The Arkansas Lawyer - Summer 2009
The Arkansas Lawyer magazine is the flagship publication of the Arkansas Bar Association. The quarterly publication communicates the news of the Arkansas Bar Association and provides brief and in-depth articles on many aspects of the legal profession. The magazine is distributed to the approximately 5,000 members of the Association as well as to other state and local bar associations and law libraries across the country.
The Arkansas Lawyer A publication of the Arkansas Bar Association Vol. 44, No.3, Summer 2009 online at www.arkbar.com Summer 1993 Cover 2009-2010 Arkansas Bar Association President Donna C. Pettus and her husband, Past President Lamar Pettus 2. View a realtime feed of the deposition testimony from your laptop. 1. Enter, access, share and search all essential documents – briefs, pleadings, filings, hot documents and more – in a click. 3. Export Westlaw® research directly into your Case Notebook files. 4. Take your Case Notebook on the road and access files anywhere – your hotel, the airport, your home office. EVERYTHING IMPORTANT TO YOUR CASE. ALL IN ONE PLACE. Introducing West Case Notebook™ with LiveNote™ technology. Now all your essential case information is organized in a usable electronic format and accessible in a single click. So you and your team can enter and share key facts, legal documents, main characters, transcripts, evidence, pleadings, legal research and more. You can search across all this and find what you need instantly, including that hot document that may have taken you hours to locate before. All of which means you can be confident you’ve missed nothing. Call 1-800-762-5272 or visit west.thomson.com/casenotebook for more details. WEST.THOMSON.COM © 2009 Thomson Reuters L-346687/1-09 Thomson Reuters and the Kinesis logo are trademarks of Thomson Reuters. Publisher Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 Homepage: www.arkbar.com E-Mail: email@example.com editor Anna Hubbard executive director Karen K. Hutchins Editorial Board Gordon S. Rather, Jr., Chair Judge Wiley A. Branton, Jr. Milton Fine, II Judge Victor A. Fleming William D. Haught Jim L. Julian Philip E. Kaplan Mary Beth Matthews Drake Mann David H. Williams Teresa M. Wineland OFFICERS President Donna C. Pettus Board of Governors Chair Frank B. Sewall President-Elect Jim L. Julian Immediate Past President Rosalind M. Mouser Secretary F. Thomas Curry Treasurer William A. Martin Parliamentarian Charles D. Roscopf Young Lawyers Section Chair Anthony W. Juneau BOARD OF GOVERNORS Thomas M. Carpenter Richard C. Downing Causley Edwards Robert R. Estes, Jr. Amy Freedman David M. Fuqua Charles L. Harwell L. Kyle Heffley Anthony A. Hilliard Sean T. Keith Paul W. Keith Roy Beth Kelley Harry A. Light Laura E. Partlow Jerry D. Patterson Brian H. Ratcliff John C. Riedel Brian M. Rosenthal John T. Vines Tom D. Womack Dennis Zolper LIAISON MEMBERS Zane A. Chrisman David B. Vandergriff Jack A. McNulty Karen K. Hutchins Judge Kim Bridgforth Carolyn B. Witherspoon Judge Harry A. Foltz The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, firstname.lastname@example.org. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2009, Arkansas Bar Association. All rights reserved. The Arkansas Lawyer Vol. 44, No. 3 features 10 New Fed. R. Evid. 502 - How Well Will it Work? The Hon. Jerry Cavaneau 16 What You Need to Know About New Laws Passed During the Regular Session of the 87th General Assembly John A. (Jack) Davis III and Jack A. McNulty 19 Legislative Timetable 20 Donna C. Pettus 2009-2010 Arkansas Bar Association President Anna Hubbard Cover photo by Terrell Rohrbach Photography 26 Extra! Extra! Arkansasâ€™s High Court Announces Two Changes That Will Affect Thousands of Attorneys Brandon J. Harrison 28 Arkansas Supreme Court Historical Society Invitation to a Dinner Honoring Former Arkansas Supreme Court Justices 30 Enjoy Email Responsibly Catherine Sanders Reach Contents Continued on Page 2 Lawyer The Arkansas Vol. 44, No. 3 in this issue Association News 6 columns Arkansas Bar Foundation New President 14 2009-2010 Association Officers 24 Donna C. Pettus CLE Calendar 29 Young Lawyers Section Report President’s Report Anthony W. Juneau Arkansas Bar Association Annual Meeting Photo Recap 32 2008-2009 Association/Foundation Awards 34 Arkansas Bar Association Awards 36 House of Delegates Meeting 38 Congratulations to 50 & 25 Year Members 39 Judicial Advisory Opinions 40 Lawyer Disciplinary Actions 40 In Memoriam 53 Arkansas Bar Foundation Memorials and Honoraria 55 Classified Advertising 56 Your Name in Print For information on submitting articles for publication go to www.arkbar.com and click on The Arkansas Lawyer or email email@example.com Arkansas Bar Association 2224 Cottondale Lane Little Rock, Arkansas 72202 HOUSE OF DELEGATES Delegate District C-1: James E. Scurlock Delegate District C-2: Jerrie Grady Delegate District C-3: Keith Chrestman, Brant Perkins, Teresa M. Franklin Delegate District C-4: Curtis Walker Delegate District C-5: A. Jan Thomas, Jr., Marshall A. Wright, Winston B. Collier Delegate District C-6: Charles E. Clawson, III, Shane A. Henry Delegate District C-7: William N. Reed Delegate District C-8: Brandon C. Robinson, Paul T. Bennett, Charles D. Roscopf Delegate District C-9: Timothy R. Leonard, Matthew J. Shepherd, C.C. Gibson III, Phillip A. Pesek Delegate District C-10: Shivali Sharma, and Open Position Delegate District C-11: John C. Finley, III, J. Philip McCorkle Delegate District C-12: Jacob M. Hargraves, Jonathan D. Jones and Open Position Delegate District C-13: Cecilia Ashcraft, Sam E. Gibson Delegate District A-1: Vicki S. Vasser, Anthony W. Juneau, Anthony W. Noblin, Kristin Pawlik and Open Position Delegate District A-2: Brock Showalter, Buddy Chadick, Tim Tarvin, Debby Thetford Nye, Paul D. Reynolds, W. Marshall Prettyman, Jr., Robert R. Estes, Jr., Charles M. Duell, Troy L. Whitlow, Suzanne Clark and Open Position Delegate District A-3: Stephen C. Smith, Farrah L. Fielder, C. Michael Daily, Jeffrey D. Rickard, Joel D. Johnson, Stephanie Harper Easterling Delegate District A-4: Patrick C. McDaniel, John C. Riedel Delegate District A-5: Brent Capehart Delegate District A-6: Emily Sprott McIllwain Delegate District A-7: Jerry D. Patterson Delegate District B: Gwendolyn L. Rucker, Mitchell L. Berry, M. Stephen Bingham, Michelle H. Cauley, David P. Glover, Jay L. Shue, Jr., Elizabeth Thomas Smith, Joel M. DiPippa, Khayyam Eddings, Christian Harris, Ka Tina R. Hodge, Jeffrey Dale Wood, Gill A. Rogers, Alan G. Bryan, Tim J. Cullen, JaNan A. Davis, Jennifer W. Flinn, Anne Hughes White, Brendan T. Monaghan, Tasha Sossamon Taylor, Patrick L. Spivey, Shaneen Kelleybrew Sloan, Jason Earley, Jerald “Cliff” McKinney, II, John P. Perkins, III, Victor D. “Trey” White, Mark W. Hodge, Cathy Underwood, Jodie Lynn Hill, Grant M. Cox Law Student Representatives: Austin Easley, University of Arkansas School of Law; Aimie Lockwood, UALR William H. Bowen School of Law 2 The Arkansas Lawyer www.arkbar.com 5 9 It is more important than ever to understand your 401(k) fees. 401(k) fees can be assessed as explicit out-of-pocket expenses or charged as a percentage of assets. These expenses can be charged to either the sponsoring law firm or the planâ€™s participants. Often they are assessed both ways, in some combination to the firm and its participants. Unique 401(k) Plans for Law Firms HOW IS THE ABA RETIREMENT FUNDS PROGRAM DIFFERENT FROM OTHER PROVIDERS? TWO REASONS: 1. The ABA Retirement Funds program was created by a notfor-profit organization within the ABA to provide a member benefit, not generate revenue for the ABA. 2. The ABA Retirement Funds program achieves the necessary economies of scale with over $3 billion invested to eliminate all explicit fees for firms, and provide investments for participants with low asset based fees. Let the ABA Retirement Funds program provide you with a cost comparison so you can better understand your direct 401(k) fees, and see how we can help you to provide an affordable 401(k), without sacrificing service, to your firm. For more details contact us by phone (877) 947-2272, by email firstname.lastname@example.org or on the web at www.abaretirement.com You should consider the investment objectives, risks, charges and expenses of the investment options carefully before investing. Please refer to the most recent Program prospectus for such information. For a copy of the Prospectus with more complete information, including charges and expenses associated with the Program, or to speak to a Program consultant, call 1-877-947-2272, or visit www.abaretirement.com or write ABA Retirement Funds P.O. Box 5142, Boston, MA 02206-5142 - email@example.com. Please read the information carefully before investing. The Program is available through the Arkansas Bar Association as a member benefit. However, this does not constitute, and is in no way a recommendation with respect to any security that is available through the Program. 04/09 The Blue Book From compiling to printing to final delivery, we maximize our resources to provide a directory that allows customers to reach you faster and more efficiently. And with over 70 years of publishing expertise we can minimize your effort to accelerate the exposure of your professional business listing across the state. The can help you reach a bigger market. A bigger market is out there... ...you too can reach it with the Blue Book To order your copy or to be included in the next edition contact us at 1-800-447-5375 4 The Arkansas Lawyer Legal Directories Publishing Company, Inc. - www.LegalDirectories.com www.arkbar.com President’s Report by Donna C. Pettus Logos, Leadership and Rock Stars This is all about how to be a rock star. We will get there in a circuitous sort of way. Hang in there with me, will you? Logos In case you haven’t noticed yet our Association has adopted a new logo. We have retired our blue and white columns logo for a red, cream, and gold banner accompanied by the words “tradition, integrity, trust.” Right there you know we are saying something about our association. As Lorrie Payne our associate director would say, we have adopted the “gold standard.” I talked about these three words when I was sworn in as your newest bar president at the annual meeting. The things I had to say were neither all encompassing nor profound—but I hope thought provoking. As lawyers we stand for tradition – the best traditions. Traditions of the past and how they will shape the character of our growth in the future. The beauty of the law and for those of us who practice is that the law is never static. Being in law takes us places we might never have expected to be. Law often reflects our societal values, and sometimes, when we are at our best, it leads to a better tomorrow than we have today. We stand for integrity. More often than not, integrity is tough. We are sometimes frustrated with opposing counsel, with an occasional judge, with a ruling that did not go our way, with clients who often won’t heed our best advice. We are inundated with a mound of paperwork, inevitable deadlines, sometimes indecipherable rules and archaic common law we inherited from a country with an ocean between us. But in all of this, characteristically, we demand justice and work for new ways of being the messengers of right. We rarely give up. We don’t quit five minutes before the miracle. We stand for trust. Our clients and community ought to be able to trust us. We are, and if we are not, we ought to be, our state’s leaders, and the leaders of tomorrow. This year your association will develop a Leadership Academy and begin a concentrated effort to teach lawyers how to be leaders in their association, in their communities. Sometimes we have let our roll as lawyer leaders slip away from us. It is time now to take it back. Tradition. Integrity. Trust. Leadership There is a trend among state bars, some for several years now, to offer leadership development programs. For most the primary goal is either to increase and educate the pool of lawyers that would ultimately lead the bar, to increase diversity in the leadership, or to foster professionalism and civility among the newest lawyers. The results have been a greater participation of association members—like a baseball farm team—getting new young leaders, not only in the associations, but also in state and local communities. It has become clear that bar associations have benefited when lawyers are trained as leaders. But what do the participants gain? Many report the skills they’ve learned, and the contacts they have made, have enabled them to move into leadership roles they might not have attained or considered before. They have become city council members, board members, judges and legislators. You will be hearing more in the future. I hope we can unveil a mini version at the 2010 annual meeting for all of you to check it out. I hope those of you who are not already on the leadership tract will seriously consider the Leadership Academy program. While each year the number of participants will be limited, the association will be reach- ing out to as diverse a group of participants as possible—diversity in the firm size of participants, from large to small to solo practitioners, from all areas of the state, to ethnic diversity, economic, political, and practice diversity. When all is said and done we hope you will find it an honor to participate. Rock Stars The current leadership of your association met at Judge John Stroud’s cabin on Lake Greeson recently for our 2009-2010 planning session. I call these folks Leadership Rock Stars. I look at the picture accompanying this article and I think back to my 9th grade civics class—not so long ago—and remember how we did a 9th grade version of a trial. It gave me lawyer fever. And as luck would have it, I did join a great group of Rock Stars. Lawyer Rock stars. Your leaders are hard workers. They are outstanding volunteers, and as evidenced by their identity hiding sunglasses in this picture, don’t care to be recognized or take the credit. Next time you see one, shake their hand. And then by golly, become one! That’s how to be a Rock Star. n l to r front row: Gwen Rucker, Lorrie Payne, Brian Ratcliff, Rosalind Mouser, Donna Pettus, Bill Martin; l to r back row: Judge John Stroud, Frank Sewall, Karen Hutchins, Tony Juneau, Tom Curry, and Jim Julian at Judge Stroud’s cabin on Lake Greeson in June Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 5 Association News 2009-2010 Committee and Section Chairs and Co-Chairs The following Association Committee and Section Chairs and Co-Chairs have been appointed or re-appointed Arkansas Bar Association Member Benefits Committees Gwendolyn L. Rucker, Annual Meeting Committee; Olly Neal, Arkansas Bar Commission on Diversity; Dennis Zolper, Arkansas Bar PAC; Patrick D. Wilson, Arkansas Law Review, Inc.; Conrad T. Odom, Attorney/Client Privilege Committee; Tom D. Womack, Audit Committee; Thomas A. Daily, Bar Leaders Handbook and Benefits Task Force; James A. Ross, Jr., and Mary S. McGowan, Committee for a Modern Judiciary; Harry Truman Moore, Committee for Responding to Unfair Criticism of Judges and the Courts; Zane A. Chrisman, Continuing Legal Education Committee; Gordon S. Rather, Jr., Editorial Advisory Board - The Arkansas Lawyer; William D. Haught, Editorial Board for Handbooks; William A. Martin, Finance Committee; S. Renee Brida, Find a Lawyer Committee; Brian H. Ratcliff, House Committee; Jackson Farrow Jr., Investment Committee; Pamela B. Gibson and Sam E. Gibson, IT Infrastructure Committee; John F. Stroud, Jr., Judicial Council Liaison Committee; Robert F. Thompson, III, Judicial Nominations Committee; Dennis Zolper, Jurisprudence and Law Reform Committee; Mark W. Hodge, Law Related Education Committee; Richard L. Ramsay, Law School Committee; Sam E. Gibson, Lawyers Assisting Military Personnel; Paul T. Bennett, Lawyers for Literacy Committee; Alice F. Lightle, Lawyers Helping Lawyers Committee; John T. Vines, Rachel (Katie) Anderson, and Regan Gruber Moffitt, Leadership Academy Committee; William A. Waddell, Jr., Legal Services Committee (Civil); John A. (Jack) Davis, III, Legislation Committee; Robert K. Jackson, Legislative Task Force; Fred S. Ursery, Zane A. Chrisman and Vicki S. Vasser, Long Range Planning Committee; John T. Vines, Member Benefits Committee; Win A. Trafford, Member Insurance Committee; Brian M. Rosenthal and John F. Peiserich, Membership Development Committee; Taura L. McDaniel and Matthew D. Wells, Mock Trial Committee; Cathy Underwood, Online Legal Research Committee; 6 The Arkansas Lawyer www.arkbar.com Michael H. Crawford, Organization & Redistricting Committee; Spencer F. Robinson, Personnel Committee (Arkansas Bar Association); Brad L. Hendricks, Professional Ethics Committee; Andrew B. Faulkner, Public Information Committee; David W. Sterling, Resolutions Committee; Stephen A. Matthews, Senior Task Force; Charles L. Harwell, Sustaining Member Committee; Jack T. Lassiter, Task Force on Criminal Sentencing Statutes; David M. Fuqua, Task Force on Electronic Discovery; Robert M. Cearley, Jr., Task Force on Judicial Discipline Commission Procedures; Howard W. Brill, Task Force on the Code of Judicial Conduct; James M. Simpson, Jr., Task Force on Unauthorized Practice of Law; David M. Fuqua, Technology Committee; James M. Simpson, Jr., Unauthorized Practice of Law Committee; Rosalind M. Mouser, Underwriting Committee; Elisa M. White, and John C. Calhoun, Jr., Uniform Laws Committee; S. Renee Brida, Women in the Profession Committee Sections Drake Mann, Administrative Law; Scotty Shively, ADR; Patrick Burrow, Business Law; David Sterling, Civil Litigation; J.B. Cross, Construction Law; Toney Brasuell, Criminal Law; Lance Owens, Debtor/Creditor Law; Terry Diggs, Disability Law; Raymon Harvey, Elder Law; Dawn Guthrie, Environmental Law; Causley Edwards, Family Law; Patrick Burrow, Financial Institutions; Tim Humphries, Government Practice; Amber Wilson Bagley, Health Law; Joe Underwood, Intellectual Property; Joi Leonard, International & Immigration Law; Scot Bles, Juvenile Justice; Michelle Kaemmerling, Labor & Employment Law; Alan Perkins, Natural Resources; Brant Perkins, Probate & Trust Law; Cliff McKinney, Real Estate Law; Will Allison, Solo, Small Firm & Practice Management Section; Bryant Cranford, Tax Law Section; Don Elliot, Tort Law; Steven McNeely, Workersâ€™ Compensation Law Section; Anthony Juneau, Young Lawyers Arkansas Bar Center Space available for: n Meetings n Receptions n Mediations n Arbitrations n Depositions n Visiting attorneys n To reserve call 501.375.4606 Weekly Case Summaries Summaries of the significant Arkansas Supreme Court and Arkansas Court of Appeals cases n Available online each week n Decisions updated every Monday n Available on Arkansas VersusLaw & www.arkbar.com For a complete listing go to www.arkbar.com & click on Member Benefits Association News Oyez! Oyez! Filing Petitions Due October 31 For 2011 President of the Association ACCOLADES Legal Aid of Arkansas awarded the following Outstanding Volunteer Attorney of the Year Awards: Dave Ethredge, Kristin Pawlik, Don Bishop, Wade Williams, Rick Rodery, Lance Wright, H. Clarke Mixon, Julian Fogleman, Jim Luker, Tom Garner, Brad Broadaway, Eric Hance, Eric Bray, Tim Watson, Joe Grider, Billy Allred, Michael Kelly, Curtis Walker, Ray Abramson, Edward Schieffler, Kelley Webb, Marshall Wright, Jerry Patterson, Stephen Lance Cox; Brian Lester, Outstanding Young Lawyer; Phyllis Hall Johnson, Outstanding Family Lawyer. Next President-Elect will come from the District C Bar District APPOINTMENTS AND ELECTIONS Judge Susan Webber Wright of the U.S. District Court for the Eastern District of Arkansas has been selected to join the Foreign Intelligence Surveillance Court. Jim Harris has been named Executive Director, Gift & Estate Planning, for the University of Arkansas, Fayetteville. Paul F. Dumas of Morrilton has been appointed to the state Ethics Commission. The Jefferson County Bar Association announced that Terry Wynne has been elected president, Jimmy Dill has been elected Vice President and John L. Rush, Secretary/Treasurer. The Benton County Bar Association announced that William Trentham has been elected president, Hollie Greenway has been elected Vice President and Vicki S. Vasser has been elected Secretary/Treasurer. WORD ABOUT TOWN Scott Emerson, formerly of Lyons, Emerson & Cone, announced the opening of The Emerson Law Firm with offices located at 245 South Main in Jonesboro. We encourage you to submit information for publication in OYEZ! OYEZ! To do so, please send information to: firstname.lastname@example.org. The President-elect of the Arkansas Bar Association is elected by the vote of the entire membership of the Association. The position is rotated each year among the three state Bar Districts, which have been reorganized this year. The next PresidentElect will come from Bar District C (formerly South & East). Nomination petitions must be filed with the Secretary at the Association’s office no later than October 31, 2009. The petitions must be signed by at least 75 Association members, with at least 25 signatures residing in each of the three state Bar districts of the Association. The member elected this fall will assume the office of President-Elect at the June 2010 Annual Meeting in Hot Springs and will become the Association President in June of 2011. Arkansas Bar Association Lawyers for Literacy Committee New or Re-elected Members of Arkansas Bar Association Governing Bodies Board of Governors: Thomas M. Carpenter, Amy Freedman, David M. Fuqua, Anthony A. Hilliard, Paul W. Keith, Laura Partlow, Jerry D. Patterson and John Riedel House of Delegates: Keith Chrestman, Suzanne Clark, Grant M. Cox, Jason Earley, Stephanie Harper Easterling, Jerrie Grady, Shane A. Henry, Jodie Lynn Hill, Mark W. Hodge, Joel D. Johnson, J. Philip McCorkle, Emily Sprott McIllwain, Jerald “Cliff” McKinney III, Anthony W. Noblin, Kristin Pawlik, John Perkins, Paul D. Reynolds, Charles D. Roscopf, Phillip A. Pesek, James V. Scurlock, Shivali Sharma, Brock Showalter, Shaneen Kelleybrew Sloan, Patrick L. Spivey, Cathy Underwood, Curtis Walker, Marshall A. Wright, Victor D. “Trey” Wright Law School Representatives: Austin Easley and Aimie Lockwood l to r: James H. Ochsenfeld and Paul Bennett Paul Bennett, Chair of the Lawyers for Literacy Committee, presented the Tutor of the Year Award to James H. Ochsenfeld at the State Capitol in April. The Committee works with the Arkansas Literacy Councils, Inc. each year and presents awards during Literacy Month. Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 7 Association News Virginia Hardgrave Retires After 28 years of Service ABA Day in Washington, D.C. Harry Truman Moore, Donna Pettus, Lamar Pettus, Rosalind Mouser and Rick Ramsay at ABA Day in Washington, D.C. in April. Law Day Poster Contest Virginia Hardgrave Retired CLE Coordinator The Association’s long-time CLE Coordinator, Virginia Hardgrave, retired this July. “Virginia has been the pillar for CLE for the past 28 years,” said Karen Hutchins, Association Executive Director. “Her service has been invaluable to attorneys throughout the state. We will miss seeing her smiling face at all CLE events.” Judge Rita Gruber presented awards to the winners of the Law Day poster contest at a ceremony at the State Capitol in May as part of Law Day events. Arkansas Bar Association New Staff Please join us for a Retirement Party for Virginia August 27, 2009 10:00 a.m. - 4:00 p.m. Open House Drop By to Wish Virginia Well Mock Trial Volunteers Needed Jon Dor Accountant/Finance & Administration Kristen Scherm CLE Coordinator Please consider becoming a volunteer for this year’s Mock Trial Competition. It’s a rewarding way to introduce young people to the legal system. Jon Dor has been hired as the Arkansas Bar Association’s new Accountant in charge of Finance & Administration. Jon brings 10 years of tax and accounting experience from Exxon Mobil Corporation in Houston, TX as well as non-profit experience. He received a Bachelor of Science degree in Accounting from the University of Houston. Jon and his wife Tammy have a three-year old son Hayden. Kristen Scherm has been hired as the Association’s CLE Coordinator. Kristen has been with the Association for almost two years as the receptionist. She has worked in the legal field for six years, including four years as a paralegal. Kristen received a Bachelor of Science degree in Communications from Arkansas State University. She has a three-year old son Talan. For more information, please contact Rando Hicks at email@example.com 8 The Arkansas Lawyer www.arkbar.com Young Lawyers Section Report by Anthony W. Juneau Community Service: Our Responsibility 18 ife to and L Go: Law Day k for ndboo s al Ha n A Leg g Arkansa Youn May 1, 2010 “The YLS will hold at least one tion First Edi tion ed by Prepar Associa as Bar s Section Arkans Lawyer Young social event this year in each of As many of you know, community service is one of the primary responsibilities of the Young Lawyers Section (“YLS”). The YLS is currently working on several projects to benefit the communities of our great state. Under the leadership of Matt House, the YLS recently published the first edition of “18 & Life To Go: A Legal Handbook For Young Arkansans.” The purpose of this 150 page publication is to provide high school seniors with an overview of Arkansas law on various topics including contracts, family law, criminal law, employment law, and the litigation process. The YLS’s goal is to provide a copy of this handbook to every high school senior in Arkansas. We are currently in the process of raising funds to print twenty to thirty thousand copies of the handbook per year, which will not be cheap. However, given the fact that this publication will be very beneficial to young Arkansans, the YLS believes that any money spent on this project is well worth the investment. Another important focus of the YLS this year will be the “Wills for Heroes” project. Through this project, the YLS will offer free wills to Arkansas’s fire fighters, police officers, and first responders (“Heroes”). Within the last two months, the YLS has drafted a template for the will, as well as an accompanying information and instruction sheet. With the help of LEXIS, the template has been configured into an electronic format, which will allow YLS volunteers to easily input the relevant information into the will. Within the next couple of months, the YLS will announce the dates when this free service will be made available to Arkansas’s Heroes. On the selected dates, YLS volunteers will travel to police/fire stations throughout Arkansas to meet with the Heroes and to assist with the preparation of the wills. Each volunteer will input the relevant information from the information and instruction sheet (which will be distributed to the Heroes prior to the date that the wills are prepared) into the electronic template. Once a will is complete, it will be printed, executed, and witnessed at the police/fire station. As such, each Hero will be able to leave the police/fire station with a valid will in hand. As we have done in the past, the YLS will also sponsor Law Day. Law Day is a great program where attorneys go into a classroom (usually high school) and teach a law-related lesson. For many students, this is their first interaction with an attorney. Not only do the students learn about the topic at hand, but they also have the opportunity to ask the volunteer attorneys about our profession. Unquestionably, Law Day causes many students to develop an interest in the law and the legal process. We also intend on sponsoring several “meet and greet” events focusing on the members of the YLS. The YLS will hold at least one social event this year in each of the three Bar districts, which will give our members a forum to socialize and discuss the future of the YLS. In order to accomplish this goal, I would like to appoint a “social chair” from each of the three Bar districts. If you are interested in serving in this capacity, the three Bar districts, which will give our members a forum to socialize and discuss the future of the YLS. In order to accomplish this goal, I would like to appoint a ‘social chair’ from each of the three Bar districts. If you are interested in serving in this capacity, please contact me.” please contact me at the number below. I would like to take this opportunity to thank Gwen Rucker, Amy Freedman, Paul Bennett, and Cliff McKinney for their outstanding leadership to the YLS over the past several years. I would also like to thank Chin Kuay, a former intern with Legal Aid of Arkansas and current first year law student, for his work on the “Wills for Heroes” program. Finally, I would like to congratulate Brandon Moffitt on his recent election as the Chair-Elect of the YLS. As attorneys, we have a responsibility to serve our communities. Over the next year, the YLS will implement several community service projects, including those mentioned in this report. Although most young lawyers are extremely busy, please consider volunteering your time and abilities to the YLS. If you would like to assist the YLS with any of its projects, please contact me at 479-464-5657 or by e-mail at firstname.lastname@example.org. n Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 9 New Fed. R. Evid. 502 How Well Will it Work? By The Honorable Jerry Cavaneau Computers have brought a whole new set of woes for litigators, their clients and the court system. Documents are created more easily, and electronic storage of information is easy and cheap. Millions of e-mails are created every day by business and multiply like rabbits as they are replied to, forwarded and copied. Multiple drafts of various documents may remain, along with the final version. The resulting explosion of saved electronic information, coupled with a lack of care in organizing it, has made the discovery process an expensive nightmare. In fact, many companies have no storage policy; the information just remains – on servers, desktop computers, laptops, PDAs and cell phones. It is difficult to devise search protocols to find all relevant documents in response to a discovery demand. It is even more difficult, time-consuming and expensive to review relevant materials for attorney-client privilege and work product to prevent disclosure, which can result in waiver of the protection. Document-by-document review can be incredibly expensive and, in many cases, that expense exceeds the amount in controversy. Further, such review is an ineffective method and even with the best efforts, protected documents slip through and are inadvertently produced. Federal courts have disagreed as to the effect of inadvertent disclosure of protected materials. Some hold that any disclosure waives protection, whether intentional or not; others find no waiver unless the disclosure is intentional. Still others (the majority) adopt a “middle” approach, examining a number of factors to determine when an inadvertent disclosure results in waiver. Courts have also disagreed on the scope of waiver. Some say waiver extends only to the disclosed document. Others extend waiver to all related information (subject matter waiver). New Federal Rule of Evidence 5021 is an attempt to resolve these differences and to reduce the costs of privilege review. It accomplishes the goal of making the law more uniform. Rule 502 is a good first step and can be effective in reducing costs, giving counsel tools to reduce the need for expensive review in certain cases, but it does have limitations. Scope of Waiver Rule 502(a) resolves the question of scope of waiver. It provides: (a) Disclosure made in a Federal proceeding or to a Federal office or agency; scope of a waiver.– When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together. 10 The Arkansas Lawyer www.arkbar.com Clearly then, an inadvertent disclosure can never result in subject matter waiver. The rationale as to intentional disclosures is the same as that underlying Fed. R. Evid. 106.2 Intentional waivers broaden to subject matter waiver only if it would be unfair to limit waiver to the initially disclosed material. Inadvertent Disclosure – Resolving the Differences Rule 502(b) adopts the majority rule3 for deciding whether inadvertent disclosure of privileged or protected material results in a waiver. (It is noted that Arkansas, by rule, earlier codified the same approach.4) Courts have generally considered several factors, including: (1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) The number of inadvertent disclosures; (3) The extent of the disclosure; (4) Any delay in discovering the disclosure and measures taken to rectify the disclosure; and (5) Which result would best serve the interests of justice.5 Rule 502(b) mentions only two factors, the reasonableness of measures taken to prevent disclosure and the reasonableness of the steps taken to rectify an inadvertent disclosure. The subsection states: (b) Inadvertent disclosure. – When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).6 However, the advisory committee notes make it clear that the rule is flexible enough to accommodate the additional factors previously considered by the courts in determining whether a disclosure operated as a waiver.7 Some recent post-rule decisions have considered additional factors,8 while others have discussed only the factors listed in the rule.9 Thus, cases decided prior to its inception remain informative.10 What will be considered reasonable steps to prevent disclosure will be decided on the particular facts of each case. The advisory committee notes indicate that an exhaustive pre-disclosure review of documents may not be necessary in a given case, stating: Depending on the circumstances, a party that uses advanced analytical software applications and linguistic tools in screening for privilege and work product may be found to have taken “reasonable steps” to prevent inadvertent disclosure. The implementation of an efficient system of records management before litigation may also be relevant. Further, the advisory committee notes make it clear that a post-production document review is not necessary, although a producing party must promptly follow up when there are obvious indications that protected material has been inadvertently disclosed. It should also be noted that Rule 502(f ) makes the rule applicable to diversity actions in federal court even though state law may provide the rule of decision. Therefore, the rule is to be uniformly applied in all federal litigation. The Goal of Reducing Costs Under Rule 502, counsel can agree on the steps to be taken to prevent disclosure and the steps to be taken to rectify an inadvertent disclosure. They can further agree that if the procedures are followed, no waiver will result from inadvertent disclosure.11 If such an agreement is incorporated into a court order, that order has a controlling effect in subsequent federal or state proceedings and is enforceable against third parties. The rule is flexible enough to allow a wide range of agreements.12 In the appropriate case, the parties might want to use a so-called “quick peek” agreement where there is no pre-production review and the parties agree no waiver will result as to any information disclosed. In other cases, it will be better to agree that careful use of software applications or linguistic tools to screen for such materials would be sufficient, that no waiver would occur for information that might inadvertently slip through, and that the materials would be returned. Still other situations may call for full pre-disclo- sure review, but an agreement of non-waiver for any information that may slip through. All such agreements generally provide that the receiving party reserves the right to challenge the privilege or work-product objection. Counsel can be innovative in reaching such agreements and, if they are incorporated into an order, the parties have protection against use of the materials by third parties. Further, a court can order a limited and less expensive procedure even in the absence of an agreement by counsel.13 Thus, it is possible under the rule for counsel and the court to do away with or limit pre-disclosure review for privilege and work-product materials without the drastic consequence of waiver. However, significant factors limit the effectiveness of the rule in preventing costs. First, the rule applies only to attorney-client privilege and work product protected materials. Cases involving other privileges, trade secrets, or other protected materials are not subject to its protection. Protective agreements may provide no protection other than between the parties. Second, there is at least an argument that subsection (d), in giving the rule controlling effect in state proceedings, is unconstitutional.14 This presents the possibility that a disclosure in a federal proceeding, even with a non-disclosure order, would not be effective against third parties in a state action. Third, and perhaps most significantly, in most cases, mere disclosure of protected information could be quite prejudicial to the disclosing party even if there was no waiver and even if the information could not be used directly. Opposing counsel would have seen the material. It would be impossible to erase that knowledge and perhaps impossible for counsel to avoid capitalizing on it, if only subconsciously. For example, if counsel has seen work product that includes important information about opposition strategy and thinking, it would be impossible (and perhaps a failure to adequately represent the client) if that information is not taken into account in structuring presentation of the case. Another Jerry Cavaneau is a retired United States Magistrate Judge currently serving the Eastern District of Arkansas on recall status. Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 11 “Under Rule 502, counsel can agree on the steps to be taken to prevent disclosure and the steps to be taken to rectify an inadvertent disclosure. “ example would be that the information could be used in formulating discovery requests. There are many more possibilities of severe prejudice arising from disclosure. These considerations will lead counsel, in many cases, to advise a painstaking and expensive preproduction review of relevant materials. Conclusion Rule 502 has made the law of waiver more uniform and has offered protection where federal courts have determined that no waiver has occurred, either as the result of the circumstances of the case or the operation of an agreement between the parties incorporated into an order. The long-term solution to excessive pre-production costs, however, will come from improved technology and recordkeeping policies which will make it possible to categorize, segregate and electronically flag sensitive materials so that the producing party can reliably locate and withhold them and include them on a privilege log. Until that day comes, Rule 502 does provide some protection and some opportunities to creatively fashion agreements and orders that do reduce the costs of review. Endnotes 1. The rule was enacted by Congress on September 19, 2008. It applies to all actions filed after that date and to all actions pending as of that date, so far as practicable. Its full text is: Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or workproduct protection. (a) Disclosure made in a Federal proceeding or to a Federal office or agency; scope of a waiver. – When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if: 12 The Arkansas Lawyer www.arkbar.com (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together. (b) Inadvertent disclosure. – When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b) (5)(B). (c) Disclosure made in a State proceeding. – When the disclosure is made in a State proceeding and is not the subject of a State-court order concerning waiver, the disclosure does not operate as a waiver in a Federal proceeding if the disclosure: (1) would not be a waiver under this rule if it had been made in a Federal proceeding; or (2) is not a waiver under the law of the State where the disclosure occurred. (d) Controlling effect of a court order. – A Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court – in which event the disclosure is also not a waiver in any other Federal or State proceeding. (e) Controlling effect of a party agreement. – An agreement on the effect of disclosure in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order. (f) Controlling effect of this rule. – Notwithstanding Rules 101 and 1101, this rule applies to State proceedings, and to Federal court-annexed and Federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if State law provides the rule of decision. (g) Definitions. – In this rule: (1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and (2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial. 2. Rule 106 provides: “When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” 3. The Eighth Circuit had commented favorably on that approach, saying that it is best suited to achieving a fair result. Gray v. Bicknell, 86 F.3d 1472, 1484 (8th Cir. 1996). 4. Arkansas is the first state to have adopted similar rules to deal with waiver. Ark. R. Evid. 502(e); Ark. R. Civ. P. 26(b)(5)(D). Under Fed. R. Evid. 502(c), if an Arkansas court has entered an order concerning waiver, federal courts will accept it. If a document has been disclosed in state court and there has been no ruling, the federal court will look to the law most protective of the privilege or work product. 5. See, e.g., Fidelity & Deposit Co. of Maryland v. McCulloch, 168 F.R.D. 516, 522 (E.D. Pa. 1996). 6. Fed. R. Civ. P. 26(b)(5)(B) provides: Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. 7. Fed. R. Evid. 502 advisory committee’s note. 8. Heriot v. Byrne, No. 08 C 2272, 2009 WL 742769 (N.D. Ill. Mar. 20, 2009); Rhoads Indus. v. Building Materials Corp. of America, 254 F.R.D. 216 (E.D. Pa. 2008). 9. B-Y Water Dist. v. City of Yankton, No. CIV07-4142, 2008 WL 5188837 (D. S.D. Dec. 10, 2008); Laethem Equip. Co. v. Deere & Co., No. 2:05-CV-10113, 2008 WL 4997932 (E.D. Mich. Nov. 21, 2008). 10. See, e.g., Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008); Kalra v. HSBC Bank USA, N.A., No. CV-06-5890, 2008 WL 1902223 (E.D. N.Y. Apr. 28, 2008) (citing earlier cases using the balancing approach); Atrionic Int’l, GMBH v. SAI Semispecialists of America, 232 F.R.D. 160 (E.D. N.Y. 2005). 11. Fed. R. Evid. 502 advisory committee’s note. 12. Id. 13. Id. 14. Henry S. Noyes, Federal Rule of Evidence 502: Stirring the State Law of Privilege and Professional Responsibility with a Federal Stick, 66 Wash. & Lee L. Rev. 673 (2009). n Lawyer Sales Manager Paralegal Human Resource Manager Administrator Professional IT ITProfessional Becoming a success is hard work. Protecting it isnâ€™t. www.ready.gov We focus on your technology, so you can focus on the law. Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 13 David B. Vandergriff 2009-2010 Arkansas Bar Foundation President David B. Vandergriff of Little Rock began his term as President of the Arkansas Bar Foundation Board of Directors on July 1, 2009. Vandergriff is Of Counsel with the law firm of Quattlebaum, Grooms, Tull & Burrow, PLLC. Vandergriff concentrates his practice on business, banking and insurance issues in a variety of transactional and litigation contexts. He has been a Fellow of the Arkansas Bar Foundation since 1995 and has served the Foundation on the Board of Directors and as Secretary-Treasurer and Vice President. He is an active member of the Arkansas Bar Association and has served in numerous leadership capacities including as Chair of the Board of Governors and a member of the House of Delegates. He has served on the Judicial Nominations and Jurisprudence and Law Reform Committees of the Association and is currently a member of the Association’s Long Range Planning Committee. Vandergriff has served as President of the Sebastian County Bar Association and is active with the Defense Counsel Association of Arkansas and the Defense Research Institute, Inc. He has been recognized in Best Lawyers in America in the area of Financial Institutions Law in 2007. He is currently a member of the Arkansas Supreme Court Committee on Civil Practice. He has served as a Special Justice of the Arkansas Supreme Court. He was chair of the 1997 Arkansas Court of Appeals Apportionment Commission. He is currently general counsel of the Westark Area Council, Boy Scouts of America and served as secretary of the Fort Smith United Way Community Service Center Task Force. Vandergriff graduated from the University of Arkansas School of Business with a degree in Accounting and received his juris doctorate from the University of Arkansas School of Law. He is licensed to practice law in the states of Arkansas and Texas; the United States District Courts in the Eastern and Western Districts of Arkansas, the Eastern District of Oklahoma, and the Northern District of Texas; and the Eighth Circuit United States Court of Appeals. n 6 Uncommon Resources = Outstanding Results With a dedicated, seasoned team of six valuation and economics professionals, and backed by the staff of one of America’s Top Twenty-Five Accounting Firms, FROST, PLLC is your premier resource for financial expert services. Whether it’s quantifying or defending damages in a complex commercial case, or a forensic accounting or business valuation assignment, we have the resources to deliver product on time, every time. And we guarantee you will not find a more energetic, creative, or tough minded group on this planet. Call Cheryl Shuffield, Director of Litigation Support Services at 501.975.0100 for more information. Before Opposing Counsel beats you to it. Cheryl Shuffield Ted Duncan Angie Hopkins Rachel Kremer Jason Thomas Sarah Ellis Four of the Twelve CPA’s in Arkansas Accredited in Business Valuations by the AICPA. Visit frostpllc.com or call 501.376.9241 14 The Arkansas Lawyer www.arkbar.com Should your clients give through their community foundation? We help people connect to the causes they care about most. When your clients give through their community foundation, they… Receive personalized service. We work closely with you and your clients to develop a giving approach that matches their personal interests and tax planning needs. We help integrate charitable giving within estate and financial plans and establish Donor Advised Funds named for your clients. We also facilitate anonymous giving and assist with even the most complex gift instruments. Gain local expertise. Our professional program staff monitors all areas of community need—including human services, education, the environment, healthcare, the arts and economic development. We can help your clients learn more about local agencies and programs that make a difference in the areas they care about most. Support community leadership. We invest in the long term and bring people Estate and financial advisors can consider these three reasons. and organizations together, convening diverse voices to address local issues and opportunities. Our business is building community. Arkansas Community Foundation can help your clients secure the maximum tax deduction, involve family members, focus on grantmaking and obtain visibility or anonymity, as desired. For more information on partnering with Arkansas Community Foundation, contact Melissa Stiles at 501-372-1116 or visit arcf.org. “The Foundation staff has a wealth of knowledge about what charities are doing the best work in different areas of Arkansas and are very helpful through their satellite offices in providing broad-based information on charities by location and field of interest.” – Jim Harris, Friday Eldredge & Clark, Little Rock © 2006 COF & CFA Union Station • 1400 West Markham, Suite 206 • Little Rock, AR 72201 501-372-1116 • 888-220-2723 • arcf.org Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 15 WHAT YOU NEED TO KNOW ABOUT NEW LAWS PASSED DURING THE REGULAR SESSION OF THE 87TH GENERAL ASSEMBLY (OR WHAT YOU DON’T KNOW MAY HURT YOU) By John A. (Jack) Davis III and Jack A. McNulty On January 12, 2009, the Regular Session of the 87th General Assembly commenced. On April 9 it recessed until May 1, at which time it adjourned sine die. During the 88 days of its active session, the 87th General Assembly passed 1501 new laws. Although many of the laws passed were appropriation bills to fund state agencies for the fiscal year, many were substantive and affect what Arkansas citizens can or cannot do and how they do it when they can. The focus of much of the efforts of legislators dealt with (1) issues that did not exist when the previous General Assembly met in 2007 – the lottery and planning for fiscal sessions in even numbered years; (2) an issue which was addressed, but was not resolved during the 2007 session – funding for a statewide network of trauma centers; and (3) continuing two sales tax reductions which began during the 2007 session – the sales tax on food and the sales tax on electricity and natural gas used by manufacturers in the process of manufacturing a product. The Lottery A state lottery was established in Arkansas on November 4, 2008, when 63 percent of Arkansans approved an initiated constitutional amendment. The proceeds must be used for scholarships for students attending two-year or four-year colleges in Arkansas. Although many legislators were opposed to the lottery, once the people spoke through their vote on November 4, a great deal of time and effort was consumed during the 87th General Assembly to do the best job possible to get both the lottery mechanism as well as the scholarship mechanism set up correctly. The result was enactment of a bill which is 117 pages long.1 Fiscal Sessions Until November 4, 2008, the Arkansas Constitution has provided that the General Assembly would meet in Regular Session in odd-numbered years with all other sessions to be called by the Governor. On November 4, 2008, 69 percent of Arkansas voters passed a constitutional amendment providing for an additional session of the General Assembly – in even-numbered years for a fiscal session. The fiscal session is limited to 30 calendar days in duration, except it may be extended one time by no more that 15 calendar days by a 3/4ths vote. During a fiscal session, a bill other than an appropriation bill may be considered if 2/3rds of the members of each body vote to approve consideration of the bill.2 16 The Arkansas Lawyer www.arkbar.com With the first fiscal session under the new constitutional amendment to begin in 2010, it was up to the members of this regular legislative session to plan and adopt rules to apply to the fiscal session. The result of many hours of study and debate was a Concurrent Resolution amending the Joint Rules of the House of Representatives and Senate to provide inter alia: (1) that during a fiscal session a non-appropriation3 bill shall not be filed for introduction until a concurrent resolution authorizing introduction has been approved by a 2/3rds vote of both houses; (2) that a concurrent resolution authorizing the introduction of a non-appropriation bill shall not be filed for introduction later than the first day of a fiscal session; and (3) that a non-appropriation bill may not be prefiled prior to a fiscal session. Although the legislature probably did about as much as could be done at this time, much remains to be understood about how the fiscal sessions will work. Trauma Center Network and Health Care Funding During the 2007 session, the House and the Senate seemed to agree that there was a need for a statewide trauma center network, but they could not agree on the funding mechanism. Act 180 of 2009 increased the tax on cigarettes by $28 per 1000 cigarettes sold in the state and increased the tax on tobacco products other than cigarettes by 36 percent of the manufacturer’s selling price. This legislation funded the structure for the proposed trauma center network in the state. Reduction in Sales Tax on Food During the 2007 biennial regular session, the legislature passed Act 110 of 2007 which reduced the tax on food and food ingredients from 6 percent to 2.875 percent effective July 1, 2007. Act 436 of 2009 futher reduced the tax on food and food ingredients from 2.875 percent to 1.875 percent, effective July 1, 2009. Reduction in Sales Tax on Electricity and Natural Gas for Certain Manufacturers In the 2007 biennial regular session, manufacturers received a reduction in sales and use taxes when Act 185 reduced the sales and use tax rate on natural gas and electricity used by a manufacturer directly in the actual manufacturing process from 6 percent to 4.375 percent beginning July 1, 2007, and to 3.875 percent on July 1, 2008. Act 695 of 2009 further reduced the tax rate to three and one-eighth percent beginning July 1, 2009. The tax reductions through legislation in 2007 and 2009 may be recovered by eligible manufacturers through refund requests to the Department of Finance and Administration. The total amount of refunds from these tax reductions is capped at 27 million dollars. The statute of limitations for refunds and amended returns claiming refunds is extended for one year. The Bar Association’s Legislative Package The Arkansas Bar Association presented a diverse legislative package which fared well in the 2009 legislative session. Termination of Oral Lease on Farmland (Act 993) During the Mid Year Meeting of the Arkansas Bar Association, it was discussed that the statutory method for terminating an oral lease on farmland no longer existed in the Arkansas Code. Senator Robert Thompson of Paragould had a bill drafted to remedy this deficiency, and it was adopted as part of the Bar Association’s legislative package. Act 993 now requires that a landlord must give written notice to the tenant by certified mail on or before June 30 in order to terminate an oral lease on farmland the following January. The Act became effective April 3, 2009. Eviction (Act 464) As part of its legislative package, the Bar Association proposed reinstating an eviction procedure which North Little Rock and other cities had once used to clean up problem areas where illegal activities were taking place. Act 464 provides a procedure for the eviction of tenants engaging in certain activities such as illegal gambling, illegal alcohol offenses and prostitution on leased premises. The procedure may be initiated by a Complaint being filed by the Prosecuting Attorney of the County or the City Attorney. It became effective July 31, 2009. Probate Notice (Act 217) Prior to the effective date of Act 231 of 2007, there was either a three month or a six month limitation on the time for filing claims against an estate, depending on the nature of the claim. Act 231 equalized the time limitations for all claims at six months. Act 217, enacted during the 2009 session of the legislature, amends the pro- John A. (Jack) Davis III is the chair of the Bar Association’s Legislation Committee. His practice is primarily mediation and arbitration with ADR, Inc., Little Rock. Jack A. Mcnulty is the lobbyist for the Arkansas Bar Association. Vol. 44 No. 2/Spring 2009 The Arkansas Lawyer 17 cedural statutory notice provision in the Code to also reflect the six month limitations period for all claims in order to be consistent with the substantive change made in 2007. Real Estate Liens (Act 454) Another proposal which was part of the Bar Association’s legislative package resulted in Act 454. This legislation originated from a subcommittee of the Association’s Construction Law Section after numerous discussions of the confusing, disorganized and arguably inconsistent patchwork of lien laws which evolved over many years. This Act amends and updates existing law in connection with the perfection, filing, and enforcement of liens against real property. This law clarifies the procedure for enforcement of lien protection for architects, surveyors, appraisers, landscapers, abstractors and title insurance agents. The lien of a lien claimant who relies upon the lien notice of another lien claimant is prorated to provide a lien only for labor and materials supplied after the other lien claimant’s notice was given. Management of Institutional Funds (Act 262) Act 262 relates to management of funds held by an institution, government entity or solely charitable trust. It updates previous versions of this Uniform Law which had been adopted in Arkansas. Disclaimers of Inherited Property Interest (Act 346) For many years Arkansas has had a modified version of the Uniform Disclaimer of Property Interests Act. Act 346 makes a change to a single section of the Arkansas Act to address an Internal Revenue Service problem and a defect in the original Uniform Act. The change clearly allows someone who is about to inherit property to disclaim the inheritance of the property and prevent taxation by the IRS to the person disclaiming it. Limited Cooperatives One of the bills in the Bar Association’s legislative package was the Uniform Limited Cooperative Association Act. It consisted of 74 pages. It was one of six Uniform Acts recommended by the Bar Association’s Uniform Laws Committee. It was adopted as part of the Bar Association’s Legislative Package because it created a new type of entity which was believed to be a useful tool in economic development. The Arkansas Electric Cooperatives and Riceland Food opposed the bill because it used the word “Cooperative,” and they said they feared such new organizations would give cooperatives a bad name. In the end, the bill was referred for interim study. Other Legislation of Interest Unpublished Opinions of the Arkansas Court of Appeals (Act 162) When the session started on January 12, 2009, Rule 5-2 of the Rules of the Supreme Court and Court of Appeals provided: Opinions of the Court of Appeals not designated for publication shall not be cited, quoted or referred to by any court or in any argument, brief, or other materials presented to any court (except in continuing or related litigation upon an issue such as res judicata, collateral estoppel, or law of the case). Opinions not designated for publication shall be listed in the Arkansas Reports by case number, style, date, and disposition. Senator Robert Thompson and Representative Steve Harrelson introduced Senate Bill 33 which eventually became Act 162 of 2009. This Act, after citing Section 9 of Amendment 80 of the Arkansas Constitution as authority for the legislature to amend Rule 5-2, provides that opinions of the Court of Appeals not designated for publication will have precedential value and may be relied upon and cited. Shortly after Act 162 became law (February 16, 2009), but before its effective date (July 31, 2009), the Arkansas Bar Association petitioned the Arkansas Supreme Court requesting that the Court now adopt the 2007 recommendation of its Committee on Civil Practice to abandon the distinction between “published” and “unpublished” opinions, which the court had declined to adopt at that time.4 On May 28, 2009, the Supreme Court issued a per curiam opinion5 Legislation continued on page 48 Business Valuation Forensic Accounting Economic Loss Divorce Accounting, Tracing, Appraisal Commercial Damages, Agricultural Damages Certified Public Accountant Certified Fraud Examiner Accredited Senior Appraisers Court-Appointed Expert Testimony Fair Pricing Richard L. Schwartz CPA, MCBA, ASA, ABV, CFE Dick@SchwartzandAssociatesLLC.com 18 The Arkansas Lawyer www.arkbar.com Schwartz & Associates LLC 11510 Fairview Road, Suite 100 Little Rock, AR 72212-2445 501-221-9900 / 501-221-9292 fax Steven F. Schroeder JD, MCBA, ASA Steve@SchwartzandAssociatesLLC.com LEGISLATIVE TIMETABLE FOR THE 2011 LEGISLATIVE SESSION One important aspect of the Bar Association’s legislative program is developing a legislative package for the biennial regular sessions of the legislature. The bills in the legislative package are presented as improvements to Arkansas law and the Association works hard for their passage. Members of the Association are encouraged to submit proposals for new laws or amendments to existing laws especially in their practice area where they are more likely to recognize the need for changes or additions. To get a proposed bill made a part of the Bar Association’s Legislative Package and thereby be sponsored by the Association and have the full support of the Legislation Committee and its lobbyist, deadlines have been established by the Bar Association’s governing body. For the 2011 session of the Arkansas General Assembly those deadlines are as follows: January 30, 2010 Initial deadline for submission of legislation to the Jurisprudence & Law Reform Committee. April 2010 Board of Governors considers the report of the Jurisprudence & Law Reform Committee and makes recommendation to the House of Delegates. June 2010 House of Delegates acts upon recommendation. Up to 10 bills selected for Association sponsorship. June - September 2010 Jurisprudence & Law Reform Committee and Legislation Committee modify package in accordance with directions from House of Delegates. If you are a Section Chair be certain that your members have been canvassed for any legislation to be sponsored by your section. Individuals wishing to propose legislation should go through the appropriate Section in order to avoid delays. Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 19 Photo by Terrell Rohrbach Photography Donna C. Pettus 2009-2010 Arkansas Bar Association President By Anna Hubbard Donna C. Pettus of Fayetteville was sworn in as the 112th President of the Arkansas Bar Association on June 12, 2009, sixteen years after her husband Lamar Pettus was sworn in to the same office. They are the first lawyer couple to serve as presidents of the Association. In her inaugural address, Donna addressed the key words in the Association’s new logo: tradition, integrity, trust. “As lawyers we stand for tradition – the best traditions. Traditions of the past and how they will shape the character of our growth in the future.” 20 The Arkansas Lawyer www.arkbar.com “Lawyers stand for integrity. More often than not, integrity is tough. But we can and do overcome the challenges that threaten our integrity. We rarely give up. We don’t quit five minutes before the miracle.” l to r: Chief Justice Hannah, Donna and Lamar Pettus at her Inauguration Donna plans to do her best to lead this Association to a better tomorrow. Her vision for the future includes strong leadership, not just in the Association but also in the community. She is developing a Leadership Academy for members of the Association to join by application. “Lawyers will not only learn how to be a good leader in the Association, but also how to be a good leader in the community. Being a lawyer is more than just practicing law. It is also about helping maintain good government and the freedoms we hold so dear. It is one of our profession’s finest traditions.” “Lawyers stand for integrity. More often than not, integrity is tough. But we can and do overcome the challenges that threaten our integrity,” Donna continued. “We rarely give up. We don’t quit five minutes before the miracle.” Donna knows about not giving up. She started law school at the University of Arkansas at Fayetteville when her third child was eighteen months old, her second child two and a half, and her oldest was eight. “So here I was, mother of three small children, going to law school,” she said. “It was quite an experience. It was really tough but I made it through. At that time there were few women in the law school. It became a cause for me because I really think the community didn’t take me seriously at the time. I think there was a bet on how long I would last. But you couldn’t have bombed me out for that reason, if no other.” Born and raised in Little Rock, Donna graduated from Little Rock Central High in 1966. She said she got “lawyer fever” for the first time in her 9th grade civics class when she represented some students in a mock trial she was supposed to lose. “I did not lose,” she said. “Why I don’t know. But it gave me lawyer fever. Then some years later, as a freshman in college, I remember writing some notes in my yearbook about what I might want to be someday. I distinctly remember writing I might want to be a lawyer someday, but ‘women did not become lawyers.’ I think I must have been smarter in the ninth grade.” That same freshman year of college at the University of Arkansas at Fayetteville, Donna met Lamar who was a senior. They married at the end of her sophomore year and traveled overseas for three years while Lamar served active duty in the Navy. In addition to trying to learn the languages of their home ports, including Japanese and Italian, Donna continued her college work through correspondence courses. She completed her degree in English and Journalism at the University of Arkansas when they returned home. Lamar began law school at the University of Arkansas, and he and Donna spent the next few years raising their family and working “to stay on their financial feet.” Donna managed a local gas station they owned for a short time, and when Lamar started his own practice, she worked as his legal secretary. She said she learned that she “would rather be on the other side of the Dictaphone” and decided to attend law school. Lamar supported Donna’s decision to go to law school and helped take care of their children when she was at school. She laughingly recalled a few memorable events during that time. “I remember coming home from a long day at the library one weekend and noticed an awful looking mess in the middle of our carpet in the living room. I found out my 4-year-old daughter had been busy painting my 2-year old son with peanut butter and then covering him with sugar! We waited until I was out of school to replace the carpet because there were more messes.” Another time, her youngest child decided to show his friend what would happen if they removed the plug from the waterbed and jumped on the mattress. “That was interesting!” Donna laughed. “The good thing is, now my kids are all grown up I can travel to great places to see them. My last overseas trip was to China to visit Chase and his family while they were living and going to school there, studying the language. I will never forget standing on the Great Wall. It is magnificent.” Despite the challenges of juggling her family and law school, Donna graduated from the University of Arkansas School of Law in Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 21 “We stand for trust. Our clients and community ought to be able to trust us. We are, and if we are not, we ought to be, our state’s leaders, and the leaders of tomorrow…. Sometimes we have let our role as lawyer leaders slip away from us. It is time now to take it back.” Donna and Lamar at the Great Wall of China 1983. She was on the Arkansas Law Review and served as managing editor. She is the first woman president of the Association who graduated from the University of Arkansas Law School at Fayetteville. She is the fourth woman president of the Association, succeeding Rosalind M. Mouser who served this past year, Carolyn B. Witherspoon (1995-1996) and the late Sandra Wilson Cherry (2001-2002). Her family proudly watched as Donna was sworn in as President during the Association’s Annual Meeting in Hot Springs. Their oldest son, Evan Lamar, who is a lieutenant colonel in the Air Force, was on assignment, and unable to attend the ceremony. A fighter pilot, he is director of operations of the 391st fighter squadron, Mountain Home Air Force Base, Idaho. His wife Kirsten and their two children Katie (9) and Luke (6) took plenty of pictures for him. Lamar and Donna’s daughter, Carrie Pettus Davis, is married to Matt Davis and is working on her Ph.D. in social work at University of North Carolina. The Pettuses’ youngest son, Chase, and his wife, Jillian, have a daughter, Kaiya, and a baby on the way this August. Chase is the director of short and mid-term international missions for a Christian organization in Colorado Springs, Colorado. Asked for comment Lamar said, “How would I describe President Pettus? She is more than the lawyer many of you know. Donna, a loving wife whose presence makes each day brighter for me; a dedicated mother whose family always knew they came first; the woman who for 41 years has filled my life with meaning and happiness. Donna, the lawyer and Bar President I love.” 22 The Arkansas Lawyer www.arkbar.com Donna joined Lamar in the Pettus Law Firm after practicing for a short period on her own. They formed a great partnership with Donna focusing on the research and writing and Lamar on litigation. They practiced together for 25 years before retiring from the active practice of law a short time ago. They are both actively involved in managing their current real estate investments. Donna and Lamar celebrate their 41st wedding anniversary this August. The Pettus Law Firm was in a building on Fayetteville’s Dickson Street that was formerly The Shack restaurant. It had been empty for years when they bought it, and Dickson Street was still undeveloped. Shortly after they moved in, the University of Arkansas built the Walton Arts Center, the courthouse moved nearby, and Dickson Street was infused with the energy and activity of this new civic growth. The Pettuses transformed the basement area to an apartment for the kids to hang out after school and in between activities – a big help since the family lived outside the city limits in the country. “It was great. I could bring the kids to work with me if they were sick and take care of them after school,” Donna said. “Plus, I had a good boss,” she said laughingly. “He was very understanding.” The Pettuses’ home in the country is on 14 acres with a house on a hillside overlooking a valley. At one time they owned 60 acres and even had a herd of Brangus cows and other farm animals. The animals were sold following “a terrifically bad winter with weeks on end of subzero temps” and many early morning freezing feeding sessions. Donna enjoys gardening as a hobby and even owns her own STIHL chainsaw. “I love to get out there and help Lamar clear brush and cut things down,” she exclaimed. “I asked for a chainsaw for Christmas one year, and Lamar surprised me with it! Frankly, it’s a great way to relieve tension and let off steam,” she laughed. “We stand for trust. Our clients and community ought to be able to trust us. We are, and if we are not, we ought to be, our state’s leaders, and the leaders of tomorrow…. Sometimes we have let our role as lawyer leaders slip away from us. It is time now to take it back. Donna knows about leadership. She became a member of the House of Delegates in 1993 and served until 2001. She has served on the Board of Governors since 2002. She has served on numerous committees, including the Law School, Continuing Legal Education, Membership, Law Practice Management, Mock Trial, Civil Procedure, Legislation, Finance and Long Range Planning Committees. She served as chair of the Disability Law Committee. She was hon- Donna and Frank Sewall, Board of Governors Chair ored with a Golden Gavel award in 2006 for her work as chair of the Judicial Nominations Committee, a committee she chaired for several years. She was instrumental in planning the design and interior decorating of the new Bar Center while serving as the chair of the Interior Design Subcommittee. She is a Sustaining Fellow of the Arkansas Bar Foundation and the Association. She has twice served as a special justice to the Arkansas Supreme Court and has served on the Fayetteville City Council. Cherishing the Past, Honoring the Future Donna plans to take the best from the past and build on it to improve the future of her chosen profession. “The legal profession is a noble profession and I want to celebrate what a great profession it is,” she said. “Sometimes we lose sight of that fact with all of the negative hype we get from media and lawyer jokes. I want to do what I can for the Bar Association to counteract that.” One of the ways that Donna plans to cherish the past is by creating a Governance Manual for the Association. Her goal is to have a manual that serves both as a ready reference for new bar leaders and committee chairs and as a way to preserve the Association’s institutional memory. One of the people that had agreed to be on this committee was retired Associate Director Judith Gray. Judith served as Associate Director from 1967 until 2007 when she retired; she passed away in March 2009. “There will be others of course who can fill in a lot of blanks, but we will sorely miss her unique viewpoint on so many things,” Donna said. “I credit Judith Gray with a lot to do with my becoming bar president. She encouraged me a lot over the years as she did so many attorneys.” Donna also hopes to begin developing a handbook for small firms and solo practitioners about law practice management and development. There probably won’t be enough time to get it all done in a year she says. But getting started is the key. Long-range planning is a high priority for Donna this year. She has been working with President-Elect Jim Julian and others on developing a Long Range Plan for the Association. “The plan envisions how we think we would like to see the Association serve the members of the bar and the public in five years and in ten years. We will be talking Donna and Lamar at their home in Fayetteville about going into the community, helping our attorneys in their practices, and keeping up with technology and what kinds of things that will require. The way young lawyers communicate and enjoy life and their practices are very different than the way lawyers of my generation and older enjoy their practices. We need to talk about how we all work and communicate together.” Communication between lawyers in all generations is, of course, becoming increasingly technological. Donna has worked closely with then-President Rosalind Mouser and the IT Infrastructure Committee this past year on the Association’s new website and database that will come online during her term. Another goal of Donna’s is to improve on the current technology available in the Bar Center, such as portable video conferencing. “It might not be in the budget this year, but maybe next year,” Donna said. “Every bar president picks up things from the previous year and hands off things to the next bar president. It is a continuum.” Donna has already played many roles in the Association. She appreciates the contributions of its past leaders and welcomes the opportunity to implement her visions for the Association as President. Her experiences have shown her that lawyers make a difference and she has great plans to help the lawyers of this state know that they “matter” and can achieve influential leadership. “The beauty of the law, and for those of us who practice it, is that the law is never static. Being in the legal profession takes us places we might never have expected to be. Law often reflects our societal values, and sometimes, when we are at our best, leads to a better tomorrow than we have today.” Vol. 44 No. 2/Spring 2009 The Arkansas Lawyer 23 2009-2010 Donna C. Pettus President Donna Pettus of Fayetteville was sworn in as the 112th president of the Association at the Association’s Annual Meeting on June 12th. Ms. Pettus is a longtime active member of the Association. She was honored with a Golden Gavel award in 2006 for her work as chair of the Judicial Nominations Committee, a committee she chaired for several years. She was instrumental in planning the design and interior decorating of the new Bar Center, while serving as the chair of the Interior Design Subcommittee. She is a former Governor of the Board of Governors and a former member of the House of Delegates. She has served as chair of the Disability Law Committee and served on the Legislation Committee. She is a Sustaining Fellow of the Arkansas Bar Foundation and the Association. She has twice served as a special justice to the Arkansas Supreme Court. She has served one term on the Fayetteville City Council. She earned an undergraduate degree in English and Journalism from the University of Arkansas and a Juris Doctorate from the University of Arkansas School of Law at Fayetteville. Ms. Pettus is married to Past President Lamar Pettus and they are the first lawyer couple in Arkansas to both serve as President of the Association. 24 The Arkansas Lawyer www.arkbar.com Jim L. Julian President Elect Jim Julian of Little Rock assumed the office of President-Elect at the Annual Meeting. Mr. Julian is a partner with Chisenhall, Nestrud & Julian, P.A. in Little Rock. He is a former Governor of the Board of Governors and former member of the House of Delegates. He has chaired numerous committees and task forces for the Association, including the successful effort to amend the Judicial Article of the Arkansas Constitution in November 2000. He was honored with the Presidential Award at this year’s Annual Meeting for his work as chair of the Ark Bar PAC. He is past chair of the Long Range Planning Committee, Legislative Task Force, Annual Meeting Committee and Legislation Committee. He is a recipient of the Charles C. Carpenter Award, the Outstanding LawyerCitizen Award and has received two Golden Gavel awards. Mr. Julian serves on the Board of Directors of the Boys and Girls Clubs of Central Arkansas and is a former chairman of that Board. He is the chair of the Board of Directors for Recovery Centers of Arkansas. He serves on the North Little Rock Airport Commission and the finance committee and as counsel for Lakewood United Methodist Church. He received a bachelor’s degree from Arkansas State University and a Juris Doctorate from the University of Arkansas School of Law in Fayetteville. Frank B. Sewall Board of Governors Chair Frank B. Sewall of Little Rock has been appointed by President Donna Pettus to chair the Association’s Board of Governors. Mr. Sewall is Senior Counsel, Regulatory for Arkansas Blue Cross and Blue Shield. He served as Secretary/Treasurer of the Association from June 1994 through June 1996. He is a tenured member of the House of Delegates. He was honored with the Golden Gavel Award at this year’s Annual Meeting for his work as chair of the Organization and Redistricting Committee. He received a Golden Gavel Award in 1995 for his work as co-chair of the Joint Planning Group for the Future Bar Center. He is a recipient of the Presidential Award and Charles C. Carpenter Award. He has served as chair of the House Committee, Planning/Design Committee, and Finance Committee. A Fellow of the Arkansas Bar Foundation, he currently serves as its Vice President and served as its Secretary/Treasurer this past year. He was a commissioned Officer in the U.S. Navy Supply Corps. Mr. Sewall is a member of the Pulaski County Bar Association, where he served as President in 1988. Mr. Sewall is a member of the Saint Thomas More Society of Arkansas, serving as President in 2003. He is a member of the Board of Directors of IOLTA. Mr. Sewall graduated from Dartmouth College with an MBA. He obtained a Juris Doctorate from Emory University School of Law. Arkansas Bar Association Officers Anthony W. Juneau Young Lawyers Section Chair Charles D. Roscopf Parliamentarian F. Thomas Curry Secretary William A. Martin Treasurer Tony W. Juneau of Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. in Rogers has been named chair of the Young Lawyers Section. He currently serves on the Bar Leaders Handbook and Benefits Task Force, Executive Committee and Long Range Planning Committee of the Arkansas Bar Association. He graduated Cum Laude from the University of Arkansas at Fayetteville in 2001 with a B.S.B.A. (Finance) and earned a Juris Doctorate with high honors from the University of Arkansas at Little Rock William H. Bowen School of Law in 2004, where he served as Managing Editor of the UALR Law Review. He is a member of the American Bar Association, Benton County Bar Association, Sigma Alpha Epsilon Fraternity and the National Eagle Scout Association. Charles D. Roscopf was elected the new Parliamentarian of the Association. Mr. Roscopf is a partner at Roscopf & Roscopf in Helena. He is a former Governor of the Board of Governors and member of the House of Delegates. He is a Fellow of the Arkansas Bar Foundation and has served on its Trust Committee and the Board of Directors. He is a member of the Arkansas Alumni Association Board. He is the managing partner of East Arkansas Title Co., LLC in Helena. He is a member of the Phillips County Bar Association and Arkansas Supreme Court Continuing Legal Education Committee, where he served as chairman. He is a member of Arkansas Volunteer Lawyers for the Elderly. Mr. Roscopf is a graduate of the Phillips County Chamber of Commerce Leadership Development Institute. He received a bachelor’s degree from the University of Arkansas and a Juris Doctorate from the University of Arkansas School of Law in Fayetteville. F. Thomas Curry of McMillan, McCorkle, Curry & Bennington, LLP in Arkadelphia was elected the new Secretary of the Association. He is a former Governor of the Board of Governors and tenured member of the House of Delegates. He received a Golden Gavel Award in 2006 for his work as chair of the Unauthorized Practice of Law Committee. Mr. Curry is a Fellow of the Arkansas Bar Foundation and currently serves as its Secretary/Treasurer. He is a member of the International and Arkansas Association of Defense Counsel. He received a bachelor’s degree from Henderson State University and a Juris Doctorate from the University of Arkansas at Little Rock Law School. Upon graduation from law school, Mr. Curry served five years on active duty with the U.S. Army, Judge Advocate General’s Corps. Since leaving active duty, he has continued to serve in the U.S. Army Reserve. He currently holds the rank of Colonel and is Staff Judge Advocate for the 90th Regional Readiness Command headquartered in North Little Rock. William A. Martin has again been elected to serve as Treasurer. Col. Martin served as executive director of the Association for 13 years and has served as its Secretary/ Treasurer for the past nine years. Martin has been a member of the Association’s House of Delegates for a number of years and has served as chair of the Finance Committee since 2000. He is a Sustaining Member of the Association and the Arkansas Bar Foundation, a member of the Board of Directors of the Pulaski County Bar Association, treasurer and past secretary of the Pulaski County Bar Foundation, and served seven years as a Board of Trustees member of the National Conference of Bar Foundations including four as its treasurer. Martin received a Juris Doctorate from the University of Arkansas before entering the United States Air Force where he moved through the ranks from second lieutenant to colonel. During that time he also earned an MBA from Arizona State University. Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 25 EXTRA! EXTRA! Arkansas’s High Court Announces Two Changes That Will Affect Thousands of Attorneys by Brandon J. Harrison “Automation of our state’s judicial system is proceeding apace on many fronts,” wrote the Arkansas Supreme Court in a May 28, 2009, per curiam opinion. The Court’s statement was too modest; its opening actually heralded two remarkable changes in our state appellate-court system that all lawyers need to know—“[p]ublication of the Arkansas Reports and Arkansas Appellate Reports will end with volume 375 Ark./104 Ark. App.” and our appellate courts “shall no longer distinguish between ‘published’ and ‘unpublished’ opinions.” How will you find the official report of a case? By going to the Arkansas Judiciary’s website, where you can access a recently created electronic database that is now the official reporter of our appellate courts’ decisions. Why will the Supreme Court no longer distinguish between unpublished and published opinions? Because of the free access people now have to all opinions through the courts’ website, the creation of an electronic-reporter system, and requests by lawyers and different institutions. Consequently, lawyers may now cite and argue from all opinions announced after July 1, 2009. This change is reflected in amended Rule 5-2 of the Arkansas Supreme Court and Arkansas Court of Appeals. I will highlight some aspects of the Supreme Court’s May per curiam and close with the charge to read the opinion today if you have not done so. Specifically, I first discuss some particulars concerning the electronic database’s appearance, a database that will house the Arkansas Supreme Court’s and the Arkansas Court of Appeals’s opinions announced after February 14, 2009. Accompanying the electronic reporter is a new citation system, which I also mention. Finally, I cover a few points concerning the Supreme Court’s decision to designate that all opinions announced after July 1, 2009—the date when amended Rule 5-2 took effect—will be precedent and can be cited and referenced in legal papers. Here is the take-away: change has come to Arkansas’s appellate-court 26 The Arkansas Lawyer www.arkbar.com system, so to effectively represent your clients in the future the way you have practiced law must change too. Obsolescence Equals Opportunity After reading the Supreme Court’s statement that publication of the Arkansas Reports and the Arkansas Appellate Reports in books will soon stop, I walked down the hall of the law firm where I work, tippytoed to pull Volume 1 of the Arkansas Reports off a seven-foot-plus shelf, and opened it. The volume was printed in 1840. It covered the Supreme Court terms 1837 to 1839, law and equity cases. (Incidentally, the book was inspected by No. 16, so states a one-inch square piece of paper stuck in the spine’s crease; Albert Pike—attorney, writer, and soldier—was the first reporter.) But 170 years after the publication of Volume 1 “[p]rinting these books has become an increasingly expensive endeavor,” and it is no surprise that “the number of subscribers has declined.” Parties, their attorneys, and the general public are getting copies of appellate-court decisions from the Arkansas Judiciary’s official “website on the same day that they are issued” for free. Therein lies the “why?” regarding the Supreme Court’s decision to create and administer a secure electronic-reporter database that will “include all opinions issued after February 14, 2009.” The start date for the database is not arbitrary; Valentine’s Day was the closing date for material to be included in the final, official reporter volumes 375 Ark./104 Ark. App. Implementing the change should be relatively seamless. To aid the transition our Supreme Court has revised Rule 5-2 of the Arkansas Supreme Court and Arkansas Court of Appeals. Rule 5-2, as amended, is set forth fully in the Court’s May 28 per curiam. Please read the opinion for the details. Here I simply note that the Reporter of Decisions will create and maintain “a searchable, electronic database containing the official report of Arkansas appellate decisions.” You will be able to access the database using the Arkansas Judiciary’s official website which is http:// www.courts.state.ar.us/. Please contact Reporter of Decisions Susan Williams or Assistant Reporter Amy Dunn Johnson if you have questions concerning the new database and the related protocols. Mark this too: tethered to the electronic database is a new citation system. Revised Rule 5-2 mandates how the official electronic opinions must be cited. The rule’s explanatory note is informative, so you should read it too. Here, however, I provide the pertinent subsection of the new rule: Rule 5-2(b)(3). Every report of every decision shall contain an official citation created by the Reporter. This citation shall include the year in which the decision was issued, the abbreviated name of the issuing court, and the sequential appellate decision number for the year. For example, the citation White v. Green, 2010 Ark. 171, reflects that the decision was issued in 2010, by the Arkansas Supreme Court, and was the one hundred seventy-first opinion issued by that court that calendar year. The citation Roe v. State, 2010 Ark. App. 745, reflects that this decision was made by the Court of Appeals and was the seven hundred fortyfifth appellate opinion issued by that court in calendar year 2010. Showcasing the rule’s practical bent, pinpoint citations within the altered citation system are also addressed in Rule 5-2. Below is some of the rule’s pertinent language on pinpoint citations—note that parallel citations to the Southwestern Reporter are required when they exist. And please also observe that, in the words of the explanatory note, “the parenthetical” which has long denoted the year of decision is “rendered superfluous” and should therefore be omitted: “... as the Arkansas Supreme Court announced on May 28, 2009, ‘Arkansas will be the first state in the nation to publish and distribute the official report of its appellate decisions electronically.’ Of this we should all be proud.” Rule 5-2(d)(2). . . . A pinpoint citation to the official version of a decision on the Arkansas Judiciary website shall refer to the page of the electronic file where the matter cited appears. For example: Smith v. Hickman, 2009 Ark. 12, at 1, 273 S.W.3d 340, 343. Doe v. State, 2009 Ark. App. 318, at 7, 2009 WL 240613, at *8. The electronic reporter and the related citation-form changes are straightforward. The changes will give more lawyers (and the general public) better opportunities to present legal arguments in all of this state’s courts more efficiently and at a lower cost. All Appellate-Court Opinions are Precedent Because the official reports of “all Arkansas appellate decisions” will now be stored and available in electronic medium, the Arkansas Supreme Court deemed it unnecessary to further “distinguish between ‘published’ and ‘unpublished’ opinions.” The May 28 per curiam discusses the legal mechanism for change in a bit more detail if you are interested. For now it suffices to know about the rewrite and that the published/unpublished related change is forward-looking. Amended Rule 5-2(c) makes this point: Every Supreme Court and Court of Appeals opinion issued after July 1, 2009, is precedent and may be relied upon and cited by any party in any proceeding. Opinions of the Supreme Court and Court of Appeals issued before July 1, 2009, and not designated for publication shall not be cited, quoted, or referred to by any court or in any argument, brief, or other materials presented to any court (except in continuing or related litigation upon an issue such as res judicata, collateral estoppel, or law of the case). That all Arkansas appellate-court opinions announced after July 1 will be precedent is evidence that our Supreme Court believes that every appellate-court decision should be available and useful to lawyers who advise clients and argue their cases daily. The change, however, was neither effortless, nor immediate. Credit is due to many people. Heading the list is the late Eighth Circuit Court of Appeals Judge Richard Sheppard Arnold, who wrote the opinion in Anastasoff v. United States, a tax case that generated much debate on court rules declaring that unpublished decisions were not precedent.1 In Anastasoff, a panel of the Eighth Circuit declared that its thencurrent local rule stating that unpublished opinions were not precedent violated Article III of the United States Constitution. The Eighth Circuit, led by Judge Arnold, seized an opportunity in Anastasoff to remind us all that when “[d]etermining the law in one case, judges bind those in subsequent cases[.]”2 Citing themes of transparency and public Extra! Extra! continued on page 50 Brandon Harrison is an attorney with Barrett & Deacon, P.A. He concentrates his practice in appellate law and procedure and civil litigation. He is a contributing author to the Association’s “Handling Appeals in Arkansas” Handbook. Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 27 Arkansas Supreme Court Historical Society Dinner Honoring Former Arkansas Supreme Court Justices Dinner to Honor Former Supreme Court Justices Invitation 7:00 p.m., Thursday, September 24, 2009 Governor’s Mansion On Thursday evening, September 24, 2009, the Arkansas Supreme Court Historical will host a dinner honoring all living former justices Featured Speaker: Senator DaleSociety Bumpers of the Arkansas Supreme Court. The dinner will held at the Governor’s Mansion, 1800 Center Street in Little Rock and will be catered by the Sponsored by Arkansas Supreme Court Historical Society, Inc. Mansion staff. Former Senator Dale Bumpers will be the featured speaker. The eighteen jurists who will be recognized at the dinner are: $125.00 Per Ticket Richard B. Adkisson, Chief Justice, 1980-1984 W. H. “Dub” Arnold, Chief Justice, 1997-2003 Number of tickets: __________ Conley Byrd, Associate Justice, 1967-1980 Betty Dickey, Chief Justice, 2004; Associate Justice, 2005-2006 Total Amount Paid: __________ Robert H. Dudley, Associate Justice, 1981-1996 Tom Glaze, Associate Justice, 1987-2008 Steele Hays, Associate Justice 1981-1994 Darrell Hickman, Associate Justice, 1977-1990 Name: __________________________________________________________________ Jack Holt, Jr., Chief Justice, 1985-1995 Webster Lee Hubbell, Chief Justice, 1984 Address: ________________________________________________________________ Bradley D. Jesson, Chief Justice, 1995-1996 Jim Johnson, Associate Justice, 1959-1966 City:_____________________________________ State _________ Zip __________ Richard L. Mays, Associate Justice, 1980 David Newbern, Associate Justice, 1985-1998 Telephone: _______________________ Email __________________________________ John I. Purtle, Associate Justice, 1979-1989 Lavenski R. Smith, Associate Justice, 1999-2000 Please make your check payable “Arkansas Supreme Court Historical Society, Inc.” John F. to Stroud, Jr., Associate Justice, 1980 Ray Thornton, Associate Justice, 1997-2004 Rod Miller, Secretary/Treasurer ArkansasDinner SupremetoCourt Historical Society, Inc. Court Justices Honor Former Supreme Justice Building, Suite 1500 $125 Per Ticket 625 Marshall Street Little__________ Rock, AR 72201 Number of tickets: Phone: 501-682-6879 Fax: 501-682-6877 Total Amount Paid: __________ Email: email@example.com Name _____________________________________________________ Address: _____________________________________________________ City: _____________________________ State _______ Zip _________ Telephone: _____________________________ Email ____________________ Please make your check payable to: “Arkansas Supreme Court Historical Society, Inc.” Rod Miller, Secretary-Treasurer, Arkansas Supreme Court Historical Society, Inc. Justice Building, Suite 1500, 625 Marshall Street, Little Rock, Arkansas 72201 Phone: 501-682-6879, Fax: 501-682-6877; Email: firstname.lastname@example.org 28 28 The TheArkansas ArkansasLawyer Lawyer www.arkbar.com www.arkbar.com CLE CLE CLE CLECLE CLE CLE CLE CLE 2009 Fall CLE Calendar September Juvenile Justice Symposium September 25, 2009 Fayetteville October Bridging the Gap October 1-2, 2009 UALR Bowen School of Law Little Rock Government Practice Seminar October 16, 2009 UALR Bowen School of Law Little Rock Health Law Seminar October 23, 2009 UALR Bowen School of Law Little Rock Fall Legal Seminar October 29-30, 2009 Holiday Inn Springdale November Professional Practicum November 13, 2009 Embassy Suites Little Rock October 29-30, 2009 The Arkansas Bar Association The Debtor-Creditor Law Section and The University of Arkansas School of Law present: Fall Legal Institute 2009 • Privacy Law • Debtor-Creditor Law Photograph courtesy of Bear Spirit Photography 2010 Mid Year Meeting Peabody Hotel, Memphis, TN January 21-22, 2010 For more information contact Lynne Brown or Kristen Scherm 800-609-5668 or 501-375-3957 email@example.com or firstname.lastname@example.org OR check out THE CLE PAGE at www.arkbar.com Program Planners: Privacy Law Dan Lloyd Cook Debtor-Creditor Lance Owens, Chair Lyndsey D. Dilkes Dana M. Landrum Rosalind M. Mouser Patt Pine up to 9 CLE Hours up to 4.0 Ethics Hours Holiday Inn Interstate 540 & Exit 72 1500 S. 48th Street Springdale, AR Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 29 Enjoy Email Responsibly Enjoy Email Responsibly By Catherine Sanders Reach, MLIS Introduction As computer technology becomes more entrenched within the legal profession, lawyers must be aware of the potential pitfalls that can arise based on ethical obligations. Email is one area that is used ubiquitously to send and receive confidential information, though the bare minimum is applied to protect the confidences contained within. According to the 2009 ABA Legal Technology Survey Report: Web and Communication Technology, respondents are asked how often they send confidential or privileged communications/ documents to clients via e-mail. A majority of respondents (53%) report sending confidential or privileged communications/documents to clients via e-mail one or more times a day. Respondents are asked what security precautions they take when sending confidential/privileged communications/documents to clients via e-mail. Respondents most often report relying on confidentiality statements accompanying e-mail transmissions (85%). Arkansas attorneys must consider Arkansas Rules of Professional Conduct Rule 1.6 “Confidentiality of Information” when sending email. Additionally, ethics opinions are cropping up in other jurisdictions regarding use of email and duties to prospective clients. What Level of Security is Necessary? Encryption is not “required” under the confidentiality rules in most states; however many leave it up to the lawyer to decide. ABA Formal Opinion No. 99-413 (http://www.abanet.org/ cpr/pubs/fo99-413.html) states “A lawyer may 30 The Arkansas Lawyer www.arkbar.com by Catherine Sanders Reach transmit information relating to the representation of a client by unencrypted e-mail sent over the Internet without violating the Model Rules of Professional Conduct (1998) because the mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint.” The formal opinion is cited as the reason lawyers do not have to encrypt email. However, in the notes of the opinion it says “even so, when the lawyer reasonably believes that confidential client information being transmitted is so highly sensitive that extraordinary measures to protect the transmission are warranted, the lawyer should consult the client as to whether another mode of transmission, such as special messenger delivery, is warranted.” If the information you intend to put in the email is so sensitive that you would not send it by courier or mail, then it probably needs to be encrypted. Also discuss the matter with your client; if he/she wants it encrypted, then you must. There are commercial encryption products available, including on-line services. Work with your client to find the best solution for sending and receiving encrypted email. For more information on email encryption see: http://www.abanet.org/ tech/ltrc/fyidocs/FYI_Playing_it_safe.html. Avoid Human Error Misaddressed emails can breach attorneyclient confidentiality. Like a fax sent to a wrong phone number, an errant email can do as much damage. In Microsoft’s Outlook and other popular email programs consider turning off the address “AutoComplete” func- tion to avoid mistakes; remind staff to always double-check the addressee in each outgoing email. If you rely on disclaimers, add them above the message, rather than at the end, to serve as a warning to any unintended reader. You must also discuss use of email with your clients. Some client’s office policies regarding email and computer use may act as a waiver of attorney-client privilege if the client doesn’t have a sufficient expectation of privacy or confidentiality when using the employer’s technology. Scott v. Beth Israel Medical Center, 2007 WL 3053351 (N.Y. Sup. Oct. 17, 2007), involved a dispute between a hospital and a former employee. While still employed, Scott used the hospital’s email system to communicate with his attorney. Those emails were ultimately deemed non-privileged because the hospital’s email policy clearly stated that employees had no personal privacy rights to materials created, sent, or received via the hospital’s communication systems. Likewise in Long v. Marubeni America Corp., 2006 Catherine Sanders Reach is the Director of the American Bar Association Legal Technology Center, www.lawtechnology.com WL 2998671 (S.D. N.Y. Oct. 19, 2006), the court in Long found that an employee’s emails to counsel were non-privileged due to a clear email use policy. Long differs from Scott, however, in that the employee used a personal email account (presumably webbased) to communicate with his counsel rather than the employer-provided corporate email. Nonetheless, because the employee used the employer’s computer and internet connection, the policy still applied to eliminate any expectation of privacy. Publicizing your email address on your firm’s website could put you at risk of inadvertently creating a conflict of interest, a perceived attorney-client relationship, or the assumption of attorney-client privilege. Disclaimers may protect you if properly executed. State Bar of California CPRC Formal Opinion 2005-168 states “A lawyer may avoid incurring a duty of confidentiality to persons who seek legal services by visiting the lawyer’s web site and disclose confidential information only if the lawyer’s web site contains a statement in sufficiently plain language that any information submitted at the web site will not be confidential.” This opinion is primarily applicable to email addresses published on a firm website or advertisement. In San Diego County Bar Association LEC Opinion 2006-1, the ethics committee held that merely listing contact information on a bar association web site didn’t amount to an attempt to attract clients, and thus, the prospective client had no reasonable expectation that the attorney at issue had agreed to a consultation. Rather than placing your email address on your web site, use a contact form that requires users to read and accept a disclaimer regarding confidentiality and attorney-client privilege. See, for example, the Simpson Thatcher web site: http://www.stblaw.com/lawyers.htm. Put any disclaimer in clear and plain language. The disclaimer should emphasize that nothing submitted via the web site will be considered confidential. Email messages can be a ticking time bomb, and should therefore be treated with great care. Your firm should have a written policy addressing proper use of firm email for business communication by lawyers and support staff; storage and retention of email as a record; security issues including opening attachments, identifying spam and phishing, and other scams; use of firm email for personal communication; and use of other Internet based communication tools such as instant messaging, blogging, commenting on blogs, social networking, and online chat. Metadata in Email Attachments Metadata resides in almost every type of electronic document or file created in a law office – especially files created using the Microsoft Office suite. Therefore, when you email a document as an attachment the receiving party may be able to see your edited changes or whether the document is original to that client or a form created for someone else. The disclosure of the metadata could be a breach of confidentiality, not to mention highly embarrassing. Numerous state bar associations and the ABA have ethics opinions regarding metadata. The ethics opinions deal primarily with the sending attorney’s responsibility to remove metadata, whether the recipient can “mine” Email continued on page 52 DAVIS, CLARK, BUTT, CARITHERS & TAYLOR, PLC (formerly Davis, Wright, Clark, Butt & Carithers, PLC) is pleased to announce effective January 1, 2009: • The revision of its name reflecting the retirement of Tilden P. “Chip” Wright and the addition of Don A. Taylor to the firm name. • The promotion of Casey D. Lawson to partner in the firm. • The change of its internet address and domain name to • “davis-firm.com.” Don A. Taylor graduated with High Honors from the University of Arkansas Law School, joined the firm in 1989, and became a partner in 1994. His practice is focused on litigation. Don is listed in “Best Lawyers in America” in personal injury litigation, and is a Fellow in the American College of Trial Lawyers. Casey D. Lawson graduated as the top ranked accounting student from the University of Arkansas Sam M. Walton College of Business, and Magna Cum Laude from the University of Arkansas Law School as the top student in taxation and business planning in 2000, when she joined the firm. Casey focuses her practice in taxation, and business and estate planning. DAVIS, CLARK, BUTT, CARITHERS & TAYLOR, PLC 19 East Mountain Street, P.O. Box 1688 Fayetteville, AR 72702 www.davis-firm.com (Phone) 479-521-7600 (Fax) 479-521-7661 Partners: Sidney P. Davis, Jr. Constance G. Clark William Jackson Butt II Kelly Carithers Don A. Taylor John G. Trice Mark W. Dossett J. R. Carroll Casey D. Lawson Associates: Jeff Fletcher Joshua D. McFadden Colin M. Johnson The Davis Law Firm was organized in 1953 and has been providing general and specialized legal services to clients in Northwest Arkansas for over 50 years. Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 31 Record Number of Attendance 32 The Arkansas Lawyer www.arkbar.com Arkansas Bar Association 112th Annual Meeting Over 1,400 Registrants! Thank You to the Sponsors for a great 2009 Annual Meeting! Platinum Pillar The Arlington Resort Hotel & Spa AY Magazine Family Law Section Friday Eldredge & Clark Legal Directories Publishing Company, Inc. Lexis Nexis Gold Regions Insurance Financial Institutions Section Regions Morgan Keegan Trust McMath Woods P.A. Patron Arkansas Bar Association Sustaining Members Real Estate Law Section Silver George Williams Arkansas Bar Foundation Metropolitan National Bank Arkansas Circuit Clerk’s Association Mitchell, Williams, Selig, Gates and Bank of the Ozarks Woodyard PLLC Cross, Gunter, Witherspoon & Galchus, P.C. Sprott & Golden Daily & Woods, P.L.L.C. TaMolly’s Mexican Restaurant Delta Trust and Bank The Private Bank at Bank of Arkansas UALR William H. Bowen School of Law Dover Dixon Horne PLLC Frost, PLLC University of Arkansas School of Law Garland County Bar Association Washington County Bar Association Gibson Law Firm PLLC Diamond Hamilton, Colbert & Scurlock, LLP Arkansas Blue Cross Blue Shield Baim, Gunti, Mouser, Havner & Worsham, PLC Images Criminal Law Section Ivize Cypert, Crouch, Clark & Harwell, PLLC James & House, P.A. Quattelbaum, Grooms, Tull & Burrow, PLLC Dunn, Nutter & Morgan L.L.P. Ramsay, Bridgforth, Harrelson & Starling LLP Summit Bank The Computer Hut Simmons First National Bank Twin City Printing Warner Smith Harris PLLC Wilcox, Parker, Hurst, Lancaster & Lacy Willams & Anderson PLLC William A. Martin Wright, Lindsey & Jennings LLP See more photos provided online by Innovative Systems Inc. at www.isi.cc/ABA2009 Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 33 Arkansas Bar Association/ Arkansas Bar Foundation Judge James M. Moody James H. McKenzie Professionalism Award Senator James “Jim” C. Luker Outstanding Lawyer-Citizen Award Don Hollingsworth Equal Justice Distinguished Service Award The James H. McKenzie Professionalism Award recognizes sustained excellence through integrity, character and leadership to the profession and the community which garners the highest honor to the profession. The Outstanding Lawyer-Citizen Award is given in recognition of outstanding participation in and for excellent performance of civic responsibilities and for demonstrating high standards of professional competence and conduct. The Equal Justice Distinguished Service Award is given to recognize commitment to and participation in equal justice programs for the poor, including pro bono efforts through legal services programs. Judge James M. Moody of Little Rock has been a model of integrity, character and professionalism throughout his distinguished career: during his time in private practice as an Associate at The Rose Law Firm, his many years as a Partner at Wright, Lindsey & Jennings, and in his current appointment since 1995 to the federal bench of the United States District Court for the Eastern District of Arkansas. According to one of his nominators, “He was the consummate professional, treating the Court, opposing counsel and the adverse parties alike with civility, respect and dignity, while always maintaining his patience, affability and calm aura.” Judge Moody is described in the following ways in regard to his leadership on the bench: “He is the embodiment of the ideal judicial temperament”; “He is unflaggingly courteous to everyone”; and, “He is scholarly and concise in his approach.” In 1999, Judge Moody was presented with the first annual “Civility Award” given by the Arkansas Chapter of ABOTA. In recognition of Judge Moody’s extraordinary civility and professionalism, the Arkansas Chapter of ABOTA then renamed its own unique “Civility Award” after Judge Moody. Senator Luker has been serving his profession and the community since he became a member of the bar in 1966. He has built a reputation as a sound and efficient United States Bankruptcy Chapter 7 Trustee. He served as Mayor of Wynne for fifteen (15) years. In 1995, he was elected State Representative for Cross and Woodruff Counties, serving in this position until 2000. He was subsequently elected to the State Senate and currently represents the citizens of Crittenden, Cross, Woodruff, Monroe, Lee, St. Francis and Phillips Counties. According to one of his nominators, “Senator Luker has been the pivotal person for the legal profession in Arkansas. Session after session, he has led the Association’s efforts to improve laws in Arkansas and pass the Bar Association’s Legislative package. His sound advice and counsel to his fellow legislators has been an important aspect of his distinguished service.” Senator Luker has served the Bar Association, his state, and his district with professionalism, honor and distinction. The legal profession has been the top beneficiary of his service. He is the model for “Lawyer-Citizen” and the profession is better because of his example and service. Don Hollingsworth has dedicated his professional career to fostering equal access to justice for those without the resources to afford legal representation. Since 1972, Don has worked tirelessly in striving to achieve equal justice for the poor. He led Central Arkansas Legal Services (CALS) as its Executive Director for eighteen years. During his tenure with CALS, he faced challenging times nationally for legal service providers. Through his work and leadership, CALS enlisted one of the highest percentages of participating attorneys per capita in the nation and was presented the Harrison Tweed Award by the American Bar Association in recognition of one of the best pro bono efforts in the country. Don’s direct contribution during his ten-plus years of leadership as Executive Director of the Arkansas Bar Association played a monumental role in the work of the Association in striving for equal justice for all Arkansans. No words could better summarize Don’s commitment to equal justice than this statement from his nominator: “Don’s thirty-seven years of work have all been directly tied to achieving equal justice for the poor, both through direct service himself and through working to strengthen equal justice programs.” 