JANUARY 1986

THE ARKANSAS

January 1986

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ARKANSAS

January 1986 Vol. 20, No. 1 OFFICERS

REGULAR FEATURES

SPECIAL FEATURES

Don M. Schnipper. President Richard F. Hatfield. President-Elect Annabelle D. Clinton. Sec.-Treasurer Philip E. Dixon. Council Chair Wm. A. Martin, Executive Director Judith Gray. Assistant Executive Director

r

La

Catt v. State. Some Questions Raised. By Frances Ross

3 4 7 8

EXECUTIVE COUNCIL

Jack A. McNulty Bobby E. Shepherd Gary Nutter William Russ Meeks 1II Robert R. Wright 1II Tom Overbey Robert S. Hargraves John D. Eldridge III Joe Reed David Solomon Stephen M. Reasoner David K. Harp

EX-OFFICIO Don M. Schnipper Richard F. Hatfield William R. Wilson. Jr. Annabelle D. Clinton Richard L. Ramsay Philip E. Dixon EDITOR Ruth M. Williams

The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. 400 West Markham.

Little Rock. Arkansas 72201. Second class postage paid at Little Rock. Arkansas. Subscription price to nonmembers of the Arkansas Bar Association $15.00 per year and to members $10.00 per year included in annual dues. Any opinion expressed herein is that of the author. and not necessarily that of the Arkansas Bar Association. or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent in two copies to the Ar路 kansas Bar Center. 400 West Markham.

Little Rock. Arkansas 72201.

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

10 16 Toward the Bicentennial.

Part lV.

By Robert M. Cearley and Jay W. Dickey. Jr.

Point of ViewfLetters

Law. Literature & Laughter

Generations in the Law: The Shacklefords and Mayeses. A Joint Family History. by Jacalyn Carfagno

In Memoriam

18

23 Foster Care Reform: A Model for the Nation.

by Judge Tom Glaze The Federal Income Tax: Use of the Credit Shelter Trust.

By Mitchell D. Moore

The President's Report

Supreme Court Committee on Professional Cond uct.

Disciplinary Actions

26 35

36

Bulletin: Lawyers Helping Lawyers

38

Executive Director's Report

39 40

Judicial Department Report

41

In-House News

Young Lawyers' Update

ON THE COVER: In "Foster Core Reform in Arkansas: A Model for the Notion." Judge Tom Gloze examines the eflorts of the Arkansas Permanency Planning Task Force to improve the state's foster care program. Among its efforts are the passage of Acts 868 and 424 of 1985. The acts require a two-tiered system of periodic judicial reviews and dispasitional hearings regarding the status of children in foster care and embody the reforms of the Adoption Assistance and Child Welfare Act of 1980 (Public Law 96-272). The United States Department of Health and Human Services termed the task force "one of the models for the nalion."

Cover illustration by Scott Fraser, Longmont. Colorado. From the Exhibition West '851Art and The Law, Copyright 1985, West Publishing Company

January 1986/Arkansas Lawyer/I

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THE PRESIDENT'S REPORT

Mandatory CLE: The Right Step Toward Improved Competency

By Don M. Schnipper In my last report to the membership, I outlined numerous items which have been cited by colleagues as problems facing the legal profession and asked whether the profession is in a position to provide solutions to these problems. The only possible solution suggested was to improve the competency of lawyers; that is, to improve the qualifications and capabilities of members of our profession to provide legal services to the general public. The purpose of this report is to provide a more specific solution.

Lawyer competency has been assailed by members of the United States Supreme Court. governmental agencies, the news media and the American Bar Association. One of the most common complaints one hears from both federal and state trial judges revolves around the incompetency of attorneys practicing in their courts. Conversely, one of the most common complaints from lawyers about judges is the in-

competency of the tribunal. Yes, the sword cuts both ways.

Of even more importance are the complaints of the general public. to whom we are sworn to provide knowledgeable and fair legal services and the income from whom makes up, for most ot us, a majority of our annual income.

Without a doubt. a continuing working knowledge of the law is an integral part of our obligation to them.

This obligation is constantly challenged by the adoption of new and amended state and federal statutes, regulations by administrative agencies. adoption of court rules and decisional law. Almost individually, and certainly cumulatively, such changes as these literally overwhelm the capacity of even the most conscientious and brilliant practitioners of our profession.

In an attempt to assist members of our profession, and thereby improve the legal services available to the general public, 19 states to date have determined that a plan of mandatory continuing legal education is, at least. a step in the right direction.

The Arkansas Bar Association instituted a study of this subject in May, 1983, through the appointment of a special committee.

Their plan was presented to the Association's Executive Council on April 27, 1985 and, after lengthy and heated debate, was approved. The Association's House of Delegates debated and ultimately approved a plan of mandatory CLE at its meeting on

June 8, 1985.

The "Arkansas Rules for Mandatory Continuing Legal Education" will have been presented by petition to the Arkansas Supreme Court by the time this report is published and it is anticipated that all members of the legal profession in the state will have an opportunity to voice their approval. disapproval or suggestions concerning its subject matter and details. For a capsule of the plan, I commend to you the article "Mandatory CLE in Arkansas: On the Cutting Edge" by W. Russell Meeks, III, appearing in the October, 1985 issue of The Arkansas Lawyer, For those who desire a more detailed examination of the plan, I suggest you request a copy from the Association's office.

Certainly, we may all have objections to portions of the plan as presented. In fact. the plan may be subject to change and/or amendment by the Supreme Court and, ultimately, by the Continuing Legal Education Commission which the plan would establish. Regardless of the details, the importance of CLE is not an issue; rather, the issue is whether every attorney should be required to obtain a minimum amount of CLE in order to remain licensed to practice. At least in my opinion, the "Arkansas Rules for Mandatory Continuing Legal Education" is the right step toward improving lawyer competency. I highly recommend that each member become familiar with the plan and support this one step toward improved lawyer competency in our state.

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POINT OF VIEWILETTERS Thoughts On John P. Sizemore Editor's Note: lohn Sizemore was a native of Magnolia, a former member of the faculty of Antioch School of Law in Washington, D.C. and an intermittent member of the Arkansas Bar Association. He died in lune of a self-inflicted gunshot wound in West Helena. This "Point of View" is an excerpt of remarks made by lim O'Connor at a memorial service in Little Rock on a hot summer afternoon. Our thanks to Thomas H. McGowan for his editing assistance.

By lim O'Connor My wife and I are Catholic and John always used to joke about that. Because there may be other Catholics in the audience, I won't repeat his exact remarks. Anyway, if he could see me standing behind the pulpit in a Unitarian church, sweating, he'd have a laugh.

I knew John from working with him at East Arkansas Legal Services. We worked together there for two years and have kept in touch since.

It was at my house that John died. Jean and I have talked about it and we said it was as if he went to a hospice. Just as cancer patients go to a hospice, John knew he was going to die and wanted to be among friends when he did. It wasn't horrible, although some people might think so. Jean and I have talked about it and I told her it was just peaceful.

I can't say what John meant to any of you. Some of you have

known John for 20 years and some knew him all of his life, I can only tell you what he meant to me and to some people in east Arkansas. I also want to say what I think happened to John's life.

I first met John in May of 1982, After he was hired, we had a little reception so we could meet him. I 41Arkansas Lawyernanuary 1986

remember coming in, looking around and wondering who the new director could be. Finally, 1 realized it was the guy in the shorts and the T-shirt. Well, that little guy was something. He told us that we should be doing "the Lord's work." He even convinced some of us. We were in for two

whirlwind years.

So you know, let me tell you some of the cases he filed to help people in east Arkansas. One was to help poor women and their children gain access to decent housing. He didn't stop after we won that one - he wrote long letters complete with pictures of their terrible houses to Senators Bumpers and Pryor urging them to help with the problem. We sued to help guarantee medical treatment to poor persons who needed it. We sued to stop the practice of treating persons being held in jail like animals; their only "crime" was being too poor to be able to raise bail money. We filed two voting cases to help enable blacks in east Arkansas, for the first time in history, to freely elect representatives of their choosing. We sued to help folks who had been wrongfully denied benefits for emergency housing, clothing, medical and utility needs. Finally, we represented two women who had been fired from their jobs and thrown onto the welfare rolls simply because they happened to have black skin. Some of you Legal Services folks know that he even sued the Legal Services Corporation. Now, that's really biting the hand that feeds you.

As you might imagine, John evoked strong emotions in east

Arkansas. Nobody was neutralthey either loved him or hated him. I always thought that John never learned how to spell the word "diplomacy." He also couldn't spell the word "compromise." And he'd never even heard of the word "retreat."

John was the cocky little sheriff who came in to clean up the town.

He was in a war against injustice and, unlike his soldiers, he viewed it as a crusade rather than just a job or a case. He wasn't a mercenary - every fight became his fight. not just something he was helping out with. I remember one meeting where he was all worked up and he pounded on the table saying, "Dammit, we black folks aren't going to take it anymore." I don't even want to think what would happen to me if I tried that. But John could get away with that because you just knew it was genuine. It was John.

Yes, every fight was John's fight. Now we reasonable people know that you can't do that. There are just too many fights so we get just a little bit involved and then we go home and forget about it.

John couldn'\. He watched the news and agonized over the plight of those in Ethiopia. He fought the world and, as we reasonable people know, if you do that the world's gonna beat you. But warriors don't know that. They're born fighting and they go down fighting.

A friend once said about John that he was an angry young man who wasn't quite so young anymore. It got me to thinking about what made John different from the rest of us. The only way I can describe it is that he didn't have his sunglasses on. If the sun is all that's bad and unjust in the world, we reasonable people all wear sunglasses so that we can see the good that's in the world. But John didn't have any sunglasses. And the longer he stared at the sun, the less he could make out of everything else, Finally, he couldn't see the sky, or the trees, or the grass or all of his friends. We were there but he just couldn't see us. He couldn't see his many victories.

John fought to the end. Finally,

he was like a boxer who'd had too many fights. He was covered with scars. There was too much damage. He gave and gave and gave until he had nothing lelt, even for himself. He cared and cared and cared until he couldn't even care for himself. John drove with his foot to the floor and, finally, he just ran out of gas.

Now we moderate people wonder why he didn't just slow down.

Maybe, we think, he could have come to care only a reasonable amount. Maybe he could have been only mildly concerned rather than possessed. It wasn't him.

John was a warrior who battled life. We realize that life always wins but John didn't. He couldn't accept that.

A quote from Ernest Hemmingway describes John: "If people bring so much courage to this world, the world has to kill them to break them, so, of course, it kills them. The world breaks everyone and afterward many are strong at the broken places. But those that will not break, it kills. It kills the very good and the very gentle and the very brave impartially."

That sounds hopeless but it's not. That quote was John, not us.

We can go on. We are all better for having known him.

0

LETTERS October 15, 1985 Honorable Charles L. Carpenter Attorney at Law 1405 Main Street North Little Rock, Arkansas 72116 Dear Charles: I read with interest your "point of view" letter in The Arkansas Lawyer for October, 1985. I am very much in agreement with the basic recommendations contained in your letter. I thoroughly agree that we should have a Judicial Disciplinary Commission, and that it should be established by the state constitution. I am not a recent convert to this position.

You may find verification of this in the 1965 report of the Arkansas Judiciary Commission on which I served. My copy of this report is currently on loan to the Arkansas Bar Association at the Bar Center.

I also agree that a Judicial Disabili ty Commission should be established. I do not believe, however, that the disability commission should be combined with a Judicial Compensation Commission. The desirable perspectives of these commissions would be too divergent. in my opinion.

I do want to point out what I feel to be serious errors in your letter. as follows: I. The committee did not report that the only way to take action against a state judge was by impeachment. I have a copy of the report before me. It was specifically pointed out that there were three sources of law on the removal of judges, i,e., impeachment; joint address; and, as to county judges, municipal judges, and justices of the peace, the filing of information, presentment or indictment.

2. The committee did not report that "the only way standards can be enforced is through a merit system." The committee did feel that the merit system would eliminate the particular violations of the rules of judicial conduct which led to the appointment of the committee.

The committee did recommend that the merit system be considered for the selection of state judges.

3. The merit system is not a euphemism for gubernatorial appointment. I could never support a system that would leave the selection of judges to gubernatorial appointment.

The merit system universally requires nomination of a limited number of persons by an independent commission. While appointment from this list of nominees is made by the governor, his selection is subject to veto by the voters after the appointee has served a trial term. Furthermore, ilthe selectee is retained in office, he is

subject to periodic performance reviews by the electorate.

These are factual matters which I feel should be corrected. I have

some difference of opinIOn as to the value of the Judicial Ethics Committee, because I doubt very seriously that the House of Representatives, or the two Houses of the General Assembly, would totally ignore a recommendation by that committee that a judge be removed by impeachment or address. This, however, is a matter of opinion.

I must take issue with your implication that the Arkansas Supreme Court has failed to act in the matter of discipline of judges under its general superintending control over all inferior courts vested by Section 4, Article 7 of the Arkansas Constitution. It is quite clear that under this provision the Supreme Court can act only on cases and tribunals, not upon judges. I refer you to Carroll v. Crawford County. Il Ark. 604; Marr, ex parte. 12 Ark. 84 and 12 Ark. 8; Allis. ex parte. 12 Ark. 101; Goode: ex parte. 19 Ark. 410. In these cases. the Court has said that this power is to keep subordinate tribunals in due bounds whenever they act beyond their power or refuse to act at all and should rarely. if ever, be exercised by the Supreme Court over circuit courts, otherwise than in harmony with ordinary appellate jurisdiction as regulated by law.

The power is designed to preserve harmony and insure efficiency in the whole system by forcing each subordinate tribunal to keep within its sphere of action and to prevent a failure of justice in extreme

cases from any inherent defect in the subordinate courts or incapacity of their incumbents. By no stretch of imagination can it be said that misconduct of a judge, particularly as determined by the Code of Judicial Conduct. is an inherent defect in the court over which he presides, or an incapacity of the incumbent. As a matter of fact, I have been unable to find any example of incompetency of the incumbent recognized. except where, on petition for habeas corpus to admit a defendant charged with murder to bail. the Supreme Court acted because the office of circuit court in the district was vacant. See Robins. ex parte. 15 Ark. 402 and Crise. ex parte. 16 Ark. 193, where the Court first entertained a Petition for Mandamus while the office of circuit judge in January 1986JArkansas Lawyer/5

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the district was vacant. but dismissed it when the vacancy was filled.

The cases cited were decided while the Constitution of 1836 was in effect. but the pertinent language as to the superintending control of the Supreme Court of Arkansas in the Constitution of 1874 is identical and there is virtually no difference in any of our constitutions. so the matter was put at rest by these decisions. In this regard. see Baxter v. Brooks.

29 Ark. 173; Featherstone v. Folbre. 75 Ark. 510. 88 S. W. 554; State v. Clay County. 93 Ark. 288. 124 S.W.757.

I do feel that these factual statements to which I have referred. should be corrected. Since your letter was published in The

Arkansas Lawyer. I think it would be most desirable if you would use the same vehicle for correcting these statements. Although I would prefer not to do so. I could ask that this letter be published as a response in the same section

that your letter was published.

I have always admired and appreciated your zeal in performing as the chair of the Association's Judicial Council Liaison Committee. and your dedication to the improvement of the judicial system. I think your suggestions are worthy of serious considera-

tion and I believe that you and I agree more than we disagree on

such matters.

With kindest personal regards.

I am.

John A. Fogleman 0

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Law. Literature & Laughter "Thou shalt not bear false witness against thy neighbor." Exodus 20: 16. The intent being to proscribe lying under oath, the Ninth Commandment seems reasonable enough. Following this precept. our society has made perjury a felony, and our profession soundly denounces subornation. It is more than somewhat ironic, then, that scholars and practitioners of law have made a line art of ferreting out falsehoods.

It is no new thing. this concern with piercing through carefully chosen words and good intentions. dissecting them in search of Truth. Shakespeare gave us an early example in Henry VI, Part II, King Henry, the Duke of Gloucester, and the Bishop of Winchester were strolling through St. Albans one day in the mid-1440s, when they heard that a miracle had occurred; "[Al blind man at St. Albans' shrine / Within this hallhour hath receiv'd his sight ..."

