The Arkansas
Lawyer A publication of the
Arkansas Bar Association
Vol. 43, No.1, Winter 2008 online at www.arkbar.com
Inside:
Law Day: Fifty Years of Celebrating the Rule of Law New Laws of Interest from the 86th General Assembly Impact of the Arkansas Trust Code on Revocable Trust Settlements An Electronic Law Office - Taking a Paper Practice into the Digital Age
Publisher Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 Homepage: www.arkbar.com E-Mail: ahubbard@arkbar.com editor Anna Hubbard executive director Karen K. Hutchins Associate executive director Tasha R. Henderson Editorial Board Philip E. Kaplan, Chair Judge Wiley A. Branton, Jr. Michelle H. Cauley Milton Fine, II William D. Haught Jim L. Julian Mary Beth Matthews Gordon S. Rather, Jr. Christopher Travis David H. Williams Teresa M. Wineland OFFICERS President Richard L. Ramsay Board of Governors Chair David B. Vandergriff President-Elect Rosalind M. Mouser Immediate Past President James D. Sprott Secretary-Treasurer William A. Martin Parliamentarian J. Leon Johnson Young Lawyers Section Chair Amy Freedman BOARD OF GOVERNORS Thomas M. Carpenter Niki T. Cung Richard C. Downing Causley Edwards Robert R. Estes, Jr. David M. Fuqua Charles L. Harwell Anthony A. Hilliard Colette D. Honorable Jim L. Julian Sean T. Keith Roy Beth Kelley Harry A. Light Chalk S. Mitchell Danny M. Rasmussen Charles D. Roscopf Todd M. Turner John T. Vines Eddie H. Walker Tom D. Womack Dennis Zolper
LIAISON MEMBERS Zane A. Chrisman Steven W. Quattlebaum Jack A. McNulty Karen K. Hutchins Judge John Dan Kemp Carolyn B. Witherspoon Donna C. Pettus Judge Michael Robinson
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, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2008, Arkansas Bar Association. All rights reserved.
The Arkansas
Lawyer Vol. 43, No. 1
features
10 New Laws of Interest from the 86th General Assembly John A. (Jack) Davis and Jack A. McNulty
14 Impact of the Arkansas Trust Code on Revocable Trust Settlements William D. Haught
20 An Electronic Law Office - Taking a Paper Practice into the Digital Age Nathan Price Chaney
18 Practice Tips Drafting Shareholder Agreements Robert T. Smith 24 Arkansas Supreme Court Historical Society: More on Three Men Named Holt Jacqueline S. Wright Walker 26 Books: More Arkansas Lawyer - Authors Vic Fleming
Contents Continued on Page 2
The Arkansas
Lawyer Vol. 43, No. 1
in this issue CLE Calendar
25
2007 Volunteer CLE Program Planners and Speakers
27
2007-08 Association Board of Governors
28
Judicial Advisory Opinions
30
Lawyer Disciplinary Actions
31
Law Day: Fifty Years of Celebrating the Rule of Law
42
In Memoriam
46
Arkansas Bar Foundation Memorials and Honoraria
47
Classified Advertising
48
columns President’s Report
Young Lawyers Section Report Amy Freedman
Arkansas Bar Association
2224 Cottondale Lane Little Rock, Arkansas 72202
HOUSE OF DELEGATES Delegate District 1-SE: Robert F. Thompson, III Delegate District 2-SE: Jerrie Grady Delegate District 3-SE: Barbara A. Halsey, Mark Mayfield, Brant Perkins Delegate District 4-SE: Kathie A. Kimbrell Delegate District 5-SE: A. Jan Thomas Delegate District 6-SE: Marshall Wright Delegate District 7-SE: Buck Gibson Delegate District 8-SE: Tim A. Blair Delegate District 9-SE: Brian Miller Delegate District 10-SE: Anthony A. Hilliard, Brandon Robinson Delegate District 11-SE: Phillip C. Green Delegate District 12-SE: Timothy Leonard Delegate District 13-SE: Matthew Shepherd, James McMenis Delegate District 14-SE: Matthew Kimmel, Amy Freedman Delegate District 15-SE: Bryan T. McKinney, Tom Curry Delegate District 16-SE: Jonathan D. Jones, Jacob Hargraves Delegate District 17-SE: Sam Gibson Delegate District 1-NW: Lisa L. Kelley, Jason B. Kelley, Stephen Geigle, Vicki Vasser Delegate District 2-NW: Brock Showalter, Buddy Chadick, David J. Whitaker, Charles Harwell, Tim Tarvin, Jason B. Duffy, Debby Thetford Nye, Paul D. Reynolds, W. Marshall Prettyman, Bob Estes Delegate District 3-NW: Stephen Smith, James O. Cox, Amy Click-Horoda, Kimberly Frazier, Rita Howard, Farrah Fielder Delegate District 4-NW: Patrick McDaniel Delegate District 5-NW: Steve B. Davis Delegate District 6-NW: Roy Beth Kelley, John C. Riedel Delegate District 7-NW: Stephan Hawks, Charles E. Clawson, III Delegate District 8-NW: Jerry Patterson Delegate District 1-C: Valerie Kelly, Gregory L. Crow, Gwendolyn L. Rucker, Randy Bueter, Mitch Berry, Steve Bingham, Lacy Kennedy, C. Tad Bohannon, Jerry Larkowski, Brian Vandiver, Mark McCarty, Jay Taylor, Judge Beth Deere, Leon Johnson, Rebecca Denison, Michelle Cauley, David Glover, Jay Shue, Elizabeth Smith, Brad L. Hendricks, Joel M. DiPippa, Khayyam Eddings, Christian Harris, Ka Tina Hodge, Jeff Wood, Gill A. Rogers, Mark Hodge, Brett Watson, Patrick Spivey, Danyelle Walker Law Student Representatives: Lacey Larue, University of Arkansas School of Law; Allison Rantisi, UALR William H. Bowen School of Law
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President’s Report
by Richard L. Ramsay
River Karma River karma is the belief that you do not want to tempt the river gods as ill fortune will quickly follow. Whitewater paddlers are uniformly careful about what they say on trips because they don’t want to fall victim to bad “river karma.” Yet we know that there are going to be times on a journey when bad things happen no matter what. Today, I am experiencing bad river karma – something sad has occurred. One of the most pleasant things about being Bar President is going to local and county bar associations to give reports or “state of the bar” speeches. In those speeches I usually get on my soapbox a little in an attempt to remind our colleagues about how fortunate we are to be part of the most honorable profession in civilized societies. I also preach to our membership the fact that attorneys are, as a rule, good citizens and good people. We recently lost one of those good people – one of those honorable friends. I write this article on a beautiful Christmas Eve afternoon. This is a time when one should be celebrating the holidays with family and friends – a time of spiritual and seasonal happiness. This day took a detour from the norm as I have just returned from the funeral of Sam Heuer, a Batesville born, Little Rock lawyer. Sam died way too young. The chapel was overflowing; even the standing room was crowded. Our profession was well represented: state judges, federal judges, prominent attorneys and friends of a fallen comrade were there to honor him.
Arkansas lawyers are leaders in almost all community, church and charitable organizations. We should always remember that. We should always be proud of that. We should always defend our chosen profession when it comes under attack. I sat with Phil Kaplan, one of ten people on a pew built for eight. Phil was quick to assure me that Jewish funerals are mercifully short. Sam would have enjoyed that comment. Little Rock lawyer Jack Lassiter delivered a eulogy for his friend. He spoke of hunting trips and how one of the most pleasurable parts of the outing was the car trip to and from the hunt. Often the conversation between the two friends was the highlight. Sam Heuer and I were friends as well. Not social friends, but “elevator” and professional friends. We often referred cases to each other. Jack spoke not only of Sam the friend but of Sam the lawyer. He spoke knowingly of Sam’s passion for his cases, his clients, for life and the practice of law. The rabbi spoke of Sam’s magnetism for weird
cases – “the weirder the better as far as Sam was concerned.” He would immerse himself in such projects. The service caused me to reflect and focus on what I have been trying to convey to members of the Bar across the state…that ours is a noble profession. Arkansas lawyers are leaders in almost all community, church and charitable organizations. We should always remember that. We should always be proud of that. We should always defend our chosen profession when it comes under attack. In those same speeches, I often refer to a quote taken from a speech given by a successful University of Virginia Law School alumnus in a commencement speech at his alma mater. In defining the role of the American lawyer he said we are: “the advocates for any just cause, no matter how unpopular.” Sam Heuer was such a person and his approach to the practice of law was an example of what is good about our business. On a beautiful Christmas Eve, I was able to be part of the celebration of the life of a fellow attorney and friend. It inspired me to redouble my efforts to promote our industry whenever I am given the opportunity to do so. I encourage each of you to do the same. The loss of a good man and a good lawyer darkened this day. However, his example and the celebration of his life made it brighter for those of us who continue on the journey. ■
Vol. 43 No. 1/Winter 2008 The Arkansas Lawyer
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Young Lawyers Section Report
by Amy Freedman
Arkansas YLS-Committed to Diversity
Sitting in the frigid January wind at the Cotton Bowl in Dallas, I was surrounded by the diversity of the Razorback fan base. I saw fellow lawyers from Texarkana, old college friends, random church friends and new folks we did not know. I-30 was ablaze with Razorback stickers, flags and banners. The fan base is diversified with former students, teachers, high school students, retired veterans and even sometimes newcomers to Arkansas who did not even attend the University. While we may come from different walks of life, we are all united behind our love and support of the team. In the same way, the Arkansas YLS is committed this year to reaching out to young people from different backgrounds and those from disadvantaged backgrounds who would not otherwise consider law as a profession. In this way, we will strengthen the rule of law by making it a profession for all. Likewise, the YLS is also equally committed to reaching out to the four corners of Arkansas and bringing young lawyers into our circles who have not participated in our group projects and activities before, thus making us more geographically diverse. We are especially dedicated to expanding our group in northwest Arkansas, as well as the northeast corner of the state and the southern region. It is with great pride that I unveil to you the details of our signature, 2008 YLS project, Choose Law. In April 2008, the Arkansas Young Lawyers Section will partner with the Harold F. Flowers Law
Society and the University of Arkansas at Pine Bluff. Our project seeks to encourage Jefferson County students to consider higher education and specifically choosing law school as an option. By hosting the Choose Law program at UAPB, Jefferson County high school students can begin to think seriously about attending college, as well as graduate school. During the program students will visit the UAPB campus and hear speakers on ACT/SAT and college preparation, degrees offered at UAPB, and admissions and financial aid. A program on law school admission and the legal field will also be offered, including an opportunity for students to meet and greet members of the legal profession. Also this spring, we will have our first regional meeting of the Arkansas YLS Executive Council in Fayetteville. We are planning to have a reception or cookout for third year law students so that we can get to know these new young lawyers and track them into our program. It is important to us to grow our ranks and expand by reaching out to young lawyers in the northwest corner of our state. If you are a northwest Arkansas young lawyer or third year law student at Fayetteville, I welcome you into the fold. Please let me know of your interest by e-mailing me at amyfreedman@cableone.net. We are excited to get you involved. Finally, I want to take this opportunity to share with you the accomplishments of two of our YLS Executive Council members.
For the first time, we have awarded the distinction of “Star of the Quarter” to two outstanding individuals: Brendan Monaghan and Will Crowder. Both gentlemen are brand new to the YLS Executive Council and have already, in a very short time, shown fine leadership ability. Brendan, originally from California, is a most unique individual aside from his strong legal skills. For starters, he has floated rivers in Africa, which earns my respect! Will follows a strong family tradition in the law. His grandfather, the late Thomas Gaughan, practiced law with Senator John L. McClellan in the firm of Gaughan, McClellan & Gaughan. Both Brendan and Will showed tremendous tenacity and leadership this fall by cochairing the YLS Host Committee for the Southern Conference of Bar Presidents in Little Rock. It was no small task to recruit and schedule some thirty (30) young lawyers to assist in this project. Both gentlemen rose to the occasion, and I assure you that they are rising stars in our YLS ranks. In short—job well done. As I write this column, it is early January, and I look forward to the Mid-Year meeting in Memphis, TN, at the Peabody Hotel. While the Peabody alone is reason enough to come, the fellowship, insightful CLE and great BBQ at the Rendezvous make the meeting a highlight of the Bar year. I sincerely hope you can make it to Memphis. We’ll save you some dessert on the mezzanine! ■
Vol. 43 No. 1/Winter 2008 The Arkansas Lawyer
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New Laws of Interest from the 86th General Assembly By John A. (Jack) Davis and Jack A. McNulty
T
he regular session of the 86th General Assembly began on January 8, 2007, and adjourned sine die on May 1, 2007. It was one of the shortest and most productive regular legislative sessions in recent memory. There were 3,817 bills introduced and 1,755 of them (46%) became law. The purpose of this article is to summarize some of the legislation enacted during the session with an emphasis on those in which attorneys will be most interested. In large measure, as a result of the state running well publicized surpluses and because of the attention being focused on high fuel costs, some of the most visible legislation related to tax reductions and alternative fuels. The most publicized legislation is the cut in the sales tax on food. Act 110 reduced the tax on food and food ingredients from six percent (6%) to two and seven-eights percent (2.875%) effective July 1, 2007. Although not as publicized, some manufacturers also received a sales tax reduction when Act 185 reduced the sales tax rate for the sale of natural gas and electricity to a manufacturer for use directly in the actual manufacturing process from 6% to 4.375% beginning July 1, 2007, and to 3.875% on July 1, 2008. This session took some important steps toward development of a friendly atmosphere toward realization of the practical use of alternative fuels in the state. For example, Act 873 created the Arkansas Alternative Fuels Development Program to provide grant incentives for alternative fuel producers and distributors and feedstock processors. Alternative fuels research and development received significant funding through appropriations to the University of Arkansas and Arkansas State University. Act 699 established a biofuel standard for state vehicles and state equipment beginning January 1, 2009. A pilot program was established to develop an energy utilization strategy for lignite production and use to reduce our dependency on foreign oil for the creation of electricity and other energy sources by Act 641. 10
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I. The Legislative Package The Arkansas Bar Association presented an ambitious legislative package of ten bills. A. Jury Improvement The first area addressed by the Associations’s legislative package focused on improving the circumstances under which citizens are called to serve on juries. This proposed legislation was the result of the work of a Jury Reform Task Force which made recommendations after extensive study. The goal of the Task Force was to make jury service less burdensome and invasive. For Arkansas lawyers who litigate, hopefully, they will face jurors with less objections for being called to service. The Task Force was composed of representatives from all of the interests which are involved in the judicial process of which jury service is a part. The House of Delegates of the Association selected five of the legislative recommendations of the Task Force to become part of the Association’s legislative package. A sixth bill involving jury improvement was necessary in order to provide state funding for increased juror compensation. 1. Reduction in Service Act 255 (Ark. Code Ann. § 16-31-104) reduces the period of time a prospective juror must be available for jury duty from six months to four months. It also reduces the maximum time a juror is required to report during the time he or she is a prospective juror from twentyfour days per year to ten days per year. These reductions became effective January 1, 2008.
