That Congress deferred implemen-tation of the employment provisions for two years after enactment portends the revolutionary nature of ADA. Before reviewing the substance of the employment title of this new federal law, one should appreciate ADA's enormous consequences. The numbers speak loudly. Congress has determined that 43,000,000 Americans have disabilities. This group, comprising nearly 20% of all Americans, will form a giant new "protected class" against whom discrimination will be unlawful. The Equal Employment Opportunity Commission ("EEOC") foresees prosecuting approximately 12,000 ADA cases during the first year alone. ADA will not dilute more stringent disability discrimination in employment provisions provided by state law. Arkansas will have a more stringent law if the General Assembly adopts the Arkansas Civil Rights Act of 1991. Readers are advised to determine the outcome of Senate Bill 468, which is pending at the time of this writing.

The purpose of this article is to proVide a broad overview of the ADA employment title. This article focuses on the practical aspects of ADA, identifying problems and solutions. All ADA references include parallel citations to the Public Law and U.s. Code sections. SUBSTA TIVE LAW The gist of ADA employment law is represe'nted by the following six elements: I) An employer 2) may not discriminate against 3) a qualified 4) individualS) with a disability 6)

mainstream

of

America's

economy. The elements serve as a wrecking ball to the way discriminatory employers handle personnel matters. But ADA employment law may also expose "good guy" employers to unanticipated liability. I) What is an employer? An employer is an entity affecting commerce with 25 or more employees. ADA ยง 101(5), 42 USc. ยง 12111 (5). For these entities, ADA becomes effective on july 26, 1992. Continuing the scheme of gradual implementation, ADA employment provisions will apply to entities with 15 or more employees beginning july 26, 1994. Businesses with fewer than 15 employees are not covered entities. In addition to traditional employers, ADA also applies to labor organizations and joint labormanagement committees. State and local government agencies and the United States Congress are also covered. Only federal government agencies, Indian tribes, and 50l(c) private membership clubs are excepted. 2) What is disabilitv discrimination? Disability discrimination in employment is defined at ADA ยง 102, 12112. Employers may not exclude from job opportunities persons with disabilities unless those persons are actually unable to do the job. job opportunities include, iI/ter alia, the application process, hiring, firing, promotions, compensation, social

activities and training. Following are discriminatory practices enumerated by ADA and recommendations for avoiding exposure. Al Employmellt Applieatiolls & Interviews: An employer's first opportunity to violate ADA is when it

prints its employment applications or interviews job candidates. In either case employers may not ask job applicants if they have disabilities or inquire into the extent of a disability. ADA § 102 (c) (2) (A), 42 .S.c. § 12112(c) (2) (A). If job application forms require the applicant to identify his illnesses or to "check yes or no" to a laundry list of diseases, the employer should throw the forms away. An employer may ask the candidate if he is able to perform the job. ADA § 102(c) (2) (B), 42 USc. § 12112(c) (2) (B). For instance, an employer may ask a truck driver candidate if he has a driver's license. An employer may not ask that candidate if he has epilepsy. Employers may not use disability information to disqualify cla~ses of applicants (such as persons with cancer) before evaluating their ability to perform the job. This prohibition against inquiries regarding disability is a critical factor in assuring that bias does not enter into the selection process. During the interview or application process the candidate may volunteer information regarding a disability. If so, the parties may discuss the disability and whether the disability will prevent the candidate from performing e sential job functions. Although reqllirillg disclosure of disability information violates ADA, a vohllltary disclosure allows the parties to assess the feasibility of accommodating the disability. An employer may consider using the following statement in a job application: You are not required to disclose information about a physical or mental disability that you believe will not interfere with your ability to do this job.

The employer will make reasonable accommodations for the disability of an otherwise qualified candidate. If you want the employer to consider special arrangemeonts to accommodate a

disability, you may identify that disability in the space provided and suggest the kind of accommodation that you believe would be appropriate.

Requesting information about disabilities is risky. But if the applicant or employee voluntarily discloses a disability, a forthright

3 6

ARKANSAS

discussion of essential job functions and reasonable accommodations is practical and encouraged by the House Labor Committee. H.R. Rep. 0.485, 10lst Cong., 2d Sess., pI. 2 at /\5-/\/\ (1990).

BJ Medical Examil/atiolls: The only legitimate purpose of medical exams is to determine if a person can perform a job. Medical exams may not be used to determine if a person is disabled. Under ADA § W2(c) (2) (A), 42 U.s.c. § 12112(c) (2) (A), an employer may not conduct a medical examination of an applicant before offering the applicant a job. This proscription of pre-offer exams may fundamentally change routine hiring practices. Employers may require an entrance exam: a medical exam conducted after the job offer but before employment begins. Employers may condition employment on exam results. ADA § 102(c) (3),42 USc. § 12112(C) (3) . Results must be maintained in separate, confidential files. All entering employees must be subjected to such an examination regardless of

disability. Some commentators say all employees entering the same job category, such as municipal police officer, must be subjected to an exam. Read broadly or narrowly, employers must choose between entrance exams for all or entrance exams for none. Exam results may not be used to discriminate against a "qualified person with a disability." More on that later. Finally, once an employee is on the job, an employer may not require medical exams or inquire into the employee's disabilities unless these exams and inquiries are job-related and consistent with business necessity. ADA § 102(c)(4)(A), 42 U.s.c. § 12112(c)(4)(A). Employers may subject truck and bus drivers and pilots to annual vision tests. They

may not be subjected to annual ArDS tests. ADA does not effect an otherwise lawful program of testing employees for the use of illegal drugs. C} Third-Party COl/tracts: ADA speCifically construes the term "discrimination" to include participating in a third-party arrange-

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ment that subjects an employee or job applicant to disability discrimination.

ADA § 102(b)(2), 42 U.s.c. § 12112(b)(2). Training providers and

OJ Associates of Disabled PersollS: Employers may not deny equal job opportunities to a qualified individual simply because that

employment agencies that practice

individual associates with a person

disability discrimination vicariously

known to be disabled. ADA §102(b)(4), 42 U.s.c. § 12112(b)(4).

may expose the employer in privity to ADA liability. If an employment agency systematically rejects all applicants with facial disfigurements, engage another employment agency. Ask to see a copy of the job application form the agency uses, or

provide your own. To illustrate the hazards of carelessly contracting an employer's training needs, consider this example. Smith hires Compuglobe to train Smith's employees in word processing. Smith's secretary, who has emphysema, has no access to Compu-globe's third floor training facility for its lack of an elevator. If an alternate accessible training site was

available, Smith .has committed disability discrimination. ADA § 102(b)(2),42 U.s.c. § 12112(b)(2). In sum, an employer may not do through a contract what it may not do directly.

make reasonable accommodations to

known disabilities of otherwise qualified persons. ADA § 102(b) (5) (A), 42 U.S.C § 12112(b) (5(A). Reasonable accommodation pertains

to facilities and operations. It places

This protection is not limited to the

significant new burdens on employers

relatives of persons with disabilities. Friends and persons who provide

and, by design, does not apply the burdens equally. Instead, the burdens are virtually applied on an "ability to pay" basis.

care also are protected. For instance, an employer may not discriminate

against a qualified individual who does volunteer work for people with AIDS. If a qualified job applicant states that her husband is disabled, the employer may not refuse to hire her on the grounds that she will have to miss work to take care of her

husband. Once hired, however, the employee must abide by neutral employment policies concerning attendance and punctuality. If the employee violates these neutral policies for any reason, the employer may fire her. The employer need not provide reasonable accommodation to

the fully able employee. EJ Failure to Make Reasollable

DNA TESTING FOR CRIMINAL & PATERNITY CASES Friday - April 26, 1991 University of Arkansas for Medical Sciena:s 4301

Acco/ll/llodatio/ls: An employer must

Educa[ion II Building, Room G 137 WCS[ Markham· Li[de Roek, Arkansas

This one-day seminar will update you on the use of DNA testing for criminal cases and paternity cascs. Some of these topics will be «Admissibility of DNA Testing as Evidence"; "PracticaJ Aspects of Paternity Testing", & "Problems in thcCourtroom".