Being concerned leaders of the larger community, they expressed an interest.

Saunder Simpcox, an apparently crippled beggar from Berwick. was brought to them. Simpcox said he'd been born blind, received a call in the night from St. Albans himsell, and, in response, came to the shrine and was made to see. Questioned about his lameness, Simpcox attributed it to a fall from a plum tree in his youth.

Sensing an early type of wellare fraud, the Duke decided to crossexamine; "What color is this cloak of?"

"Red, master; red as blood."

"Why, that is well said: what color is my gown of?"

"Black, forsooth; coal-black as jet." Upon further questioning, Simpcox confessed he did not know who his questioners were.

Again the Duke spoke up: "... If thou hadst been born blind, / Thou mightst as well have known all our names. as thus I To name the several colours we do wear. I Sight may distinguish of colors; but suddenly / To nominate them all. it is impossible."

By Vic Fleming The Duke then ordered that Simpcox and his wife be whipped "through every market-town, till they come to Berwick, from whence they came," proclaiming a second "miracle" when the beggar leapt forward and ran away.

In his 1903 book, The Art of Cross-examination. Francis L. Wellman reprinted David Paul Brown's "Golden Rules for the Examination of Witnesses." Rule III for cross-examination: "Be mild with the mild; shrewd with the crafty; merciful to the young, the frail. or the fearful; rough to the ruffian; and a thunderbolt to the liar."

Illustrative of the "thunderbolt" theory is an account by Wellman of a damage sui t in which the plaintiff's medical expert, a renowned courtroom witness. gave such impressive testimony that "a

fail ure to cross-examine would have been tantamount to a confession of judgment," but "questions related to his direct evidence would have been worse than useless."

Having been a defense expert for 40 years, the cocky doctor was "forced to admit that he was so much in court as a witness . .. that he had but comparatively little time to devote to his reading and private practice." Asked to name an authority who agreed with his diagnosis, he replied, "Dr. Ericson agrees with me." He identified Ericson as "one of the most famous surgeons that England has ever produced" and the author of Ericson on the Spine.

Counsel: "[H]ow is it that a man whose time is so much occupied ... has leisure enough to look up medical authorities to see if they agree with him?"

Doctor: "Well, ... I hall suspected you would ask me some such foolish question; so this morning after my breakfast. ... I took ... my copy of Ericson's book, and found that he agreed entirely with my diagnosis of this case."

The doctor's response drew laughter from the audience and jury. Defense counsel then produced a copy of Ericson on the Spine. "Won't you be good enough to point out to me where Ericson adopts your view of this case?"

Doctor: "Oh, I can't do it now; it is a very thick book."

Counsel: "But you forget. doctor, that thinking I would ask you some such foolish question, you examined your volume of Ericson this very morning ..."

Doctor: "I have not the time to do it now."

Counsel: "Time? Why, there is all the time in the world. I am sure the court will allow me to suspend my examination until you shall have had time to tum to the place you read this morning [so that youl can reread it now aloud to the jury."

By a gratuitous lie, the doctor's entire testimony was discredited.

Witnesses must be careful of such things. As must counsel when woodshedding their truthtellers.

0 Š 1985 by Vic Fleming January 1986/Arkansas Lawyern

Catt nor Catt? Central to the problem was the difficulty of identifying the Catt culprit. Testimony of undercover narcotics officer. Les Javert, was crucial.

F

rom the pen of the justice who stunned the legal profession when he swept

away statutory law on April I, 1968 in Poisson v, d' Avril', has come a startling 1985 installment in Colt v, State'. In his earlier opinion, justice George Rose Smith wrote that the statutory law, alone, had been abolished by the Omnibus Repealer of 1945 since the General Assembly simply would not have monkeyed with judge-made law for fear of risking anarchy. The ruse was soon found out, although not before attorneys, assembled in emergency meetings, assessed

the implications of the opinion.

What has justice Smith authored in 1985? Does it convey the mark of another joke or is it only by coincidence that Colt, like Poisson, bears the date of April I? A closer examination is merited.

A dilemma posed in Colt involved generally the question of which Catt sold the cocaine but actually delivered a counterfeit substance - sugar. Was it Catt, was it Catt and Catt or could it conceivably have been neither

Editor's Note: Frances Mitchell Ross is coordinator of the Women's Studies Program at the University of Arkansas at Little Rock where she is assistant professor in the Department of History. In 1985, she received the Arkansas Bar Foundation's writing award for "100 Years of History, Arkansas Women in Law" in The Arkansas Lawyer. The Catt article was written prior to pub-

lication of an article on the same subject matter in the Arkansas Gazette.

At a hearing, javert had stated unequivocally "of course I'm sure that's the man I dealt with. If that's not Kilkenny Catt, he looks enough like him to be his twin brother." Unknown to javert at the time of his testimony was the existence of Gallico Catt, identical twin brother of Kilkenny. Was it Kilkenny Catt, or could it actually have been Gallico Catt with whom javert dealt and later thought he had identified? Based partly on the officer's testimony, both Catts were found guilty of a drug offense. Kilkenny, charged with selling cocaine, was convicted of selling the counterfeit, and Gallico just the reverse. In spite of the complexity of the problem, the Supreme Court accepted "Officer javert's unshaken identification of the culprit. no matter who he was."

A related problem was the question of which,oUense is greater, selling cocaine or agreeing to

sell cocaine and actually delivering sugar instead. A third possibility also existed. Could each offense absorb the other? Defense counsel argued that if one offense is less than and included in the second offense, then logically the second offense cannot be less than and included in the first.

Following this logic counsel argued that both verdicts could not be upheld. The Court acknowledged that while that argument might have merit, it really did not, and proceeded to uphold the identical five-year sentences which had been imposed upon the brothers. Admitting that Gallico's appeal was particularly challenging, the Court turned to a test of lesser inclusivity which the Legislature provided. According to this test, "an offense is included if it is established by proof of less than all the elements required to establish the offense charged."

Gallico Catt had been charged with having "agreed to sell cocaine," but he "actually delivered sugar instead of cocaine." In the court's opinion, "If one leaves out the necessary element we

have italicized, the charge is that

Gallico agreed to sell cocaine and actually delivered cocaine. That is precisely what he was convicted of. It is inescapable that each offense is included within the other."

Issues of logic, law and evidence aside, the Catt case raises other questions as well. "Kilkenny cats," the informed critic will remember,

were two cats who

fought until there was nothing left but their tails, much as the gingham dog and the calico (Gallico?) cat fought until they ate each other up. In Colt v, State, did two different criminal offenses eat each other up? Is this a tale of legal tails?

Moreover, officer Les javert bears striking similarity, at least in name and duty, to javert, the relentless officer in Victor Hugo's Les Miserables, And can we find believable the story that undercover narcotics officer javert had his cover blown by a tornado while he was in bed? Furthermore, what must be made of the Court's citation of a prior case, otherwise apparently irrelevant. for the single word "No?'" Finally, the attentive reader of Supreme Court advance sheets will also note the Colt case's curious pagination. Was it by accident or by design that Colt. the better part of five pages long, begins on page 334, while the following case, Livingston v. Street takes up on page 335?

What we have thus far is a case of questions. Is this opinion yet another hoax? On the other hand, would a national publishing house print a facetious opinion, indexed and with headnotes as in Colt v. State, 691 S. W. 2d 120?

Must we accept this opinion for what it is, or has justice joked again? Had curiosity proved too great a tempter, we could have put this issue to Stephen Engstrom who is listed as attorney for the defendants. Indeed we could have done this, but we didn't venture to inquire, choosing not to

test curiosity's effect upon the Catts.

D FOOTNOTES

1244 Ark. 478-A. reprinted in 22 Ark. 1. Rev.

74t (1969). , 285 Ark. 334, 691 S. W. 2d 120 (1985).

3 Commercial Printing Co. v. Lee. 262 Ark 87.553 S.W. 2d 270 119m January 19BB/Arkansas Lawyerl9

AND

MAYES

A JOINT FAMILY HISTORY OF ENTHI

BY JACALYN

M

arshall and Dennis Shackleford and their cousin, Hubert Mayes, Jr., never thought seriously about doing anything but practicing law.

"I remember my uncle and my dad sitting in the living room on the divan talking law - that's all they ever did, was talk law - and I sat on the floor listening to them. I just thought that was the greatest thing in the world," Dennis Shackleford says.

It's not surprising the boys were impressed by their fathers' enthusiasm for the profession. Their joint family history goes back to 1920 when John Marshall Shackleford, Sr.. and Violet Mayes were married but the practice of law in the family goes back to 1886 when John Dennis Shackleford became a lawyer.

John Dennis was born in 1864 to a farming family who migrated to Carroll County, Arkansas, in the 1870's. Apparently always gifted with great intellectual curiosity, he studied at Carrollton Academy

establish a law school and became a member of its first graduating class, receiving his Bachelor of Laws Degree in 1894. The Arkansas Gazette said of him in 1899, "No member of the bar of Little Rock occupies a more enviable position and if what he has already achieved may be accepted as a prophecy, a brilliant future awaits him."

there then made his way to Lonoke

County to teach school and read for the bar.

Shackleford set up an office in Little Rock in 1890. He worked to

lohn Dennis Shackleford in 1913 from The Book of Arkansas published by the Arkansas Gazette.

Generations in the Law: A Series IO/Arkansas Lawyer/January 1986

~ORDS

ES USIASM FOR THE LAW

CARFAGNO Shackleford was active in politics as well and was elected to the House of Representatives in 1896 and to the Senate in 1898.

During that same session his brother, james, also a lawyer, was in the House representing Perry County. Another brother and lawyer, Henry, practiced in Little Rock around the turn of the century but apparently left the profession to farm land in western Pulaski County.

John Dennis laD a vigorous though unsuccessful campaign for Pulaski County judge in 1904, questioning the expenditures for roads by the incumbent, W. M. Kavanaugh. He retained his interest in the development of the county, accumulating substantial land holdings and serving as attorney for the improvement district that resulted in the construction of the Twelfth Street Pike.

Shackleford and his wife, Ada Bell Dominack, had three children: john MarshalL Ada May and William Henry. The untimely death of William Henry at the age of 20 caused Shackleford to examine and question his religious beliefs.

He approached this like a legal problem, analyzing the evidence - evidence, in this case, that he found in the Bible.

The product of his effort was a book titled The Life of jesus of Nazareth which he published in 1928. Shackleford set out in the

book his painstaking analysis of the Gospels and their message.

The final chapter defines the humanist religion he envisioned, again using the lexicon of the lawyer: "If we could accept the Ten Commandments as given by Moses as a constitution. as it were; and then accept Jesus' sermon on the Mount as an amendment to that constitution . ..

we would have the proper foundation for a real religion. This religion would be free from hate. intolerance, and imaginative and unreal things. This religion would be elevating and benefiting to mankind without injury to anyone."

Shackleford believed education was one of the primary tools in the effort to elevate mankind. His children had university educations and he was an avid reader all his life. Although clearly successful as a lawyer, he must have had great impact as an educator, too.

When he died in 1937 his pallbearers were students he had taught in Cabot 52 years earlier.

It was clear what profession Shackleford envisioned for his son when he named him after the first chief justice of the U.S. Supreme Court, john Marshall. The younger Shackleford apparently had that goal in mind as well since by the time he was a high school senior in 1915 he was already cast as the class lawyer. john Marshall was also voted "Most Studious Boy" that year and class president. and was active in sports. being chosen an All-State tackle.

In the class yearbook he listed his hobby as "ragtime."

Shackleford went on to the University of Arkansas where he lettered as a football Razorback in 1916. He joined the Sigma Chi fraternity, beginning a tradition followed by his sons and nephew.

He graduated from Arkansas Law School in Little Rock in 1921 (again, president of his senior class).

However. his education was interrupted by service in World War I. He served in France and became a

John Marshall Shackleford, Sr., pictured as 1915 All-state tackle in high school. "Of all men, both old and new, no one was more valuable to the feam than Shack." From "The Cage" yearbook.

second lieutenant in the 650th Aero Squadron of the American Expeditionary Forces. His military service was always important to him and he was active in the Veterans of Foreign Wars for the rest of his life, serving as state commander for a period during World War II. Following his admission to the bar, john Marshall practiced in Little Rock and represented Pulaski January 1986/Arkansas Lowyer/Il

Home of John Dennis and Ada Bell Dominack Shackleford at 416 E. Capitol Avenue in Little Rock. The house is no longer standing.

County in the legislature in 1923.

In 1925 he was sent by the Barber Henry law firm to El Dorado, a town that had changed drastically since the discovery of oil there four years earlier. Shackleford made his home there and became active in the community. In addition to extensive civic service he was a lay leader of the First Christian Church, an active Gideon and a member of the Knights of Pythias.

In the late '20s Shackleford was hired by Col. T. H. Barton to establish and run the insurance department for Lion Oil Company but continued some private practice.

In the late '30s he chose to devote all his energies to the practice of law. Although Shackleford practiced law alone, his firm could have been called "Shackleford and Shackleford" because of the integral role of his wife, Violet. By all accounts she was gifted with a very good legal mind and a remarkable capacity for work.

Editor's Note: Jacalyn Carfagno, 01 Little Rock, is a planning specialist with the Arkansas Historic Preservation

Program. She is a graduate of the University of Arkansas at Little Rock and recipient of the Booker T. Worthen Award lor Outstanding History Graduate.

121Arkansas Lawyer/January 1986

"She was incredible, she did everything.'路 her nephew, Hubert Mayes, Jr.. recalls. Violet ran the office, was legal secretary and general functionary. Later. when Marshall Shackleford was mayor of El Dorado in the late '40s, she was his administrative assistant and ran the law oHice for her son, John Marshall. Jr., as he began his law practice.

Violet's familiarity with law didn't begin with her husband's practice. Her only brother, Hubert Mayes, Sr.. had been a lawyer since 1925. The two Mayes children had moved with their widowed mother from Texas to Little Rock where they both received their early education and where Hubert later attended the Arkansas Law School.

Mayes was a few months shy of 21 when he graduated and. concerned about his youthful appearance, grew a mustache. At the time minors couldn't be admitted to the bar so while waiting to begin his practice Mayes worked as claims manager for Maryland

Casualty Company. The insurance company, which his son still represents today, became his best and one of his first clients when he became a lawyer.

Mayes was a gifted and energetic trial attorney, crossing the state to try cases in every county.

According to his son, he often re-

marked on the satisfaction for a trial lawyer of trying a tough jury case in somebody else's home county and "whipping him on his own dung hill." He was general counsel for the Missouri Pacific Lines and served as a special judge in both criminal and civil cases in Pulaski County Circuit Court. In spite of the demands of his practice Mayes found time to serve as chairman of the State Police Commission for 10 years during a period when the personnel and equipment of the state police doubled. As a commissioner he had a lasting effect, taking on the modernization and revamping of the retirement system for the state police.

Hubert Mayes, Jr., did not have the opportunity to try cases with his father, but he had many chances to watch him in action. "I

used to go with him when I was a kid, ride with him when I was younger and drive him when I was old enough to drive." Mayes recalls. The younger Mayes became somewhat familiar to judges around the state and remembers being very impressed when they would notice him and invite him to sit inside the bar in court, an area normally reserved only for lawyers.

Mayes also recalls in his youth going downtown in Little Rock to watch some of the big murder trials. Far from being overwhelmed by the violence of the facts of the case, he was impressed by the lawyers. "The facts of the case were interesting but I was much more interested in watching the lawyers' style and tactics," he says.

While Dennis and Hubert were still watching lawyers from the sidelines John Marshall Shackleford, Jr.. Dennis' older brother by nine years, was already at Fayetteville studying law. He graduated and was admitted to the bar in 1943 but received his degree in absentia as he was already in the infantry by May of that year. He was an infantry captain for two years in the Asiatic-Pacific operation in World War II. When Marshall Shackleford, Jr.. joined the family firm in 1946 he soon found himself almost a sole practitioner because his father devoted most of his time to being mayor. But between his mother's

know-how and a lot of trips to city hall for practical advice the practice and Marshall survived.