2. Privacy and Confidentiality of Information One of the facts discovered by the Task Force during its study was that many jurors are uncomfortable with public disclosure of personal information, especially personal information disclosed by them in questionnaires they are required to complete as a prerequisite to jury service. Act 226 (Ark. Code Ann. § 16-32-111) establishes a mechanism by which a juror who can establish good cause can request that personal information not be disclosed except to those involved in the trial. The Task Force’s bill as introduced was altered significantly as the result of objections from the Arkansas Press Association. They apparently considered the proposal an encroachment upon John A. (Jack) Davis, III is chair of the Bar Association Legislation Committee. the Arkansas Freedom of Information Act and vigorously opposed His practice is primarily mediation and making the information confidential. They expressed the view that arbitration with ADR, Inc., Little Rock. there is a greater interest in the public having access to the personal information which the jurors have exposed in their questionnaires than the interest of the jurors in maintaining the confidentiality of personal data about themselves. After intense debate and recognizing the political realities involved, a compromise was reached which allows prospective Jack A. McNulty is the lobbyist for jurors to apply to the court and, for good cause shown, juror infor the Arkansas Bar Association. mation can be kept confidential. Vol. 43 No. 1/Winter 2008 The Arkansas Lawyer
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3. Bailiff’s Oaths Prior to the enactment of Act 227 (Ark Code Ann. § 16-24-101), Bailiffs were not required to take an oath in connection with a jury trial. Under this Act, the Bailiff must take a general oath at the beginning of a jury trial and a more specific oath involving communications with the jury prior to a jury retiring to deliberate. 4. Jury Compensation The compensation for actually serving on a jury was increased from $35.00 per day to $50.00 per day effective January 1, 2008, by a portion of Act 1033 (Ark. Code Ann. § 16-34-103(b)). Arkansas now has one of the highest rates of compensation for jury service in the United States. 5. State Funding of Jury Compensation A portion of Act 1033 (Ark. Code Ann. § 16-34-106) establishes a basis and mechanism for counties to be reimbursed by the State for a portion of the expense incurred for paying jury compensation. Act 1264 appropriated $500,000.00 for each year of the biennium to be used to reimburse counties for some of their jury compensation expenses. Counties can apply to the Administrative Office of the Courts for reimbursement. While totally reliable data on the amount of jury compensation is not yet available, it is contemplated that Act 1264 will result in state reimbursement to counties for a substantial portion of the expenses for which the counties have not previously been reimbursed any amount. More reliable information will become available through this process in order that future decisions can be based on even better information. 6. Enhanced Jury List Until 2003, only voter registration lists could be used in Arkansas to establish the pool of prospective petit jurors which is ultimately narrowed to 12 for a jury trial. Act 1404 of 2003 (Ark. Code Ann §§ 16-32-301 et seq.) allowed discretionary use of an enhanced jury pool list by including the list of licensed drivers. At the time the legislature convened in January 2007, sixteen counties were using the enhanced jury pool list. Senate Bill 241 proposed using the enhanced jury pool list for all jury trials in the state. It was amended to exclude counties which have dual county seats. Although the bill passed the Senate Judiciary Committee, the full Senate and the House Judiciary Committee, it failed on the House floor. Three of the bills in the Association’s legislative package 12
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B. Uniform Laws were derived from the work of the National Conference of Commissioners on Uniform State Laws. 1. Limited Partnership Act 15 (Ark. Code Ann. §§ 4-47-101 et seq.) adopted the Uniform Limited Partnership Act (2001) which updates and clarifies limited partnership law in Arkansas. Practitioners should be aware that this new Act now covers the formation and administration of limited partnerships in Arkansas. It should be reviewed thoroughly. 2. Estate Tax Apportionment Act 276 (Ark. Code Ann. §§ 28-54-101 et seq.) adopted the Uniform Estate Tax Apportionment Act which contains default provisions which apply when the decedent does not specify how his or her estate tax is to be paid. It updates Arkansas law to give guidance in connection with various modern estate planning tools which did not exist when previous law was enacted in 1941 and, in some instances, when last amended in 1995. It also provides a mechanism through which all property which is part of the taxable estate will pay a fair share of the estate taxes, whether or not it is part of the estate for probate purposes. This Act became effective January 1, 2008. The enactment of this Act can have a significant unintended effect on the net proceeds received by some beneficiaries unless wills and trusts are drafted with the provisions in mind. For example, the proceeds of joint bank accounts have not been burdened with payment of estate taxes because they pass outside of the probate estate. In the absence of contrary dispository provisions by the decedent, this Act gives beneficiaries of the probate estate who have paid more than their pro-rata share of estate taxes the ability to collect the excess from proceeds which passed outside the probate estate, such as from joint bank accounts.
3. Amendments to Article 7 of the Uniform Commercial Code Act 342 (Ark. Code Ann. §§ 4-7-101 et seq.) adopted Revised Article 7 of the Uniform Commercial Code which contains provisions establishing a framework for the usage of electronic documents of title such as Warehouse Receipts and Bills of Lading, updating terminology and clarifying existing rules of law. The basic principles dealing with warehouse receipts and bills of lading are essentially unchanged by the revisions. The largest change by far is providing the foundation for electronic documents of title.
C. Criminal Sentencing The final bill in the Association’s legislative package addressed Code provisions relating to criminal sentencing. Act 744 (See Ark. Code Ann. §§ 5-4-105, 16-93303, 16-93-1202 and 16-93-1207) clarifies the applicability of various sections to the Code regarding expungement and sealing of records of criminal conviction. It amends the Code to authorize a court to fine a defendant up to $3,500 without causing a conviction under some circumstances. It extends the expungement provisions by including misdemeanors in the eligible group but not the offense of driving while intoxicated or sex offenses.
II. Other Legislation of Interest
A. District Court Pilot Program Act 663 is a far reaching piece of legislation which creates a pilot program of twelve full-time district court judges who are employees of the State (See Ark. Code Ann. § 16-17-1103) and creates the District Court Resource Assessment Board (See Ark. Code Ann. § 16-171002). It also consolidates city courts with district courts (See Ark. Code Ann. §§ 16-17-1105 and -1202). Whereas in the past there have been no fees involved in a statutory foreclosure procedure, this Act partially finances the new court arrangement by creating a new filing fee of $140.00 for filing a mortgagee’s or trustee’s notice of default and intention to sell pursuant to § 18-50-104 (statutory foreclosure) (See Ark. Code Ann. § 21-6-403(b)(2)). This pilot program is the first step toward establishing district courts with expanded and county wide (except the most populated areas) jurisdiction. It will also transfer payment for an important Legislation continued on page 41
LEGISLATIVE TIMETABLE FOR THE 2009 LEGISLATIVE SESSION.
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. In order 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 2009 session of the Arkansas General Assembly those deadlines are as follows: January 30, 2008 Initial deadline for submission of legislation to the Jurisprudence & Law Reform Committee. April 2008 Board of Governors considers the report of the Jurisprudence & Law Reform Committee and makes recommendation to the House of Delegates. June 2008 House of Delegates acts upon recommendation. Up to ten bills selected for Association sponsorship. June - September 2008 Jurisprudence & Law Reform Committee and Legislation Committee modify package in accordance with directions from House of Delegates. If you are a Section Chairman 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.rt Vol. 43 No. 1/Winter 2008 The Arkansas Lawyer
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Impact of the Arkansas Trust Code on Revocable Trust Settlements By William D. Haught
Introduction The Arkansas Trust Code (ATC) was enacted by the Arkansas General Assembly in 2005 (Act 1031), with an effective date of September 1, 2005 (Ark. Code Ann. §§ 28-73-101–1106). The ATC contains a comprehensive set of rules to govern not only the way we draft trusts but also how they are administered and distributed. The ATC is based on the Uniform Trust Code, promulgated by the National Conference of Commissioners on Uniform State Laws. This article briefly examines how the ATC affects the way in which revocable trusts are handled at death and compares that procedure with the judicial administration of a decedent’s estate passing by will. The Arkansas Bar Association published the Revocable Trust Handbook for Arkansas Practitioners (With Arkansas Trust Code and Commentary) in August 2007. Much of that publication deals with the funding, administration and distribution of revocable trusts, under the ATC, and will be a valuable reference for attorneys advising trustees and trust beneficiaries. 14
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“The ATC applies to trusts generally, whether they were executed before or after its effective date of September 1, 2005 (with a few exceptions). Consequently, all Arkansas trusts being settled have the benefit of the ATC’s interpretive and administrative rules unless the trust instrument expressly overrides those rules. ”
The Appointment Process and Marshaling Assets When the grantor of a revocable trust, who was serving as his or her own trustee, dies, a new trustee takes over the administration of the trust, much as an executor or administrator steps in to administer and distribute a decedent’s probate estate. The executor or administrator of a probate estate, of course, is appointed by the Circuit Court and the Clerk of the Court issues Letters Testamentary or Letters of Administration as evidence of the personal representative’s authority. How does the successor trustee of a revocable trust establish his or her authority to act? The ATC has several provisions addressing this question. First and foremost, a successor trustee must either accept or decline the trusteeship. Section 28-73-701 spells out how this occurs, although it is common for the trust instrument to address the matter as well. It is not essential under the ATC that a successor trustee sign an acceptance of the appointment – as the judicially appointed personal representative must do. It is sufficient that the successor trustee accept delivery of the trust property and begin exercising the powers and responsibilities of the trustee. A person named to be trustee who fails to take steps to assume the trusteeship within a reasonable time after learning of the appointment is deemed to have rejected the trusteeship. The judicially appointed personal representative publishes a notice of his or her appointment. While the ATC does not provide for
the publication of a similar notice, § 28-73-813 does require that a successor trustee, within 60 days of becoming aware of his or her appointment (or that the trust has become irrevocable due to the grantor’s death) must notify the trust beneficiaries of the trust’s existence, the acceptance of the trusteeship by the successor trustee, and the right of the beneficiaries to have a copy of the trust instrument and information relating to its assets. This notice goes both to “qualified” beneficiaries (those who have a present interest in the trust or would have if the interest preceding theirs should terminate) and also “requesting” beneficiaries (those who are not qualified beneficiaries but who have requested the information nonetheless).
William D. Haught is a member of the Haught & Wade Law Firm in Little Rock. He is the chair of the Association’s Trust Handbook Committee.