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Reasonable accommodations in facilities means making existing

facilities readily accessible to and usable by individuals with disabilities. ADA § 101(9) (A), 42 U.s.c. § 12111(9) (A). The logic behind the facilities portion of the reasonable accommodation burden is

apparent. Many employers already have installed wheelchair ramps and accessible restroom facilities. Elevators "talk" to the blind and floor-selection buttons are in braille. A large brokerage house may be required to install all these accommodations. A Mom & Pop grocery store may not be required to install any. The operations portion of the reasonable accommodation require-

ment is a thunderbolt. Required reasonable

accommodations

to

operations may include job restructuring, part-time or modified work schedules,

reassignment

of

an

otherwise qualified employee to a vacant

position,

acquisition

or

modification of equipment, modifications of examinations, training

materials or policies, and the provision of qualified readers (for individuals with hearing impairments) or interpreters (for individuals with visual impairments). The list is illustrative only. ADA § 101(9)(B), 42 U.s.c. § 12111 (9)(B). The operations portion of the reasona ble accommodation burden is the most important issue presented by ADA. Consider the following examples: A giant discount retailer may

reasonably be able to modify its telephones so that otherwise qualified but hearing-impaired secretarial

applicants may become fully qualified for the job. The financial costs of the

same accommodation may be overly

employee with a disability if the

burdensome (unreasonable) for the local hardware store. A law firm with sixty members may be required to hire a reader for

denial is based on the need to make reasonable accommodations. ADA §

an associate blinded in an accident. A

includes failure to make reasonable

effect

three-member law firm may be unable to afford the same accommodation. An essential function of a newspaper reporter's job may be availability at all times to cover breaking stories. A skilled reporter with kidney disease requiring periodic dialysis is otherwise qualified for the position. A large daily newspaper reasonably may be required to modify work schedules so that the otherwise qualified reporter may take periodic leave for dialysis. Small weekly newspapers with fewer employees and reduced job-structure flexibility may find modified work schedules unduly burdensome. The weekly newspaper may not be required to so accommodate the otherwise qualified reporter. An employer may not deny job opportunities to an applicant or

accommodations and denying job opportunities to avoid making

requirements are pruhibited. A criterion that pertains to an

reasonable accommodations. The reasonable accommodation

essential aspect of the job and is carefully tailored to measure the candidate's actual ability to perform the essential job function is not discriminatory. A warehouse may test all potential "stock-boys" for their ability to lift 50 pounds.

102(b)(5)(B), 42 U.s.c. § 12112(b) (5)(B). Therefore, discrimination

obligation stops short of requiring employers to take action that will not overcome the effects of a person's handicap. In short, ADA does not demand a hollow act. If a person is unable to perform the essential functions of a job with or without

may administer only those tests that accurately reflect job requirements and determine the aptitude and ability of the individual. Screening criteria that have a discriminatory

unrelated

to

business

A criterion may not be used to

the

disqualify an otherwise qualified person if the criterion can be satisfied

person is not qualified. ADA does not

by reasonable accommodation. For

require employers to hire or retain non-qualified individuals.

example, a dysleXic person applies for a heavy equipment operator position. All agree that the applicant can do the job, but he cannot successfully

reasonable accommodation,

FI Qllalifica/ioll Sialldards: An employer may not use qualification standards or employment tests that tend to screen out disabled persons unless the standards and tests are jobrelated and consistent with business

necessity. ADA § 102(b)(6)&(7), 42 U.s.c. § 12112(b)(6)&(7). Employers

complete a mandatory training program which requires reading and

passing a written test. If the reading and written test criteria are not jobrelated and consistent with business necessity, the standards are discrim-

inatory. If the test and reading are

/.~ ~

necessary for the heavy equipment

operator job, the employer should make reasonable accommodations.

ER

J.

INc,

STRAITON, MOORE &PAINTER, INC. Accident Reconstructionists AND PRIVATE INVESTIGATORS

I-Jere, the reasonable accommodation may be providing a reader and administering the test orally. 3) Who is qualified? Employers may discriminate against non-qualified or less qualified persons. ADA § 102(a), 42 U.s.c. § 12112(a) proscribes discrimination against "a qualified individual with a disability." A qualified individual with a disability is a disabled person who, with or without reasonable accommodation, can perform the

essential functions of a job the individual holds or desires. ADA § 101(8). 42 U.s.c. § 12111 (8). In

Announces the addition of Mr. Robert W. Painter, Jr. as a partner to the firm, formerly, STRATION & MOORE, INC.

P. O. Box 1306 Edmond, Oklahoma 73083

determining whether an applicant is qualified, marginal job functions are

ignored. An accountant who is a college graduate and a CPA, works well with clients and has heart disease is a

qualified individual with a disability.

(405) 340-1111

That same accountant with a good

heart but unable to sit for long periods because of a congenital back

ESTABLISHED: 1980

3 8

ARKANSAS

LAWYER

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problem is "otherwise qualified." With the reasonable accommodation of an orthopedic chair, she becomes

You can't get closer to the issues than this.

qualified. Employers need not give preferences to the disabled. If a fully able applicant types 70 words per

AL Lawyers Cooperative Publishing, we know our analytical legal research system is noL complete wit.hoUL one vital link - our field representatives. They know what's available, what's affordable, and what resources will be of the greatest value to your practice, given your needs and market.

minute and a disabled applicant types

50 words per minute, the employer may hire the better typist. Employers may continue to require that all applicants and

Right now, your local representative is ready to help you get the most from our integrated library for Arkansas

employees be able to perform essential job functions. Ability to

practice - from ALR Lo Am lur or

perform essential job functions determines if an individual is

If you want to be in charge, talk to a representative who's in touch wiLh your needs. Contact your local representative directly, or call

qualified, so identifying the essential

1-800-527-0430.

uses to us LEd.

functions of a position is crucial.

ADA § 101(8), 42 U.s.c. § 12111(8) provides that courts shall give consideration

to an employer's

judgment regarding the essential functions of a job. A wnllell job descriptioll is evirlellce of the esselllini f"llctiolls. The House Judiciary Committee defeated a proposed legal presumption

in

favor

of

the

employer's judgment. The employer has the burden of proving that the function is essential to the job.

4) Who is protected by ADA? "Americans with Disabilities Act" is a rnisnomer. ADA outlaws discrimination against qualified illdividuals with disabilities. Nowhere

in the text is the application of ADA limited to American citizens. ADA also does not distinguish part-tirne

from full-time employees. Apparently all individuals employed or pursuing employment in the United States will be protected. 5) What is a disability? ADA § 3(2), 42 U.s.c. § 12102(2) provides three tests for disability. First, a disability is a physical or mental impairment that substantially limits one or more of the individual's

major life activities. ADA does not provide a list of mental or physical impairments. Commentators agree

that the impairments include AIDS, cancer, cerebral palsy, visual, hearing

and speech difficulties, epilepsy, heart disease, and various rnental and emotional illnesses and learning disabilities. Trivial or temporary impainllents (twisted ankle) arc not

disabilities. Major life activities

lorraine Hall (901l757-0115

..

Gary Ingle

Kl!:nt McClain

Donald Nasser, Jr.

(501) 663-4731

(502) 554-8651

(318)746-3744

1111

Lawyers Cooperative Publishing In deplh. On poinl. In perspecliue.

include, il1ter alin, seeing, working,

substantial impairment or were mis-

hearing, speaking, reproducing, walking, breathing and learning. ADA § 511, 42 U.s.c. §12211 specifies that the following conditions are not disabilities: homosexuality, bisexuality, compulsive gambling,

diagnosed as being substantially impaired are protected. Third, an individual regnrded as

kJeptomania, various sexual behaVIOr disorders, and transvestism, among

others. Congress must have renlly intended to exclude transvestism; it declared a second time at ADA § 508, 42 U.s.c. § 12208 that transvestism is not an ADA-protected disability. A psychotic transvestite, however, may well be protected. An employer may refuse to hire the individual because of his transvestisrn without triggering

ADA liability. However, a refusal to hire because of the psychosis may trigger ADA liability. A person who uses illegal drugs is not disabled for purposes of ADA. ADA § 510, 42 U.s.c. § 12210. Second, a record of a substantial impairment is deemed a disability. Discrimination on the basis of past impairrnent is prohibited. Individuals who have recovered from a

having a substantial impairment is

deemed disabled and is protected by ADA. The perception of the employer is a key element of this test. Scars or burns or controlled diabetes or epilepsy do not substantially impair major life functions; but attitudes toward people with these conditions may substantially limit their life functions. ADA protects rehabilitated alcoholics and rehabilitated users of illegal drugs, either under this category or as a record of impairment.