The elder Shackleford was defeated for re-election in 1949 by a margin of 64 votes but the Shacklefords weren't out of public life for long. Marshall, )r .. was elected to the state House of Represen tatives in 1950 and to the Senate in 1952 where he remained until 1961. As a legislator Marshall championed the creation, funding and staffing of the Legislative Council to assure continuity in the legislative process between sessions. "He was a good man and a good senator. He supported a more active role for the legislature in planning for the future of the state," Marcus Halbrook, director of the Legislative CounciL says about Marshall.

From 1957 to 1959 Marshall was chairman of the Legislative Council and in that role was instrumental in securing adequate, reliable appropriations for the University of Arkansas Medical Center. Marshall also sponsored legislation to address the rapid pollution of the natural waterways through the disposal of salt water discharged during oil production - an environmental problem that was at the time unique to South Arkansas. Halbrook says that Marshall's bill provided an economically feasible solution to the problem and served as a forerunner to much later legislation aimed at protecting streams and the environment. On behalf of the Arkansas Bar Association he sponsored measures to improve

the legal system including the Uniform Commercial Code, the Insurance Code. comparative negli-

gence and modern rules for discovery, depositions and appeals.

Marshailleft the Senate to run a hotly contested and narrowly lost campaign for prosecuting attorney. Both Marshall and Dennis see the loss as a blessing, however. "We have remarked many, many times that it was probably the best thing that could have happened to him. We could devote our full efforts to the law practice and we have done that ever since," Dennis says.

Dennis joined the firm in 1958, having finished law school after an interruption for service as a

helicopter pilot in the Air Force in

Dennis L. Shackleford, Iohn Marshall Shackleford, Ir., and S. Hubert Mayes, Ir .. pictured in 1985.

helped open courtrooms to all media to report on trials. He also chaired the Law School Committee that analyzed the current status and future needs of legal

Korea. Dennis has stayed clear of the political arena. However, while developing his practice as a trial attorney - specializing in products liability and medical malpractice - he has been a very active member of the bar.

Dennis has served on, and in many cases chaired. innumerable

education in Arkansas and re-

committees. In recent years he

has chaired the committee on Cameras in the Courtroom that

ported its findings to University of Arkansas President Ray Thornton.

For their work, Shackleford and the committee were commended by the House of Delegates in September, 1985.

As president of the Arkansas Institute for Continuing Legal Education, Shackleford has joined the Association in its push for mandatory continuing legal January 1986/Arkansas Lawyer/13

education. He says that continuing education and adapting to and making the best use of new technologies are essential to "providing good legal services at a reasonable cost."

Shackleford's service to the bar has been recognized by his receiving twice. in 1979 and 1985. the Association's Golden Gavel Award for "exemplary service to the legal profession." and by his election as president of the Association in 1983.

Dennis, like his uncle and cousin, is a conlirmed trial attorney. "Being able to try lawsuits and try lawsuits well is for me the ultimate in the practice of law," he says. "It's the top of the line," Dennis' cousin Hubert says. echoing his sentiments about trial work and reflecting a closeness that has existed between the two for most of their lives. Both are also fellows in the prestigious Americim College of Trial Lawyers, Only a year apart in age, Dennis and Hubert grew up more like brothers than cousins. Hubert Mayes, Sr., and his sister, Violet Shackleford, were very close and the families spent holidays together. The two boys spent almost all their summers together between Little Rock and El Dorado and, sometimes, traveling with Hubert. Sr., to watch him try cases.

The two were in law school

in the Air Force.

Following graduation from law school and his stint in the Air Force, Mayes worked as a deputy to prosecutor Frank Holt in Little Rock, later a supreme court justice. Other deputies in the office at the time included Jack Holt, Jr., John Jernigan, Tom Digby and Jack Lessenberry, all of whom have gone on to become judges.

Alter his tenure in the prosecutor's office Mayes moved to Atlanta to work for an insurance company.

In the late '50's he returned to Little Rock and has practiced there since, now a member of the Laser, Sharp & Mayes Iirm.

Mayes has been active in the Association although. according S. Hubert Mayes, Sr.. and S. Hubert Mayes. Jr.. date un-

known. Mayes grew the mustache to appear older when he began his law practice. together until separated by military service. For a few years they didn't see much of each other.

One day Dennis was on approach to land at an air bose in Alabama when another military airplane, according to his story. cut in front of him. Shackleford voiced his complaints to the tower and taxied up to see who was piloting the other aircraft. To the great surprise of both it turned out to be Mayes, who was a jet lighter pilot

Trial Consultation Melissa A. McMath, M.S., L.A.C. Worthen Bank Bldg.

Little Rock, Ark. 72201 501-374-1169

Jury Selection Witness Preparation Verbal-Nonverbal Analysis

Case Presentation Voir Dire Analysis Post Trial Jury Review

Association of Behavior Trial Consultants 14/Arkansas LawyeriJanuary 1986

to him. "no one is as active" as his

cousin Dennis. Mayes and his father each served on the Professional Ethics and Grievances Committee, and Mayes. Jr., has chaired the Public Information Committee.

Although none of the children of Marshall. Dennis and Hubert have become lawyers they have extended their legal family. Norwood Phillips joined the Shacklefords in 1969, becoming the Iirst non-family member to practice with a Shackleford since John Dennis began in 1886. Later Robert Trammell and Teresa Wineland joined the practice of Shackleford, Shackleford and Phillips. Two of Dennis' daughters have married lawyers. Eve, who attended law school but pursued another line of work, is married to H. Lawrence Yancey, a partner in the Prince and Ivester Iirm in little Rock and chair of the Association's Section of Taxation. Martha is married to Lawrence E. Chisenhall. Jr., a partner in the House. Wallace. Nelson & Jewell Iirm in Little Rock, where he practices in the areas of corporate and utility law.

Through four generations the Shacklefords and the Mayeses have seen the law as a profession. not just a job. Enthusiasm for the law and service to the bar have marked each generation and, according to Hubert Mayes, Jr.. it came naturally. "We were all taught the ethics of the legal profession. It came naturally from observing my uncle and my father."

0

Morris S. Arnold

EUROPEAN LEGAL TRADITIONS IN ARKANSAS 1686-1836 THE ONLY FULL-LENGTH STUDY describing the clash of legal traditions in Arkansas, Unequal Laws Unto a Savage Race chronicles for the first time the administration of European legal systems in colonial Arkansas.

While faint traces ofa remote European

past survive, absolutely nothing remains of the French legal foundations and Spanish civil law whicb ancient Arkansas residents observed.

Arnold's book. funded by the Arkansas Endowment for the Humanities, draws an original French and Spanish archives to explain the social and economic characteristics that allowed Arkansas' early residents to easily accept the common law of the United States.

The first European to possess judicial authority in Arkansas, Henry de Tonti.

Howdoesa mature, complex legal system, the outcome ofmore than two millenia of sophisticated reasoning. operate on the frontier?The fascinate and enlighten aU who are interested in the operation of law in society.

an~rs will

W.AJ. Watson

Nicholas F. Gallicchio Professor of Law Unl\~rsity of Pennsylvania

MonisArnold's description of the French and Spanish period isjust marwlous.lt will bea classic for some time tocome(orperhapseven forever!.

Hans. W. Bade Hugh Lamar Slone Professor of Civil Law Unh,ersily of Texas

The

University of Arkansas Press

234 pages, $23.00 cloth, ISBN 0-9386-33-7 Order through your local bookstore or direclly from the University of Arkansas Press, Fayetteville. Arkansas, 72701 (VISA or MasterCard welcome).

January 1986/Arkansas LawyerllS

IMEMORIAM served several years on its Com-

tion and the Clark County Bar

puter Use by Lawyers Committee.

He was also a member of Beta Theta Pi fraternity and a former president of the Bookfellows Club.

He was a member of Christ Episcopal Church and had been secretary of the Parish Vestry.

Survivors are his wile, Eleanor Todd Patty; a son, Claiboume W. Patty, Jr.. of Little Rock: and, two grandchildren.

0

Association.

H. W. "Bill" McMillan

Claiboume Watkins Patty, Sr. Claiboume Watkins Patty, Sf., aged 82, of Little Rock. died Thursday, October 10, 1985.

Patty had practiced law in Little Rock since 1948.

He was the son of Lewis D. and Mildred Watkins Patty and a member of a pioneer Arkansas family. Patty was a descendant of Isaac Watkins. an early Little Rock settler; the great-grandson of George Claibourne Watkins. chief justice of the Arkansas Supreme Court in 1854: and a grandson of Dr. Claiboume Watkins, an early Little Rock physician and surgeon.

Patty was a graduate of Lehigh University in Bethlehem, Penn..

H. W. "Bill" McMillan. aged 76, of Arkadelphia. died Saturday, November 9. 1985.

He was the senior member of the McMillan, Turner and McCorkle law firm in Arkadelphia. The firm was founded in 1859 by his grandfather.

McMillan was graduated in 1930 from Ouachita Baptist College and attended the University of Texas Law School.

He accepted a teaching position and coaching job in Norphlet (Union County) before transferring in 1931 to Arkadelphia. McMillan was admitted to the bar in 1934.

A Hope native, McMillan was honored in 1984 by the Arkansas Bar Association for 50 years of practice. He was also the recipient of the Association's Outstanding Lawyer Award.

He was a former chair and

member of the Association's Insurance Law Committee and a former member of its Professional

where be earned a degree in min-

Ethics and Grievances. Clients'

ing engineering and had worked for the Aluminum Company of

Security Fund and Prepaid Legal Services Committees.

McMillan was also a member of the American Judicature Society, the Board of Editors of the Texas Law Review. the American College of Probate Counsel. the American Bar Association. the Southwest Arkansas Bar Associa-

America.

He entered law practice with his father alter receiving a law degree from the Arkansas Law School.

Patty was a 37-year member of the Arkansas Bar Association and 16/Arkansas Lawyer/January 1986

He was executive secretary of the Ouachita River Valley Association from 1945 until 1950 and was president of the Association from 1951 to 1962.

He worked for the development of DeGray Dam on the Caddo River and was active in Arkadelphia and Clark County's industrial development.

McMillan was president of the Arkadelphia Rotary Club in 1962. a Paul Harris Fellow of Rotary fnternational and president of the Arkadelphia Chamber of Commerce in 1972. He was named a distinguished alumnus of Ouachita Baptist University and was a member of the OBU Development Council. He was also a member of the Board of Trustees at Arkansas College in Batesville.

He was a trustee of the Ross Foundation and a member of the First Presbyterian Church, where he served as an elder and a deacon.

Survivors are his wife. Elizabeth McMillan of Arkadelphia: two sons, Toney Daniel McMillan of Arkadelphia and David Williams McMillan of Asheville, Tenn.: a daughter, Elizabeth McMillan of Columbia. Tenn.; three sisters. Leila Shaw of Eugene, Ore., and Frances Elledge and Juanita Barnett, both of Arkadelphia: and two grandchildren.

0

Lawrence Branch Burrow, II. Lawrence Branch Burrow. Jf.. aged 61. of Little Rock, died Tuesday, October 22. 1985.

A consultant with the Wright.

Lindsey and Jennings law firm, Burrow was retired in 1982 as

senior vice president of Worthen Bank and Trust Company.

R. Eugene Bailey

Vincent Ewing Skillman, Ir.

Burrow was the son of Lawrence

Branch and Lila Plunkett Burrow.

He was graduated from Little Rock High School and received a law degree from the University of Virginia after serving as a Naval gunnery officer in the Pacific during World War II. From 1949 to 1970, Burrow was a partner in the Little Rock law firm of Chowning, Mitchell. Hamilton and Burrow. He specialized in banking, real estate and labor law.

In 1970, he joined Worthen as manager of the trust division. He remained there for 12 years, attaining the position of senior vice president.

Burrow was a 35-year member

of the Arkansas Bar Association with service on its LaborManagement, Continuing Legal Education and Public Information Committees. He was also a mem-

ber of the Pulaski County and American Bar Associations.

He was a past president of the Pulaski County Community Chest and was an organizer of the United Fund (now United Way) of Pulaski County, a past president of the Health and Welfare Council of Pulaski County and the Country Club of Little Rock.

Burrow was a past executive

vice president of the Arkansas Arts Center Board of Directors and formerly was a member of the Boards of the YMCA, the Quapaw Area Council of the Boy Scouts of America and the Florence Crittenton Home. He was a member of the Arkansas Community Foundation Board of Directors.

R. Eugene Bailey, aged 64, of Little Rock, died Monday, September 9, 1985.

A partner in the Bailey, Trimble and Sellars law firm, Bailey frequently served as special judge in chancery and cireui t courts in Pulaski County.

Bailey was a graduate of the University of Arkansas and the Washington University Law School in St. Louis, Missouri.

He was a 36-year member of the Arkansas Bar Association and served on its Group Insurance and Judicial Nominations Committees. He was also a member of the Pulaski County and American Bar Associations, Sigma Nu Fraternity, Westover Hills Presbyterian Church and the University of Arkansas Alumni Association.

Bailey was a retired lieutenant colonel in the Air Force Reserve, having served in the South Pacific as an Army Air Corps captain during World War II. Survivors aTe his wife, Louise Kruse Bailey, of Little Rock; a son, R. Eugene Bailey, Jr., of Little Rock; three daughters, Mary B. Lamb, Becky B. Wagner and Kathleen Bailey, all of Little Rock; three brothers, Frank Bailey and R. Robert Bailey, both of Little Rock, and Carl E. Bailey, Jr., of Virginia Beach, Va.; and, a sister, Elizabeth B. Benton, of Conway.D

Ruyle Wolford Hanf

Burrow was the vice chairman

of the Little Rock Special Committee on Public Education. In 1958, he was selected by the Jaycees as Little Rock's Outstanding Young Man of the Year. He was also a past commissioner of the Little Rock Port Authority.

Survivors are his wile, Judy Dortch Burrow, of Li ttle Rock; three sons, L. B. Burrow III, of East Hampton, N.Y., Steele D. Burrow, of Little Rock, and Christopher B. Burrow, of Dallas, Texas; and, two grandchildren.

0

Ruyle Wolford Han!. aged 85, of Little Rock, died Thursday, September 5, 1985.

Hanf was a retired attorney for the federal government.

He was a 1925 graduate of Washington University at St. Louis, Missouri and a 32nd-degree Scottish Rite Mason and member of the Westwood Masonic Lodge 2 and Scimitar Shrine Temple.

Hanf was a 36-year member of the Arkansas Bar Association.

He has no known survivors.

0

Vincent Ewing Skillman, Jr., aged 57, of West Memphis, died Monday, August 19, 1985.

A native of Memphis, Tenn., Skillman practiced law in Crittenden County for 32 years and was the senior partner in the Skillman and Durrett law firm.

He was graduated from Central High School in Memphis and attended the University of Arkansas at Fayetteville on a football scholarship. He was a member of Blue Key at the University.

Skillman received his law degree from the U of A at Fayetteville School of Law in 1953 and served 14 months on the Workers' Compensation Commission under the administration of former Governor Francis Cherry. He opened his West Memphis law practice in 1954.

Skillman was a veteran of World War II and a founder and former captain of the Arkansas National Guard unit in West Memphis.

He was a 3D-year member of the Arkansas Bar Association and served on its committees on de-

fense of criminal indigents. mari-

time law and tort reform. He was also a member of the Crittenden County, Tennessee and American

Bar Associations.

He was also a member of the First United Methodist Church where he taught adult Sl,lnday school for 22 years. Skillman was a member of Veterans of Foreign Wars Post No. 5225, American Legion Post No. 53 and was a former member of the West Memphis Jaycees.

Survivors are his wife, Beverly Murray Skillman, of West Memphis; a son, Charles Vincent Skillman, of Houston, Texas; four daughters, Carol Sue Hobbs and Lisa Murray Skillman, of West Memphis, Christine Alexander of Atlanta, Georgia, Patricia Lynn Larkin, of Collierville, Tenn.; his parents, Mr. and Mrs. Vincent Skillman, Sr., of West Memphis; and 12 grandchildren.

0 January 1986/Arkansas Lawyer/I?

* Toward the Bicentennial *

By Robert M. Cearley, Jr. (I)n the area of freedom of speech and press the courts must always remain sensitive to any infringement of genuinely serious,

literary, artistic, political or scientific expression. This is an area in

which there are few eternal verities.