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The grantor may dispense with this notification requirement in the trust instrument. Section 28-73-1013 provides for use of a Certification of Trust, by which the trustee can furnish third parties a sworn statement establishing the existence of the trust, the identity of the current trustee, the fiduciary powers of the trustee and other information upon which third parties may rely in dealing with the trustee. In a sense, the Certification of Trust is the equivalent of Letters of Appointment issued to an executor or administrator by the Clerk. If assets are already titled in the name of the trust (or payable to trust as designated beneficiary), then the successor trustee can collect and take control of those assets by providing a Trust Certification or death certificate for the grantor or both. Assets owned by the grantor at death, not already registered in the name of the revocable trust (or made payable to it), may be added to the trust by the grantor’s will (a so-called “pour-over” will), although such will would need to be admitted to probate for the purpose. Notifying Affected Persons (Including Potential Creditors and Contestants) In the judicial administration of a decedent’s estate there are specific statutes dealing with the presentation and handling of creditor claims and also contests over the validity of the decedent’s will. There are also procedures for dealing with elections by surviving family members to take statutory interests in the estate, such as the surviving spouse’s election to receive dower or curtesy as opposed to benefits under the will. How do the notifications and procedures involving creditors, contestants and protected family members under the Arkansas Probate Code compare to the ATC? The Arkansas Probate Code has detailed provisions relating to creditors of the estate (including those who fall into the category of “reasonably ascertainable” creditors). The ATC (unlike the Uniform Trust Code) does not have. The ATC does not provide a formal procedure for contesting the validity of a revocable trust (although it does allow for the trustee to activate a fairly short statute of limitations for such contests). The ATC also lacks provisions for allowing spousal or family elective shares in the trust estate. Claims of creditors in a judicial administration must generally be presented to the personal representative within six months of the date the prescribed notice to creditors is first published (Act 231 of the 2007 General Assembly, incidentally, eliminated the previous three month limitation for all claims other than those for personal injury or death caused by the decedent’s negligence). The ATC has no provision for the publication of notice to creditors or a time limitation on presentation of claims. Section 505 of the Uniform Trust Code, on the other hand, in recognition that revocable trusts are now widely used as “will substitutes,” allows creditors of the grantor, after the grantor’s death, to assert claims against the trust estate, and also subjects the trust estate to payment of administration expenses, funeral and burial costs and statutory family allowances, to the extent the grantor’s probate estate is insufficient to pay them. The Arkansas General Assembly opted to delete this provision of the UTC. 16
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The Arkansas Probate Code deals expressly with the claims of “reasonably ascertainable” creditors who are not given actual notice of the time limitation for presentation of their claims (in accordance with the U.S. Supreme Court decision in Tulsa Professional Collection Services, Inc., v. Pope, 1085 S. Ct. 1340 (1988)). If such creditors are not given such actual notice, then their claims are barred only after two years have elapsed from first publication. There is no comparable provision in the ATC. The Arkansas Probate Code contains specific procedural rules for contesting the validity of a will. Generally, a contest of the will must be filed within three months of first publication of notice. The ATC does have a provision dealing with the time limit in which to contest the validity of a trust, which is either three years from date of death or 90 days from giving notice under § 28-73-604. The trustee can invoke the 90 day limitation by sending a notice of the trust’s existence and the 90 day limitation to the potential contestant. The Arkansas Probate Code provides for a spousal election to receive dower or curtesy in lieu of the provisions given by will, which must be exercised within one month after expiration of the non-claim period. There is no provision in the ATC for such an election to “take against” the provisions of a revocable trust Investment and Management of Assets The ATC applies to trusts generally, whether they were executed before or after its effective date of September 1, 2005 (with a few exceptions). Consequently, all Arkansas trusts being settled have the benefit of the ATC’s interpretive and administrative rules unless the trust instrument expressly overrides those rules. These include the prudent investor rules contained in §§ 28-73-901–908 and the comprehensive fiduciary powers set forth in § 28-73-815. Although not part of the ATC, the Uniform Principal and Income Act (§§ 28-70-101–605) also applies to Arkansas trusts, except to the extent the trust instrument provides otherwise. Inventories and Accountings The personal representative of a decedent’s estate is required to file both an inventory of estate assets within 60 days of appointment and an annual accounting of all receipts and disbursements, unless waived by the estate beneficiaries. Section 28-73-813 of the ATC, on the other hand, creates a general duty on the part of the trustee to keep qualified beneficiaries reasonably informed about the administration of the trust. As earlier noted, unless waived in the governing instrument, within 60 days after the successor trustee of a revocable trust learns that the grantor has died, the successor trustee must notify qualified and requesting beneficiaries of the trust’s existence and their right to have a copy of the trust and a report on the trust income and principal. The trustee’s report, while not technically an accounting, does provide a listing of the trust assets, liabilities, receipts and disbursements, as well as information about the trustee’s compensation. As with a decedent’s estate, beneficiaries may waive the right to receive the trustee’s report. Closing the Trust and Releasing the Trustee In an administration proceeding, the personal representative Trusts continued on page 40
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Vol. 43 No. 1/Winter 2008 The Arkansas Lawyer
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Practice Tip
Drafting Shareholder Agreements By Robert T. Smith Agreements among owners of a business or professional practice come in many formats, whether styled as traditional corporate shareholder agreements, LLC operating agreements or partnership agreements. Unfortunately, these instruments are often the result of a poorly conceived “form” document, with too little attention paid to the specific considerations of each case. Significant differences exist, for example, between professional and non-professional companies, which affect everything from valuations to general governance issues. This article highlights several common drafting faults, along with important issues that should be considered in connection with preparing these types of agreements. Poorly Conceived Valuation and Payout Provisions Valuation provisions vary significantly ranging from fair market value determinations based on an appraisal to simple “net book value” computations focusing on hard assets and receivables, without giving impact to any intangible or goodwill value. Unfortunately, it is often the case that a shareholder agreement includes a valuation that is impractical for a particular firm. This is a common problem in dealing with professional service firms in which a sizeable portion of the firm’s intangible value may be lost upon the exit of a particular professional. It is important to review the appropriate valuation terms with the client and its financial advisors. To compound the problem, unrealistic valuations may lead to strains on the corporation and its ability to continue as a going concern while servicing a mountain of buyout debt. Most shareholder agreements do not contemplate the impact of payouts to multiple shareholders who may exit in close proximity to one another. Because it is rare that the agreement requires individual shareholders to personally guarantee buyout obligations, the remaining shareholders may have less incentive to remain with the company. This can create a “race to the door” to determine who gets paid. Valuation and payout procedures should be closely reviewed to ensure that they are appropriate for the particular company and 18
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persons involved. This is a significant issue when representing a new professional entering an existing firm. If the agreement does not contain protective language, an analysis of the respective ages of the existing partners may indicate that the new shareholder could be left holding the bag when the line of retirement begins. Enforcement Issues Like any commercial contract, a shareholders agreement has value to the parties only if it is enforceable. Post-buyout noncompetition provisions are particularly important in this regard when dealing with professionals. The noncompete will be analyzed in the context of the general principles applicable to such agreements, requiring reasonableness in the term and scope of the restriction and that the company has a valid interest to protect. While enforcement of the noncompetition provision may more likely be enforceable when tied to the stock buyout, the terms employed must be considered against the general hesitancy of courts to enforce noncompetition covenants against many professionals. An approach that some state courts have approved involves using a liquidated damages provision as an alternative to a noncompetition covenant. The Arkansas Supreme Court, however, has indicated that the same public policy considerations applicable to noncompetition covenants would apply. See Junkin v. Northeast Arkansas Internal Medicine Clinic, P.A., 344 Ark. 544 (2001). Also remember to have each non-shareholder spouse provide written consent to the terms of the shareholder agreement. In Cole v. Cole, 82 Ark. App. 47 (2003), the Arkansas Court of Appeals determined that the non-shareholder spouse was not bound by a valuation provision where she had never consented to the terms of that agreement. Dealing with Exit Strategies While we generally may hope that clients will remain in business with one another for the long-term, the reality is that these relationships often must be unwound at some point, and shareholder agreements must be drafted with that fact in mind. Dissolving these relationships requires determining
the best manner in which to structure a buyout or otherwise separate the respective practices or businesses of the parties. A common provision found in many agreements is a “take or pay” option. These provisions allow either party to offer a price at which it will either purchase the other party’s interest in the company or sell its interest to the other shareholder. This seems like a simple procedure to handle a separation, yet it is not necessarily ideal. For example, these provisions rarely contemplate situations in which the parties have personally guaranteed debt of the entity and whether a lender would also be willing to release the exiting shareholder as a guarantor. Nevertheless, it certainly provides a method to force action by the other party. It is also important to consider crossbuyout triggers between related agreements. For example, it is common in many professional practices to have an operating entity (often a professional corporation) alongside an LLC or partnership holding real estate that is leased back to the operating company. These triggers are particularly important where a shareholder’s employment is involuntarily terminated, triggering a buyout on the operations side. Ideally, the real estate company’s agreement should contain provisions triggering a buy-out right with respect to that individual. This effectively assists the parties in severing all ties where the relationship has disintegrated. Summary These and many other factors should be considered in preparing an initial draft of a shareholder-type agreement, but the best advice is to first sit down with your clients to better understand their personalities, business and expectations. ■ Robert Smith is a Partner in the Mergers & Acquisitions Practice Group at Friday, Eldredge & Clark, LLP in Little Rock, where he primarily handles corporate and securities matters. He currently serves as Vice Chairman of the Association’s Tax Section.
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The 2008 ABA Section of Business Law Spring Meeting will be held April 10-12, 2008, in Dallas at the Hilton Anatole. Each year, participants say that the ABA Section of Business Law Spring Meeting is the highlight of their annual training and education. Over 80 educational programs and forums on all aspects of business law ensure a rich agenda that can fill your annual CLE requirements in one meeting. Committee and subcommittee meetings provide prime networking and business development opportunities in highly targeted practice areas.
Annual Reviews of Key Business Law Developments
The Pressing Issues Facing Business Lawyers Today
Emerging Areas of Global Business Law Practice
• Alternative Energy and Natural Resources • Antitrust • Banking Law • Business and Corporate Litigation • Business Bankruptcy • Corporate Governance • Cyberspace Law • Developments in Business Finance • Employee Benefits & Executive Compensation • Environmental Law • LLC Case Law Developments • Patent Law • Tax
• Current Tensions in Shareholder and Board Relationships • Private Equity, Funds and Banks Investing in Financial Institutions • Anatomy of a Middle Market Private Equity Deal • Venture Capital and Private Equity Funds – New Issues for GP/LP Negotiation • Alternative Dispute Resolution Techniques for Use In Commercial Finance Transactions • Representing Creditors in Consumer Bankruptcies Three Years After BAPCPA • Consumer Mortgage Industry in the Wake of the Subprime Mortgage Meltdown • Data Security Breaches and Theft • Executive Compensation • Employee Benefits in Mergers & Acquisitions • Career and Practice Development • Business Bankruptcy and Corporate Restructuring
• Tax Issues in Cross-Border Acquisitions • Cross-Border Due Diligence • Identifying and Mitigating Credit Risk in Cross-Border Financing Transactions • Secured Transactions South of the Border • Cross-Border Issues in Internal Investigations • Selected Aspects of Cross-Border M&A
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12/20/07 4:17:08 PM
An Electronic Law Office Taking a Paper Practice into the Digital Age By Nathan Price Chaney Growing up with an attorney for a father, and now practicing law myself, I am familiar with lawyers’ offices filled with stacks and stacks of banker’s boxes containing pleadings, evidence, correspondence, discovery, and other paper. With an undergraduate degree in computer systems engineering, experience in the legal information technology field, and a willing managing partner, I have been able to help the Henry Law Firm shift to an electronic law office over the past three years. An electronic law office has many benefits. The amount of paper lying around on desks, chairs, and even floors diminishes greatly once all documents are available electronically. Client files can be easily and securely accessed from home. Preparing for and attending hearings involves unplugging a laptop rather than making three trips to the car each time you need to move your client’s file. Reducing the amount of paper used by your office lowers operating and environmental costs. All these features are worth the cost of implementation; however, perhaps my most favorite feature of an electronic law office is the ability to quickly and accurately search the content of all files to look for words, phrases, names, dates, and other important information. Having an electronic law office provides many advantages, but you should recognize there are some things you should not expect from having one. You may have heard the term “paperless office” before, but a law office without paper is impractical because so much of the practice of law involves signatures on written correspondence, discovery pleadings, and contracts. Our law office is a hybrid of many electronic documents and some paper, so I use the term electronic law office instead of paperless office. Another aspect you should recognize is that 20
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“perhaps my most favorite feature of an electronic law office is the ability to quickly and accurately search the content of all files to look for words, phrases, names, dates, and other important information.�
an electronic law office requires a commitment to using it for every document that enters the office. If your electronic file does not contain a document you need because your office does not consistently handle every document, then you cannot rely upon your sizeable investment into an electronic law office. For this reason, your staff needs to be savvy enough with electronic equipment to handle a learning curve for new electronic methods of dealing with paper. The transition to an electronic law office will necessarily involve growing pains, and you must be diligent to ensure that nothing goes overlooked during the transition period. My office kept both electronic and paper versions of every client file until all documents were scanned into the system. We hired a part-time employee to assist our office manager in maintaining both sets of files. Once the office staff became comfortable and diligent in using the system, we shifted away from traditional paper files containing copies of every document relating to a case and towards organized electronic files. For active cases, our electronic files contain correspondence, pleadings, and other non-evidentiary documents, while a traditional file cabinet houses original deposition transcripts and other evidence. Our closed files are stored electronically, which decreases the need for extensive physical storage of older paper files. Another factor in deciding whether you will implement an electronic law office is cost. Our firm of three attorneys was able to implement an electronic law office at a relatively modest cost because we did not need to add much to our existing infrastructure.
