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OFFICERS Charles B. Roscopf President James H. McKenzie President-Elect Rodney E. Slater Sec.-Treasurer Richard A.Williams Exec. Council Chair William A. Martin

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The President's Message

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Point of View

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The General Practitioners Primer The Opinion Letter: A Play in One Act By Richard C. Jam

Executive Director Judith Gray Assistant Executive Director

EXECUTIVE COUNCIL Sanford Beshear Mark Cambiano Daniel R. Carter Carolyn J. Clegg Don Elliot John N. Fogleman Stephen A. Geigle David Guthrie Ike Allen La ws, Jr. Paul D. McNeill Martha M. Miller E. Lamar Pettus J. Thomas Ray Eddie H. Walker, Jr. Robert E. Young

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In Memoriam

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Executive Direcror's Report

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Young Lawyers' Section Report

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Law. Literature & Laughter

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Disciplinary Acrions

24 Cover Story Charles B. Roscopf, A History: His Family, His Home, His Year at the Helm

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

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In House News UALR School of Law, U of ASchool of Law, AICLE

37 The Arkansas Lawyer (USPS 546-040) is published quarterly. by the Arkansas Bar Association. Second class postage paid at ll"le Rock, Arkansas. POSTMASTER, send address changes to The Arkansas Lawyer, 400 West Markham, Little Rock, Ar~ansas 72201. Subscription price 10 non路members 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 EDITOR, Arkansas lawyer, 400 West Markham, Little Rock, Arkansas 72201. All inquiries regarding advertising should be sent to The Arkansas lawyer at the above address.

Law Office Management Financial Management: ATwofold Approach By Jerry Schwartz

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1990 Annual Award Winners Arkansas Bar Association & Arkansas Bar Association

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The Developing Law An Introduction to Carpal Tunnel Syndrome By Nelson V. Shaw

Cover Art by Lori Bi.lIlchi Photos" ith Cover Story by Di\ie Kni!-\hl

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THE PRESIDENT'S MESSAGE

Changing, Challenging, Stimulating Times Shortly after assuming office, I was interviewed for the july, 1989, issue of The Arkansas Lawyer. I made various observations and commitments. The observations were right and the commitments were kept. Some of them included: Bill Martin and judith Gray are experienced professionals. Annually they exhibit complimenting talents and skills, thoughtful preparation, commitment to task and dedication to the Association which propel each successive president to confirm and affirm them. (My toughest duty has been to pull away from their much sought daily counsel and friendship.) Their staff, Virginia Hardgrave, joyce Bobbitt, Barbara Tarkington, Paige Beavers, Colleen McGrail and Sara Landis, too, are devoted, energetic and much appreciated. The best work of the Association is done through the committees and sections. This year, every committee and section functioned and reported special deeds. You absolutely refuted the "camel" theory of committee work. (A camel is a horse designed by a committee.) The Association for the first time published and distributed a compilation of the outstanding works of the committees and sections together with the contributors. I commend this document to you as evidence of the sheer volume of productivity engendered by the Association in a year's time. This was the year to implement MCLE. Our joint Annual Meeting offered 24 hours of continuing legal education offerings to attendees - a monumental feat. The seventy-two speakers and panelists with 500 pages of handout materials attracted in excess of 800 lawyers and judges. All Bar Association / AICLE offerings 4

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By David M. Glover Fall Legal, Mid-year and section institutes throughout the year were shored up by outstanding presenters and high attendance. We strengthened our relations with the Arkansas judicial Council. A year of planning between our two strong groups led to our joint Annual Meeting. More importantly, our judicial Council Liaison Committee has positioned us as an Association to enjoy a mutual respect, trust and dialogue with our judges that is so necessary to maintain professionalism for us all. Women and minorities in our bar must be encouraged to come to the forefront. Solid groundwork has been laid, primarily through the Opportunities for Women and Minorities Committee, to heighten our awareness and sensitivity to the equal access needs of OUT women and minority members. Words have been affirmed by specific actions throughout the Bar year. A revised constitutional judicial Article will be completed by the Bar and submitted to the voters. Through LAWYER

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four sub-committees, the judicial Article Task Force has meticulously worked toward this revised document. The task force is an excellent blend of lawyers, judges and legislators, all of whom have substantially completed on time this historical task. Now the work really begins. Every Bar year, many challenges arise. We shied away from none, met them all squarely and caused constructive dialogue to occur. They included constitutional changes which redistricted the Association, expanded the membership of the House of Delegates and Executive Council, made our Constitution and By-Laws gender neutral and modified the time and rotation of electing the President Elect. Other challenges were met by the development of a comprehensive legislative policy and extensive proposed changes to the Bar admissions application. Some of you participated in the debate on 10LTA funding priorities, others were involved in the discussion of selection methods of members to our legal services provider boards. We now leave it to others to determine our relative success on each of these issues, concerns and challenges. Much, much credit is due our succession of outstanding past preSidents. It was upon their foresight and good works we began this year. Our current president, Charles B. Roscopf, is a gifted, creative thinker. Our Association's future is bright. Michele and I thank Our many friends in the Association for your support and encouragement in these changing, challenging, stimulating times. On a personal note, I will continue to be inspired by and indebted to WRW, jr.

The following is a letter sent to William A. Martin, Executive Director of the Arkansas Bar Association ;', response to his column in the April issue of TI,e ArkatlSas Lawyer. Dear Mr. Martin: I was furnished a copy of your remarks which appeared in the April issue of The Arkansas Lawyer. You managed to miss the whole point of my objections to the Mandatory Legal Education Program which has been imposed on the bar of Arkansas by court order. I have never objected to the voluntary program for continuing legal education which your organization has laudably supported. What 1 have objected to, and continue to object to, is the petty, martinetlike (no pun intended) attitude espoused by some of the promoters of mandatory legal education, which is that lawyers must be ordered to, and attend, 12 hours of lectures annually -- no matter the subject, no matter the materials worth, no matter who listens- to maintain a license to practice law. That is what is being palmed off as education, and that sir, is what I call nonsense. To say nothing of my objection to the misuse of the court's power to promote private organizations. Your justification is that "Bar leaders throughout the nation have found some lawyers need the prod of an MCLE requirement to meet their ethical duty..." Are we talking about prod as in cattle prod Mr. Martin? People cannot be forced to learn something they don't want to learn. Inspiration and leadership always work better than force. Even "Bar leaders throughout the nation" ought to know that. There is no original thinking here on my part. Chief justice Griffin Smith said it much better in his dissent in 111 Re Illtegratillg Tlte Bar. 222 Ark. 35, 259 5. W. 2d. 144, (1953) (The order compelling Bar membership was reversed on rehearing): "Since the morning of recorded time there have been two conflicting and violently contending theories of control: One functions through understanding, cooperation, liberty of thought, and a willingness to conform to accepted rules of conduct. The other theory relies upon force, capricious will, dogmatic expedition

of purpose, and the tyranny coexisting with entrenched power." Put me down with Chief Justice Smith. But there's more to it than arbitrary mandatory participation. Have you ever practiced law in the towns and cities of Arkansas? Have you had to plead with a judge for a parent's right to just see a child? Have you helped people keep their property from those who would run over them and take it, knowing your abilities might be found wanting ? Do you understand and appreciate the skill of the courtroom trial lawyer, who can like an artist, bring to life the concept of justice in a county courthouse? Have you witnessed inept and downright criminal behavior by your peers and been forced to face the prospect of what you are going to do about it: either get /linvolved" and perhaps dirty your hands and sully your prominence; or, be a guilty bystander who is silent but safe? Is your program going to teach lawyers about these things? Or will it be humorless, fill-in-the-blanks stuff; stacks of forms, all properly labeled, filled out and filed that declare victory over greed, ignorance and various character disorders? Sounds like you may have a few prods on hand too. If you peddle powerful medicine you won't need a court order to get a crowd, you'll have to rent a bigger barn to hold 'em. Any audience rounded up by the law is of dubious worth. History is replete with programs based on mediocre and bad ideas. Once established they become bureaus in cement, immovable without some institutional bone rattling. And bureaucrats don't like the bones rattled in their bureaus. So another misguided program obscures the real state of affairs. This describes the Mandatory Legal Education program. Lawyers who won't do their ethical duty will hide in it. Why not equal enthusiasm for a program to ferret out, shape up, and if necessary throw out those who are causing all the grief to the law profession? I sense you and I move in different circles and get different mail. You indicate you know what the lawyers want and need. Would you dare to find out what the

lawyers really want? Why don't you ask them? just a simple ballot on a post card: I am _ for _ against Mandatory Legal Education. No campaigning, just mail out the cards. Then you will know what the lawyers want. The fact that I ridiculed some aspects of the program, was foolish, I suppose, because it could only infuriate people who treasure the idea of good health by forced feeding. Whether my remarks were true or myths, as you call them, depends upon what you mean. I wasn't at the meetings you say you attended. Yet I didn't see you in the court's conference room over the months this question was discussed. Is the court considered some sort of Bar Association committee? While my remarks were intended to be humorous, they were only made after considerable study of records, correspondence, and deliberation with other members of the court. They all had a reasonable basis. Was the program's name changed to make it less offensive? I say yes, and that is deceptive. Were "big shots" given special treatment before the pending proposals were adopted? They were. Will the proverbial small town lawyer be represented at your programs? Not likely. ot expensive you say? Have you left your law practice to stay three or four days at a hotel in Hot Springs, Arkansas, at your own expense, and not at that of your employer or the government? Mr. Martin I think we are people of different perceptions. I ask that you publish this in the next issue of the Arkansas Lawyer. Darrell Hickmall

The following is a letter sent to the Editor i" regard to tile Jalluary, 1990 issue of The Arkallsas Lawyer. Dear Ed itor: In the "President's Message" in the january 1990 issue, Mac Glover noted that "[t] he barriers women face consist of overt discriminatory behavior, subtle attitudes and institutional structures: differential, belittling and harassing treatment." Indeed. Victor A. Fleming, writing in the "Law, Literature & Laughter" section of the same issue about an optometrist who

required female patients to strip to the waist during eye examinations, commented that the Iowa attorney general put "the squeeze on this boob," and that Iowa's medical board had "kept itself abreast of the matter." Perhaps Mr. Fleming thinks these sophomoric puns will amuse the "traditional ... male dominated bar" President Glover described. Some members of the Arkansas Bar Association, however, regard low humor focusing on the female anatomy as inappropriate in a professional journal. I trust you and your staff will keep that in mind as you plan future issues. Nalley Bel/hollse May Little Rock

Tile followillg are letters sent to President David M. Glover i" response to his CO/1I111n ill tile April issue of Tire Arkansas Lawyer.

Dear President Glover: Jack Deacon was kind enough to send me a copy of your President's Message which appeared recently in one of your publications. My compliments to you on an articulate and thoughtful presentation which accurately captures my sentiments with respect to this complex, sensitive issue. Anthony R. Palenno Rochester, New York

Dear President Glover: I do not want to let the opportunity pass by to tell you how much I appreciated your recent statement contained in The Arkansas Lawyer, respecting the action of the American Bar Association at its recent convention. I am not sure where I stand, in a general way, on the issue of abortion. I have different reactions to different proposals. However, I recognize that abortion is a subject which usually inspires rather deeply-held convictions in a great many people, including lawyers. The American Bar Association was totally out of line, in my judgment, to take a position on this subject. I think what happened, if I read the newspapers correctly, is that a small group of willful activists were able to seize the moment and impose their narrow agenda on the meeting. I certainly hope, along with the President of the American Bar, that the general convention in August will reverse this action. I am afraid that unless it does happen that way, I probably will resign

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from the American Bar. I do not intend to remain a member of an association which takes political positions, at the instigation of a small group of overbearing activists among its membership. Tim Watson Newport

Dear President Glover: With all due respect I believe you have been misguided in reaching the inclusion that the American Bar Association should rescind resolution 106C on the abortion issue. Your view stems from your acceptance of a basic premise which is false - that is that the abortion issue is a "moral" issue, not a "legal" issue. Resolution l06C does not opine that "Cod is dead." It puts the majority of the House of Delegates on record opposing legislation or governmental action interfering with a fundamental right to privacy recognized by the United States Supreme Court. As I read your "President's Message," you believe expressions of support or opposition to Resolution l06C are "personal stands" ill-suited to the ABA's, mission. You tell us that, n your view, the: ABA should take sides "on behalf of" the "right 0 advocacy for both sides." What does that mean? Are we courtroom janitors or are we the voice of freedom charged with defending fundamental rights against those who would deny all these the freedom to exercise these rights? Going on record opposing legislation designed to hinder the exercise of fundamental rights guaranteed by the United States Constitution is no different than going on record opposing "Jim 'row legislation" seeking to deny blacks equal rights under the law. Dodging the issue on grounds that it offends Roman Catholic sensibilities and some of them are turning in their convention badges in protest does not speak well of the ABA's courage to stand tall in the face of disagreement. othing in Resolution 106C should force Roman Catholics to leave the ABA any more than we should think that the United States Supreme Court is forcing Catholics to return to Rome by recognizing a woman's right to privacy as guaranteed in our Constitution. Finally, Mac, I wish to bring a couple of points to your attention which I believe were mere oversights. In your introductory paragraph, you describe Resolution 106C as a "pro-abortion" position. Think about it. There is nothing in 106C that would LAWYER

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force anyone to have an abortion. The essence of 106C is equal rights. It is "prochoice" versus "no-choice." Stephen E/lgstrom Little Rock

Dear President Glover: Thank you for your article in the April 1990 Edition of the Arkansas Lawyer. As one of the attorneys who felt compelled to resign from the American Bar Association following its adoption of Resolution 106C, I appreciated and agreed entirely with yOUT position as set forth in the article. TlIcker Railey Mathis Little Rock

Dear President Glover: Although it pains me to be courteous so soon after last Saturday's game, I want you to know that I appreciate your letter of March 21 and the enclosed draft of your essay for the Arkansas Lawyer concerning ABA Resolution 106C. Your thoughts are well expressed and I agree completely with your conclusion that the issue deserves a "good letting alone" by the Bar. For your information, Stan Chauvin and Jack Curtin have both expressed agreement with the sentiments I urged in my letter. Hopefully, the resolution will be rescinded in August. If it is not, I fear the worst for the ABA. If it truly seeks to be an umbrella organization, it cannot take positions un political/sodal issues such as this and maintain any semblance of credibility. Darrell E. Jordan President, State Bar of Texas

Dear President Glover: I have a copy of your remarks which appear in the April, 1990 Arkansas Lawyer regarding Resolution 106C. I agree with you wholeheartedly. I voted at every opportunity to defer or table the resolution. The vote on these motions was extremely dose. I also voted against the resolution on the merits principally because I share your view that we should not take a position on an issue as divisive as this one. Herschel H. Friday Little Rock

Letters to the editor are welcome fr011l all readers. Please mail to: Editor, TI,e Arkansas Lawyer, 400 W. Markham, Little Rock, AR 72201.