- Chief Justice Warren Burger' The First Amendment of the Constitution states that "Congress shall make no law ... abridging the freedom of speech ... "

To anyone

with

... there are certain well路defined and narrowly limited classes of spe.ech, the prevention and punishment of which have never been thought to raise any Constitutional issues. These include the lewd and obscene, the profane. the libelous. and the insulting or 'fighting words' - those which by their very utterance inflict injury or tend to inci te an immediate breach of the peace. Chaplinsky v. New Hamp.

shire, (1942)'.

As lawyers, we also know that changing

times

No Rational Or Constitutional Justification

even a

rudimentary knowledge of law these words appear at first glance susceptible of but one meaning.

As lawyers, we know that the drafters of the First Amendment did not really mean what they said. It has long been established that:

with

Controls on Cable Television Programming

come

changes in language and law. So it was that the First Amendment.

Editor's Note: Robert M. Cearley, Jr. is a partner in the Little Rock (jrm of Cearley, Mitchell and Roachell. He represented the defendant in State of Arkansas v. Joseph H. Weston, 255 Ark. 567 (J973J, in which Arkansas' criminal libel statute was held unconstitutional.

He regularly represents plaintiffs in civil rights litigation involving First Amendment issues. Cearley attended Hendrix College and the University of Arkansas where he received his B.A. and J.D. and where he was an associate editor of the Arkansas Law Review, l8/Arkansas Lawyer/January 1986

originally restricting only the federal government.

was ex-

tended to include state government as well, first, by ratification of the Fourteenth Amendment in 1868; and second, more than half a century later, by the inclusion of First Amendment rights among those protected by the Fourteenth Amendment. Gitlow v. New York (1925)'. The Fourteenth Amendment states that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person 01 lile, liberty or property, without due process of law The First Amendment was born of conflict. It is a tribute to the wisdom of the authors 01 the Bill 01 Rights that we approach the bicentennial 01 this monument to their work with the machinery 01 government intact and the breath 01 free speech fresh and vital. The continued enjoyment of this fundamental right depends in large measure upon society's aware-

ness of the principles underlying the Bill 01 Rights and the vigilance of our courts in protecting us from

those who would sacrifice the rights of the individual for the greater good 01 society. A prime exam pie 01 the measures others would take to protect us from ourselves is the current proposal to impose prior restraints on cable

telecasts of "violent or sexually explicit programs."

The very idea of restricting the

televising of programs with "violent or sexually explicit content" is at once at odds both with the underlying principles of the First Amendment and with existing law. Until the advent of educational television and cable television the content level of commercial broadcasting could hardly have offended the sensibilities or titillated the senses of even the most squeamish or modest amongst us. The presence of cable television in our homes has changed that. Cable television has made available a sophistication and diversity of programming heretofore beyond the reach of but just a few. Undeniably, the current mixture includes not just the artistic and the educational but the inane, the graphically violent, the sexually explicit and the sensational. With this kind of programming invading our homes,

why would anyone object to a little censorship?

Let's look at this issue from another angle. What possible justification can exist for the government, be it federal. state or local. arrogating unto itself the right to decide what any of us are entitled

to watch in the privacy of our own homes? In a free society, there is none.

That there is a tension created by the very existence of the right of free speech is to be expected for "(t)he First Amendment was designed 'to invite dispute: to induce 'a condition of unrest: to 'create dissatisfaction with conditions as they are,' and even to stir

'people to anger.' Terminello v.

Chicago (1949)' Though we recognize that rights of free speech are not absolute, their exercise has been found to be subject to restriction only where the restriction proposed is required in order to

protect the state or its citizens from destruction or seripus injury

be it political. economic or moral.

"That the necessity which is essential to a valid restriction

does not exist unless speech would produce, or is intended to

produce, a clear and immediate danger of some substantive evil which the state constitutionally may seek to prevent has been settled." Whitney v, California (1927)' In one of his more widely known opinions, Mr. justice Brandeis reviewed the principles underpinning the adoption of the First Amendment: Those who won our independence

believed that the linal end ot the state was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary.

They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of

liberty. They believed that freedom to think as you will and to speak as you think are means indispensable

to the discovery and spread o( political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a

political duty; and that this should be a fundamental principle of the American government. 6

These principles point to the real heart of the First Amendment: the peoples' right to know, to receive information unabridged, uncensored and unrestrained by any authority.

The corollary of the right to speak is the right of the listener to hear and essential to the exercise of that right is the right to decide for oneself what is artistic or educational or pleasing or ollensive.

Anyone who would advocate that the government be empowered to make these choices for the individual fails to understand the fundamental principles underlying the First Amendment.

Television's presence and influence in this country is inescapable. With the advent of cable television the power of the media to inform, educate, offend or enlighten is greatly expanded. Current estimates are that by 1990 more than 57 million households will be cable television subscribers.' The power of such a medium to intrude or to ollend as well as to enlighten, inform or en-

tertain cannot be denied. But the power to intrude or offend is not of itself sufficient justification for abridgement o( the fundamental right oflree speech.

While the Supreme Court has not yet addressed the application of the First Amendment to cable television, the fact that this medium dillers in many characteristics from any of those to which the First Amendment doctrine has been applied requires that we carefully examine both the content and the context of the speech which is to be subject to restriction. Mr. justice Holmes has advised us that: The character of every act depends upon the circumstances in which it is done ... the most stringent pro-

tection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force . .. the question in every case is whether the words used are in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.'

In the absence of empiri'cal evidence that violence in cable television programming poses an imminent threat o( harm to unwilling viewers, there simply is no rational or constitutional justification for the imposition of government controls over such programming.

Likewise, in the absence o( clear proof of an immediate threat to the public health or welfare there is no constitutional basis for imposing restrictions on cable television programming of even the most sexually explicit kind. The dilliculty of making the subjective judgments required by such restraints and the inherent arbitrary nature of such judgments should be reason enough for allowing the economic forces of the marketplace to dictate program content.

It is, alter all. the "right o( the public to receive suitable access to social, political. aesthetic, moral. and other ideas and experiences which is crucial here. "9 It is established beyond argument that public displays of vio-

lence or sexuality may under some circumstances be regulated by government consistent with the requirements of the First Amendment. It does not follow that that which we choose to see and hear within the privacy of our own homes can be similarly regulated by government without violating the prohibition of the First Amendment. It is these private judgments which the First Amendment guarantees we may reserve to ourselves, to be reached in light of our own tastes and life experiences. As Mr. justice Harlan so aptly put it: "One man's vulgarity is another man's lyric. "10 We know that for years the Federal Communications Commission has exercised some control over the broadcast media.

There is a distinct difference, however, between the broadcast media and cable television. The point might be best illustrated with reference to the now famous, or infamous, Seven Dirty Words case." In that case the United States Supreme Court was called upon to review a finding of the FCC that an alternoon broadcast of a satiric monologue by comedian George Carlin, entitled "FiIthy Words", was "indecent," within the meaning of federal statutes, and thus subject to restriction or sanction by the FCC. In u pholding the sanctions imposed by the FCC the Court pointed out that. of all forms of communication, the broadcast media have received the most limited First Amendment protection. The Court considered significant the uniquely pervasive and intrusive nature o( the broadcast media and its unique accessibility to children.

Implicit in the Court's reasoning is the (act that the broadcast media have traditionally been held subject to some limited restriction based upon the "scarce resource doctrine." This doctrine holds that it is the nature o( the broadcast media itself which gives rise to both the need and justification (or licensing and reasonable restriction in view of the fact that the airwaves are limited and lack of control and that licensing has in the past resulted in chaos. 12 January 1986/Arkansas Lawyerll9

This line of reasoning has absolutely no application to cablecasting. While radio waves transmitting radio or television signals travel over a limited spectrum to be captured by antennae. cablecast television programs arrive in our homes as invitees. over wires and by subscription.

We should remind ourselves that the real purpose of the First Amendment is to safeguard the market place of ideas and to protect the right of the public's access to that market place of ideas. The rationale that would justify infringement of First Amendment rights in the area of the broadcast media simply has no place in the cable television debate. It is a well-settled principle of constitutional analysis that "each medium of expression presents special First Amendment problems.""

Newspapers, movies. television. radio. billboards and cable television each requires a separate and

distinct set of First Amendment rules. What is objectionable or offensive in one medium may well not be in another. As Mr. Justice Southerland wrote. "A nuisance may be merely a right thing in a wrong place - like a pig in the parlor instead of the barnyard. "..

It is reasonable to conclude that by knowingly subscribing to specific services provided by cable television and selecting among programs available we have issued an open invitation into our parlor. We cannot then be heard to complain about an occasional pig.

The chilling effect of content restrictions for outweighs any benefit. What standards would be applied? And who would apply them? The burden undoubtedly would fall upon the cable operator who has a capital investment to protect. ObViously the safest course that a cable operator could follow would be to suppress any questionable programming. with the result being that the viewing public would be deprived of all but the most mundane of pro gramming.

It should be borne in mind tho it is the public's right to a diversi ty of ideas. whether by word or picture. that is paramount in this analysis. The First Amendment

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guarantee makes no distinction between that which is purely informational and that which is dramatic or entertaining. "What is one man's amusement. teaches another's doctrine."" Our Court has noted that government is a poor arbiter of taste. The "requirement that literature or art conform to some norm prescribed by an official smacks of an ideology foreign to our system."IIi There is. after all. a simple solution to the problem which gives rise to this debate. If one is offended by what is presented on television. be it cable television or otherwise. one need only reach out and turn it off.

0 1

Miller v. California. -413 U.S. 15. 22-23

(19731.

Chaplinsky v. New Hampshire. 315 U.S. SGB. S72 (1942).

3 Gitlow v. New York, 268 U.S. 652 (925).

• Terminiello v. Chicago, 337 U.S. l, 4 2

(19491. ~

Whitney v. California, 27-4 U.S. 357, 373

(19271.

6 7

I

Id. al 375.

Meyerson, The First Amendment and the Cable Television Operator: An Unprotective Shield Against Public Access Requirements. 4 CommlEnt L.J. 1 (981).

Schenck v. United States. 2-49 U.S. -47, 52

(1919).

'Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 10 II

12 13

14

367.

390

(1969).

Cohen v. CaliJomia, -403 U.S. 14,25(971).

F.C.C. v. Pacifica Foundation. 439 U.S. 723 (19781.

Red Lion at 376.

Joseph Burstyn. Inc. v. Wilson. 3-43 U.S. 495. 5O:l (1952).

Euclid v. Ambler Realty. 272 U.S. 365, 388

(lml.

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NOTE I, Subsequent to the submission of this article for publication the United States Court of Appeals for the District of Columbia de· cided in Quincy Cable T.V. Inc. v. Federal Communications Commission, 768 F.2d 1-43-4 (985). thai the principles governing other broadcast media do not apply to cable television. While the issues in Ihat case did not involve the restricting of programming. the Court examined the basis for regulation of cable television holding that: "... {oj once outside the special constitutional realm reserved for privileged occupants of the physically scarce air waves. the First Amendment jealously guards against governmental intrusions into editorial functions."

Likewise. an attempt by the City of Miami to keep "indecent materials" from appear-

20/Arkansas Lawyerl)anuary 1986

ing on cable television was frustrated by the United States Court of Appeals for the Eleventh Circuit in the case of Cruz v.

Ferre. 755 F.2d 1415 (1985). The Court there held that cable television does not "intrude" in the home because a subscriber "must affirmatively elect to have cable ser· vice come into his home" and therefore, the "scarce resource doctrine" does not apply.

Broadcast/ Transmission Of Pornography A Serious Matter

By Jay W. Dickey, Jr. The effect of obscenity and pornography creates self-centered-ness, leads to desires of immediate gratification or· indulgence and a lack of respect for laws and the rights of others and, consequently, causes the fabric of our communities to be stretched.

frayed and broken. This is a layman's view of why obscenity and

pornography laws are on the books.

The General Assembly, in Ark. Stat. Ann, §41-3563, determined that the "spread of obscene publications has become a matter of

grave concern to the people of the State." It expressed a need for the "elimination of this evil and the

need for the consequent protec-

decent" as well as to "obscene"

tion of the citizens and residents,"

their "morals and general welfare." This statutory statement of purpose and intent reflects that

matters. Applied to cablecasting (and such application would be easy to justify), matters to be taken off the air need merely be in

the dissemination of obscenity

"non-conformance with accepted

and pornography is neither a per-

standards of morality," as opposed to the three-pronged test to determine "obscenity" as defined in Miller v. California (1973).

(The Miller test can be applied better to written materials than to matters that are cablecast where the unwanted obscenity, etc., has already been forced-fed into homes and the damage done.) Tbe

sonaL nor a private matter.

This is especially true in television. To allow the broadcast or transmission of pornography (obscene materials) into our homes is a serious matter. In the

real statute book, the Bible, it is stated, "Neither shalt thou bring an abomination into thine house ... " We have the right to want laws that protect our homes and the homes of our communities from

the evils of pornography, obscenity and violence. In Olmstead v.

United States (1928), there is included in a dissenting opinion the mention of the "right to be let alone." Further, this right was classified as "the right most val ued by civilized men." In Federal Communication v. Pacifica Foundation (1978), the United States Supreme Court said that broadcasting: "Confronts the citizen ... in the privacy of the home. where the individual's rights to be left alone plainly outweighs the First Amend· ment rights of an intruder.·'

This Pacifica case reasoning,

when extended to the control of cable television, stands for the propositions that: (1) there is no obligation on the part of the listener or the viewer of cable

Editor's Note: Jay W. Dickey, Jr., of the Dickey Law Firm in Pine Bluff, is a member of the National Christian Legal Society, Organizational Board of Directors of Pine Bluff Contact Teleministry and a member of the Immanuel Baptist Church in Pine Bluff. He was graduated in 1963 from the University of Arkansas at Fayetteville School of Law. Dickey is a former city attorney in Pine Bluff, a member of the state board of directors of the Fellowship of Christian Athletes and a former president of the Jefferson County

television to perform the affirmative act of getting up off the couch and switching the dial when something "indecent" is heard or depicted on radio or T.V.; (2) there is no obligation on the part of the homeowner to just not have a T. V., therefore avoiding the trauma, but missing the potentials, for the good that television offers; and (3) there is no obligation on the part of the homeowner to purchase a locking device, daily check the schedules and "lock out" the programs he or she wants to eliminate (assuming that the content could be determined from the T. V. logs).

Pacifica allowed the PROscrip-

Bar Association.

tion in that case to extend to "in-

inclusion of "indecent" as a test

establishes an effective deterrent against cableporn without constituting the prohibited "prior restraint. "

Why can't "consenting adults" do what they want to? Paris Adult Theatre v, Slaton (1973) states: "We categorically disapprove tne theory . .. that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only . .. "

It needs to be remembered that it's

not the person doing what he wants to in the privacy of his home that will be punished by such cablecasting laws but the transmitter who will be convicted.

Further, as a practical matter, we all know cable television is available to us without our consent, either through the ingenuity of our young people in changing the wiring, the "promotions" by the cable system companies or by tbe "bleeding" into our sets of the neighbor's signals.

Two common theories on the

regulation of cable television are that you can't legislate morality and that society need only get its fill of this and it will "die away."

First. all laws legislate morality.

Cable television regulation concerns public morality as opposed to private morality. Second, the Bible states, "I would have you wise unto that which is good and simple concerning evil."

In order to present a solution, in light of the fact that specific legislation on cable television regulation does not exist in Arkansas, the following proposal is offered as "Model Cable T. V. Law:" January 19S6/Arkansas Lawyer/21

(d) "Material" means any visual material shown on a cable television system. whether or not accompanied by a soundtrack or any sound recording played on a cable television system.

Section I (a) No person (including franchisee) shall by means of a cable television system. knowingly distribute by wire or cable to its subscribers any indecent material or knowingly provide such material for distribution.

(e) "Indecent material" shall mean material which is a representation or verbal description of: l. A human sexual or excretory organ or function; or 2. nudity; or 3. ultimate sexual acts. normal or perverted. actual or

(b) "Person" shall include individual partnerships. associations and corporations. (c) "Distribute" shall mean send. transmit. re-transmit or otherwise pass through a cable television system.