We already had a high-capacity multifunction machine for faxing, copying, scanning, and printing. We had to purchase a robust optical character recognition (OCR) software program, upgraded network switches for the computers to more quickly talk to each other, and larger, redundant hard drives to provide the needed storage capacity. Our last hard drive upgrade boosted our storage capacity to one terabyte (1TB), and we estimate this will meet our needs for two to three years. Larger firms dealing with more paper may find that more capitalintensive upgrades are needed. We do not use comprehensive document management systems such as Time Matters or Amicus because we do not want to be tied to proprietary systems and file formats that require upgrades every few years. If your firm uses case management software, you should confirm that such programs are compatible with the document scanning system you wish to implement. Before purchasing any new equipment or software, you should consult with a professional information technology specialist, preferably one with experience in the legal field, to determine what technology will adequately meet your needs for an appropriate length of time. Your circumstances may vary from ours, and a legal information technology specialist can tailor a solution to meet your specific needs. Once you make the decision to implement an electronic office, you must establish a strict protocol for your office staff and attorneys. Each document entering and leaving your office should be scanned before being placed into an attorney’s box,
onto the fax machine, or into an envelope. In our automated process, the scanner captures the image on each sheet of paper and transfers the images to a computer, where a program such as Adobe Capture 3.0 performs OCR on the images and saves them as an electronic document. I recommend that you choose a common document format so you do not become tied to an obsolete or proprietary format; the most common is the portable document format (.pdf) file type. The next step of the process requires a member of your office staff to save the electronic document to the appropriate location on a central file server using a descriptive filepath name. Much like the manila folders in your filing cabinets, your electronic files need a coherent organizational structure. Every one of our electronic client files is divided into several subfolders. For instance, each electronic client file will have a working papers subfolder for word processing documents, spreadsheets, and other
Nathan Price Chaney is a registered patent attorney with the Henry Law Firm in Fayetteville.
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“The ability to search through every word of every file in my office at the touch of a fingertip saves my time and my clients’ money.”
office-generated content. Each electronic client file also contains a correspondence subfolder. Depending on the type of matter we are handling for the client, the electronic client file may also contain subfolders for attorney notes, discovery pleadings, evidence, pleadings, legal research, and U.S. Patent & Trademark Office documents. The document name itself should contain the document’s date, client code, and a brief description; we have shorthand notation for briefs, contracts, motions, letters, and memoranda. While each electronic client file is different, a consistent and descriptive structure across all electronic client files helps attorneys and staff quickly and easily find the appropriate document. Once the electronic document is given a descriptive filepath name, the original paper document is placed into the attorneys’ inbox for review, action, and subsequent filing in a traditional file cabinet. Even in our electronic law office, we keep original paper documents such as deposition transcripts and letters in a rough file loosely organized by date of receipt until the matter closes. In contrast to most other law offices, however, we do not make paper copies of outgoing correspondence or other papers. We may print paper working copies for internal use, but these paper copies are not retained. As an example, assume I have a client named Joe Trademark whose client code is 1002. Joe sends me a letter containing information I requested about the date he first used his trademark. Our office staff saves this letter using the following filepath 22 The Arkansas Lawyer www.arkbar.com
name: \\file server\current files\Trademark, Joe 1002\correspondence\LF client re date first use 2008-01-09 1002.pdf. The staff then places the original paper letter into my inbox, and I use the letter to complete Joe’s trademark application. When confirmation of the application is emailed to me, I save it as: \\file server\current files\Trademark, Joe 1002\USPTO\trademark app confirmation 2008-01-09 1002.pdf. When I call Joe to tell him that I filed his application, I can open and refer to the electronic documents during our conversation, rather than having to dig through a paper file to answer his questions. Part of my example above demonstrates that attorneys also have an obligation to maintain their electronic law office. Most attorneys receive a heavy volume of email, word processing documents, images, and other client-related information over the Internet on a daily basis. In order for an electronic law office to be effective, attorneys must save electronic correspondence and attachments to the appropriate location. In my example above, when I received an email relating to a client, I printed it to the appropriate client folder as a .pdf document. If I forget, information can go missing, and the only time a lawyer ever notices a missing document is when he needs it most! A few other items relating to an electronic law office should be mentioned. In our deadline-driven profession, one person in the flow of electronic information must be appointed to perform the important task of
calendaring deadlines. Because the penalty for missed deadlines is so large, we use a redundant system to ensure deadlines are met. First, the person responsible for saving documents also identifies and calendars deadlines. Then, the attorney assigned to the file double-checks to ensure that the deadlines are correctly calendared. Another important matter is data security. When your entire livelihood resides on electronic media, it is imperative that you maintain multiple copies of your data. The first key to successful data redundancy is to use a redundant hard drive system so that disk failures do not affect your practice. Second, you must perform periodic backups. Our office utilizes a nightly offsite backup service; even after a catastrophic fire, we could be up and running within a few hours. We also maintain a local backup disk that contains our current files as well as the changes we make each day, so if a document is accidentally erased, we can restore it without hassling the people who run our support service. Physical security is important for your data, but so is electronic security. If you plan to utilize wireless networks or virtual private networks over the Internet, you should consult with an information technology professional to ensure your network is secure from prying eyes. It is a good idea to do so anyway to ensure that your computers are not inadvertently left open to attack. Transitioning to an electronic law office is challenging, but the rewards are worth the effort. The ability to search through every word of every file in my office at the touch of a fingertip saves my time and my clients’ money. After a few years in an electronic law office, those days of Dad’s paper-blizzard office seem far away, indeed. ■
Look for more articles on electronics in the next issue of The Arkansas Lawyer
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Arkansas Supreme Court Historical Society
More on Three Men Named Holt By Jacqueline S. Wright Walker
We told the story of Seaborn Holt and Jack Holt, Sr., in the last issue of this magazine. In this issue we tell the story of two other members of the Holt family, Frank Holt and Jack Holt, Jr. Both of them served on the Arkansas Supreme Court. Seab Holt served on the Arkansas Supreme Court from 1939 until 1961. The year before Seab retired from the court, his first cousin, Joseph Franklin Holt (the younger brother of Jack Holt, Sr.) entered state politics. Frank Holt served as Arkansas Attorney General from 1960 to 1962, and was then elected Associate Justice of the Arkansas Supreme Court in 1962 to fill the unexpired term of his cousin Seab. Frank was born in 1910, seven years after his brother Jack. He grew up in Harrison and attended the University of Arkansas where he was on the honor roll and a member of Blue Key. Frank was unable to complete his undergraduate degree as planned because of the Depression. He dropped out of school, returned home and worked several jobs before returning to the university and eventually completing his law degree in 1937. The next year he was awarded a scholarship to the Institute of International Studies in Geneva, Switzerland. Frank practiced law in Little Rock until he was inducted into the Army where he served as an enlisted man in the U.S. Army Intelligence. After the war he returned to Little Rock where he was appointed deputy prosecuting attorney for the 6th Judicial District (Pulaski and Perry Counties). He was later elected Prosecuting Attorney for that district and served from 1954 until 1960. His tenure spanned the Little Rock school crisis. Frank had a quiet intelligence that carried him through these troubled years. He focused on the duties of the office and was “fearless,” especially when he prosecuted the “bombers” during the crisis at Central High. He received many calls and threats, warning 24
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him to “mind his own business.” Frank Holt was “routinely spat upon when he pressed charges against violent segregationists.” Frank was active in the community, serving as a delegate to the White House Conference on Children and Youth in 1960, chair of the Pulaski County Red Cross Chapter, and chair of the March of Dimes Chapter. He was the state fund chair of the Arkansas Multiple Sclerosis Campaign. He was active in the American Legion and was the state fund chair for Radio Free Europe. Frank interrupted his service on the Court at the end of his term to run for Governor. He lost that race by 15,000 votes to Jim Johnson, who then lost to Winthrop Rockefeller, the Republican candidate. Two years later Frank again won a position on the Supreme Court where he served for the remainder of his life. He was 73 when he died in October 1983. Jack Wilson Holt, Jr., is the third member of the family to serve on the Arkansas Supreme Court. He was elected Chief Justice in 1984, in his first and only political race as a candidate, and took office in 1985. Jack was born in Harrison, Arkansas, on May 18, 1929, one of two children of Jack Wilson Holt, Sr., and Margaret Spikes Holt. He spent his early years in Harrison until his father was elected Attorney General in 1936. He received his law degree in 1952 and then served in the U.S. Air Force JAG until 1955. He returned to Little Rock after leaving active military service and opened a private practice, also serving part time as an Assistant Prosecuting Attorney for the Sixth Judicial District and legal advisor to Pulaski County. When Frank Holt took office as Attorney General in 1960, he appointed his nephew, Jack Holt, Jr., Chief Assistant Attorney General. Jack Jr.’s career focused on improve-
ment of the legal system. He compiled laws for the Armed Forces, worked on the criminal code revision, lectured on trial technique, worked on standards for criminal justice, and chaired a federal district court Criminal Rules Committee. In 1976 he received the Golden Gavel Award for Outstanding Service from the Arkansas Bar Association. That year he also received a certificate of merit from the American Bar Association for his contribution to the public’s understanding of the American legal system. His public service record is also impressive. He was a member of the Optimist Club, the Exchange Club, and the Lions Club. He worked with Big Brothers, the Salvation Army, and organized the Pulaski County Chapter of St. Jude’s Children’s Hospital. Parent Teacher organizations, the American Legion, the Arkansas Sports Hall of Fame, and the Arkansas Pilots Association were also beneficiaries of his interest. Jack’s public face was forged when Federal District Judge J. Smith Henley appointed him, Phil Kaplan, and later, Philip McMath, to represent pro bono a group of prisoners at the state penitentiary. Several cases had already been tried and won by the prisoners. However, when these new complaints were investigated by Holt and Kaplan, they decided to file them as a class action. That case brought the entire prison system under the jurisdiction of the federal district court. It took ten years of almost constant litigation for the prison system to meet constitutional standards, and Holt and Kaplan were involved in the case the entire time. Jack had wanted to serve on the Arkansas Supreme Court for a long time, but he did not think it appropriate to run while his Uncle Frank was on the court. Jack’s service on the court to a large degree reflected his service to the bar when he was Holt continued on page 45
CLE CLE CLE CLE CLE CLE CLE CLE 2008 CLE Calendar
February 27-29, 2008
February