34 The Arkansas Lawyer www.arkbar.com 2008-2009 Annual Award Recipients 2008-2009 Association President Rosalind M. Mouser presented the following Arkansas Bar Association Presidential Awards Phillip Carroll H. William “Bill” Allen C.E. Ransick Award of Excellence Kent J. Rubens, posthumously Outstanding Lawyer Award The C. E. Ransick Award of Excellence was created to recognize outstanding contributions to the profession. The Outstanding Lawyer Award is given in recognition of excellence in the practice of law and outstanding contributions to the profession. Bill Allen of Little Rock has served his profession in many ways, and his professional life is one of devoted and effective service to the legal profession, both in formal service to the bar and also by the personal example he sets in his legal practice. Bill’s service to the bar on the national, state and local levels is phenomenal. Among his numerous contributions to the American Bar Association, he has served as National Law Day Chair, as Chair of the Standing Committee on Ethics and Professional Responsibility and as a member of the ABA’s Professionalism Committee. He served as President of the American Bar Foundation. Bill is a Fellow of the Arkansas Bar Foundation and served the Arkansas Bar Association in many capacities as a member, including Chair of the Standing Committee on Ethics, Professionalism Committee and Judicial Liaison Committee. He served as President of the Pulaski County Bar Association (PCBA) and received the Pro Bono Attorney of the Year Award from the PCBA. A friend said: “He is a lawyer’s lawyer, in the finest sense of the term. He has a personal bearing in litigation that is, all at the same time, affable, respectful, humble, tough, thoughtful and careful. I believe strongly that the example of such a lawyer can only have made our profession a better place.” Throughout his career, the late Kent Rubens exemplified the characteristics of a truly outstanding lawyer in every sense of the word. This year, the Outstanding Lawyer Award is given posthumously to Kent Rubens to recognize his outstanding contributions to the profession that he served. Kent was a prominent attorney in West Memphis and a well-known litigator in the Memphis community as well. He was a member of the American and Arkansas Bar Associations, the National Association of Criminal Defense Lawyers and served as a past president of the Crittenden County Bar Association. He was a Fellow of the American College of Trial Lawyers and an Advocate with the American Board of Trial Advocates. During his career, he served as Special Chief Justice for the Arkansas Supreme Court and was a member of the Arkansas House of Representatives for six years. A number of individuals nominated Kent for this award, and they all speak to his upstanding character and abilities and his love for the practice of law. One friend in the profession stated the following: “Kent was a wonderful lawyer who believed strongly in zealous advocacy and had a keen legal mind. His advocacy was always tempered by complete candor and a dogged determination to be fair to everyone.” for his work as chair of the Uniform Laws Committee Jim Julian for his work as chair of the Ark Bar PAC William A. Martin for his many years of dedicated service as Secretary/ Treasurer of the Association Gwen Rucker for her extraordinary service and leadership to the Association Vol. 44 No. 1/Winter 2009 The Arkansas Lawyer 35 2008-2009 President Rosalind M. Mouser presented the following Golden Gavel Awards Joyce Bradley Babin Chair of the Arkansas Bankruptcy Handbook Subcommittee Howard W. Brill Chair of the Task Force on the Code of Judicial Conduct Michael H. Crawford Chair of the Organization & Redistricting Committee John A. (Jack) Davis, III Chair of the Legislation Committee Stephen Engstrom Co-Chair of the Domestic Relations Handbook Subcommittee Pamela B. Gibson Co-Chair of the IT Infrastructure Committee Sam E. Gibson Co-Chair of the IT Infrastructure Committee Mark W. Hodge Chair of the Law Related Education Committee Don Hollingworth Organization and Redistricting Committee Harry A. Light Chair of the Annual Meeting Committee William A. Martin Organization & Redistricting Committee Hon. D. Price Marshall Co-Chair of the Handling Appeals in Arkansas Handbook Subcommittee Jeffrey E. McKinley Chair of the Underwriting Committee Pamela Osment Co-Chair of the Domestic Relations Handbook Subcommittee Nick Rogers Producer of the DVD â€œA Level Playing Fieldâ€? Brian M. Rosenthal Chair of the Membership Development Committee Frank B. Sewall Organization & Redistricting Committee Robert S. Shafer Co-Chair of the Handling Appeals in Arkansas Handbook Subcommittee Win A. Trafford Chair of the Group Insurance Committee John T. Vines Chair of the Member Benefits Committee 36 The Arkansas Lawyer www.arkbar.com Other Awards Presented at the 112th Annual Meeting Phil Kaplan Maurice Cathey Award Kaplan of Williams & Anderson, PLC in Little Rock received the award for his valued contributions to The Arkansas Lawyer magazine as chair of the Editorial Advisory Board Committee for the past six years. Tom D. Womack Charles L. Carpenter Award Womack of Womack of Landis, Phelps & McNeill, P.A. in Jonesboro received the award for his exemplary service to the Arkansas Bar Association. Matthew R. House Judith Ryan Gray Outstanding Young Lawyer Award House of James & House, P.A. in Little Rock received the award for his exemplary service and contributions directed toward improving the administration of justice and promoting the public welfare on behalf of the Association. Amy Freedman Frank Elcan Award Freedman of The Law Offices of Kelvin Wyrick in Texarkana received the award for her outstanding contributions to the Young Lawyers Section. Hon. Alice F. Lightle Continuing Legal Education Award Little Rock District Court Judge Lightle received the award for her outstanding contributions to the Associationâ€™s CLE program. 866.376.0950 TM Credit Card Processing For Attorneys Win Business and Get Paid! The Law Firm Merchant Account, credit card processing for attorneys, allows you to accept client credit card payments in compliance with ABA and State guidelines. Trust your transactions to the only payment processing solution recommended by over 50 bar associations nationwide as the correct way to handle client payments! Law F ir Merchant count Ac m Over 50 Bar Associations Approve & R ecom mend! Arkansas Bar Members save up to 25% off standard bank fees by accepting payment through the Law Firm Merchant Account Member Benefit Call 866.376.0950 or visit www.affiniscape.com/arkbar Affiniscape Merchant Solutions is a registered ISO/MSP of Harris, N.A., Chicago, IL Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 37 House of Delegates Wraps Up the 112th Annual Meeting The Association’s House of Delegates met June 13, 2009 in Hot Springs with 2008-09 President Rosalind M. Mouser presiding. This was the final event of the 2009 Annual Meeting which had a record attendance of 1452 attorneys and judges registered plus 220 guests. President Mouser applauded the work of Annual Meeting Chair Harry Light for his exceptional work in creating the technologically infused meeting. She also thanked the sponsors and staff of the Association. Young Lawyers Section Chair Gwendolyn Rucker and Matt House presented the YLS handbook “18 and Life to Go: A Legal Handbook for Young Arkansas.” The handbook has received great feedback since its publication in May. The handbook provides young people with invaluable legal advice on important topics such as the management of credit and the various ways of settling disputes. It covers both civil and criminal legal issues. President Mouser applauded the YLS for their outstanding work on this project. Ms. Rucker also presented a report of the YLS busy bar year, including a community service project held during the annual meeting. YLS teamed up with the Wills for Heroes Foundation to provide policemen and firefighters in Hot Springs with wills and other estate planning documents on June 10, 2009. Member Benefits Committee Chair John Vines reported on the new benefits approved by the Board of Governors during the past bar year. Regions Insurance is offering assistance with medical insurance options for members and their staff and a program to help members quickly and easily acquire a variety of bonds required in their daily practices. Members are utilizing the new credit card service offered by Affiniscape. Past President Rick Ramsay reported on a great experience at ABA Day in Washington, D.C. and encouraged the Association to continue sending more than one representative per year as in this year. Carolyn Witherspoon presented her report as Delegate to the American Bar Association. Dean Golder reported on the Arkansas Supreme Court per curiam regarding the Access to Justice Commission. Arkansas Bar Foundation President Brian Ratcliff presented an update on Foundation activities, including finalizing the agreement with the Association on the purchase of the furniture for the Bar Center. Lobbyist Jack McNulty presented a report on the past Legislative Package. Dennis Zolper, Chair of the Jurisprudence and Law Reform Committee, reported on the Association’s Legislation Time Table, which can be found of page 19 of this magazine. He also updated the Delegates on the Ark Bar PAC encouraging everyone to join as they renew their 2009-10 Association membership. Delegates heard reports from Past President Fred Ursery, Chair of the Long Range Planning Committee and Brian Rosenthal, Chair of the Membership Development Committee. Mike Crawford, Chair of the Organization & Redistricting Committee presented the final report of the Committee with the new districts. The House of Delegate approved the recommended plan. Maps indicating new districts as well as the implementation plan are available on our website, www.arkbar.com. 38 The Arkansas Lawyer www.arkbar.com Pam and Sam Gibson, co-chairs of the IT Infrastructure Committee updated the Delegates on the Association’s new Web site and database. End2End, the company that has been selected to create the Association’s new website and database, presented the overall plans for the project. President Mouser reported on the Arkansas Supreme Court per curium that adopted the language recommended by the Association’s petition to amend the Code of Judicial Conduct without any material changes. President Mouser presented the Charles Carpenter Award to Tom D. Womack of Jonesboro for his exemplary service to the Association. Delegates voted from the South & East District to elect a one-year position on the legislation committee from the South & East district. Jay Scurlock shall serve as District Vice-Chair of the legislative action network for the District. President-Elect Donna Pettus announced that Frank Sewall is appointed to serve a five-year term on the IOLTA Board. Past President Jim Sprott is appointed to be the President’s designee for the upcoming Bar year. The Delegates elected the Secretary and Treasurer for 2009-2010. F. Thomas Curry of Arkadelphia is the Association’s new Secretary and William A. Martin is the new Treasurer. President Mouser thanked Mr. Martin for serving as both the Secretary and Treasurer for the Association for the past several years. Leon Johnson was also recognized for his service as Parliamentarian for the Association for the past two years. Charles D. Roscopf of Helena will assume the office of Parliamentarian in 2009-2010. The following departing delegates were recognized for their service to the House of Delegates: Judge Beth Deere, Rebecca Denison, Kimberly J. Frazier, Amy Freedman, Stephen A. Geigle, Charles Harwell, Stephan M. Hawks, Leon Johnson, Jason B. Kelley, Roy Beth Kelley, Kathie A. Kimbrell, Mark Mayfield, Mark McCarty, James McMenis, Jay Taylor, Robert F. Thompson, III, Brian Vandiver, Danyelle Walker, Rita Watkins, and Brett Watson. The following departing Governors were recognized for their service to the Board of Governors: Immediate Past President Rick Ramsay, Parliamentarian Leon Johnson, YLS Chair Gwen Rucker, Arkansas Bar Foundation President Brian Ratcliff, Governors Chalk Mitchell, Todd Turner, Danny Rasmussen, Eddie Walker, and Colette Honorable. Donna C. Pettus, 2009-10 Association President, updated the Delegates on projects for the upcoming bar year, including the Leadership Academy, Governance Committee, Law Practice Creation and Management Handbook, and a Social Networking/Technology Committee. She praised the exceptional work done by Rosalind Mouser during the bar year. The next meeting of the House of Delegates will be held at the Mid Year Meeting at the Peabody Hotel in Memphis on Saturday, January 23, 2010. Richard B. Adkisson Marion B. Burton James D. Cypert Robert H. Dudley Joe H. Hardegree John N. Harkey Bradley D. Jesson Hugh R. Kincaid Hayes C. McClerkin T. Kirk Patton Celebrating 50 Years 50 Golden Years Isaac A. Scott, Jr. J. Michael Shaw Donald H. Smith Douglas O. Smith, Jr. John F. Stroud, Jr. William H. Sutton C. Bass Trumbo W. Lee Tucker W. Jackson Williams, Jr. Congratulations to members of the Arkansas Bar Association celebrating their 50th year of practice. The members were honored with a luncheon at the Associationâ€™s Annual Meeting on June 12th. Front Row (l to r): Judge John Stroud, W. Jackson Williams, Jr., Douglas O. Smith, Jr., James D. Cypert, John N. Harkey, William H. Sutton; Back Row (l to r): Isaac A. Scott, Jr., Richard B. Adkisson, T. Kirk Patton, Hugh R. Kincaid, J. Michael Shaw, W. Lee Tucker, C. Bass Trumbo Celebrating 25 Years Congratulations to members of the Arkansas Bar Association celebrating their 25th year of practice. Richard P. Alexander Susan Walker Allen Billy J. Allred Thomas L. Barron Richard L. Bell Linda O. Bowlin J. Chris Bradley Lynne Bice Brown Roger U. Colbert K. LeAnne Daniel Bob D. Davidson Thomas B. Devine, III Mark D. Drake Michael J. Emerson W. T. Everette, Jr. Stacy L. Farnell Catherine G. Flocks Randal B. Frazier Daniel H. Graves W. David Hardin Michael E. Hartje Hani W. Hashem Randy L. Hill Denise R. Hoggard Patrick Hollingsworth David T. Howell Tim Humphries N. Mark Klappenbach Alice F. Lightle Jean Madden Teresa Marks Clark W. Mason Nancy Bellhouse May Laura J. McKinnon Stephen M. Morris Johnny L. Nichols T. B. Patterson, Jr. Daniel Peregrin David E. Prewett Jeannette A. Robertson Charles D. Roscopf David H. Smith Vicki K. Smith James G. Stouffer, Jr. Joel Taylor Mona Teague Robert L. Thacker Jack A. Tucker, Jr. Patricia H. Virnig Charles T. Ward, Jr. William P. Watkins, III Keith N. Wood Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 39 Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 39 Judicial Advisory Opinions and Lawyer Disciplinary Actions The following press releases from the Judicial Advisory Opinions are written and provided by the Judicial Discipline and Disability Commission. Advisory Opinion 2009-03 June 19, 2009 The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion to Judge Fogleman of Marion, Arkansas. Judge Fogleman requested an opinion regarding judicial candidates acquiring tickets for attending certain events. (Full text is available online at http://www.state.ar.us/ jeac/) Final actions from April 1, 2009, through June 30, 2009, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct. Full text documents are available on-line at http://courts.arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Attorney” link on the home page. [Note: “Model” Rules refers to the Rules of Professional Conduct as they existed in Arkansas prior to May 1, 2005. “Arkansas” Rules refers to the Rules as they exist in Arkansas from May 1, 2005.] DISBARRED: ZIMMERY CRUTCHER, JR., No. 74029, of Little Rock. On April 30, 2009, in Case No. 05-1412, the Arkansas Supreme Court entered an Order disbarring Mr. Crutcher from the practice of law in Arkansas, for violations of Rule 1.5(c), 1.15(a), 1.15(b), and 8.4(c) of the Model Rules of Professional Conduct, based on Findings of Fact, Conclusions of Law, and a recommendation of disbarment filed by the Honorable John Cole, Special Judge, on March 3, 2009. Mr. Crutcher filed notice that he was not objecting to the Findings of Fact and Conclusions of Law. Dalnita Morrison hired Mr. Crutcher in a personal injury claim, which he settled within two weeks. He did not provide Ms. Morrison with a written settlement sheet. Mr. Crutcher informed her that he would pay her medical bills totaling $1823.21. He did not do so, and he did not promptly inform the medical providers when he received funds in which they had an interest. He improperly removed the funds from his IOLTA trust account in a series of checks made payable to himself which he cashed over the course of a few weeks. In spite of the personal withdrawals, Mr. Crutcher informed Ms. Morrison on many occasions that he had paid the medical bills or that he would do so, but he did not. HORACE A. WALKER, No. 82169, of Little Rock, was disbarred by Supreme Court Per Curiam issued April 23, 2009, in Case No. 08-71, on a complaint by Theodis and Elsie Dodson, originally filed as Committee case No. CPC 2007-095, involving Walker’s conversion of about $3,800 in client settlement funds. Mr. Walker also improperly deposited personal funds into his trust account and improperly paid personal and office bills directly from his trust account. After trial, Mr. Walker failed to file his required appellant’s brief to the Court and the recommendation of disbarment by the Special Judge, Honorable Jack Lessenberry, was accepted. Rules found to have been violated were 1.4(a), 1.5(c), 1.15(a), 1.15(b), 8.1(b), 8.4(b), and 8.4(c). LICENSE SURRENDERED: STEVEN EUGENE CAULEY, No. 94012, of Little Rock, surrendered his law license on May 28, 2009, in lieu of disbarment proceedings being brought, as a result of his admission that about $9,300,000 in settlement funds entrusted to him was not available, and that he was entering a guilty plea in June in federal court in New York to at least one felony offense arising from his mishandling of these funds. He admitted violating Rules 8.4(b) and 8.4(c). Judges and lawyers are charged with the difficult task of balancing the pressures of constant stress, long hours, and high expectations. The American Bar Association estimates that 20% of legal professionals suffer from alcoholism or substance abuse. Since 2000, the Arkansas Judges and Lawyers Assistance Program (ArJLAP) has been providing confidential services to Arkansas’ judges, lawyers, and their families. Our professional staff is committed to providing comprehensive and confidential support. Whether you are in need of assistance, or concerned about a colleague or family member, let us help you take the first step in turning a problem into an opportunity for positive change. ArJLAP: Personal Solutions for Positive Change. Contact Arkansas Judges and Lawyers Assistance Program 501-907-2529 email@example.com www.arjlap.org 40 The Arkansas Lawyer www.arkbar.com Lawyer Disciplinary Actions SUSPENSION: KATHLEEN L. CALDWELL, No. 82187, of Memphis, TN, in CPC 2009-051, was reciprocally suspended for a period of six (6) months beginning on May 22, 2009. The Tennessee Order showed Ms. Caldwell was actively suspended in that State for six (6) months beginning March 24, 2009. Pursuant to Section 14 of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, a like sanction was imposed in this State by the vote of the Committee on Professional Conduct. ALICE WARD GREENE, No. 95196, of Little Rock, was suspended for thirty-six (36) months, fined $2,500.00 and ordered to pay $1,150.00 in restitution, for violations of Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.4(b), 3.4(c), 8.4(c) and 8.4(d). For her failure to respond to the Formal Complaint she was also cautioned and fined $500.00 by Order filed May 12, 2009, on a Complaint filed by Shayne Horton in CPC 2008-023. Ms. Greene was hired to represent Horton in a child custody proceeding. Ms. Greene appeared with Horton at two hearings while her Arkansas license was suspended. She never notified her client, opposing counsel, or the presiding Judge that her law license was suspended. She abandoned her client following the Order entered in May 2007. Ms. Greene also accepted fees for representation of Mr. Horton’s sister at a time when Greene’s law license was suspended. REPRIMAND: DAVID L. DUNAGIN, No. 84040, of Fort Smith, was reprimanded by Committee Consent Order filed April 22, 2009, in CPC 2009-008, for admitted violations of Rules 1.3 and 8.4(d). The Supreme Court referred Mr. Dunagin to the Committee after granting his Motion for Rule on the Clerk (which was treated as Motion for Belated Brief) in the matter of Kenneth Brewton v. State of Arkansas, CR08-1042. Mr. Dunagin did not file a brief for Brewton nor did he seek an extension of time to do so. Mr. Dunagin did not respond to the State’s Motion to Dismiss. He filed a Motion for Rule on the Clerk on January 7, 2009, accepting full responsibility for not filing a brief. The Court granted the Motion, allowed for filing a late brief, and referred Mr. Dunagin to the Committee. WILLIAM S. ROBINSON, No. 76108, of North Little Rock, was reprimanded, fined $3,000.00 and ordered to pay $800.00 restitution, for violation of Rules 1.3, 1.4(a) (3), 1.4(a)(4), 1.5(c), 1.16(d) and 8.4(d), on a complaint by Kimberlee Basha in CPC 2009025. For failure to respond to the Complaint, he was also cautioned and fined $250.00. Ms. Basha is a representative of Servicing Solutions LLC, which hired Mr. Robinson for various civil collection matters in Arkansas. During the course of his representation Mr. Robinson’s conduct was not diligent, and he did not stay in communication with Ms. Basha or any other representatives of the client. Ms. Basha requested return of unused advanced payment of costs and executed substitution of counsel documents. Although Mr. Robinson and others in his office advised that the costs and documents were being placed in the mail, he had returned nothing to the client at the time of the Complaint. His conduct led to an unnecessary delay in the pursuit of the collection matters by new counsel. MORRIS W. THOMPSON, No. 80145, of Little Rock, was reprimanded and fined $1,000 for violations of Rules 1.3 and 8.4(d) by Order filed May 6, 2009, in CPC 2008-098. Mr. Thompson filed suit for a client in District Court, and later had the case transferred to Circuit Court, where he filed an amended complaint adding an additional defendant. The newly added defendant filed a Motion to Dismiss alleging that there was lack of jurisdiction, insufficiency of process, and insufficiency of service of process. Mr. Thompson failed to respond and an Order to Dismiss Without Prejudice was entered, stating that the dismissal applied to all defendants in the case. The trial court denied Thompson’s Motion to Modify Order, and he appealed. The Clerk refused to file the record as Thompson’s Motion to Modify Order was not filed within sixty (60) days of the Order he moved to modify. He filed a Motion for Rule on the Clerk stating ARCP Rule 60(c)(3) permits, “after the expiration of ninety (90) days of the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order . . . for misprisions of clerk.” The Supreme Court held that Rule 60(c)(3) applied to misprisions of the circuit clerk, not by the circuit court; that Rule 60(c) (3) did not apply; and the Clerk was correct in refusing to accept the record, killing the appeal. A petition for rehearing was denied. CAUTION: JOEL DAVID BOYD, No. 90019, of Little Rock, was cautioned by Committee Order Tom M. Ferstl, MAI, SRA, J.D. J.T. Ferstl, MAI, J.D. 621 E. Capitol Ave. Little Rock, AR 72201 Phone: 501-375-1439 or 501-376-1439 Fax: 501-375-8317 Expert Witness Testimony Real Estate Related Matters •Tax Appeals •Court Testimony •Condemnation •Divorce 40 Years Experience See Web Site for References www.arkansasappraisers.com email: firstname.lastname@example.org Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 41 Lawyer Disciplinary Actions filed April 6, 2009, on a Complaint filed by Gwen Young in CPC 2008-018, for violations of Rules 4.1(a), 4.4(a) and 8.4(c). Ms. Young received a telephone call from an employee of the law firm where Mr. Boyd works, was told of a debt, and asked to verify her Social Security number. She refused to do so and requested information be sent in writing. Instead of being sent information about the debt, she was sent a letter by Mr. Boyd which included a proposed Consent Judgment. At a public hearing on the matter, Mr. Boyd testified that it was a mistake that the Consent Judgment had been sent to Ms. Young. A firm employee testified she used her own judgment when she sent the Consent Judgment to Ms. Young. A firm partner testified that this action was against office policy and procedure. The form letter advised Ms. Young that if the original, signed consent judgment was not returned by the Court date, the matter would not be taken off the docket. At the time the letter was sent to Ms. Young no hearing date was set. The consent judgment also contained language that Complainant had knowledge of the lawsuit which was not true. This Gwen Young was not the Gwen Young who incurred this debt. GERALD A. COLEMAN, No. 82034, of West Memphis, was cautioned by Committee Order filed June 1, 2009, in CPC 2009-012, for violation of Rules 1.1, 3.4(c), and 8.4(d). The Supreme Court referred Mr. Coleman to the Committee in Lee v. State, CR08-160, because the Court had to order re-briefing twice in the appeal of the denial of Mr. Lee’s Rule 37 Petition. The Court held that Mr. Coleman did not comply with Rule 4-2(a) of the Arkansas Supreme Court Rules, by failing to properly abstract, include pleadings, and to place a specific Order in the addendum. After filing a first re-brief, Mr. Coleman was again ordered to re-brief because the substituted brief was still not in compliance with the Court’s Rule. In response to the Complaint, Mr. Coleman explained that since his co-counsel did not wish to undertake the appeal, he agreed to do the appeal work. While doing the appeal, Mr. Coleman was contacted by an out of state attorney representing Mr. Lee in his federal habeas proceeding. Mr. Coleman filed a brief with the understanding that this attorney would file to be substituted as counsel and ask to file an amended and substituted brief. She did not do so. Mr. Coleman explained that when the Court ordered re-briefing the second time, he recognized that some of the abstract, through his error, had been mislabeled as to what it contained. 