ADA § 104(b), 42 U.s.c. § 12114(b). 6) Withholding Job Opportunities because of Disabilities. ADA protects qualified individuals with disabilities from discrimination because of the disability. A trucking business may refuse to hire as a truck driver a

diabetic because he has a terrible driving record. A state agency may fire a computer programmer with

cerebral

palsy

because she

is

habitually tardy. A law firm may refuse to offer a partnership to an associate with a speech impediment because he is unable to draft a cogent brief. The employer will have the burden of proving that the expressed reason for the negative employment action is not a pretense for disability discrimination. DEFENSES I) Job-Related and Consistent with Business Necessity. Qualification standards. tests and selection criteria that tend to screenout the disabled are not discriminatory if the employer can show that the criteria are job-related and consistent with business necessity and that the individual cannot perform essential job functions even with reasonable accommodations. ADA § 103.42 U.s.c. § 12113. For a member of a rural fire department, the requirement of a degree of physical stamina is job-related and consistent with business necessity. Although this criterion tends to discriminate against individuals with emphysema, physical stamina, as measured by an

I agility test, is not discriminatory.

I Secretary

2) Direct Threat to Health or Safety. Employers need not hire individuals whose disabilities pose a direct threat to the health or safety of other individuals at the worksite. ADA § 103(b), 42 U.s.c. § 12113(b). A direct threat is a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation. ADA § 101(3), 42 U.s.c. § 12111(3). Legislative history speaks of contagious and infectious diseases and mental illnesses. A decision to exclude individuals with these disabilities may not be based on speculation, baseless fear or stereotype. An electrical contractor may rely on this defense after firing an electrician with uncontrolled narcolepsy. The employer has the burden of proving a direct threat and the inability of reasonable accommodation to overcome the disability. ADA § 103(d), 42 U.s.c. § 12113(d) creates a special category of defense regarding individuals with infectious or communicable diseases that can be transmitted by handling food. The

of Health and Human Services scientifically must determine what diseases are trans-mitted by handling food. Absent an effective reasonable accommodation, the employer may refuse to hire for a fond handling position a candidate with a listed disease. If AIDS is not listed, a fast-food restaurant may not refuse to hire an applicant because of the applicant's AIDS status. 3) Religious Tenets. A religious organization may require that all employees conform to the religious tenets of the organization. ADA § 103(c), 42 U.s.c. § 12113(c). For instance, a Catholic organization may wish to hire only Catholics for certain jobs. The organization may refuse to hire nonCatholic disabled persons, provided the refusal is based on the religion preference. A wise employer will make clear this religion preference in advertisements, job applications and job descriptions so that the subsequently expressed qualification is not viewed as a pretext for disability discrimination. Remember,

THE LAW FIRM OF

MITCHELL, WILLIAMS, SELIG & TUCKER is pleased to announce that Lance R. Miller and T. Scott Clevenger have become partners in the firm. and that Rhonda M. Wheeler has joined the firm as an associate.

H. MAURICE MITCHEll RICHARD A. WlWAMS JOHN S.SEUG

JOHN C. LESSEL OOAKrOSTER JEAN O. STOCKBURGER

W. toRBY LOCKHART MARCELLA J. TAYLOR TlMOTlfY W. GROOMS

LANCE R. ~ILLER WYLIE D. CAVIN EVERETTE L ~ARnN JEFFREY H. Tt-tOMA.$ COLEEN ~. BARGER STUART P. ~lLLER PHILIP A. PESEK ABRAHAM W. BQGOSLAVSKY DONALD L PARKER II

JOSEPH w. GElZINE

ANNE RITCHEY

ARK MONROE. III

W. CHRISTOPHER BARRIER JIM GUY TUCKER BYRON FREElAND ALlAN GATES W. H. L W(X)()VARD. III MICHAEL C. O'MALlEY

EDWIN F. JACKSON SHERRY P. BARTLEY CRAIQ WESTBROOK SUSAN GORDON GUNTER

C. NICHOlAS THOf,4PSON FREDERICK K. CAMPBEll ROBERT M. EUBANKS, III WALTER G. WRIGHT, JR LYN PEEPLES PRUITT T.SCOTTCLEVENGER

BOYCE E. HAWK R. T. BEARD, III

RICHARD L ANGEL

320 West Capitol Avenue 1000 Savers Federal Building Little Rock, Arkansas 72201

4 0

ARK A

S A S

LI\WYER

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I 9 9 1

~ARK E. ~l00LETON CHRISTOPHER T. ROGERS O. MILTON FINE II SHt;ILA E. FREE~AN A~ELlA~. RUSSEll AMY OAKES YOONG RHONDA ~. WHEELER

COUNSEL EDWARD B. DILLON. JR

(501) 688·8800

religious organizations are not I published in the February 28, 1991

ation forms and advertisements.

excepted from ADA. 4) Undue Hardship. An employer need not provide a

issue of the Federal Register. EEOC solicits comments. During a public

reasonable accommodation if that accommodation will impose an undue hardship on the operation of

participating lawyers expressed disdain for the prospect of "learning

Employers should prepare job descriptions for each position. The job descriptions should identify essential functions of the position and the employer should distribute the description to all applicants. An employer's personnel officer should prepare and distribute to all employees with hiring authority guide-

the business. Put another way, an accommodation that is unduly

hearing at Memphis last Autumn,

in the courtroom." To be most instructive, the final regulations

expensive or disruptive is not

should include compliance and violation examples. To be assured of

reasonable. ADA § 102(b)(5), 42 USc. § 12112(b)(5). Undue hardship

consideration, comments must be in writing and must be received on or

means an action requiring significant

before April 29, 1991. Comments may be mailed to Frances M. Hart, EEOC, 1801 "L" Street N.W., Washington D.C. 20507 or faxed to (202)663-4114. Upon adoption, the regulations will be codified at 29 C.F.R. § 1630.

difficulty or expense. ADA § 10I(lO)(A), 42 USc. § 12111 (1 O)(A). Undue hardship is measured by, inter alia, financial resource of the

facility and the parent company and the number of employees at the facility and overall. ADA § 101(0)(B), 42 USc. § 12111(10)(B). The defense will require quantitative evidence. As

noted earlier, restructuring job responsibilities may impose an undue hardship on the local hardware store but not on a retail giant. Legislative

history reflects Congress' intent that implementation of ADA should not close small businesses or eliminate

jobs. The employer has the burden of establishing undue hardship. PROCEDURES A D REMEDIES All remedies and procedures set forth at Title VII, as amended, apply to disability discrimination actions. An individual files a complaint with the EEOC. If the EEOC is unable to

Because of the unusual amount of

detail in the legislation, the proposed regulations restate the statute. The proposed regulations state that a test to determine the illegal use of drugs is not deemed a medical examination. ADA does not affect otherwise lawful drug testing programs. The proposed regulations also encourage

the

voluntary discussion of disabilities, limitations resulting from the disabilities, and potential reasonable accommodations that could overcome

the employer, the EEOC may either file suit on behalf of the individual or issue to the individual a Notice of Right to Sue. Within ninety days, the

the limitations. The appendix to the proposed regulations states that ADA protects all qualified individuals with disabilities, regardless of their citizenship status or nationality. The appendix notes that the term "impairment" does not include quick temper, poverty, lack of education, being fat or having a prison record. CONCLUSIONS ADA cha nges forever the

individual must file suit in either

substance of American employment

reach a conciliation agreement with

federal or state court. Yellow Freight Systelll, Illc. v. DOllllelly, 110 S. Ct. 1566 (1990). Remedies include back pay and benefits and injunctive relief. If, as many anticipate, Congress enacts a Civil Rights Reform Act, ADA remedies

may

also

include

compensatory and punitive damages, and either party may demand a jury trial. After conducting a series of hearings across the nation, EEOC has promulgated proposed regulations. The proposed regulations were

lines for interviewing applicants. The

guidelines should list the questions to be asked. Employers should generate and preserve a paper trail indicating

compliance.