Natural Resources Law Institute February 27-29, 2008 Convention Center, Hot Springs
March
ADR Conference March 7, 2008 Peabody Hotel, Little Rock 31st Annual Labor & Employment Law Conference March 13-14, 2008 Arlington Hotel, Hot Springs 4th Annual Construction Industry Conference March 20, 2008 Clinton Library, Little Rock
April
Seven Keys to Winning Performance in the Courtroom April 3, 2008, Texarkans April 4, Little Rock Bankruptcy/Debtor-Creditor Law Institute April 10-11, 2008 UALR Bowen School of Law, Little Rock
May
The Arkansas Bar Association Natural Resources Law Section and the American Association of Professional Landmen present the:
47th Annual Natural Resources Law Institute 8.0 CLE Credit includes 1.0 Ethics Hour
Law Day Ethics May 1, 2008 Little Rock 12th Annual Environmental Law Conference May 2-3, 2008 Inn of the Ozarks, Eureka Springs Time Mastery: Over 100 Ways to Maximize Productivity & Satisfaction May 8, 2008 Texarkana May 9, 2008 Little Rock
June
Arkansas Bar Association Annual Meeting June 11-14, 2008 Arlington Hotel, Hot Springs Best of CLE June 19-20, 2008 Fayetteville June 23-27, 2008 Little Rock For more information contact Lynne Brown or Virginia Hardgrave 800-609-5668 or 501-375-3957 lbrown@arkbar.com or vhardgrave@arkbar.com OR check out THE CLE PAGE at www.arkbar.com
Program Planners: James E. O’Hern G. Alan Perkins
Hot Springs Convention Center 134 Convention Blvd Hot Springs, AR Vol. 43 No. 1/Winter 2008 The Arkansas Lawyer
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Book Review
Books: More Arkansas Lawyer-Authors Review of Central in Our Lives by Ralph Brodie and Marvin Schwartz, The Boy from Altheimer by William H. Bowen, and Race Relations in the Natural State by Grif Stockley by Vic Fleming
In the last issue of The Arkansas Lawyer, I reviewed Phillip McMath’s 2007 historical novel, Lost Kingdoms. Space limitations did not permit my mentioning a veritable plethora of other recent works by Arkansas lawyer-authors. Thus, with a whole new chunk of space to work with, I should now like to call to your attention to Grif Stockley’s ninth book, Race Relations in the Natural State, as well as Bill Bowen’s debut, The Boy from Altheimer, and Central in Our Lives, a premiere effort from Ralph Brodie, whose coauthor, non-lawyer Marvin Schwartz, has a string of priors (published books, that is). Central in Our Lives (2007) by Ralph Brodie and Marvin Schwartz. $24.95 soft cover; $33.95 hardback. In this 201-page book, published by the Central Arkansas Library System’s Butler Center for Arkansas Studies, students and faculty who went through the 1957 Central High School desegregation crisis recount events and feelings from that year. The theme of this work, which was spearheaded by Little Rock tax attorney Ralph Brodie, is that 95% of Central’s student body during the 1957-58 school year have never received proper credit for what they 26
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did and did not do in that time frame. Brodie was president of the student body that year. He has long argued that, while the Little Rock Nine are deserving of all the praise they have received and more, and that, while the students who made trouble for the Nine are likewise deserving of all the epithetical commentary that they have received and more, the “third side” of the story has never been properly told. In sum, he maintains that some 1,850 well-behaved white students, some of whom reached out to the Nine, some of whom merely avoided trouble at all costs, do not deserve to be lumped in with the troublemakers, which they usually are by media pundits and historians alike. In 2007, the golden anniversary year of the Crisis, Brodie, with the help of professional co-author Schwartz, has succeeded in setting out the third side of the story. Excerpt: The families of many Central High students were not spared intimidation. Jane Emery Prather said abusive phone calls to her mother and hate mail to her home began arriving immediately after Jane agreed to walk beside Ernest Green in the baccalaureate and graduation services. My father had died the previous summer, adding to my mother’s anxiety, as she felt very much alone. The incident
had a profound effect upon me. I was so angry at these racist and hateful people. I was determined that I had to leave the South for college. Jane Emery Prather, Class of 1958 The Boy from Altheimer: From the Depression to the Boardroom (2006) by William H. Bowen, with a foreword by Bill Clinton. $19.95 soft-cover. In this 202-page book published by the University of Arkansas Press, the man for whom the law school at UALR is named provides, in the words of Bobby Roberts, Director of the Central Arkansas Library System, “an important first hand account of the inner workings of Arkansas’s executive office during a crucial time.” Bowen’s autobiographical memoir addresses significant events in 20th-century Arkansas. Born and reared in Altheimer, an area that was among the most impoverished in the country during the Depression, the author became a U.S. Navy fighter pilot in World War II and later a tax attorney. How he moved from lawyer to banker to chief of staff for a governor running for president is the stuff of which good stories Book Review continued on page 44
Thank You to the 2007 Volunteer CLE Speakers and Program Planners A. Heath Abshure Charles Greg Alagood Mark H. Allison Elizabeth Andreoli Jim F. Andrews Jess L. Askew LaTonya Austin Joyce Bradley Babin Melody P. Barnett W. Christopher Barrier Thomas L. Barron Judge Ben T. Barry J. H. “Hank” Bates Governor Mike Beebe Stanley M. “Jack” Bell Judge Kathleen Bell Paul T. Bennett Garland W. Binns Jean C. Block Stanley V. Bond Raymond E. Bornhoft Judge Ellen B. Brantley Judge Wiley A. Branton, Jr. S. Renee Brida Brandon L. Brown Earnest E. Brown, Jr. Bettina E. Brownstein David F. Butler Wm. Jackson Butt II Michelle H. Cauley Vince O. Chadick Paul Charton E. B. “Chip” Chiles IV Zane A. Chrisman Carl Circo William M. Clark, Jr. Tamra Cochran Brandi D. Collins Cathleen Compton Barry E. Coplin John D. Coulter Ray F. Cox, Jr. Michael H. Crawford Junius Bracy Cross, Jr. Courtney C. Crouch III Gregory L. Crow Kenneth V. Crow H. E. “Bud” Cummins Judge Don N. Curdie David A. Curran Thomas A. Daily
Christine J. Daugherty Lillian Dee Davenport Wm. Lee Dawkins, Jr. Judge Beth M. Deere Gerald B. Dickinson, Jr. Dean John M. A. DiPippa Joel M. DiPippa Allen C. Dobson James E. Doman Richard T. Donovan J. Charles Dougherty Melissa M. Duke Jack East III Wm. Al Eckert III Stephen Engstrom Edie Renee Ervin Judge Audrey R. Evans Hugh A. Finkelstein Stephanie A. Flowers Judge John N. Fogleman Lynn Foster G. Spence Fricke R. Ray Fulmer II David M. Fuqua Donna S. Galchus Judge Robert W. Garrett David Allan Gates Timothy G. Gauger Pamela B. Gibson Sam E. Gibson Kathy W. Goss Ken Gould Kathlyn Graves Judge Alice S. Gray Dawn K. Guthrie Martha Ruth Hagan Karen Sharp Halbert Frank S. Hamlin Melva Harmon Steve P. Harrelson Christian Harris Ron D. Harrison Ben J. Harrison Brandon J. Harrison Raymon B. Harvey Richard F. Hatfield Jeffrey W. Hatfield William D. Haught Leon Helms Mark Murphey Henry Judy S. Henry
Robert L. Henry III Guillermo Hernandez Kynda Hernandez Mauricio A. Herrera Charles R. Hicks Anthony A. “Tony” Hilliard KaTina R. Hodge Denise R. Hoggard Cyril Hollingsworth Robert H. Holmes Robert M. Honea Colette D. Honorable Breck Hopkins Tim Humphries Joseph B. Hurst, Jr. Justice Annabelle C. Imber David L. Ivers Robert K. Jackson Jill R. Jacoway J. Leon Johnson Amy Dunn Johnson Judge Kirk D. Johnson Rep. David E. Johnson Jamie Huffman Jones Carlton D. Jones Michelle Kaemmerling Philip E. Kaplan Kevin P. Keech Trent C. Keisling Adria Nobles Kimbrough Hugh R. Kincaid Michael Knollmeyer Peter G. Kumpe Traci H. LaCerra Craig S. Lair Theodore C. Lamb Dana M. Landrum Samuel E. Ledbetter John C. Lessel Tamla J. Lewis Louis “Whit” Light Stark Ligon Carol L. Lincoln James H. Longino Patty W. Lueken James C. Luker Drake Mann Leon Marks Teresa Marks Judge D. Price Marshall, Jr. Christopher C. May
Martha J. McAlister Benjamin R. McCorkle Judge David H. McCormick Dustin B. McDaniel Jeffrey E. McKinley Kaye H. McLeod Paul D. McNeill Jack A. McNulty Chalk S. Mitchell Judge James G. Mixon Judge James M. Moody Judge James M. Moody, Jr. Harry Truman Moore Michael S. Moore Rodney P. Moore Judge Richard N. Moore Charles A. Morgan Vincent Morris Wm. Kirby Mouser Rosalind M. Mouser Cynthia E. Nance Judge Olly Neal J. Richard Newland, Jr. James E. Nickels Michael C. O’Malley Charles C. Owen Lance Owens Claibourne W. Patty, Jr. John F. Peiserich Richard Peltz G. Alan Perkins Donna C. Pettus E. Lamar Pettus Harrison M. Pittman George N. Plastiras Theresa L. Pockrus Austin Porter, Jr. David M. Powell Kent L. Pray Troy A. Price Philip R. Principe Jeff Puryear W. Michael Reif Paul D. Reynolds Judge David L. Reynolds Bonnie Robertson Spencer F. Robinson Sean F. Rommel Brian M. Rosenthal Gwendolyn L. Rucker Bianca M. Rucker
Charles L. Schlumberger John M. Scott Kathy W. Searcy Robert S. Shafer John T. Shannon Scotty M. Shively Jay L. Shue, Jr. Harold H. Simpson II Graham F. Sloan Judge Vann Smith Derrick W. Smith James E. Smith, Jr. Patricia J. Stanley Robert E. Steinbuch Judge Bentley E. Story Tim Tarvin Judge Richard D. Taylor Marcella J. Taylor Rex M. Terry Robert F. Thompson III Danny Thrailkill Christopher R. Thyer Andree L. Trosclair Charles W. Tucker Todd M. Turner Cathy Underwood Fritzie M. Vammen Chikako N. Varisco Vicki S. Vasser Erin Vinett Jack Wagoner III Danyelle J. Walker William C. Warren, Jr. John D. Watson Coleman Westbrook Bud B. Whetstone Elisa M. White Judge Phillip Whiteaker Christopher “Kit” Williams James H. Williams Robert D. Wills Carolyn B. Witherspoon Tom D. Womack Shawn A. Womack Andrea G. Woods Kimberley Woodyard John R. Yates Dan C. Young Danna Jo Young H. Wayne Young
Vol. 43 No. 1/Winter 2008 The Arkansas Lawyer
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2007-2008 Arkansas Bar Association Board of Governors Front Row (l to r): Karen K. Hutchins, James D. Sprott, Rosalind M. Mouser, Richard L. Ramsay, David B. Vandergriff, Donna C. Pettus, Amy Freedman; Second Row (l to r): Charles L. Harwell, Sean T. Keith, Tom Womack, Roy Beth Kelley, Richard C. Downing, Zane A. Chrisman; Third Row (l to r): William A. Martin, Danny M. Rasmussen, John T. Vines, Todd M. Turner, Judge John Finley, Harry A. Light; Fourth Row (l to r): Jim L. Julian, Chalk Mitchell, Causley Edwards, Bob Estes, David M. Fuqua, Dennis Zolper Photo taken at the Arkansas Bar Center
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Your Governing Body at Work The Board of Governors of the Arkansas Bar Association is invested with the authority to conduct the business and management of the Association. The House of Delegates is the Associationâ&#x20AC;&#x2122;s policy making body. The Board is composed of seven officers, eighteen governors elected from districts, three appointed at-large governors, and seven liaison non-voting members. Six new governors are elected each year, and one of the at-large governors is appointed each year. Candidates for the Board of Governors must have served at least one year in the House of Delegates or must have been an Association member for seven years by the time of joining the Board.
Association Officers Chair, Board of Governors
Secretary-Treasurer
David Vandergriff, Fort Smith
William A. Martin, North Little Rock
President
Parliamentarian
Richard L. Ramsay, Little Rock
J. Leon Johnson, Little Rock
President-Elect
Chair, Young Lawyers Section
Rosalind M. Mouser, Pine Bluff
Amy Freedman, Texarkana
Immediate Past President
James D. Sprott, Harrison
Governors by District 1-BG
Dennis Zolper, Jonesboro
12-BG
Roy Beth Kelley, Russellville
2-BG
Charles D. Roscopf, Helena
13-BG
David Fuqua, Little Rock
3-BG
Anthony Hilliard, Pine Bluff
14-BG
Tom Carpenter, Little Rock
4-BG
Chalk Mitchell, Helena
15-BG
Jim Julian, Little Rock
5-BG
Todd Turner, Arkadelphia
16-BG
Harry Light, Little Rock
6-BG
John Vines, Hot Springs
17-BG
Dick Downing, Little Rock
7-BG
Sean Keith, Rogers
18-BG
Causley Edwards, Little Rock
8-BG
Charles Harwell, Springdale
At Large
Niki Cung, Fayetteville
9-BG
Bob Estes, Fayetteville
At Large
Colette Honorable, Little Rock
10-BG
Danny Rasmussen, Conway
At Large
Tom Womack, Jonesboro
11-BG
Eddie Walker, Jr., Fort Smith
Liaison Non-Voting Members President-Elect, Arkansas Judicial Council
Chair, Continuing Legal Education Committee
Judge John Dan Kemp, Mountian View
Zane Chrisman, Little Rock
President-Elect, Arkansas District Judges Council
Executive Director, Arkansas Bar Association
Judge Michael Robinson, Benton
Karen K. Hutchins, Little Rock
Delegate to the American Bar Association
Lobbyist, Arkansas Bar Association
Carolyn Witherspoon, Little Rock
Jack A. McNulty, Pine Bluff
President, Arkansas Bar Foundation
Steven W. Quattlebaum, Little Rock Vol. 43 No. 1/Winter 2008 The Arkansas Lawyer
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Judicial Advisory Opinions Judicial Advisory Opinions are written and provided by the Judicial Discipline and Disability Commission. Full text is available online at www.state.ar.us/jeac.index.html Advisory Opinion 2007-03 October 16, 2007 The Arkansas Judicial Ethics Advisory Committee issued an advisory opinion to Judge Marion A. Humphrey of Little Rock, Arkansas. Judge Humphrey requested an opinion as to whether it would be acceptable for judges to support candidates for political office.