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etter By Richard C. Jon.

The scene is a familiar one. Negotiations regarding the letter of intent were completed weeks ago and the business of due diligence has been completed to the satisfaction of the buyer. Now the parties are ready to move forward to execute the definitive agreement 1 We hear the seller's attorney, Noah Chance, and the buyer's attorney, I.e. Risk, having the following discussion as they turn to the area of the definitive agreement that is assllred to grab the interest of even the most hardened lawyer. Chance says to Risk: Chance: Ah, yes. Now we come to the part of the deal where I'm supposed to give your client the benefit of my insurance policy in case he doesn't like his deal. Risk: That's not a fair statement. You know there are some important legal conclusions upon which we and any other buyer base such a transaction. Besides.. you're not really writing an insurance policy. You can't be tagged unless you are negligent in the preparation of your opinion letter. Chance: I'm not SUfe about that, I.e. With at least one court imposing a fiduciary duty on an opinion writer,2 I'm not sure how long it will be until opinion letters begin to be treated as if they were insurance policies. Maybe J should charge an insurance risk element on top of my standard fee. Risk: I'm sure your fee's high enough as it is. Chance: My biggest problem is that there's just no clear understanding of what the words in anyone's legal opinion mean. You and I may agree to some words, but the same words may be used by some lawyers in Texas or California or ew York and have a totally different meaning there. They are also more likely to be litigated there than here in Arkansas. Risk: Well, the best we can attempt to do is to reach our agreement. Besides, I think that a lot of provisions of opinion letters do have well understood meanings. oah, you "doth protest too much, me thinks."3 Chance: No, I've just seen your proposed opinion letter and when the members of my opinion letter committee also saw it, they told me to be prepared to leave the partnership if I suggest executing and delivering an opinion ion letter that's anywhere dose to what you've requested. Risk: Then let's just get on with it.

Chance: Right off the bat, I am going to teIl you what documents that I have reviewed and not simply state that I have reviewed records that in our judgment are necessary to render the opinions you have asked for. 4 Risk: Well, I don't know what you need to review, I only know the opinions that I need to receive. If there are some basic documents you would like to list in your introduction, feel free, but I believe you are going to be held to be required to review whatever is necessary to give the opinions that you give. And, I don't think the listing of documents gives you any kind of limitation anyway. Chance: All right, well, I'll work on the listing that I would like to see just so that we are clear on which major documents I've reviewed. Risk: The key opinion in the whole deal is our requested opinion on enforceability. We need to know that the stock purchase agreement is a legal, valid and binding obligation of both the company and the stockholders, enforceable against them in accordance with its terms. Of course, we'll give you the standard limitation for bankruptcy and other creditors' rights. We will also give you the fact that enforceability is subject to equity principles.

R;chord C. Jon, ;, the Coon, II pthe lillie Rock Low F;pm 01 M;lchell, W;lIiom" Sehq & Tuckep.

Chance: Well, I'm not an expert on securities law or antitrust laws, neither is anyone in this firm and the client isn't going to pay the additional cost of having somebody review it just for that purpose. Risk: I'm willing to except out antitrust laws questions, but I want to add that notwithstanding the exceptions that I give you, that my client will obtain a practical realization of benefits sought to be conferred to my client by this agreement. Chance: I have no earthly idea what practical realization means. If you think you need it, I can tell you that some remedy is available if the company or the sellers of the stock don't comply with the material terms of this agreement, but I'm not going to tell you that every single provision of this agreement is going to be upheld or enforced under any and all circumstances. 5 Let's move on to those provisions where you ask my firm to tell you all the things you're getting directly from the company and the stockholders in the representations and warranties section. Risk: Noah, I have said this before. Yes, I agree that there are certain items in the opinion letter that are paralleled by representations and warranties in the agreement, but there are legal conclusions that are also important to us and that's the focus of the opinion. For example, we need to know that the execution, delivery and performance by the company's agreement is not going to be a breach or default under any agreement to which the company is bou.nd. If there are any agreements that you know of, you can identify them for us and this way we also have the added benefit of knowing that your firm has done a thorough review of the company's contracts. Chance: Some of those contracts have financial covenants in them. Now whether they've been breached is not really a legal matter. Also, your suggested language focuses on whether the performance of this agreement is or will be a breach or default. We're not going to tell you what might happen in the future. Also, some of those contracts have been entered into where the company does business outside Arkansas and we're not going to give you an opinion where we have to interpret the laws of another state. Risk: How about this? You could assume that the laws in each jurisdiction are the same as the laws here in Arkansas6 and I'll let you rely on a certificate from the company's treasurer that the financial covenant contained in their main loan agreement, which is the only one we are really concerned about, isn't breached as a result of executing this agreement. And, we'll eliminate the language about future breaches. Chance: All of that is good, but what about your broad claim that this opinion relates to any document? The company's operations are too far flung for us to know each and every agreement they have. Risk: Well, I'm willin~ to limit this to the key things like the articles of incorporation, bylaws and, the major contracts that we identified in that exhibit to the stock purchase agreement. Chance: That's fine, and on that point, let's make sure we're in agreement on what we've decided to include in that exhibit. Although you wanted that representation and warranty to deal with any contract and any breach, you've agreed to listing only those contracts that are above the dollar limitation specified, the breach of which would have a material adverse effect on the business of the company. Risk: That's right, at least that's somewhat better than that double materiality standard you wanted to have; talking about a material breach of material contracts. Chance: Oh, I don't think it was all that bad. Besides, I'm not sure what you gained since you're letting me get away with material adverse effect. 7 Risk: Well, I understand that's imprecise but it sure is a phrase you frequently find in opinions and we spent hours and hours on that representation and warranty. I'm not sure that we'll be any more successful in this deal than I've ever been in any other deal in coming up with a definition of material adverse effect. Chance: Yeah, it is amazing how you have the same dance between buyer and seller in almost every deal. Risk: Let's move on to the opinion regarding permits and licenses. We really need to know that the company has all in the permits and licenses that it needs to run this business. We also need to know that we're not going to have to get any consent other than that which we listed in the exhibit. Chance: Well, I think we could give you this opinion if it was limited by the same material adverse effect standard. I also think that we are only talking about material permits and licenses here. We're not going to be in the position where we have to worry about some business privilege license that has no impact on the business if the company failed to pay some $25 fee. Risk: There you go with that double materiality standard again. We just can't live with that. Because of the nature of the company's business, I am willing to limit this to talk about federal and state permits and not worry about municipalities and counties where the company operates. At that level, it's got to be all permits and licenses and not just material licenses that the failure to have would have a material adverse effect. You can have a materiality limitation, but only once. Not twice. s Chance: No, I think we need to use the same concept when we talk about your requested opinion on the

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company's compliance with laws. You can't be serious when you ask us to give you the opinion that the company isn't in violation of any federal, state or local law, regulation or administrative ruling. You know how much of a hodge podge it is to try to even determine what laws apply to a company like this company. We're not going to give you such a broad opinion. Who knows how many minor, inconsequential breaches of law that you could find if you begin looking for them," Risk: Again, I'm willing to give you a single materiality limitation here, not one of your infamous double materiality limitations. Chance: While I'm busy telling you what I am not going to give you, let me continue. Our opinion letter committee has worked this one out. We will tell you where the company is incorporated, and where it's qualified as a foreign corporation and is in good standing. Then we're going to specifically list the various good standing certificates that we have relied upon in the opinion. We will not give you the statement that the business is in good standing in all jurisdictions where the conduct of its business or the ownership of its properties requires such qualifications or where the failure to do so would have an adverse effect on the company. You've had half a dozen folks looking all over this business, looking at all of its property and all of its operations. You know its suppliers, you know its customers, and you know where it operates, After we tell you where it's in good standing, if you have concern about a particular state, ask us and we will double check whether it's operating in that state in such a manner that it ought to be qualified to do business. Beyond that, I've got no room to give on this point. As you can tell, we almost got burned on this once before and my partners were pretty adamant about this. Risk: Isn't that always how these things come about? You get your hair singed and then you do the work that we should all probably do up front to determine exactly what these opinion letters really mean. Unfortunately, it's hard to find a transaction that would support the legal fees that it would take to really spend the time to develop one of these opinions in that fashion. Chance: The last one I want to talk about is your requested opinion on the company's litigation. Your language is at least a little bit closer to acceptable, especially compared to the last one of these deals I did. In that one, they wanted us to opine that there wasn't any litigation, action or investigation pending or threatened, whether we knew anything about it and no matter what the effect would be on the company. But even with you allowing us to limit this opinion to our best knowledge after inquiry and limiting it to actions or proceedings that would have a material adverse effect, we still have some problems. We are willing to tell you that we don't know of any litigation that is pending against the company other than is listed on the exhibit to the agreement. In terms of giving you any sort of an evaluation about the litigation, we will give you the same response that we gave the company's accountants. We are all familiar with the American Bar Association's statement of policy regarding lawyers' responses to auditors' requests for information. IO It's been around for years and we are comfortable with that. Again, this is an area where you are capable of reviewing the items in the files. We've waived any attorney-client privilege to allow you to do so. But beyond that, we are not prepared to evaluate litigation and other such actions. As to the language regarding claims, we have the same sort of problem when you ask us to advise you that there is no basis for any claim. That's just too broad. We'll tell you that other than any claim that we list on the exhibit, that we're not aware of any other written claims. Risk: I think I can live with all of those suggested changes, Chance: I guess I should also add that you're going to see some additional language in our opinion about who it is here whose knowledge is being used for the basis of our opinion. We have some language which we use in our responses to auditors that basically says only those lawyers who have a substantial involvement on a given matter are the ones who have been polled in giving a response. You'll see a similar limitation in our opinion here. Risk: I think I can live with all of that. And, I know you're got some other limitations that you're going to want to put in your letter. I'll just have to respond to them once I have a chance to see them in writing. Chance: This has actually gone a lot smoother than I would have suspected. Risk: Well, I think we worked out a lot of our clients' concerns when we talked about the representations and warranties. Chance: Yeah, you're right. And, there are some things, like the opinions regarding litigation and claims, where it's just best to let the clients deal with the risk allocation provisions of the agreement to handle potential problems. That's why those representations and warranties are there. They determine who keeps or gets the risks in doing a deal like this one. You don't really need to get the law firm on the line for all risks, too. I'll have a draft of our proposed form of the opinion for you when we get together tomorrow morning. Risk: I will look forward to it. We'll try to get that part wrapped up fairly quickly, Like you, I sure hate it when deals get down to the last item and the last item is the lawyer's opinion letter. [nevitably, my client doesn't seem to

understand why it's of any concern to me. He thinks that the only reason that I ever wanted to negotiate is to put more time on the file. I find myself not only battling the other side of the transaction, but sometimes my own client.

Obviously, this dialogue is a little contrived. But, it's purpose is to shfJW the kind of give-and-take and analysis that is required for a lawyer to fulfill his ethical duty to both his client and those third parties who have the right to rely on a lawyer's opinion letter. 11 Long gone are the days when a lawyer could simply take the form of opinion letter given in the last transaction, change the names of the porties and pretty well execute that letter and deliver it at closing, almost as an afterthought. This is especially true when on one day a compollY appears to be financially solvent and the next time you turn around they are the proverbial "turnip." lAwyers can find themselves more and more being put in a position where their financial well being can be threatened if they have not done the best possible work in preparing an opinion letter. Efforts by the Americall Bar Associatioll and various state and city bor associations have dOlle a great deal to bring some standardization to the area of legal opinions. 12 But we are a long way from having a consensus on what a legal opinion meallS ill all cases. If there is a simple rule that should be applied, it is this: Negotiate the opinion letter with the same degree of diligence and tenacity that you do the definitive agreemellt itself. Both sides should disCliss exactly what the requested opinion means and the purpose behind the request. Oftentimes, simply ullderstanding what the concern is on one side will allow the other side to suggest lallguage that can meet that concern. In turn, this will save a lot of time in arguing over points that make an "interesting" debate, but which are really of no interest to the clients. Finally, it is becoming more difficult to filld a transaction these days that fits the label of a "simple" transaction. SeClirities, antitrust, environmental, usury and other similar issues can be found in almost any corporate transactiO//. If you are not sufficielltly well versed in such areas, it would be well worth it to consult a specialist as needed.

END OTES 1. Space limitations prevent this article from being anything but an attempt to touch upon some of the issues found in negotiating and drafting an opinion letter. 0 attempt has been made to delve into many of the unique provisions one would find if dealing with an opinion letter concerning environmental, secured lending, usury or similar transactions. 2. Alpert v. Shea Gould Chmellko & Casey, Blue Sky L. Rpt. (CCH) para. 72,745, 1988 WL 90922 ( .Y. Sup. Ct. May 27, 1988). 3. Hamtet, Ill, ii, p. 242. 4. It is typical to see a listing of the major documents for a transaction in an opinion, but almost aU letters also say that the opinion giver has reviewed "such other documents and made such inquiries as deemed pertinent and necessary." Therefore, don't view that listing as a limitation of the scope of the opinion. 5. Opinion letters given in connection with loan transactions often contain a provision that states that despite the limitation in the letter regarding equitable principles and the like, such limitations will not "make the rights and remedies provided in the loan documents inadequate for enforcing payments and realizing upon the security." 6. Many lawyers would not give this opinion even with this assumption. Others have been known to give such an opinion, which is then made vague by a provision that the opinion giver is only giving opinions based on Arkansas (or some other jurisdiction's) law. In some transactions, it made be necessary to get local counsel to opine as to material agreements governed by foreign laws. 7. Material adverse effect must be like pornography, you know it when you see it. 8. A suggestion here might be to decide what pennits and license are key to this transaction, list them in an exhibit to the definitive agreement and have the opinion address those permits and licenses. 9. Again, consider listing the specific Jaws that are of concern if it is possible to narrow the scope. 10. American Bar Association Statement of Policy Regarding Lawyers' Responses to Auditors' Requests for IIl/onllatioll,31 Bus. Law. 1709 (1976). 11. Ark. Code Ann. -16-144-303. 12. See the wealth of material contained in the American Bar Association's TIle Silverado Summit: TIre Standardization of Legal OpilJions - Order Out of Chaos. These materials are both of academic interest and of practical use. Volume II contains an extensive bibliography.