42 The Arkansas Lawyer www.arkbar.com Private Trusts Valuation of Life Insurance Policies for Life Settlement Fiduciary Compliance www.gnfgroup.com DONALD W. COLSON, No. 2005166, of Benton, was cautioned and fined $500.00 by Committee Consent Order filed May 19, 2009, on a Complaint filed by Randall Wright in CPC 2009-020, for violations of Rules 1.2(a), 1.3, 1.4(a)(3) and 1.4(a)(4). Mr. Wright hired and paid Mr. Colson to contact his home builder about a problem with the floors in their home. Mr. Colson personally inspected the floors, advised Wright that he would write an immediate letter to the home builder, requested payment of $500, and was paid. Thereafter, he was provided paperwork from Mr. Wright. Mr. Colson took no action to either handle the matter or to contact Mr. Wright, who called Mr. Colson on numerous occasions, sent e-mails and letters, but received no response from him. JUSTIN B. HURST, No. 2005021, of Hot Springs, was cautioned and fined $500 for violations of Rules 1.3 and 8.4(d), by Committee Order filed April 29, 2009, in CPC 2009-001, on a referral by the Supreme Court. Mr. Hurst represented Mr. Gossett in a criminal appeal, and filed a motion for enlargement of time to lodge the record, but the order granting the motion was not filed until after the time for ELECTRICAL ACCIDENTS Paul D. Mixon, Ph.D., P.E. Engineering Consultant P.O. 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Centre Place Building 212 Center Street Second Floor Little Rock, AR 72201 (877) 492-3030 (501)372-0038 dhwilliamslawfirm.com Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 43 Lawyer Disciplinary Actions filing the record had expired. The Clerk refused to the Clerk. The Clerk informed Mr. Hurst to file the record and informed Mr. Hurst that that he needed to return both the record and a Motion for Rule on the Clerk needed to be the motion should he wish to proceed with the filed. The Clerk returned the transcript to Mr. appeal. Hurst then filed a Motion for Rule on Hurst when no motion was filed. Later, Hurst the Clerk along with the record. The Supreme filed a Motion for Rule, but failed to provide Court granted the Motion and referred the June 09with Handshake ARThe Lawyer 1 6/29/09 10:41 AM Page 1 the court the record. Clerk Ad:Layout returned matter to the Committee. the Motion as there was no record tendered Put the Strength of Arkansas’ Most Respected Mediators & Arbitrators to Work for Your Clients Jack Bell Jack Davis Frank Hamlin Bob Hornberger John Jennings Richard Lusby Sid McCollum John Stroud, Jr ADR I N C AlternativeDispute Resolution 1501 N. University Ave., Prospect Bldg, Ste. 420, Little Rock, AR 72207 (501) 376-2121 1116 South Walton Blvd.,Suite 111, P.O. Box 1826, Bentonville, AR 72712 (479) 271-2237 404 North Seventh Street, P.O. Box 8064, Fort Smith, AR 72902 (479) 783-1776 405 Walnut, Texarkana, AR 71854 (870) 772-0718 301 W. Washington, Jonesboro, AR 72403 (870) 932-0900 80 Monroe Avenue, Brinkley Plaza, Suite G1, Memphis, TN 38103 (901) 743-1055 www.mediateadr.com 44 The Arkansas Lawyer www.arkbar.com JUSTIN B. HURST, No. 2005021, of Hot Springs, was cautioned and fined $500 by Committee Order filed April 29, 2009, for violations of Rules 1.3 and 8.4(d), in CPC 2009-002. Mr. Hurst represented Mr. Rasmussen in a criminal appeal. Rule 5(a) of the Rules of Appellate Procedure–Civil requires that the appeal record be filed with the Supreme Court Clerk within 90 days from the filing of the first notice of appeal, unless the time is extended by proper order of the circuit court. Hurst filed a motion to extend the time for filing the record, but no order was filed with the circuit clerk. Hurst tendered the record to the Supreme Court Clerk, who refused to file the record as it was untimely. Hurst filed a Motion for Rule on the Clerk which contained incorrect language. Hurst was told to submit a corrected motion, which he did. The Supreme Court granted the Motion and referred the matter to the Committee. Q. BYRUM HURST, JR., No. 74082, of Hot Springs, was cautioned and ordered to pay $25,000 restitution by Committee Order filed May 8, 2009, in CPC 2007-132, on a complaint by Barbara Primm, for an admitted violation of Rule 1.16(d). Mr. Williams was charged with eight (8) counts of rape in Bradley County. Ms. Primm, his sister and attorney-in-fact, employed Mr. Gibson to represent him on those charges, which Gibson did through trial and appeal. Williams was later charged with rape in Garland County. Ms. Primm went to Hot Springs to meet with Mr. Hurst about representation there. Mr. Hurst agreed to assist Mr. Gibson in the Garland County matter, but agreed that Mr. Gibson would be the lead counsel. Mr. Hurst stated that he had a good working relationship with the judges, sheriff, prosecutor, and law enforcement personnel in Hot Springs and Garland County. Mr. Hurst told her there would be a tremendous amount of work including court appearances, consultations with Mr. Williams, and telephone updates with the family. According to Ms. Primm, Mr. Hurst agreed to represent Williams for $25,000, and that he would “draw” against this fee. Primm paid Hurst the $25,000 without having a written agreement. At a September 2006 bond reduction hearing, which was denied, Mr. Hurst was present but did not speak on David’s behalf. The next day, Mr. Hurst told Ms. Primm he would file a motion to get Mr. Williams out of jail and prepare an appeal to the Arkansas Supreme Court on the denial of the Motion to Lawyer Disciplinary Actions Reduce Bond, but he did neither. Mr. Gibson, whose fee was substantially less than Hurst’s, filed a Petition for Certiorari with the Arkansas Supreme Court. Ms. Primm stated that she had numerous telephone calls with Mr. Hurst and his office staff and requested Mr. Hurst to provide a contract for his representation of David Williams. Ms. Primm stated that Mr. Hurst did not return the telephone calls. Ms. Primm received a letter from Mr. Hurst dated September 28, 2006, stating the $25,000 paid was a “flat fee.” This differed from the conversation Ms. Primm had with Mr. Hurst in August. Mr. Hurst also stated in his letter that “[i]f this letter reflects our agreement please execute your signature on the line marked “AGREED AND ACCEPTED” and return to me . . . .” Ms. Primm did not sign and return the document, as it was not what she agreed to verbally and it was six weeks after the discussion when she received the contract. At hearings in Garland County in October and November 2006, Hurst and Gibson were both present and Gibson usually acted as lead counsel. Following the hearing on November 4, 2006, Ms. Primm sent a letter to Mr. Hurst asking him to refund the balance of the $25,000, and provide an accounting for money he retained. Ms. Primm also asked that he forward all records and documents to her. Mr. Hurst received the letter and called to talk about it. He spoke to Ms. Primm’s husband, Allen, who confirmed that it was what his wife and brother-in-law wanted. Several calls were placed thereafter to Mr. Hurst and messages were left for him to call. On December 27, 2006, Ms. Primm wrote Mr. Hurst again, reiterating that she had called numerous times to speak to him and reaffirmed that she was Uncover new and previously unknown facts to aid in your defense case Find unknown witnesses who can help provide new information Find uncovered or undisclosed evidence Locate experts who can assist with technical defenses Critical reviews of law enforcement investigations to uncover their errors Discover professional investigator’s approach to defend your client Creatively develop case details that bring justice for your clients Experienced, clear and standardized (and proven) report formats Interviews • Surveillance • Asset Searches • Fraud Investigations • Criminal & Civil Defense • Plaintiffs Certified Fraud Examiner Experienced Legal Investigator Paralegal AR Lic. A20040061 requesting Williams’ files be sent to her and that he refund the remainder of the fees paid. In a January 2007 hearing in Garland County Circuit Court Gibson and Hurst appeared. Ms. Primm stated that she met with both attorneys after the hearing where she discussed Mr. Hurst’s release from representation. According to Ms. Primm, Mr. Hurst stated that Williams “needed” him. While Mr. Hurst apologized for being uninvolved, unresponsive and unaccessible, Ms. Primm stated that she did not tell him in any way that she would reconsider releasing him from the representation. In April 2007, Ms. Primm wrote Mr. Hurst another letter stating she had asked for a refund on two previous occasions and that he had not returned anything. Mr. Williams confirmed in a letter in April 2007 that he had discussed the situation concerning Mr. Hurst with his sister and they were in agreement. Mr. Hurst responded to the requests with a letter in late April 2007, stating he was surprised to have received the Primm 501-372-2202 1-501-605-0360 (24 hr) www.arkansas-investigations.com letter. Mr. Hurst ended the letter by stating that “If you desire, you can obtain other counsel and I will formally withdraw. I will have to ask the permission of the Court . . .. I think this would be very detrimental to your brother as I could not think of any attorneys that could assist any better than myself, or my firm.” On April 30, 2007, Mr. Hurst responded to Williams’ letter of April 18, stating “[i]f it is your desire for me and my firm to withdraw from representing you we will, of course, be willing to do so. We will apply to the Court to withdraw.” In August 2007, Ms. Primm met with Mr. Hurst in Hot Springs. According to Ms. Primm, she again asked that Mr. Hurst withdraw from the case and refund the unearned portion of the $25,000 she had paid to him, and Hurst agreed to do so. On September 14, 2007, Mr. Hurst filed a Motion to Withdraw. The day before he filed this motion, he filed three other substantive motions in the Williams case. Ms. Primm did not receive a fee refund or any records she TSCHIEMER LEGAL BRIEFING QUALITY, CONSISTENCY AND REASONABLE PRICES: HANDLING ALL YOUR BRIEFING NEEDS ___________ Robert S. Tschiemer, Esq., Ark. Bar 84148 43001 Hwy. 89 N. Mayflower, AR 72106 (501) 951-3303, (fax) (501) 325-1235 email@example.com www.tschiemerlegalbriefing.com Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 45 Lawyer Disciplinary Actions requested from Hurst. Mr. Hurst denied that he violated the rules alleged in the Complaint. He confirmed that he met with Ms. Primm to discuss representation of her brother, David Williams, but stated that he informed her that he set flat fees in criminal cases which must be paid in advance and that his fee was non-negotiable, and that she then paid him. Prior to the start of his public hearing in April 2009, Mr. Hurst proposed a plea to the Panel where Hurst would admit to a violation of Rule 1.16(d), accept a Caution, and pay $25,000 restitution to Ms. Primm. The Panel unanimously accepted the proposed plea. GENE E. McKISSIC, No. 76075, of Pine Bluff, was cautioned for violations of Rules 3.4(c) and 8.4(d) by Consent Order filed May 15, 2009, in CPC 2008-068, where his client Huskey’s civil appeal was dismissed when he failed to timely file an order extending the time to file the appeal record. JOHN W. SETTLE, No. 77123, of Fort Smith, was cautioned by Consent Order filed April 22, 2009, on a Per Curiam Order Complaint in CPC 2009-004, for violation of Rule 1.3. 46 The Arkansas Lawyer www.arkbar.com Mr. Settle represented Mr. Jarrett in a criminal appeal from Sebastian County. The appeal record was untimely tendered to the Supreme Court Clerk, who directed that a motion for rule on the clerk be filed, which Mr. Settle did. The Court granted the Motion, the appeal was lodged, and the Court referred the matter to the Committee on Professional Conduct. JOHN W. SETTLE, No. 77123, of Fort Smith, was cautioned by Committee Consent Order filed April 30, 2009, on a complaint by Cheryl Davis, Lois Niblett and Larry Niblett, in CPC 2008-084, for violating Rule 1.1. After his conviction was affirmed on state appeal, Mr. Niblett filed a pro se Rule 37, which was dismissed by the Arkansas Supreme Court as untimely in June 2007. Niblett then sought to file a federal habeas petition. Pursuant to 28 U.S.C. § 2244, a state prisoner’s petition for federal habeas review is governed by a one-year statute of limitation period that commences on the latest of four triggering dates. The triggering date in this matter was the date on which the judgment became final “by the conclusion of direct review or the expiration of the time for seeking such review.” Although Niblett filed a pro se Rule 37 petition, the Arkansas Supreme Court ultimately determined that the petition was untimely filed; therefore, it was not a properly filed application for State post-conviction review that would toll the one-year limitation to file the habeas petition. Because no tolling period was applicable, the statute of limitation began to run ninety days after the conclusion of the state court proceedings. Here, because the Supreme Court’s final decision was issued on October 12, 2006, the one-year statute of limitations of § 2244(d)(1)(A) started ninety-days later, or on January 12, 2007, for Niblett to file his federal petition. Settle was hired and paid in October 2007. According to the Nibletts, thereafter they never received anything from Mr. Settle except a promise to file the petition. In April 2008, Ms. Niblett terminated Mr. Settle and demanded a refund. Ms. Davis attempted to contact Mr. Settle by phone on May 6, 2008. The call was forwarded to a Fort Smith law firm. Mr. Settle did not return the call. In May 2008, Ms. Davis spoke with Settle and was informed that all of his Niblett papers had been destroyed by a rain storm. Settle refunded Ms. Niblett $1,200. In June 2008, Mr. Settle refunded the remaining $3,800 due Ms. Niblett. n “After stuffing all I can into a UPS Express Envelope, there’s room for one more thing. My discount.” Only Brown,SM lets you stuff to your heart’s content. No matter how many pages you put into a UPS Express Envelope, the price is the same. And Brown gives you the widest range of Express delivery options across the U.S. or to any of over 215 countries and territories served internationally. So go ahead. You can pack a lot into a UPS Express Special UPS Savings for Members of the Arkansas Bar Association Envelope — including your association discount. For details, call 1-800-325-7000. $1.50 off UPS Next Day Air ® letters 10% off UPS Next Day Air packages UPS 2nd Day Air A.M.® letters UPS 2nd Day Air A.M. packages 20% off UPS Worldwide ExpressSM letters or packages (U.S. origin only) © Copyright 2003 United Parcel Service of America, Inc. To take advantage of these valuable discounts, call 1-800-325-7000. WHAT CAN BROWN DO FOR YOU? SM Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 47 Legislation continued from page 18 which abolished the distinction between “published” and “unpublished” opinions of the Court of Appeals. In reaching its conclusion to make the change the Court considered the facts that since its 2007 per curiam the Committee on Civil Practice had reaffirmed its recommendation, the General Assembly had expressed its view on the matter in Act 162 of 2009, the Bar Association had petitioned the court to revisit the issue and the future publication of the official reports of all Arkansas appellate decisions would be in electronic format. Amended Rule 5-2 is prospective and became effective July 1, 2009. (Editor’s Note: See article on page 26 by Brandon Harrison on this subject.) Central Filing System with the Secretary of State for Agricultural Liens and FarmRelated Security Interests (Act 942) Effective January 1, 2010, the general rule becomes that the office of the Secretary of State is the office in which to file a financing statement to perfect a security interest or agricultural lien in equipment used in farming operations, farm products, or accounts arising from the sale of farm products if the debtor is engaged in farming operations and the collateral described in a financing statement is an agricultural lien or a security interest. After January 1, 2010, a filing of a financing statement, a termination statement, or a continuation statement to extend the effectiveness of a financing statement with the circuit clerk of the county where a debtor is engaged in farming operations is ineffective.6 If the collateral is as-extracted collateral or timber to be cut, or if the financing statement is filed as a fixture filing, the office in which to file a financing statement to perfect the security interest or agricultural lien remains the office designated for the filing or recording of a record of a mortgage on the related real property.7 Increased Filing Fees As a result of two pieces of legislation passed during the last session, the filing fee for a Complaint in civil cases was increased by $25.00 – from $140.00 to $165.00. The two pieces of legislation are: Legal Services (Act 475) The Uniform Filing fee for initiating a cause of action in Circuit Court was 48 The Arkansas Lawyer www.arkbar.com increased from one hundred forty dollars to one hundred fifty dollars by Act 475 of 2009. The increased funding will be used to provide access to justice for the poor. Court Technology Improvement Act (Act 325) The Court Technology Improvement Act of 2009 became law on March 9, 2009. The purpose of the Act is to provide funding for the perpetual staffing and operation of a comprehensive automated court management system to be used by all district, circuit and appellate courts. In order that the system is self-supporting and that all funding is generated by and through use of the system, and without any use of the general revenue funds of the State of Arkansas, the Act establishes a “court technology fee” of $15.00. The new technology fee applies to all civil actions and misdemeanors filed in either the Supreme Court or the Court of Appeals; to initiating a cause of action in the civil, domestic relations or probate division of circuit court, including appeals; and to initiating a cause of action in the civil or small claims division of district court. The legislation also increases, decreases or establishes other fees. Fair Debt Collection Act (Act 1455) The Fair Debt Collection Act, which has existed on the Federal level for some time, was enacted on the State level by Act 1455. It can now be enforced by the Arkansas State Board of Collection Agencies. Act 1455 also made significant changes in other aspects in connection with collections. Licensure requirements and limitations on fees for collection services specifically are not applicable to attorneys at law. Signature by Mark (Act 412) The ability of a person who cannot write or who cannot sign his or her name to affix a legally binding signature by using a mark is provided in many specific instances throughout the Arkansas Code – e.g. in connection with instruments under the Uniform Commercial Code, voting, vehicle registration and probate. Act 412 establishes that in addition to these specific instances, a signature by mark on a document is legal for the purposes of executing the document if the signature is made by a person who at the time of signature lacks the ability to write or sign his or her name and it is witnessed by at least one disinterested party. Some other Acts in which many attorneys may be interested are: Act 408 – Conversion of any Form of Business Entity into another Form of Business Entity; Act 747 – Updating Procedures for Acquiring an Access Easement; Act 760 – Creating a Task Force to Study the Funding of the Judicial System and its Related Services and Functions; Act 1182 – Alternative Methods for Providing Testimony Under Subpoena from a State Agency and Method to Challenge a Subpoena; Act 956 – Juvenile Code Amendments. Review the New Laws One of the easiest ways to locate these new Acts for review is on the web by going to www.arkleg.state.ar.us, and typing in the number of the Act in the right margin where indicated. Alternatively, you can select “Search Bills” in the left margin under “Bills and Resolutions” and type in the number of the Act where indicated. Conclusion Your Bar Association works very hard to represent you and your interests with the Arkansas Legislature. Much time, care and effort is expended in putting together the Legislative Package, determining and presenting the Association’s position on legislative issues and disseminating information to members. Any member may participate in this important effort to the extent he or she wishes. There are multiple ways to participate including suggesting legislation, participating on the Jurisprudence and Law Reform Committee, participating on the House of Delegates, participating on the Legislation Committee, participating on the Legislative Task Force, participating on Section Legislative Review Subcommittees, and making a financial contribution to the Political Action Committee. The legislation enacted affects the lives of all of us, both professionally and personally. Endnotes 1. Act 605 and Act 606 are identical lottery bills, one initiated in the Senate and the other initiated in the House of Representatives. 