The Judicial Ethics Advisory Committee stated that Canon 5(A)(1) (b) of the Arkansas Code of Judicial Conduct states that a judge shall not…. “publicly endorse or publicly oppose another candidate for public office.” The Committee concluded that it would violate the Code of Judicial Conduct, if a judge were to support candidates for political office. ■
Arkansas Lawyers Assistance Program ArLAP
Helping Lawyers and Judges Find Personal Solutions...Now “Mothers tell your children not to do what I have done...” House of the Rising Sun A couple of decades ago, give or take a few years, the Arkansas Supreme Court saw fit to confer on me the privilege to practice law in the state of Arkansas. And it is a privilege - one that I ultimately abused. When I had been practicing law for about four years, I came to the inescapable conclusion that I could not safely drink alcohol. I started participating in a twelve step recovery program. This program of recovery suggests, among other things, the identification and attempted elimination of one’s character defects; the maintenance of a fit spiritual condition; and the relentless pursuit of rigorous honesty. Unfortunately, I tended to limit the application of these important steps to the maintenance of my sobriety, and failed to follow one of the most important tenets, that is to practice these principles in all our affairs. Despite making a respectable income practicing law, I fell into the trap of living beyond my means. We lawyers can tend to be a prideful bunch. It was doubtlessly pride, sprinkled with a dash of denial, shame and fear that prevented me from seeking help before my financial situation became unmanageable. After having practiced law for seventeen years with nary a blemish on my record; having enjoyed a decent reputa-
tion in the legal community (did I mention how modest we attorneys tend to be?); and having been sober for thirteen years, the Arkansas Supreme Court Committee on Professional Conduct found it necessary to recommend the suspension of my privilege to practice law on account of serious misconduct on my part. I’ve had to live with the fact that I brought shame and disrepute to myself, my family, my associates and the legal community. I missed the rare opportunity to help clients through difficult and stressful periods in their lives. The most gratifying times I experienced practicing law were not when I had necessarily “won” - but rather when I felt like I had played some small part in the administration of justice, and I mourned the loss of that privilege. Through all the hardships (purely of my own creation), I have not yet found it necessary to take a drink, and for this I am extremely grateful. I will be forever indebted to my friends who stood by me through the most difficult times I ever
endured. I am grateful to those folks who went out of their way to contact me and offer words of encouragement. This story has a happy ending. A few years ago, the Arkansas Supreme Court reinstated my privilege to practice law. Today, I enjoy a gratifying practice with a well respected firm. I remind myself of that old joke that I wouldn’t want to belong to any club that would have me as a member, but my colleagues have accepted and embraced me with all my foibles. Participating with the Arkansas Lawyers Assistance Program has helped me immensely with the transition back to practicing law - the anxiety of “getting back in the saddle,” if you will. My wonderful friends at ArLAP have helped me maintain a sense of ease and comfort in dealing with the stress of our chosen profession. Some of you reading this may be in recovery. Some of you may be in denial. Statistically about one out of ten has a problem with drugs or alcohol. So if you find yourself in uncharted waters, or if you see a friend or associate teetering on the brink, please know that help is only a phone call away. Don’t do what I have done. The only thing wrong with having a problem is not doing something about it. You can go to the website, www.arlap. org for more information or call ArLAP at 501-907-2529. Anonymous
Contact Sarah Cearley, PhD, LCSW • or Gail Harber, PhD, LADAC • 501-907-2529 • confidential@arlap.org www.arlap.org • 2 Van Circle, Ste. 7 • Little Rock, Arkansas 72207 30
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Lawyer Disciplinary Actions Final actions from October 1, 2007, through December 31, 2007, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct. Full text documents are available on-line at http://courts.state.ar.us/courts/cpc.html. [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.] DISBARMENT:
DISBARMENT TO BE INITIATED:
B. JOE THOMSON, Bar No. 69098, of Houston, Texas, was reciprocally disbarred by Arkansas Supreme Court Per Curiam Order filed October 4, 2007, in No. 07914, as a result of his prior disbarment in Texas. Mr. Thomson was disbarred by the State Bar of Texas on September 30, 2004. The information related to the Judgment of Disbarment was received by the Office of Professional Conduct from the Chief Disciplinary Counsel for the State Bar of Texas on May 24, 2007. The Judgment of Disbarment showed that Mr. Thomson had violated Rules 3:01, 4:04(b)(1), and 8:04(a)(3) of the Texas Rules of Professional Conduct. Having been disbarred in Texas and having been licensed in Arkansas some twenty-five (25) years before his disbarment in Texas, the Arkansas Supreme Court disbarred Mr. Thomson from the practice of law in Arkansas pursuant to Sections 14.A and B of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (2002).
OSCAR A. STILLEY, Bar No. 91096, of Fort Smith. Panel B voted on December 14, 2007, in No. CPC 2006-067, a complaint from Judge James Marschewski of Fort Smith and others, to initiate disbarment proceedings against Mr. Stilley for violations of Rules 3.1, 3.3(a)(1), 3.4(c), and 8.4(d). The Panel also voted to place Mr. Stilley on interim suspension during the pendency of the disbarment proceeding. The petition for disbarment was filed on January 16, 2008 as No. 08-073. The Order of Interim Suspension was filed and became effective December 27, 2007. HORACE A. WALKER, Bar No. 82169, of Little Rock. Panel B voted on December 14, 2007, in No. CPC 2007-095, a complaint from Mr. and Mrs. Theodis Dodson, to initiate disbarment proceedings against Mr. Walker for violations of Rules 1.2(a), 1.3, 1.4(a), 1.5(c), 1.15(a), 1.15(b), 8.1(b), 8.4(b), and 8.4(c). Mr. Walker failed to file a response to the Complaint. The Panel also voted to place Mr. Walker on interim suspension during the pendency of the disbarment proceeding. The petition for
disbarment was be filed on January 15, 2008 as No. 08-071. The Order of Interim Suspension was filed and became effective December 20, 2007. SUSPENSION: ALICE WARD GREENE, Bar No. 95197, of North Little Rock, Arkansas, had her law license suspended for six (6) months, effective October 17, 2007, by Committee Findings & Order filed that date in Case No. 2007-044, on a complaint filed by LaDonna Marsh, for violation of Rules 1.2(a), 1.3, 1.4(a)(3), 1.4(a)(4), 3.2, 3.4(c), 8.4(c) and 8.4(d). In addition, Ms. Greene was ordered to pay $750 restitution for the benefit of her former client. As a result of her failure to respond to the formal disciplinary complaint, Ms. Greene was Reprimanded and ordered to pay a $500 fine. Ms. Marsh hired Ms. Greene to represent her in a divorce matter she wished to file in September 2006. Ms. Greene was paid her entire fee per her written fee agreement in October 2006. She was unavailable to Ms. Marsh many times that Ms. Marsh called for information about the legal proceeding. Ms. Greene did not keep Ms. Marsh informed
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
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
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Lawyer Disciplinary Actions of her actions, if any, in filing a divorce complaint. Ms. Greene allowed Ms. Marsh to believe that a complaint for divorce had been filed when, in fact, none had been filed by March 2007. Ms. Greene moved out of her office with notice to Ms. Marsh. Ms. Marsh left numerous messages on Ms. Greene’s cell phone but the messages have not been responded to by Ms. Greene. In addition, the Committee had information before it that Ms. Greene failed to pay her bar dues by March 2, 2007, and also failed to complete her CLE requirements in 2006 which resulted in the automatic suspension of her license to practice law in Arkansas on March 2, 2007. TIMOTHY MARK HALL, Bar No. 96043, of Huntsville and Springdale, Arkansas, had his law license suspended for six (6) months, effective December 4, 2007, by Committee Findings & Order filed that date in Case No. 2006-040, on a complaint filed by Diana Refsell, for violation of Model Rules 1.3, 1.4(a), 1.16(d), 3.4(c) and 8.4(d). Mr. Hall was also fined $1,000 for his conduct. Ms. Refsell hired Mr. Hall to represent her in the Estate proceeding involving her late father’s Estate. Mr. Hall had previously represented her father before his death in various matters. Ms. Refsell was named the Administratrix with Mr. Hall acting as her counsel. Mr. Hall continually failed to keep Ms. Refsell informed of the matters involving the Estate and failed to return her requests for information. Mr. Hall did not file the required Inventory and Accountings. Ms. Refsell was unaware of all the problems at the time they were occurring, learning of them from a sibling and when she had a contempt action filed against her. After proceedings to remove Ms. Refsell as Administratrix, Mr. Hall failed to turn over the Estate file as directed by the Court until the morning of a “show cause” hearing. Ms. Refsell had to hire other counsel to represent her interests because Mr. Hall had, in effect, abandoned his representation of her. VANCE BENTON ROLLINS, JR., Bar No. 75108, of Hot Springs, and formerly of Camden, Arkansas, an attorney formerly practicing law primarily in Camden, Ouachita County, Arkansas, was placed on interim suspension from the practice of law by the Committee on Professional Conduct 32
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in case number CPC 2007-125, for an indefinite period effective November 27, 2007, as a result of his felony conviction in the Circuit Court of Perry County, Arkansas, on October 31, 2007, in Case Number CR-2007-03, of two counts of the Class C felony Manslaughter, in violation of AR Code § 5-10-104. The Interim Suspension was ordered pursuant to Sections 17.E(3) (c)(1) and 16.A(3) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law. Mr. Rollins has also been convicted in late 2007 in Ouachita County Circuit Court on felony drug charges. NATHAN THOMAS WILLIAMS, Bar No. 98159, now of Green Bay, Wisconsin, had his Arkansas law license suspended for twenty-four (24) months, effective October 2, 2007, by Committee Findings & Order filed that date in Case No. 2007-092, on a reciprocal discipline action from Illinois. The Supreme Court of Illinois ordered the suspension from the practice of law in Illinois of Nathan Thomas Williams, Illinois Registration No. 6276891, for a period of two (2) years, effective June 8, 2007. The
information was received in the Office of Professional Conduct on August 17, 2007, from the Clerk of the Illinois Attorney Registration and Disciplinary Commission, and not from Mr. Williams. Mr. Williams is also licensed in the State of Missouri. Mr. Williams’ former spouse, Missouri attorney Margaret Murphy Williams, had reported the substantially similar conduct by Mr. Williams to Arkansas in July 2005, where it was assigned file #T2005-472. Upon notice that both Missouri and Illinois were pursuing the same conduct, which substantially occurred in Missouri, Arkansas held the complaint in abeyance pending action in one of the other states. Additionally, Mr. Williams’ Arkansas law license has been administratively suspended since 2002 for non-payment of his annual Supreme Court license fee and since March 27, 2003, for his non-compliance with the Arkansas CLE Rule requirement. REINSTATEMENT: WILLIAM SCOTT DAVIDSON, Bar No. 81044, of Jonesboro, Arkansas, had his law license reinstated effective December 11,
ELECTRICAL ACCIDENTS Paul D. Mixon, Ph.D., P.E. Engineering Consultant P.O. Box 3338 State University, AR 72467 (870) 972-2088 (870) 972-3948 FAX pmixon@astate.edu paul_mixon@yahoo.com
• • • • • • • •
Accident Investigation and Analysis Contact Cases and Electrocutions Electrical Injuries Property and Equipment Damage Electrical Fires Safety Code Compliance Expert Witness Disputes Settled
Lawyer Disciplinary Actions 2007, from a one-month suspension ordered in CPC 2006-155. REPRIMAND: CALON E. BLACKBURN, JR., Bar
No. 74101, of Drasco, Arkansas, was reprimanded by Committee Consent Findings & Order filed November 27, 2007, in Case No. 2007-093, on a complaint filed by the United States Army for violation of Rule 8.4(c). On May 10, 2007, the Office
of Professional Conduct was notified by the Department of the Army that Mr. Blackburn, working as a civilian attorney for the military in the theater, had been reprimanded for making false statements to U.S. and Qatari authorities in connection with an incident on January 18, 2007, in which he was stabbed by a female friend while in his government housing quarters in Qatar. The findings of two Army investigations indicate that Blackburn made multiple false and/or misleading statements to U.S. and Qatari authorities surrounding the circumstances of his injuries to avoid disclosing that his female friend had stabbed him. Instead, Blackburn initially led authorities to believe that he had been the victim of a burglary, which caused great concern because of the possibility that security at the housing compound in Qatar might have been compromised. ALICE WARD GREENE, Bar No. 95197, of North Little Rock, Arkansas, was reprimanded and ordered to pay $600 restitution to her former client by Committee Findings & Order filed October 17, 2007, in Case No. 2007-038, on a complaint filed by Larry Crawford for violation of Rules 1.2(a), 1.3, 1.4(a)(3), 1.4(a)(4), 1.16(d) and 8.4(d). In addition, as a result of her failure to respond to the disciplinary complaint, Ms. Greene was reprimanded and ordered to pay a $500 fine. Mr. Crawford hired Ms. Greene to seek a reduction in child support because two of his three children had graduated from high school. Ms. Greene was paid $500 in fees and $100 in costs to file for a support reduction. She did not take any action on behalf of Mr. Crawford. She did not communicate with Mr. Crawford and did not file any proceeding for him to reduce or abate his child support obligation. Ms. Greene did not return any unearned fee or costs to Mr. Crawford after being terminated from representation. WILLIAM KURT MORITZ, Bar No. 99021, of Hot Springs, Arkansas, was reprimanded, fined $500.00, and assessed costs in the amount of $50.00 by Committee Findings & Order filed October 29, 2007, in Case No. 2007-075, on a complaint filed by District Judge Lynn T. Williams for violation of Rules 3.4(c), 5.5(a), and
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TCP PLEASE INSERT INA AD FROM PAGE 34 OF Fall ISSUE
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Lawyer Disciplinary Actions 8.4(d). Mr. Moritz had a court setting in Hot Springs District Court for May 10, 2007. Mr. Moritz had a previously scheduled hearing in Sevier County Circuit Court and appeared in court there. The hearing in Sevier County Circuit Court lasted longer than he anticipated and he did not appear in Hot Springs District Court. Mr. Moritz was also scheduled to appear in a separate matter in a separate division of Hot Springs District Court on May 10, 2007, but failed to appear there as well. Mr. Moritz failed to pay his bar license fee by March 1, 2007, and was administratively suspended from the practice of law from March 2, 2007, until his license fee was on May 24, 2007. Despite the administrative suspension, Mr. Moritz continued to appear in court. CAUTION: DON CLAYTON COOKSEY, Bar No. 74199, of Texarkana, Arkansas, was cautioned and fined $500 by Committee Findings & Order filed December 4, 2007, in Case No. 2007-072, on a judicial referral for violation of Rules 1.1, 1.3, and 8.4(d). Cooksey was also fined $250 and cautioned for his failure to respond to the Committee’s complaint. On December 12, 2006, the Little River County Circuit Court filed an order in Case No. CR2005-47-1, sentencing Cooksey’s client, Susan Whitman, to a $4,000 fine and one year probation for four counts of cruelty to animals. Cooksey timely filed the notice of appeal; however, he untimely tendered the record on appeal. The Arkansas Supreme Court granted Cooksey’s Motion
for Rule on the Clerk after he admitted his error in the failure to perfect the appeal. JANIE M. EVINS, Bar No. 92068, of Hot Springs, Arkansas, was cautioned and fined $500 by Committee Findings & Order filed October 24, 2007, in Case No. 2007-079, on a complaint filed by Crystal McKinney for violation of Rules 3.3(a)(2), 3.3(a)(4), 3.4(c), 3.4(d), 4.4, and 8.4(d). During calendar year 2004, Ms. Evins represented Clint Asher in a custody proceeding involving Crystal McKinney, the mother of his minor child. In the course of that representation, there was a hearing where Ms. Evins’ client, Mr. Asher, provided false testimony concerning his ability to obtain medical records concerning Mr. Asher’s minor son. As Ms. Evins had been provided with at least one medical record the day before the hearing, she was aware of the false statement but took no action to correct the statement. She allowed the Court to rely on Mr. Asher’s testimony and enter an Order in reliance thereon. Ms. Evins offered the evidence through her client, Mr. Asher, that he had not been able to obtain any medical records with regard to his minor child, which evidence was not factually accurate. Ms. Evins took no remedial measures to make certain that the true facts were given the Court in testimony on May 12, 2004. When the true facts were discovered, the Court was required to conduct other hearings. The initial decision was set aside. As the matter progressed, Ms. Evins engaged in delay and other tactics which had no substantial purpose other than to harass, burden, embarrass or delay Mrs. McKinney.