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MAURICE CATHEY Maurice Cathey, 79, of Paragould died in April, 1990. He was a retired member of the law firm of Hamilton, Moore, Goodwin & Colbert in Paragould. Cathey served as President of the Arkansas Bar Association in 1966 - 1967, during which time he founded The Arkansas Lawyer Magazine. He also served as President of the Green County and Northeast Arkansas Bar Associations. He was a former director of First National Bank of Paragould and a former advisory director of First Paragould Bankshares and Corning Bank. Cathey was an active member of the First United Methodist Church. He is survived by his wife, Ina Cathey, a son, a daughter and one grandson. Memorials may be made to Arkansas Methodist Hospital Capitol Fund Campaign or First United Methodist Church in Paragould.

W.HAROLD FLOWERS While all who knew W. Harold Flowers are saddened by his death, the sadness is tempered by joyous

recollections of time spent in the company, counsel. or care of this great individual. One never saw him or talked with him who did not depart feeling more committed, challenged and confident. As Governor Bill Clinton said at his funeral. "just being with W. Harold Flowers made us better." The legacy of W. Harold Flowers is not to be found on the walls of his home and law office, graced with plaques, certificates and citations evidencing achievement, positions of note, and service to humankind. The legacy of W. Harold Flowers is wrapped up in the common destiny in the lives he touched, the endurance of the conditions he altered, and the realizations of the dreams he inspired. This native of Stamps, Arkansas - a Methodist minister, former state president and life member of the ational Association for the Advancement of Colored People, lawyer for more than fifty years, former judge, past President of the ational Bar Association, and member of the American, Arkansas and Jefferson County Bar Associations, and the W. Harold Flowers Law Society - knew the truth of the biblical maxim that much is required of those to whom much is given. Those who knew Mr. Flowers know this to be our challenge as well. We also know that for this hour we are prepared because of his instruction and his example.

(a special obitllary writ tell by Rodlley E. Siafer, PresidCllf, W. Harold Flowers Law Sociely, Secretary Treasllrer, Arkallsas Bar Associatioll)

MARION JEFFERSON "JEFF" STARLING, JR. "Jeff' Starling, Jr., 49, of Pine Bluff died in April, 1990. Starling was a long-time supporter of education, a lawyer, a State Education Board member and President of the Arkansas State Chamber of Commerce. He was a partner in the law firm of Ramsay, Cox, Bridgforth, Harrelson & Starling. Starling was listed in "The Best Lawyers in America" as one of the top labor lawyers in the United States. He was remembered by Governor Bill Clinton as a man who was dedicated to education, "He fought his way through his long illness, and sometimes when he was almost too weak to move he would get up out of bed and come to a meeting of the Board of Education and try to uphold the school standards and support some new improvement," Clinton said. "He would come back over and over again with a fire in his eyes because he really believed in what we were trying to do." Starling was an elder at the First Presbyterian Church in Pine Bluff. He served as President of the Jefferson County Bar Association and was active in the Arkansas Bar Association. He was a member of the Board of the American Cancer Society and was President of the Greater Pine Bluff Chamber of Commerce. Starling is survived by his wife, Jane Gillespie Starling, and two sons. Memorials may be made to the First Presbyterian Foundation. (obilllaries conlilllled ollnexl page)

Obituaries

WILLIAM H. GLOVER

(continlled from previous page)

LONNIE BATCHELOR Lonnie Batchelor, 80, of Van Buren died April 14, 1990 in Fort Smith. Batchelor was a member of the Arkansas and Crawford County Bar Associations. He served as Van Buren Municipal judge for 31 years. He was a member of the Heritage United Methodist Church and was a World War II Navy Veteran. He served as Van Buren Municipal judge for 31 years. He was a member of the Heritage United Methodist Church and was a World War [] Navy Veteran.

William H. "Bill" Glover, 86, of Malvern died in April, 1990. Glover was the former prosecuting attorney for Hot Spring, Grant and Saline Counties. Glover practiced law with his father, the late D. D. Glover. He served four years as Malvern city attorney. Glov,er was the past president of the Malvern Chamber of Commerce and served on the Board of Directors of Stihl Southwest, Inc., and the Bank of Malvern. He is survived by his wife, Bertha McRae Glover, a son D. D. Glover and three grandchildren. Memorials may be made to a favorite charity.

Batchelor is survived by his wife,

Lois, three daughters, a son, 10 grand-children and six greatgrandchildren. Memorial contributions may be made to the building fund of Heritage United Methodist Church.

DOUGLAS BRADLEY Douglas Bradley, 77, of Jonesboro died in April, 1990. He was the senior partner in the law firm of Bradley, Coleman & Davidson. Bradley served in the Arkansas Senate from 19591966. He was a member of the American, Arkansas and Craighead County Bar Associations and the Association of Trial Lawyers of America. Bradley was an active member of the Walnut Street Baptist Church. He was a member of the board of Southern Baptist College, whose Board of Directors named him "Distinguished Baptist Layman" in 1985. Bradley was past president of the jonesboro Lions Club. He is survived by is wife, Helen Shockley Bradley, two daughters, and five grandchildren. Memorials may be made to the building fund of Walnut Street Baptist Church or the Helen and Douglas Bradley Endowment Fund at Southern Baptist College. I 2

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MILTON D. MCLEES judge Milton D. McLees, 82, of North Little Rock died in March, 1990. McLees was a former deputy prosecuting attorney for the 6th judicial District of Pulaski and Perry Counties. He was the first President of the Arkansas Municipal judges Council and was a Past President of the Board of the North Little Rock Boys Club. He was also a member of the Arkansas Bar Association. He is survived by his wife, Gladys Hartsel! McLees and a son. Memorials may be made to the Shriners Crippled Children's Fund.

WILLIAM ROY MITCHELL William Roy Mitchell, 61, of Hot Springs died in May, 1990. Mitchell was a former deputy prosecuting attorney of the 18th judicial District 0 Garland County for 10 years, former Hot Springs Municipal Court judge, and a law partner for the LewisMitchel! Law Firm. He was Past LAWYER

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President of the Garland County Bar Association and the Hot Springs Chamber of Commerce. He was selected as an "Outstanding Alumni" of the University of Arkansas School of Law. Mitchell is survived by his wife, Margaret Mitchell, two daughters and three grandchildren.

WILLIAM CARSON BOOTHE William Carson Boothe, 80, of jonesboro died in june, 1990. He was a member of the Arkansas Bar Association, the Craighead County Ba r Associa tion, the N a tiona I Cathedral Association and the Lions Club. Boothe served on the Salvation Army Board, the jonesboro School Board and the City Planning Commission. He was active in St. Mark's Episcopal Church. He is survived by his wife, Margaret McGill Boothe, two sons and a grandchild. Memorials may be made to St. Mark's Memorial Fund or to the National Cathedral Association.

SAMUEL E. MONTGOMERY Samuel E. Montgomery, 85, of North Little Rock died in june, 1990. Montgomery was a member of the Arkansas Bar Association and the North Pulaski Bar Association. He was a member of the Elks Lodge 1004. Survivors are his wife, Mrs. Maxine Montgomery, a son and four grandchildren.

1990

What Do You Know About the Arkansas Bar Foundation? My predecessor, Col. C. E. Ransick, occasional1y headed various written items with the question: "What Do You Know About the Arkansas Bar Foundation?" For too many of us, the answer is: "Not Enough." To try to change that situation a little bit. here are some questions and with answers about what the Foundation is, what it owns, what it does, where its money comes from, who is involved and how do you get involved. What is the Arkansas Bar Foundation? My short answer has often been that it is the charitable arm of the Arkansas Bar Association. Its status with the IRS is a 26 U. S. C. 501 (c)(3) charitable and educational organization. Gifts to it are eligible to be deducted from taxable income as charitable contributions. (The Associa tion is a Section 501 (c)(6) professional organization. Dues and gifts to it do NOT qualify as charitable deductions although in many instances dues can be deducted as business expenses.) To paraphrase the Foundation Constitution, its goal is: .To promote educational, literary, scientific, and charitable purposes by applying funds to the Arkansas Bar Association and other corporations, trusts, foundations, funds and organizations which promote these purposes. Foundation objectives are: ·To improve the administration of justice through legal study and research, diffusion of knowledge of the law, and continuing education of lawyers; .To publish and distribute addresses, reports, treatises and other literary works on legal subjects; and •To acquire, preserve and exhibit rare

By William A. Martin books and documents, objects of art and items of historical interest having legal significance or bearing on administration of justice. What does the Foundation own? The major tangible object possessed by the Foundation is the Arkansas Law Center building. It is carried on the books at a value of one million dollars and probably is worth well over two million. The Trust Account principal amounted to $1,056,719 on May 31 and is invested in U. S. bonds and notes or in fixed money obliga tions backed by the U. S. Government. The Operating Account has about $87,000 in cash and investments. What does the Foundation do? What do these fancy words about goals and objectives translate to in practice? The Foundation is heavily involved in supporting the two Arkansas law schools. As of May 31, 1990, its endowed, named law student scholarship fund amounted to $296,880. The interest goes to fund scholarships and for the 1990-91 school

year should amount to about $31,000. The Foundation adds another $7500 for scholarships from its Trust Account income, $10,000 for research fellowships for law professors and $5,000 for law student moot court competition. About $37,000 should be available for law related special projects during the coming year. Only interest earned on the Trust Account is used. Principal is not touched. In addition to applying money to good works, the Foundation is setting up a Task Force to research the laws around the nation on judicial selection with hopes of finding a better method than mud slinging and jingles to choose judges. During the mid year meeting the Foundation has a dinner for members at which scholarship recipients are recognized. At the Annual Meeting there is a Fellows' Dinner and new Fel10ws are recognized. Where does the money come from? Much of the corpus of the Foundation Trust account comes from pledges by lawyers who become Fel10ws (and who have their photographs hung in the Arkansas Law Center.) Substantial amounts have been donated for named scholarships to honor living lawyers or memorialize deceased lawyers. Smaller amounts have been contributed to have the name of a deceased lawyer engraved in marble in the Memorial Border (a minimum of $1500) or to memorialize a lawyer or friend of the legal profession in the memorial book (any amount). The Fou nda tion recen tl y recei ved significant royalties from West Publishing Company for the sale of Arkansas Model Jury Instructions Civil. Some unrestricted gifts are made to the Foundation also.

An Annual Report of the Young Lawyers' Section Continumg to meet challenges best describes the lawyers and activities of the Young Lawyers Section of the Arkansas Bar Association ("the Section"), Once again, the Section has completed a year of performing its "traditional" activities as well as developing, creating, producing and implementing new programs and ideas. The following report briefly summarizes the activities of the Section in its respective categories. Administrative Activities. The Section's activities are largely accomplished through its Executive Council. The following individuals are the officers and district representatives of the Council. Chair, Rosalind M. Mouser. Chair-Elect, Greg T. Jones. Secretary-Treasurer,

Steven W. Quattlebaum. Central District, Jo Ann Goldman and James W. Cherry. Northwest District, Bill Watkins and Lynn Williams. Northeast District, Lucinda McDaniel and Edward Boyce. Southern District, David L. Sims and Raymond Bornhoft. In addition, to these officers and district representatives, many of which also chaired committees, the following individuals served as cochairs of committees. Senior Citizen's Handbook Committee-Charles Roscopf, Co-Chair. Swearing in Committee - Coleen Barger, Chair. Bridging the Gap Committee - Rick Donovan, Co-Chair. The Section was able to purchase stationary, envelopes and a Section banner which will be utilized in exhibition booths as well as Continuing Legal Education seminars in the future. I 6

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By Rosalind M, Mouser The Section assisted John Gill in a recruitment/membership drive of young lawyers which resulted in 14 reinstatements. Senior Citizen's Handbook Committee. Ed ward Boyce and Charles Roscopf chaired this committee which revised and produced the Senior Citizen's Handbook. Many individuals assisted in producing the forty-four page handbook. The handbooks have been received with great enthusiasm and appreciation. Of the 25,000 handbooks whkh were printed in March of this year, only 7,500 remain. Thus, the Section will consider a new edition in 1991. Funding was largely provided by [OLTA and the Arkansas Bar Foundation. Swearing in Ceremony Committee. As Chair of this Committee, Coleen Barger issued written invitations to significant individuals for attendance at the LAWYER

JULY

ceremonies. Additional Section representatives hosted the reception following the ceremony. The Bar Association staff assisted in the planning and hosting. Bridging the Gap Course Committee. Greg Jones and Rick Donovan cochaired this Committee. The seminar is a 2 1/2 day course comprised of basic information in various substantive areas of law. The seminar hosted 102 registrants and 20 faculty members. The seminar is sponsored jointly with the Arkansas Institute for Continuing Legal Education. Spring Trial Practice Seminar Committee. The seminar, chaired by Edward Boyce, was given in March of 1990. This year there were over 150 registrants. Excellent speakers add ressed practical aspects of litigation, including jury selection and making and meeting objections. The Section netted profit of $6,200.00 from the seminar. These funds were distributed to the winner of the High School Mock Trial team Competition, the team from Nettleton; the Law Student Liaison Committee of the Section; and the Sections savings fund. [n addition to the success of the substantive program, the law firm of Bairn, Guntl, Mouser, DeSimone, Robinson and Kizer hosted a reception on Thursday evening prior to the seminar. There were apprOXimately forty people in attendance, and the same was successful. Law School Liaison Committee. Lynn Williams chaired this Committee, and over the years, the Committee has focused on different activities. This year the Section was