READ MORE ABOUT IT In addition to reading the Americans with Disabilities Act and EEOC's proposed substantive regulations, the following materials will be helpful in developing an understanding of the ADA

employment law: 1. Henry H. Perritt. Jr .. Americans with Disabilities Act Handbook (Wiley Law Publications 1990). 2. Commerce Clenrillg House, hIe.; CCH's Explanation of the Americans with

Disabilities Act of 1990 (1990). 3. Discrimination Against the Disabled: the Impact of the new Federal

Legistation, 15 Employee Relatiolls L./. 333 (1989/90).

4. How the Americans with Disabilities Act affects Employers, The

Practical Lawyer (ALI-ABA, October 1990)

VALUATIONS CLOSE CORPORATIONS UNIQUELY QUALIFIED CONSULTANTS

law. Employers may not discriminate against qualified individuals with a

disability because of the disability. Employers must make reasonable accommodations

for

a

known

disability by modifying their equipment and facilities and changing the very structure of their operations. Employers need not suffer undue hardships in providing accommodations

and

need

not

make

employment decisions that place current employees in a direct threat to

their health or safety. Employers must update job applic-

Analysis & Appraisal Expert Witness Valuation Arb~ration Ownership Transition Planning & Implementation Estate Planning Assistance

SCHULTZE, MAECHLING Be ASSOCIATES 314 N. Broadway.Sullel921 SI. Louis, 1.10 63102 (314) 621-8211 REQUEST OUR BROCHURE

Nearly all of us know someone who has been called to active duty in the Persian Gulf with a reserve or ational Guard unit. Some of these people have had to take a significant

are subject to a suspension of the statute of limitations. 50 U.s.CApp. 525. An individual may waive these protections in writing, provided the

reduction in pay from their civilian

SSCRA coverage begins. 50 U.s.CApp.517. GE ERAL RELIEF: Default Judgments, Limitations, Stays. 50 U.S.C.App. 520-527. Certain areas of general relief are available to all military members, including those who are in the service for a specified time, a career, or called to active duty frolll the reserves or guard. If there is a default of "any appearance",before a judgment can be entered, the plaintiff must submit an affidavit that the defendant is not in military service. If the defendant is in

waiver is executed after the date

occupations. What happens to their

mortgages if they can't make the payments? What happens if they are sued? What happens if they have a suit and the statute of limitations is

running out? In many cases the Soldiers and Sailors Civil Relief Act provides help. The Soldiers and Sailors Civil Relief Act (SSCRA) was enacted by Congress in 1940. An earlier version had been enacted in 1918. The SSCRA is codified in 50 U.S.C.Appendix ยง500-548 and ยง560-590. The general pu rpose of the Act is to postpone or suspend some civil obligations of persons called to active military duty so they will be able to concentrate on military duties. So many people have been called to duty because of events in the Persian Gulf that a review of some of the Act's important provisions should be helpful in advising clients who have problems which have arisen

member's ability to make payments. WHO IS PROTECTED. Persons in the military are covered by the provisions of the Act. 50 U.s.CApp. 511. Persons secondarily liable, such as sureties, guarantors, and accommodation Il'lakers may be

granted protection, in the discretion of a court. 50 U.s.c. App. 513. Dependents of military members are covered for purposes of benefits under Article III of the SSCRA. Article III includes protections against foreclosures, certain evictions, and the

right to cancel certain leases. 50 U.S.C.App. 530-536. Persons are generally protected from the date of

the military, certain requirements must be met before action can proceed. These include the

appointment of a special attorney to notify the military member of the proceedings; this special attorney has no independent authority to waive any rights of the service member. 50 U.s.c. App. 520. Over the years there has been litigation over what

THE SOLDIERS & SAILORSCML RELIEF ACT : LEGAL HELP FOR THE SUDDEN SOLDIER

because of military service. This review wi II not be exhaustive, but it should give the practitioner useful tips for helping clients with such problems. The SSCRA does not provide any causes of action, but it may provide protection against mortgage foreclosures, credit card billing charges, and default judgements. Sometimes a person seeking to

take action must convi.nce a court that

the defendant is not in the service; sometimes the service member must show military service has materially affected his ability to meet obligations. A reduction in income due to military service would be a

4 2

factor rnaterially affecting a service

ARKANSAS

constitutes an appearance so as to

permit the entry of judgment without the special notification procedures. Filing an answer is an appearance; numerous other acts have also been

held to constitute an appearance. A letter to the court requesting relief under the SSCRA has been held to be an appearance,

Skates v. Stockton, 140 Ariz. 505, 683 P.2d 304 (1984), as has

by Larry Carpenter

contesting entering service to the date of

discharge. 50 U.s.CApp. 511. The SSCRA applies in civil cases in all state and federal courts. 50 U.s.C.App. 512. Administrative proceedings, such as workers' compensation claims, are not subject

to the general relief of the SSCRA but

LAWYER

APR I L

juris-

diction through counsel. Reynolds v. Reynolds, 21 Cal.2d 590, 134 P.2d 304 (1943). Failure of a plaintiff to follow the affidavit procedures renders any judgment voidable and may permit the military member to reopen a

judgment up to 90 days after completion of military service. The member

9 9 ]

580. Finally, this benefit may not generally be extended to dependents. Credit card charges by a non-military

must show he had a meritorious defense and that military service

materially interfered with his ability to defend the action. If successful, a

spouse are not entitled to this interest rate reduction. (Mortgages are treated

de novo proceeding may be ordered. When military service prevents a 1l1ilitary member from asserting or

protecting a legal right, an application to stay proceedings may be more practical than defaulting. This

guaranteed student loans, Monies do not accrue for payment at a later date.

situation often arises with full-time military personnel who are stationed overseas or temporarily on duty away

The creditor may petition a court for

from their home installation. The stay is permitted under 50 USCApp. 521. The key element is that military

proving that military service has had no material effect on the member's

service has a"material effect"on the

member's ability to proceed. The application may be made by the member or by someone acting on his

behalf. Showing "material effect" is a matter of evidence; affidavits, copies of orders, statements regarding attempts to gain leave are all practical. It would help if some idea of an available date can be given, but during combat this may not be possible. The SSCRA leaves the decision to the discretion of the judge whether to grant the stay. Stays my be granted for the period of service and up to three months after discharge. 50 U.s.CApp. 524. Co-defendants not in the military are not entitled to a stay under this provision.

Any period of military service is excludable from computing periods of time for limitation of actions. 50

U.S.CApp. 525. This provision applies to events occurring both before and after entry into active service. However, there is no exclusionary period for certain events

related to redemption of property sold to enforce tax obligations. And, the exclusion for calculating limitation of actions applies to actions against persons in the military as well

as to actions brought by military members. Finally, this section applies the exclusion of time to administrative proceedings as well as court actions.

MAXIMUM RATE OF I TEREST. A maximum interest rate of 6% is the limit for obligations incurred

before entry on active duty. 50 U.S.CApp. 526. This provision applies to all loans except federally

permission to keep a higher interest

rate. The creditor has the burden of

separately.) ARTICLE III: Rent, Installment Contracts, Mortgages, Leases. 50 U.S.CApp.530-534. Article III of the Act provides protection for the military member and dependents. In dealing with rent, mortgages, leases, and installment contracts the Act focuses on two criteria: the obligation was incurred prior to military service and military service has materially

ability to pay. If there is no great differential between the member's military and civilian pay, he might be held responsible for the higher interest rate. Military pay can be the

affected the ability to meet the obligation. These provisions

same or better than civilian pay. And,

member

some employers have elected to make up the pay difference for reservists and guard members called to active duty. One way to claim the benefit is simply to write to the creditor. In the letter the member should state that he is on active duty, the date he entered active duty, and attach a copy of his

financial straits, a letter to the creditor

orders. A statement that income has

been reduced because of military service should be included along with a request to reduce the interest rate to 6%. A copy of an appropriate letter is appended. This provision is not available for

anticipate a reduction in income when

in the service. This may not always be true, as noted above. If a military finds

himself in

such

would be in order because, in most cases, the creditor will have to seek

court authority prior to these actions when the defendant has been called to military service.