Ms. Evins failed to comply with the Arkansas Rules of Civil Procedure, in that she failed to file timely responses to discovery on behalf of her client in the custody proceeding. Ms. Evins’ failure in doing so required a Motion to Compel to be necessary in the matter. CHARLES J. GARDNER, Bar No. 76036, of Blytheville, Arkansas, was cautioned and ordered to pay $194 in restitution for the benefit of his former client by Committee Consent Findings & Order filed October 19, 2007, in Case No. 2007-074, on a complaint filed by Joyce Harvey for a violation of Rule 1.3. The information before the Panel reflected that on January 11, 2005, Ms. Harvey met with Mr. Gardner to pursue a bankruptcy proceeding on her behalf. Mr. Gardner agreed to represent Ms. Harvey and he was paid $194. Ms. Harvey explained to Mr. Gardner that time was of the essence in filing the bankruptcy petition because her home was scheduled for foreclosure sale on February 9, 2005. All information Mr. Gardner requested of Ms. Harvey was delivered to his office in a timely manner. Mr. Gardner failed to file the bankruptcy petition until February 21, 2005. The filing was after the date of the foreclosure sale. The mortgage company filed a Motion for Relief from the Stay, which was granted. Ms. Harvey lost possession of her home. After a conference with Mr. Gardner, the bankruptcy proceeding was dismissed. Ms. Harvey met with Mr. Gardner with regard to the damages she suffered with regard to his late filing of the bankruptcy proceeding but they have not yet reached a resolution of the issues.
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: legalbriefing@sbcglobal.net Vol. 43 No. 1/Winter 2008 The Arkansas Lawyer
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Lawyer Disciplinary Actions JUSTIN B. HURST, Bar No. 2005021, of Hot Springs, Arkansas, entered into consent to discipline and was cautioned and assessed $50 costs by Committee Consent Findings & Order filed November 27, 2007, in Case No. 2007-084, on a complaint referred to the Office of Professional Conduct by the Arkansas Supreme Court for violation of Rules 1.3, 8.4(d). Mr. Hurst represented James Ray Creed in a criminal case in Hot Spring Circuit Court, Case No. CR 2006195-2, in which Mr. Creed was found guilty of rape and was sentenced to a term of life imprisonment. A timely Notice of Appeal was filed by Mr. Hurst. The record on appeal was due to be filed with the Arkansas Supreme Court Clerk on or before March 26, 2007. On March 6, 2007, the Hot Spring Circuit Court granted a request for extension of time to file a record and the record was thereafter due to be filed on or before May 14, 2007. Mr. Hurst untimely tendered the record to the Clerk on May 30, 2006. On May 31, 2007, Mr. Hurst filed a Motion for Rule on the Clerk. The Arkansas Supreme Court issued a Per Curiam Order on June 21, 2007, granting the Motion for Rule on the Clerk and referred the matter to the Office of Professional Conduct. Mr. Hurst admitted in his response that his failure to file the record caused a delay in the orderly and timely resolution of appellate proceedings. He also admitted that his failure to file the record in a timely manner caused the court to expend additional time and effort
addressing the matter which would not have been necessary had he timely filed the record. WILLIAM KURT MORITZ, Bar No. 99021, of Hot Springs, Arkansas, was cautioned and assessed $50 costs by Committee Findings & Order filed on October 29, 2007, in Case No. 2007065, on a complaint filed by Daniel and Stephanie Padgett for violation of Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.16(d), and 3.4(c). The Padgetts employed Mr. Moritz for assistance in a bankruptcy matter for a $900 fee. The Padgetts did not have a telephone number but did provide Mr. Moritz with a contact person. The Padgetts provided Mr. Moritz with their counseling certificates in February 2007. The Padgetts would call Mr. Moritz to check on the status of their matter, leaving messages and telephone numbers for Mr. Moritz to call and update them on their matter. The Padgetts left letters from creditors with Mr. Moritz and asked him to call them. Mr. Moritz failed to respond to the requests. The Padgetts then proceeded to file the bankruptcy petition themselves. Their case was dismissed by the Court for failure to file the required documents. The Padgetts then employed new counsel. Mr. Moritz failed to pay his annual license fee on March 1, 2007, and was administratively suspended from March 2, 2007, until his license fee was paid on May 24, 2007. Despite the administrative suspension, Mr. Moritz continued to practice law. â&#x2013;
Bart F. Virden
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Trusts continued from page 16
makes final distribution of the probate estate, after all obligations of the estate to creditors and taxing authorities are fulfilled, pursuant to an Order entered by the Court. The final accounting of the personal representative, if any, is reviewed by the Court, with an opportunity for beneficiaries, claimants and other interested parties to raise objections. When distribution is completed, receipts of the distributees are filed, the final distribution of the personal representative is approved, and the administration is formally closed. While there are circumstances in which the administration can be reopened, to remedy mistakes or deal with newly-discovered assets, generally the Order discharging the personal representative marks the final step in the procedure. When the decedent’s estate is being settled through a revocable trust, a court is not involved with the process. Instead, the trustee deals with the trust beneficiaries and other parties who may have an interest in the trust settlement. The ATC seeks to provide the trustee with the same sort of finality and release from liability that the Court Order offers through the following: * Under § 28-73-817, upon termination or partial termination of trust, the trustee may send to the trust beneficiaries a proposal for distribution. The right of a beneficiary to object to the proposed distribution terminates if the trustee is not notified of the objection within 30 days (provided the trustee told the beneficiary of this time limit for objection). * Under § 28-73-1005, a beneficiary may not commence a proceeding against a trustee for a breach of trust more than one year after the date the beneficiary was sent a report that adequately disclosed a potential basis for claim and informed the beneficiary of the time limit for asserting a claim (otherwise, the beneficiary has five years to commence such a proceeding after the earlier of the removal, resignation or death of the trustee, the termination of the beneficiary’s interest, or the termination of the trust). A trustee is not liable to a beneficiary for breach if the beneficiary consented to the conduct in question, released the trustee from liability for the breach, or ratified the transaction at issue, unless the consent, release or ratification was induced by improper conduct of the trustee or the beneficiary was not fully informed of the material facts. * Under § 28-73-604, a revocable trust “contest” is barred after the earlier of three 40
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years from the grantor’s death or 90 days after the trustee has sent the notice authorized by such section. Upon death of the grantor, the successor trustee may proceed to distribute the trust property in accordance with the trust instrument, and will not be liable for doing so unless the successor trustee knew of a pending judicial proceeding to contest the trust or the potential contestant has notified the trustee and filed the contest within 60 days after the contestant so notified the trustee. * Section 28-73-817 provides a release by a beneficiary of a trustee is effective unless it was induced by improper conduct of the trustee, or if the beneficiary, at the time of release, did not know of the beneficiary’s rights or of the material facts relating to a breach of trust by the trustee. * Section 28-73-1006 provides the trustee who acts in reasonable reliance on the terms of the trust instrument is not liable to a beneficiary for a breach of trust to the extent the breach resulted from such reliance. * Section 28-73-1007 stipulates that if the happening of an event (such as marriage, divorce, performance of educational requirements, or death) affects the administration or distribution of a trust, a trustee who has exercised reasonable care to ascertain the happening of the event is not liable for a loss resulting from the trustee’s lack of knowledge. * Section 28-73-1009 provides a trustee is not liable to a beneficiary for breach of trust if the beneficiary consented to the conduct constituting the breach, released the trustee from liability, or ratified the transaction, unless the consent, release or ratification was induced by improper conduct of the trustee or, at the time, the beneficiary did not know of the rights or material facts relating to the breach. Although the ATC is new, and a body of Arkansas cases has not yet emerged to construe and apply the ATC, we can draw upon the case law of other jurisdictions which have enacted the UTC, as well as the extensive commentary and analysis of the UTC available through the National Conference of Commissioners on Uniform State Laws. You can access these resources at www.nccusl.org. The growing popularity of estate planning through funded revocable trusts is clear, both here and elsewhere. Arkansas lawyers now need to be conversant with two statutory regimes for estate settlement – with some similarities, but many differences.
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Legislation continued from page 13
part of the judicial system from local to the state. Your Bar Association has supported streamlining the judicial system in this manner for more than a decade.
B. Five New Circuit Court Judgeships Act 168 creates five additional circuit judgeships and provides for the appointment and election of the new circuit judges. The new judgeships in the Second Judicial District, the Twenty-third Judicial District and the Twentieth Judicial District were created effective July 1, 2007, and those judges were appointed by the Governor with an election to occur at the 2008 preferential primary election to take office on January 1, 2009. The new judgeships in the Nineteenth Judicial District - West and the Twenty-Second Judicial District are created effective January 1, 2009, with the judges to be elected at the 2008 preferential primary. The Act refers to caseload review and determination of the Judicial Resources Assessment Committee as the basis for the new judgeships. Obviously, five additional circuit judges in the state will make the circuit courts more accessible. The legislature added the new judges to the districts with the greatest
overload in cases and the additions should greatly assist in clearing up some bothersome backlogs.
C. Courthouse Security Act 576 (Ark. Code Ann. §§ 16-10-1001 et seq.) establishes a program for security and emergency preparedness for the judicial branch of government. This program is administered by the Administrative Office of the Courts. Grants are available for financial assistance for implementation of local plans from funds specifically appropriated for that purpose. Security for the judiciary means security for lawyers and litigants as well. This is a reaction to security breaches in courtrooms around the country in recent times and the general concern for terrorist activity.
D. Probate Code Limitation Period for Filing Claims Act 231 (Ark. Code Ann. § 28-50-101) equalizes the time limitations for filing claims against an estate at six (6) months. Previously there was either a three (3) month or a six (6) month limitation, depending on the nature of the claim. Standardizing the time limitation will result in less confusion and reduces the chances for mistakes and costly oversights.
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Law Day: Fifty Years of Celebrating the Rule of Law By J. Cliff McKinney and Gwendolyn L. Rucker In 1776, Thomas Jefferson penned the now famous words that became the philosophical foundation of our nation: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The Founders fostered this idea by forging our system of governance around the concept of the Rule of Law. The Rule of Law is the principle that the government must exercise power only in accordance with lawfully enacted and fully disclosed laws that apply equally to all citizens, regardless of rank, prestige or power. The Rule of Law defends against the arbitrary enforcement of laws characteristic of totalitarian governments like that from which the Founders declared our nation’s independence. The Rule of Law makes our way of life possible. Our form of government and our system of laws are all predicated on the belief that the Rule of Law supersedes all personal ambition or power. The Rule of Law requires that even the government itself is subservient to its own laws. Our nation’s adherence to the Rule of Law has created an atmosphere of security, equality and opportunity that has allowed freedom, both personal and economic, to blossom and thrive. The Rule of Law has gone far to conquer injustice and level playing fields in all aspects of life, making this concept truly fundamental. Unfortunately, the Rule of Law is often taken for granted. Seldom do we stop to recognize that the Rule of Law provides the foundation for our free and democratic society. In 1958, President Dwight D. Eisenhower offered Americans and the world a reminder. In the aftermath of the horrors of World War II, the United States faced the growing shadow of Communist totalitarianism. The Cold War was particularly frightening in 1958 as Cuba, one of America’s closest neighbors, fell to Communism and Americans faced the growing fear of nuclear war. On May 1, a traditional Communist holiday, totalitarian leaders prepared to celebrate their recent victories. In the face of this, the President 42 The Arkansas Lawyer www.arkbar.com
wanted to rally Americans to celebrate the Rule of Law. President Eisenhower proclaimed May 1, 1958, as Law Day. As stated in his proclamation, President Eisenhower believed “a day of national dedication to the principle of government under law would afford us an opportunity better to understand and appreciate the manifold virtues of such a government and to focus the attention of the World upon them.” President Eisenhower challenged the people of the United States, particularly those in the legal profession, to promote and participate in the observance of Law Day. Congress made Law Day an annual holiday in 1961 with the passage of 36 U.S.C § 113. The Arkansas Bar Association and other local bar associations around the state have actively observed Law Day for many years. The Young Lawyers Division of the Arkansas Bar Association sponsors the Law Day Planning Committee. The Law Day Planning Committee takes the lead in organizing and conducting the Arkansas Bar Association’s various Law Day activities. Central among these activities has traditionally been a program where teams of volunteers visit high schools throughout the state to teach the next generation about the Rule of Law. In recent years, the Law Day Planning Committee has expanded its focus in an attempt to reach not only high school students, but children and adults of all ages, including members of the legal profession. In 2007, with special support from the Arkansas Association of Women Lawyers, the Committee’s Law Day activities included a blood drive organized in partnership with the Pulaski County Bar Association, a statewide poster contest for fifth graders co-sponsored by the Arkansas Association of Legal Assistants and participation in a live call-in show on KATV. The Law Day Planning Committee also organized an event where lawyers gave up a Saturday morning to volunteer with the North Little Rock Mayor’s Youth Council to help Arkansas Rice Depot, a hungerrelief charity, provide backpacks full of food to hungry school children. Additionally,
the Committee helped distribute dozens of Senior Citizen Legal Rights Handbooks to disadvantaged senior citizens and their caregivers. Another highlight was a “Java with the Judges” breakfast reception that provided young lawyers an opportunity to meet and visit with many of the state’s most prominent judges. For this 50th anniversary of Law Day, the American Bar Association has designated a national theme of The Rule of Law: Foundation for Communities of Opportunity and Equity. The Law Day Planning Committee is working on plans to honor this milestone anniversary and planning new ways to celebrate and educate our fellow citizens about the importance of the Rule of Law in keeping with this year’s national theme. The Committee encourages all members of the legal profession to join in this year’s celebrations and to contribute to the annual observance of the Rule of Law. Members of the legal profession have a special obligation to recognize, promote and spread the Rule of Law. There is no better way to do so than to become involved in the celebration of Law Day, both in this special anniversary year and in the years to come. Anyone interested in more information about getting involved with Law Day may contact the Arkansas Bar Association. ■ J. Cliff McKinney practices real estate law with Quattlebaum, Grooms, Tull & Burrow PLLC in Little Rock. He is Co-Chair of the YLS Law Day Committee. Gwendolyn Rucker is a staff attorney with the Arkansas Supreme Court Office of Professional Conduct. She is Co-Chair of the YLS Law Day Committee and ChairElect of the Young Lawyers Section.