1990

asked by the Student Bar Associations at Fayetteville and Little Rock to host a reception at the meeting of the Tenth Circuit of the Law Student Division of the American Bar Association. The reception was held in March at Hot Springs. Approximately sixty students were in attendance, as well as the national chair of the Law Student Division of the American Bar Association. The Section was assisted by the Garland County Bar Association, David Goldman, Clay Farrar, Bob Lawson, Robert Hargraves and Keith Arman. 1990 Annual Meeting Committee. Chaired by Lynn Williams and Greg Jones, the Committee contracted the services of Big Phil and the Chills, a Pine Bluff band, specializing in rock and roll music from the 1960's and 1970's. They entertained the Annual Meeting registrants on the evening of June 14. Law Day Committee. The Law Day Committee, chaired by Lucinda McDaniel, organized and conducted an excellent program for Law Day, 1990. The theme of Law Day 1990 concerned a search and seizure issue in a school locker. Materials were provided to American History teachers and Young Lawyers throughout the state. The Committee worked closely with the Arkansas Education Cooperative. Long Range Committee. Chaired by Rosalind Mouser, this Committee's activities include goal setting and monitoring volunteers to serve in leadership capacities. One of the previous activities sponsored by the Section, which was not accomplished in 1990, is the establishment of an effective Disaster Relief Committee and the development of a program for the same. The committee is in place for 1991, and the Committee intends to institutionalize a network of attorneys throughout the state who can provide legal assistance to victims of the disasters of flood, fire, tornado and earthquake. Additionally, the Section hopes to continue to increase its involvement in the American Bar Association. At the four (4) national meetings held in

1990, Arkansas had approximately four the five representatives at each meeting. This is definitely an outstanding performance by our Section on a national level. Additionally, Lucinda McDaniel has been appointed the Chair-Elect of the Young Lawyers Division, and Rosalind M. Mouser has been appointed to Vice-Chair of the Subgrant Committee of the Affiliate Outreach Program. Mike Crawford of Hot Springs will complete his second year as District Representative. The Section has greatly strengthened its involvement and leadership in American Bar activities. The success of the Section is directly dependent upon the individuals who have selflessly donated their time and energy to making the Section more responsive to the needs of those who receive its services. As always, the Section is greatly indebted to the leadership and staff of the Bar Association.

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1990WEST PUBLISHING

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I 2140321

Law Night Excitement at Ray Winder Field

The Showers of a Compliment & More Malaprops

LLL draws comments from nonlawyers most infrequently. Thus, I strive to soak in the entirety of any such remarks. The most recent instance of this phenomenon was on Law Night, May 14, at Little Rock's Ray Winder Field. By Victor A. Fleming With rain showers threatening, the Travelers were leading the Diablos 1-0 in the fourth inning. The game had assumed a rather dull pace since the ball, which indeed went over the first. Thus, it was a bright moment fence for a home run. when Charlotte Brown, the delightful In such circumstances, 1 have spouse of then-Supreme Court learned, it is imperative that the candidate Bob Brown, came by parent remain calm and persuade the child to stop crying and yelling and campaigning. My six year old son, Teddy, had state precisely what has transpired. "What the heck happened?" I just departed on his fifth trip to the concession stand. I introduced hollered (to be heard over the Charlotte to my neighbor, Dr. Jim screaming of fans around us). McDonald, and she politely asked for Pointing toward the pressbox with the his support in the primary election. hand that held the peanuts, my son Then, as she was about to depart, shouted through his tears: Charlotte allowed as how she had "WalkinalonganitfellonmeDAD! " With Dr. McDonald's assistance, I recently browsed through past issues of The Arknnsas 1.Jlwyer, read LLL, and quickly ascertained that the liquid really wanted to tell me thatdripping from Teddy'S jacket was not Sensing that I was about to be blood. Looking toward the pressbox, showered with a compliment, I I saw a hand-made Traveler banner strained to take in her words. At that that looked out of kilter. We moment the Traveler at the plate, diagnosed that at the crack of the bat Steve Fanning, hit a long fly hall (to (or perhaps the beginning of the right center, I think). Trying to watch sentence with the proffered remark), the ball with my right eye and listen to someone in the press box overturned Charlotte Brown with my left ear, I a beer. As the liquid followed the pull was suddenly interrupted by the of gravity exuded by my child's scream of a child: "It fell on me, Dad! person, it met the banner's blue ink It fell on me! and, slowing slightly, showered I turned and beheld my son. down on a red Windbreaker, size 7. On Crackerjack in his left hand and impact the blue-inked beer took on a peanuts in his right, he smelled from blood like appearance. The substance of the preceding beer and appeared to be covered with blood. I cannot remember the exact paragraph was hastily explained to words I used to excuse my attention the six year-old, who accepted the from the candidate's wife and the fly explanation with an excited "Oh" as

he tore into the box of Crackerjacks. Fanning had circled the bases and reached the dugout by the time I turned back to the field. Charlotte Brown was ten seats farther along. She looked back and waved. Belatedly, Charlotte, thanks, I think, for the remark (which I hope was kind). And congratulations on the primary election. More Malaprops Several issues ago, with an assist from Tim Watson of Newport, LLL highlighted the malaprop, the misapplication of a word for one with similar sound or meaning. Pursuant to an affiliation of long standing with the Arkansas Writers' Conference, each year I read essays that are supposed to be witty. One of this year's entries "We Have Burned Our Britches Behind Us" by Patricia McRaven, a Tennessean, contained some wonderful mala props. The author told of a heartbreaking memo from the boss: "You shouldn't drink alcohol because... it gives you psoriasis of the liver." Another boss, a regular bus rider, wrote the transit authority about his company being fated to transfer on the way to work: "I am a person who likes to stay on the bus until I reach my destiny." Me being an English major, my favorites from the essay were attributed to an acquaintance who tried to impress the author by claiming to have read all of Shakespeare's books. He was especially fond of the poems of Edgar AlIen Pope. And from the Romantic era, he gave high marks to "Byron's 'Imitations of Immorality'." The essayist astutely noted, "Where Byron was concerned, those weren't imitations." Š 1990 by Vic Fleming

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Urban League of Arkansas, her employer, alleging breach of contract concerning her group insurance coverage. In August 1986, Service Finance obtained a Summary Judgement against Ms. Hayes for the amount of the indebtedness. On Infonnal Complaints filed lIpon which September 12, 1986, trial was held on no formal action was taken nllmbered 47. Ms. Hayes' complaint against the Formal complaints lIpon which no action Urban League and she obtained a was warranted nllmbered 5. Formal judgment in the amount of$l1, 078.79. complaints lIpon which action was taken In February 1987, Service Finance filed nllmbered 17. a garnishment against Ms. Hayes, naming the Urban League as garnishee for wag s held. Ms. Hayes filed gar i eta ain he Urban League all hing tl e lalle 's bank account t tw differ t hanks. The Don G. Gillaspie was issued a letter Urban ague a,nsw'W' claimed of reprimand for violation of Model that th . nd were x~ ~ and Ms. Rules 1.1, 1.16(c) 8.4(d) as a result of a Haye ov to e aside the Per Curiam from the Arkansas garnis ment of Servtce Finance on the Supreme Court, appellant Joe Carl same grounds. On August 14, 1987, a Lanford. hearing was held wherein the court rendered a judgment in favor of Service Finance against the Urban League in the amount of $102.24. The court further held that one of the Mr. Fitzhugh was issued a letter of Urban League accounts was exempt caution for violation of Rules 3.3(d) from garnishment but gave judgment and 3.5(b) as a result of a complaint for Ms. Hayes against the other bank filed by Mr. S. T. Files. From the in the amount of $11 ,850.04. Subsequently, Mr. Fitzhugh affidavits and the testimony of Mr. S. T Files and Mr. J. Acchione, the. prepared a Judgment naming all the following evidence was submitted: parties to the action and settling for Ms. Jean M. Hayes became indebted in the amount of the judgments in favor the amount of $10,627.83 to the Baptist of Service Finance and Ms. Hayes. Mr. Medical Center for medical services Acchione took exception to the form of provided. The account was turned the judgment and requested Mr. over to Service Finance Corporation Fitzhugh to reword particular parts of who, in July 1985, referred the account the judgment. On or about September to Mr. Acchjone r col ection. Mr. 3, 1987, Mr. Fitzhugh sent Mr. Acchione bled suit agajnst s. Hayes Acchione a revised judgment in the in Pul County Circuit Cowt on same format as the prior judgement July 24, 85. sHay, hrough her but containing the requested changes attorney, eat !:!:ipe F zllUgh dB. to the objectionable wording. This Dewe~ .;z ugh ns ere the judgement, containing the approval complalllt on August 14, 1985. On signatures of the legal representatives September 11, 1985, Ms. Hayes filed a for all the parties, was filed of record Third-Party Complaint against the September 1, 1987, by Mr. Acchione.

There follows a monthly report of activities for the Committee on Professional Conduct for the months of February throllgh May, 1990, in accordance with rliles of the Arkansas Supreme COllrt.

DON G. GILLASPIE

B. DEWEY FITZUGH

At this time, r. 7\cchione discovered that a judgment only listing Ms. Hayes as the third party plaintiff and the Urban League as the third-party defendant had been approved by a special judge and filed of record on September 11, 1987. The September 11, 1987, judgement did not include the judgment amount due Service Finance and also included an agreement by the Urban League to pay Ms . Hayes an additional amount that had not been subject to garnishment. Mr. Fitzhugh's affidavit, exhibits and testimony does not dispute the above-evidence except in the particulars and circumstances sur-

rounding the preparation and circulation of the judgment. Mr. Fitzhugh stated that he did not think that Mr. Acchione or his client were a party to his garnishment action against the Urban League on behalf of Ms. Hayes. He said that he prepared the first judgment in an allempt to comply with the courl's instructions in preparing a precedent and circulated it to Mr. Acchjone as a courtesy. Still Mr. Acchione objected to some of the language in the judgment, Mr. Fitzhugh said that he re-drafted the judgment as an accommodation to Mr. Acchione. He said that Mr. Acchione refused to sign the September 3, 1987, judgment unless Ms. Hayes paid his client a compromised amount but that he was unable to reach an agreement.

Mr. Fitzhugh sought to compromise the claims against Ms. Hayes because the jury award represented amounts for damages clai ed by persons other than Secyjce . ,a ceo I stated that because of Mr A ione' refusal to app~ov the l).ldgmen that Ms. Ha es' ga I Urban ea u was that r ).liT tt~ii';n;;:::h~ part of Mr. Acchione's clien. Mr. itzhugh prepared a judgment approved by him and the attorney for Urban

League which was filed on September 11,1987. Mr. Acchione testified that he did not refuse to sign the judgment i and, in fact, did sign and filed it on : September 16, 1987. A hearing was i held before the trial court in October i 1987, in which the trial judge found no: legal basis for setting aside the! judgment of September 11, 1987. In his i testimony before the Committee, Mr. : Fitzhugh stated that he proceeded in i the manner that he did in obtaining i the September 11 judgment so that he ! might gain an advantage over the: other party. i Mr. Fitzhugh has filed an appeal i

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PHILLIP D. GOULD Mr. Gould was issued a letter of i caution for violation of Rules 1.3, 1.4 : and 3.2 as a result of a complaint filed i by Ms. Beverly Kelley. In her affidavit, ! Ms. Kelley states that she hired Mr. i Gould in April 1988 to represent her: in a claim against certain parties

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arising out of alleged improper repairs i to her automobile. Ms. Kelley states i she subsequently made several! unsuccessful attempts to contact i Gould about the status of the case. In i July 1988, Ms. Kelley contacted this! Committee and a letter was sent to i Mr. Gould setting out her complaints i and her inability to communicate: with him. She said she later made i contact with Mr. Gould and was i advised that a hearing was scheduled ! for August 22, 1989. Ms. Kelley was: later informed that the hearing was i continued to August 29 and then! continued to August 31,1988. She i states she waited almost a month in: Berryville to attend the hearings, but! finally had to return home without i having the matter heard. The Small i Claims Docket of the Berryville: Municipal Court reflects that Case o.!

of service of process on a party i advised. However, he further states defendant. Sometime afterwards, a , that he did offer to appear with Ms. judgment for the plaintiff, Ms. Kelley, ! Kelley in court on August 31,1988. He was entered and was appealed to the i said the judge advised that the case Circuit Court. : would be decided ,on written A formal complaint was sent to Mr.

1

responses and Mr. Gould assumed he

Gould on July 27, 1989, by certified i had no further obligations in the mail, and returned "unclaimed" on : matter. August 13, 1989. The complaint was: then mailed to Mr. Gould by first class i mail on August 16, 1989, and it was! not returned from his office. When no i response was received, another letter j was sent to Mr. Gould on September i 14, 1989, advising that any response! Mr. Morehead was issued a letter of should be submitted immediately. i caution for violation of Rules 1.3, 3.2 Thereafter, an affidavit executed by i and 8.4 as a result of a Per Curiam Mr. Gould on December 12, 1989, was: from the Arkansas Supreme Court for tendered to the Committee. The affid- . appellant Almore Banks. The Per avit of response admits representation Curiam and appended letter of of Ms. Kelley, although Mr. Gould August 2, 1989, frum the clerk uf the states that he only agreed to file the court reflect that appeals were filed by 88-421, Kelley vs. Midway Wrecker alld : complaint and initiate the action and Mr. Morehead in Ballks v. Siafe, CACR DiscollIll Ellgille Paris, was filed on i that he has received no remunerative 8B-BO and CACR BB-BI on April 18, August 31, 1988. There was an· fee notwithstanding his advancing the! 1988. Subsequently, Mr. Morehead agreement to submit the case on the court costs. Mr. Gould states that he i requested remand of the record to the written statements of the parties. The did not respond to every commun- i trial court to settle the record. The Municipal Judge subsequently ication from Ms. Kelley, but did i lower court notified the clerk on rendered a judgment for Ms. Kelley attempt to keep her reasonably! January 20, 1989, that the matter waS and subsequently set it aside for lack 22

THE

ARKANSAS

ROBERTF. MOREHEAD

LAWYER

JULY

1990

J

set for hearing. Hearing nothing further, the clerk wrote Mr. Morehead on August 2, 1989, requesting a status report within seven days. On September 27,1989, some 56 days after the request, the Court received no response and entered a Per Curiam dismissing the appeals. Mr. Morehead's response and the appellant's affidavit state that a decision had been made to abandon the appeal. He further stated that he assumed the matter would be dismissed for failure to proceed and he did nothing more to advise the Court.