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simulated; or 4. masturbation; which under contemporary community standards for cable television is patently offensive. (f)

"Community standards" shall mean the standards of the community encompassed within the territorial area covered

hy the franchise. (g) "Provide" means to supply for use.

(h) "A person acts knowingly" if he has knowledge of the char0cter or nature of the material involved. A person is presumed to have knowledge of the character or nature of the material if he has actual notice of the nature of such material whether or not he has precise notice of its contents.

Section 2 Violation of this statute shall constitute a misdemeanor and any person convicted of such violation shall be confined in jail for not more than _ months or fined not more than __ dollars. either or both.

It would be constitutionally permissible for this legislation to be passed in Arkansas, as indicated by a careful reading of the history of the "Cable Communications Policy Act of 1984." And, the legislation would be entirely consistent with the position our General Assembly has already taken. It also seems the federal courts will give guidance on this matter in a case coming out of Utah. Community Television of Utah. Inc.• et. al. v. Wilkinson. This case is worth watching because it will. if taken to the U.S. Supreme Court. decide whether "indecent" is a proper standard for review of matters that are cablecasted.

0 Citations:

Otmstead. (not known yet) Miller 413 U.S. 93 Pacifica 438 U.S. 726 Slaton 413 U.S. 49

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400 W. Markham Little Rock. AR 72201

SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT Disciplinary Actions Beginning with this issue, The Arkansas Lawyer will publish information on disciplinary actions of the Arkansas Supreme Court's Committee on Professional Conduct. From June through October 1985, the Committee accepted one surrender of license, suspended a license for six months. issued six reprimands and four cautions in letters of censure and wrote eight letters of warning. All the Committee's actions are public except letters of warning.

KURT BUTCHER Surrender of License Kurt Butcher, of Bella Vista, voluntarily surrendered his license upon request by the Committee. The Arkansas Supreme Court accepted that surrender in September.

JOHN LLOYD JOHNSON. JR. Suspension John Lloyd Johnson, Jr., of P. O. Box 644, Little Rock (not to be confused with John L. Johnson, Jr., of 3000 First Commercial Building in Little Rock), was suspended from practicing law for six months after a June hearing of the Committee.

The suspension, which began immediately after the June 15 hearing, was the first since the adoption in January of new rules governing the Committee. At the hearing, testimony was presented that Johnson negotiated a settlement for his client and collected monies due her, but failed to account to his client for the monies. The Committee cited Johnson for violations of eight Rules of Conduct: DR 1-102 A 4, DR 6-101 A 3, DR 7-101 A I and 2, DR 9-102 A and DR 9-102 B I. 3 and 4.

JEPTHA A. EVANS Letter of Reprimand Jeptha A. Evans, of Booneville, was given a letter of reprimand for violations of DR 6-101 A 3 and DR 1-012 A. Evans was retained to handle a medical malpractice lawsuit. The defendants filed mo-

tions for summary judgment which were not timely responded to. Evans did not appear at a pretrial. The defendants' motions for summary judgment were ultimately granted. Evans appealed the case for the clients "knowing the appeal was frivolous since you had previously confessed judgment," the Committee said.

from the Arkansas Supreme Court granting an appeal and appointing a new attorney for his client.

Lee had been appointed as attorney for the client. but failed to perfect that appeal, resulting in violations for DR 6-101 A 2 and 3 and DR 7-101 A I. 2 and 3.

EUGENE C. FITZHUGH Letter of Reprimand Eugene C. Fitzhugh, of Little Rock, was given a letter of reprimand for violations of DR 6-101 A 3 (neglecting a legal matter entrusted to him) and DR 7-101 A I and 2 (failure to seek the lawful objectives of his client through reasonable available means permitted by law and the disciplinary rules and failure to carry out a contract of employment entered into with a client for professional services). His client had employed Fitzhugh in March 1979, to probate her husband's estate. Fitzhugh was paid a fee but did not satisfactorily handle the probate, which included legal work necessary to bring into the estate certain of its assets or claims.

Charles O. Pearrow, of Bald Knob, was cited for violations of DR 1-102 A 3, 4 and 5 and was given a letter of reprimand. The complainants had purchased land from Pearrow in 1979 and paid for it in 1982. They received from Pearrow a warranty deed 路for the property and assurances that the land was free from encumbrances. The clients later learned there was a prior lien against the property. The Disciplinary Rules on Misconduct state "a lawyer shall not engage in conduct involving dishonesty, fraud, deceit. or misrepresentation; engage in conduct that is prejudicial to the administration of justice; nor engage in any other conduct that adversely reflects on his fitness to practice law."

RONALD GENE KILLION Letter of Reprimand

BOB SCOTT Letter of Reprimand

Ronald Gene Killion, of Booneville, was given a letter of reprimand for violations of DR 6-101 A 2 and 3 and DR 7-101 A I and 2. Killion accepted a fee to represent an Oklahoma couple's daughter in a court action and to represent them at custody hearings. The attorney did not represent the daughter and only appeared at one custody hearing. In addition, the couple received legal advice from Killion which possibly damaged their chances of gaining custody of their granddaughter.

Bob Scott, of North Little Rock, was given a letter of reprimand for violation of DR 6-101 A 3 (neglecting a legal matter entrusted to him). Scott was employed to handle a couple's claims against an

CLYDE T. LEE. Letter of Reprimand Clyde T. Lee, of Texarkana, was issued a letter of reprimand resulting from a Per Curiam Order

CHARLES O. PEARROW Letter of Reprimand

insurance company for damages

in repair of their motor home.

Scott failed to pursue those claims, allowing the statute of limitations to run on some of the claims, while advising his clients that he was handling them.

DARRELL F. BAKER. JR. Letter of Caution Darrell F. Baker, Jr., of Fayetteville, was given a letter of caution for violations of DR 6-101 A 2 and 3 resulting from a Per Curiam Order of the Arkansas Supreme Court January 1986/Arkansas Lawyer/23

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Ann C. Donovan, of Conway, was given a letter of caution for violation of DR 6-101 A 3. A complaint was filed by Donovan's client who had hired her to obtain an uncontested divorce for her.

Although Donovan had been paid a fee and had assured her client that the papers had been filed, the matter was not filed until two and a half months later.

ROBERT S. GUNTER Letter of Caution Robert S. Gunter, of Little Rock, was sent a letter of caution for violation of DR 6-101 A 3 (neglecting a legal matter entrusted to him) resulting from a Per Curiam Order by the Arkansas Supreme Court granting an appeal to Gunter's client. The attorney was not timely in lodging a transcript in order to perfect an appeal.

MARK HEWETT Letter of Caution Mark Hewett. of Fort Smith, was sent a letter of caution for violations of DR 6-101 A 3 and DR 7-101 A 3. He was hired to handle a grievance by a discharged employee of Whirlpool Corporation against Whirlpool and the union. The matter was not handled within the prescribed time limit.

During the four month period, the Committee voted "no action was warranted" on 44 formal complaints. One hundred and thirteen informal complaints or minor matters were handled by Joe Phillips, the Committee's executive secretary.

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Baker was two days late in lodging a transcript. In addition to neg lecting a legal matter entrusted to him, the Committee cited Baker for "handling a legal matter without preparation adequate in the circumstances."

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Kim Walters with her adoptive mother, Sandra. Kim's message: "Listen to the kids . .. do not get so caught in the system."

Photo by Gary Speed 26/Arkansas Lawyer/January 1986

FOSTER CARE REFORM A Model for the Nation

By Judge Tom Glaze

T

oo often, Arkansans hear or read how poorly our state is doing. Our unemployment rate exceeds the nation's average, for example, and we appear to lead the nation in the number of births to teenagers. While we might also experience major problems in other socio-economic areas, let me offer some words of encouragement to dispel any thought that all is bad here. Recently, the United States Department of Health and Human Services (DHS) commended our foster care program and the work performed by the Arkansas Permanency Planning Task Force in improving the program. In fact, it called our task force "one of the models for the nation."

The rareness of these laudatory remarks of commendation was not apparent until I spoke with a representative of the National Council of Juvenile and Family Court Judges. In his more than five years experience of working with" the permanency planning projects in the 50 states, he had never heard the "feds" bestow such praise upon a state's foster care program. Customarily, states receive from DHS what charitably may be called "constructive criticism."

Reflecting upon those nice words from DHS, I thought about the hard work done by our 20member task force and the staff of the state's Social Services Division. While realizing how much everybody has contributed toward earning this national recognition for Arkansas' foster care program. those of us involved in the process are aware of how much more remains to be accomplished.

My involvement in the foster care program began in February 1984, following one of my family law class lectures. A young law

111111111111111

student introduced herself as Pat Page, the administrator of our state's Foster Care Division, and asked me to serve on a task force which would work to ensure compliance with the requirements of the Federal Adoption Assistance and Child Welfare Act of 1980 (hereinafter the act). In a weak moment, I said yes. A few months later I found myself chairing this task force. Quite candidly, I have never worked with people who were more dedicated to helping Arkansas and its children.

With virtually no experience in the problems plaguing our foster care children, I had much to learn.

All I knew was that Arkansas had failed to comply with the requirements of some 1980 congressional act. and, because of such failure, had to repay the federal government $890,000. Pat also told me there was a strong likelihood that the state would lose another $500,000 unless we immediately brought our foster care program into compliance with the federal law.

January 1986/Arkansas Lawyer/27

By the time our Permanency Planning Task Force was formed, the federal act was nearly four years old. While oftentimes congressional acts can be both complicated and questionable in value, my impression of this 1980 act was, and is, that it is relatively easy to understand and its purposes are commendable.

In brief, the act encourages states to prevent the unnecessary removal of children from their homes and to reunite foster children with their families. If reunification is not possible, the states are urged to expend reasonable ellorts in finding these children a permanent home, most often through adoption. The act is designed to provide permanent placement for children in homes.

Financial incentives are given to

those states complying with the requirements and purposes of the act. Of course, states which fail. like Arkansas, lose those designated grants or monies.

While Arkansas achieved provisional compliance with the act in 1981. it was out of compliance for fiscal year 1982. As a result, we had to repay the federal government $890,000, which represented the amount of federal funds Arkansas previously received for its foster care program.

I

n its review of Arkansas' program, the U.S. Children's Bureau determined that Arkansas accounted for each child in its foster care system and

Editor's Note: Arkansas Court of Appeals Judge Tom Glaze, of Little Rock, chairs the Arkansas Permanency Planning Task Force and is a board member of Youth Home, Inc., and a member of the Governor's Committee to Study Visitation Rights of Grandparents. He is a past president and board member of The Parent Center and is a past panel member of the Governor's Conference on Families.

Judge Glaze is a former chancellor of the Sixth Judicial District. Third Division, and a former lecturer at the University of Arkansas at Little Rock School of Law.

28/Arkansas Lawyer/January 1986

By Angela S. Jegley

T

he Adoption Assistance and Child Welfare Act of 1980 (Public Law 96-272), enacted to discourage the breakup of families and to encourage the expeditious provision of permanent homes for children who can't be returned to their natural families, ollers fiscal incentives to states for implementation of certain substantive and procedural relorms. These include periodic judicial reviews to achieve permanency - a stable living environment - for foster care children.

Arkansas adopted the reforms embodied in P.L. 96-272 during the 1985 regular legislative session.

Acts 868 and 424 require a twotiered system of periodic judicial reviews and dispositional hearings regarding the status of children in foster care. Act 868 establishes criteria for hearings in juvenile court and Act 424 pertains to probate court proceedings.

A child enters the foster care system when he is removed from his home pursuant to a juvenile court determination that the minor is dependent-neglected and needs the assistance of the Arkansas Department of Human Services (DHS). A child may also enter foster care through the voluntary relinquishment of his custody to DHS. While in the custody of DHS, the child may be placed in an individual home, a group living situation or an institutional facility based on particular cir-

nile court for DHS to initiate proceedings in probate court to ter路 minate parental rights and to grant guardianship with the right to consent to adoption.

Upon filing of the petition to terminate parental rights and to appoint a guardian with right to consent to adoption, the child's status, under Act 424, is subject to review by the probate court on sixmonth intervals and prior to the 18th month the child is in foster care. Reviews continue until the child reaches majority if he remains in foster care.

During the pendency 01 the juvenile court action, the parent may voluntarily consent to free the child for adoption or may participate in a court-supervised case plan designed to mitigate problems in the home in order to reunify the child with his family. To

The enumerated options available to the probate court after the hearing include: (a) return the child to the parents; (bl continue the child in foster care for a specific limited period; (cl authorize a plan for adoption; and (d) continue the child in permanent or longterm foster care due to special needs or circumstances. The court may also enter other orders consistent with the best interest of the child, including orders concerning parental visitation.

Act 424 affords the probate judge some flexibility in accommodating the time constraints imposed by the legislation. The court may elect to hold a hearing on the merits of the petition within six months of the most recent custody order. If the malter is not resolved within that time frame. though, the court may appoint a special master - specifically the juvenile court or the foster care magistrate - to conduct such hearings.

The foster care magistrate sits as a special master for probate judges statewide and is appointed by and serves at the pleasure of the Chief Justice of the Arkansas Supreme Court. The magistrate must possess the same qualifications as probate judges and is subject to the same restrictions. Housed in the Arkansas Judicial Department, the magistrate is under the direction of the

monitor the plan's progress the

Department's executive secretary.

court conducts Act 868 reviews at six-month intervals and conducts dispositional hearings prior to the 18th month that the child is in custody.

Where sufficient progress does not occur to allow re-unification, permission is granted by the juve-

(The use of a magistrate to conduct hearings as a means of judicial economy is not new in the Arkansas state court system.)

Since July 1985, a majority of probate judges have elected to appoint the foster care magistrate by standing order to hear cases in

cumstances.

ly resolve the issues causing the delay and allow the adoption to proceed immediately. Measures necessary to go forward were

I

Tony Allison and his foster parent, Anna Nevels. "Neither . .. knows why the state opposed or failed to pursue Anna's adoption of him." their stead. Eighty cases were heard in 17 counties throughout Arkansas during September and October. 1985. As a result, the status of 115 children has been subject to judicial scrutiny.

The review of a foster care

child's status encompasses a range of elements that affect the quality of his life. Matters before the court include plans developed

by DHS to provide a suitable permanent family or horne for the child and steps taken by the state to achieve such objectives.

Of equal concern is the child's living arrangement or placement and whether the placement reasonably fulfills his physical and emotional needs.

Upon its determination of emotional well-being, the court may order counseling or continued treatment, a change of placement to a therapeutic living situation and other orders for the child's best interest.

Additional areas of inquiry include frequency of visitation with siblings or family members. educational progress. vocational training or higher education if the child is approaching emancipa-

tion. clothing and extracurricular activities. Medical and dental care for children are also examined.

A key aspect of the hearings is that the state is held to accountability in its parens patriae role for the care of children in its custody.

Often, matters of importance to children are left in limbo as a result of bureaucracy and the sheer average number of children in foster care. These may be relatively simple in nature, such as the need for a new pair of shoes. or as compelling as the finalization of adoption. Because the status of each child is reviewed on a periodic basis. such matters are brought to light and resolved in a timely fashion for the child's benefit.

A recent hearing revealed. for example, that a child had lived in the same foster home since 1980 and that the foster mother had requested permission to adopt three years ago. Though permission was granted in October, 1984, the adoption had not been finalized

by October, 1985 - the date of the hearing as a result of bureaucratic delay. The court directed that the agency internal-

completed in the courtroom after the hearing.

Further examples of recent orders include directions to expedite decision-making where other adoptions have been delayed without good cause, or directions to expedite decisions regarding financial subsidies for children with serious medical or emotional needs. The court has also directed that visitation with siblings and other family members occur with DHS' assistance.

An important facet of the hearings is the participation of the children themselves in the proceedings. As a general rule. children ages six and older attend their hearings and testily. They are actively involved in the plans that shape their futures. Their participation not only allows them to exercise some degree of control in their lives but also provides the court with vital information in addressing individual needs.

It is a truism to say that children in foster care are not ordinarily in the custody of the state by choice.

Most are in custody because they were denied essential care and nurturing; many are in foster care

due to sexual or physical abuse.

Most are traumatized at a tender age and many have signilicant emotional problems that have arisen through the lack of a secure family life. While judicial review is certainly not a panacea, the hearings have already been productive in helping children to realize stable living environments and to receive needed services.