The member's dependents may not be victed from a d welling for nonpayment of rent if (I) the property was leased prior to service; (2) it is occupied as a dwelling; (3) ability to pay is materially affected by military service; (4) rent is less than $150.00 per month. 50 U.s.CApp. 530. (There have been proposals in Congress to

debts incurred after entry on active

change monetary limits in the act, such as this, which were enacted

duty. Transfers of property or obligations to take advantage of this, or any other provision of the Act, may be set aside by a court. 50 U.s.CApp.

some time ago. Such legislation may yet be enacted.) The court may stay the proceedings up to three months or

"When military service prevents a military memberfrom asserting or protecting a legal right, an application to stay proceedings may be more practical than defaulting. "

make such other orders as may be

just. Installment sales contracts for the purchase of real or personal property are also protected. If a person has entered such a contract prior to entry into the military and has made a

deposit or installment payment prior to service, the contract may not be canceled for nonpayment and the property may not be seized without court permission. There are criminal sanctions for failure prior to selling

property to seek court approval. 50 U.s.CApp. 531. Ability to pay must have been affected by military service. A court may order a stay in the

proceedings, a return of all payments as a condition of repossession, or other just relief. Other relief presumably could include sale of the property to pay the vendor,

FROM: ACCOUNT:

(DATE) _

reduction in payment amount, or even a moratorium on

payments. The Act protects service members from foreclosure on mortgages. The property must have been owned and the obligation incurred prior to entry on active duty. Again, ability to pay must be materially affected by military service. 50 U.s.CApp. 532. In a foreclosure proceeding the member may request relief under the sSCRA. Application may be made by someone acting on the member's behalf. BraaklYII Trllsl Ca. v. Papa, 33 N.Y.5.2d 57 (1941). Dependents who reside in the home are entitled to relief under this provision. See 50 U.s.CApp. 536; assail Sav. & Loall Ass. v. Drll/alld, 39 .Y.s.2d 92 (1942). The court may stay the proceedings or fashion other equitable relief to conserve the interests of all parties. This could presumably include extending the maturity date of the obligation with reduced payments, setting aside a foreclosure, or, if a sale is ordered under valid circumstances, increasing the statutory redemption period. A servicernember is entitled to cancel a pre-service

lease. 50 U.s.CApp. 534. The premises (I) must have been leased for dwelling, professional, agricultural, or similar purpose; (2) been leased prior to entry into military service; (3) used by the servicemember for the purpose leased; however, professional partners or co-lessees who are not dependents of the servicemember may not be released. See Po trikes v. f.C.H. Service Slalialls, IIIC, 41 N.Y.s.2d 158, affd 46 N.Y.s.2d 233 (1943). The lease is canceled by written notice to the lessor after entry on active duty. Termination of leases providing monthly rent is effective 30 days after the next payment is due and rent is payable to that date. In other leases cancellation is effective following the last day of the month following the month in which notice is given and any prepaid rent must be returned. Holding the property of any person who has canceled a lease under this provision is a criminal offense.

TAXES. There are miscellaneous tax provisions providing for protection of domicile, 50 U.s.CApp. 574, protection against sale of property for back taxes if the material effect standard is met, 50 U.s.CApp. 560, and some relief for income tax liability. 50 U.s.CApp. 573. ANTICIPATORY RELIEF. The Act provides that a person may apply to a court for any of the relief permitted by the Act for obligations incurred prior to service. 50 U.s.CApp. 590. If the court finds that military service has materially affected the servicemember's ability to meet the obligations, certain relief may be granted in the area of mortgages and other obligations and liabilities. The Soldiers and Sailors Civil Relief Act is always to be liberally construed to protect those who have been obliged to drop their own affairs and take up the call of the nalion to military service. Boolle v. Lightller, 319 U.s. 561, 63 5.0. 1223,87 L.Ed. 1587 (1943). These have been brief highlights of some sections of the ssCRA and how they operate to effect the purposes of the Act. In counseling with clients, bear in mind that Congress may change some provisions as part of the legislative response to the Persian Gulf build-up.

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LAWYER

Reduction of Rate of Interest on Financial Obligation Under the Soldiers' and Sailors' CiVil Relief Act TO: I entered active duty in the United States Armed Forces on and have remained in an active duty status to date. Please find attached a copy of my military orders placing me on active duty. Prior to this period of military service, I incurred a debt with you upon which I am charged interest at the rate of _ _ %. Because of the reduction in my income as a result of entering military service and its material effect on my ability to pay on this obligation, I assert my entitlement to relief under the pertinent provisions of the Soldiers' and Sailors' Civil Relief Act, 50 V.S.C App. Section 526. Under this provision, the rate of interest on my debt or obligation must be reduced to six (6) percent per annum as of the date I entered active military service. As used in the Act, the term interest includes service charges, carrying charges, renewal charges, fees, and any other charges (except bona fide insurance) in respect of such obligation or liability. My dependents can also enjoy protections under the Act (50 V s.C App. Section 536), which apply if they are a co-signer on my obligation. Please take immediate action to adjust my financial obligation to reflect the statutory six percent rate of interest and advise me of the amount of my revised payments. Be advised that you may not repossess or foreclose for non-payment of an obligation without first complying with the provisions contained in 50 V.S.C App. Section 531 or 532, as appropriate. I estimate that my current period of active military service will end on approximately _ and I will notify you, in writing, upon actual termination of such terms of service. Sincerely,

(Signature) 1 Atch Order, dated

(Address)

APRIL

199 I

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AVII l'AI R I\W SCHOOl AV1.F

l'路\LR LAW SCI 1001

l

Developments; Environmental Law & Agriculture in Arkansas; Hazardous Air Pollutant & National Operating Permit Requirements; Cases and Environmental Issues; Recent Arkansas Legislation; Phase I & II Audits; and Real Estate and Asset Transfers.

ARKANSAS APPELLATE ADVOCACY INSTITUTE, April 2S-27

The Arkansas Institute for CLE is

your continuing legal

education

organization. In serving the attorneys of

Arkansas, AICLE and its staff are dedicated to developing sound programs to benefit the practicing attorneys in Arkansas. There are six new seminars being offered through June which you will not want to miss. They are:

ENVIRONMENTAL LAW, April 19 in Little Rock as planned by Willis D. Cronkhite, III who is General Counsel for Environmental Systems Co., Little Rock. A required seminar for those of

you who want to keep abreast of the many regulations and laws in this rapidly developing area of the law. Subjects to be addressed are: Superfund

in Heber Springs has been planned by Tom Carpenter who is an Assistant City Attorney for Little Rock. This intensive course will significantly improve participants' appellate advocacy skills. Small group workshops provide opportunities for all participants to hone skills such as preserving the record, writing the brief and making the oral argument. The workshops will culminate with presentation of oral arguments before a panel of appellate jurists.

JUVENILE LAW, May 10 in Little Rock as planned by Mark Roberts of Glover, Glover & Roberts of Malvern. Arkansas' juvenile court system has undergone sweeping reforms within the last few years. These changes ha ve had far reaching effects. This program will address these changes and provide a basic framework for dealing with juvenile offenders. This seminar will benefit lawyers, probation officers and other professionals working in the juvenile law area.