WILLIAM SCOTT DAVIDSON

8.4. A letter of suspension, was filed ! of this court, acting for the court, with the Arkansas Supreme Court on ordered the respondent to show cause April 24, 1990. why the identical discipline imposed by the Supreme Court of Arkansas should not be imposed by this court. Said order was transmitted to the respondent and received by him more than thirty days prior to the date of The petition for writ of certiorari of this order, and respondent has failed Sam Sexton, Jr. from the Arkansas to show cause why the identical Supreme Court's affirmance of Mr. discipline imposed by the Arkansas Sexton's suspension was denied by Supreme Court should not also be the United States Supreme Court on imposed by this court. Therefore, this April 2, 1990. court finds that respondent's right to The Clerk of the Arkansas Supreme practice in this court should be and it Court issued a judgment of affirmed hereby is suspended, effective law on April 6, 1990. Mr. Sexton was immediately, for a period of one year suspended for a period of one year for from the date of this order, and the violation of disciplinary Rule 5-104(A) clerk of the court is directed to strike upon the complaint of Danny the name of Sam Sexton, Jr. from the Haffelder. roles of the attorney authorized to I THE UNITED STATES DISTRICT practice in this court. The said Sam COURT - WESTERN DISTRICT OF Sexton, Jr. is hereby ordered and ARKANSAS directed to, within seven days of the On this 11th day of June,1990, the date of this order, notify all clients court finds that on April 26,1990, a with matters before this court that his certified copy of the opinion and right to practice before this court has mandate of the Arkansas Supreme been terminated and that they must, Court suspending the license of Sam within fourteen days after the date of Sexton, Jr. to practice law for a period this order, substitute other counselor of one year was filed in this court. On notify the court that they intend to the 26th day of April, 1990, pursuant proceed without counsel. Effective the to Rule II of the Model Federal Rules date of this order, the clerk of the court of Disciplinary Enforcement which are is directed to accept no more filings in incorporated in and made a part of the any matters before this court executed Rules of the United States District by the said Sam Sexton, Jr. for a period Courts for the Eastern and Western of one (I) year other than a withdrawal Districts of Arkansas, the Chief Judge as an attorney of record in this matter.

SAM SEXTON, JR.

Mr. Davidson was issued a letter of caution for violation of Rules 1.3 and 3.2 as a result of a Per Curiam from the Arkansas Supreme Court. On January 9, 1987, appellant John Simpson was convicted of aggravated robbery in Craighead County Circuit Court. At appellant's request, notice of appeal was timely filed by Mr. Davidson, Mr. Simpson's court appointed attorney. The transcript was never lodged with the Supreme Court. On ovember 2, 1989, the Court issued a Per Curiam permitting a belated appeal. In Mr. Davidson's response to the Court and the Committee, he stated r--------------.:..---:=-.:.....--------------~ that he advised Mr. Simpson that he felt there was no merit to an appeal but filed notice of appeal at Mr. Simpson's behalf. Thereafter, Mr. Davidson neglected to have the TRAFFIC ACCIDENT INVESTIGATIONS & RECONSTRUCTION USING COMPUTER GRAPHICS FOR EXHIBITS transcript brought up and logged with the Court. He states the error SPEED LIlIIT IS 55 liPH BUT S1GIIT DISTANCE IS was not discovered until after the time TRAFfiC ACCIDENT ANALYSIS for ADEQUATE FOR ONLY 20 liPH for filing had run. plaintiffs and defendants. AT TOP OF IIILL ScIentific reconstruction of vector forces involved in an accident can be portrayed on computer graphics used as exhibits. Over 30 years engineering experience. Upon the complaints of Jo Ella JOHN T. BATES, Civil Engineer May-Gurley, Tommie L. Wilson and 327 Bizzell Ave., Midwest City, OK 73110 Clarice Pointer Charles L. Coley was Phone: (405) 732- 5950 suspended for a period of two years for violation of Model Rules 1.3 and

EXPERT TESTIMONY

CHARLES 1. COLEY

o

AHistory: Clwrles B. Roscopfarid his SOrl, Charles David, work together at Roscopf & Higgirls.

His Family, His Town &His Year at the Helm ,

Bif Paige Be/weI's, Editor, Tile Arkansas Lawlfel' sk new Arkansas Bar Association President Charles B. Roscopf about his home and he will say something like, "Helena is located right on the banks of the mighty Mississippi river, nestled in the hills of Crowley's Ridge and safe from the ravages of the river. According to Mark Twain, 'Helena occupies one of the prettiest situations on the Mississippi.'" To better understand our President and what he hopes to accomplish, we need to know something of his background. Charles B. Roscopf was born in Kingtown, a farming community right outside Marvell, in Phillips County, Arkansas. It was named for his mother's family, the Kings, who were early settlers. He graduated from high school in Marvell in 1946 and entered the avy four day later. Stationed in California, he was trained to be a

A

surgical nurse which sparked an interest in medicine.

Charles B. & Mary Anile Roscop[, at home in Heleua, ArkatlSlls

Returning to Arkansas Roscopf entered Hendrix College under the GI Bill as a pre-me student. Tiring of the basic material he already kneW' rom his Navy experience he switched to law, traveling to the University of Arkansas at Fayetteville, At t)lat time" the hours he had earned at Hendrix were sufficient fo admission to the law program at the niver it, Roscopf- eft the University during the year of 195 , to serv '0 the ouse of the Arkansas Legislature. At 25 year of age, Charles B. Roscopf was the youngest member of the House ever in the state. He served the terms of 1953, 1955, 1957 and has remained active in politics to this day attending the Constitutional Convention of 1969-70 as one of two

Goals

F

rom his law practice and living in Helena since graduation comes an Association President who says, "My goal as Bar President will be to keep the Association on an even keel. We have made steady improvement over the past several years - in our facilities, staff, and service to Arkansas lawyers. I want to build on what we've got. Ours is a pure service organization -- service to the lawyers of Arkansas and service to the public. Mac Glover has provided me with a legacy of active and enthusiastic committees. I expect great things from our committees this bar year. The House of Delegates has allowed me to create two new committees, government Lawyer Committee and In-House Corporate Counsel Committee. These two committees can fiU a gap that I have perceived for several years. "Since my term falls in a legislative year, I will be vita.llc interested in promoting the bar legislative package. Some of the finest lawyers in Arkansas are contributing their time to this process. 0 er the ears Arkansas has been on the leading edge of ne legislative developments. This is principally due to the workofthree co .t es inv Ived in the process.

"The work of the judicial Article Task Fore will culmina during my term. This committee has utilized the talents of some of the state's best judges and lawyers. The Lake DeGray Convocation will be long remembers as a mile post in the road to judicial reform. Our association will playa leading role, with other state organizations, in promoting needed

The Phillips COUtlty COllrthouse looms over tl,e busi"ess district ill Heleun. The Greek Architecture blli/dillS ;s witllill walkillg distance of Roscop{'s office. Some of the refllrbishillg thnt hns tnkell plnee iI/side has beeH with the aid of the Phillips County Bar Association, of which Roscopf is Past President.

improvements in all aspects of our judicial system," says Roscopf.

Roscopf has picked what he calls "the best lawyers for the job" to be directly involved in the process. His selections for committees dealing with legislative matters include those who have great interest in the judicial Article and who have the best experience, reputation and contacts to help get it through. "I think I have done this especially by selecting David Matthews as Chair of the Legislative Action Committee," which has principal responSibility for supporting the Association's legislative efforts. Matthews, who chose not to seek reelection, has twelve years experience as a representative. The past chair was President Elect james H. McKenzie who created a legislative contact network involving lawyers all around the state. Besides the judicial Article emphasis, Roscopf feels the work of committees during the past year has been very successful and he wants to act as an overseer after getting them started. "I think the Association has made tremendous progress to the point I won't have to 'baby-sit' the committees and section,;, I feel the Chairs will get them up and going and they will function actively and effectively throughout the year on their own."

Roscopf left in place vera! committee chairs from the past year, feeling that they could be mor~ff tive if given more time to accomplish their tasks. The')'ear '11 go smoothly because the transition to new leadership won't be overwhelmjng. "I don't foresee a lot of problems, besides the judicial Article," says Roscopf. "I think the year will produce what we are looking for." 2 6

THE

ARKA

SAS

LAWYER

JULY

1990

Charles B. Roscopf stands on the Memphis Bridge which, interestingly enough, connects Helena to Mississippi. This;s the best TOute, hUUJl!lJeT, to take to Memphis, cutting up through the most Southwestern comer of Mississippi up j"lo Tennessee.

T

Helena Environment

T

Home, Family & Hobbies

o get to Roscopf's office, I was told to look for the only five story building in Helena. Roscopf & Higgins, which evolved from Quarles and Moore, has offices on the fifth floor of t e Helena National Bank Building. The office is decorate with pIctures of t e former members of the firm, a map of the Miss Ippi River sh wing settlements dating to early territorial days and maps and pictures of Crowley's Ridge. These items stem from the firm's long term representation of the WhHe River Drainage District, the ttonb t Levee istric and the Helena Improvement District From Roscopf's office window you can see the Helena Bridge, the symbol of the city being a river and highway crossroads. Incorporated in 1832, the same year as Memphis, the city is in the heavily depressed Delta. Once active industry left after labor problems. The people range from wealthy to poverty stricken. The town is charming with huge, graceful, restored southern homes which loom over streets bordered with enormous, ancient oaks, magnolias and weeping willows. There is a collection of chain businesses, Wal-Mart, Wendy's, Pizza Hut, McDonalds, Kroger and Piggly Wiggly plus small furniture, clothing and other household goods shops that are reminiscent of other, simpler days in small Arkansas cities. The town boasts of Phillips County Community College, one of the first vocational, technical colleges established in the state. Roscopf serves as a member of the college foundation. The courthouse has been renovated ith the aid of the Phillips County Bar Association, of which Rosco f is a past preSident. He has served on the Helena Industrial Development Commission for year~ne of his many civic activities. He is an active member of t e Rotary Club of Helena, winning in 1987 a Paul Ra 路s,Fellowship in appreciation of "tangible and significant assistance give or t e hera neg of better understanding and friendly relations between ~ I of the world." Several businesses that have considered locating in Helena have turned away for various reasons and industry seems to be at a standstill. Roscopf believes there is hope for better times. The new slack water harbor will make it easier for Helena to be used as a port. Phillips County is now producing some really good black role models, a fact of which Roscopf is proud and believes will help improve education. Phillips County has a location made for growth and development. "We need more legislation to support us in our efforts, we need better schools-it takes money, we need more industry, the Helena ADD (Arkansas Delta Development) is working on that," said Roscopf. "I believe we can pull ourselves out of this, I'm staying here till I die, and I think I'll live to see some improvement." Mary Anne Roscopf feels just as strongly about Helena. "Even though I'm not from here originally, I feel like it's my home now," she says in her lovely, lilting southern voice. "We say Phillips County instead of Helena because it's not just Helena we live in, we're close to several other towns which would all benefit from successes in Helena. These towns form a family called Phillips County."

he Roscopfs live in the heart of Helena in a lovely house featuring a large den where they spend a great deal of their free time. On the back porch is a swing for two where they enjoy sitting in nice weather. In the backyard is evidence of one of Roscopf's hobbies, a storage shed he built. "I really enjoy building things. I don't lay goU or tennis. I fish some, but not often, so I spend most of m re axin time cooking out with Mary Anne and the kids and building things like the shed." Roscopf's main pleasures come from liVing in his favorite place with his family. Son, Charles David, is an associate with Roscopf and Higgins.

The younger Roscopf also earned his law degree at the University of Arkansas at Fayetteville and chose to return to Phillips County. At 33, he and his father prac 'ce together and work with the county bar association and other rganizati ns s . ing to better the place they call home. Rosco fs ughl r, fA ,is married to a lawyer who practices in Maryl . '1 told her us e could marry my daughter and move her away 0 I as long as e Ilro, ght her back at least once a year," says Roscopf. '~e w路 rked u they bring their children and visit once or twice aan a MIle..an I have been up there numerous of times." Pictures of the c 'Idren and grandchildren abound in his home and office. Both Charles and Mary Anne grew up during the depression and World War II. "It has really made us appreciate the things around us, the fact that we have been able to work and have a home, and to educate our children," says Mary Anne. "We know what it's like to live in times when the nation was depressed and jobs just weren't around. It really makes us appreciate what we have." "It made me appreciate what this country has to offer. Education is number one," says Roscopf. "If it weren't for the Navy and the G, r. Bill I couldn't have gotten an education, couldn't have gone to law school and done what I have done." A lot of Roscopf's time is spent reading. Each morning he reads a passage from The Literature of the Law. A history buff, he reads American Heritage Magazine religiously and has since 1958. "He keeps all the issues, we have every one since he began receiving it," says Mary nne. His latest book is Lyndon B. Johnson, The Pa~lo Po , b}' bert A Caro. When asked if he is reading it because h es :ally likea Jo nson, e w sate I e mple Roscopf says "No, [ don't like him at all, I thijl of public service. I just wanted to find out wh t mad him ti , Ihi kit's important to know about our nation's leaders." The president he does like, whom he callS":'Q!Je of IS av, r op'le in history, is Thomas Jefferson. "Jefferson did so many things. He was very influential during an important time of our history. He was a great philosopher and negotiator," says Roscopf. "He took the existing philosophies from England and France and brought them together to create a democracy for America. He was the only one with the patience to help iron out all the problems of the American constitution. Without him [ don't believe it would ever have been agreed upon."