Editor's Note: Angela S. Jegley, of Little Rock. has served since July 1985 as the state's foster care magistrate. The position was created by Act 424 of 1985 in an effort to reform Arkansas' foster care system. Jegley was formerly chief counsel for the Arkansas Department of Labor and legal counsel for the Auditor of State.

January 1986/Arkansas Lawyer/29

had developed a wri tten case plan designed for each foster child to achieve permanent placement. The bureau found, however, that the state failed to provide a means of monitoring the prog-

ress made on the child's behalf and determining whether the child was receiving the services

specified in his case plan. In sum, Arkansas simply failed to provide the six-month administrative or court reviews called for under the act. Nor did we implement the act's requirement that each child in foster care placement be given a dispositional hearing by a court or judicially sanctioned body within 18 months of the child's placement in the juvenile system.

In the United States, more than 500,000 children live in foster care.

During anyone month, Arkansas has from 1,300 to J. 400 children in its program. Sadly enough, the stories are endless concerning the children who have drifted from one foster home to another while

Arkansas Permanency Planning Task Force The Arkansas Permanency Planning Task Force was appointed by the Arkansas Court of Appeals in 1984 to address problems concerning full implementation in Arkansas of the Federal Adoption Assistance and Child Welfare Act of 1980. The task force developed reforms to the state's foster care system including Acts 868 and 424 of 1985. These acts require a two-tiered system of periodic judicial reviews and dispositional hearings regarding the status of children in foster care. Members of the task force include: U.S. Representative Beryl Anthony, Jr. EI Dorado Don Crary Executive Director Arkansas Advocates tor Children and Families Jayme Dissly Ozark Legal Services

has since been rescinded.

O

n a recent visit. Anna ex-

pressed a continued interest in adopting Tony.

She told me that her husband had died approximately eight years ago and she had made Tanya beneficiary in her will. When asked if a court had ever heard her request to adopt Tony, Anna said that she had never been asked to go to court since she obtained him as an infant. I re3D/Arkansas Lawyer/january 1986

Marcia Mcivor Ozark Legal Services

Senator C. Wayne Dowd Texarkana

Bob Fisher Administrative Assistant Attorney General's Office Judge Tom Glaze Arkansas Court of Appeals

guished in this state's foster care

program since he was three-daysold. Now, 18-years-old, Tony attends high school and has lived his entire life with his foster parent. Anna Nevels.

Anna expressed an early interest in adopting Tony but. because social services had a policy against foster parents adopting children, her request was either refused or ignored. This policy

Carolyn Long KARK-TV, Channel 4 Little Rock

Executive Director

waiting for permanent families,

not to mention the children who have actually become lost in the juvenile system until they reached majority. As young adults, they were discharged to fend for themselves with little or no preparation and guidance.

Tony Allison, for example, is an Arkansas child who has lan-

Kay Kimbrough Director Therapeutic Family Home Program Elizabeth Mitchell Children's Center

Debby Thetford Nye General Counsel Department of Health and Human Services Pat Bailey Page Management Analyst Department of Health and Human Services

Justice M. Steele Hays Arkansas Supreme Court Judge Bob Henderson Columbia County Judge Breck Hopkins Attorney Supervisor Social Services Division Senator Max Howell Jacksonville Judge Jimmy Joyce Jefferson County Juvenile Court

viewed Tony's file and determined that on March 9, 1967, the state acquired guardianship of Tony with consent to adopt, and although Anna has been willing to adopt him since he was a young child, the state took no initiative to con-

summate such adoption. Anna is

Claiboume W. Patty, Jr. Assistant Dean UALR Law School Representative Carolyn Pollan Fort Smith Carol Rasco Governor's Office Judge Judith Rogers Third Division Chancery Court William R. Wilson, Jr. Little Rock now in her 70's and social services indicates she is too old to adopt him.

Nevertheless, Tony remains in her care and presumably will continue to do so until he graduates from high school, at which time he will be discharged from the state's

Tony Allison. 18-years-01d. has spent a lifetime "lost in the system."

Photo hy Gary Speed January 1986/Arkansas Lawyer/31

(L to R) Kristen and Kim Walters with their adoptive parents. Sandra and Joseph Walters. Both Kristen and Kim were foster care children.

Photo by Gary Speed guardianship proceeding. Arkansas' most recent report on Tony re-

flects that the state has failed to prepare Tony for his impending emancipation.

Tony has been lost in the system and only surfaced because his case was listed for judicial review under the requirements of the act and Arkansas' new laws implementing it. If court reviews had been held earlier, a judge could have asked some hard questions to determine why this young boy had never been adopted and given a permanent. stable home.

Neither Anna nor Tony knows why the state opposed or failed to pursue Anna's adoption of him.

Fourteen-year-old Walter Jones' 321Arkansas Lawyernanuary 1986

is another Arkansas foster child who, instead of staying in one foster home, has been located in more than 10 placements in nine years. Walter's drift from one placement to another was largely attributed to "behavior problems."

A

gain. Walter's case never had been judicially reviewed until a recent hearing was held pursuant to the act. At that hearing, social services reported that Walter's treating physician diagnosed him as hyperactive and as having a seizure disorder. The physician concluded that Walter might not be experiencing his present problems if he had been tested nine or

10 years ago. Unfortunately, the social workers assigned to Walter's case had never been in a position to report their concerns or recommendations to an indepen-

dent judicial body, which could have assured that Walter received proper services.

Tony and Walter are examples of the many children in the system who have been ignored too long.

We also have children located in group homes outside the state's foster care system who are not regularly, if ever, reviewed by any court.

Kim Walters' placement is a case in point. Kim, at age five and one-half, and her older brother and sisters. were placed in a pri-

vate group home on April 19, 1975, Kim's parents were alcoholics and, during this period, there was no indication that any efforts were made to provide family-based services so that Kim and her biological parents could be reunited, In 1981, an attorney for the private home petitioned the court to place Kim and other children staying at the home in the state's foster care program. Sandra WaIters, a licensed social worker for human services. met Kim and overheard her say that she wanted an adopted family.

Sandra discussed this possibility with her husband, Joe, and after visiting and falling in love with Kim, the Walters sought to adopt her through the normal channels provided by the state.

Kim's adoption was accomplished in May 1983. When asked what her message would be to those persons responsible for making our foster care program work properly, Kim said, "Listen to the kids to find out what they want - not what you think they want - and do not get so caught in the system that (children) must live in (a foster care) home all their life and not have a family."

W

ith countless case sce-

narios like Tony's, Walter's and Kim's to resolve, the task force first met in May 1984 and moved quickly to determine why judicial review procedures had not been implemented in Arkansas since Congress passed its 1980 act requiring court reviews in 50 states. It discovered that Arkansas' failure to implement the act was due primarily to the unfamiliarity of our juvenile and probate judges with the requirements of the act. In part, this was due to our state's failure to enact laws tracking the provisions of the act.

Another major problem identified by the task force was the inadequate, or lack of, communication about the federal law within the Social Services Division and between the division and the courts and other agencies. Parties, both within and outside the division, assigned different interpretations to the act's requirements which, in tum, caused considerable delay in implementing

Characteristics of Arkansas Children In Foster Care

(FY'83/84) The average number of children per month in foster care with Social Services in FY '84 was 1.354 compared to an average of 1.387 in FY '83, 1.516 in FY '82 and 1.908 in FY '81. The average length of time in foster care was 19 months at the end of FY '84, compared to 20 months at the end of FY '83 and 22 months at the end of FY '82.

0 Percent Race: 65.5 White 32.0 Black American Indian .2 Spanish American .4 Oriental .1 Indo-Chinese .1 OtherlUnknown 1.7 Age: Birth through five years Six through II years 12 through 14 years 15 and over

Percent 29.4 23.5 19.3 27.8

Location of Child: Foster Home Private Residential Facility Children's Colony DeafIBlind School Rehabilitation Training School DYS Training School Subsidized Adoptive Home Title XX Residential Care Facility Other

Percent 71.0 12.8 .9 .4 .1 .1 .1 3.9 10.7

Sex: Male Female

Percent 49.3 50.7

Length of Time in Foster Care: Less than one year One through two years Three through five years Six through 10 years Over 10 years

Percent 49.4 28.0 9.6 8.0 5.0

Legal Status: Custody Guardianship Parental Consent Other

Percent 82.5 13.4 .8 3.3

Reason for Entry: Physical/emotional problem of parent Physical/emotional problem of child Abuse or neglect of child Parental unwillingness/inability to care for child Family dysfunctioning Child of unwed mother awaiting adoption Death of parent Other

Percent 5.8 4.5 52.5 20.0 12.3 2.2 .9 1.8

January 19B6/Arkansas Lawyer/33

October 1985 "Foster Care Totals in Arkansas by County 16

S3

2

8

35 45

8

,

-L~

3

28

Monthly Total: 1.226

Arkansas

*The total number of children in foster homes during October 1985 was 816.

There were no children in adoptive placement for the month.

reviews in our foster caTe cases.

After

numerous

committee

meetings, the task force released its December 1984 report setting forth its findings and recommendations on implementing the act. In addition, its members also pledged to work to pass legislation drafted by the task force to ensure the act's implementation in Arkansas, Task force members Senators Wayne Dowd and Max Howell and Representative Carolyn Pollan sponsored this legislation which the 1985 General Assembly wisely enacted.

The task force's final function was to conduct a statewide seminar for all judges, social service workers, attorneys and other interested parties who have active roles in seeing that our foster children receive the treatment, services and reviews required under

the 1980 act and the new state laws implementing it. That seminar, attended by approximately 34/Arkansas Lawyernanuary 1986

250 people, was held in August 1985 and, by most accounts, was termed a success.

A

rkansas now has a statu-

tory-judicial review sys-

tem for foster care cases

in place. Our probate, juvenile and county judges have been apprised of the new foster care legislation and the appropriate personnel in the Social Services Division and Human Services Department have been informed of their duties and responsibilities under these statutes.

After the General Assembly's action, our state's foster care

program underwent another federal audit and, this time, passed federal scrutiny, saving Arkansas taxpayers from the possible loss of $500,000. Our auditor, the U.S. Children's Bureau, complimented the recent effort to bring the foster care program into compliance with the 1980 act.

A caveat must be added, especially since many of our state's foster children still are not being judicially reviewed in the manner required by our federal and state laws. Regardless of what we might have achieved already, it is for naught unless communication and a spirit of cooperation exists between the officials responsible for providing foster care services and those who are required to initiate, as well as conduct. court reviews for all our foster children.

To assure that these ends are met, Governor Bill Clinton requested the task force to continue as a monitor of the program. Most of the task force's members have acceded to the Governor's request. recognizing that little will be gained if those assigned duties under the new state laws fail to act.

D

espite our great strides toward implementation of the act. we continue to fall short of providing the type of judicial reviews required under our federal and state laws. Our courts must not. as has been the case in past years, tolerate or sanction the submission of orders that perfunctorily approve, without a hearing, a social service status report concerning a foster child. If we continue to countenance such practices, our recently enacted review procedures will prove entirely meaningless. The Tonys, Walters and Kims in our foster care system will continue to be ignored and forgotten.

Hopefully, those persons responsible for making our system work will meet the challenge to ensure that each foster child's case is appropriately reviewed. If we fail to comply, we are left with another set of laws that signify lip-service only toward the goal of helping our foster care children, who are most desperate for special care and attention. To succeed, we give meaning and importance to Kim's plea that those involved and interested in our foster care children "listen to the kids to find out what they want."

The task force will have more to report in 1986.

FOOTNOTES I

In consideration of his age, Walter's name is fictitious to protect his identity.

The Federal Income Tax Use of the Credi t Shelter Trust

By Mitchell D. Moore The credit shelter trust is an important method to be employed in minimizing the effect of federal estate taxes upon the death of married couples.

Use of the trust is largely determined by the exemption equivalent (or the unified credit) against federal estate taxes (lRC Sections 2010 and 2505). The exemption equivalent for 1985 is $400,000, for January I, 1986, is $500,000, and in 1987 is $600,000. This credit. when utilized, shelters a portion of the decedent's estate.

Under the present law the unlimited marital deductions will enable a married man or woman

to pass his or her entire estate to the surviving spouse. tax free.

This may be an advantage where the surviving spouse is young and in good health. Otherwise, the transfer of all of a decedent's estate to a surviving spouse could load down the survivor's estate.

When in doubt, the better procedure is to divide the combined Editor's Note: Mitchell D. Moore, of Osceola, is the senior member in the Moore, Moore-Hart & Barton professional association. He holds two LL.B. degrees - one from Cumberland University School of Law in Lebanon, Tenn., and another from the Arkansas Law School- and a J.D. degree from the University of Arkansas at Fayetteville School of Law. Moore is co-author of the Workbook for Arkansas Estate Planners, He is a fellow in the American College of Probate Counsel. This article is one in a continuing series by members of the Section of Taxation.

estate of husband and wife. By dividing the estates between husband and wife, the planners may thereby make available to each estate of a married couple the unified credit. The trust may be utilized for this purpose.

Married couples may, as we have said, obtain the effect of two unified credits by dividing their respective estates.

However, this does not always work and the procedure is often fraught with frustration.

Under the trust, the will of the first spouse to die may direct that property equal in value to the exemption equivalent be placed in a testamentary trust for the surviving spouse during her lifetime.

The remainder at spouse's death would pass to decedent's children or other designated beneficiaries.

Example: The exemption equivalent ($400,000 in 1985) is passed to a credit shelter trust on husband's death in 1985 for the benefit of his wife for her life. At her death, the trust assets could pass to husband's children. Wife dies in 1987 with an exemption equivalent of $600,000. Estate tax on both estates (assuming husband died with a $400,000 and wife died with a $600,000 estate in 1987) is zero, since the husband's $400,000 passed into a Credit Shelter Trust and wife's estate did not exceed the exemption equiva-

lent of $600,000 in 1987.

This trust is not for everyone. Its use is desirable in situations where the combined assets of the husband and wife are equal to, or in excess of. the surviving spouse's unified credit or exemp-

tion equivalent. If the combined

estates of both spouses will have a value at the time of the survivor's death in excess of the amount then protected from the federal estate tax by the exemption equivalent, the attorney may advise the use of the trust for the first spouse to die. On the other hand, if the combined estate of the husband and wife would be sheltered from tax in the estate of the survivor, a credit shelter trust would not be recommended.

Tax laws are written today to re-

quire affirmative action on the part of the taxpayer and certainly require that any estate plan should be reviewed, preferably on an annual basis and certainly every two or three years in order that tax changes and changes in the financial situation of the client can be reviewed in the light of the client's current estate plan.

Use of the credit shelter trust allows sufficient flexibility to enable a husband and wife to insure that the survivor will be adequately provided for during the survivor's lifetime and to preserve

the remaining assets for the family surviving the husband and wife, As a matter of caution, the

estate planner should not take his task lightly. It is very important that he or she fully acquaint himself or herself with the character and nature of all of the assets of his client. This is most important in designing an estate plan for a husband and wife whose assets substantially exceed the unified credit.

It is of primary importance that all of the assets of the client be documented and if there is any question about an asset. that it be verified by some means satisfactory to the estate planner.

The credit shelter trust is only one of several techniques avail路 able today to the estate planner.

It is one of the more flexible techniques available and may allow the estate planner to be innovative.

0 fOOTNOTES The unified credit against estate (and gift taxes). effective after January I. 1985. will be as shown below and phased in as fol-

lows: Exemption

Year

1985 1986 1987 on

Credit

Equivalent

$121,800 155,800 192,800

S400,()()() 500,000 600,000

January 19BG/Arkansas Lawyer/35

BULLETIN Lawyers Helping Lawyers

By Dean R. Morley

What is Alcoholism?

We don't clearly understand why some drinkers become alcoholics and others do not. As defined by the American Medical Association, alcoholism is "an illness in which there is a preoccupation with alcohol and loss of control over its consumption."

Its development usually takes a number of years and offers warning signals as it progresses.

First, a few drinks no longer give the desired effect - a sign that control over consumption is diminishing. Later warnings include changes in personality and arrest as a result of drinking and family or job problems.