ATTORNEY-COLLECTION A progressive auto finance company headquartered in Southfield, Michigan is looking for a member of the Arkansas Bar Association with three to five years experience in business and commercial law to handle its case load in and around the Li ttle Rock area on a retainer basis. Please send resume to CAC P.O. Box 513 Southfield, Michigan 48037

U

MEDICAL MALI'RACTICE LITIGATION, May 10 in Little Rock as planned by Laura Hensley, a partner in the Friday, Eldredge & Clark law firm. A myriad of timely topics will be offered by an outstanding group of Arkansas attorneys. The topics are:

Recent Developl/lellts ill Medical Malpractice Law; a Plai/ltiffs aud a Defellda/If's View of Displ/ted al/d Ullresolved IsslIes ill Medical Malpractice Litigatio1l; Discovery Tactics ill Medical Malpractice Litigation; Screening Medical Malpractice Cases; A pallel disCllssioll 011 Hal/dlillg Cases ill Claims Stage; Modem TecllllOlogy ill Medical Malpractice Trials/-low, Why & Whet!; a/Id Ethieallssues. WOMEN AND MINORITIES IN LAW, May 24 in Little Rock as planned by Sandra W. Cherry, Assistant U.s. Attorney and co-chair of the Opportunities for Women & Minorities Committee, Little Rock. This six-hour seminar. the first of its kind ever offered in Arkansas, will address the problems which can diminish the effectiveness of women and minority practitioners and will offer practical solutions to those problems. Speakers include Hillary Rodham Clinton, Lynn Hecht Schafran,

Howard Brill, Judge John Lineberger and others.

ADVISING ARKANSAS BUSINESSES, May 31 in Little Rock as planned by Greg Graham of Simpson &

VALVAnONS/FAIRNESS OPINIONS Closely-held Businesses, Banks, Professional Practices. For ESOPs, gifts, estate planning, charitable contributions, minority shareholder disputes, divorces. Economic loss tudies (personal/business). Experience with hundreds of cases and many industries. Court Testimony by credentialed experts. MERCER CAPITOL, 5860 Ridgeway Center Parkway, Suite 410, Memphis, TN 38120. (90l) 685-2120.

Graham, Little Rock. The topics to be addressed are: Executive Compensation & Employee Benefits; Securities Law; Bankruptcy Law; Environmental Issues; Employment Issues, Ethics & Common Sense in Business Practice and Workers' Compensation Issues. To finish out the 1990-91 year, Lhere are five programs which AICLE presents annually and which attorneys and their support staff rely on to round out their CLEo The programs are: BANKRUPTCY FOR THE LEGAL ASSISTANT, April 5 in Little Rock as planned by Hon. James G. Mixon and Phyllis McKenzie of Little Rock. The 1991 program has been planned to give those in attendance an overview of bankruptcy; techniques for finding information and filing documents in the Bankruptcy Clerk's office; Ch. 13 from the debtor's viewpoint; effect of discharge on rights of debtors and creditors; how bankruptcy and other non-attorney staff can be utilized in Ch. 11 7lnd representing the secured creditor. 14th ANNUAL LABOR LAW AND LABOR RELATIONS, April 11-13 at DeGray State Park Lodge, Bismarck, is being chaired by Carolyn Witherspoon of McGlinchy, Cross & Gunter, Little Rock. A planning committee of fourteen has worked since last fall to plan a seminar which will bring together experts in the Labor Law area. Twenty-four speakers have committed to ensure that this year's program will be an outstanding CLE event. Topics to be covered include:

HANDWRITING EXPERT Scientific examination of Handwritten. Typewritten. Printed. Altered. Obliterated. Charred and Office Copier Documents; Ink and Paper Analysis. Dating and other document-related problems. Diplomate of the American Board of Forensic Document Examiners. Inc. Member of the American Academy of Forensic Sciences.

OSHA Update; Duty to Bargain; EEOC in the '90s; Issues Affecting Personnel Managers; Employment Selection, Testing and Retention; Rule 11 Sanctions; Use of Experts in Employment Litigation; Grievance Mediation; Eighth Circuit Decisions; Americans with Disabilities Act; Recent I.egislation; Constitutional Rights and Section 1983 Litigation; and Employee Leasing Issues. TAX AWARENESS, May 3 in Lillie Rock as planned by Craig Westbrook of the firm of Mitchell, Williams, Selig & Tucker, Little Rock. This year's seminar will address the many developments in the areas of estate planning and taxation. The topics to be included are: Tax and Practical Issues in Selection of Trustees; Protecting Family Assets from Creditors; Estate Planning with Life Insurance; CST:

What It Is and How to Avoid It; Myths and Realities of Revocable Trusts and Estate Planning for the Elderly. MUNICIPAL LAW, June 18 in Hot Springs. This seminar is in the initial planning stages. Look for the brochure which will be mailed in May. A D, back by popular demand is THE BEST OF CLE. This year's program will offer up to 30 hours of CLE presented by the most highly rated CLE instructors from AICLE's most popular seminars. AICLE's Assistant Director, Deb Garrison is coordinating this year's program. Program topics will be offered in the following areas: Family Law; Federal Practice; Financial Institutions Law; Taxation; Bankruptcy; Real Estate; Evidence; Criminal Law; Automobile Litigation; Civil Procedure and

Announcing

Young Lawyers' Section CLE and Ski Trip January 29 - February 2, 1992 • Beaver Creek Resort, Vail The Young Lawyers' Secrion of rhe Arkansas Bar Associarion and AlCLE are pleased ro offer rhe flrsr Arkansas CLE and Ski Trip. The setting for this event is Beaver Creek Resort, cited by FAMILY CIRCLE magazine as "America's number-one family ski experience." The fee, approximately $2,000 per couple, includes airfare, lodging, lift tickets for 5 nights and 4 days, and the CLE seminar. Meals, ski rental, children's activities and ski school are not included. The CLE programming, planned by YLS Chair-Elect Lynn Williams, will feature 3.0 hours of trial-oriented ropics per day. This program is in the planning stages. It will become a reality if sufficient interest is shown. Simply complete the form below and return ro AICLE. _ _ I'd like more information about the CLE and Ski Trip. _ _ I don't need any more information. Please put my name on the DEFINITE list as one of 50 families who will be attending. Name

_

ROBERT G. FOLEY FORENSIC DOCUMENT EXAMINER

1109 North 4th Street Monroe. LA 71201 318-322-0661 Quo'Iff.cl and EJ(~".nc.clEJ(~rt Wltn." In F«»(oI, S,at., Munlclpol and Mllffary Court.

_

Address City/State/Zip

_

Phone:

_

Mail ro:AICLE, 400 W. Markham, STE 700, Little Rock, AR 72201-1426 4 6

ARKANSAS

LAWYER

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Employment Law. For more information or to register by using a credit card, call the AICLE office, 375-3957. SATELLITE SEMINARS: AICLE and our satellite network, CLESN, offer the following schedule: April 23, Transfer of Wealth Considerations: Is Estate Planning Still Possible? April 24, To Merge or Not to MergE>What to Worry About in Forming and Dissolving il Law Practice Partnership May 7, Tax, Personal and Estate Planning for Lifestyles of the '90s May 14, Special Issues of Professionalism and Ethics in Bankruptcy For more information or to register, call CLESN, 1-800-669-1625.

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( )[' I ,. \ \ \ By Interim Dean Ricbard Atkimoll Professor Robert Laurence spent a week in Budapest last October. He met with academics and governmental officials to discuss plans for the transformation to a free market, credit driven economy. Laurence gave lectures on commercial transactions and inventory financing at the College of Foreign Trade. In addition, Laurence spoke on American Indian Law at the Law School in Budapest (Eotvos Lovand University). A number of faculty recently completed major writing projects. The fourth edition of Land Use: Cases and Materials was recently released by West Publishing. Mort Gitelman and Robert Wright are co-authors of the casebook. "Corporate Statutes - Which One Applies?" by Mary Beth Matthews was published in the University of Arkansas at Little Rock law journal at 13 UALR L.J. 69 (1990). John Watkins' monograph, "Expanding the Public's Right to Know: Access to Settlement Records under the First Amendment," was recently published by the Center on Press, Politics & Public Policy at Harvard University. "The Enforcement of Judgments Across Indian Reservation Boundaries," by Bob Laurence was recently published at 69 Ore. L. Rev. 589 (1990).