P

Looking Ahead

ersonally, Charles and Mary Anne Roscopf both are looking forward to the traveling and seeing people statewide that goes with the Association Presidency, "We run into so many friends we haven't seen since college, its fun," says Mary Anne, Roscopf intends to spend four days a week in his office keeping his practice up, and three days during the week working on Association business. "It will make for long weeks, but I think it will be well worth it," he says: When asked to describe himself in five words, Roscopf says, "Sincere, loyal, per istent f\ \0 in and studious," When Mary Anne is asked if she agrees e ph ,"JIVe see him as a man of integrity, a workaholic, but at th e ' e a fa 'ly . He is very loyal, a student of the law, but abov ,a lnie friend.~ Edito

lave

home nd offic,

-jng

taken my photographer ;'ltO olle of ollr President's

qu tiims, takhlg pictures of everything ;n sight. A"d once agaill, I have been treated with tile utmost ;n graciousness. J tha1lk Hie Roscop{'s for their 0

efforts and attitudes. They are truly the epitome of what people from this regioll of the co/mtry like to call 'Sol/them Hospitality.' 1enjoyed myself immensely. 2 8

THE

ARKANSAS

LAWYER

JULY

1990

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UALR SCHOOL Of LAW UALR SCHOOL Of LAW

UIHL

V R . OL V R OL U C OL N UALR SCHOOL Of LAW UALR SCHOOL Of LAW

UNIVERSITY OF ARKANSAS SCHOOL OF LAW By Dean]. W. Looney FACULTY ACTIVITIES Robert Laurence's article "The Enforcement of judgments Across Indian Reservation Boundaries: Full Faith and Credit, Comity and the Indian Civil Rights Act" has been accepted by the Oregon Law Review. Carlton Bailey will teach Criminal Law and Procedure in the Council on Legal Education Opportunities (CLEO) program at the University of Mississippi during the summer. Chris Nelley has an article in Agricultural Law Update on "ASCS Appeals: An Observation and a Suggestion.''' He has completed work on '''A Lawyers Guide to the ASCS Administrative Appeals Process and the judicial Review of ASCS Decisions'" a project Sponsored by the Agricultural Law Committee of the ABA General Practice Section. He has also assumed editorship of the Committee Newsletter. john Watkins' article "Civil Procedure, Fifth Circuit Survey" appears in the Texas Tech Law Review. He has also completed a discussion paper - "The judicial System and the Right to Know" to be published by the Center on Press, Politics, and Public Policy of the j.F.K. School of Government of Harvard University where he spent the spring semester on off campus duty assignment. john Copeland's article "The Status of an Agricultural Cooperative When 3 0

THE

ARKANSAS

AICLE AICLE

Vi IVERSITY Of ARKA" SAS SCHOOL OF LAW V IVERSITY OF ARKANSAS SCHOOL OF LAW W o~IA I1s S o~ E OF R S S SO,

UifE y

L

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AICLE AICLE

F

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UNIVERSITY OF ARKA_ SAS SCHOOL OF LAW UNIVERSITY OF ARKA SAS SCHOOL OF LAW

a Farmer Experiences Financial: Distress'" appears in the University of : California - Davis Law Review. : Charles Carnes" discussion of : pending EPA regulations applicable to ! agricultural uses of pesticides appears in the june issue of journal-of Agricultural Taxation & Law. jake Looney"s article "Protection for Sellers of Perishable Agricultural Commodities: Reparation Proceedings and the Statutory Trust Under the, Perishable Agricultural Commodities: Act" was published in the University , of California - Davis Law Review. He presented a paper at a Civil War Conference on "The Arkansas Supreme Court During the Civil War." Paul Schwartz will be a summer Guest Scholar at the Institute for Labor, Economic and Civil Law of the: Goethe-University, Frankfurt-AmMain, West Germany. : Mort Gitelman, Ray Guzman and: Robert Laurence were CLE speakers at : program sponsored by the School of : Law. Mary Beth Matthews and Mark: Killenbeck were selected to make: presentations at AICLE's "Best of : CLE" Program. Don Pedersen was a speaker at the Third Annual' SympOSium on Agricultural and Agribusiness Credit in Chicago. Milt Copeland spoke at a CLE program in Little Rock. Lou Lindsey was program chair for a joint meeting of the Southwestern Association of Law Libraries (SWALL) and Houston Area Law Librarians (HALL) . She served the past year as . Vice President/President Elect of : SWALL and assumed duties as President at the annual meeting in : Houston. : The Spring Hartman Hotz Lecture: was presented by Professor Neil:

i

i

i

LAWYER

JULY

1990

MacCormick of the University of Edinburgh. Professor MacCormick, former Dean of the Faculty of Law at Edinburgh, also Visited classes in Constitutional Law and Comparative Law while in Fayetteville. His topic for the formal lecture was "Interpretation and justification in Law."

Another distinguished lecturer was Professor Louis Lorvellec of the Faculty of Law of the University of Nantes, France who spoke on "Family Farming in France and the New Europe." Professor Lorvellec spent the academic year on sabbatical as a visiting scholar at the School of Law. He is internationally recognized for his work in agricultural law and is the author of a leading agricultural law book Droll Rural (1988) . Also lecturing at the law school during the spring semester was Professor Oliver Houck of the Tulane law faculty. Professor Houck discussed water quality legislation and, in conjunction with the Biology Department, presented a second symposium on the Endangered Species Act. Professor Robert A. Leflar, Distinguished Professor Emeritus announced his second retirement at the end of the academic year. He has taught at the law school since 1927 and officially retired in 1972 but has continued to teach. without pay. since that time. Professor Leflar will maintain an office at the law center, named in his honor after renovation and expansion in 1986. Dean jake Looney announced his resignation as Dean effective july I to return to fullttme teaching. He joined the faculty in 1980 as founding director of the Agricultural Law

Program and became Dean in 1982. He has continued to teach and conduct research along with his administrative duties. Professor Richard Atkinson has been named Interim Dean for the 1990-91 academic year and will also chair the Dean Search Committee. STUDE T EWS Carlos Ross of Hope, a third-year. law student was named the recipient of the 1990 Silas Hunt Award. Ross was active in the Student Bar Association and was president of the Black Law Students Association. He received a bachelor's degree in economics and business from Hendrix College in 1987. In 1989 Ross won the Frederick Douglass Moot Court Competition for best respondent brief. The Silas Hunt Award is named in honor of the first black person to integrate higher education in Arkansas. Hunt enrolled in the UA Law School in 1948. Ross is the son of George and Shirley Ross of Hope. The law school has worked with the bar in orthwest Arkansas to establish a new American Inn of Court. The American Inn concept is to promote professionalism by allowing experienced attorneys and judges to assist less experienced lawyers and law students in developing their skills and in fostering better relations within the profession. The Inn was named the W. B. Putman Inn of Court in memory of the distinguished Fayetteville lawyer who taught Trial Practice for many years at the law school. Judge Rim smith, class of 1975, was elected President, Robert Estes, class of 1975, was elected Counselor,

G.A. Tomlinson P.E. 8425 So. 73rd East Ave. Tulsa, OK 74133 (918) 252-1905 Born 2.12·24, Amarillo. TeAlS: U.S. Navy. I9-tJ-I946; Oklaholrul Slate Unh-erslly. 1946-1949. B S. Mech. Engll~nng: Unil Rig &. Equipnl(nl Co.. Tulsa. 1949·1982; Rrsponsible for alt engineering runelions 19.57-1975: Fooned Company for Uni' Rig in Brazil 1976: General Manager. Canadian Opcraliens. 1977: In charge of Unit Rig Produci LiliJl.ilion 1977-1982.

Lewis Epley, Jr., class of 1961, was elected Secretary Treasurer. The dean or his designee will serve as permanent administrator.

Span. Costs of the trip to Washington, D. C. for the competition were underwritten by the Pulaski County Bar Association, the Arkansas Bar Association and numerous law firms

UNIVERSITY OF ARKANSAS AT LITTLEROCK SCHOOL OF LAW By Susie Pointer STUDENT NEWS Things have been fast and furious at UALR School of Law. Students Stacey Allison Dewitt and Greg Wallace won the national inter-law school appellate moot court competi tion sponsored by Georgetown University School of Law, Washington, D. C. on March 3, 1990. This year's competition concerned Bioethics and the Law: the Right to Die. Stacey and Greg were among participants from 25 law schools across the nation. The four finalists in order were: UALR School of Law, Wayne State UniverSity School of Law, University of Michigan School of Law, and Duke University School of Law. Stacey and Greg won three outstanding awards for themselves and the Law School: Overall winners, Second Annual Bioethics and the Law Moot Court Competition; Best Respondent's Brief; and Stacey was named Best Oralisl. The final competition was later broadcast by C-

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and alumni of the Law School. Cathy Derden was the faculty sponsor who coached the team and witnessed their victory in Washington. First-time takers of the Bar Exam from UALR School of Law compiled a 100% pass rate for the February, 1990, bar exam. The overall pass rate for the exam was 85 .3%. New officers of the Student Bar Association for the year 1990-91 are: David Carroll, President; John Wyvil, Vice- President; Dane Clement, ight Vice-President; Katherine Hoff, Secretary; Kim Saylors, Treasurer; John Spivey, ABA Senior Representative; Scott Ellington, ABA Junior Representative; and Megan DeLamar, Arkansas Bar Liaison. OutgOing officers of the SBA sponsored a 5K Race/Walk entitled Race Judicata. The affair took place on the grounds of the new Law School Building in McArthur Park. Little Rock Mayor Buddy Villines was the Official Race Starter and Governor Bill Clinton ran by and encouraged the race participants. Proceeds of the affair were donated to Central Arkansas Legal Services (CALS). May 19 was a happy day for '87 Law School graduates as they attended their Hooding Ceremony and their Commencement at UALR School of Law. United States Senator Dale Bumpers was featured speaker at the Ceremony held at the Masonic Temple in Little Rock. FACULTY NEWS While our law students were busy, our faculty were not to be left behind. The Honorable Susan Webber Wright, a long-time faculty member of the Law School, became Federal District Judge Susan Webber Wright on May 11. Her investiture took place in the U. S. Federal Building and was well attended by friends, faculty, relatives and members of the legal community. The Investiture was followed by a gala reception at the Old State House and was the premiere legal event in Little Rock thi year. Of course, we miss

Judge Wright's presence on the faculty, but we salute her in her new position and are confident that she will grace our faculty, even if only part-time, at some future date. Professor Andrew McClurg's article, "It's a Wonderful Life: The Case for Hedonic Damages in Wrongful Death Cases," has been accepted for publication in Notre Dame Law Review, Volume 66, Issue 1. Professor McClurg received tenure this year with the Law School. Professor Philip Oliver had an article published in the Fordham Law Review, Volume 53, Number 2. His article, entitled, "Once is Enough: A Proposed Bar of the Injured Employee's Cause of Action Against a Third Party," was published at page 117 of the Review and was available at the Law School Library in February of this year. Professor Oliver and his wife, Instructor Ranko Oliver, returned to the Law School after participating as visiting faculty at St. Louis University School of Law. ' Professor Philip Oliver was a visiting Professor there for the fall semester, 1989, and the spring semester, 1990. Instructor Ranko Oliver was a visiting instructor there for the spring semester. We welcome the Olivers return to teaching at the Law School. Associate Professor Lynn Foster has been promoted to the rank of full professor effective this fall. She, Greta Boeringer and Jim Martin conducted a workshop for law clerks June 7-8. Greta, Jim, Jada Aitchison, Pauline Ghidotti, and Susan Goldner of the Law Library attended the Annual Meeting of the American Association of Law Libraries in Minneapolis. Susan Goldner has been promoted to Associa te Professor of La w Librarianship. Professor Lynn Foster co-directed a workshop on Creativity in Management in Denver in June. She is also spearheading the monumental task of determining necessary furnishings for the new Law School Building, selection of these furnishings, and coordination of existing furniture with new furniture for a finished look for the new La w School. Faculty excellence awards were 3 2

THE

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recently voted and awarded by the faculty. Professor Eugene Mullins Received the Excellence Award for research; Professor Susan Wright received the Excellence Award for teaching; and Professor John Pagan received the Faculty Excellence Award for Public Service. Each honoree received a $1,000 award and each was honored at a banquet for faculty excellence sponsored by UALR . Professor Robert Wright hosted the Central States Law Schools Association Annual Regional Meeting in Branson, Missouri, April 28-29. He served as President of that Association for 1989-90, ending his tenure at the end of the regional meeting. Professor Wright also attended the Spring Meeting of the Officers and Council of the American Bar Association, General Practice Section, May 3-6, in Las Vegas, and the mid-year meeting of the American Bar Association in Los Angeles in February.

Professor John DiPippa will have his article, "The Constitutionality of the Arkansas Ballot Question Disclosure Law," published in an upcoming issue of UALR Law Journal. Professor DiPippa has made several presentations on ethics to Legal Services of Arkansas for their federal litigation training and he recently spoke to a group of Afghan rebels at the Law School on our country's constitutional structure. He has received a grant from the American Bar Association Section on Law Office Management to study applications of personality theory to legal education and law office management. Finally, Professor DiPippa will return to a permanent tenure-track position as an assistant professor with the Law School this fall . Professor Dent Gitchel served on the faculty at the Gulf Coast Regional and Florida Regional Programs of the National Institute For Trial Advocacy. He served as facu Ity sponsor for two

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1990

UALR Law Student teams which competed in national trial competition in the regional rounds in jackson, Mississippi. One team reached the semi-final rounds and the other reached the Final rounds. During spring break Professor Gitchel participated in two CLE programs: he presented a three-hour program sponsored by AlCLE and the Office of the Attorney General on hearsay and documentary evidence and he spoke at a trial practice seminar on Making and Meeting Objections sponsored by the Young Lawyers' Section of the Arkansas Bar Association at its Hot Springs meeting. In May Professor Gitchel served on the faculty of Emory Law School's intensive Trial Techniques Program. At the time you read this publication, Professor Gitchel will have published a book entitled Manual for Arkansas Trial Lawyers (Harrison Publishing Company). The end of the spring semester and the beginning of the summer term have resulted in several Faculty changes. Tanya Hill, who taught Trial Advocacy this past year, has left to return to practice in New York City. joy Durward, Instructor in the Legal Clinic, has taken a position with West Publishing Company in Minnesota. Visiting Professor Phillip Norvell, who taught Water Law, has returned to his position at the Law School in Fayetteville. Griff Stockley of Central Arkansas Legal Services will be teaching the summer term of Legal Clinic. Leon Geyer, Associate Professor at Virginia Polytechnic Institute in Blacksburg, Virginia, will be our Altheimer Visiting Professor of Agricultural Law. MurJ Larkin, retired Professor of Law from Texas Tech University School of Law, will teach Ad vanced Evidence. ALUMNI NEWS The Law School Alumni Association has also been busy. The Association sponsored a Phonathon to raise funds for the UALR Foundation Fund, with pledges going to support the activities of the Law School. Outgoing President of the Association is j. W. Buddy Raines, Class of '69.