The line between problem drinking and alcoholism is crossed when alcohol becomes the center of the person's life. Drinking, either secretly or in public, becomes the focus of daily organization, with at least a subconscious knowledge of the destructive consequences. By this point. alcohol dependence has been established.

In the final stages of the disease, the alcoholic suffers alcohol

Editor's Note: Dean R. Morley, of North Little Rock, has chaired the Arkansas Bar Association's Lawyers Helping Lawyers Committee since its inception in 1982. To discuss your drinking problem or that of a friend, family member, partner or associate, contact Morley at 4000 McCain, N.L.R .. AR 72116, or phone him at 771-2600. Those needing a referral to the Committee may also can tact the Association at 375-4605 or 1-800482-9406.

Other members of the Committee are Vicki S. Cook, Donald R. Huff路 man, Philip K. Lyon, Margaret Reger, Richard L. Smith, Mary Beth Sudduth, Allyn C. Tatum and Royce Weisenberger, Sr. 361Arkansas Lawyer/january 1986

withdrawal in the morning instead of a hangover. The body is so dependent on the drug that it cannot operate without it. A drink in the morning stays the symptoms and the alcoholic can function again.

In the most advanced depths, alcoholism prevents a person from performing in society at all.

He is totally concerned with getting liquor, drinking and sobering up.

A lawyer linds it dilficult to accept a condition that cannot be self-controlled. Denial is, therefore, much greater among professionals. Generally, doctors, lawyers, members of the clergy and other professionals take longer than nonprofessionals to admit the existence of a condition that they cannot overcome with路 out help. It appears that. because of their stations in life and their income levels, lawyers are also better able to conceal the problem until its later stages.

Alcoholism can be overcome, but it cannot be "cured" in the sense of safe return to drinking.

Its remedy is abstention. No other effective remedy has ever been established.

Learning to accept total abstention as a necessity of everyday life does not seem easy but it can be done and is done every day by more than a million people.

What the Program Does The sale function of the Lawyers Helping Lawyers Committee is to encourage alcoholic persons to start down the road to recovery.

Our elforts are confidential and the program is voluntary.

In no instance does the Committee force action by disclosure or referrals where help is rejected.

Experience has proven that merely sitting down and talking with a lawyer who has an alcohol problem does wonders because he or she becomes aware that help is possible and learns where to seek assistance without fear of disclo-

sure or stigma.

Whatever its merits, our effectiveness depends almost entirely on the willingness of people to use it.

Lawyers who have a partner or associate in trouble can turn to the program for guidance, not only for the afflicted person, but also for themselves. Spouses, clients and friends can do likewise.

Most of all, the lawyer who has a drinking problem ought to be encouraged to contact us.

Althoug h results cannot be assured, the odds are very good that positive recovery will be achieved.

If you know a lawyer or judge with a drinking problem: 1. Do not hesitate to ask him or her, "Do you think you are drinking too much?"

2. Suggest that he or she contact the Association's Committee on

Lawyers Helping Lawyers at 375-4605 or 1-800-482-9406.

3. Do not make it easy for him or her to avoid the consequences of failing to keep appointments or honor commitments when you suspect the reason is

alcohol路related.

4. If you cannot conf.ront him or her personally. either because of position. monetary reasons, client protection or just plain reluctance to personally intervene, contact us. Your in路 quiry will be kept completely confidential and the person involved will not learn your identity.

In practice, our program works as follows: l. An afflicted person or concerned friend or family member calls or contacts the Association for a referral to the Committee.

2. Trained Committee members respond to the caller. Those re:sponding are lawyers. usually recovered alcoholics or those who understand the problem f.rom a personal experience.

3. These lawyers have participated in a professional training program modeled after programs offered by other states and organizations.

4. The interventions take many different forms. depending on the particular circumstances of each case.

5. The intervenors will visit the caller. assess the circumstances and make a determination whether a problem exists and. if so, what response might be appropriate.

a combination of appropriate treatments.

7. The Committee members are not Carrie Nations seeking to proselytize.

Their only role is to respond to an individual request and render whatever help they can. Ultimately. the individual who has the problem must accept and acknowledge his or her problem if recovery is to be sustained.

6. They then work to move the alcoholic person into an appropriate rehabilitation program. This may involve institutional treatment in some cases; therapy. counseling and attendance at Alcoholics Anonymous meetings; or

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January 19861Arkansas Lawyer137

EXECUTIVE DIRECTOR'S REPORT The Rim in the Road

By William A. Martin The title of one of the most powerful of many moving sermons I heard preached by Dr. D. L. Dykes at Central Methodist Church in Fayetteville while I was a law student was "The Rim in the Road."

Dr. Dykes told of a time he was conducting a series of meetings at a country church a few miles from the town where he was staying.

On the first day, his host had to drive around a rim that had fallen off a truck and into the center of their lane of travel. It was still there the second day. On the third day, Dr. Dykes commented, "It seems like somebody should get that rim out of the road." His driver said, "Why don't we do it?" and they stopped and路 moved it. The Scriptural text for the sermon was somewhat along the lines of, "Seeing the need, he took it upon himself ...." and the message developed the theme of how we should be alert to needs and to opportunities for service, and take it upon ourselves to provide service to others.

Over the years I have both figuratively and literally gotten some rims - or at least boards - out of the road because of the inspiration of that sermon.

America is said to be moving from an industrial society to a service society. The legal profession has always been a serviceoriented profession, for the practice of law involves the provision of legal service to clients. Many of us have been richly rewarded in economic terms for providing legal services, but this is not what I am talking about. Rather, I want us to think about service to the public which is an essential component of a profession and especially a profession for which the state grants a license. The Ethical Considerations of the present Code of Professional Responsibil38/Arkansas Lawyer/January 1986

ity and the proposed Model Rules of Professional Conduct both call on attorneys to render public interest legal service. Beyond that. our education, our talents and license obligate us to use our leadership skills, analytical and organizational abilities and our learning to provide other types of services to our neighbors. com-

munity and nation.

Recently I was involved in a discussion in which several bar leaders were trying to understand the decline in the number of lawyerlegislators, lawyer-civic leaders and the number of lawyers working actively on bar committees.

Someone speculated lawyer advertising may be a cause, and I agree. There was a time that a lawyer starting out in practice had to take steps to become known in the community by doing such things as getting involved with civic clubs, church activities and running for public office.

They got a taste of the psychological rewards and satisfactions that service could bring and they continued to be involved in service activities throughout their lives.

With the potential to become known through advertising, there is less pressure to become involved and the individuals and the legal profession are diminished by this change.

How do we get more lawyers involved. in our communities and in our bar associations? We would welcome your thoughts and ideas.

I hope in some small way this discussion might motivate a few lawyers to get more involved in service activities. If you don't move that rim out of the road. who

will?

LAWYER ADVERTISING REVISITED To fully understand my comments you may need to look back at my column on page 179 of the October 1985 edition of The Arkansas Lawyer.

Between the time my draft was typed and the magazine was printed, gremlins inserted a "not" into my discussion of Matter of von Wiegen, 63 NY 2d 163, 470 NE 2d 838 (N. Y. 1984) cert. denied, __ _ U.S. _ _ 1055 S.CT.. 2701 (1985). In that case, the New York Court of Appeals did not allow a blanket prohibition of direct mail solicitation by a lawyer, but it did (this is where the unwanted "not" slipped in) permit sanctions for deception in the letters.

I also found Arkansas has had a mail advertising case, Eaton v.

Supreme Court of Arkansas Committee on Professional Conduct; 270 Ark 573, 607 S. W. 2d 55 (1980), cert. denied, 450 U.S. 966 (1981). In that case, our Supreme Court approved a private reprimand for a lawyer advertisement included in a packet of discount coupons mailed to homes. The Court said the advertisement was too broad to help a person who needed legal services in making an informed

decision. The discount coupons could lead people into thinking it was a discount offer. The advertisement was not informative but

"... merely a lure to get customers into the advertiser's place of business."

The American Bar Committee on Implementation of the Model Rules of Professional Conduct has examined the recent cases on

lawyer advertising and concluded that the prohibition on direct mail solicitation contained in Model Rule 7.3 is "... tailored to protect legitimate state interests," and would probably be approved by a majority of the U.S. Supreme Court.

The number of lawyer advertis-

ing cases in which sanctions have

been approved teach that lawyers should approach advertising very carefully and make sure if they use it that the advertising is factually correct and is in no way misleading nor confusing through omissions, half truths or manner

of distribution.

D

YOUNG LAWYERS' UPDATE Upcoming YLS Projects 'Outstanding'

By Richard L. Ramsay

The Young Lawyers' Section of the Arkansas Bar Association began offering an annual "Bridging the Gap" Seminar in 1960 to help lawyers entering practice. In 1974, the name was changed to the "Practice Skills Course." As I am penning this update, the 1985 edition - tagged the Practice Skills Seminar - is well underway. In its 25th year, the Seminar provides intense, basic and practical instruction to new admittees entering law practice and provides nuts and bolts information to help them on their way to the courthouse door.

I want to commend the co-chairs of this year's program, joe Erwin, of Little Rock, and Connie and Mike Mayton, of West Memphis, for their efforts in making the event a success. The program, speakers and materials provided were excellent and the Section is indebted to them for their contributions.

Before the Seminar began, I had the pleasure of listening to Association President Don M. Schnipper welcome a roomful of newly licensed attorneys as members in the Association. President Schnipper's attendance at our Seminar demonstrates his support of our Section's activities and for that we are most appreciative.

The Section sponsored the activities surrounding the September 9 swearing-in ceremony for new admittees. Ed Boyce, of Newport, was in charge of the program and he did an outstanding job.

The Section hosted a reception for the new admittees and their families at the justice Building. It was exciting to be a small part of this special time for newly licensed lawyers.

The Section is seeking funds to update yet another edition of the Senior Citizens' Handbook. Additionally, the Criminal Law Hand-

book produced by our Section was presented at the Fall Legal Institute on September 21 in Little Rock. The Handbook is a marvelous resource tool and Sam Perroni, of Little Rock, receives our thanks and praise for his excellent work on that project.

Martha Miller, of Little Rock, represented the Association at the American Bar Association's Affiliate Outreach Project held in Austin, Texas, on October 24-26.

Martha returned with exciting ideas for new projects that should be extremely beneficial to Tom Ray as he prepares for his year as Section chair. Tom will attend a similar meeting in Charleston, South Carolina, early in 1986.

Two major projects are quickly approaching. The YLS, Youth Education Committee and Public Information Committee are cosponsoring the second annual Statewide Mock Trial Competition for high school students. If you are interested in coaching one of the teams in your community or helping in other ways, please contact Ruth Williams at the Arkansas Bar Center or drop Karen johnson, of Little Rock, a note to indicate your interest. Karen is chairing the YLS Mock Trial Competition Committee. The competition will occur on a regional basis with winners advancing to the statewide competition in Little Rock held toward the end of the Spring semester. This is one of the best opportunities you will have to get involved in the work of this Section and it is something that I know you will find very rewarding.

Finally, plans are well underway to organize the Trial Practice Seminar to be held in Hot Springs on March 20-22. Formerly cosponsored by AICLE and the Section. this year's seminar is our complete responsibility and it is going to be a top flight meeting.

Jim Simpson, of Little Rock, has lined up all the speakers and it will be a "blue ribbon" panel.

Mark your calendars now as it promises to be an outstanding event.

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January 1986/Arkansas Lawyer/39

JUDICIAL DEPARTMENT REPORT Thoughts On Delay

By R. Christopher Thomas

My predecessors as executive secretary of the Arkansas Judicial Department have, on occasion, provided articles lor The Arkansas Lawyer, I renew that effort by way of this column which will be titled the Judicial Department Report.

Through the gracious cooperation of Executive Director Bill Martin, and Editor Ruth Williams, this column will alternate with the report of the Arkansas Bar Foundation.

From time to time, there may be developments concerning the administration of your court sys-

tem that will be of interest to the bar. The purpose of my writing will be to assist in keeping the bar informed of those occurrences.

One issue 01 present interest is delay within our court system. A

growing number 01 states are implementing "time standards," either by statute or court rule. Time standards are measurement devices developed by the respective states to assess whether the average case is being handled within an optimum time frame. A number 01 such standards have been developed by various states, many 01 which derive from the National Time Standards developed by the Conference of State Court Admi-

basis for comparing our court system's performance to the standards others perceive to be reasonable.

The attached chart shows the relationship of Arkansas' court processing times, for general jurisdiction courts, to the corresponding national standard. The Arkansas ligures were obtained during September, 1985. [Please remember that the figures presented here

nistrators.

sing times vary widely by case and judicial district. Due to definitional variances, I have compared the national standards to the most closely related statewide category for which statistics are available.]

You may readily observe that the processing of criminal cases in our state is slower than the suggested national standard, especially as concerns misdemeanor appeals in

These standards represent an effort by many court related personnel throughout the country to set a practical period of time in which specific categories of cases should be resolved. Let me be the lirst to emphasize that these national standards may not be applicable to Arkansas. However, may I further comment that the national standards provide a

STATE PROCESSING VS. NATIONAL STANDARDS TIME STANDARDS AS STATED IN MONTHS FY 84/85

20r-----------"-=---=-:::....:::..::....----------, ro

LEGEND

18

~ NATIONAL

16

_

STATE

14 Ul

12

~

10

~

8 6

are statewide averages. Proces-

circuit court.

On the other hand, in the area of general civic litigation, there is good news. Both as to jury proceedings, and nonjury litigation, the average disposi tion rate in the state is well under the supposedly optimum period for disposition.

Interestingly, in the area of general domestic relations our statistics show a mixed bag. While the average time to conclude a contested matter (answer filed) is well within the suggested standards, the time to conclude an uncontested case (no answer filed) is twice as long as that suggested by the national standards.

I hasten to emphasize that the content of this article is not a proposalto adopt time standards within the State of Arkansas. Indeed, one might conclude that the ligures suggest no serious problem, at least as compared to the nation-

al standards, with the exception that delay in processing of criminal cases appears to be beyond that ideal period suggested by others.

However, as the subject of delay

4 2

within our court system continues

o FeJ. Misd. App. CRIMINAL + 40/Arkansas Lawyerllanuary 1986

Jury

Non! Jury CIVIL

No. Cont.

Cont.

DOM. REL.

to be discussed, it is altogether appropriate to know where we stand in that regard.

0

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

UNIVERSITY OF

ARKANSAS SCHOOL OF LAW AT FAYETIEVILLE

By J. W. Looney Faculty Activities Robert A. Leflar conducted a seminar in St. Paul, Minnesota, for the state's top judges on problems faced by the Minnesota appellate court system. Eight justices of the Minnesota Supreme Court and the 12 judges of the newlyestablished Court of Appeals attended the seminar. Leflar spoke on topics such as the relationship between a state's appellate courts, general court administration and certification of cases for "fast tracking." He then opened the topics for discussion by the judges.

Janet Flaccus attended the National Conference of Bankruptcy Judges Seminar in Phoenix, Arizona.

Linda Malone, Donald Pedersen and Jake Looney attended the annual meeting of the American Agricultural Law Association in Columbus, Ohio. Linda Malone spoke at the meeting on "Soil. Subsidies, and Sodbusting: Recent Legislative Proposals for Soil Conservation.

Jake Looney spoke at a Field Day of the Virginia State Polled Hereford Association on "Tax Implications of Embryo Transfers.

Rob Leflar attended meetings of the Food & Drug Administration's Food Hypersensitivity Advisory Committee and the FDA Ad Hoc Home Use in Vitro Devices Advisory Committee as consumer repre-

sentative. He has also been appointed to the Governor's Advisory Committee on Hazardous Waste and the FDA Immunological Devices Advisory Committee.

Wylie Davis attended a meeting of the Multistate Bar Examination Contracts Committee in San Antonio.

George Skinner attended a meeting of the Planning Committee at the Mid-American Association of Law Library Annual Meeting in Tulsa.

Ray Guzman spoke at the Fall Legal Institute in Little Rock.

Lonnie Beard, Mary Beth Matthews, Don Pedersen and Jake Looney presented a workshop for the Coop-

Faculty Publications Charles Carnes and Warren E. Banks coauthored an article for the Arkansas Law Review titled "Capitalization Under the Financial Provisions of the Arkansas Business Corporation Act." Charles Carnes also had an article, "Two H-2 Foreign Labor Certification Program Cases" in the Journal of Agricultural Taxation and Law. Jake Looney authored an article in the Drake Law Review entitled "Emerging Legal Issues Associated with the Application of Embryo Technology in Livestock Agriculture.