Jake Looney recently completed work on two articles. "Fourth Circuit and USDA Judicial Officer clash, " appears in Volume 7, Number 14 of the Agricultural Law Update. "Land Degradation and Soil Erosion in Australia: The Search for a Legal Remedy" will appear in the jourllal of Soil alld Wafer Cotlservat iOll.

Chris Kelley has completed work on "A Guide to ASCS Administrative Appeals and fhe judicial Review of ASCS Decisiolls. "

The article will appear at 36 S.D.L. Rev. (1991). "TI/e Regulation of Agriwlfllrnl Practices to Protect Grolllldwater Qualify: rhe Nebraska Model for Confrol/i/lg Nitrafe COllfam;'lnfioll, " by Susan A. Schneider

was recently published at 10 Virginia Environmental Law Journal 1 (990). The faculty were also active speakers, preparing and delivering a variety of speeches and continuing legal education programs. Robert Laurence discussed "Dispufe Resolution alld [,ldian Reservations Reso//rces" at an ABA workshop on

Natural Resources, Energy and Environmental Law in Albequerque, New Mexico, on February 20-22. Rob Leflar spoke on "Collsumer Profecfioll and the Sfafe Alfomeys Gelleral.路 1il/1ovafive Approaches frolll Across the

U.S.A." at the Office of the Attorney

General, Little Rock. Ray Guzman gave a series of lectures on various subjects to applicants preparing for their prospective bar examinations in ew York, Philadelphia, Washington D.C., Atlanta, Athens, Detroit, Chicago, San Francisco, San Diego, Los Angeles, Little Rock, and Fayetteville. Jake Looney gave a number of presentations during December and January. They included a talk on the "Arkallsas judicial Sysfem" at Leadership Fort Smith, a discussion of "Sales alld Markefing of Livesfock - SOl1le Special Legal Problems" at the Benton County Cattlemen

, s Association meeting on January 15, a discussion of "Avoidil1g Legal Piffalls" at the Ferguson Agri-Management Institute in Tulsa, and a speech on "Alfen/afive Legal Remedies ill the Sale of Agricultural Products" at the Mid-Year Meeting of the

Arkansas Bar Association. In addition, Looney served as Education Leader for a Legal Study Tour in Egypt and presented three lectures on Egyptian L1W during the course of the trip. On Monday, January 7, Howard Brill spoke to the Sebastian County Bar Association on Punitive Damages. In addition, Brill spoke to the Rutherford Institute of Arkansas on Developments in Church-State Issues. Chris Kelley organized a workshop on

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ASCS Appeals at the Southeastern United Farmers' Organization Annual Meeting in Myrtle Beach, South Carolina, on January 18-19. John Copeland gave two papers concerning Pollution Liability and the Rural Agent at the 1991 Rural Agents Agribusiness Conference, sponsored by the Independent Insurance Agents of Iowa. Susan Schneider gave presentation tilled "Chapter 12 Ballkrllptcy" at the Southeastern United Farmers' Organ· ization Annual Conference in Myrtle Beach, South Carolina, January 18-19. Terry Kirkpatrick spoke at Leverett Elementary School on the Criminal Justice System. Other faculty news. Rob Leflar recently taught a 7-week seminar on "Health, Human Rights and the Law" for fourth-year medical students at UAMS. RdY Guzmrln recently cut a series of videotapes for Harcourt Brace Jovanich on a number of topics including: Evidence, Criminal Law, Torts and How to Prepare for the Multi·State Bar Examination. The tapes are distributed nationally by Harcourt. Dr. Robert A. Leflar was cited as one of the "Twenty Most Important Citizens of Arkansas in the 20th Century" by the

ArkfllIsas Gazette in an article appearing on Sunday, February 10, 1991 in the Gazette. In January, John Watkins became Chair of the American Association of L.:1W Schools Section on Mass Communications Law. Howard Brill was recently appointed Chairman of a joint committee of the Arkansas Bar Association and the Arkansas Judicial Council to study the new Code of Judicial Conduct. Jake Looney was appointed to the Governor's Animal Waste Task Force. In addition, Looney was elected Treasurer by the Board of Ozark Legal Services and he was elected to the Scientific Committee of Unione Mondiale Degli Agraristi Universitari (the International Organization of Agricultural Law Professors). In December, Looney was presented with a "State Friend of Extension" award by Epsilon Sigma Phi, the national honorary extension fraternity in recognition of support of the educational programs of the Arkansas Cooperative Extension Service. Terry Kirkpatrick reported on recent graduate employment statistics to the Committee on Women and Minorities at the Mid-Winter Meeting of the Arkansas Bar Association. Don Judges is working with the American Polarity Therapy Association to draft procedures for implementing rules

ENVIRONMENTAL AUDITS

of professional responsibility for its members. Rob Leflar was recently appointed State Government Co-Chair of the Arkansas Chapter of the Sierra Club. Mort Gitelman recently attended the Arkansas Bar Foundation dinner to honor scholarship recipients. John opeland wns interviewed concerning environmental problems and insurance coverage by TOP PRODUCER Journal. The interview was the source of hvo publications: "Wire" Liability Strikes," TOP PRODUCER 17 (Dec. 1990); and "Call Adequate Euv;rolJtneulal Liability 11lsumner Be BoIIgh,?," 1 Forward 5 (Winter 1990). From finals to the beginning of a new semester-that sums up life at the School of Law from December through April. ew students are beginning to feel like veterans after their first round of exams, and you can feel excitement in the air as the first spring breezes blow through the buildings reminding everyone that ,graduation is only a few months away. Student News The annual Henry Woods Trial Competition was held in the Old Courtroom on January 17, 1991. The competition, an ABOTA event, is held in conjunction with the mid-year meeting of the Arkansas Bar Association.

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4 8

ARKANSAS

LAWYER

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L'S [ \' I <[~S ['I' 1 (Ji" ,\ [~ 1-; \ ,"-',"l \S ,\'1' [ X [" [' [ , I'~ [~( )I 'K ,'-jI'[[(J(J[,

(JI,'(,,\\\ By Sltsie Pointer On February "IS, 1991, Connie Hickman and David Mackey represented UALR School of Law at the first annual

Rabbi Seymour Siegel Legal Ethics Moot

Court Competition, sponsored by Duke University School of Law. To prepare for the competition the students researched and wrote an appellate brief and practiced their arguments before numerous attorneys and professors. Their hard work was evident as they argued against teams from the University of California at Berkeley, Cumberland University and the University of Southern California. Cumberland was the overall winner of the competition. Cathy Derden served as faculty adviser to the team. The moot court trip to Durham, North Caro.lin~, was underwritten by contributIOns from the Pulaski County Bar Association; Wright, Lindsey and Jennings; Mitchell, Williams, Selig, and Tucker; and Herschel Friday. Special thanks goes to David Paul for his role as fund raiser for this project and for his continued interest in the alOot court program. We're very grateful to all the people who continue to help our Law School by judging competitions, bench trials and jury trials and by contributil'g to the expenses of moot court competition. BLSA (Black Law Studenls Association) hosted a series of brown bag lunches to honor the memory of Dr. Martin Luther King. Wiley Branton spoke on Affirmative Action and Wendell Griffin spoke on African American Spirituality and the Law. The chapter will host Mike Price in March, speaking on careers in the government sector. Gwen Hodge and Denese Fletcher attended the :egional meeting of BLSA in Minneapolis In early February. The 1992 regional meeting will be hosted here at UALR School of Law by our own BLSA chapter. The Arkansas Association of Women Lawyers (AAWL) is sponsoring a mentor program for our law students. Any lIlterested student may sign up to be paired with a member of AAWL. The mentor relationship will then be structured by the two. It is anticipated that first year students may need help with study and lifestyle problems, while