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Book Review continued from page 26
are made. The author has regaled public and private audiences for years with those stories. A couple of years ago, though, he felt the time had come to preserve it in writing. When the 42nd Governor of the State decided that he would seek to become the 42nd President, it was Bowen whom he chose to protect and shepherd his interests and programs in the statehouse. Well into retirement, Bowen has led an energetic and productive life, which has included a stint as dean of the law school that now bears his name. Excerpt: As a die-hard Democrat, I watched these developments [Jim Guy Tucker’s announced intention to run for Governor against Bill Clinton in early 1990] with growing consternation. A political blood bath was shaping up—one I feared would do great harm to the party and to the state. I was not close to Tucker but had been friends with Clinton since the young law professor had come so close to unseating Republican U.S. Rep. John Paul Hammerschmidt in the Third Congressional District in 1974.
Race Relations in the Natural State (2007) by Grif Stockley. $30 cloth cover, $15 soft cover. In this 198-page book published by the Butler Center for Arkansas Studies, lawyer-novelist and Arkansas Writers Hall-of-Famer Grif Stockley presents an introductory text on a topic that pervades the entirety of Arkansas history. Stockley includes tales of the late 1800s, when Arkansas farm recruiters went to great lengths to lure ex-slaves into Arkansas. He writes of one who was told that Arkansas was “a tropical country of soft and balmy air, where cocoanuts, oranges, lemons, and bananas grew.” Believing that when a story is painful, it is better to tell it and deal with what it means than to ignore it, Stockley has endeavored to portray many dimensions of the history of his titular topic. Writing in the Arkansas Times, reviewer John Williams notes that “Although the book is divided into sections that touch upon major political movements, it is at its best when it invokes specific characters and situations.” The author of a biography of Daisy Gatson
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Bates, as well as an account of the Elaine, Arkansas, race-related massacre of 1919, Stockley deftly employs character sketches to highlight specific impacts of racial prejudice. Excerpt: Blacks [by 1894] not only disappeared from the Arkansas legislature; they also disappeared from city and county government and jobs. For example, in 1895, now freed from any need to appease blacks politically, Helena authorities terminated the job of the last African American on the police force. He had served for 20 years but was now alleged to have used force against a white man. ■
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Holt continued from page 24
in private practice. He most enjoyed his work for court improvement. He wrote the opinion that invalidated the state law allowing nonprofessionals to be juvenile judges. He led the court to revise judicial disability and worked to change the municipal court structure. His greatest accomplishment may have been the establishment of the drug courts. There are now thirty-five such courts located in all areas of the state and a full time coordinator for the Substance Treatment Education Program. All in all, the service of the Holt family to the legal system in Arkansas is to be commended. Table of Authorities: The American Bench, 1989\90, p 205. Arkansas Democrat, October 31, 1983. Finney v. Mabry, 546 F. Supp. 628 (E.D. Ark. 1982). Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970). Wright, Jacqueline S., Interview with former Associate Justice Jack Wilson Holt, Jr., July 8, 2007. This article is provided by the Arkansas Supreme Court Historical Society, Inc. For more information on the Society contact The Arkansas Supreme Court Historical Society, Justice Building, Suite 1500, 625 Marshall Street, Little Rock, Arkansas 72201. Jacqueline S. Wright Walker is a graduate of the University of Oklahoma School of Law in Norman, Oklahoma. She retired as Director of the Supreme Court Library in 1998. â&#x2013;
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In Memoriam
Sam Tate Heuer Sam Tate Heuer of Little Rock died December 22, 2007, at the age of 55. He graduated from the University of Mississippi and earned his juris doctorate degree from the University of Arkansas School of Law. He served as a deputy prosecuting attorney in Washington County. He was an active member of the Arkansas Bar Association where he served on the Criminal Law, Labor & Employment Law, Civil Litigation, and Tort Law Sections. He was a fellow of the Arkansas Bar Foundation. Heuer was best known for representing Whitewater Development Corp. founder James McDougal during the federal investigation into his business dealings, according to an article in the Arkansas Democrat Gazette. He is survived by his wife, Max; children Tate Heuer, Polly Glass, Charlie Heuer, Brittany Parker, and Haley Parker; and three grandchildren. Ray S. Smith, Jr. Ray S. Smith, Jr. of Hot Springs died November 1, 2007, at the age of 83. He attended Washington and Lee University until 1943, when he enlisted in the Army Air Corps. After World War II, he returned to the university and earned his juris doctorate degree there in 1950. He then went into law practice in Hot Springs. Smith, a former Arkansas legislator, cast the only vote against a bill giving Gov. Orval E. Faubus the power to close public schools during the integration of Central High School in 1957, according to an article in The New York Times. He was a member of the House of Representatives from 1955 46
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to 1982 and was speaker from 1971 to 1973. He was a longtime member of the Arkansas Bar Association where he was a sustaining member and he was a sustaining fellow of the Arkansas Bar Foundation. He also served on the Association’s Lawyers Assisting Military Personnel Committee. He is survived by his wife of 56 years, the former Patricia Floyd; and two sons, Scott and Steven Smith.
Leroy Froman Leroy Froman of Searcy died December 15, 2007, at the age of 72. He graduated from Arkansas State Teachers College (now University of Central Arkansas) and earned his juris doctorate degree from the University of Arkansas School of Law. He practiced law in Searcy and later served as municipal judge in Searcy until his retirement in 2000. He was a longtime member of the Arkansas Bar Association where he served on the Executive Council, the House of Delegates and on the Professional Ethics Committee. He was past president of the White County Bar Association and past president of the Arkansas Municipal Judges Council. He was a former prosecuting attorney. He served as special justice of the Arkansas Supreme Court. He was a veteran of the U.S. Army and was an Arkansas state trooper before
attending law school. He is survived by his wife, Nancy Williams Froman; daughters, Dr. Elizabeth Froman Hudson and Robin Froman; and three grandchildren. John (Johnny) B. Moore, Jr. John (Johnny) B. Moore, Jr., of Clarendon died January 6, 2008, at the age of 89. He earned his juris doctorate degree from the University of Arkansas School of Law. He was personnel manager at a World War II shell-loading plant near Memphis then returned to Clarendon upon his father’s death to take over his law practice, manage the family farm, and care for his mother, according to the obituary in the Arkansas Democrat Gazette. He was an avid outdoorsman and conservationist. He was a longtime member of the Arkansas Bar Association and a fellow of the Arkansas Bar Foundation. He is survived by his son Burton Moore and daughter April. Immediate Past President James Sprott recalled that “Mr. Moore was a wonderful mentor to me and other young lawyers when I started practice with his brother-in-law in Brinkley. He was professional, tenacious and made the interests of his clients foremost, while always ready with a humorous story to lighten the daily grind of a country law practice. His infectious smile and easy laugh enamored him to us all.”
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 October 1, 2007, through December 31, 2007. IN MEMORY OF VIRGINIA BUCK Boone-Newton County Bar Association IN MEMORY OF REBECCA CLARK Laura Hensley Smith IN MEMORY OF JEWELL DOWDEN James M. Simpson IN MEMORY OF SAM HEUER Judge Robert Dawson Laura Hensley Smith IN MEMORY OF EVELYN PERKINS Ann Dixon Pyle IN MEMORY OF BILLY S. SATTERFIELD Judges Wayne and Rita Gruber B. Jeffrey Pence IN MEMORY OF RAY S. SMITH, JR. Pierce Law Firm PLLC Ray S. Pierce Roscopf & Roscopf, P.A. Mike Wilson IN MEMORY OF JUDGE HOWARD TEMPLETON Joseph K. Mahony II Womack, Landis, Phelps, McNeil & McDaniel
SCHOLARSHIP CONTRIBUTIONS JOE C. BARRETT SCHOLARSHIP FUND Jack C. Deacon E. CHARLES EICHENBAUM SCHOLARSHIP FUND Mr. and Mrs. L. R. Jalenak, Jr. HORACE H. AND JAMES H. McKENZIE SCHOLARSHIP FUND Judge James M. Moody JUDGE WILLIAM R. OVERTON SCHOLARSHIP FUND Judge James M. Moody WILSON & ASSOCIATES ETHICS SCHOLARSHIP FUND Wilson & Associates, P.L.L.C. ROXANNE TOMHAVE WILSON SCHOLARSHIP FUND Judge James M. Moody JUDGE HENRY WOODS SCHOLARSHIP FUND Judge James M. Moody
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. Acknowledgments are sent by the Foundation to the family advising them of the contribution. The Arkansas Bar Foundation also receives and acknowledges gifts honoring individuals for a special event in their lives. Arkansas Bar Foundation • 2224 Cottondale Lane Little Rock • Arkansas 72202
Vol. 43 No. 1/Winter 2008 The Arkansas Lawyer
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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. Med-mal EXPERTS, Inc. www.medmalExperts.com, 888-521-3601. WANT TO PURCHASE MINERALS AND OTHER OIL/GAS INTERESTS. Send details to: P.O. Box 13557, Denver, CO 80201. Judicial Ethics Advisory Committee has announced a vacancy. This judicial vacancy is now open and will expire on June 30, 2010. Members of the JEAC are appointed by the Judicial Discipline and Disability Commission. To be considered for this position, you must be a retired judge or justice. Please forward your resume and letter of interest to 323 Center Street, Suite 1060, Little Rock, AR 72201 or email to david. stewart@arkansas.gov no later than March 14, 2008. For more information, please visit www.state.ar.us/jeac or call 501-682-1050.
www.arkbar.com Putative Father Registry Arkansas statute 20-18-702 outlines the creation of a Putative Father Registry to entitle putative fathers to notice of legal proceedings pertaining to the child for whom the putative father has registered. § 20-18-701 defines “Putative father” as any man not legally presumed or adjudicated to be the biological father of a child but who claims or is alleged to be the father of the child. The registry was established within the Arkansas Department of Health, Vital Records Section. § 9-9-210 and § 9-9-224 outline legal requirements for petition of adoption and required statement that an inquiry has been made to the putative father registry. The Department of Health shall make the telephone number of the Putative Father Registry available to attorneys, according to § 20-18-704, for purposes of inquiry as to the existence of a putative father, and his name and address as contained in the registry. § 20-18-704 outlines who else can request information from the registry, otherwise the information is considered confidential and may not be disclosed. Registry information shall not be subject to the Freedom of Information Act of 1967. Inquiries by attorneys start with correspondence on letterhead to Vital Records. Send requested search of putative father files to: Vital Records, Amendments, 4815 West Markham, Slot H-44, Little Rock, AR 72205. There is a $5 search fee for each name requested. Make checks payable to the Arkansas Department of Health. If the situation is such that expedited service is needed, a fax (501-661-2869) may be used and a credit card order may be placed. There is a $5.00 expedite fee. After a search of the Putative Father Registry, Vital Records will send, on letterhead, a certified summary of its findings in the registry. § 20-18-704 states this information shall be admissible in any court proceeding in any court in this state. If you have further questions, please contact the Amendment Section of Vital Records at 501-661-2174. 48
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Mark Your Calendar Arkansas Bar Association 110th Annual Meeting June 11-14, 2008 Arlington Hotel Hot Springs
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