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He will officially turn over his duties to incoming President Martha Miller at the Annual Meeting on june 14, at noon in Hot Springs at the Arlington Hotel. Alumni Dan Peregrin, Greg Hopkins, Brooks Alan Gill and jo Carol jones Gill were admitted to the U. S. Supreme Court by appearing personally in Washington, D. C. on May 14, 1990. Admitted by letter were Chip Welch, jr., Steve Whitwell, Sr., Linda Shepard, and james Hollis II. The admitting agent for our alumni was former Dean Lawrence Averill. STAFF NEWS Administrative and staff news continues as well. Associate Dean Paula Casey left her position here to work for Senator Dale Bumpers as his legal counsel in Washington, D. C. Susie Pointer has been hired as Assistant Dean, taking on many of Paula's former responsibilities. Longtime faculty secretary Mildred Kraft left us after ten years of service in the "Fishbowl" to work for new U. S . District judge Susan Wright. Mildred's footsteps are hard to fill, but

Melba Myers is working hard to do so as new Faculty Secretary. The Law School's Dean Search continues, headed by Professor Ken Gould. Vinnie Francis has joined the Law School in Admissions, where she worked in 1987-89 prior to moving to San Antonio. We are very proud of Brenda Peterson, Cataloging/ILL LTA, who was honored at a ceremony on May 10, at UALR for 20 years of service to the Law School. Finally, several newsworthy events have occurred this spring at the Law School. Two Altheimer Lectures were presented. The first was entitled "On Amending the Constitution: A Plea for Patience," and was delivered by U. S . Court of Appeals Circuit judge Ruth Baer Ginsburg. The second lecture, entitled "Appropriations of Power," was given by Gerhard Casper, The William B. Graham Distinguished Service Professor of the University of Chicago Law School. Professor Peter Huber delivered our Law, Science and Technology Altheimer Lecture, entitled "Science and junk Technology."

The Law School will again be host for Little Rock Law, a summer enrichment AEGIS program funded through the Arkansas State Department of Education. Approximately 40 gifted and talented high school students from the Central Arkansas area are given an introduction to the study and practice of law. Students study introductory law courses, observe simulated court trials, and shadow attorneys to learn what lawyers actually do on a day-by- day basis. The Annual Scholarships Reception was held in March at the Arkansas Bar Center to enable our scholarship recipients to meet their benefactors. Finally, renovation continues on the GIT building in MacArthur Park, future site of the new Law School. Estimated completion date is April, 1992.

ARKANSAS INSTITUTE FOR CONTINUING LEGAL EDUCATION By Deb Garrison A fellow attorney and former law school classmate approached me at a recent seminar to discuss Minimum Continuing Legal Education. After concluding that she thought MCLE was "a good thing'" she commented that I "must he happy about it" since it insures ever-increasing attendance

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Fax # (501) 922-41n at AICLE programs and thus continued "job security" for me. I quickly assured her that while Minimum Continuing Legal Education is an important element in improving lawyer competence, it cannot insure that AlCLE will grow and prosper as a CLE provider. In fact, the introduction of MCLE to Arkansas has increased the competition for the CLE dollar between non-profit providers (such as AICLE , ATLA and the Arkansas Bar Association) and the for-profit providers (such as BI, Inc. and PES, Inc). While competition is good news for the CLE consumer, it requires that AICLE staff begin planning programs earlier than ever in order to carry out our primary goal: to serve the lawyers of Arkansas through an organized curriculum of continuing legal education. To this end, the AICLE Board of Directors established an organizational objective that AICLE should improve the quality of its CLE programs by "encouraging program committees to initiate the planning process early."

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EARLY PLANNING IS THE CORNERSTONE OF QUALITY CLE My goal as Program Coordinator for AICLE has been to establish our program schedule 12 to 18 months in advance. Unfortunately, my attempts to do so have generally resulted in incredulous stares and comments such as "that's a year away, I can't possibly commit to chairing a program that far down the road !" or call me in six months and I 'II let you know if the committee is interested in cosponsoring the program." If these individuals understood how belated program planning impacts the quality of the end result, they would probably be more eager to begin their work as program planners . If

FAILURE TO PLAN EARLY THWARTS OUR ABILITY TO BOOK ADEQUATE HOTEL MEETING SPACE Even though the metropolitan areas of the state have an abundance of hotels, it is difficult - often impossible - to book meeting space for seminars even a year in advance! This lack of adequate meeting space is due to primarily two factors. First, AICLE is required by the Office of Professional Programs to provide writing surfaces to program attendees. In hotel lingo this is called "Classroom style seating'" and it takes up more space than any otner seating style. Therefore, only the hotels with larger meeting rooms can accommodate our average one- day seminar. Second, we have found that attorneys are more inclined to attend programs in the fall and spring. Unfortunately, this is also true of most other groups, including

the major conventions which often utilize every meeting room even in a major hotel. These factors illustrate early program planning is essential if we hope to reserve top-quality meeting rooms. FAILURE TO PLAN EARLY HINDERS ATTENTION TO DETAIL Reserving a meeting room is only the beginning of a detail-intensive process. A multitude of specifics must be arranged, rearranged and rearranged again. Microphones, blackboards, visual aid equipment, registration tables, coffee, cokes, easels, coatracks, head tables, and podiums are just a few of the many details that must be organized. If a program isn't planned sufficiently in advance, all of these details (which may seem minor but can substantially affect the quality of a program) get lost in the shuffle. Planning early enables us to fully think through each step of a program, thereby anticipating the best way to execute each aspect of it. Lack of early planning can prohibit obtaining the faculty we want. One of the biggest frustrations for a program chair is to spend hours planning a slate of top-notch topics only to find that the individuals she'd like to enlist as speakers can't participate because of a full calendar. Attorneys who are good at what they do generally relish the opportunity to speak. However, the best speakers are typically very busy people. Contacting them early not only increases the chances that they'll be free - it also shows that you respect them and the many demands on their time. After all, you're asking them to invest a large chunk of that time in your CLE program. Don't you owe them the courtesy of asking them well in advance? Failure to plan early causes unnecessary stress. Although I hate to admit it, we have pulled together programs by the skin of our teeth. Miraculously, some of them worked although I am not sure that the constant worry - for staff and planners alike- was worth it . And the ones that didn't work? Well, that's another article.

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Planning a continuing legal education program should be an enjoyable experience. Granted, a lot of work is required for everyone involved. Improving professional skills and knowledge is serious business. But there's no reason we can't have lots of fun as we go about this important task. We don't claim to have all the answers for completely eliminating the stress that accom- , panies planning and executing a : program for 100+ Iavvyers . However, : we have organized enough programs: to know that getting an early lead on planning helps. EARLY PLAN I G STARTS WITH YOU At the Annual Meeting in June, we enlisted the aid of the Association's section and committee leaders. We met with each of you personally, told you a little bit about AICLE and encouraged you to brainstorm program ideas early. Our goal is to encourage as much participation by sections and committees in our CLE programming as possible. However,

spent hours helping speakers with their written materials and even sched uled a meeting prior to the program so that several of the speakers could rehearse their 1990 OUTSTANDING presentation. He even reminded me PROGRAM PLANNER about my own deadlines! This is the Planning early was just one of the kind of program planner that makes many attributes of AICLE's my job easy. This is the kind of Outstanding Program Planner for program planner that puts together a 1990. This person, a partner with quality seminar that's worth attendFriday, Eldredge & Clark in Little ing. This is AICLE's Outstanding Rock, was an exemplary program Program Planner for 1990 - William planner. He read and utilized every A. Waddell, Jr . piece of background information 1 THANKS, BILL !!! sent to him regarding planning a CLE program. He came to the initial planning meeting prepared and ready to brainstorm. He kept me advised of his progress and mel every deadline I gave him. He copied me on each piece of correspondence he sent to Terms Available. Call for speakers. He supplied me with a mailing list of individuals outside the free catalog, legal profession who might be Allin R. Jones, Michie Co., interested in attending the program 1-800-448-5110. and offered several ideas for effectively marketing the program. He in order to do this effectively, we need your cooperation. One of the best ways you can help is by planning early.

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THE

ARKANSAS

LAWYER

JULY

1990

J

LAW OFFICE MANAGEMENT: WHAT'S NEW?

Financial Management:

A Two-foldApproach By Jerry Schwartz Financial management is as necessary and appropriate for sole practitioners as it is for the firm, large or small. In the past few years, you have all undoubtedly read many articles and attended seminars on financial management in the law office. The content of the articles and seminars has generally been to focus on the income side of the financial equation. Lawyers have come to the realization that a great deal more net income can be generated by increasing production than can be generated by refusing to incur additional expenses. For too many years law offices managed by controlling the expenditures. This was done because it was an action of which almost everyone has a basic understanding. If you do not incur additional expenses; hire additional staff, provide for adequate training, purchase current technology, provide for insurance risks, the funds will be in the general account for year end distribution. This tactic forces an improvement in the bottom line at least on a temporary basis. The problem with this method of law office management is that the deferral of necessary expenditures cause decreases in timekeeper productivity, negatively affecting the gross income of the office over the long run. Lawyers must look at certain expenditures as investments in their offices and not merely as a drain on distributions. Expenditures for staff, training, technology, insurance and other expenses are investments

which lawyers can no longer defer if they are to be competitive. In order to combat the one-sided management style of past years, the emphasis was changed to looking solely at the income generation of the timekeepers and in particular a great deal of emphasis was placed on billable hours. Lawyers also had to deal with the ever increasing need to market the practice because of rulings which opened the door to these practices. The management of income generation and marketing were not management chores that lawyers were accustomed to dealing with on a day to day basis. They were now asked to establish rules for this highly entrepreneurial business and to discipline their colleagues for failure to follow the rules such as completing time records and billing their clients. They were also advised to sell their services to the public through advertising and marketing. As is the case in many situations, there were those who went too far in their quest for increased production and additional clients. The results were that partners became angry with each other over the new philosophy of the firm in the area of marketing. Many long-standing relationships were strained because of increases in pressure to record and bill more hours. As the emphasis on increased profits changed to the income side, the guard around the expenses fell at a time when some of the basic costs such as salaries, training, technology and

insurance began to skyrocket. Lawyers had increased their gross income bu t did not show a significant increase in distributable income because expenses were out of control. The sane approach to all management programs is moderation. You should develop management programs for your law offices which include a twofold approach of financial management. You should review hours worked and billed and certain marketing strategies along with the needs of the office for staff, training, technology, insurance and other expenses. The law office is no longer adequately served by a one sided approach on either side. In addition, if you are to manage a successful law office, long range planning to determine the philosophy and direction of the office must be undertaken. Projections using historical data can then be applied to the plans of the office. Once the planning and projections are completed the lawyer can begin to change certain policies and practices to improve the economic condition of the office. This method of management if accomplished in the proper manner will involve the entire office and improve the chances of economic success of the office.

Jerry Schwartz, a law firm consultant, is the oWller of Legal Management Services of Memphis, Tenllessee. He writes regular coilimns for 11,e Mississippi Lawyer.

AWARDS PRESENTED AT 1990 ANNUAL MEETING

The 1990 Awards Luncheon was held during the Annual Meeting in JUlie. Willners

were

afll10Llllced

and

presentations made by Arkansas Bar Association President, David M. Glover and Arkansas Bar Foundation President, H. Murray Claycomb. Nominatiolls for the awards are snbmitted by a/lorneys statewide each year and are thw reviewed by the Association's Awards Commi/lee.

in community activities and CIVIC work, including chairing the board of Ouachita Baptist University and the Billy Graham Crusade in Arkansas. He has served the Bar in Arkansas and on the national level with the International Association of Defense Counsel. Sutton has been defense counsel in many significant and well known cases.

Arkansas Bar Association House of Delegates, to name a few. He was the recipient of the Arkansas Bar Foundation Award of Merit in 1982.

Steplwnie Flowers 'lccepts the LawyerHumanitarian Award for Irer father, W. Harold Flowers.

Senator David R. Malone accepts ti,e Outstanding Lawyer-Citizen Award from H. Murray Claycomb.

William H. "Buddy" Sutton accepts tire Outstanding Lawyer Award from H. Murray Claycomb.

William H. Sutton was named Outstanding Lawyer for 1990. Sutton is widely known for his trial work. He has a co-leadership role in running one of the largest firms in Arkansas, Friday, Eldredge & Clark, where he is an inspiration and role model for younger lawyers. He has been extensively involved 3 8

THE

ARKANSAS

Senator David R. Malone of Fayetteville was named Outstanding Lawyer-Citizen. The list of his civic activities is immense, including being a former mayor, former city attorney, a director of the Municipal League, a

member of the Board of Directors of the City Chamber of Commerce, a former member of the Arkansas House of Representatives and a current member of the Arkansas Senate. In the legal field, Malone has been a member of the AICLE Board, a Board member of the Arkansas Law Review and a tenured member of the LAWYER

JULY

1990

W. Harold Flowers was posthumously awarded the LawyerHumanitarian Award for 1990. The award is rarely given and recognizes extraordinary efforts by an . attorney to improve the lot of humankind. Flowers was recognized for furthering equal opportunities for everyone, being a powerful voice of reconciliation and for his lifelong example inspiring all those around him to strive to be better people. Flowers was an attomey, an ordained.

minister since 1971 and a highly respected civic leader in Pine Bluff, Arkansas. He was a Past President of the National Bar Association, the founder of the Black Lawyers' Association of Arkansas, renamed the

W. Harold Flowers Law Society and a Fellow of the Arkansas Bar Foundation.

--------------------------------------------------,

annually to the member of the House of Delegates who has distinguished himself or herself by extraordinary service to the House and the Association during the previous year. The selection committee decided that Drummond, through his work as Chair of the Review & Redistricting Committee during the Bar year, was the most deserving of the award. Drummond is a partner in the McMath Law Firm in Little Rock.