Linda Malone's article "The Kahan Report and the SabralShatilla Massacres in Lebanon:

Responsibility and Punishment Under International Law for Massacres of Civilian Populations" appeared in the Utah Law Review.

John Watkins has an article in the UALR Law Journal entitled "The Journalist's Privilege in Arkansas."

Robert Laurence is coauthor of A Student's Guide to Secured Trans-

erative Extension Ser-

actions. Bulk Transfers

vice's LEADAR program on agricultural law. All four were also speakers at its 1985 Agricultural

and Bankruptcy, recently released by MatthewBender.

Robert A. Leflar's One Life in the Law: A Sixty

Law Institute at various

locations in the state.

Mort Gitelman attended the ALI-ABA Land Use Seminar in Boulder, Colorado.

Year Review was re-

leased by the University of Arkansas Press.

Professor G. Edward White, of the University

of Virginia School of Law, was the fall 1985 Hartman Hotz lecturer.

Professor White's public lecture and meetings with classes in the School of Law and the Department of History focused on his work in legal history.

Moot Court Team The Moot Court team of Leanne Johnson of Bossier City, Louisiana, Mike Rosenthal of Mena, Steve Garner of Hot Springs and Kenneth Treece of Hammond, Indiana, represented the School of Law at the regional competition

in

San

Antonio. The Moot Court advisor is Professor Chauncey Brummer.

Court of Appeals Hears Cases The Arkansas Court of Appeals scheduled oral

arguments

in

two cases at the law school during the fall semester.

UNIVERSITY OF

ARKANSAS

AT LITTLE ROCK SCHOOL OF LAW

By John M. Sheffey First Year Class Grows The entering class at UALR grew this year January 19B6/Arkansas Lawyer/41

even more than we an-

to arrange interviews,

ticipated. A total 01 136 first year students enrolled in the loll semester - one 01 our largest classes ever. These included 87 entering day students and 49 entering part-time students.

While most 01 the students earned their undergraduate degrees within the state (UALR, Hendrix College, University 01 Arkansas at Fayetteville, Henderson State and Arkansas State Universities were our largest sources 01 students), a number 01 the students are from such out-ai-state uni-

post employment opportunity notices and to assist the prospective employer in every way possible. These employers might also pay particular attention to the Law Graduate Brochure, a booklet containing pictures and briel biographical inlormation on all 01 our graduating students.

The Brochure, which is mailed to the bar alter the first 01 the year, should be 01 particular help to the smaller employers in identifying graduates interested in practicing in their geo-

Florida

graphic and profession-

State, University of Wisconsin, University 01 Maryland, San Diego State, University 01 Illinois, Georgia Tech, Colgate, Arizona State, Southern Methodist University, Rhodes College and Texas A & M. It is encouraging that during a national trend of declining law school applications and enrollments, interest in the limited seat~ availahle at UALR is still keen and competitive.

Fall Recruitment Another successlul loll recruitment season has recently come to a close. During the autumn months almost every major legal employer in the state came to the law school in search 01 new and qualified attorneys. We also had a number 01 employers visit us lrom out-ai-state.

The loll recruitment

versities

as

al areas.

Another word about placement. We have all heard about how tight the job market is and

season is, of course,

limited to the larger employers who can predict in the loll what their needs will be the 101lowing year. For smaller employers who don't have that luxury, our Placemen t Office remains open year-round 421Arkansas Lawyerl)anuary 1986

we remain somewhat

puzzled by why so many students continue to pursue a legal education and a law career.

01 course we have been hearing that same thing lor years, yet our graduates continue to find

employment. We survey each graduating class approximately six months alter graduation in order to determine their success in

Iinding employment. In both of the last two years, only one graduate out 01 all those responding to the survey reported that he or she was still unemployed and looking lor work.

Despite yearly, dire predictions to the contrary, it appears that the legal job market is still a healthy one and continues to demand law graduates.

Faculty News Prolessor Arthur G. Murphey's article, "Twenty Years Alter: Reflections on the Unilorm Commercial Code in Arkansas - Articles

3 and 4," appears at 7 UALR L.J. 523. Prolessor Murphey attended the meeting of the American Bar Association

Standing Committee on Law and National Security: Strategic Resources, in Norman,

been appoin ted to a two-year term on the Arkansas Advisory Committee to the U. S. Commission on Civil Rights.

Professor John M. A. DiPippa wrote an article, "Searching lor the Fourth Amendment," which was published at 7 UALR L.J. 587.

Oklahoma.

Prolessor John R. Pagan's most recent article was entitled, "Virginia's Statute 01 Limitations lor Section 1983 Claims Alter Wilson V. Garcia." It was published at 19 U. Rich. By Claibourne W. Patty, Jr. L.R. 257 (985).

Prolessors Robert R. BUSINESS LITIGATION Wright and Susan W. STARTS FALL Wright co-authored the PROGRAMMING second edition 01 "Land The fall's Iirst CLE Use In A Nutshell," pubollering was titled lished by West Pub"Business and Commerlishing Company. cial Litigation: An OverAlong with Prolessor view 01 How to RecogRobert Wright's conize and Avoid Probauthored casebook in lems 01 Antitrust. Price the area, the Iirst ediDiscrimination, Frantion of the "Nutshell" chising, Civil RICO and has been one 01 the best Interlerence with Busiselling publications on. ness." The program, cothe topic of land use. It sponsored by the is anticipated that the Arkansas Bar Associasecond edition will retion's Antitrust and tain that popularity Trade Regulations among lawyers and law Committee, was held students alike. ProfesAugust 26 at the Excelsor Robert Wright has sior Hotel in Little Rock. been appointed chairIt was co-chaired by H. man 01 the Edi torial Edward Skinner and Board for New PublicaPatrick R. James. tions of the General Sixty-live lawyers Practice Section 01 the and businesspeople American Bar Associaattended sessions on tion. He has also been the statutory scheme 01 elected to the Executive lederal antitrust laws Council of the Arkansas and penalties; agree-

A.I.e.L.E.

NEWS

Bar Association.

Visiting Altheimer Distinguished Prolessor Richard W. Ellland attended a meeting 01 the Joint Editorial Board lor the Unilorm Probate Code in Philadelphia on September 27-28.

Prolessor ElIland is research director lor the Board and an Arizona commissioner on Uni-

form State Laws.

Assistant Dean Claibourne Patty has

ments between com-

petitors and monopolization; various defenses

to antitrust liability sham litigation; pricing under and an overview

of the Robinson-Patman Act; civil applications 01 RICO; the Arkansas Franchise Act and other Arkansas trade regulations; trademarks, copyrights and patents; and, interference with business relations and

other

common

law

violations.

The Committee plans to present seminars on business and commercial litigation every 18 months to two years.

FALL LEGAL INSTITUTE The 1985 Fall Legal Institute was devoted to criminal law and procedure and introduced the new Criminal Law Handbook.

Held September 19-20 at the Excelsior Hotel. the program was cochaired by Sam Perroni and Richard Moore. Perroni also is the Handbook's editor.

The CLE portion of the program focused on criminal law practice, with sessions on how to be persuasive, featuring Richard "Racehorse" Haynes; use of demonstrative evidence in a criminal case; jury selection and preserving the records; search and seizure; federal appointments and attorneys fees; forfei ture provisions in state and federal criminal cases; develop men ts in the Crime Control Act of 1984; alternative sentencing; and, state parole, plea negotiation. state motion practice and federal procedure.

PRACTICE SKILLS COURSE The 26th annual Practice Skills Course, cosponsored by the Young Lawyers' Section, is one of the longest running programs in the history of Arkansas CLE. The program, held October 17-18 at the Arkansas Law Center. in Little Rock, and Riverfront Hilton, in North Little Rock. featured discussions on the problems of starting and building a law practice. The Association's Economics of Law Practice Section

presented a program. moderated by chair Tom Ledbetter, on where to practice, getting your law office started and expanding your practice. Other topics discussed were on ethics and avoidance of malpractice. representing a business client and representation of creditors and debtors.

BLUE SKY LAWS Blue Sky Laws, "State Regulation of Securities." produced by the Practising Law Institute, was presented live via satellite from New York City to 35 locations, including Little Rock and Fayetteville, on October 22.

The topics included NASAA policies, the proposed Uniform Securities Act and state enforcement developments.

Registrants were able to telephone questions to a panel at the conclusion of the two sessions.

The program was the fall's first live satellite offering. The second fall program was telecast November 19 and offered an introduction to business insurance including the insurance policy, insurance application, rules of construction applicable to business insurance policies, claims procedures, defense and settlement of claims and coverage disputes.

MID-YEAR MEETING The annual Mid-Year Meeting will be held January 17-18 at the Camelot Hotel in Little Rock. The CLE portion of the meeting will offer a one day review of recent developments in the law including a workshop on the use of character evidence; significant Arkansas federal decisions and appellate decisions; and a

workshop on evidentuary problems encountered in bankruptcy practice.

The annual trial advocacy competition between the schools of law at Fayeiteville and Little Rock will be held in the south courtroom of the Old Federal Building.

Arkansas Bar Association committees and sections will meet on January 17 and its House of Delegates will meet January 19.

ARKANSAS BAR ASSOCIATION HOUSE OF DELEGATES MEETING SEPTEMBER 21, 1985 The Arkansas Bar Association's House of Delegates held its regular meeting on September 21. 1985, at the Excelsior Hotel, Little Rock. President Don M. Schnipper presided.

The House approved the minutes of the last Executive Council meeting, the financial statement as of August 31, 1985, and Association membership statistics.

The House authorized the appointment of seven Association members to staggered terms on the State Trial Practice Committee.

The purpose of the committee is to encourage continuing communication between the bench and bar.

Herschel H. Friday reported that the Arkansas Supreme Court, by Per Curiam Order, referred the proposed ABA Model Rules of Professional Conduct back

to the Association's Committee on ABA Model Rules for suggested changes. Final action by the Supreme Court is expected in November, 1985. Friday, the Association's delegate to the American Bar Association, also reported on issues addressed at the ABA's House of Delegates annual meeting in Washington, D.C. The ABA's House condemned actions by attorneys to solicit business arising out of massive disasters. It stated strong disapproval of "the few American lawyers who may be seeking to personally benefit from the recent tragedy in Bhopal. India, by engaging in solicitation practices which are contrary to Rule 7.3 of the ABA's Model Rules of Professional Conduct." The House also voted to condemn corporal punishment in schools and to enlarge the membership of the ABA's Board of Governors. After a long debate, the ABA's House voted to submit proposed amendments to Rule 23 of the Federal Rules of Civil Procedure to the Advisory Committee on Federal Rules.

Friday resigned as the ABA delegate in order to serve on the ABA's Board of Governors. The House expressed its appreciation to Friday for his many years of dedicated service and appointed Jack C. Deacon to serve the unexpired term.

The House commended the Legal Education Committee and its chair, Dennis L. Shackleford, on their diligent work in preparing the study on legal education in Arkansas.

January 1985/Arkansas Lawyer/43

The committee recommended the continuation of two accredited law schools in Arkansas and further recommended research on additional creative funding sources for legal education. University of Arkansas President Ray Thornton has proposed moving the UALR Law School to the Graduate Institute of Technology campus in

over 90 copies.

The House voted to allow the Family Law Section to increase its dues to $20 per year.

Executive Director

Little Rock.

Dean j. W. Looney reported that the Agricultural Law System should be completed on or before October I. 1985. The Workers' Compensation System is scheduled to be ready for the Workers' Compensation Seminar on April I!. 1986. The Criminal Law Handbook was well received at the Fall Legal Institute. selling

William A. Martin re-

does not appropriate

ported that the Association and the Washington County Bar Association will jointly sponsor a reception at the Mountain Inn in Fayetteville on October 23. 1985. for members of the judici-

funds for the U. S. Post Office.

President Schnipper. in his president's report. announced that the Arkansas IOLTA plan has been cleared by the Internal Revenue Service and that Herman L. Hamilton. jr. has been elected president of the IOLTA Board.

President Schnipper further reported that the Association will file a petition with the Supreme Court for the adoption of mandatory continuing legal education. There has already been some initial reaction to the plan by members of the bench and bar. The Arkansas Institute for Continuing Legal Education will submit an Amicus Curiae brief in support of the plan and has committed to fund implementation of the plan for one year.

H. Lawrence Yancey. chair of the Section of Taxation. reported on the Reagan Administration's proposal to require many personal service businesses. including law firms. to convert from the cash method to the accrual method of accounting for income tax purposes. The House voted to oppose this proposal.

The House expressed its opposition to any phone company's plan to allow attorneys to designate themselves

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• LEGAL BRIEF PRINTING PARAGON Printing & Stationery Company has been printing BRIEFS for over 35 years.

May we be of service to you?

375-1281

31 I Easl Capitol Little Rock

ANOTHER REASON TO ORDER A BLACK BEAUTY®CORPORATE OUTFIT Our expanded Texas branch provides fast, convenient service.

Excelsior-Legal Southwest, Inc. p.o. Box 5683, Arlington, TX 76011, (817) 461-5993

Toll free line-1-800-433-1700 Black Beauty is America's most popular corporate outfit. Here are some of the reasons• Everything (including seal) is inside the "all-in-one" corporate outfit.• Improved corporate record book and slip case in lustrous black vinyl with high quality gold stamped border. The sturdy. dust-proof slip case reserves place on shelf when corporate record book is removed.• Hidden rivets and gold label window on spine for attractive appearance and quick identification.· Interior pocket neatly holds loose documents'~. ".".-!~

• Improved 1'4" extra capacity booster standard three ring metals. Black Beauty "all-inoOne" outllts include: • Customized seal in zipper pouch. • 20 lithographed share certificates in a separately bound section with full page stubs.

Each is numbered and imprinted with corporate name, capitalization, state and officers' titles.• 50 sheets, rag content paper.

Or printed Minutes and By-laws with tax materials updated to conform with the Economic Recovery Tax Act of 1981. Minutes and By-laws include up-to-date IRe U244 Resolution, Subchapter S Materials, Medical/Dental reimbursement plan, appendix of forms, instructions, work sheets and 20 blank sheets. Special editions are available for CA, CT, DE, FL, GA, IL, MI, MO, NJ, NY, PA. TX and Blank State (Model Business Corporation Act).• Our exclusive corporate record tickler.• Mylar reinforced tab indexes with five positions.• Transfer ledger, 8 pages bound in separate section.

Complete Black Beauty' Outfit No. 70 (Green No. 71) 50 sheets blank

minute paper

..

. . . ..

$42.50

No. 80 I Green No. 81) with printed minutes and by-laws Charge to American Express MasterCard or Viaa

$46.00

You may also select Green Beauty with the same fine features.

Excelsior-Legal ~uc-;t

Catalog uf Pruducl.'i and St!-rVI~

New York' Georgia' Illinois' Texas

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TO: EXCEL.'iIOR·LEGAL

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No. 70 0 No. 71 ..$42.50 Please Ship: r No. 80 ~ No. 81 ..$46.00

SOlITHWI:::ST, INC.

P.O. Box 56B:J

Plea~e

mclude

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State

_

year·

_

Arlin.cton. TX 76011 t

Print corpurute num., t'Klictl)

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o Shlpm~nt wlthm 24 hour.~ afl~,. receipt of order.

un eenlficate of incorporatIon If lonlCer than 45 chorocte.... and llpllce!i, lldd S7()() for 2" die seal.1

NPV or 0 PV $;

- - Capitalization $

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Certificates signed by President and

(&-cre\..llry·lrea~urer,unles:;

0 othel'Wl. <.pecifiedJ

Ship via Air-$6.00 utn.

'l IRC 0244 complete set-resol., dir. min" treatise, law etc .. $4.95 extra. co AMEX SHIP VIA AIR: $6.00 ADDITIONAL WITHIN THE 48 CONTIGUOUS STATES, ($8.00 ELSEWHERE.)

Char~e

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!v1C VISA

Number

EKpires

SiJtnature

Ship to _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Zip Code

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AZ

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