2. This approved constitutional amendment made another change which has been little publicized but which could have a signifi- cant effect on the length of Regular Sessions. The Arkansas Constitution has provided that the Regular Session would be 60 days in duration unless extended by a 2/3rds vote of each house. In the last 20 years the duration of the 10 biennial regular sessions has averaged over 110 days from commencement to sine die adjournment. Under the new amendment, the Regular Session will take a 3/4th vote (rather than a 2/3rds vote) to extend the session more than 75 days. 3. An “appropriation bill” is defined as a bill that authorizes the expenditure of moneys if moneys are available. Any other bill would be a “non-appropriation bill.” 4. In re Arkansas Rules of Civil Procedure; Administrative Orders; Rules of Evidence; and Rules of the Supreme Court and Court of Appeals, 370 Ark. App’x __ (May 25, 2007) (per curiam). 5. In re Arkansas Supreme Court and Court of Appeals Rule 5-2, 09-540 (May 28, 2009) (per curiam). 6. If the collateral is a farm-stored commodity financed by a loan through the Commodity Credit Corporation of the United States Department of Agriculture, until December 31, 2012, a filing of a financing statement, a termination statement, or a continuation statement to extend the effectiveness of a financing statement will be effective. 7. Ark. Code Ann. § 4-9-501. n Complete your Library with Arkansas Bar Association Practice Handbooks ! NEW • Arkansas Bankruptcy Handbook • • Arkansas Domestic Relations Handbook • • Handling Appeals in Arkansas • • Revocable Trusts for the Arkansas Practitioner • • Arkansas Form Book • • Arkansas Probate Handbook • • Standards for Examination of Real Estate Titles in Arkansas Available as a Book or a DVD Order online at www.arkbar.com or call 501-375-4606 49 The Arkansas Lawyer www.arkbar.com Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 49 Lawyer Disciplinary Actions Extra! Extra! continued from page 27 accountability, Judge Arnold’s biographer Professor Polly Price has recently written that Judge Arnold had long thought that the “unpublished” rule was “an abomination.”3 It is therefore no surprise that he would challenge such a rule’s legality given an appropriate opportunity to do so. Judge Arnold’s clarion call in 2000 energized people and institutions to argue that all Arkansas appellate-court opinions should be precedent. For example, Arkansas Senator Robert Thompson has championed the cause. Most recently, the General Assembly passed Act 162 of 2009, which sought to make unpublished opinions available for citation and part of the stare decisis doctrine.4 Exercising its institutional voice, the Arkansas Bar Association has supported a court policy that recognizes the precedential nature of all Arkansas Supreme Court and Arkansas Court of Appeals opinions. In fact, the May 28 per curiam tells us that the Arkansas Bar Association had filed a “petition requesting that [the Court] adopt” a prior recommendation from the Arkansas Supreme Court’s Committee on Civil Practice to “abandon that distinction” between published and unpublished opinions. The recommendation refers to the Civil Practice Committee’s 2007 request that Rule 5-2’s bar on citing or referencing unpublished opinions be lifted. Our Supreme Court declined to adopt the proposal then. But as the Court’s per curiam reports, “[s]ince our decision, the Committee on Civil Practice has reaffirmed its recommendation, the General Assembly has expressed its view on the matter in Act 162 of 2009, and the Bar Association has petitioned this court to revisit the issue.” And so it did. Consequently, Arkansas’s Judiciary now openly proclaims that “[i]nherent in every judicial decision is a declaration and interpretation of a general principle or rule of law,” as Judge Arnold wrote for the Eighth Circuit in Anastasoff.5 This being so, each Arkansas appellate-court opinion announced after July 1, 2009, may be cited and is precedent. Go Forth and Spread the News The changes to Rule 5-2 are as sweeping in breadth as they are welcomed by many. Please familiarize yourself today with the new Rule 5-2 of the Arkansas Supreme Court and Arkansas Court of Appeals. Because of the altered rule there will be no well-worn, leather bound Arkansas Reports or Arkansas Appellate Reports numbered 376/105 and counting . . . . But the regret this may spawn in some attorneys should be assuaged by the laudable fact that, as the Arkansas Supreme Court announced on May 28, 2009, “Arkansas will be the first state in the nation to publish and distribute the official report of its appellate decisions electronically.” Of this we should all be proud. Regarding the Supreme Court’s 6-1 decision to declare in Rule 5-2(c) that appellate opinions issued after July 1, 2009, are precedent and therefore citable, the change will foster an even greater respect for Arkansas’s Judiciary. All of the institutional and individual voices who supported dissolving the ban on citing or referencing unpublished opinions, coupled with the creation of the official electronic-reporter system, have effected a praiseworthy change in Arkansas’s courts—one worth telling others about. Endnotes 1. 223 F.3d 898 (8th Cir. 2000) (Heaney, J., concurring), vacated by 235 F.3d 1054 (8th Cir. 2000) (en banc). 2. 223 F.3d at 901. 3. Polly J. Price, Judge Richard S. Arnold: A Legacy of Justice on the Federal Bench 356 (Prometheus Books 2009) (quoting a personal letter written by Judge Arnold and sent to Judge Robert W. Pratt, in 1992). 4. In amending Rule 5-2, the Arkansas Supreme Court deemed Act 162 of 2009 superseded. 5. 223 F.3d at 899 (internal citation omitted). n Coming Soon to a computer near you a NEW member friendly www.arkbar.com for YOU Any suggestions? Please email firstname.lastname@example.org 50 The Arkansas Lawyer www.arkbar.com Vol. Vol.4442No. No.3/Summer 3/Summer2009 2007 The TheArkansas ArkansasLawyer Lawyer 51 29 Email continued from page 31 for metadata and whether she must notify the sender of inadvertently disclosed metadata. To avoid problems with metadata, consider converting a document or file to PDF format to eliminate much of the metadata, or try a metadata removal tool, such as the Metadata Assistant from www.payneconsulting.com, iScrub http://www.esqinc.com/ or Workshare Protect (http://www.workshare.com/products/ wsprotect/. For more on metadata see: http:// www.abanet.org/tech/ltrc/fyidocs/metadatachart.html. Security Concerns Spoofing, phishing, spear phishing and whaling are cause for concern because they can all potentially lead to harmful malware, keystoke loggers or viruses that expose your client’s confidential information. Spear phishing and whaling are phishing schemes in which identity thieves carefully target and research their victims, making e-mails appear to originate from a trustworthy source within an organization such as a coworker or the organization’s HR department. Examples include emails sent to executives purporting to be from the Better Business Bureau, or a question about an invoice, or a recruitment company. For a busy executive (or lawyer) who forwards the email on to the accountant or assistant to provide a response with the requested information this could be a surprisingly effective means of attack. Recently lawyers have been targeted by scammers perpetrating fraud. Some of these email purport to be from overseas companies seeking help with debt collection. Others appear to be from other lawyers who are passing along client work because they can’t take it. Be very wary of emails offering easy, lucrative legal work from strangers. While that may seem obvious, some lawyers are unfortunately taking the bait. Anti-virus protection is essential for every computer in a law firm or lawyer’s home office. The first line of defense is to have an Internet usage policy for the office or firm. Require all lawyers and staff to only open email attachments from reputable sources. Do not allow non-work related attachments to be opened. Conclusion As a tool, email is both a boon and a curse in the lawyer’s technology arsenal. Take the time to be thoughtful, be wary, and take the same care as you would with any written communication – print or electronic. Stay abreast of security options that make email more of a productivity tool than a liability. Keep up with ethics opinions and enjoy email responsibly! n Need labels? Your Association maintains the largest and most accurate database of Arkansas attorneys. To purchase mailing labels at a reduced rate to members, contact Barbara Tarkington at email@example.com or 501-375-4606. Landex Research Inc. PROBATE RESEARCH Missing and Unknown Heirs Located with No Expense to the Estate Domestic and International Service for: Courts Lawyers Trust Officers Administrators/Executors 1345 Wiley Road, Suite 121, Schaumburg, IL 60173 Telephone: 800-844-6778 Fax: 800-946-6990 www.landexresearch.com 52 The Arkansas Lawyer www.arkbar.com In Memoriam Photo courtesy of Gary’s Studio Judge Andree Layton Roaf Judge Andree Layton Roaf of Pine Bluff died July 1, 2009, at the age of 68. Judge Roaf was the first black woman to serve on the Arkansas Supreme Court. Then-Governor Jim Guy Tucker appointed her to the Arkansas Supreme Court in January 1995. A year later, she was appointed to the Arkansas Court of Appeals, where she served until 2006. On May 30, 2007, Roaf undertook a new role when she was appointed as the director of the Federal Office of Desegregation Monitoring to oversee the desegregation cases in Pulaski County. She was inducted into the Arkansas Black Hall of Fame. The following biography was provided by the Arkansas Black Hall of Fame’s website: “Having first distinguished herself as a respected biologist, Andree Layton Roaf of Pine Bluff has truly proven her mettle with a trailblazing law career which culminated in her being the second woman and the first African-American woman to sit on the Arkansas Supreme Court. A 1958 graduate of Muskegon Heights High School in Muskegon Heights, Michigan, she graduated from Michigan State University at East Lansing, MI, in 1962. She then went to serve in a variety of biology-related positions, including bacteriologist at the Michigan State Department of Health in Lansing, and a biologist at the National Center for Toxicological Research in Jefferson. She also served as a staff assistant for the Pine Bluff Urban Renewal Agency in Pine Bluff. In 1978, Roaf earned a juris doctorate degree from the University of Arkansas at Little Rock School of Law, where she served as Associate and Articles Editor for the UALR Law Journal. She was admitted to the bar in August 1978. From 1978 to 1979 she was an instructor at the UALR School of Law. From 1979 to 1995, Roaf was a partner in the Walker, Roaf, Campbell, Ivory and Dunklin law firm, formerly Woodson Walker Associates. Her area of service was general practice with emphasis on bankruptcy, real estate, probate, wills and estates and domestic relations. In January 1995, she was named associate justice to the Arkansas Supreme Court.” Judge Roaf was a Sustaining Member of the Arkansas Bar Association. She served on numerous Association committees, including the Arkansas Bar Commission on Diversity, Joint Planning Group for the Future Bar Center, Judicial Article Implementation Task Force and Continuing Legal Education Committee. The Association honored Judge Roaf with a Special President’s Award in 2001. She was honored with the Gayle Pettus Pontz Award in 1996 by the Student Bar Association of the Law School. She was a member of the Pulaski County, Jefferson County, and American Bar Associations; the W. Harold Flowers Law Society and the Debtor-Creditor Bar of Central Arkansas. She is the recipient of an honorary doctor of laws degree from Michigan State University and a 1996 Distinguished Alumni from Michigan State. She is survived by her husband of 46 years, Dr. Clifton G. Roaf; her mother, Phoebe Layton; one sister, May Layton; two daughters, Phoebe Roaf and Mary Roaf; and two sons, William Roaf and Andrew Roaf. Little Rock, but for the past two years he lived in a small caretaker’s cabin on Petit Jean Mountain, according to an obituary in the Arkansas Democrat Gazette. He joined the Air Force at the age of 17. He graduated from Arkansas Polytechnic College and earned a juris doctorate from the University of Arkansas School of Law, where he was on the Law Review. He served as chairman of the Arkansas Transportation Commission. He practiced transportation and oil and gas law with several Little Rock lawyers, including Melva Harmon whom he later married. He is survived by his wife Melva Harmon; his mother Sylvia Jewel King; and two sons, Dr. Stephen Brewer and Barry Scott Brewer. He was a member of the Arkansas Bar Association. Thomas Saxon Arnold Thomas Saxon Arnold of Texarkana, Arkansas, died May 30, 2009, at the age of 80. He graduated from the Gulf Coast Military Academy in Gulfort, Mississippi, in 1945. He earned his undergraduate degree from Rice University in 1949 and a juris doctorate from the University of Texas Law School in 1952. He was a partner with the Arnold & Arnold Law Firm in Texarkana specializing in real estate transactions. He was a member of the Arkansas Bar Association where he served on the Business Law, Probate & Trust Law and Real Estate Law Sections. He was a member of the Texas and Colorado Bar Associations Ralph Custer Murray and Past President of the Texarkana Bar Ralph Custer Murray of West Helena Association. Mr. Arnold was a U.S. Army died March 23, 2009, at the age of 81. He Reserve veteran, first as a noncommissioned earned a juris doctorate from the University Sergeant and later as a First Lieutenant in of Arkansas School of Law in 1954. He served the field of intelligence. He is survived by his as the city attorney for West Helena for over wife, Dolores Clark Arnold; daughters, Linda 20 years. He was a Sustaining Member of the Parrish and Katherine Johnson; sons, Stephen Arkansas Bar Association. He was a mem- T. Arnold, Clarke D. Arnold and William H. ber of the Phillips County Bar Association, Arnold IV; and three step-daughters and one American Bar Association and the Arkansas step-son. Trial Lawyers Association. He has served as a Phillip D. Hout Special Chief Justice of the Arkansas Supreme Phillip D. Hout of Newport died June Court. His son Todd joined him in practice in 2, 2009, at the age of 70. He earned a juris 1991 and they formed the Murray Law Firm. doctorate from the University of Arkansas. He is survived by his wife, Brenda Murray; He was a partner in the law firm of Hout, sons, Mike Murray, Steve Murray and Todd Thaxton, and Hout, where he practiced for Murray; and daughter, Jeanne Warren. 44 years until his retirement in 2007. After his retirement, he served as in-house counsel Garry Brewer for Holden Conner Realty Company until his Garry Brewer of Little Rock died April 7, death. He was a member of the Arkansas Bar 2009, at the age of 67. He was an admin- Association and a Fellow of the Arkansas Bar istrative law judge for the Social Security Foundation. He is survived by his wife, Ann Administration from 1988 until the time Hout; son, Phillip D. Hout, Jr. and daughof his death. He had lived and practiced in ters, Kimberly Ellis and Pamela Wallace. Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 53 In Memoriam Judge Jim Hudson Judge Jim Hudson of Texarkana, Arkansas died May 3, 2009, at the age of 54. He earned an undergraduate degree from Hendrix College in 1976 and a juris doctorate from Southern Methodist University Law School. He served as a circuit judge for the 8th Judicial District South for eight years. He was a member of the Arkansas Bar Association where he served on numerous committees and sections, including the Legal Aid, Indigent Representation, and Juvenile Justice Committees. He is survived by his wife, Kathy Hudson; daughters, Sarah Hudson and Clair Hudson; and his stepmother, Jane Hudson. Judge Tom Foster Digby Judge Tom Foster Digby of Sherwood died May 4, 2009, at the age of 91. He earned an undergraduate degree from Oauchita Baptist University in 1938 and a juris doctorate from the University of Arkansas School of Law in 1941. He served as circuit judge of Pulaski and Perry counties from 1966 until his retirement in 1990 when he became active with NASD arbitration. He was a North Little Rock attorney for 26 years. He served as deputy prosecuting attorney from 1947-1960. He served as president of the Arkansas Judicial Council in 1978-1979. He is survived by his wife, Jane Hadfield Digby; and children, Linda McFarland, Tom Digby III, and Bob Digby. n Memorial Gifts Please remember the Arkansas Bar Foundation when you choose to make a memorial gift honoring a family member, a colleague or a friend of the profession. Acknowledgements are sent by the Foundation to the family advising them of the contribution. The Foundation also receives and acknowledges gifts honoring individuals for a special event in their lives. Gifts to the Foundation are tax deductible for federal income tax purposes and support the Foundationâ€™s work in making scholarship funds available for law students, aiding in education of the public about legal matters, supporting projects that assist in improving and facilitating the administration of justice and funding other law-related charitable efforts. Contributions may be sent directly to the Arkansas Bar Foundation. The staff appreciates having the name of the family member to whom acknowledgments should be sent. Please feel free to call the Arkansas Bar Foundation at 501.375.4606 or 800.609.5668 for further information. Arkansas VersusLaw Search Arkansas and national legal materials Developed specifically for members Searchable Weekly Case Summaries Free technical support and training Go to www.arkbar.com Click on Arkansas VersusLaw and login Select a library and begin searching Your free online legal research tool at www.arkbar.com 54 The Arkansas Lawyer www.arkbar.com Arkansas Bar Foundation Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period April 1, 2009 through June 30, 2009: In Memory of Tom Arnold Cathi Compton and Judge William R. Wilson, Jr. In Memory of Leroy Autrey Missy and Phil Anderson In Memory of Robert S. Blatt B. Jeffrey Pence In Memory of Judge Garry Brewer Phillip B. Farris B. Jeffery Pence Mike Wilson In Memory of Judge Thomas Digby Fred S. Ursery Mike Wilson In Memory of Darrell D. Dover Betsy and Cyril Hollingsworth William A. Martin James A. Ross, Jr. In Memory of Judith Ryan Gray Designated to the Judith Ryan Gray Annual Meeting Endowment The Boswell Law Firm James A. Buttry Diane and Phil Carroll Michelle H. Cauley Cathleen Compton Margaret V. Compton Cullen & Co., PLLC James Cypert Thomas A. Daily John A. Davis, III, P.A. Jack C. Deacon W. Dent Gitchel Gill Elrod Ragon Owen & Sherman, P.A. Martha Miller Harriman Mark W. Hodge Betsy and Cyril Hollingsworth Robert L. Jones, III Jim and Patti Julian Mary Lou and William Martin Matthews, Campbell, Rhoads, McClure, Thompson & Fryauf, P.A. Jeffrey and Lester McKinley Jack A. McNulty Judith Ryan Gray Annual Meeting Endowment Continued Rosalind and Kirby Mouser Judge J. Thomas Ray Charles B. Roscopf Brian Rosenthal Jane and Dennis Shackleford Jim Shaver Family Trust David Solomon James D. Sprott Judge John F. Stroud, Jr. Fred S. Ursery Judy and Glenn Vasser Carolyn Witherspoon Wood, Smith, Schnipper, Clay & Vines In Memory of Phillip D. Hout, Sr. Cathi Compton and Judge William R. Wilson, Jr. In Memory of Judge Jim Hudson Fred S. Ursery Judge Robert C. Vittitow In Memory of Ralph C. Murray Judge John M. Pittman William A. Waddell, Jr. Judge William R. Wilson, Jr. In Memory of Mary Anne Roscopf Rosalind M. Mouser In Memory of Kent J. Rubens David Solomon Fred S. Ursery In Memory of Tommy Tiner Cathi Compton and Judge William R. Wilson, Jr. In Memory of Kern Treat Mike Wilson In Memory of Joan Woodman Barbara Tarkington In Memory of Robert R. Wright Edward Oglesby Honorarium, Scholarship and Other Contributions Wilson & Associates, P.L.L.C. Vol. 44 No. 3/Summer 2009 The Arkansas Lawyer 55 Classified Advertising Index to Advertisers MEDICAL MALPRACTICE. Fast, easy, flat-rate referrals to thousands of doctor-experts, all board certified, all in active practice. Your satisfaction GUARANTEED or your money back! Also, case reviews and opinion letters by veteran MD specialists for a low flat fee. 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