GOLDEN GAVEL AWARDS

Senator Max Howell & Representative J.L. "Jim" Shaver receive their awards of service from President David. M. Glover.

Senator Max Howell of Sherwood and Representative J. L. "Jim" Shaver of Wynne received special awards of service to the Bar during the Awards Luncheon. Howell was honored for his work as a State Senator and Chair of the Senate judiciary Committee. Howell has practiced law for 50 years. Shaver was honored for his service as a State Representative and Chair of the House Judiciary Committee. Shaver has practiced law for 39 years. Both lawyers are senior ranking members of their respective Chamber of the Legislature. President Glover remarked that it would be hard to find" ... two people who have played a more important role in directing the legislative impact on the practice of law in Arkansas..."

Golden Gavel Awards were given by Arkansas Bar Association President, David M. Glover. The awards are given by the President to recognize outstanding achievements by committee chairs. "This year it was a really tough decision, we had so many committees that worked very hard and got so much accomplished. All the committee chairs were outstanding," said Glover. Recipients and their respective committees are pictured & listed hplow.

James B. Sharp, Investment Committee.

Lucinda McDaniel, Youth Education Committee

Vincent Foster, Jr., Annual Meetiug Committee.

Winslow Drummond receives the C11arles L. Carpenter Memorial Award.

Winslow Drummond of Little Rock received the Charles L. Carpenter Memorial Award. This award is given

Frank C. Elcan II, Arkallsas Form Book Computer Diskettes Committee.

Oil

...

Jack A. McNulty, Legislative Procedures Review Committee.

Members of the Association were honored for 50 Years of Service during the Awards Luncheon. They included (l to r): Andrew G. Ponder, George F. Steele, Ernie E. Wright, Tom F. Digby, Henry Woods, Anthony Kassos, Paul Jameson, W. Max Howell and Charles A. Walls, Jr.

Carolyn Witlrerspoon accepts tire Outstanding Local Bar Award as President of tire Pulaski County Bar

Sirepiten Sitarum, President of tire Sebastial/ COI/I/ty Bar Association, accepts tire Outstal/ding Local Bar

Association. The Association WOII tire award for tlreir ol/tstanding programs, added memberslJip, mOl/tlrly newsletter al/d otlrer community programs such as Law

Award during the Awards L,melteo". Sebastian Cormh} WOIl ti,e award ill

Week.

recognition of Iraving 161 members, I/early all tlrose eligible in its corlllo). Tirey also made dOl/ations for law related matters and participated iI/ several CLE programs.

Get Straight Answers From the Experts and bfllie filii doblg it

1991 Annual Meeting THE

ARKANSAS

LAWYER

JULY

Observances alld rendered assistance

ill delivery of Pro Bono services.

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

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LOl/is B. (Bucky) Jones, President of tire St. Francis County Bar Associatiol/, accepts tire Outstandillg Local Bar Award. Tire Association Irosted tire 1st Judicial District Clrallcery and Probate Seminar and participated ill otlrer CLE programs. Tirey also conducted Law Day

Qualffl.cl and EX~rl.ncÂŤlEx"." Witn." In Fed.rol, State, Municipal and Military Court.

1990

I

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AUTHORS! Law Book Publisher seeking one and two volume works. Submit outline and table of contents only, to:

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4 2

THE

ARKANSAS

LAWYER

J U LY

1 9 9 0

An Introduction to

Carpal Tunnel Syndrome By Nelson V. Shaw n recent years the work place has seen an increase

Many factors have been submitted as causing CTS.

in the number of employees suffering from carpal

These etiologic factors include: gout, arthritis, post-

tunnel syndrome (CTS). It has been estimated that CTS will strike an estimated one in ten Americans. 1 Dr.

traumatic injuries, hypothyroidism, amyloid disease,

Peter C. Amadio of the Mayo Clinic in Rochester,

multiple myeloma, malunited Colles' fracture, ganglion,

Minnesota, has been quoted as saying, "There is

tenosynovitis, lipomas, neuroma, congenital defects,

tremendous evidence that carpal tunnel syndrome is

tendonitis, hematoma, endoneurial edema and bone

work related."2 In fact, many industries claim that CTS

diseaseS CTS is also being found with non-specific and

is one of their most disabling and costly medical problems 3 A better understanding of this problem is

rheumatoid tenosynovitis. 6

I

needed in order to prepare and prosecute (or defend)

repetitive hand movements, acromegaly, macrodactyly,

However, often the cause

of CTS is obscure and unknown?

these types of injuries in workers' compensation claims.

CTS occurs more frequently in women. The ratio of women to men affected is 5 to 18 Onset of CTS usually

CARPAL TUNNEL SYNDROME

occurs from age 40 to 50, although a person at any age can be affected. 9 W hen symptoms are bilateral they

Carpal tunnel syndrome (tardy median nerve palsy)

generally occur first and are more severe in the

occurs when the tendons, bones or ligaments in the

dominant limb; when symptoms are unilateral, the

wrist press against the median nerve, causing it to

dominant limb is usually involved. IO

shortcircuit. The median nerve is the major pathway for

The main symptom of CTS is pain in the wrist that

nerve impulses traveling from the spinal cord, down

radiates into the hand and proximally to the forearm.

the arm, through the wrist and palm into the fingers.

Other symptoms are numbness, tingling, burning,

The median nerve courses through the wrist via the

weakness and a "pins and needles" sensation. There is

carpal tunnel. The carpal tunnel is a "ligamentous

often pain in the middle and index finger and thumb l l

boney restrictive canal, the floor of which is made up of

The symptoms frequently manifest themselves at night and are usually spontaneous. 12

a mosaic of carpal bones."4

CTS most often occurs in workers whose tasks

exists, this position will cause almost immediate

include extreme extension, flexion, wrist deviation or punching movements l3 However, any job that requires

aggravation of symptoms.J7

repetitive hand movements raises the risk of CTS.

can be helpful in determining if CTS exists. After the

Workers in jobs such as cashiers, card sorters, hair

cuff is placed about the upper arm and inflated, the

dressers, small parts assemblers, garment stitchers,

normal person will have a tingling sensation develop in

butchers, carpenters, painters and keyboard operators

the entire hand and fingers or over the ulnar part of the

are at some special risk. Since there are many

hand usually in about 2-3 minutes. In a person with

ssible

Fourth, a tourniquet, such as a blood pressure cuff,

etiologic factors that possibly caus

crs, the ling .

related causes should always b considered.

seconds in the thuml:>, iudex finger, middle flnger and

develops rapidly, usually within 30-60

the lateral aspect of the ring finger. 18

ysical examination is given be used

document the.-diagnosi ojrCTS. These

are severa

symptom to CTS: c

pjne disease, cervical disk

degeneration, cervlca rib compression of the median nerve, ba,nd com ressin Syndr

14 should be c

diagnosis of CTS' rna

wrist or carpal tunnel xand an electromyogram.

brachial plexus, double crush

e and

these conditio

confirm and

X-rays of the wrist 0 carpal tunnel area can

Ip rule

Symptoms from

out other conditions sue as fractures or arthritis. Next,

fully ruled out before a

velocity test

e. 15

The medica ev

should begin with a

thorough medical history. Th history should cover st traumatic i 'uries, arthritis and the Ioyment duties n tasks.

Next, a physical examination can help confirm that the symptoms are rela ed to a nerve problem, and then localize the n rve problem to t tests that can

rist. Th

several

utilized.

eontraction stimulation.

ne Tine!'s Test requires the physician t gently, tap over the nerve with his or her fingerl6 Tingling in th area 0 distribution of the nerve indicates involvement of the median nerve.

electrical impul

T

o TREATMENT

here are several means of treating carpal tunnel

Third, Phalen's Test is a wrist flexion test that

syndrome. If the symptoms are mild and there is

requires the individual to hold the forearms vertically,

no

allowing the wrist to fall in complete flexion for about

hydrocortisone into the carpal tunnel may afford

one minute. This position causes the median nerve to

relief.21 A single injection may bring relief for several

compress against certain ligaments and tendons. If crs

months or it may need to be repeated. It is generally

44

THE

ARKANSAS

LAWYER

thenar

JULY

muscle atrophy,

1990

the

injection

of

j

thought that if an injection does provide relief, CTS

gripping, grasping or lifting with the thumb and index

probably exists. [n addition, there are medications that

finger can put stress on the entire wrist. The whole hand

can be used to reduce swelling and inflamation and

and all fingers should be used to grasp objects.

therefore ease pressure on the median nerve. Nonsteroidal anti-inflamatory drugs can be taken orally and are sometimes effective. Further, splints are available to keep the wrist at a less extreme or neutral position. These splints can keep the wrists f downward or extending upward symptoms. There are night keep the wrist in a neutr

m Illexin

icK worsens CTS

'nts that can be worn to

position while t eJpdivIQual

sleeps and there a e also occupati designed for spec .c types of work.

lints tha

.l

re

ARKANSAS LAW

T

here are few Arkansas cases that have dealt with

.r---_

CTS as a work-related injury. Only in recent times

have Arkansas courts and administrative law judges recognized CTS can be a job-related injury or disease. In Plan Is v. Townsen

urlner Lbr. Co., 247 Ark. 824,

li8 S.W.2d 349 (1970), carpa tunnel syndrome was diagnosed in an employee h

ing the position of

[n the event that the more co , ........_, not work, the severe pain the individ al develo i"'nl>g)-,-=-'

ers' compensation

surgical procedure allgg a pal tUIDlel release will be under ,aken. This is an operation that takes approximately 45

inutes to one hour and is usually

Similarly, in Linds

v. Ark. Cemelll Co., 25

510 S.W.2d 552 (197 ,a typis

done as day surgery. '" tou niquet is placed on the

brought a workers' corn

individual's arm ana t e trans erse ligament is divided

CTS. The orthopedic surgeon said

nnel and relieve the pressure on

rk. 780,

e I at work and she

nsation claim for bursitis and . He tl\ere was

no specific cause for bursitis, h with CTS who were typists an

A c pal runnel release proyides relief of pain that is immediate an permanent in ost cases 22 Progressive

extension of the wrist in the typing p

improvement and often complete recovery can take place over a period of months to two years. 23 The

the precipitating cause "of er medical complaints, including her wrist." How

hand is to

because of a inding that t

surgery24

e actively used

ossible after

al use of t

ithin

it." The surgeon added that "til

ess can cause tic ep'

claim

de was

as denied

not relate(j to her fal rAII~ ....;::'"

one week of surgery in th maj.ri

P

EVENT!

reventing carpal tunne syndrome can bl as easy': as

keeping the wrist in "neutral" which means

avoiding using the wrist in a bent or flex

extended or

a lob that.-re'luired repetitive twisting motions with he/;<

nds. She was diagnosed as having

teno ynovi.tis, with CTS suspected. The Court of

twisted position for long periods of time. The neutra

J\ppeals found that the tenosynovitis with suspected

straight position is the proper wrist position. In

CTS was an occupational disease based on the work

addition, possible repetitive movements for extended

duties of the worker. The Court of Appeals added that

periods should be avoided; hands should be rested

the test of compensability is whether the nature of

periodically; work activities should be rotated on

employment exposes the worker to a greater risk of that

occasion; hand and arm

disease than the risk experienced by the general public

muscles should

be

strengthened; the speed with which forceful repetitive movement is done should be reduced; and any

or workers in other employments. Since that time, there have been at least nine cases

involving

crs as a compensable injury in Arkansas. 25

There can be little doubt that CTS is now widely

Who in the world could give you the down-to-earth value ofa skyscraper?

accepted as a compensable injury in the realm of worker compensation law.

FOOTNOTES 1 "Getting relief from Carpal Tunnel Syndromes:' Erecutive Fitness, Uune 1989). 2 Id. 3 Bleecker, Medical Surveillance for Carpal Tunnel Svndrome in Worker,;, 12A J. of Hand Injury 845 (Sept. 1987). 4 Feldman, Travers, Chirico-Post and Keyserling, Risk Assessment in Electronic Assembly Workers: Carpal Tunnel Syndrome, 12A J. of Hand Injury 849 (Sept. 1987). 5 Blecker at 846; Walton and Culter, Carpal Tunnel Syndrome: Case Report of Unusual Etiologv, 74 Clinical Orthopedics and Related Research 138 Uan. 1971). 6 Milford, Carpal Tunnel and Ulnar Tunnel Syndromes and Stenosing Tenosynovitis, in 1 Operative Orthopedics 459 (Crenshaw ed. 1987). 7 The Wrist L 2 Orthopedics: Principles and Their Application 1083. 8 Id. 9 Jd. 10 Jd.

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11 Feldman at 849; Policastro, Injuries to Spinal Cord Nerve Roots Plexieses and Peripheral Nerve, in 21 Trauma 6:37 (April 1980). 12 2 Orthopedics: Principles and Their Application at 1084. 13 Felman at 849; Execulive Fitness at 3. 14 Bleecker at 845. 15 Milford at 461.

16 Dorland's lllustrated Medical Dictionary 1206 (Friel ed. 1985). 17 ld. 18 Jd. at 1085. 19 Executive Fitness at 3. 20 Milford at 461. 21 2 Orthopedics: Principles and Their Application at 1086. 22 Id.; Milford at 459. 23 Milford at 450. 24 Most Arkansas Worker Compensation Commission cases involving CTS in some manner have occurred since 1980. 25 Many of these cases have been set out by the Court of Appeals as "not designated for publication." For examples of CTS compensability see: American Medical International v. Willis, o. CA-88-449 (Ark. Ct. App. June 14, 1989) (Available on West Law) and International Paper Co. v. Emberton, No. CA88-440 (Ark. Ct. App. May 24,1989) (Available on West Law).

4 6

THE

ARKANSAS

LAWYER

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JULY

1990

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