second year students may be more conducted even as this article is written. inter.ested in information concerning Our search for a new Dean of the c1erkll1g and electives in the curriculum, School of Law is foremost in most minds and third year students may want to these days.- A field of six (6) candidates knO\v about career options. The program interviewed here, each of them spending is designed to be flexible so that the several days meeting with students, student can approach the mentor about fac~l~y, administration, staff and campus offiCials. Recommendations will be any lav.'-related topic. Phi Alpha Delta once again sponsored forwarded to the Chancellor and Provost its Immunity Day to collect food and by the Dean Search Committee and the money for needy residents in the Central faculty in mid-March. We hope for a a good-news Arkansas area. Students donating canned speedy hire and food placed it before them during class announcement shortly thereafter. The and were exempted by participating distinguished roster of candidates professors from the Socratic method of includes: Bill H. Bowen, Chairman of the Board and former Chief Executive Officer instruction for that particular class period. Our Law School Division of the of the bank holding company, First American Bar Association was Commercial Corporation and former represented at the 10th Circuit annual Chairman of First Commercial Bank' spring meeting in Kansas City March 1-3 Daniel J. Capra, Professor of Law: by David Carroll, Tammy Harris, Gwen Hodge, Angie Alexander, Pam :Moseley, ARKANSAS John Campbell and Scott Ellington. The PROFESSIONAL AND Circuit elected Martha Leonard as new Circuit Governor and heard from JUDICIAL ETHICS COMWIP, the Committee on Minorities by Howard W. Brill and Women in the Profession. The 10th Second Edition, 1991 Circuit is composed of law schools in IMPORTANT REFERENCE WORK FOR ALL Kansas, Oklahoma and Arkansas. ARKANSAS LAWYERS AND JUDGES Spring break, March 25-29, is a sure A new edition of Professor Brill's popular sign that the semester is more than half collection of Arkansas rules and other mao over. Classes will end on April 24 terial relating 10 the practice of law. Covers followed by finals beginning on May 1. Ihe Rules of Protessional Conduct, Canons Graduation for the Class of 1991 is May of Judicial Elhics, Specialization, Mandatory 18. LAW SCHOOL ACTIVITIES COnlinulng Legal Education, Unauthorized The American Bar Association Task Practice of law, Client Security Fund, Force on Sole Practitioners and Small Law IOlTA, Judicial Discipline and Disability Firms conducted a hearing at the Law Admission 10 Praclice, Codes of Proles~ School on January 17. Chaired by sionalism, Supreme Court Committee on Donaghey Distinguished Professor Robert Prolessional Conduct. 374 pages. Wright, the task force heard testimony Price: $1 B.OO plus $2.00 shipping from solo practitioners and members of small law firms concerning the unique m & m Press problems of law practice alone or within a P.O. Box 338 small group. The hearing, one of seven, addressed how the ABA can be of more Fayetteville, AR 72702 help to these practitioners. Robert Wright will eventually write a report for the Task For~e, summarizing, its findings and settmg forth recommendations. That report will be submitted to the ABA's Board of Governors for their consideration. FOR SALE: 2CPT 8525 word The Board of Directors of the Law processors with printer and School Association attended a breakfast multiplexer. Includes all manuals board meeting on January 18 during the and floppy diskettes. $900,00. midyear meeting of the Arkansas Bar Association. Margaret Whillock of the Call John Patterson between 8:30 and UALR Development Office introduced the 5:00,268-7114. directors to the capital campaign being FOR SALE: Telephone system, 8 launched for the new building. phones and control unit, speaker The Placement Office completed the phone, $500.00. Cat John Patterson NALP (National Association of Law between 8:30 and 5:00, 268-7114. Placement) survey of the graduating class of 1990. Results are tabulated for that class Southwest Reporter (Arkansas and are available in the Placement Office. Cases) to date; Arkansas Code; ~pring on-campus interviews for clerking both for sale for 60% of price of new Jobs and full-time positions are being books. 358-5800.

LAWYERS'MART

Fordham University School of Law;

Howard R. Eisenberg, Professor of Law and Director of Legal Clinic, Southern Illinois University at Carbondale; Alan D. Hornstein, Associate Dean, University of Maryland School of Law; Tom C. McRae, former candidate for Governor of Arkansas and former President of the

Winthrop Rockefeller Foundation; and Harold

F.

See,

Professor of

Law,

University of Alabama School of l..<1W. Judicial Clerkships was the topic of a brown bag luncheon held on January 30. Professors Frances Fendler Rosenzweig, Dennis. Hannis, and Betsy Parsons and Assistant Dean Susie Pointer were joined by Larry Jegley, Chief Staff Attorney for the Court of Appeals. They outlined for students the types of c1erkships available, why judicial clerkships are important, and how to get these jobs. The Board of Law Examiners will meet with interested students at the Law School on April 9 to discuss the Arkansas Bar Examination and to answer questions. FACULTY Charlotte F.. (Betsy) Parsons attended an Employment Discrimination Conference sponsored by ALI-ABA in San Francisco February 6th. She also attended a conference on Feminist Practice: Women in Law and Literature at the University of Texas at Austin. The conference was an inter-disciplinary study of the way women are percei ved in la wand in literature. On March 2 Associate Dean john

I

DiPippa presented "The Dogs of War: the Framers' View of Nuclear Weapons" to the Arkansas Political Science Association. Cathy Derden and Ranko Oliver are scheduling oral arguments for first year students in the appellate advocacy program as well as intramural moot court competition for second and third year students. They are recruiting attorneys rind judges to serve on three-member panels to hear the students' oral arguments. Please call 324-9444 if you would like to volunteer to be the one who asks the questions. Fenton Adams, Interim Dean of the School of Law, attended the annual meeting of the Association of American Law Schools in Washington, D.C. in january. In February he attended the mid-winter meeting of the American Bar Association in Seattle. He was a participant in Workshops for Law School Deans, a program sponsored by the ABA's Section on Legal Education. On March 22 he attended the Toast and Roast for Freeman McKindra sponsored by Ambassadors of Life. :Mr.. McKindra has had a long a~sociation with the I.aw School as our liaison for the Rockefeller Scholars Program sponsored by the Rockefeller Foundation. Jim Spears spoke at a session of the mid-year meeting of the Arkansas Bar Association on "Will Drafting and Execution Trftps." Ken Could is winding up an heroic endeavor as Chair of the Dean Search

Committee for the Law School. His work has included planning and coordinating all phases of the search and physically shepherding each candidate through the three-day intensive interview process. A look at 66 Notre Dame Law Review 57 (1990) will reveal Andrew McClurg's article entitled, "It's a Wonderful Life: The Case for Hedonic Damages in Wrongful Death Cases." Professor McClurg will be a Visiting Professor at Colden Gate University School of Law in San Francisco for the 1991-92 academic year. Robert Wright attended the mid-year meeting of the American Bar Association in Seattle in February. His Teacher's Manual for the Fourth Edition of Cases and Materials on Land Use is hot off the press. Andy McClurg, Phil and Ranko Oliver, Jim Spears and Scott Stafford attended the annual meeting of the Association of Am rican Law Schools in Washington, D.C. in january. New Building Progress 'ext time you're in the central Arkansa area, take the time to drive past the site of the new Law School next to McArthur Park. You can't miss th~ construction site--a bright sign displays the words "Future Home of UALR School of L1W." Studs are going up and the new addition housing the Law Library is readily identifiable. The whole complex is taking on a form that can now be identified as "shaping up."

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5 0

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The defense hasn't rested in over 25 Yl s! The CNA Insurance Companies and Rather, Beyer & Harper have been protecting Arkansas lawyers continuously for 25 years. The long record of our professional and business liability program reflects a commitment to lawyers for the long term. Assets of $22.9 billion, plus a surplus of $2.7 billion, give CNA the financial strength required to continue our program. Our commitment is to provide quality protection. Quality means consistency-staying in the market as we've done, to avoid gaps in coverage. Quality also means using our underwriting experience to arrive at a fair and honest premium. Our program provides expert claims han-

dling which includes Vigorously resisting nonmeritorious suits and closing a high percentage of suits without payment. You can even earn premium savings based on the size of your firm, area of practice, claims experience or continuing legal education. Learn more about how our long-term commitment to your protection can help you. Contact the administrator: Rebsamen Insurance, Inc. Rather. Beyer & Harper Division P. O. Box 3398 Little Rock. Arkansas 72203-3398 664-8791

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